Lords Sitting of 22 July 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 Chelmsford.

European Commission Presidency
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What is the length of the appointment of Mr. Jacques Delors with the European Commission, and when that period is due to expire.
Lord Cavendish of Furness: My Lords, Mr. Delors was first appointed President of the Commission from 1st January 1985 for a term of two years. His appointment has subsequently been renewed and is due to expire on 31st December 1992.
Lord Boyd-Carpenter: My Lords, I am obliged to my noble friend for that Answer. Can he also indicate who makes the appointment, whether it is renewable indefinitely and whether it is for a fixed term on each occasion?
Lord Cavendish of Furness: Yes, my Lords. There is no limit to the number of times Mr. Delors' appointment can be renewed, each time for a further two Years. The members of the Commission are appointed by common accord by the governments of member states. The Commission at present consists of 17 members. The President of the Commission is also appointed by common accord and is counted as one of the 17 members.

Employment Service Placement Target
2.37 p.m.
Lard McCarthy Lard McCarthy asked Her Majesty's Government:
Why the placement target of the Employment Service has been reduced during a period of rising unemployment.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, my right honourable friend sets targets for the Employment Service which take account of planned improvements in its efficiency and effectiveness and the conditions prevailing in the labour market. I am convinced that the target of placing 1.3 million unemployed people into jobs, the equivalent of over 5,000 placings for every working day, for the current financial year is both demanding and realistic.
Lord McCarthy: My Lords, I thank the noble Visco ant for that reply. Does he not agree that on page 329 of the June issue of the Employment Gazette the Government admit that they have reduced the target by some 22 per cent. on last year? The reason they give is:
"the downturn in the labour market and the anticipated reduct on in vacancies".
458
In other words, as unemployment gets worse the Government reduce the target for the Employment Service because they do not propose to do anything about it. Is that fair?
Viscount Ullswater: No, my Lords; nor is it correct. The Next Steps Agency is learning from experience. The targets this year are fewer and better formulated than last year when they were set on the basis of the limited historical performance information then available. In 1991–92 the Employment Service has 14 demanding targets covering job placings, help with job search, job preparation and training, and paying benefits accurately and promptly.
Lord Dean of Beswick: My Lords, does the Minister agree that if the target is being reduced and the numbers being placed are falling that can only fuel further unemployment and that the Government's policy should be directed in the opposite direction?
Viscount Ullswater: My Lords, the placings for next year reflect the success of placings for this year. To that extent the targets have not been reduced.
Baroness Turner of Camden: My Lords, is the Minister aware that the CBI is reported this morning as saying that the prevailing fear of unemployment is undermining consumer confidence and presumably therefore retarding economic growth? In those circumstances is it not necessary for the Government to do far more in the way of job creation? Does he agree that that is not accomplished by reducing the targets as indicated?
Viscount Ullswater: My Lords, the Government are stepping up their very positive action by offering this year some 840,000 other opportunities to help unemployed people back into work as quickly as possible and the number is approaching 900,000 for next year. The Government view the matter very seriously and the Employment Service is now a billion-pound agency.
Lord Bruce of Donington: My Lords, is the noble Viscount aware that the effective way of dealing with the problem is for the Government to pursue economic and fiscal policies which will lead to the lowering of unemployment?
Viscount Ullswater: My Lords, I entirely agree. The Government are taking the necessary steps to combat inflation and thereby create the climate for renewed economic growth. That is the route to increased employment.
Lord Rochester: My Lords, is the noble Viscount aware that, as a result of the reduction in the employment training budget, some training centres catering particularly for those in need of rehabilitation following a period in prison are having to limit adult training to those best able to benefit by securing jobs? At a time when government policy is said to be to reduce the prison population by expanding community punishment, is it not most inappropriate to be reducing job training for ex-offenders?
Viscount Ullswater: My Lords, the prime concern of the Government is cost-effective training for individuals and not continued funding for any particular provider, either private or voluntary. Ex-offenders have preferential access to the full range of services and programmes offered by the Department of Employment. The time spent in custody counts towards the qualifying period for our major programmes, employment training and job clubs, and will count towards the employment action programme. Many ex-offenders are eligible immediately on release. The announcement on 19th June of new measures for the unemployed included an increase in funding for employment training for the training of 15,000 more people, particularly those with numeracy and literacy problems.
Lord McCarthy: My Lords, I thank the noble Viscount for all that he has said in answer to the questions, but he has not answered my original Question. Why are the Government planning a reduction in help for the unemployed when the numbers of unemployed are rising? The Government are doing all kinds of things but they plan to do less for the unemployed in terms of the placement service than they did last year. Why?
Viscount Ullswater: My Lords, I have gone a long way towards explaining why, but obviously I have not convinced the noble Lord. The number of opportunities for the unemployed is greater than at any other time. That is helpful in many ways. The Employment Service is doing an extraordinarily good job and the number of people flowing out of unemployment on a monthly basis is some 278,000.

Eastern Europe: Withdrawal of Soviet Forces
2.43 p.m.
Lord Mayhew Lord Mayhew asked Her Majesty's Government:
What Soviet forces have been withdrawn from Eastern Europe since 1988, and what further withdrawals they expect.
Lord Cavendish of Furness: My Lords, all Soviet forces have withdrawn from Czechoslovakia and Hungary. Arrangements have been made between the Soviet Union and Germany to regulate the withdrawal of all the remaining Soviet forces in the former GDR, which is due to be completed by the end of 1994. Although the Soviet Union has also agreed to total withdrawal from Poland, negotiations over timing and other arrangements continue.
Lord Mayhew: My Lords, I thank the noble Lord for his reply. However, can he say what warning time the NATO Governments now estimate they have before the Soviet Union could launch a conventional attack on the West, or is the possibility regarded as too remote to make a guess worthwhile?
Lord Cavendish of Furness: My Lords, I thank the noble Lord for having given me advance, if brief, notice of that question. Through reductions so far
460
achieved under the CFE treaty, and through the new ability to verify, we believe that the risk of a surprise attack no longer exists.
Lord Mason of Barnsley: My Lords, will the Minister inform the House, first, what Soviet land forces were transferred to the Soviet navy in breach of the conventional forces reductions agreement and, secondly, what tank forces were spirited east of the Urals to avoid being counted in the cuts?
Lord Cavendish of Furness: My Lords, I cannot give exact figures as regards the numbers in the Soviet navy. However, under recent negotiations, agreement has been reached with the Soviets about arrangements for the navy. About 70,000 items were withdrawn from the treaty area before signature, of which more than 50,000 items of all five categories limited by the treaty are east of the Urals. The Prime Minister and Foreign Secretary expressed our anxieties during visits to Moscow. The Soviet Union was left in no doubt that it must resolve those problems. The British and other Allied action contributed to the success of the United States-Soviet negotiations.
Lord Richard: My Lords, I thank the Minister for that response. However, he will be aware that the fact that negotiations for the withdrawal of forces from Poland appear to have stalled is of considerable concern. Will the Prime Minister raise that issue and other similar issues when he goes to Moscow?
Lord Cavendish of Furness: My Lords, I do not know whether my right honourable friend will raise that issue. The Soviet anxiety over withdrawal from Poland stemmed from its concern to have sufficient cover for its troops withdrawing from Germany. I understand that progress is being made in those negotiations.
Lord Stoddart of Swindon: My Lords, when the Chancellor of the Exchequer goes to Moscow to discuss economic affairs and improvements in the Soviet Union, will he be able to question the large percentage of gross domestic product that is allocated to the armed forces in the Soviet Union?
Lord Cavendish of Furness: My Lords, the proportion of GDP employed in defence is greater for the Western countries than it is for the Soviet Union. Having said that, the figures are extremely difficult to make sense of, given the costing systems of the Soviet Union.
Lord Chalfont: My Lords, in calculating the possibility of a surprise attack against NATO, will the Government bear in mind the following point? When troops are removed from Central Europe, as they have been in recent months, and when, as has already been said, the Soviet Union withdraws behind the Urals and transfers many of its armoured vehicles to its navy (making the Soviet navy virtually the only navy in the world that now has tanks) it would take much longer to reinforce the European theatre from the West than it would take the Soviet Union to reinforce Europe from behind the Urals, given the tanks now in its navy.
Lord Cavendish of Furness: My Lords, with progress so far—it is of course unending—the treaties that have been achieved give a degree of security to the West As I said, the question of arms reduction does not cease there. I shall bear in mind the remarks of the noble Lord, Lord Chalfont.
Lord Mackie of Benshie: My Lords, is the Minister aware that, although we must obviously keep an eye on what is going on, it is bound to take time to resolve the difficulties in the cumbersome Soviet economy of trying to reverse the military-industrial conflict?
Lord Cavendish of Furness: My Lords, the noble Lord is right. The restructuring of the Soviet political and economic life, initiated by President Gorbachev, is largely intended to reorientate the country away from the previous military emphasis. CFE force reductions and other arms control measures thus run with the grain of Soviet reforms and should benefit the Soviet economy as much as they do East-West relations.
Lard Beloff: My Lords, was the House right in understanding the Minister to say that the Soviet proportion of its GDP devoted to defence is less than that of the major Western countries? If so, the statistics available to the Minister are different from those available to anyone else.
Lord Cavendish of Furness: My Lords, I have seen statistics along those lines. That is why I quoted them. On the other hand, I think that they are utterly meaningless in the context in which I saw them.
Lord Williams of Elvel: My Lords, is the noble Lord used to quoting utterly meaningless statistics from the Dispatch Box? Is it not the case, as the noble Lord, Lord Beloff, said, that from all the statistics, meaningless or otherwise, that we have heard, the Soviet Union spends a vastly higher proportion of its gross domestic product on defence than any Western country? Does he agree that the Government—obviously from the Dispatch Box—have emphasised that point throughout, in order to make sure that the options for change do not go wrong?
Lord Cavendish of Furness: My Lords, I am sorry if I confused the House. I did not mean to imply that the Soviet effort was in any way diminished by that. I merely tried to illustrate that, with a currency that is not operated similarly to our own, the figures do not make much sense in that context.
Lord Williams of Elvel: My Lords, is the noble Lord aware that calculations of the gross domestic product of tit! Soviet Union are made in the rouble? Whatever the value of the rouble may be, the figure is a percentage of output. I insist again on the question put by the noble Lord, Lord Beloff. Is it not the case that the Soviet Union still spends a higher proportion of its gross domestic product—calculated on any basis that anybody cares to choose—on defence?
Lord Cavendish of Furness: My Lords, I suspect that the noble Lord is right; but he is not right about the basis on which GDP statistics are published.
462
Differences arise not only because there are various levels for the rouble but it also depends on what the Soviet Union declares as part of the defence effort.
Lord Stoddart of Swindon: My Lords, I must confess that I was rather nonplussed at the noble Lord's reply, but as I do not have the statistics to hand, I let the matter go. I was grateful to the noble Lord, Lord Beloff, for bringing back the matter. The Minister did not tell us the statistics. Can he let us have them so that we can perhaps make a comparison?
Lord Cavendish of Furness: My Lords, no, I cannot do that today. In fact that is not part of the Question.
Lord Mayhew: My Lords, in view of the Soviet withdrawals and its drastic cuts in military equipment, of which he informed the House last week; in view of the switch of loyalties in Eastern Europe; and in view of the Soviet economic bankruptcy and ethnic difficulties, does the noble Lord agree that the prospect of a secret invasion by the Soviet Union is not for consideration?
Lord Cavendish of Furness: My Lords, indeed, we feel that it is very much reduced.
Lord Stoddart of Swindon: My Lords, I am sorry to rise again but this is an important question. We have been given certain answers. What puzzles me even further is how the Minister can have given an answer to the question if he did not have the statistics to which it referred. Can he enlighten us?
Lord Cavendish of Furness: My Lords, the answer to that is that I had the statistics last week in answer to another Question and I recalled them from memory.

Polish Citizens: UK Visa Restrictions
2.53 p.m.
Lord Belhaven and Stenton Lord Belhaven and Stenton asked Her Majesty's Government:
Whether they will now end visa restrictions for Polish citizens wishing to visit Britain, in view of the fact that restrictions have been abolished or are about to be abolished by the governments of all European states except the United Kingdom, Albania, Turkey, Iceland and Greece.
Viscount Astor: My Lords, it would not be prudent to abolish visas while our embassy in Warsaw continues to receive very large numbers of applications from Polish nationals who do not meet the requirements prescribed in the immigration rules.
Lord Belhaven and Stenton: My Lords, I thank my noble friend for that Answer. Is he aware of the terrible damage that that policy is doing to British-Polish relations, of which those who have Polish friends and relations are only too painfully aware? We are the people who listen to all the arguments and are attacked about the policy. Surely my noble friend agrees that it is time to show some generosity to a nation which has endured so much in the common cause of freedom not only in the Second

463
World War but in the Solidarity years when it was the leader of freedom in Eastern Europe? Can he give any special reason why we continue to be almost the odd man out in Europe over this affair?
Viscount Astor: My Lords, no visa regime is maintained lightly. However, the Government are concerned that visa abolition at present would result in large numbers of Polish nationals being turned back at our ports and airports by the immigration service because they are ineligible under the rules. That would be far worse for them and for our relations with Poland. The Government welcome genuine visitors from Poland and large numbers of them come here every year. In 1990 57,000 were admitted—more than from any other East European country. Last year 22,000 visa applications from Poland - that is over a third of the total received—were either refused or withdrawn.
Lord Richard: My Lords, can the Minister tell us how many applications for visas were lodged by Polish citizens in 1990? Can he indicate the number of visas that were granted and the number refused? I am sure that the House would be grateful if he could give those figures without relying on his memory. Secondly, can he confirm that visa restrictions have been abolished or are about to be abolished by the governments of all European states except, I believe, Albania, Turkey, Iceland, Greece and the United Kingdom? Does he agree that that is rather strange company to find ourselves in?
Viscount Astor: My Lords, I gave the numbers to noble Lords in answer to the last question. In 1990 57,000 were admitted to this country from Poland and visas were either refused or withdrawn for 22,000 of them. Because of our relationship with Poland large numbers of Polish citizens want to come to this country. For example, in 1989 our embassies in Prague and Budapest refused only 20 visa applications. That illustrates the difference in numbers of people who wish to come here from other countries compared with Poland.
Baroness Ryder of Warsaw: My Lords, is the Minister aware that I can personally endorse what the noble Lord, Lord Belhaven and Stenton, said? I have just returned from working in Poland. I saw queues of Poles standing and waiting for hours on end, through the night and during the day, outside the Consulate in Warsaw. I know that they often borrow money to reach the capital from outlying districts and have no means of paying for food or overnight accommodation. Does he agree that our policy brings discredit and disgrace to this country? Furthermore, does he know that applicants have to pay a fee of £20, whether or not a visa is granted, which is a great deal of money for the average Pole? Moreover, professionals and academics who have been invited to international conferences are often quizzed. I feel very strongly about this matter. What can the noble Lord reply?
Viscount Astor: My Lords, the Foreign and Commonwealth Office has made strenuous efforts to
464
avoid the queues which arose last year. Procedural, staffing and office layout changes have recently been made to that end and a same day service is now being provided for most visa applicants. Noble Lords will realise that it would be much more expensive for Poles who want to come to this country to be turned away at the airport and have to go all the way back. I should add that out of the 22,000 unsuccessful visa applicants in Warsaw last year, 20,000 withdrew before paying their fees, so they incurred no costs.
Lord Boyd-Carpenter: My Lords, does my noble friend agree that a good reason for retaining visas when other countries do not is that people want to come to this country and do not want to go to them?
Viscount Astor: My Lords, my noble friend made an interesting point. It is important that many European Community member states which have long land borders depend much more heavily on post-entry immigration control than we do—for example, identity cards.
Lord Bonham-Carter: My Lords, is the noble Viscount aware that, far from it being the case that fewer Poles want to enter Germany and France than wish to come to this country, the pressure on Germany is far greater than it is on us? Is he further aware that the trouble which the Consulate in Warsaw has to take in order to deal with this situation could easily be overcome if visas were abolished?
Viscount Astor: My Lords, I do not agree with the noble Lord. The Germans took the view that it would be extremely difficult for them to control their border with Poland by means of visas. That is a decision which they made.
Lord Renton: My Lords, can my noble friend say on what principles visas are granted or refused to people who come to this country from Poland? Of the 57,000 people to whom visas were granted last year, what proportion were economic migrants and what proportion wanted temporary visas for a short stay?
Viscount Astor: My Lords, I cannot give my noble friend detailed information of the number of people coming to this country. Obviously we welcome people who come for holidays and who attend official training and management schemes that we run. For example, this country has committed £50 million to the Know How Fund. That is for Poles to come to this country on technical and management training schemes.
Lord Richard: My Lords, the noble Baroness, Lady Ryder, gave the House a somewhat shaming picture of scenes at the British Consulate in Warsaw. On 17th May last year the noble Lord, Lord Brabazon, answering a similar Question, said:
"We are seeking larger, more suitable premises for the visa section". [Official Report, 17/5/90; col. 385.]
Are we still seeking them? Have we found them? What is happening?
Viscount Astor: My Lords, as I said to the noble Baroness, Lady Ryder, the Foreign and Commonwealth Office is making strenuous efforts to

465
avoid the queues. The queues have been improved. They would be much worse at airports or ports in this country if we did not have visas.
Baroness Park of Monmouth: My Lords, is the noble Viscount aware that there is a strong feeling in this country that it is strange that we cannot have as liberal a policy for the Poles on visas as we have for the Hungarians and Czechs? After all, Poland was the country for which we went to war. Many Poles fought for us and now live in this country. I hope that the noble Lord will persuade the Government to consider whether we should be bracketing the Poles, above all, with the Romanians, the Bulgarians and Soviet citizens.
Viscount Astor: My Lords, we have strong ties with Polar d. But we do not believe, for example, that the solution to Poland's economic problems lies in sending its workforce abroad.
Lord Morris: My Lords, is it not the case that the vast majority of Poles seek visas to enter the United Kingdom only as visitors? The economic position is totally irrelevant.
Viscount Astor: My Lords, I do not believe that my noble friend is entirely correct. Over a third of the applicants were refused visas because they were regarded as people who wished to come to work in this country.

Petition: Sunday Trading
3.2 p.m.
Viscount Brentford: My Lords, I beg to present a petition from members and friends of Unity Chapel Lockleaze, Bristol, which prays that this House will support the existing prohibition on Sunday trading because the practice of keeping one day of rest in each week is a God-given directive for the health and good of the: people and the universal obligation based on creation and practice by Jesus Christ, and if the law of the land allows Sunday trading these practices and principles would be eroded.
This petition against the extension of Sunday trading bears nearly 70 signatures.
Petition presented.

Business
Lord Hesketh: My Lords, at a convenient moment after 3.30 p.m. my noble friend the Leader of the House: will, with the leave of the House, repeat in the form of a Statement an answer to a Private Notice Question in another place on the Bank of Credit and Commerce International. My noble friend the Leader of the House will then, with the leave of the House, repeat a Statement on the Citizen's Charter.
Midland Metro Bill
Read a second time, and committed to a Select Committee.
Midland Metro (No. 2) Bill
Read a second time, and committed to a Select Committee.
Birmingham City Council Bill
Read a third time, and passed, and returned to the Commons with amendments.
Mental Health (Detention) (Scotland) Bill
Read a third time, and passed.

Child Support Bill [H.L.]
3.5.p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I have it in command from Her Majesty the Queen to acquaint the House that she, having been informed of the purport of the Child Support Bill, has consented to place her prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered—(The Lord Chancellor.)
Lord Simon of Glaisdale: My Lords, before your Lordships agree to the proposal, I suggest that there ought to be a moment of consideration. Indeed it seems highly questionable whether the Bill should be discussed today. It seems quite extraordinary—and I use that word in all its senses—that a Bill which only concluded its stages in the other place last Thursday is now presented with 21 pages of amendments for your Lordships to consider today and 12 new clauses—a substantial little Bill in itself. It was only this morning, that I was told by the Printed Paper Office that the Marshalled List of amendments was available. Those of us who live out of London and have to travel up especially did not see the list until midday. It is quite impossible to deal adequately with those amendments at such little notice.
It is an important Bill. It aroused general hostility in your Lordships' House from the two dozen or so Members who took a particular interest in it. No one except the two Ministers in charge of the Bill had anything good to say about it. It is a profoundly bureaucratic Bill. It starts by obtaining leave to recruit 4,700 civil servants, of whom 2,200 are new placements. For a Government who claim to be rolling back the frontiers of state, that seems odd. However, the problem does not stop there. There are wide invasions of traditional civil liberties in support of the Secretary of State in his powers under the Bill. There are over 100 regulation-making powers, of which only a dozen or so are subject to the affirmative

467
resolution procedure. It is difficult to think of any measure which is more profoundly bureaucratic. It deserves proper discussion.
The Bill proceeds at the outset by the ouster of the jurisdiction of the courts, as well as ousting the traditional function of Parliament to make the laws in favour of the Secretary of State doing so by regulation.
That is not the only matter in this Bill procedurally which gives cause for disturbance and concern. The second day of the Report stage continued until the early hours of the morning. It was very nearly two o'clock when we discussed the important constitutional matter of the parliamentary control of delegated legislation. The hour was so late and your Lordships were so pressed that the noble Lord, Lord Mishcon, who had been leading admirably for the Opposition, postponed his remarks on that issue until the debate on the Motion, That the Bill do now pass. Matters were so arranged that he had no opportunity to do so.
After that, I took the liberty of writing to the Chief Whip to ask that there should be a reasonable computation of the time that would be required on Third Reading. I was assured that the business before the Child Support Bill was purely perfunctory and that adequate time would be allotted. Your Lordships did not start consideration of the Bill on Third Reading until 4.20 p.m. By about 10.30 p.m. we had by no means reached the end of the many amendments on Third Reading, the majority of which were government amendments.
The noble Lord the then Chief Whip then scurried around the House begging Members not to move amendments, or to move them perfunctorily, and not to speak on the Motion, That the Bill do now pass. The reason he gave was that if the business went on beyond 11 p.m. the following day's business would be lost.
The noble Lord made a personal appeal to me. I felt that unless the Government's business managers were hoist with their own petard they would never show proper consideration to your Lordships, and what has happened today shows that my misgiving was accurate. With the noble Lord the Chief Whip about to retire, I did not have the heart to make a speech on Bill do now pass, which I had come to London to do, and I moved amendments perfunctorily.
That is the background to and the history of the Bill. It cannot be considered entirely in isolation, because it is part of the course of conduct of business which has amounted to a devaluation of your Lordships' role in the Constitution.
In this Session alone we have had the War Crimes Bill, where the Parliament Act was invoked to deny your Lordships a voice in the decision. All constitutional lawyers in your Lordships' House, not least of all my noble and learned friend Lord Hailsham, were unanimous that that was an improper use of the Parliament Act. That was also the view of the noble Lord, Lord Jenkins of Hillhead, who was the principal historian of the genesis of the Parliament Act; it was also the view of the noble Lord, Lord Houghton of Sowerby, who as a young man had taken
468
a personal interest in the passing of that measure. It did not stop with the War Crimes Bill. There was the Criminal Justice Bill, where your Lordships' views were again overridden, despite the fact that powerful voices had been raised in support of the provision which your Lordships inserted into the Bill. Even those who believed that your Lordships should give way on that matter so that the Bill's valuable provisions should not be endangered were convinced that the reasons given for refusing your Lordships' view did not stand up for a minute to investigation. That again was the view of my noble and learned friend Lord Hailsham.
More recently—only last week—we had the Finance Bill produced in your Lordships' House much later than was proper so that it had to be debated on Friday last. Nothing could be more inconvenient to those interested in the measure. I can only say that if such things happen, not only with this Bill but with all the other measures, your Lordships are in danger of seeing new brooms sweep your Lordships' House on to the dustheap of history. The Labour Party has produced a scheme for a reformed Second Chamber. It was subject of the most devastating criticism by the noble Lord, Lord Beloff, in a debate in April last year; but if the Government behave in this way, they are presenting the Labour Party with a case for House of Lords reform on a plate.
The proper course is to do what is normally done at this time of year; namely, when the Commons finishes its deliberations and submits a substantial list of amendments—as was done with the Children Bill and the Courts and Legal Services Bill—to postpone discussion until the autumn. If that is done, your Lordships have an opportunity to study, in a way that we do not have today, what is proposed.
There is another matter: by this procedure amendments are in effect precluded. It is true that manuscript amendments are permissible on consideration of Commons amendments, but the Companion to the Standing Orders discountenances their use. I am sure that business managers on both sides would deprecate that breach of the spirit of standing orders. There are a number of amendments to the Commons amendments which should be made. The noble Lord, Lord Mishcon, who jumped the gun and left us at the starting gate, has managed to put down some amendments, but those who saw the Commons amendments for the first time today, especially those who saw them only at midday, have had no chance to put down amendments.
I deprecate the procedure and ask your Lordships to join me in those deprecations.
3.15 p.m.
Lord Denham: My Lords, perhaps I may say a brief word. The noble and learned Lord has made what I believe amounts to a personal attack on me.
Noble Lords: No, no!
Lord Denham: He did not do me the courtesy of informing me that he was going to do so. Had he done so, I should have been able to reply to his accusations at a little greater length.
Lord Stoddart of Swindon: My Lords, I did not understand the excellent speech of the noble and learned Lord, Lord Simon of Glaisdale, as an attack upon the former Chief Whip. He was rightly pointing out to the House that much legislation is ill-considered and, because it is ill-considered, is not as good as it should be by the end of the debate. That has consequences when the legislation is put into operation. He is right. His remarks were entirely proper. I hope that the House will take note of them. For too long not only under the present Government but also under previous governments we have felt that the quantity of legislation is more important than its quality. I have reached the conclusion over that period that we now want properly considered quality legislation which does not have to be altered practically every Session.
The appeal by the noble and learned Lord, Lord Simon, is reasonable and relevant. It should be taken into account by the Government and certainly by this House.
In relation to the Child Support Bill, like the noble and learned Lord, I received a copy of the amendments today; and I also received from the noble Lord, Lord Henley—and I thank him for this—Notes on Commons Amendments. Unfortunately, I have not yet had time to read them let alone assimilate them. Therefore, there is certainly a case for delaying this 13ill, as the noble and learned Lord requested, until the autumn spillover.
There is no reason why that should not be done. As I understand it, this Bill does not have to be put into operation immediately. Indeed, I understand that it will not come into operation until 1993. Therefore, would it not be better that we should properly consider the Bill and the Commons amendments when we hive plenty of time in the spillover period? We should not try to cram the discussions today into about two or three hours.
That is all I wish to say except to reiterate my firm support for the excellent case which the noble and learned Lord, Lord Simon, has put to your Lordships about legislation being considered properly by this House, and indeed by another place.
Lord Renton: My Lords, it is with great reluctance that I rise to comment on the handling of government business when I have such a great respect for the way in which my noble friend Lord Denham exercised his responsibility with regard to it, and when we have a new Chief Whip for whom I have also a very great regard.
I refrain from commenting on the merits of the Bill, and the history of how, when the Bill was previously before your Lordships, it was handled. However, I must say that I had no sight of these amendments until I arrived at your Lordships' House at 2.15 this afternoon. I then found, as the noble and learned Lord, Lord Simon of Glaisdale, pointed out, that there are 21 pages and 135 Commons amendments. Many of them are very long and complicated. Speaking for myself, I require a day or two to fathom their significance, and how they affect the text of the Bill as it was when it left your Lordships' House.
470
was very grateful to my noble friend Lord Henley for giving us Notes on Commons Amendments. I am relieved to know that he has distributed them to noble Lords on other sides of the House as well as noble Lords on this side. I believe that that is a most commendable way of helping your Lordships to get through difficult and complicated Bills. However, we should not now be asked to deal with this Bill virtually without an opportunity of considering adequately, or at all in my case, this mass of amendments. As has been said by the noble and learned Lord and by the noble Lord, Lord Stoddart of Swindon, nothing would be lost by considering the amendments in the spillover Session in October.
For those reasons, I earnestly hope that my noble and learned friend on the Woolsack, who has displayed great patience and his usual learning and ability in piloting this difficult Bill, my noble friend the Leader of the House, and others on the Front Bench responsible for taking decisions with regard to our business, will heed what has been said. It is in order to maintain the reputation of your Lordships as Members of a revising Chamber that we should not be rushed into considering this matter this afternoon. I hope that further and wiser counsel will prevail so that we have a chance of considering the Bill later—preferably in October.
Baroness Elles: My Lords, I support my noble friend Lord Renton. I do not wish to enter any argument concerning the activities of our former Chief Whip for whom we all have the greatest respect.
However, I should like to speak to the specific Bill before this House. This Bill was very contentious and there was little support for it when it first came to this House. Noble Lords on all sides have tried to do their best to amend the Bill, not because they disagreed with its principle but because of the way in which it will affect individuals throughout the country. Your Lordships' House has a specific duty to protect the individuals who will be affected directly by the implementation and application of the Bill when it becomes law.
Therefore, we have a duty to consider these Commons amendments with seriousness and a minimum degree of time, which has not been given to your Lordships today. Therefore, I join in the earnest request of my noble friend Lord Renton that the Commons amendments should be considered in the spillover period in October.
Earl Russell: My Lords, if I say that the noble and learned Lord, Lord Simon of Glaisdale, has raised a valid point, I do not wish for a moment to be construed as making any criticism whatever of the Government Front Bench. They have done what they can to facilitate the conduct of business and my noble kinsman's action in circulating Notes on Commons amendments is a truly notable courtesy for which I am deeply grateful.
Nevertheless, I cannot but agree with the noble Lord, Lord Renton, that it is difficult to master such a mass of amendments in such a short time. It is not the first time that this has happened. Noble Lords may remember the National Health Service and

471
Community Care Bill when Commons Hansard was not available and we did not know why our amendments had seemed to be unsuitable to another place. That is a general and not a particular problem.
Perhaps I may suggest—and I hope that the Government Front Bench will find my suggestion agreeable—that the best way to deal with the matter is to refer the general question regarding the time available for consideration of Commons amendments to the Procedure Committee.
Baroness Faithfull: My Lords, I support my noble friend Lord Renton. On Friday I telephoned the Printed Paper Office and asked for a list of amendments to be sent to me. The most extraordinary thing happened—it was lost in the post! It did not arrive either on Saturday or Monday morning.
Also, we should pay tribute to the voluntary organisations such as the citizens advice bureaux and the Child Poverty Action Group which have worked extremely hard to inform your Lordships of the various points of view held by their staff and the people that they represent. It has been quite impossible either to read the amendments or, as the noble Lord, Lord Renton, said, the helpful notes given to us by my noble friend Lord Henley. It will be impossible to speak intelligently. In fairness to the voluntary organisations and the statutory bodies which have sought to help us, we should defer decisions on this Bill until a later date.
The Lord Chancellor: My Lords, the Question before your Lordships is that the Commons amendments to this Bill should now be considered.
I have had the advantage of hearing a great number of views about this Bill as we considered it. As your Lordships will know, the Bill was initiated in this House as we considered it very carefully and in considerable detail. Resulting from that consideration, which I believe to have been careful and thorough, my noble friend Lord Henley and I gave a number of detailed commitments that are met by many of the amendments which we now have before us.
Other amendments deal with matters of detail, and of course the Commons, as the Second House, has had an opportunity of considering what your Lordships did in relation to sanctions in respect of failure to co-operate. On that matter the noble Lord, Lord Mishcon, and the noble Earl, Lord Russell, tabled amendments to the amendment approved by the Commons. We shall come to that later.
The main proposal is that we should defer the matter until after the Recess and take it up again in the spill-over period. As my noble and learned friend Lord Simon of Glaisdale said, the Bill contains a number of provisions for regulations, and the Government have made it plain that the regulations are to be the subject of extensive consultation.
We spoke of 1993 as being the time when we hope that the Bill as an Act will become fully operative. One knows from experience that where a provision of this kind exists, in order satisfactorily to implement it considerable time must be allowed for proper
472
consultation on the regulations and we must also prepare a great deal of instruction and guidance to the staff. Your Lordships have clearly drawn attention to the need for sensitivity in the area with which the Bill deals. The need for staff training is therefore extremely important. In addition, we must issue guidance more generally.
Those noble Lords concerned with the implementation of the Children Act know that that was enacted in 1989. We are hoping that it will come into force on 14th October of this year. But a large amount of work needs to be carried out even in relation to a measure of that sort. Those who are charged with implementing the Bill are clear that it is right that if possible the Bill should be available in the form in which Parliament passes it in order that that work can proceed. In addition to giving guidance to the staff and those immediately concerned, it is necessary also that the public generally should be informed about the Bill. Accordingly, it is highly desirable that it should be enacted before the Recess.
My noble friend Lord Henley and I were aware that the Bill had passed the Commons on Thursday. We therefore wanted to help your Lordships as much as possible to deal with it and for that reason we prepared—many of your Lordships have a copy—the booklet which deals in considerable detail with the amendments. That was done in order to assist your Lordships. My understanding is that the amendments were available on Friday as a result of the efforts of the Chief Whip. The comment of my noble friend Lady Faithfull suggests that they were available on Friday, although sadly in her case the ministrations of the Post Office do not appear to have been equal to the importance of the communication. The Marshalled List was available this morning in accordance with the ordinary system.
I do not know whether I am included in one of the new brooms to which my noble and learned friend Lord Simon of Glaisdale referred. I hope perhaps that the newness is wearing off a little by this time. However, I assure your Lordships that the Government respect the work of this House and the way in which it performs its duties, indicating such in this case by having invited it to initiate the parliamentary consideration of the Bill and giving it a prime place in regard to this Bill. A corollary of that is that one must have regard to what the House of Commons has done and at the same time seek to preserve, before the Bill is due to come into operation, as much time as possible to secure all the work—which is considerable—that is required for the Bill ultimately to be implemented.
In the light of that explanation I hope that your Lordships will agree with the Motion I proposed, that the Commons amendments be now considered.
3.30 p.m.
Lord Renton: My Lords, before my noble and learned friend sits down perhaps he would be so kind as to allow me to intervene. When one glances at this no doubt helpful bunch of explanations of Commons amendments, with the useful groupings that they contain, one realises that one will have to think much

473
faster than I am capable of doing in order to follow the explanations given as each group of amendments comes up. Even a few hours of opportunity to absorb the implications would have been an enormous help.
Is there no hope of the business being so arranged that we could consider the matter, if it is vital that it comes into operation in early October, later this week? I can see no reason why it should come into force early in October. The commencement clause, Clause 48, does not indicate any urgency in the matter. Many things in public life are a choice of evils. But if there are two evils here, the choice is between the supposed evil of a slight postponement of the coming into force of the Bill or what I consider to be the greater evil of rushing the Bill through this afternoon.
Perhaps my noble and learned friend would be kind enough to consider those two alternatives and we may then persuade him to take a different view.
The Lord Chancellor: My Lords, as I explained, the intention is that the statutory provisions should come into full effect in 1993. The point that I am seeking to make is that in order adequately to prepare the work that is required for that, those in charge of the preparation require to know the form of the statutory provisions.
I indicated also that a fair amount of the subject matter of these amendments is either fairly technical in character or, more importantly, the result of undertakings given to your Lordships as the Bill went through being implemented. The business has been proposed on the basis that the Bill should be taken for consideration of its Commons amendments today. Provision has been made for other business for the remainder of this week and we must consider the convenience of those who have at least had some warning of the matter.
Lord Stoddart of Swindon: My Lords, perhaps the noble and learned Lord would allow me to intervene. We all appreciate exactly what is being said. We are grateful to him for confirming that the Bill will not come into operation until 1993. However, we appreciate also—I certainly do—that there are administrative matters to be dealt with. As far as I can see, the number of orders which have to be agreed in the amendments are relatively few. But within the part of the Bill which is agreed and to which there are no amendments tabled, many other matters need to be discussed and need administrative preparation. Would it not be possible for those matters to be dealt with because they are already agreed, and for us to have a better opportunity, perhaps in the autumn or even later this week, to discuss the Bill as it should be discussed? I feel quite sure that the noble and learned Lord and the Government would not wish administrative convenience to be given precedence over proper consideration and discussion by this House.
The Lord Chancellor: My Lords, I am wrong if I gave the impression that it is administrative convenience. It is the necessity of making proper provision for the Bill to take effect which is in issue here. As the noble Lord says, a good deal of the Bill is already agreed. But as far as I am concerned, it is
474
right that before any of the work involved with the implementation of the Bill is done—that work is quite considerable and important—those charged with the responsibility should know that the Bill has received Royal Assent.
The Lord Privy Seal (Lord Waddington): My Lords, perhaps I can help. I wish to be quite frank with the House. I believe that it would be very difficult to postpone this business until after the Recess. The business of the House is very crowded from now on. However, situations like this arise from time to time. It is obviously right that these developments should be discussed. I am wondering whether it would be for the convenience of the House if we were to delay this matter for a little while for discussions to take place between the usual channels. I remind the House that there are two Statements to be taken so there is bound to be some delay before we can proceed very far with this Bill. I wonder whether it will be convenient for the House to postpone consideration of this business for a little while so that we can then at least discuss how we might best proceed.
Lord Boyd-Carpenter: My Lords, that is a most helpful suggestion from my noble friend the Leader of the House. I wonder whether he can take it a little further. In considering what should be done—accepting, if he does, the views of the noble and learned Lord the Lord Chancellor that it is essential to pass this Bill before the House rises—will he bear in mind that, as I understand it, the House is not scheduled to sit on Friday of this week? Therefore, it should be possible to shift to Friday some of the other business to be dealt with this week and to insert this Bill in the vacancy so created. I do not ask my noble friend to commit himself to that, but will he consider it rather than force the House to what may be a difficult decision and perhaps even unpleasant for the Government?
Lord Waddington: My Lords, I cannot greet that suggestion with much enthusiasm. In order to obtain Royal Assent before the Recess the Bill will have to be taken by this House not later than Wednesday because of the nature of the business in the other place. It could not be taken on Friday.
Lord Boyd-Carpenter: My Lords, I am sorry. My noble friend has misunderstood me and I am sure that that is my fault. I was not suggesting that the Bill should be taken on Friday. It would be very inconvenient to do so. I was suggesting that he creates a vacancy, perhaps on Wednesday, by shifting the business scheduled for that day to Friday, which is vacant at present.
Lord Waddington: My Lords, perhaps it would be convenient if I move formally that consideration of the Commons amendments on the Bill be postponed until after the two Statements have been taken. I beg to move.
Moved accordingly, and, on Question, Motion agreed to.

BCCI: Inquiry
3.44 p.m.
Lord Waddington: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister, about BCCI. The Statement is as follows:
"My right honourable friend the Chancellor of the Exchequer made a Statement to the House on Friday and indicated that the Government will commission an independent inquiry into precisely these matters. I am now able to tell the House that the inquiry will be undertaken by Lord Justice Bingham and that the terms of reference will be as follows: to inquire into the supervision of BCCI under the Banking Acts; to consider whether the action taken by all the UK authorities was appropriate and timely; and to make recommendations.
"All the matters that the right honourable gentleman has raised today will be covered in Lord Justice Bingham's inquiry. Lord Justice Bingham will have access to all relevant papers and officials and Ministers. I can assure the House that any relevant matter of any sort will be made available to Lord Justice Bingham. The conclusions of the inquiry will be made public".
My Lords, that concludes the Statement.
3.45 p.m.
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Lord the Leader of the House for repeating the Statement made in response to a Private Notice Question from my right honourable friend Mr. Kinnock in another place. It will come as no surprise to your Lordships that I also had put down a Private Notice Question on this matter. I did so because I and my right honourable friend believed that, given the press allegations made over the weekend, the whole matter had gone beyond banking regulations and that it had now become, because of the security implications, a matter for Ministers. There is no question now of casting the Governor of the Bank of England as a fall guy. Ministers must have known what was happening otherwise there was a serious dereliction of duty.
I welcome the inquiry which the Government have set up and I also welcome the appointment of Lord Justice Bingham. I very much hope that, when he comes to take up office in this inquiry, Lord Justice Bingham will not dismiss lightly but investigate thoroughly the allegations made in the weekend press. He will no doubt be asking, as we ask, whether it is the case that more than a year ago security and intelligence services gave the Government—not the Bank of England—evidence, some provided by senior BCCI officials, of a serious criminal conspiracy, including the funding of terrorist groups, and that that led to the investigation known as Project Q. Lord Justice Bingham will no doubt be asking himself whether that allegation is true or false.
He will also no doubt be considering whether the evidence that was submitted at the time was
476
considered by the Joint Intelligence Committee of the Cabinet; whether papers were prepared for Ministers and whether they read those papers. Lord Justice Bingham will no doubt be asking himself whether that is true or false. Furthermore, he will be asking himself whether an interim BCCI-Price Waterhouse report of January 1991 showed that more than 40 BCCI accounts had almost certainly been used by Islamic jihad, part of the Hizbollah group, which is responsible for kidnapping British and other hostages in the Lebanon. I have no doubt that he will also be asking himself whether those allegations are true or false.
Since the noble Lord the Lord Privy Seal has promised ministerial co-operation in this matter, Lord Justice Bingham will no doubt also be asking himself whether it is true or false that it was an Under-Secretary at the Ministry of Defence who revealed the names of account holders to the Bank of England at an early stage. No doubt Lord Justice Bingham will be investigating whether the whole matter was considered by the Board of Banking Supervision which was set up, as your Lordships will be aware, under Section 2 of the Banking Act 1987, and whose independent members have the right to have their advice to the Bank of England placed before the Chancellor of the Exchequer. Did the Board of Banking supervision consider the matter? What was its advice; was that advice placed before the Chancellor? If it is the case, as I understand it, that the board's advice to the Bank of England was rather different from what we have heard, was it reported to the Chancellor?
We are assured by the noble Lord the Lord Privy Seal, and by other Ministers, that there will be no ministerial cover up. I hope that that is the case. We have to accept it from the noble Lord the Lord Privy Seal that there will be no ministerial cover up. However, it is difficult to believe that the Prime Minister and Chancellor of the day knew nothing whatever about this matter.
I am glad to hear from the noble Lord the Lord Privy Seal that the relevant papers can be sought by Lord Justice Bingham. Will the Minister confirm that Lord Justice Bingham can seek evidence on oath and that this will be a proper judicial inquiry, which will include the Ministers to whom the noble Lord the Lord Privy Seal referred? This is a sorry and shabby affair. We hope very much that Lord Justice Bingham will be able to clear the matter up once and for all. We on these Benches will not rest until the truth is out, because there is a serious scandal which goes right to the heart of government.
Lord Harris of Greenwich: My Lords, I should like to join the noble Lord, Lord Williams of Elvel, in thanking the Leader of the House for having repeated the Statement. I should like to ask one or two questions, and 1 apologise if I am going over ground already covered by the Leader of the House—my note taking is not as efficient as it should be. I welcome the fact, as we all do, that there is to be co-operation from Ministers; indeed it would be astonishing were there not to be such co-operation.

477
First, may I ask specifically whether it is to be made quite clear to Lord Justice Bingham that he can invite any Minister of the Crown to give evidence and that any Minister of the Crown will agree so to do? Secondly, the noble Lord has said that the report of Lord Justice Bingham will be made publicly available. Is it being made clear to Lord Justice Bingham that he cant take evidence in public? That is an extremely important point. I should be very grateful if the Leader of the House would assist us by answering that question. Thirdly, what many of us find inexplicable about this whole sorry chapter of events is the fact that no one appeared to take any action, notwithstanding the fact that there was abundant evidence of wrongdoing by BCCI. I remind the noble Lord of the point which I made in our short debate on Friday afternoon; that is the evidence of the District Attorney for Manhattan, Mr. Robert Morgenthau. Mr. Morgenthau told the Consumer and Regulatory Affairs Sub-Committee of the United States Senate which was looking specifically into this issue that:
"In the summer of 1989, over the 4th July weekend, several members of my staff attended an international conference on money laundering in Cambridge, England. They learnt that BCCI had an international reputation for capital flight, tax fraud and money laundering that far exceeded the conduct charged in the Florida indictment".—[Official Report, 19/7/91; col.444. ]
I am sure this will be one of the many issues that Lord Justice Bingham will want to review. Many of us remain deeply puzzled that despite this evidence and a great deal of other evidence, no one bothered to take any action at all until the events of a few days ago.
Lord Waddington: My Lords, I do not think that the noble Lord, Lord Williams of Elvel, would expect me to reply to him in too gentle a manner, although he will expect me to reply to him frankly.
I ought to remind the House of a little bit of history. The Leader of the Opposition wrote to my right honourable friend the Prime Minister on Thursday urging the advantages of setting up an inquiry without delay. Such an inquiry was announced on Friday. After such an inquiry had been announced, the right honourable gentleman the Leader of the Opposition promptly denounced it as a cover up. He then called for a Statement in this House, which could have only one of two purposes: either to secure discussion of whether the security service was involved in these matters and, if so, the extent of the involvement, or to prejudice the findings of the independent inquiry. The right honourable gentleman must have known that security operations are never discussed on the Floor of the H ruse. One therefore wonders why he thought it proper to table a Private Notice Question in the other place today which of course has led to the making of a Statement in the other place and a Statement by me.
I do not have a vivid imagination, neither am I given to conspiracy theories, but some of us may—
Lord Williams of Elvel: My Lords, I—
Lord Waddington: No, my Lords; I am entitled to reply. As the noble Lord asked me no questions at all, it is very appropriate for me to put it in this way. One is entitled to wonder why it was that a Private Notice Question was tabled in the other place. I am not given
478
to conspiracy theories, but there is a little whisper about a thing called the Citizen's Charter, with a press conference to follow.
However, coming now to the remarks made by the noble Lord, Lord Williams of Elvel, the burden of his remarks were not questions to me, they were a recital of the kind of matters which he believed Lord Justice Bingham would be asking. 1 have no complaints about the noble Lord rehearsing in this House what he believes the questions will be; but it hardly seems to me to be possible to read such speculation as a list of questions to me. If they were questions to me, the noble Lord must surely know that I am quite unable to reply to them. If I were to reply to matters which are within the remit of the inquiry, I would be told that I was prejudging the inquiry. If I were to reply to matters concerning intelligence, then I would be breaching the convention which has been observed in this House and in another place for years that matters of security are never discussed here or in another place. For obvious reasons we do not even discuss whether there may be a security implication.
I turn now to the matters raised by the noble Lord, Lord Harris of Greenwich, who thanked me for making the Statement. He is right: Lord Justice Bingham will be able to call Ministers. The inquiry will be full and independent. It will be a non-statutory inquiry, as was Lord Justice Woolf's inquiry into Strangeways, and Lord Justice Taylor's inquiry into the Hillsborough disaster. There is no need to invoke all the time-consuming apparatus of the Tribunals of Inquiry (Evidence) Act 1921, which was last used as long ago as 1978.
The noble Lord asked whether the proceedings would be held in public. We have to be very careful not to prejudice the criminal inquiries. I understand that it is the intention of Lord Justice Bingham not to hold the proceedings in public in the interests of expedition of ensuring maximum disclosure of material which is confidential and commercially sensitive. However, that does not mean that the results of the inquiry will not be published. As far as possible and without prejudicing possible criminal proceedings arising out of the inquiry of the Serious Fraud Office, and under the confidentiality provisions of the Banking Act, Lord Justice Bingham's recommendations will be made public. We all sincerely hope that he will be able to get down to work very quickly, and that he will be able to reach his conclusions as soon as possible.
I give way to the noble Lord.
Lord Williams of Elvel: My Lords, I am most grateful to the noble Lord. Perhaps I may remind him of the report of the Procedure Committee. It states:
"A Lord who is speaking may be interrupted with a brief question for clarification. Giving way accords with the traditions and customary courtesy of the House".
My question for clarification was: is it in order for the noble Lord the Leader of the House to criticise personally a Member of another place?
Lord Shepherd: My Lords, is it not a fact—perhaps the Leader of the House can help us—that in another place a Private Notice Question can be asked only with the consent of the Speaker of the House? In that case the criticisms that the Leader of the House has

479
made in terms of my right honourable friend can be a reflection upon a decision taken by Mr. Speaker in another place. I should have thought that that is something that we should always seek to avoid.
Lord Waddington: My Lords, I did not wish to cast any such reflection. There is a convention that when a Private Notice Question is asked for by the Leader of the Opposition the Speaker grants the request. Of course it is customary for someone to give way, but I am not sure that it is customary to give way half way through an argument. That is why I gave way at the end.
Lord Cockfield: My Lords, I wish to raise a question strictly related to the terms of reference of the inquiry. In the original Statement there was a reference to considering whether the existing law of the United Kingdom on prudential regulation was satisfactory or whether there should be any amendment or strengthening of that law. As I understand it, that does not appear in the terms of reference given to Lord Justice Bingham.
The point is important because, as I indicated when we were dealing with this matter a few days ago, I do not believe myself that the present United Kingdom law gives effect to the Community directive known as the second Banking Co-ordination Directive. That is not a criticism of the Government because, as I made clear at the time, that directive does not come into force until 31st December of next year. Nevertheless, it is clearly a matter of great public importance whether our law is good enough or whether it needs strengthening.
The point is of added importance because of the involvement of Luxembourg in these matters, a country which is also covered by the terms of the banking directive. We have to face the very difficult question of there being two supervisory bodies with different functions. I raise the point simply to clarify whether this will be considered by the tribunal or whether it will be considered elsewhere outside the tribunal's inquiry.
Lord Waddington: My Lords, I am sure that the matters raised by my noble friend will come within the remit of the inquiry. One can hardly inquire into the supervision of BCCI under the Banking Acts without considering whether there were ample opportunities for supervision and whether the right mechanism was available to allow that supervision to take place. The terms of reference allow the inquiry to make recommendations. I read that to mean any recommendations which the inquiry thinks are relevant in the light of the history which will be revealed to it.
Lord Bruce of Donington: My Lords, is the noble Lord aware that the Treasury received an invitation to attend the Conference on International Crime, to which reference was made by the noble Lord, Lord Harris, which was held last year, but declined to attend? Will that matter come within the scope of the inquiry? Will the noble Lord please bear in mind that there does not seem to be any convincing reason, aside
480
from possible security implications affecting MI5 and the various other secret services, why this inquiry should not be held in public? There is a widespread demand in the country which has already been voiced on all sides of the House that it should be held in public. Is there any convincing reason why it should not be?
Lord Waddington: My Lords, with respect to the noble Lord, there are the strongest reasons why the inquiry should not be held in public. Obviously there would be a risk of serious prejudice to criminal investigations. On the other matter, I am convinced myself that it is up to Lord Justice Bingham to ask himself what is relevant. The matters to which the noble Lord has referred are clearly matters which he will be entitled to consider.
Lord Havers: My Lords, when the noble and learned Lord, Lord Salmon, wrote his report about the Tribunals of Inquiry (Evidence) Act he made the point that to hold such inquiries in public might make it impossible to prosecute people. Indeed, when I was Attorney-General there were a number of occasions on which I was asked to grant immunity in order that a witness should be able to give evidence to such an inquiry. That is the answer to the question.
Lord Waddington: My Lords, I am obliged to my noble and learned friend. He is entirely right.
Lord Campbell of Alloway: My Lords, perhaps I may ask for clarification. Is that not the reason why the evidence will not be given on oath, or will the evidence be given on oath? Is there not a relationship between the last question and the question I am putting? I have a second point on which I seek clarification. As I understand it—I seek assistance—the inquiry will be wide enough to cover all aspects of ministerial responsibility but will, one hopes, exclude any public consideration of security and intelligence matters.
Lord Waddington: My Lords, my noble friend is right on the second point. I am rather diffident about expressing an opinion on those other legal matters, surrounded as I am by such legal eminence. My understanding is that it will be up to Lord Justice Bingham to decide whether he wishes evidence to be taken on oath. I do not believe that there is anything to prevent him, but I shall make inquiries about that. If I am wrong, I shall certainly write to my noble friend.
Lord Campbell of Alloway: My Lords, with respect to my noble friend, I do not believe that there is power for Lord Justice Bingham to administer the oath unless the power is conferred upon him.
Lord Waddington: My Lords, my noble friend may well be right. That is why I was cautious and diffident in giving my reply. I was worried about it myself. What I am undoubtedly right about is that very wide-ranging and thorough inquiries can be set up, as we know from the Woolf Inquiry and other inquiries that have taken place recently, without using the Tribunals of Inquiry (Evidence) Act.
Lord Morris: My Lords, is my noble friend aware that many would welcome most strongly the insistence by Lord Justice Bingham that this inquiry should be held in private and not in public? That is absolutely essential. It would be impossible for the person leading the inquiry to ask certain questions in public which he might otherwise be able to ask in private. It would certainly prejudice the witnesses. It is absolutely essential that it is in private. I know that many people will agree with his view.
Lord Waddington: My Lords, my noble friend has a very important point. By hearing evidence in private, one will undoubtedly ensure maximum disclosure of confidential and commercially sensitive material.
Baroness Blackstone: My Lords, can the Leader of the House answer the question of my noble friend Lord Williams of Elvel about the procedure of this House with respect to personal criticism made in this House about a Member of another place? Turning to the independent inquiry, can he say whether there will be an interim report? As it is likely to be a long inqury, it might be helpful if there were an interim report, particularly with respect to Ministers' roles, given what we are now reading in the newspapers.
Lord Waddington: My Lords, on the first point, I cannot add anything to what I said earlier. On the second point, it will be up to Lord Justice Bingham to decide whether it might be worth while to have an interim report. I have no reason to believe that he will think it appropriate, but neither do I see anything in the terms of reference or the background to the matter which would prevent him from doing so.
Lord Williams of Elvel: My Lords, with the greatest respect, the noble Lord the Leader of the House did not gay anything on my first point.
Lord Waddington: My Lords, what was the noble Lord's first point?
Lord Williams of Elvel: My Lords, I asked whether it is proper for a Member of this House to criticise personally a Member of another place. I should be most grateful if the noble Lord could add a little bit to what he did not say in the first place.
Lord Waddington: My Lords, if I have erred, I apologise. Being somewhat a novice in such matters, I shall have to swot up on the subject to make sure. However, if I did transgress, obviously I am sorry.
Lord Simon of Glaisdale: My Lords, arising from the question asked by the noble Baroness, and by the noble Lord, Lord Williams, is not the position that it is out of order—or, in the words of the Companion to the Standing Orders, "to be discouraged"—for any Member of the House to refer to a private Member of another place in any critical way; but that it is always open to criticise, while preserving courtesy, not only the Government Front Bench but also the Opposition Front Bench when Members are speaking officially?
Lord Waddington: My Lords, I am grateful to the noble and learned Lord for what I think may be a lifeline. However, I am not quite sure.
Lord Wyatt of Weeford: My Lords, is the Leader of the House aware that I have frequently been attacked in the other place, and somewhat opprobriously from time to time? I have never complained. I presumed that Members of the other place were allowed to do so.
Lord Waddington: My Lords, I hope that we have all got broad backs and that we do not become over-sensitive about such matters.
Lord Ezra: My Lords, returning to the subject of the inquiry, does the Leader of the House agree that two issues are involved? We are concerned not only with the question of BCCI, but also with the question of the whole regulatory system for banking in this country. Is it not a fact that, as a result of what has happened, local authorities (which, on the basis of information received from the Bank of England, have invested in the banks listed by the Bank of England) are now very concerned about investing in smaller banking institutions? There is a serious doubt as to which banks can be trusted. That is not putting the matter too seriously. Will this inquiry restore our old faith in the banking system of Britain?
Lord Waddington: My Lords, we shall have to wait for the result of the inquiry. However, we could not have set up a more high-powered inquiry under a wiser person than Lord Justice Bingham.

The Citizen's Charter
4.12 p.m.
Lord Waddington: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister on the Citizen's Charter. The Statement is as follows:
"With permission, Mr. Speaker, I wish to make a Statement on the Citizen's Charter White Paper.
This Government have consistently extended competition to raise standards and to give the citizen wider choice. We have introduced privatisation and competitive tendering; reforms to give new choice in health and education; and measures to give new opportunities in housing. These have worked to the benefit of the consumer.
"The White Paper I am introducing today will build on these measures. Action will be expected from all public services on a number of fronts. First, standards. We will expect public bodies to publish explicit standards of performance and the results they actually achieve. Targets will be set for improvement year by year.
"Secondly, accountability. Full, accurate information must be made readily available, in plain understandable language, about services provided. We will make it simpler to compare the performance of one body against another. This will put pressure on each one to emulate the best and provide consumers with a basis for making choice. Except where their safety is threatened, public servants should no longer be anonymous. We will expect them to identify themselves to the public,

483
with the giving of names on the telephone or in letters and, where appropriate, by the wearing of name badges.
"Thirdly, redress. Where problems occur, people are entitled to have an explanation, and to know what to do. Avenues for complaint should be well-publicised and simple. And when that does not suffice, there should be clear routes to compensation or redress.
"This Citizen's Charter initiative will cover all our public services, as well as those large utilities, which are now in the private sector. It is the widest ranging and most comprehensive ever undertaken by government. It will involve: more privatisation; wider competition; further contracting-out; pay more related to performance; published performance targets—local and national; comprehensive information on standards achieved; more effective complaints procedures; tougher and more independent inspectorates and auditing; and better redress for the citizen when things go badly wrong. The citizen is also a taxpayer; public services must give value for money within the tax bill the nation can afford. Today's White Paper is only the beginning of the charter process. Nevertheless, it contains well over 70 specific measures to raise standards.
"I would now like to set out for the House some of the main measures in our White Paper. First, on education. I commend to the House two old-fashioned concepts that are the benchmarks of success—reports and results. From the new school year parents will be guaranteed a school report on their child's progress. Parents have a right to be able to discuss this progress with their children's teachers, and we will ensure they know how to exercise this right. We will also require schools to publish in standard format results achieved. And we will ensure that tables comparing schools on a number of measures are published locally, and not just on exam results.
"There will also be significant reform of schools inspection. My right honourable friend the Member for Rushcliffe will be publishing detailed proposals later this summer. But I can tell the House today that there will be regular inspection of all schools, carried out with the help of independent people from outside, as well as inside, the education profession. Results of inspections will be distributed to parents. Tougher, more rigorous inspection will be the result.
"I turn, secondly, to housing. This Government have given new rights to millions of householders. But we are determined that those who remain in public sector housing secure a better deal. For housing associations there will be a stronger tenants guarantee. For council tenants, we will update and improve the tenants' charter that we first published 10 years ago. We will examine ways to simplify and to strengthen the procedures giving tenants a right to have small but urgent repairs done quickly. We are ensuring that they receive proper information on the standards of service they can expect. And for the first time we will consider
484
bids directly from tenants in the worst run estates who want to form housing action trusts. No longer will the improvement of their estates be frustrated by the opposition of the local council.
"We are particularly concerned at the low standard of management of housing. We will therefore bring forward proposals to extend compulsory competitive tendering into public sector housing management. The Citizen's Charter will end, once and for all, the patronising of tenants by incompetent town halls.
"Thirdly, on health. We have already introduced new contracts in the health service to raise the standards demanded of hospitals. Under the Citizen's Charter we will expect publication of clear standards for patient care right across the health service. And we will begin by taking two further specific steps for the benefit of NHS patients.
"For out-patients we will require new procedures on the handling of appointments. This will mean that the practice of calling many patients to an appointment at the same time, which has been widely deplored, will be brought to an end. For in-patients there have been substantial improvements in the quality and quantity of care provided. Nevertheless, a minority of people still have to wait too long for treatment.
"We therefore propose that from next April guaranteed maximum waiting times for in-patient or day care treatment should be published. The initial focus will be on those treatments where waiting lists are longest, and where the pain, discomfort, and general reduction in quality of life most significant. I have in mind hip replacements, hernia repairs, and cataract removals. Guaranteed maximum waiting times are being negotiated now but could range from only a few months to more than a year. If it appears that the treatment cannot be provided in the guaranteed time, the health authority or board will seek provision elsewhere including, if appropriate, from the private sector.
"Fourthly, I turn to transport. For road users, we will tackle the nuisance caused by road repairs. We will use new powers to make utilities digging up local roads co-ordinate their activity and complete work more swiftly. And, for large-scale road repairs, we will extend the use of "lane rental" incentives and penalties in order to reduce time taken for repairs. We will end the unnecessary coning off of miles of motorway when no work is being done.
"There are still too many long stretches of motorway without proper service areas. In order to speed up the provision of these facilities, we will end the present system under which the Department of Transport is solely responsible for identifying sites. In future we will allow developers to take the initiative in selecting sites to provide the facilities motorists need.
"We will reduce the delay in getting a driving test and make it easier to book appointments.
"The deregulation of coach services in the early 1980s has enabled a huge explosion in cheap

485
long-distance travel. Outside London, the deregulation of buses has brought in new operators and better value for money. We have decided that the time has come to deregulate bus services in London.
"Travellers on railways and Underground services have in too many cases been expected to endure sub-standard performance. The Government believe that here too further competition is desirable. We therefore expect to set out later this year detailed plans to privatise British Rail. BR's monopoly of the network will be ended. W. will also set up a new independent regulator to ensure fair access to the network and protect the customer.
"The Government will expect both BR and London Underground to be more open about standards of performance and methods of redress. British Rail will improve its compensation arrangements and it has been asked, as a start, to develop a new scheme, starting with annual season ticket holders. For the first time, where service over the previous year has been poor passengers will be entitled to discounts when their tickers are renewed.
"The Government want to relate pay to performance in all aspects of public service. As an example, on the Underground and railways we will expect records of punctuality and absenteeism to be taken into account where relevant, in packages of pay for drivers, guards, signalling staff and others whose service impacts most directly on the public. Dedicated workers should receive a better reward than those who fail the public.
"Fifthly, I turn to local authorities. Many of the measures that I have already outlined will help to improve their performance. However, there are two further steps which I wish to announce today.
"We will strengthen the powers of the Audit Commission. It will be empowered to publish comparisons which name local councils and education authorities. In future they will also be required to publish a formal response to auditors' reports. We will also extend the scope of compulsory competitive tendering.
"Sixthly, in central government we will promote more market-testing and extend contracting-out into new areas in the NHS, such as distribution, warehousing and non-emergency transport. We will publish a White Paper on this in the autumn. Government activities should not enjoy immunity from inspection and enforcement on such matters of health and safety. Except where national security is involved, all future legislation will ensure that Crown bodies are subject to the same inspection and enforcement procedures as others.
"Seventhly, we have new proposals on the Post Once. We will ensure that clear standards are widely publicised for service to the public. A new regulator will be appointed who will arbitrate on complaints, monitor performance and advise the Secretary of State on setting standards and protecting customer interests.
"Here, too, we believe that further competition would benefit the public. We will therefore narrow
486
significantly the level under which the Post Office has a monopoly for letter delivery. We will reduce it from the present £1 to a level much nearer the first-class stamp.
"Mr. Speaker, all these measures will bring direct benefits to our citizens. But we want to ensure that they have all the support that is needed in exercising the new opportunities that the Citizen's Charter will give.
"We will therefore act to strengthen the powers of the regulators of the public utilities on standards of service. We will ensure that the powers available to each will be brought up to the levels of the strongest. We will thus all be able to set guaranteed standards and require compensation to be paid where standards are not met. We will also enable them to require fixed appointment times for customers for whom that is important. We intend to end the annoyance caused to people waiting in all day for someone to call.
"In the public services, effective inspection is the key to maintaining standards. I have already outlined our proposals for inspection of schools. The Government will also introduce an independent element into other inspectorates. As a first step, more lay members will be appointed to the inspectorate of constabulary later this year. And there will be a full review of the independence and effectiveness of the social services inspectorate. Detailed proposals will be published later this year.
"We will also be consulting on the introduction of a new concept, the introduction of a network of lay adjudicators. These will be people who can help the citizen get a swift resolution of those small but irritating complaints which cause so much frustration.
"Finally, Mr. Speaker, the public are entitled to expect that essential services will not be damaged or interrupted by industrial action, which has not been put to the test of a ballot or which is unlawful in some other way. At present, if the employer does nothing, the citizen is powerless. We therefore propose to amend the law. We will give a new right to individual members of the public to seek an injunction to halt unlawful industrial action affecting services covered by the Citizen's Charter.
"This White Paper is only the beginning of the charter process. During the next few months, separate charters for specific services will he published. And we will be introducing a new charter standard for quality in public services. Only those who can meet the high standards that the public expect, will earn the right to display a new charter mark.
"We will introduce legislation wherever necessary to bring about the changes proposed. In addition, to drive the reform process through, I shall be setting up a special unit in the Cabinet Office. And I shall be appointing a panel of independent advisers to identify new areas for action and to help carry the programme forward. I am pleased to be able to tell the House that its first chairman will be Sir James Blyth, Director and Chief Executive of Boots.

487
"Mr. Speaker, the Citizen's Charter initiative will be fundamental to this Government's policies for the 1990s. It is a programme for a decade. There is much that is good in our public services. They contain a fund of talent, energy and commitment. Our new measures will release more of those qualities so that we can raise standards up to and beyond the best that is currently available. The charter programme will find better ways of converting the money that can be afforded into even better services. I want the people of this country to have services in which they as citizens can be confident and which public servants themselves can take pride.
"I commend these proposals to the House."
My Lords, that concludes the Statement.
4.29 p.m.
Lord Williams of Elvel: My Lords, out of courtesy, I must thank the noble Lord the Lord Privy Seal for repeating a Statement made by the Prime Minister in another place. I said "out of courtesy" because this was not a Statement that the Opposition required. It is the right of the Opposition to require Statements made in another place to be repeated in this House. However, our stance on this particular subject is neutral because we recognise exactly what the Government's intention is in making the Statement; we must expect that during this pre-electoral period the Government will use parliamentary time in order to make Statements of this nature.
I have one very serious point, but before reaching it, I should like to comment on some of the things the noble Lord the Lord Privy Seal said. I apologise to him for referring to page numbers. On page 6 of my text of the Statement I read that,
"The Citizen's Charter will end, once and for all, the patronising of tenants by incompetent town halls".
Is the noble Lord saying that all town halls are incompetent? Is he saying that some town halls are incompetent; many town halls are incompetent; Labour-controlled town halls are incompetent; or Conservative-controlled town halls are incompetent? Is this another attack on local government from the Government Benches? I should be grateful if the noble Lord the Lord Privy Seal could spell that out.
On page 8 of this long Statement, the expression is used:
"We will end the unnecessary coning off of miles of motorway when no work is being done".
I welcome this enormously, as a perpetual traveller along the M.4, as the noble Lord, Lord Brabazon, knows. It will save me endless angry discussions with him in the Bishops' Bar, when I become extremely irritated, knowing that the whole thing is quite useless, because I have been held up in my travels. The Government have had 12 years in which to put the problem right. Surely they ought to have done better than that.
On page 10 of the Statement the noble Lord the Lord Privy Seal said:
"The Government want to relate pay to performance in all aspects of public service".
That is an important statement.
488
Does it mean that the pay of senior executives of utilities will be related to aspects of their service? We should welcome that. Does it involve public services such as British Telecom and British Gas? I understand from our endless discussions in the House when the privatisation Bills were going through that these are public service organisations. Does the Statement mean that pay for the chairmen and chief executives of the privatised utilities will be related to performance? That is an interesting concept. I very much hope that the noble Lord will be able to elaborate on that when he replies.
The Statement then says:
"We will therefore act to strengthen the powers of the regulators of the public utilities on standards of service".
Many noble Lords and I have been active in your Lordships' House in ensuring that the powers of regulation of the privatised monopolies are strengthened. We have done so against speech after speech from the Government's Front Bench. We want the regulators to be stronger; the Government have always resisted it in Bills. On this, noble Lords on my right as well as behind me see eye to eye on the matter. If there is a privatised monopoly, there must be strong regulations. Therefore I welcome without reservation the sentence:
"We will therefore act to strengthen the powers of the regulators of the public utilities on standards of service".
Why did that not happen before? Why did we not have it when the Bills came before your Lordships?
A final point before I reach my major and important comment, is that I am happy to note that the first chairman of something called "a panel of independent advisers" will be Sir James Blyth, Director and Chief Executive of Boots. He is a distinguished industrialist. Do I take it that Sir James Blyth will give up his post as Director and Chief Executive of Boots? Is that not a full-time post? Presumably if he is to be the chairman of this important panel, he will have to devote a great deal of time to it. Inevitably, that will restrict the amount of time that he can spend in running the affairs of Boots, which we all know is a great British company.
The important, fundamental point arises on page 2 of the Statement. Here I am very serious. Again I quote from the Statement because it is important that your Lordships should be aware of what the noble Lord the Lord Privy Seal said:
"Except where their safety is threatened, public servants should no longer be anonymous. We will expect them to identify themselves to the public, with the giving of names on the telephone or in letters and, where appropriate, by the wearing of name badges."
To my mind this raises a serious constitutional point. Are we now abandoning the concept of ministerial responsibility for Crown servants? Up to now it has always been a fundamental constitutional principle that Ministers take responsibility and not civil servants. Are we saying that public servants should no longer be anonymous? For example, if I had a trade and industry problem, instead of talking to the Secretary of State I could talk directly to the permanent secretary of the department. I could say, "You must identify yourself either by telephone or in letters and wear a name badge. By the way, I will know who you are and what you are going to do about it".

489
Is that not a fundamental breach of the major constitutional principle that the Civil Service is the service of the Crown? Ministers are appointed and elected from time to time to respond on their performance—no one else. It is a ministerial responsibility. That is a serious constitutional point and I hope that the noble Lord the Lord Privy Seal will attend to it.
Other than that, I read and heard what the noble Lord said. It is a load of waffle.
Lord Holme of Cheltenham: My Lords, from these Benches I too thank the noble Lord the Leader of the House for reading to us the Prime Minister's Statement in another place. The Statement is interesting. As far as one can understand, the contemplated White Paper is a compendium of consumer and customer measures and initiatives of one kind or another aimed at achieving accountability, redress and higher standards in the public services.
I thought that for many years the invisible hand of the market was supposed to take care of these matters. It is n extraordinarily interesting change of direction for the Government, so close to a general election, to envisage a much more positive and powerful role for government in arriving at good consumer services. From these Benches we welcome that; but perhaps I may inquire what has happened to the invisible hand. Has it withered away? Is it like the monkey's paw, we are to see it no more? Do the Government no longer believe that the market and its adjusting mechanisms are adequate to ensure a proper supply of goods and services to customers?
Perhaps I may say generally about the White Paper that despite its long gestation, it still bears every sign of hasty delivery. In many aspects, it is extremely broad brush. Perhaps that is because it is a White Paper. I wish to inquire when we shall see details that will allow us to judge more accurately whether some of these broad proposals are as helpful as initially they appear to be.
The major criticism we make from these Benches of the so-called citizen's charter is that it does not have much to do with citizenship. It is a kind of consumer code rather than a citizen's charter. Even in its own terms it seems extremely inadequate to the subject which it addresses.
Perhaps we may take the instance of public utilities. From these Benches we urged at the time of privatisation and we still urge that there should be greater competition in the great public utilities that have been put into the private sector. The Government have not chosen to take the road of competition. One might argue that because they were so anxious to get a good price for the public assets they. were selling, they did not put properly competitive structures into the public utilities.
The first approach to achieving good results from the privatised public utilities is to see that they are fully competitive, and that there is a competitive structure within British Telecom. We do not agree with the party on the Benches to our left that British Telecom should be renationalised. However, we go further than the Government in believing that British Telecom should be given a more competitive basis on
490
which to provide good services to the customer. To the extent that competition is not possible in the public utilities, there must be firm regulation.
I noticed on page 12 of the Statement on the Citizen's Charter a reference to strengthening the power of the regulators. I should be grateful if the noble Lord the Leader of the House could confirm that that means an end to the so-called light touch of regulation. That was the guiding doctrine of the Government in the early days of privatisation—that all the privatised utilities would have light touch regulation. Where there is a remaining monopoly, albeit in the private sector, light touch regulation is incompatible with the public interest.
I have two other observations. First, this charter raises public expectations in a way which the Government might think to be somewhat excessive, even in an election year. From today onwards, from the day that the Citizen's Charter is prominently featured on television, to whom does the aggrieved citizen complain if his water is polluted, as it was overnight in Buckinghamshire; or if his stretch of motorway is coned off despite the efforts of the Ministry of Transport; or if the salary increase of the chairman of his public utility is thought to be excessive? The Government seem to be inviting us to assume that everything is now again the affair of government. If people are to take that literally, they will want to know to whom they should address their complaint about inadequate service. I should be most interested to hear the response of the Leader of the House.
My final point is that citizenship means a great deal more than a sort of consumer code. It really means redirecting power towards the man and woman in the street. It concerns civic rights and not simply consumer rights. It means equal votes, freedom of information and a Bill of Rights.
What has happened to freedom of information? It has been extensively leaked that Ministers at the Home Office thought that there might be a case for including freedom of information in the Citizen's Charter. Why is it that this country, almost alone, languishes without proper freedom of information? When a cruise liner crosses the Atlantic and health inspectors come aboard at both the British and the American ends, why is it that any results dealing with environmental conditions of the ship found by the British inspectors are kept secret, whereas the American results are fully published? Why is it that every scholar who wants to research the doings of government finds it easier to get in through the United States, where there is freedom of information, rather than here?
I suspect that the Government have been defeated by Whitehall yet again in putting together the Citizen's Charter. The real enemy of the citizen, if one uses "citizen" in the sense that most people throughout the world would understand it, is our centralised, secretive and closed system of government and administration.
Some of the Government's proposals are useful, and we acknowledge them. Some are cosmetic, and they can be fairly readily identified. But unless the Government are prepared to open up Whitehall and

491
the system of Government we shall continue to have what characterises all public matters in this country, that is, a culture of subjecthood rather than one of full citizenship.
4.43 p.m.
Lord Waddington: My Lords, the noble Lord, Lord Williams of Elvel, said that the Opposition did not require this Statement to be read in this place. I can only say that that shows a singular lack of discernment on the part of the Opposition because either the noble Lord was not listening to what I was saying or for some other reason he has failed to appreciate the significance of the Statement.
I do not think there will be many people in the country who will consider it is just waffle to guarantee a maximum waiting time for types of treatment within the NHS. Not many people who are suffering and needing a hip replacement will think it is just waffle to lay down the maximum time within which that operation should be carried out. There will be few parents in this country who will think it is just waffle to say that on every occasion their children will be entitled to have a school report, or to say that there should be a comparison of exam results to see how some schools compare with others. I do not think there will be many people so foolish as to imagine it is just waffle to extend the rights of tenants on run down council estates to get essential repairs carried out. Not many people will think it is just hot air to say to the long-suffering travelling public that if there is an unsatisfactory service on British Rail they will have new opportunities for compensation.
I could go on in that vein, but I will not bore the House. I have gone through many points, and it is absurd to describe a whole list of specific proposals as just waffle.
The noble Lord wanted to know to which councils we were referring with regard to the patronising of tenants by incompetent town halls. Of course we were not referring to all town halls. Many local authorities in this country give an excellent service, as does Westminster council nearby. The noble Lord must surely be closing his mind to the facts if he does not acknowledge that some local authorities patronise their tenants, and he must surely recognise that there are incompetent town halls.
To take Islington, a recent QC's report found administrative chaos as a result of having the cash office staffed by the innumerate, the filing done by the dyslexic and the disorganised, and the reception performed by the surly and the charmless. Then there is Manchester, whose ombudsman said that its actions fell a long way short of providing a satisfactory response, and which at the end of 1989 had the highest number of vacant dwellings in Britain. One only has to look at reports of the Audit Commission to see that some local authorities are performing well and providing a good service to the citizen, while other local authorities are behaving abominably.
The noble Lord did not appear to think much of the changes in the practice of coning off stretches of road, but I very much doubt whether any noble Lord here
492
has not recognised that unnecessary congestion is caused because miles of motorway are coned off while only a tiny part of the motorway is actually being worked upon.
Lord Tordoff: My Lords, I had thought that that was about the only part of the Statement with which the noble Lord agreed.
Lord Waddington: My Lords, I am very glad that the noble Lord liked something. I should not have thought that limiting the length of motorway coned off was quite as important as ensuring that one's mother gets a hip operation sooner. Again, it shows a singular lack of discernment on the part of the noble Lord.
I referred to pay related performance. The noble Lord tried to turn the argument into one about high pay for the executives of privatised industries. Nobody can doubt that the performance of British Gas has improved enormously since privatisation. Price increases have been contained since privatisation, so there has been better performance. Nobody can seriously doubt the improved performance of British Telecom. Fewer public telephones are out of order now compared with a short time ago, so there has been an improvement in performance. Whether it is right for senior executives to give themselves very large increases and thereby set a less than perfect example to others is a real issue, but it has nothing to do with improved performance, because improved performance has in fact been obtained by privatisation in those industries.
As far as powers of regulation are concerned, undoubtedly the regulatory powers have changed as various privatisation measures have gone through Parliament. We have learnt from our experience of the privatisation of successive utilities and have built on Oftel and Ofgas. However, we should not say that there is no room for further improvement. Indeed, we believe that there should be further improvements. Sir James Blyth's appointment will be part-time.
Regarding the identification of public servants, I cannot believe that the noble Lord really thinks that that has anything to do with ministerial responsibility. We are talking about a good customer service at, for instance, the DSS office. Anonymity does not affect responsibility. When people go to a place such as a DSS office it is surely reasonable, improves confidence and is likely to lead to better and more courteous service if the identity of the individual is known. It is equally obvious that if someone wants a new driving licence it helps enormously if, when grappling with the DVLC in Swansea, he can ask the identity of the person who is talking to him so that he can go back to that person and try to get better service.
I am grateful for the welcome which the noble Lord, Lord Holme, gave to the charter. The noble Lord asked me whether the Government no longer believed in the market. I have to tell him with the greatest respect that he has missed the point. It is because so many public services are necessarily provided by monopolies and therefore the normal disciplines of the market do not operate, and because

493
there is no adequate competition, that one has to find other mechanisms for improving public service. That is what this exercise is all about.
This is a very long document and it will repay detailed study. It is also the case that it will be fleshed out as time goes on. More detailed proposals in each separate area will be forthcoming. The document is concerned with citizenship and with better service to citizens. I cannot agree with the noble Lord's strictures about the failure of the Government to introduce a freedom of information Bill. The charter is all about openness in public service delivery, openness about standards, openness about achievements and failures and a commitment to deal frankly and straightforwardly with patients, parents and users of all public services. One does not need a freedom of information Bill for that. This is a charter for citizens, not for those who wish to reduce ministerial accountability to this House.
Of course we are raising public expectations. We are right to do so. That is the engine for change. As a result of raising public expectations, as a result of focusing on what it is possible to achieve, I have no doubt whatsoever that we shall achieve the improvements which we all so much want. Mechanisms are already in place in certain areas. In other areas mechanisms will have to be put in place—new complaints procedures, new opportunities for people who are not satisfied with the way in which their complaints are dealt with to go to lay adjudicators, for example, for a proper adjudication of a matter.
I hope, therefore, that on consideration the House will welcome warmly this very radical, imaginative and forward-looking document.
4.54 p.m.
Baroness Oppenheim-Barnes: My Lords, will my nobleo friend congratulate our right honourable friend the Prime Minister on this very comprehensive plan for making it easier for consumers to obtain redress and to complain? Will he urge our right honourable friend to reject all the carping criticism and sour grapes, which were entirely predictable? Will he further remind any who have criticism of the power of the regulators that without privatisation there would have been no regulators and that it is our creation which we are strengthening? That is to be widely welcomed on behalf of consumers.
Lord Waddington: My Lords, I am grateful to my noble friend for all that she said. Privatisation has brought huge benefits. She is right to say that if we had not had privatisation we should not have the regulators and should not have this argument at all. No one will convince many people in the country that privatisation has not brought great benefits, as has contracting out in local authorities.
Lord Jay: My Lords, under this charter—if it is not waffle—if the Government as a result of providing inadequate finance to, say, London Underground cause great disruption and delays for passengers,
494
would those passengers who have suffered have a right of redress in the form of compensation from the Government?
Lord Waddington: My Lords, I believe that the noble Lord asked that question somewhat with his tongue in his cheek. It is absolutely certain that if one improves service one attracts more customers. Improving service does not necessarily result in increased cost. If everyone involved in the performance of a utility gives better performance, that attracts more customers and creates more resources for the improvements to which the noble Lord was no doubt referring.
Baroness Faithfull: My Lords, my noble friend the Leader of the House spoke of citizens' rights and referred to education, housing, health and transport. There was no mention of social services. Does he agree that we need to look into the social services of this country, first, at ministerial level where there is a great deal of overlap and a number of gaps between Ministries, and, secondly, from the point of view of local government? The social services have had a great deal of legislation put on their plate—the Children Act, so ably carried through this House by the noble and learned Lord, the National Health Service and Community Care Act, the Child Support Bill and parts of the Criminal Justice Bill.
I submit that the social services have had a difficult time over the past two years. Many social workers are excellent but there have been difficulties, as noble Lords will know from the reports of inquiries which have had to be held. Are the social services to be included in the better services in the Citizen's Charter?
Lord Waddington: My Lords, my noble friend has put her finger on the issue. No one can think of the social services without thinking of local authorities and of the performance of local authorities. The performance of local authorities is a key issue raised in the paper.
Earl Russell: My Lords, will the noble Lord consider that many of us are deeply disappointed by the Statement because we believe that it rests on a fundamentally mistaken diagnosis? Does he accept the words of Sir Anthony Hidden in paragraph 15.1 of his report that:
"The link between the funding of safety and the future of safety is an obvious one"?
Does he accept that that link between funding and quality of service is true mutatis mutandis of other areas of public service? Does he accept that there are many people in this House and outside it who think that the Government could do more to improve local authority housing repairs by the revenue settlements they are about to announce than by this charter and more to shorten health service waiting lists by funding than by this charter? I sympathise with the noble Lord saying that he does not like the word "waffle", but should not a free market government accept that if they say they want something and are not prepared to pay for it that is waffle?
Lord Waddington: My Lords, that is the most defeatist comment that I have ever heard in all my life.

495
To say that within a given amount of resources there is never room for improvement and to argue that there is no point whatever in trying to inculcate an attitude of service among people who work in the public sector and that nothing whatever can be done without giving more and more money is a poor do. Of course there is a link between funding and quality of service, but the charter is concerned with delivering the best service within the resources available.
Everyone knows perfectly well that in every field of life one can either perform well or perform badly. Where there are two people with the same opportunities and the same resources, one can perform well and one can perform badly; one can give a good service to the public and the other can give a bad service to the public. The object of the exercise is not to cry that nothing can be done unless more money is thrown at the problem. It is to put new disciplines in place so that there are proper opportunities for people to complain when they do not think they are receiving the service they deserve; to provide more opportunities for people to receive compensation when they do not receive the service they deserve; more openness; and clear statements of what public services say they will deliver to the public so that if they do not then deliver what they say they will deliver they can be called to account. That is not a matter of money. It is a matter of putting in place proper mechanisms so that the individual has proper redress.
Lord Cockfield: My Lords, I welcome the Statement, which represents a significant step forward. We can always argue whether it goes far enough or whether further improvements can be made, but that it represents progress cannot possibly be denied. I suspect that it will ultimately prove much more important than even the Government themselves realise. There is an important statement about getting a foot in the door. Once you get a foot in the door, you can always push it open a little further. The worst possible attitude is to say, "We do not like this and we had better close the door right away", because you do not get any progress like that.
I was greatly intrigued by one of the remarks of the noble Lord, Lord Williams of Elvel. He always introduces me to a new world, the existence of which I never suspected. I wonder whether he has ever completed an income tax form and whether he read it before he signed it. I am quite certain that he did, but he will find on the face of that form printed in clear the name of the inspector of taxes concerned.
Lord Williams of Elvel: My Lords, I am most grateful to the noble Lord. I have completed an income tax return; indeed, I do so every year. Perhaps I may return the compliment. In 1977 he introduced me to a new world—he Price Commission—of which he was a distinguished chairman and my predecessor. I put that fact on record because I am always most grateful to him for introducing me to new worlds.
Lord Waddington: My Lords, I adopt wholeheartedly what my noble friend has so eloquently stated. I
496
reiterate what I said earlier. If before privatisation we had insisted on the gas man telling the customer what he was called, no one in his right senses would have said that that in some way interfered with ministerial responsibilities.
Lord Stoddart of Swindon: My Lords, I should like to make one or two comments and ask some questions about the Statement. Does the Leader of the House realise that his initial remarks about local authority housing were deeply insulting to many local authorities, their housing managers and staffs? I hope that he will in some way mitigate those statements. What redress will people have if they convert to housing action trusts? Does the Citizen's Charter extend to the action that people can take if they have mistakenly transferred to an HAT? Will the Minister comment on the tenants of private landlords? Are they to have their rights and privileges extended under the Citizen's Charter, because they are tenants too, often of bad managers?
The noble Lord referred to the extension of the scope for compulsory tendering for services in local authorities. What does that mean? Will it involve all services or only some? Do the Government intend to reduce local authorities to enabling bodies only? We would be interested to know exactly what the intentions are.
Does that Statement in any way supersede the assurance that was given in an Answer to a Starred Question last week that there was no question of the administration of public libraries being put out to competitive tender?
Finally—here I must declare that I am a member of the EETPU and an adviser to NALGO—with regard to the part of the Statement that referred to an individual citizen's right to pursue injunctions against trade unions, will that undermine the right to strike? Will it not create an administrative and judicial nightmare if each individual citizen has recourse to the courts to stop strikes? I wonder whether that matter has been considered. Perhaps the Leader of the House will deal specifically with that item.
Lord Waddington: My Lords, the object of the exercise is not to insult local authorities but to obtain better services for those who live within local authority areas. I reiterate what I said earlier: one has only to loot, at the reports of the Audit Commission to see that there are great differences in performance among local authorities. It is not an insult to local authorities to draw attention to those differences in performance and strengthen the hand of the Audit Commission by empowering it to publish comparisons which name local councils in order to obtain the better performance that the citizen deserves.
On the question of the injunction in the case of industrial action, it does not undermine the right to strike. It will be a further deterrent against illegal industrial action; in other words, where there is no right to strike and where an employer can at present obtain an injunction, but where a private citizen cannot obtain an injunction in those circumstances in which an employer does not choose to do so.

497
A passage in the Citizen's Charter deals with housing action trusts. An individual citizen, not just a local authority, would be able to activate the process which might lead to a successful bid for a housing action trust.
On the question of public libraries, I have nothing to add to the statement made previously.
Lord Mackay of Ardbrecknish: My Lords, does my noble friend realise that the Statement will be widely welcomed by many people? Does the White Paper deal with the powers of the local government ombudsman? Many citizens have gone to the ombudsman and had their cases considered by him. He has come down in favour of the citizen, but the local authority has taken not a blind piece of notice of the complaint which the citizen has made and which has been upheld by the ombudsman. I trust that somewhere in the White Paper there will be powers to enforce the decisions found by the ombudsman.
Lord Waddington: My Lords, local authorities will certainly be required to respond to reports made by the Audit Commission. That is an analogous situation. Thus, when a person criticises a local authority, he or she can at least expect the local authority to show whether it will react or not. I cannot put my finger on any particular passage in the White Paper that deals with the enforcement of action against local authorities when there is a recommendation b y the local government ombudsman.
Lord Ezra: My Lords, although the Citizen's Charter is an important document in securing the rights of the citizens of this country, does the noble Lord agree that, in order to obtain the higher standards to which we are entitled as one of the most developed countries in the world, other actions are also required?
I should like to support the intervention of my noble friend Lord Russell, who said that proper funding of the public services is also required. When we refer to the recently privatised public utilities, we venture onto entirely new ground. Many noble Lords consider that the structure with which some of those utilities were privatised was not entirely right and did not allow the degree of competition which could lead to the best service. I ask the noble Lord whether he agrees that, while the charter which is presented today is a big step forward, other actions also are required?
Lord Waddington: My Lords, I am grateful to the noble Lord for making clear, as is the case, that the charter is a big step forward. But I do not have anything to add to what I said a short time ago to the noble Earl, Lord Russell. I feel that it would be an admission of defeat if we thought that nothing could be done in those areas without increased funding. We are talking about areas where in fact there has been an enormous increase in government funding over recent years. That makes the argument which has been advanced even weaker. Let us take, for example, investment in British Rail. There has never been greater investment in British Rail than there is now.
498
When the argument is that it is all about funding, it hardly seems to be a good point to quote the example of British Rail, for a start.
Lord Donoughue: My Lords, the noble the Leader of the House has announced a strikingly ambitious programme. Apart from the misbehaviour of our children and the failure of certain horses to run up to expectations, the charter seems to cover virtually every complaint in society. Can he tell us a little more about the costing of the programme? It is normal government practice when reaching major decisions for the Treasury to attach an estimated cost. Can he tell us first what is the estimated cost to government of monitoring this programme? Secondly, and more important, what is the estimated cost to all the public services of implementing the programme? Will the Government provide the extra resources to do that?
Lord Waddington: My Lords, I believe that I made absolutely plain that the theme of this paper is how better service can be obtained within existing resources. There is no doubt that that can be done. Indeed, we have shown how it has already been done in various areas—for instance, in areas in which there has been privatisation. I am grateful to the noble Lord for referring to it as an ambitious programme, as indeed it is. Obviously he does not think that it is just hot air.
Baroness Hollis of Heigham: My Lords, will the noble Lord the Leader of the House enlarge on his comments in answer to the noble Lord, Lord Holme, on freedom of information? Does he accept that the difference between a customer and a citizen is that the customer has the right to shop around and the citizen has the right to know? Unless that right is fully enshrined in law and applied to the private as well as the public sector, much of the good intention of the Citizen's Charter will not be effectively delivered.
Lord Waddington: My Lords, government is far more open now than it was in 1979 when we came into office. Act after Act can be quoted where there is greater openness by government. So, I am not inclined to take criticisms from a party which when it was in office took no steps in the direction to which the noble Baroness refers.
Lord Rochester: My Lords, have the Government given any thought to how public servants are to be motivated to give the service looked for in the Statement?
Lord Waddington: My Lords, I am not quite sure that I fully understood the question. Would the noble Lord repeat it?
Lord Rochester: My Lords, I wonder whether the Government have given any thought to how public servants can be motivated to give the service that is called for in this Statement?
Lord Waddington: My Lords, the answer to the noble Lord is performance related pay. That is one of the answers. However, I should not like it to be thought that that is the only answer. Once one begins to take pride in an organisation that pride becomes

499
infectious and people want to provide a better service. But performance related pay is certainly one weapon that one can use.

Child Support Bill [H.L.]
5.14 p.m.
Motion for consideration of Commons amendments resumed.
Lord Hesketh: My Lords, following consultation through the usual channels, it has been agreed that the business should proceed as arranged. I should say that this has been agreed with the full consideration of what was said earlier this afternoon on the basis that this would be on balance more for the convenience of the whole House.
Lord Renton: My Lords, I do not know whether it is in order to reply in any sense to the statement made by my noble friend. If so, I should be glad of the opportunity. We have been told that this has been agreed between the usual channels. I should like to say that the usual channels may have their own particular reasons, but whatever they are they would surprise me very much. I am sure that I speak for a number of noble Lords when I say that we deeply regret the decision. Speaking for myself, while the Statements were being made I was working as hard as I could to try to master some of the consequences of the amendments. I found a small mistake in one of them. I deeply regret that we have to proceed in this way.
Lord Boyd-Carpenter: My Lords, perhaps I may add to what my noble friend Lord Renton said and say that I very much regret this decision and the grounds on which it is alleged to have been taken. It was said by my noble friend that the proposal to continue with the Bill—beginning now, at a quarter-past five in the afternoon—was for the convenience of the House. I do not believe that to be so. No doubt it is for the convenience of the usual channels. They have made these arrangements and it is convenient for them to adhere to them. To say that it is for the convenience of the House to tackle a Bill of such complexity and considerable importance—a Bill which was received by most of us only this morning—in a debate beginning quite late this very afternoon, is a misstatement.
It is not for the convenience of the House, nor, I say with respect, is it good for the reputation of the House. We are supposed to be a revising Chamber. Many noble Lords (if not I) have given great attention to this Bill and taken a great deal of trouble over it. Now to proceed as is suggested—namely; straightaway, with the Bill straight back from another place and with no opportunity whatever for reasonable consideration of the amendments and of whether we should accept them—is undoubtedly harmful to the position of the House as a revising Chamber. Like my noble friend, I immensely regret that the Government have taken that line.
Lord Stoddart of Swindon: My Lords, I agree very much with the noble Lord, Lord Boyd-Carpenter, that
500
what has now been decided is not for the convenience of the House but for the convenience of the Government and presumably the Opposition Front Bench. That is quite deplorable. As I have already said, in my view there is absolutely no reason why this Bill should not be discussed when we come back for the spillover period.
I find it quite reprehensible and truly amazing that we have just been discussing a citizen's charter, which is supposed to give more rights to the citizen, yet only a few minutes later we find that the rights of Members of Parliament are denied; namely, the right to proper consideration of a very detailed and important Bill. Whatever happens, I find the proceedings quite reprehensible and regrettable.
Lord Tordoff: My Lords, perhaps I may speak from these Benches, as part of the usual channels. I do not believe that anybody within the usual channels would dissent from many of the comments that have been made. It is very unfortunate that the House is faced with such a situation at this stage of the year. It is not new. It tends to happen every year because that is the way in which foolishly we do our business.
We are very much at the behest of the Government's programme. We could seek to disrupt it. We could seek to continue the Session into August. But, on the whole, the usual channels try within reasonable limits to facilitate progress of business within your Lordships' House. The difficulty is that we are in the last week of the Session with a still quite heavy programme. The noble Lord, Lord Boyd-Carpenter, suggested that certain matters might be moved from Wednesday to Friday. That would cause considerable difficulties to the people who seek to do what they have to do on Wednesday and who have equal rights in those matters to noble Lords concerned with this Bill.
Lord Boyd-Carpenter: My Lords, the noble Lord has referred to me. I made that suggestion in order to try to meet the wishes of those who wanted the Bill to become law before we rose. I wish to make it clear that my own preference is to carry the matter over until October when the Bill can be discussed fully, at leisure, and after proper consideration. Perhaps what the noble Lord said is a warning to me against ever trying to be helpful.
Lord Tordoff: My Lords, I am sure that the noble Lord will not stop trying to be helpful. I say that merely to illustrate that in the present situation one moves one piece of jigsaw and finishes up with an even more confused pattern than one started with.
It is reprehensible that the House is faced with these problems. It is no way to run Parliament. It is no way for Parliament to be able to challenge the Executive. However, I hope that noble Lords will have some slight sympathy for the usual channels. The alternative of keeping the House sitting through August in order that the Government may achieve its business by the determined time is not a matter of which I wish to be part.
Lord Stoddart of Swindon: My Lords, I am obliged to the noble Lord for allowing me to intervene.

501
However, that is not the alternative. There will be quite a lot of time in the spill-over period. The alternative is to consider the Bill during that period. I can assure the noble Lord that that will not affect the Bill. It will not affect it coming into operation in 1993. Work can be done between the start of the Recess and when we return. We can begin its implementation, if that is necessary, with discussions and so on. The noble Lord's suggestion is not the alternative.
Lord Tordoff: My Lords, I fear that it may be the alternative if the Government wish to pass this Bill before the Summer Recess. That may be a reprehensible demand from the Government, but it is part of the whole package of running your Lordships' House. We can do that only by consent, as we do with all other matters in your Lordships' House. I concurred with the programme. I may have been wrong. However, having done so, I fear that if it were to come to a Division on this issue, I should have to advise my noble friends to support the Motion that we continue with this business today.
On Question, Motion agreed to.
COMMONS AMENDMENTS [Page and line references are to Bill [157] as first printed by the Commons.]

Child Support Bill [H.L.]

  COMMONS AMENDMENT
  1 After Clause 1, insert the following new clause:
  Welfare of children: the general principle
  '.Where, in any case which falls to be dealt with under this Act, the Secretary of State or any child support officer is considering the exercise of any discretionary power conferred by this Act, he shall have regard to the welfare of any child likely to be affected by his decision.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. I speak also to Amendment No. 2 which leaves out Clause 2.
  Your Lordships will recall that at Third Reading I accepted an amendment moved by the noble Lord, Lord Carter, which placed a duty on the Secretary of State or any of his officers to consider the welfare of the child when exercising any power under this Bill. I made it clear at that time that further consideration of the provision was required and further amendment might be necessary. I had been considering a somewhat similar amendment but it had not been ready.
  Your Lordships will recall that as Lord Chancellor I was anxious about how the provision would impact on certain areas of the Bill. In the light of further consideration, the clause has been refined so that it applies only to provisions which require the exercise of discretion. In that way we have been able to leave out part of what had originally been proposed but also to emphasise that it was the welfare of any child that had to be taken into account, not just the particular child who might be the subject of the decision. I beg to move.
  Moved, That the House do agree with the Commons in their Amendment No.1.—(The Lord Chancellor.)
  Lord Mishcon: My Lords, all of us—whether or not we have had time to consider all the amendments—will remember the debate that took place on the
  502
  request to the Government to introduce a clause to show that the welfare of the child was taken into account in regard to any matter where discretion was required. I am particularly glad—because it may have some relevance to other amendments that we shall discuss—that the noble and learned Lord has emphasised the words "any child". It is not just the child of the parent seeking maintenance but any child involved in the matter, wherever that child may be.
  Baroness David: My Lords, my name was attached to a similar amendment, although my noble friend Lord Carter moved it. I am very glad that we have some provision in the Bill about the welfare of the child—and towards the beginning of the Bill too.
  The noble Lord, Lord Henley, kindly supplied me with the blue document, Notes on Commons Amendments, which states:
  "This duty applies only to the exercise of any discretionary power under the Bill".
  Can the noble and learned Lord give us a little explanation of that? There has not been time to look into it.
  Lord Renton: My Lords, both the original Clause 2 and the proposed clause had the advantage of being a statement of principle. I wish that we had more of them. The welfare of the child was to be the principle asserted in the clause as previously drafted and again now. The redrafting has the virtue to which the noble Lord, Lord Mishcon, referred, of being a less qualified expression of the welfare of the child. For that reason we should welcome it.
  Lord Simon of Glaisdale: My Lords, the amendment seems a definite improvement. One of the worries that has been voiced in the Bill, principally by the noble Lord, Lord Houghton of Sowerby, is that we may be losing sight of the welfare of the child of a subsequent union.
  The main purpose of the Bill is to save £400 million of public funds. I am the last to cavil at that. However, not a penny of that £400 million goes to any child, except very indirectly and obliquely, and possibly to any child of a taxpayer who may benefit in some way from the recovery of the £400 million.
  It may be that with the harsh, stringent mode of recovery which the Bill allows the Secretary of State and his minions, some sum over and above the £400 million will be available to the benefit of a qualifying child. But it has not been quantified. We have not been told how much that will be. It certainly must be set off against the fact that the absent parent may have formed another union and may have children. These very harsh methods of recovery may inure to the detriment of such a child.
  The amendment proposed is an improvement on the previous provision. As the noble Lord, Lord Renton, indicated, such a statement of principle is of value to a court of construction. It is now clear that in any case where the point is raised, it is the benefit of the child of that subsequent union which must also be considered. I am not sure that there will be much scope for that, because the Bill is so harshly oriented in favour of clawing back from the absent parent money which will go primarily to the general

  503
  taxpayer; but there may be something over and above for the qualifying child. Having said that, there may—one never knows—be a point where the interests of the child of the subsequent union may be in question. Therefore, I join with your Lordships in welcoming the amendment.
  The Lord Chancellor: My Lords, I should have said earlier that the noble Baroness, Lady David, initiated consideration of this matter. I referred to the noble Lord, Lord Carter, because I believe that he moved the formal amendment which I accepted, subject to revision. We were deprived of the presence of the noble Baroness on that occasion by circumstances beyond her control. I wish to acknowledge that point.
  With respect to the question asked by the noble Baroness, this matter arises only where a discretionary power is in question—where something is committed to the discretion of the Secretary of State or a child support officer. In such a case, the welfare of any child likely to be affected has to be taken into account. In the amendment moved by the noble Lord, Lord Carter, the point was dealt with by saying that it was subject to the other provisions of the Bill, or words to that effect. We have tried to isolate the power to which that would be relevant in this way.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  2 Clause 2, leave out Clause 2.
  5.30 p.m.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2, which is consequential.
  Moved, That the House do agree with the Commons in their Amendment No. 2.—(The Lord Chancellor.)
  Lord Renton: My Lords, in the collection of notes which my noble friend Lord Henley sent to us there is a grouping. In that grouping, Amendment No. 3, which is a simple amendment, is grouped with Amendments Nos. 14, 98 and 101. The amendments are set out on page 2. There is then a note showing the effect of the four amendments taken together. It would help me if we could be told whether it is intended to take each amendment separately as we come to it or whether my noble and learned friend the Lord Chancellor or my noble friend Lord Henley, when moving the Commons amendments, intend to discuss them as a group. If they are to be discussed each as a group, those noble Lords who do not have the benefit of the notes supplied by my noble friend will be at a great disadvantage. I do not find myself at a great advantage because these matters are so complicated that I have been unable in the time available, which was the time between the two Statements, to get beyond page 6 in my studies, and there are 57 pages of notes and comments. It would be idle, at any rate for me with my limitations, to pretend that I shall be able to understand what follows.
  The Lord Chancellor: My Lords, I am sure that when the time comes to consider Amendment No. 3, with which my noble friend Lord Henley will deal, he
  504
  will give such a cogent explanation of the matter that my noble friend will feel able to follow it. My question at the moment merely relates to leaving out Clause 2, which is entirely consequential upon Amendment No. 1.
  Lord Renton: My Lords, I am sorry.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  3 Clause 3, page 2, leave out lines 16 and 17.
  The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I should like to speak also to Amendments Nos. 14, 98 and 101.
  My noble friend Lord Renton referred to the Notes on Commons Amendments in which we have produced the same list of groupings as appears on the usual groupings list that he will be able to pick up in the Princes Chamber. We shall discuss the amendments in their groupings, as we do with any Bill. It is normally found to be for the convenience of the House if we discuss the amendments in groups.
  Lord Renton: My Lords—
  Lord Henley: My Lords, before my noble friend intervenes perhaps I may explain the purpose of the group of amendments.
  The amendments fix a common age of 12 from which a child may seek an assessment on his absent parent in Scotland. Without such an amendment, the provisions of the Age of Legal Capacity (Scotland) Bill currently before your Lordships' House would remove the existing civil law rights of boys aged 14 to 16 and girls aged 12 to 16 with regard to applications for aliment under this Bill. The amendments align the Child Support Bill and the Age of Legal Capacity (Scotland) Bill and preserve existing rights. There is a further new provision which allows an application for maintenance made by a qualifying child in Scotland to be treated as an application on behalf of that child's siblings who are also children of the absent parent and are in the care of the same person as the applicant. That avoids the necessity of requiring independent applications from all the children within the family. I commend the amendments to the House.
  Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Henley.)
  Lord Renton: My Lords, I have not had time to mark the Bill while looking through the notes and comments. Several points arise. Not being a Scottish lawyer but only a rusty old English lawyer, it would be helpful for me to know the significance of Amendment No. 3, which asks us to omit "tutors" and "curators" from those whom the Secretary of State shall not prescribe as a category under the provision in Clause 3(3). Perhaps my noble friend will explain that point.
  The next point about which it occurred to me to ask is this: I have a grandson aged 12 who lives in Scotland. Under Amendment No. 14, we find:
  "A qualifying child who has attained the age of 12 years and who is habitually resident in Scotland may apply to the Secretary of State for a maintenance assessment to be made with respect to him if,

  505
  no one else has done so. I hope to think that my grandson would be intelligent and would find out what provision had been made, and, if no provision had been made, would find out who the Secretary of State was; what his address was; how to apply to him; and with what reasons the Secretary of State should be presented. On the face of it, and subject to further explanation, that is a rather heavy burden to place upon a child of 12, or even 13, 14 or 15.
  This is a point of substance which was discussed in passing at earlier stages of the Bill in our House. It was suggested that the provision needed to be made but that it would not be used very often. It was said that unle5.s the provision existed, a child may be deprived. I understand that. However, at the same time it would be he 1pful if my noble friend will tell us how the child, upon whom the opportunity and responsibility for his own welfare is placed, is to motivate the power given in Commons Amendment No. 14.
  Lord Mishcon: My Lords, I should hate to give the impression to the House or, indeed, the country at large that Members of your Lordships' House are not equally caring about children aged 12 or over in England and Wales.
  Lord Renton: My Lords, the amendment refers to Scotland.
  Lord Mishcon: My Lords, I can well remember asking—and I believe it was echoed by noble Lords on the Benches behind me—why the provision applied only to Scotland. If it was a good right which was used. I asked why it should not be available in England and Wales. If it was not used at all, we asked why there was need for it at all.
  I believe that the noble and learned Lord replied, with all the authority which he carries with him in regard to the law of Scotland, that that was a tradition in Scottish law and that it had been part of Scottish law in relation to family and matrimonial proceedings that a child could apply for himself. It seemed wrong to deprive a Scottish child of a right embedded in Scottish law. However, it was said that it was infrequently used.
  Therefore, I do not understand it to be a matter of setting up a new procedure. I paraphrase my recollection of what the noble and learned Lord said. He said that not only was the provision rarely used, but he felt that it was not compatible with English law and procedure as we know it. He did not believe it right that the provision should apply in English law and le considered it to be unnecessary. That is my recollection.
  Lord Henley: My Lords, my noble friend says he is rusty in the law. I am even rustier. However, I never show as brightly as he did. I can also say that I am as ignorant of Scottish law as my noble friend, and on this occasion I must rely on those who advise me.
  As the noble Lord, Lord Mishcon, implied, the time for discussing whether such changes are necessary in English law has now passed. We are now considering Commons amendments. It is important to consider the matter fully in relation to Scottish law.
  506
  My noble friend asked two questions about the amendments. He asked why, in Amendment No. 3, the reference to "tutors" and "curators" has been removed. I assure my noble friend that those terms will become obsolete when the Age of Legal Capacity (Scotland) Bill, which is to have its Third Reading today, becomes law. In any event, the terms are covered by existing references to parents and guardians. There are consequential amendments.
  My noble friend asked also about Amendment No. 14. He said that that placed a heavy burden on a 12 year-old. It merely replicates an existing provision which, as the noble Lord, Lord Mishcon, said, was used infrequently. We expect this clause to be used infrequently. Children will be able to obtain help and advice through the usual sources—welfare agencies and so on. Children's rights and the availability of help and advice will be well publicised.
  I hope that my remarks will reassure my noble friend that there is nothing sinister in the grouping of these four amendments. I shall continue to follow the suggested list of groupings which follows my Notes on Commons Amendments.
  On Question, Motion agreed to.
  5.45 p.m.

  COMMONS AMENDMENTS
  4 Clause 4, page 2, line 32, leave out subsection (2).
  5 Page 3, line 2, leave out from 'can' to 'to', in line 4, and insert 'comply with such regulations as may be made by the Secretary of State with a view to the Secretary of State or the child support officer being provided with the information which is required—'.
  6 Page 3, line 8, leave out 'child support maintenance' and insert 'amount'.
  7 Page 3, line 9, leave out from 'parent' to end of line 12.
  8 Page 3, line 25, at end insert:
  '( ) No application may be made under this section if there is in force with respect to the person with care and absent parent in question a maintenance assessment made in response to an application under section 6.'.
  9 Clause 6, page 3, line 43, after '(b)', insert 'she'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 to 9 en bloc. I shall speak also to Amendments Nos. 11, 12, 13 and 15 to 18. These are all minor drafting or technical amendments which improve or tighten up the wording of Clauses 4, 6 and 7.
  Moved, That the House do agree with the Commons in their Amendments Nos. 4 to 9 en bloc.—(Lord Henley.)
  Lord Renton: My Lords, it seems to me that Amendment No. 18 contains a mistake. If your Lordships look at page 5, line 30, it can be seen that we are invited to put in a new paragraph (a) after the word "section" in line 30. However, if that happens it will have a very strange result. It will mean that the words in brackets:
  "but subject to any regulations made under subsection (8)",
  which seem to be an essential part of the present subsection (6), would be postponed until after the new paragraph (a), to which those words in brackets are not relevant.

  507
  Therefore, instead of reading, as Amendment No. 18 does,
  "page 5, line 30, after 'section' insert",
  it should read:
  "page 5, line 31, at end insert",
  and then the new paragraph (a) should be inserted. That makes sense.
  I do not know if anything can be done to correct what appears to be a clear mistake in the Commons amendment. However, it shows the importance of giving time to consider them. I have not been able to go beyond the next page in my considerations so I am unlikely to be making any further constructive and helpful points. I shall be unable to point out any more mistakes, if there are any. Surely this is a mistake which by hook or by crook—if those are not unfortunate words—should somehow be corrected.
  Lord Henley: My Lords, I take the point which my noble friend makes. I spoke to a group of amendments. Perhaps we may take Amendment No. 18 separately when we reach it. I shall then be able to answer my noble friend.
  Lord Mishcon: My Lords, what should we do without the eagle eye of the noble Lord, Lord Renton? I have said that before and I say it again. When the Minister is considering the very important point raised by the noble Lord, and since we are dealing also with Amendment No. 9, because we have all been trying very hard to remove otiose words from statutes, will he tell me why we must insert the word "she" in Amendment No. 9 at page 3, line 43?
  If the Minister will look at page 3 line 43, he will see that it clearly states, referring to the parents of a qualifying child,
  "she shall, if—(a) she is a person with the care of the child; and (b) is required to do so by the Secretary of State, authorise the Secretary of State".
  Why in the name of heaven—if I may ask that without being profane—does one need the word "she" repeated? As an amendment coming from another place to this House that seems to be a little pitiful.
  Lord Renton: My Lords, before the noble Lord sits down, bearing in mind the contents of the Interpretation Act, the word "he" would have been just as appropriate if that was to be inserted.
  Lord Simon of Glaisdale: My Lords, we are dealing also with Amendment No. 5. I desire merely to draw to your Lordships' attention that that is one of the many amendments which add regulation-making powers to the Bill. When it came before your Lordships originally, the noble Lord, Lord Mishcon, counted 92 regulation-making powers. When it left your Lordships' House considerably more bureaucratised, there were 100. We are now adding more. When the matter came before Standing Committee A, the Minister, who conducted the proceedings with great ability, said that things were not as bad as they seemed, referring to the 100-odd regulations. Some were procedural; some had something to do with the formula.
  I wrote to the noble Lord, Lord Henley, on more than one occasion attempting to obtain the Minister's
  508
  computation. I finally released him from answering until the end of the Recess because it never occurred to me that we should be dealing with the Bill today. Therefore he is exonerated from blame for not answering my last letter. However, before we conclude the consideration of the Commons' amendments, I should like to know what the computation is regarding the number of regulation-making powers and whether or not he can give the breakdown that I asked for in my last letter.
  My other point concerns the point raised by the noble Lord, Lord Mishcon. If I may say so the noble Lord, Lord Renton, slightly misapprehended what the noble Lord, Lord Mishcon, meant. It is not a question to be resolved by the Interpretation Act. It is a purely grammatical point. I am glad that it was raised because it was a point that I found puzzling—why, from a grammatical point of view, it was necessary to insert "she" at that point.
  Lord Henley: My Lords, I shall start with Amendment No. 18. I told my noble friend that I would wait until we reached that amendment but I have received advice and the amendment is correct. The last few words in subsection (6) will be the concluding words of the new subsection (6A).
  Lord Mishcon: My Lords, before the Minister sits down perhaps I may say that he deals with the point succinctly but with little clarity. Perhaps he will concentrate on the words in the amendment tabled by another place, which read,
  "Page 5 line 30, after 'section', insert".
  Perhaps the Minister, with myself and the noble Lord, Lord Renton—if I may say that with due respect to the noble Lord, Lord Renton—will look at page 5, line 30. The word "section" is the third word in the line. Does the Minister seriously suggest to the House that we are asked to insert, after the word "section" in that line, right in the middle of subsection (6), subsection (6A) which states,
  "It shall be the duty of the Secretary of State to comply with any request made under subsection (6)",
  and then to continue with the words in brackets,
  "but subject to any regulations made under subsection (8)"?
  Is that the intention?
  Lord Renton: My Lords, before the noble Lord sits down I think one should add that if we were to do that we would have the strange situation of having two subsections followed by some words in brackets which apparently were not intended to be included in any subsection.
  Lord Henley: My Lords, I am sorry, but both my noble friend and the noble Lord, Lord Mishcon, are wrong. The words in brackets move to the end of the new subsection (6A). Subsection (6A) comes in after "section"; the words in brackets follow as the end of the new subsection (6A) and we then continue on with subsection (7). It is absolutely clear and I think that both noble Lords may be a little mischievous in trying to imply a lack of clarity on this occasion.
  Lord Renton: My Lords, before my noble friend continues we must get the position right. If what he says is so, will he explain whether the words in

  509
  brackets at the end of subsection (6) are intended, as would be the result if they come at the end of subsection (6A), to refer only to subsection (6A) and no longer to refer to subsection (6), to which they did appear to refer?
  Baroness Elles: My Lords, perhaps I too may intervene. Surely one of the difficulties is the way in which the amendment has been drafted. The bracket in line 30, which states,
  "but subject to any regulations made under subsection (8)",
  will now read,
  "but subject to any regulations made under subsection (9)".
  It would be much clearer if the amendment had been tabled more fully in order to explain the change. Subsections (7) and (8) will presumably become subsections (8) and (9) under the new format of subsection (6A) becoming subsection (7).
  Lord Henley: My Lords, my noble friend appreciates that the numbering will change but the word s,
  "but subject to any regulations made under subsection (8)",
  will be attached to subsection (6A) rather than to subsection (6) and will refer to what is now subsection (8). Once renumbered, they will obviously be subsections (6), (7), (8) and (9). I believe that is quite clear.
  Perhaps I may turn to the points made by the noble and learned Lord, Lord Simon. The noble and learned Lord said that I had not replied to his last letter. I am not quite sure which his last letter was.
  Lord Simon of Glaisdale: My Lords, I exonerated the Minister because there were so many letters succeeding one another rapidly when I found that we were taking the business today. He is not to blame in respect of the last letter, though I did feel that there was a certain amount of evasion and shuffling in relation to the first two letters I wrote attempting to understand what the Under-Secretary meant in Standing Committee A.
  Lord Henley: My Lords, I totally accept that I am not to blame because I did reply to that letter. I replied to it on 11th July. The noble and learned Lord wrote again sometime just before last weekend and asked why he had not received a reply. For that I am not to blame and can only attach partial blame to the Post Office. Copies of the reply of 11th July were again sent last Friday on the signature of my private secretary.
  Lord Simon of Glaisdale: My Lords, I am obliged to the Minister's private secretary. I received the earlier letter but it crossed a letter of mine.
  Lord Henley: My Lords, I am glad that the noble and learned Lord accepts that I replied to what amount to his last letter. Since then a subsequent letter arrived this morning to which I shall reply in due course. It may be helpful if I read a short extract from the litter of 11th July to the noble and learned Lord, in case he has not read it. It relates to the question of regultion-making powers and whether or not they are procedural.
  "It is always going to be possible to argue that a specific regulation-making power is or is not procedural. It is also the case that some of the regulation-making powers could be
  510
  viewed as both procedural and the formula' or as both procedural and 'information gathering'. As this is so much a question of judgment, I do not think it helpful to count up the powers as you suggest. We are, I would suggest. likely to disagree over any definitions chosen. I am sure you would argue that there would not be merit in a debate on the question of definitions. Such an exercise would necessarily involve a heavy commitment of time on the part of lawyers and administrators here".
  I hope that that will satisfy the noble and learned Lord.
  6 p.m.
  Lord Simon of Glaisdale: My Lords, I am sorry to interrupt the noble Lord again. I was trying to find out what the Under-Secretary meant when he said 20 were procedural. There were then another few which I believe was double counting. One can argue a great deal about was is procedural. I felt that I was being shuffled off in being told that there was a difficulty over definition. I wanted to know what the department's computation was.
  Lord Henley: My Lords, as I said, I do not believe that it would serve any purpose to try to count up the number or decide which were procedural and which were information-gathering. I cannot go beyond what I said in the letter. There remains one last point which was raised by noble Lords concerning this group of amendments. I refer to Amendment No. 9 inserting the word "she". I hoped that the noble Lord, Lord Mishcon, would accept that it improves the grammar and clarifies the point. However, I have obviously failed to do so. I do not accept that the word is otiose.
  Lord Mishcon: My Lords, with the permission of the House, I rise again to say that the noble Lord the Minister is always courteous and endeavours to help the House. I wish that he would not use words like "mischievous" as regards any of us who are trying to help with this Bill and to better it. The way in which we have all participated on all sides of your Lordships' House during the past sessions of the Bill—tribute was paid to us very generously by the noble and learned Lord the Lord Chancellor—shows that none of us deserves criticism of that kind. Our criticism is meant honestly and not to create mischief.
  Having said that, will the Minister explain why it is abundantly clear what the clause means and what is its subject matter—that is to say, the parent—before one uses the word "she", which is repeated in the lines before the amendment? The noble Lord may well say, "Please get a move on because it does not much matter". I do not mind that. I object that the noble Lord does not seek to explain the reason for the amendment coming to us from the other place saying that we should insert the word "she" in order to make the matter clear. The matter is abundantly clear without it and it is tautologous to repeat the word "she".
  Lord Henley: My Lords, I am the first to apologise to the noble Lord for accusing him of mischievousness. I know that he would never behave in that manner in this House. I shall try to remind him if he should ever forget himself and so do. As I said in introducing this group of amendments, they are

  511
  largely drafting amendments to improve the clarity. Obviously, the noble Lord does not agree with me, but I continue to say that it improves the clarity to insert the word "she" before the clause in order to re-emphasise the fact that "she" is the subject of the clause. Obviously the noble Lord does not accept that. On this occasion I believe that the word improves the clarity.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  10 Clause 6, page 3, line 45, at end insert:
  '(1A) The Secretary of State shall not require a person ("the parent") to give him the authorisation mentioned in subsection (1) if he considers that there are reasonable grounds for believing that—

  (a) if the parent were to be required to give that authorisation; or

  (b) if she were to give it,

  there would be a risk of her, or of any child living with her, suffering harm or undue distress as a result.
  (1B) Subsection (1A) shall not apply if the parent requests the Secretary of State to disregard it.'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10. Clause 6 is concerned with cases where the caring parent is in receipt of social security income-related benefits. We have made clear on many occasions that we think it right that a caring parent in this situation should normally co-operate with the child support agency in obtaining maintenance from the absent parent. Not to do so places a heavier burden on taxpayers, many of whom have children of their own to bring up.
  We have also made clear on many occasions that we recognise that there will be cases where it would be unreasonable to require a parent with care to comply with the provisions of this clause. We spent some considerable time on this aspect of the clause when the Bill was with us at an earlier stage in its passage through Parliament. Noble Lords may recall that, when debating at Third Reading what should constitute good cause for parents with care not to comply with the obligations imposed on them by this clause, I said we were considering bringing forward an amendment which provided for exemption from the requirement to co-operate where we were reasonably satisfied that the consequences of seeking maintenance would be a risk of harm or undue distress to the caring parent or her children. I gave an assurance to this House that I would recommend to my right honourable friend in another place that such an amendment should be put before another place if at all possible. I am glad to tell the House that suitable wording was found which resulted in the amendment now before us. At this stage I pay particular thanks to my noble kinsman Lord Russell who took a keen interest in this matter. His contribution has been well-considered and very helpful. I am sure that, although he is still not fully in accord with our aims in this area, he feels that we have moved some considerable way towards meeting some of the concerns he put forward. I commend the amendment to the House.
  Moved, That the House do agree with the Commons in their Amendment No. 10.—(Lord Henley.)
  Earl Russell: My Lords, I welcome the amendment. I thank my noble kinsman for the efforts he has put into bringing it about.
  Lord Renton: My Lords, I too welcome the amendment. I wish to make a couple of short points about it. There have to be reasonable grounds before the Secretary of State decides not to require the person to give him authorisation. The reasonable grounds are amplified by adding the words,
  "if … there would be a risk of her, or of any child living with her, suffering harm or undue distress".
  One can imagine circumstances in which the absent parent threatened that unless the authorisation were withdrawn, she would suffer. He would see to it that she did suffer in some way or another. In other words, he would threaten her. Obviously, it would be wrong to anticipate decisions of the court when we say that there should be "reasonable grounds". No doubt the Government thought about that and satisfied themselves that if there has been a threat from the absent parent, with the fear of distress, that would not be reasonable grounds. It would mean that the Secretary of State was conniving at a threat and that would be wrong.
  The other matter is a purely drafting point. The amendment states,
  "shall not require a person ('the parent')".
  The further references are to the parent. It would have been better drafted if the amendment simply read,
  "shall not require the parent"
  and left out the words "a person". I suppose it is now too late to put that right.
  Lord Mishcon: My Lords, perhaps I may intervene for the purpose of clarifying something which may be of concern to the House. This is a risk which "she" has to run or any child living with her. I have taken it for granted—and I should like the Minister to help me on this point and to tell me if I am right or wrong—that as this is a discretionary power vested in the Secretary of State, any child affected by this decision would be covered because of the Commons Amendment No. 1 that we dealt with earlier. The reason I say that is that the wording of this amendment limits the matter to any child living with "her". We could think of many cases. One such case, for example, is that one of the children of both parents is living with the father. There could be a risk of harm to that child or some damage sustained by that child at the hands of the father if this authorisation is given. I am taking this point for granted which is why no amendment was put down. Bearing in mind that this is an exercise of discretion that the interest of any child will be taken into account, will the noble Lord confirm that I am right?
  Lord Henley: My Lords, the noble Lord is quite right to point out that the amendment relates to any child living with "her". The noble Lord makes a very valid point that it might be another of her children living, as he suggests, with the father and she might fear for that other child's safety. I hope very much that since we have considered the first two amendments

  513
  today that that would be a matter that the child support officer would take into consideration when reaching a decision under this new subsection.
  My noble friend asked about reasonableness, and what kind of evidence one would expect to be produced before the child support officer made his decision on good cause. If there is some corroborative evidence life for the child support officer would be a lot easier, and any corroborative evidence would be welcome. However, the absence of such evidence will not mean that a claim for good cause will automatically fail when we expect that quite often the only evidence available will be the statement of the caring parent. The noble Lord might know of an existing commissioner's decision, which I mentioned at a 1 earlier stage of the Bill, which stated that in the absence of supporting evidence, the claimant's words should be accepted unless it is inherently implausible or inconsistent. That is the approach that will be used here. I beg to move.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  11 Clause 6, page 4, line 1, leave out 'That authorisation' and insert 'The authorisation mentioned in subsection (1)'.
  12 Page 4, line 19, after 'to', insert 'the Secretary of State or'.
  13 Page 4, line 39, at end insert:
  '(12) The fact that a maintenance assessment is in force with respect to a person with care shall not prevent the making of a new maintenance assessment with respect to her in response to an application under this section.'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 11 to 13 en bloc.
  Moved, That the House do agree with the Commons in their Amendments Nos. 11 to 13 en bloc.—(Lord Henley.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  14 Clause 7, page 4, line 40, leave out subsections (1) and (2) and insert:
  '(1) A qualifying child who has attained the age of 12 years and who is habitually resident in Scotland may apply to the Secretary of State for a maintenance assessment to be made with respect to him if—

  (a) no such application has been made by a person who is, with respect to that child, a person with care or an absent parent; or

  (b) the Secretary of State has not been authorised under section 6 to take action under this Act to recover child support maintenance from the absent parent (other than in a case where he has waived any requirement that he should be so authorised).

  (2) An application made under subsection (1) shall authorise the Secretary of State to make a maintenance assessment with respect to any other children of the absent parent who are qualifying children in the care of the same person as the child making the application.'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 14. I spoke to this amendment with Amendment No. 3. I beg to move.
  Moved, That the House do agree with the Commons in their Amendment No. 14.—(Lord Henley).
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  15 Clause 7, page 5, line 17, leave out from 'can' to 'to', in line 19, and insert 'comply with such regulations as may be made by the Secretary of State with a view to the Secretary of State or the child support officer being provided with the information which is required—'.
  16 Page 5, line 23, leave out 'child support maintenance' and insert 'amount'.
  17 Page 5, line 24, leave out from 'parent' to end of line 27.
  18 Page 5, line 30, after 'section', insert:
  '(6A) It shall be the duty of the Secretary of State to comply with any request made under subsection (6)'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 15 to 18 en bloc. I spoke to these amendments with Amendment No. 4.
  Moved, That the House do agree with the Commons in their Amendments Nos. 15 to 18 en bloc.—(Lord Henley.)
  Lord Simon of Glaisdale: My Lords, I should have raised this matter earlier; it concerns Amendment No. 18. I do not understand it typographically, or perhaps grammatically. The amendment states:
  "(6A) It shall be the duty of the Secretary of State to comply with any request made under subsection (6)".
  Subsection (6) states:
  "The child who has made the application (but not the person having care of him) may at any time request the Secretary of State to cease acting under this section".
  There I thought one inserts the words of the new subsection (6A). I may have misread it entirely; but at the moment I do not understand how it works.
  Lord Henley: My Lords, I dealt with this at some length in response to my noble friend Lord Renton and the noble Lord, Lord Mishcon, and I believe my friend Lady Elles. I said that in Clause 6 the words in brackets have been removed and attached to Amendment No 18, that is, the new subsection (6A). The words after 'section' become attached to the new subsection which is subsection (6A). I hope the noble and learned Lord now understands the point that was being made by the noble Lord, Lord Renton, and which I hope I dealt with earlier.
  Lord Simon of Glaisdale: My Lords, I may have misunderstood. But if the noble Lord having looked into the matter is satisfied that that is right, there is no more to be said. If it is wrong, he can still ask leave to move a manuscript amendment.
  Lord Mishcon: My Lords, I should like to say right away that I have looked at this again in the light of the explanation of the Minister. I now see what the clause

  515
  is meant to be. I apologise if in any way I led him to think that I was adamant in feeling that his amendment was wrong.
  Lord Henley: My Lords, I thank the noble Lord, Lord Mishcon. I should like to say to the noble and learned Lord that I am satisfied that the amendment is correct and does not need any form of manuscript amendment. I hope the noble and learned Lord will accept that other noble Lords are satisfied with my explanation.
  On Question, Motion agreed to.
  6.15 p.m.

  COMMONS AMENDMENT
  19 Clause 8, page 6, line 5, at end insert:
  '( ) The Lord Chancellor or in relation to Scotland the Lord Advocate may by order provide that, in such circumstances as may be specified by the order, this section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

  (a) a written agreement (whether or not enforceable) provides for the making, or securing, by an absent parent of the child of periodical payments to or for the benefit of the child; and

  (b) the maintenance order which the court makes is, in all material respects, in the same terms as that agreement.'.

  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 19. I should like to speak also to Amendments Nos. 63 to 68 en bloc. These amendments will allow us the alternatives of either continuing to make child maintenance agreements effective through the courts as consent orders or through the new agency's collection and enforcement powers. They will also allow the agency, when resources are available, to collect and enforce any other form of child maintenance or spousal maintenance where the agency is collecting related child maintenance. These amendments fall into two categories. Amendments 65, 66 and 63, 64, 67 and 68 amend Clause 28 to extend the categories of maintenance which the Secretary of State may arrange to collect.
  The upshot is to allow him to collect, and where necessary enforce, the payment of two different classes of periodical payment. First, he can arrange to collect any periodical payments which are payable for the benefit of children regardless of whether they arise from court orders or binding agreements. Such orders may have been made because the child fell outside the scope of child support maintenance; for example, because the order was made against his stepfather. Secondly, the Secretary of State can arrange to collect any periodical payments which are payable to or for the benefit of people other than children, but only where he is also arranging the collection of child maintenance. The second class is designed so that maintenance which is linked can be collected together. For example, an absent parent may have to pay maintenance to his former wife in her own right as well as pay child support maintenance to her for the benefit
  516
  of their children. It is naturally desirable in terms of efficiency and convenience for all concerned, that both be collected under the same arrangements.
  I should add that the main task of the agency will be to collect maintenance for children who fall within the child support scheme, and it may not be possible for its services to be extended in this way at the outset. I am sure that my right honourable friend the Secretary of State will make such arrangements when he considers it judicious to do so.
  Moved, That the House do agree with the Commons in their Amendment No. 19—(The Lord Chancellor.)
  Lord Renton: Yes, my Lords, I think I do so agree. I must now confess that I have reached the stage in our proceedings when I am entirely without prior preparation. It may well shorten the proceedings, but it is an unhappy state to be in. Paragraph (a) of the amendment states:
  "a written agreement (whether or not enforceable)".
  Why are those words in brackets?
  It reminds me of an occasion years ago when I was making a forlorn attempt to get an agreement enforced. The learned judge, who was a county court judge, said to me, "Mr. Renton, I think I must put to you the question: when is an agreement not an agreement?" He provided the answer by saying, "When it is not enforceable". There may be a simple answer to this for Scotland. Perhaps my noble and learned friend will say if there is. In England, I do not think the answer is so simple. Of course people purport to make agreements; but if they are not enforceable by law, the courts do not enforce them. In the context of this amendment it would be helpful to know what the real effect in law would be in England and in Scotland of the words "whether or not enforceable".
  The Lord Chancellor: My Lords, the purpose of this clause is to give the Lord Chancellor, or in relation to Scotland the Lord Advocate, power to, in effect, limit the application of this section. This section generally prevents the court from exercising any power which it has to make a maintenance order in some circumstances. I believe it is right that the power we have to prevent the section from restricting the power of the court should be as wide as is reasonable. Therefore I think it is wise that the courts should have power to make orders, if we decide that that is required, even where the parties have made a written agreement which is not enforceable. In other words, the mere fact that the parties are content with the agreement is all that matters. It does not matter for the purposes of this provision whether the agreement is enforceable in law.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  20 Clause 8, page 6, line 27, at end insert:
  '(6A) This section shall not prevent a court from exercising any power which it has to make a maintenance order in relation to a child if—

  (a) a disability living allowance is paid to or in respect of him; or

  517

  (b) no such allowance is paid but he is disabled,

  and the order is made solely for the purpose of requiring the person making or securing the making of periodical payments fixed by the order to meet some or all of any expenses attributable to the child's disability.
  (6B) For the purposes of subsection (6A), a child is disabled if he is blind, deaf or dumb or is substantially and permanently handicapped by illness, injury, mental disorder or congenital deformity or such other disability as may be prescribed.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 20. In moving this amendment, I should like also to take Amendment No. 99.
  During earlier discussions of the Bill a number of noble Lords—notably the noble Lords, Lord Carter and Lord Meston—asked about the Government's intentions where extra costs were involved where a child was disabled. I said that we were giving thought as to what was the best way of ensuring the interests of the child who is disabled while being fair to the parent who pays maintenance. This amendment is the outcome. It adds to the cases provided for by Clause 8 whereby the courts will be able to make awards of maintenance for children in certain circumstances in addition to any award of child support maintenance under the formula. It will mean that a person with care of a disabled child will be able to make such an application to the courts as well as being able to ask the child support agency to make a maintenance assessment for everyday living expenses. So a disabled child will not be excluded from the benefits of the new system but there will be the additional ability to apply to the courts for a top-up award. We thought carefully about the mechanism for this. We see the courts as being best placed to deal with the issue of extra maintenance, in special circumstances, for such costs. While there have been varying suggestions about the best way to deal with this important issue, there is widespread agreement that provision for these costs involves a large element of discretion because individual circumstances can vary so much.
  The two amendments are designed to have that effect. I beg to move.
  Moved, That the House do agree with the Commons in their Amendment No. 20.—(The Lord Chancellor.)
  Baroness Elles: My Lords, from these Benches I thank the noble and learned Lord for introducing the amendment. It improves the Bill considerably in the light of what was said at the Committee stage and at other stages of the Bill's progress through this House.
  Earl Russell: My Lords, I should like to associate those on these Benches with everything that the noble Baroness, Lady Elles, said.
  Lord Mishcon: My Lords, so that I shall not be out of it, on behalf of my noble friend Lord Carter, I thank the noble and learned Lord for his explanation of the amendment and the other place for making it.
  The Lord Chancellor: My Lords, I am grateful to my noble friend Lady Elles and to those noble Lords
  518
  who have spoken for supporting the amendment. It has been a difficult matter. We have eventually got the correct solution to it. I am grateful for the support that the amendment has received.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  21 Clause 8, page 6, line 31, leave out subsection (8).
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 21. In moving this amendment, I should like also to take Amendments Nos. 23 and 100.
  The purpose of this new clause is to deal with what happens where a court maintenance order or maintenance agreement exists in relation to a child when the agency makes an assessment in relation to him. The clause replaces subsection (8) of Clause 8, and Amendment No. 21 removes that particular subsection. Amendment No. 100 adds the definition of maintenance agreement to the interpretation clause, Clause 45.
  In particular, the regulations under this clause may provide that the order or agreement shall cease to have effect or be modified to the extent provided by the regulations. That is to ensure that the individual is not expected to pay twice in respect of the same liability.
  The remaining matters dealt with in the new clause are of a technical and procedural nature concerning the relationship between court orders and maintenance agreements and maintenance assessments, and the relationship between the courts and the agency when the provisions of the Bill come into force.
  We said in the White Paper that children who have existing court orders for child maintenance who come within the provisions of this Bill should eventually be able to benefit from the dedicated tracing and assessment services which the agency will provide, including, importantly, the regular review of circumstances. This new clause will provide for that to happen. I commend the amendments and the new clause to the House.
  Moved, That the House do agree with the Commons in their Amendment No. 21.—(The Lord Chancellor.)
  Lord Mishcon: My Lords, the House will appreciate the noble and learned Lord's explanation, especially in regard to Amendment No. 23 which is a very long new clause. I shall not delay the House on this occasion or indeed wrestle with the patience of the noble and learned Lord the Lord Chancellor. However, I can tell him that the profession is a little anxious about the flexibility and to some extent the vagueness of the clause in regard to the regulations that may be made. I am intimating this to the noble and learned Lord as he may wish to take some opportunity of explaining exactly how the regulations are expected to turn out even before they happen. He may find that the profession will be only too anxious to discuss the ambit of this clause with him.
  Lord Renton: My Lords, the new clause in Amendment No. 23 is long, complicated and has considerable implications for the making of subordinate legislation. It is just the situation that arises

  519
  under the clause that makes one regret that one simply has not had a chance to work it through. One appreciates the explanation given by my noble and learned friend the Lord Chancellor. As so often is the case, it was given at a speed faster than my mind can register. There it is. In the circumstances, we are being asked to accept it.
  The new clause is headed:
  "Relationship between maintenance assessments and certain court orders and related matters".
  That, in itself, indicates the very wide scope of the clause and its implications. If my noble and learned friend can give us a really clear idea of how these regulations are likely to work out in practice, I believe that it would be most helpful.
  6.30 p.m.
  The Lord Chancellor: My Lords, I can explain—although I thought I had already done so—the purpose of the clause. It is to give us a power to link the new agency and its powers with existing court orders. The last thing we want is for the same liability to be covered twice. It is a difficult and detailed matter to say which applies. Obviously the agency will not want to take over the whole burden at once. There are a large number of maintenance obligations in question. We have to do this in such a way that the system will continue to work. One of the difficulties of making such changes is that we must do so while the existing system continues to work.
  I readily undertake to ensure that the Government will discuss the details of these regulations with the profession. Obviously, we want to have very wide consultations about precisely how this should be done. My own view at present is that it should happen in stages by reference to some criterion, such as the age of the child. I believe that that would be a reasonable way of doing it because it would give an indication of the period during which an agreement has to run. We are not wedded to any particular method. However, I underline the fact that this is an extremely difficult problem. In principle, what we want to achieve is simple; but the detail of it is quite difficult. I do not think that I can enlighten my noble friend any further on precisely how we shall approach the matter. We shall want to engage in quite detailed consultations on these matters before we make a decision.
  Lord Renton: My Lords, before my noble and learned friend sits down, I should like to express my gratitude for his further explanation. However, when he says that there will be consultations with the profession can we assume that these will not only take place with the Law Society (which is deeply involved) and perhaps with the Bar Council, but also, in particular, with the Family Law Bar Association?
  The Lord Chancellor: Certainly, my Lords; I intend to include them very distinctly "in the profession" in regard to this particular matter.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  22 Clause 8, page 6, line 45, leave out and insert
  'III'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 22. In doing so, I shall speak also to Amendments Nos. 69, 74, 75, 90, 96, 97, 112, 119 and 120.
  These amendments are of a minor and technical drafting character. They came to light as being necessary as a result of the careful examination of the Bill which was made when various other amendments were put forward. I hope that your Lordships will be prepared to accept these amendments on that basis.
  Moved, That the House do agree with the Commons in their Amendment No. 22.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  23 After Clause 9, insert the following new clause:
  Relationship between maintenance assessments and certain court orders and related matters
  '.—(1) Where an order of a kind prescribed for the purposes of this subsection is in force with respect to any qualifying child with respect to whom a maintenance assessment is made, the order—

  (a) shall, so far as it relates to the making or securing of periodical payments, cease to have effect to such extent as may be determined in accordance with regulations made by the Secretary of State; or

  (b) where the regulations so provide, shall, so far as it so relates, have effect subject to such modifications as may be so determined.

  (2) Where an agreement of a kind prescribed for the purposes of this subsection is in force with respect to any qualifying child with respect to whom a maintenance assessment is made, the agreement—

  (a) shall, so far as it relates to the making or securing of periodical payments, be unenforceable to such extent as may be determined in accordance with regulations made by the Secretary of State; or

  (b) where the regulations so provide, shall, so far as it so relates, have effect subject to such modifications as may be so determined.

  (3) Any regulations under this section may, in particular, make such provision with respect to—

  (a) any case where any person with respect to whom an order or agreement of a kind prescribed for the purposes of subsection (1) or (2) has effect applies to the prescribed court, before the end of the prescribed period, for the order or agreement to be varied in the light of the maintenance assessment and of the provisions of this Act;

  (b) the recovery of any arrears under the order or agreement which fell due before the coming into force of the maintenance assessment,

  521
  as the Secretary of State considers appropriate and may provide that, in prescribed circumstances, an application to any court which is made with respect to an order of a prescribed kind relating to the making or securing of periodical payments to or for the benefit of a child shall be treated by the court as an application for the order to be revoked.

  (4) The Secretary of State may by regulations make provision for—

  (a) notification to be given by the child support officer concerned to the prescribed person in any case where that officer considers that the making of a maintenance assessment has affected, or is likely to affect, any order of a kind prescribed for the purposes of this subsection;

  (b) notification to be given by the prescribed person to the Secretary of State in any case where a court makes an order which it considers has affected, or is likely to affect, a maintenance assessment.

  (5) Rules may be made under section 144 of the Magistrates' Courts Act 1980 (rules of procedure) requiring any person who, in prescribed circumstances, makes an application to a magistrates' court for a maintenance order to furnish the court with a statement in a prescribed form, and signed by a child support officer, as to whether or not, at the time when the statement is made, there is a maintenance assessment in force with respect to that person or the child concerned.
  In this subsection—
  "maintenance order" means an order of a prescribed kind for the making or securing of periodical payments to or for the benefit of a child; and
  "prescribed" means prescribed by the rules.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 23. I have already spoken to this amendment and it has been discussed.
  Moved, That the House do agree with the Commons in their Amendment No. 23.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  24 Clause 12, page 8, line 31, leave out subsection (6).
  25 Clause 12, page 8, line 34, at end insert:
  '(7) Any proceedings (other than for an offence) in respect of any act or omission of a child support officer which, apart from this subsection, would fall to be brought against a child support officer resident in Northern Ireland may instead be brought against the Chief Child Support Officer.
  (8) For the purposes of any proceedings brought by virtue of subsection (7), the acts or omissions of the child support officer shall be treated as the acts or omissions of the Chief Child Support Officer.'.
  Lard Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 24 and 25.
  Amendment No. 24 removes an unnecessary subsection. The Secretary of State already has a general power to appoint a chief child support officer in subsection (3). Amendment No. 25 will enable proceedings, such as those for judicial review, to be brought against the chief child support officer in Great Britain where the relevant child support officer who made the decision in question resides in Northern
  522
  Ireland but is dealing with cases from Great Britain. That will make it easier for clients of the child support agency where their case has been dealt with by the child support centre in Belfast.
  Moved, That the House do agree with the Commons in their Amendments Nos. 24 and 25.—(Lord Henley.)
  Lord Renton: My Lords, I hope that my noble friend will forgive my intervention, but I have not had time to work this through. In subsections (7) and (8) of Amendment No. 25 there is no reference to Northern Ireland. Indeed, Clause 12 is not confined to Northern Ireland. If I have understood my noble friend's explanation and the note which preceded it correctly, subsection (8) is intended to apply only in Northern Ireland.
  I am sorry, I apologise to the House. I believe that I now see the position. I hope that I will be forgiven. However, it seemed to me to be an important point. I assume that it will only be in Northern Ireland that the chief child support officer will be the person to be sued rather than the child support officer who is actually dealing with the case, and that outside Northern Ireland it will be that child support officer who will be eligible to be sued.
  Lord Henley: My Lords, my noble friend is in fact wrong. If he looks at the fourth line of Amendment No. 25—that is, subsection (7)—he will see that it states,
  "a child support officer resident in Northern Ireland may instead".
  As my noble friend will know, there will be a number of child support centres. It is proposed that one of these should be in Belfast. However, even if it were not proposed that there should be one in Belfast at present, it may be so in the future.
  It is to cover the situation where the child support officer is dealing with a case in Northern Ireland which relates to Great Britain. The chief child support officer could be sued in regard to a decision taken by a Northern Ireland child support officer. I hope that that explanation is clear to my noble friend.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  26 Clause 13, page 8, line 39, after 'application', insert 'or needed in connection with the collection or enforcement of child support or other maintenance under this Act'.
  27 Page 8, line 40, leave out 'person as may be prescribed' and insert 'persons as may be determined in accordance with regulations made by the Secretary of State'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 26 and 27.
  These amendments are intended to clarify the intentions of Clause 13. Amendment No. 26 makes it clear that the requirement to provide information already in Clause 13 will apply equally to information required for the collection and enforcement of amounts of maintenance, as it will to information required to make an assessment.
  Amendment No. 27 deals with the people who will
  be required to provide information. We intend to specify the circumstances in which people will be expected to provide information, rather than simply list all categories of people who will be required to give information; we think that that would go wider than we intend. The amendment better reflects that intention. I commend the amendments to the House.
  Moved, That the House do agree with the Commons in their Amendments Nos. 26 and 27.—(Lord Henley.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  28 Clause 13, page 8, line 44, after 'may', insert
  —(a)'.
  29 Page 8, line 44, at end insert '; or
  (b) disclose it to the Department of Health and Social Services for Northern Ireland for purposes of any enactment corresponding to this Act and having effect with respect to Northern Ireland.'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 28 and 29. These are purely technical amendments which allow information collected for the purposes of the benefit Acts to be used for the assessment, collection or enforcement of child support maintenance in Northern Ireland. I commend the amendments to the House.
  Moved, That the House do agree with the Commons in their Amendments Nos. 28 and 29.—(Lord Henley.)
  Lord Renton: My Lords, when one looks at Clause 48 one discovers that parts of the Bill are to apply directly to Northern Ireland. However, it is clear that other legislation on this subject will apply to Northern Ireland. Can my noble friend give the House a broad idea of the effect of the words:
  "of any enactment corresponding to this Act and having effect with respect to Northern Ireland"?
  Now under direct rule a great deal of legislation that is applicable to Northern Ireland is carried out by Order in Council. Therefore, may we assume that the reference in Amendment No. 29 will include legislation by Order in Council, even though the word "enactment" is used?
  Lord Henley: My Lords, I believe that I can assure my noble friend that that will be the case. However, if I am wrong I shall write to him to set the matter right. Reciprocal provision exists whereby information collected for benefit purposes in Northern Ireland can be used for child support purposes in Great Britain. That must be included in the corresponding Northern Ireland enactment. I presume that that means by provisions, but if I am wrong I shall write to my noble friend.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  30 Clause 14, page 9, line 8, leave out subsections ( 1) to (3) and insert:
  '.—(1) Where, in a particular case, the Secretary of State considers it appropriate to do so for the purpose of acquiring information which he or any child support officer requires for purposes of this Act, he may appoint a person to act as an inspector under this section.
  (2) Every inspector shall be furnished with a certificate of his appointment.
  (3) Without prejudice to his being appointed to act in relation to any other case, or being appointed to act for a further period in relation to the case in question, an inspector's appointment shall cease at the end of such period as may be specified.
  (3A) An inspector shall have power—

  (a) to enter at all reasonable times—

  (i) any specified premises, other than premises used solely as a dwelling-house; and

  (ii) any premises which are not specified but which are used by any specified person for the purpose of carrying on any trade, profession, vocation or business; and

  (b) to make such examination and enquiry there as he considers appropriate.'.

  31 Page 9, line 26, leave out 'the powers conferred upon him by this section' and insert 'his powers'.
  32 Page 9, line 27, leave out from 'question' to end of line 28 and insert 'any person aged 18 or over whom he finds on the premises.'.
  33 Page 9, line 29, leave out 'powers conferred upon him by this section' and insert 'his powers'.
  34 Page 9, line 33, leave out from 'premises' to end of line 34 and insert 'any trade, profession, vocation or business'.
  35 Page 9, line 42, leave out subsections (7) to (10).
  36 Page 10, line 12, leave out 'under this section'.
  37 Page 10, line 12, leave out from 'produce' to end of line 18 and insert 'his certificate'.
  38 Page 10, line 20, leave out 'person exercising powers conferred by this section' and insert 'inspector exercising his powers'.
  39 Page 10, line 26, at end insert:
  '( ) In this section—

  "certificate" means a certificate of appointment issued under this section;

  "inspector" means an inspector appointed under this section;

  "powers" means powers conferred by this section; and

  "specified" means specified in the certificate in question.'.

  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their
  Amendments Nos. 30 to 39. Amendment No. 32 follows on from an amendment at Third Reading prompted by my noble friend Lady Elles, who asked whether the term "person" meant any child under 18. This amendment seeks to clarify the wording in the subsection. While still ruling out the possibility of anyone under 18 actually being interviewed, we have deleted the absolute prohibition on interviews taking place in the presence of those under 18. This enables, for example, a 17 year-old interpreter or a small child needing supervision to be present.

  525
  We are aware of course that we shall need to ensure that what takes place at the interview is in no way detrimental to the child. We shall therefore be issuing guidance to inspectors to safeguard against this happening.
  Amendments Nos. 30, 31, 33, 34, 35, 36, 37, 38 and 39 are in response to the representations made by the noble Lord, Lord Mishcon, and other noble Lords during the Bill's passage through this House. They are the result of undertakings that I gave to the noble Lord.
  In the majority of visits to employers' premises by officers of the child support agency it will not be necessary for the official to have inspectorate powers but just to have an official identity card. It will be necessary to use these powers only if the employer or employee proves to be unco-operative. We propose to restrict the authorisations to act under Clause 14 to cases where other means of obtaining the necessary information have failed.
  Amendments Nos. 30, 34, 35, 36, 37, 38 and 39 enable inspectorate powers to be used only where there is separate authorisation on behalf of the Secretary of State to be given to a specific officer for a specific employer or self-employed person or premises. This authority will last only for a specified time limit.
  Amendments Nos. 31 and 33 delete words which are unnecessary because of a definition of powers inserted by Amendment No. 39.
  As always, your Lordships took a particular interest in this clause. I am grateful for your contributions in improving the clause so that the legislation is now in line with the reality of what is required practice. I commend these amendments to the House.
  Moved, That the House do agree with the Commons in their Amendments Nos. 30 to 39.—(The Lora Chancellor.)
  6.45 p.m.
  Lord Mishcon: My Lords, the noble and learned Lord was most gracious in the way in which he introduced the amendments. All noble Lords on all sides of the House were most anxious about the intrusion permitted under the Bill as it stood. Now the situation must be dealt with case by case. There must be an ad hoc authorisation and the inspector so authorised by the Secretary of State in any particular case will be furnished with a certificate of his appointment.
  I do not say that this power, even so limited, is not an invasion of personal rights. However, having argued the case during earlier stages of the Bill as effectively as I could, supported as I was by many noble Lords from all parts of the House, I can only accept with gratitude the improved situation that now exists.
  Baroness Elles: My Lords, I too thank my noble and learned friend for the considerable improvement in the drafting of this clause. However, I express anxiety because new Clause 14(4) will allow questioning of a person over the age of 18 even in the
  526
  presence of a child under that age. I know that that can cause considerable pain and suffering to children. I hope that in the light of the amendment that has now been made, strict guidelines will be given to inspectors about how they should proceed in such a situation.
  Lord Simon of Glaisdale: My Lords, I entirely agree that the provision is a considerable improvement on what went before. However, I agree with the noble Lord, Lord Mishcon, that we should not let it appear as though all is now sweetness and light. Extraordinary powers of intrusion are involved in this provision. The test is whether any ordinary creditor has the right—even the restricted right; the final last resort right under this clause—to enter a place of employment to interrogate the employer and fellow workers and to threaten them with prosecution unless they answer the question he asks? The answer is that no private person has any such right. Therefore we are condoning the granting of an exceptional power to a public servant.
  On Report and at Third Reading your Lordships considered what Dicey said about the rule of law: it is the equal subjection of all citizens, whether official or not, to one law exercised in the civil courts. The provision is a grave derogation from that. Although it is only right to pay tribute to the care that has been taken to restrict the intrusion the provision is inconsistent with the traditional view of the rule of law in this country.
  The Lord Chancellor: My Lords, I have to disagree with my noble and learned friend on the point. Perhaps we should leave it at that for the present. I am grateful for the remarks of my noble friend Lady Elles and the noble Lord, Lord Mishcon. I sought to explain why an absolute exclusion is not appropriate, but I agree with my noble friend that this power has to be exercised very sensitively. We shall ensure that that happens. The Secretary of State will be directly responsible to Parliament for any authorisations given under the clause.
  Lord Stoddart of Swindon: My Lords, bearing in mind what we have heard about the citizen's charter, presumably the authorisation will, first, name the officer, who will be obliged to give his name to the factory owner or anyone else. Will the authorisation contain a photograph so that there can be no doubt that the man has authorisation to enter and interview?
  The Lord Chancellor: My Lords, I see no reason to quarrel with the requirements. I do not believe that the clause specifies anything other than what subsection (10) states:
  "Every inspector…shall be furnished with a certificate of his appointment".
  If one is dealing with someone who is unco-operative it will be necessary for the inspector to establish to that person that he is the person appointed. The method that the noble Lord has in mind seems to me the most likely, although recent photographs that I have seen vary somewhat in how closely they depict the person. However, that is probably the best method available and on that basis the noble Lord can feel reassured.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  40 Clause 16, page 11, line 21, at end insert:
  '( ) The child support officer to whom an application under this section has been referred shall not proceed unless, on the information before him, he considers that it is likely that he will be required by subsection (5) to make a fresh maintenance assessment if he conducts the review applied for.'.
  41 Page 11, line 36, leave out subsection (6).
  42 Clause 17, page 12, line 7, leave out 'under paragraph 16 of Schedule I'.
  43 Page 12, line 11, leave out 'under paragraph 16 of Schedule 1'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 40 to 43. With them, I wish to take a large number of other amendments: Amendments Nos. 45, 46, 50, 52, 53, 54, 55, 56, 57, 58, 126, 127 and 130.
  These amendments are designed to make minor improvements and corrections to the reviews and appeals clauses. They are set out in the notes, but perhaps I may go through the main ones briefly.
  Amendment No. 40 seeks to provide that, if a change in circumstances is reported which will not result in a fresh assessment, the child support officer will not have to carry out the whole review procedures. That point was mentioned by the noble Earl, Lord Russell, earlier.
  Amendments Nos. 41, 42, 43, 45 and 46 remove provisions about effective dates which are already adequately covered in Schedule 1. Amendment No. 50 corrects a drafting omission and Amendments Nos. 52 and 53 remove inconsistencies. Amendments Nos. 54 and 55 together make minor drafting amendments to Clause 22(3) to ensure the word "by" applies to all four paragraphs, not just to paragraph (a).
  Amendments Nos. 56, 57 and 58 correct the wording in Clause 23 to prevent someone who has taken no interest in the appeal process at either the child support appeal tribunal or commissioner stage by-passing that process and applying for leave to appeal directly to the Court of Appeal (or, in Scotland, the Court of Session). Amendments Nos. 126 and 127 are minor drafting amendments which recognise the distinct office of regional chairman of the child support appeal tribunals as opposed to other full-time chairmen and specifically allow for the appointment of regional chairmen by the Lord Chancellor.
  Amendment No. 130 provides for a consequential amendment to the House of Commons Disqualification Act 1975 and the Northern Ireland Assembly Disqualification Act 1975. I commend to your Lordships Amendments Nos. 40 to 43, which I shall, with the leave of the House take en bloc.
  Moved, That the House do agree with the Commons in their Amendments Nos. 40 to 43.—(The Lord Chancellor.)
  On Question, Motion agreed to.
  Baroness Elles: My Lords, would it be in order for me to comment on Amendments Nos. 56 to 58 or shall we have the opportunity to raise them when my noble and learned friend reaches them later? I believe he
  528
  took them with Amendments Nos. 40 to 43. Amendments Nos. 56 to 58 concern the right to appeal. I am not in a position to apologise to the House because I have not had time to examine carefully the meaning of the three amendments. They relate to depriving somebody of the right of appeal who has not already been a potential appellant in earlier stages. Can my noble and learned friend elaborate on the kind of people who would be prevented from appealing under the new amendments? Perhaps I am out of order. My noble and learned friend may wish to deal with this later.
  The Lord Chancellor: My Lords, I spoke to these amendments earlier, when it would have been perfectly in order for the noble Baroness to comment. If she agrees, I shall take Amendments Nos. 56 to 58 a little more slowly when we reach them.

  COMMONS AMENDMENT
  44 Page 12, line 13, leave out from beginning to 'that' in line 18 and insert:
  '(5) An application under this section shall give the applicant's reasons (in writing) for making it.
  (6) The Secretary of State shall refer to a child support officer any application under this section which is duly made; and the child support officer shall conduct the review applied for unless in his opinion there are no reasonable grounds for supposing'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 44 and to speak to Amendments Nos. 47 to 49 at the same time.
  We debated the reviews and appeals provisions at some length during the passage of the Bill through this House and we listened carefully to what your Lordships said. I am particularly grateful to the noble Earl, Lord Russell, who put down at Report stage two amendments to the internal review clause. The noble Lord, Lord Henley, wrote to the noble Earl about our proposed changes and these amendments are the result.
  We concluded that there should be a simpler access to a review and that the onus for considering the grounds for review should rest with the child support officer. Amendment No. 44 removes the requirement for applicants for a Clause 17 review to have to state which of a specific list of grounds for review applies to their request. Instead, they will merely have to state in writing their reasons for requesting a review. That is the internal, first stage review, to ensure that matters are correct.
  This amendment also removes the 28-day time limit from the face of the Bill, but we intend to cover this aspect in regulations along with the effective dates of any revised assessment or decision as a result of the review.
  Where there has been a clearly frivolous appeal, the child support officer may refuse to review. This will not affect the applicant's appeal rights, as in Amendments Nos. 47 and 48 we clarify the intention that there should be a right of appeal against the child support officer's refusal to review.

  529
  Amendment No. 49 removes the need to appeal on one of three specific grounds and therefore allows appeals to the child support appeal tribunal on any grounds. This brings the appeal provisions in line with that proposed for the Clause 17 review in Amendment No. 44. I commend the amendment to your Lordships.
  Moved, That the House do agree with the Commons in their Amendment No. 44.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  45 Page 12, line 36, leave out subsection (11).
  46 Clause 18, page 13, line 23, leave out subsection (4).
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 45 and 46. I spoke to these with Amendment No. 40. I beg to move.
  Moved, That the House do agree with the Commons in their Amendments Nos. 45 and 46.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  47 Clause 19, page 13, line 27, after 'officer', insert:
  '(a)'. .
  48 Page 13, line 27, after '17', insert:
  '(b) to refuse an application for such a review,'.
  49 Page 13, line 28, leave out from 'decision' to end of line 32.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 47 to 49. I spoke to these with Amendment No. 44. I commend the amendments to you: Lordships.
  Moved, That the House do agree with the Commons in their Amendments Nos. 47 to 49.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  50 Page 13, line 33, after 'of', insert 'the chairman of
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 50. I spoke to this amendment with Amendment No. 40. I commend the amendment to your Lordships.
  Moved, That the House do agree with the Commons in their Amendment No. 50.—(The Lord Chancellor.)
  Lord Simon of Glaisdale: My Lords, perhaps I may intervene. If my noble and learned friend was in the middle of a sentence, I apologise. I wished to ask what was proposed about an adjournment for refreshments. It is now seven o'clock. We are not halfway through the amendments, although some of the later ones have been spoken to. It is bad enough that your Lordships should be treated as a sausage machine for government legislation. It would be quite intolerable if
  530
  your Lordships were required to work the treadmill in order to operate that machine. I can remember trying a case which concerned the interrogation of a Polish student by the secret police. One of the means of breaking her will—which was unsuccessful—was to deprive her of food while she was being interrogated.
  Your Lordships are already at a disadvantage on this Bill. Those of us who saw the Marshalled List and the amendments only at midday have been unable to scrutinise the provisions in the way that we feel it is our duty to do. If we adjourn now in the usual way, not only can we refresh and replenish ourselves physically but we shall be able to have a quick look through some of the remaining amendments. I should be grateful if we could be told what the proposal is.
  7 p.m.
  The Lord Chancellor: My Lords, I am very much under tutors and governors in these matters. I obviously want to consider the convenience of the House, but I certainly would not like to think that your Lordships were so starved that you could not follow my explanations. I feel that perhaps progress on the Bill may itself be sufficient refreshment to enable us to proceed, at least for some time. Perhaps we may continue for a little and see how we progress. We may be so refreshed by our progress that the problem may disappear.
  Lord Mishcon: My Lords, I think that the hardship expressed by the noble and learned Lord can be put in these words: it is objectionable to be a sausage machine without being able to eat sausages. Apparently that was the complaint that the noble Lord was making, but I feel that it is necessary for us to concentrate on carrying through our debates on the amendments without interruption.
  Lord Renton: My Lords, the noble Lord says "without interruption", but speaking for myself I had to drive 100 miles to get here this morning. I did not come from home but from further away, and I had a very quick lunch. Except for seeing the Chief Whip for a short time, I have been in the Chamber since Prayers. I think that our deliberations would gain if we had a pause for refreshment and to consider some of the notes and amendments that we have not yet reached and which some of us have not had time to scrutinise.
  Baroness Elles: My Lords, I disagree with my noble friend Lord Renton, and I feel rather like the Polish girl who was interrogated: we can still go on despite having no refreshment. I was always taught that the one qualification of being in politics was stamina, so I very much support my noble and learned friend in hoping that we continue with the work before us in this House as speedily as possible.
  Lord Rochester: My Lords, I have another interest to declare in that later this evening I hope to take part in the Third Reading of the School Teachers' Pay and Conditions Bill. There is another item of business to come between this item and that. I hope that that point may be taken into consideration in the decision which your Lordships reach.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  51 After Clause 21, insert the following new clause:
  Child Support Commissioners for Northern Ireland
  '.—(1) Her Majesty may from time to time appoint a Chief Child Support Commissioner for Northern Ireland and such number of other Child Support Commissioners for Northern Ireland as she may think fit.
  (2) The Chief Child Support Commissioner for Northern Ireland and the other Child Support Commissioners for Northern Ireland shall be appointed from among persons who are barristers or solicitors of not less than 10 years' standing.
  (3) Schedule 4 shall have effect with respect to Child Support Commissioners for Northern Ireland, subject to the modifications set out in paragraph 8.
  (4) Subject to any Order made after the passing of this Act by virtue of subsection (1) (a) of section 3 of the Northern Ireland Constitution Act 1973, the matters to which this subsection applies shall not be transferred matters for the purposes of that Act but shall for the purposes of subsection (2) of that section be treated as specified in Schedule 3 to that Act.
  (5) Subsection (4) applies to all matters relating to Child Support Commissioners, including procedure and appeals, other than those specified in paragraph 9 of Schedule 2 to the Northern Ireland Constitution Act 1973.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 51. With this amendment I wish to take Amendments Nos. 102, 110, 111, 128 and 129. These amendments provide for the creation of a chief and other child support commissioners for Northern Ireland to mirror the arrangements for Great Britain. I commend the amendments to the House. I believe it is right that we should make a provision for Northern Ireland in respect of these appeals.
  Moved, That the House do agree with the Commons in their Amendment No. 51.—(The Lord Chancellor.)
  Lord Renton: My Lords, I am sure that all of your Lordships will agree about the substance of the amendments. I am glad to say that the amendments to the schedule, being amendments of previous legislation affecting Northern Ireland, like other amendments to the schedule which we have already dealt with, are done by textual method. But there is one paragraph in Amendment No. 128 which inserts a new paragraph 8 into Schedule 4 which is done by the non-textual method.
  For the sake of the record, I point out that it reads:
  "(a) for any reference to a Child Support Commissioner (however expressed) there were substituted a corresponding reference to a Child Support Commissioner for Northern Ireland".
  In the existing legislation presumably there are not many references to the child support commissioner. One would hope that the textual amendments would be made instead of just stating it in this way. Of course my noble and learned friend the Lord Chancellor has a responsibility with regard to statutes in force, which are much more easily and better compiled from the
  532
  point of view of the user if textual amendment is always made instead of there being non-textual references.
  I hope that my noble and learned friend will be able to deal with that. It may be that expressing it in this way is an instruction to the editors of Statutes in Force that they shall do the textual amendment. But at any rate it is an important point that should be dealt with.
  The Lord Chancellor: My Lords, so far as this is concerned what we are doing is adapting the provisions of Schedule 4 to the Bill to the fact that we are seeking to appoint distinct commissioners for Northern Ireland. Therefore, it is right that Schedule 4 of the Bill should be modified by this provision.
  Perhaps I have to make an occasional deviation from the principle of textual amendment, which I support as a way of doing it, but this is a different point. This is modification of a schedule to the Bill so that in its application to Northern Ireland it will have this effect. Therefore the whole schedule would be printed. If we were printing only for Northern Ireland it might be thought right to put in the Northern Irish provisions, but the modification that we are making here is a modification of this Bill, not a modification of another enactment.
  Lord Renton: My Lords, I thank my noble and learned friend for that explanation. If we had not been so rushed and had had some opportunity for refreshment I might not have made that point.
  The Lord Chancellor: My Lords, it is a particular privilege and refreshment to me that I am able to enlighten the noble Lord as we go through the provisions. I am very grateful to him.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  52 Clause 22, page 14, line 38, leave out 'the ground that the decision was wrong in' and insert 'a question of'. .
  53 Page 15, line 22, leave out 'by' and insert 'of.
  54 Clause 23, page 15, line 48, after 'made', insert 'by'.
  55 Page 16, line 1, leave out 'by'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 52 to 55. I have already spoken to these amendments with Amendment No. 40.
  Moved, That this House do agree with the Commons in their Amendments Nos. 52 to 55.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  56 Clause 23, page 16, line 1, leave out from 'who' to 'was' in line 5.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 56. I have already spoken to this, but my noble friend Lady Elles wished to raise a point on it so I have taken it separately.
  Moved, That this House do agree with the Commons in their Amendment No. 56.—(The Lord Chancellor.)
  Baroness Elles: My Lords, I am grateful to my noble and learned friend for giving me the opportunity to comment on Amendments Nos. 56 to 58. As I understand it from the explanation in Notes on Commons Amendments the effect would be to,
  "prevent potential parties to an appeal who have not taken any part in the appeal to either the child support appeal tribunal or to the child support commissioner being able to apply for leave to appeal".
  That appears to represent a significant change from the previous position. I should be grateful if my noble and learned friend could expand further on that point.
  It may be that by this time of the day one becomes a little dyslexic, but Amendment No. 56 reads:
  "Page 16, line 1, leave out from 'who' to 'was' in line 5".
  I do not understand how that would operate. Who would be deprived of the right of appeal by that change? Such a right appeared in the Bill previously but has now been deleted. I should be grateful to my noble and learned friend for an explanation.
  The Lord Chancellor: My Lords, the purpose of Amendments Nos. 56, 57 and 58 is to modify Clause 23. People who have not taken part at the earlier stage could have immediate access to the court. If they were entitled to take part at an earlier stage but chose not to do o it would be wrong for them to have immediate access to the courts. Their right of appeal would of course be protected as they would still be able to exercise their rights to request a review or to appeal, as appropriate, by taking an interest in the matter earlier.
  As the matter was originally expressed it looked as though one could stand aside from the whole procedure until it reached the courts at the highest level and one could then become involved. That does not seem to us to be appropriate, and the purpose of Amendments Nos. 56, 57 and 58—and I think that they achieve the purpose—is to restrict the appeal rights to those who have been involved in the earlier stage.
  Baroness Elles: My Lords, I am grateful to my noble and learned friend for that explanation which clarifies the point.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  57 Clause 23, page 16, line 6, after 'decision', insert
  'or appeal decision'.
  58 Page 16, line 15, at end insert
  '; and
  "original decision" means the decision to which the appeal decision in question relates'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 57 and 58.
  Moved, That the House do agree with the Commons in their Amendments Nos. 57 and 58.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  59 Clause 24, page 17, line 13, leave out 'applicant' and insert 'child'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 59. The amendment changes the jurisdictional test in Case E so that it refers to the child being habitually resident in Scotland. That seems to be a more appropriate test than the original test. The basic test of the child support agency's competence would appear to be best achieved by applying not to the applicant but to the child.
  Moved, That the House do agree with the Commons in their Amendment No. 59.—(The Lord Chancellor.)
  Lord Renton: My Lords, although this appears a small drafting correction it is an important amendment of substance and we should welcome it.
  The Lord Chancellor: My Lords, I am grateful to the noble Lord. It is indeed an amendment of substance and is, I believe, a considerable improvement.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  60 Clause 25, page 18, line 1, leave out 'satisfied that the case does not fall' and insert 'not satisfied that the case falls'.
  61 Clause 26, page 18, line 27, leave out 'satisfied that the case does not fall' and insert 'not satisfied that the case falls'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 60 and 61. Amendment No. 60 makes a necessary adjustment to ensure that an application may always be made to a court for a declaration of parentage whenever, without such a declaration, Clause 24 would prevent an assessment being made on the assumption that the person alleged to be a parent was in fact a parent of the child in question.
  Amendment No. 61 achieves exactly the same result in respect of Clause 26, which makes corresponding provision in Scotland. I believe that this is an important drafting improvement in both respects and I commend the amendments to your Lordships.
  Moved, That the House do agree with the Commons in their Amendments Nos. 60 and 61.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  62 Clause 27, page 18, line 37, leave out 'It shall be the duty of the Secretary of State to' and insert 'The Secretary of State may'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 62. This is a drafting amendment to rectify an inconsistency. As presently drafted the clause places a duty on the Secretary of State to collect maintenance whenever a maintenance assessment has been made. As your Lordships know, we should prefer the parties to come to a satisfactory agreement for the

  535
  payment of maintenance, if that were possible, rather than for the agency automatically to collect in every case.
  For mandatory applications for parents with care who are receiving benefit the agency would need to be sure that any such private arrangement was secure. For a voluntary application it will be entirely for the party concerned to decide whether to use the agency's collection services. The amendment ensures that that would be possible. This is also an important amendment.
  Moved, That the House do agree with the Commons in their Amendment No. 62.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  63 Clause 28, page 19, line 27, leave out 'under section 27,'.
  64 Page 19, line 28, leave out 'child support maintenance' and insert 'payments under section 27 or subsection (1A),'.
  65 Page 19, line 30, leave out from 'payable' to 'to' in line 33.
  66 Page 19, line 34, at end insert:
  '(1A) The Secretary of State may arrange for the collection of any periodical payments or secured periodical payments of a prescribed kind which are payable for the benefit of a child even though he is not arranging for the collection of child support maintenance with respect to that child.
  (1B) Where—

  (a) the Secretary of State is arranging, under this Act, for the collection of different payments ("the payments") from the same absent parent;

  (b) an amount is collected by the Secretary of State from the absent parent which is less than the total amount due in respect of the payments; and

  (c) the absent parent has not stipulated how that amount is to be allocated by the Secretary of State as between the payments,

  the Secretary of State may allocate that amount as he sees fit.'.
  67 Page 19, line 39, leave out 'subsection (1)' and insert 'this section'.
  68 Page 19, line 42, leave out 'subsection (1)' and insert 'this section'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 63 to 68. I have already spoken to the amendments with Amendment No. 19.
  Moved, That the House do agree with the Commons in their Amendments Nos. 63 to 68.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  69 Clause 29, page 20, line 16, leave out first 'as'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 69. I have spoken to the amendment with Amendment No. 22.
  Moved, That the House do agree with the Commons in their Amendment No. 69.—(The Lord Chancellor.)
  On Question, Motion agreed to.
  7.15 p.m.

  COMMONS AMENDMENTS
  70 Clause 30, page 22, line 20, leave out 'requirement imposed on him by the regulations' and insert 'regulation under this section which is designated for the purposes of this subsection'.
  71 Page 22, line 21, at end insert:
  '(8A) In subsection (8) "designated" means designated by the regulations.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 70 and 71. Without the amendments it would be a criminal offence not to comply with the requirements of a deduction from earnings order or any related regulation. Some of the related regulations will cover minor matters such as the procedure to be followed in complying with an order. The amendments mean that the criminal sanction will apply only to designated regulations and will therefore allow for minor provisions to be excluded. I believe that this also is an important improvement.
  Moved, That the House do agree with the Commons in their Amendments Nos. 70 and 71.—(The Lord Chancellor.)
  Lord Renton: My Lords, I suppose that we have to agree to the amendment, but the noble Lord, Lord Mishcon, may agree with me that it is going rather far with regulations to find that they and not primary legislation are to affect the application of the criminal law and that the wording of regulations will determine whether or not a crime has been committed.
  This is a somewhat indirect method of legislating by regulation as it affects the criminal law. I suppose that we have no option but to accept it, but I feel obliged in passing to say that I hope that it is a practice which we shall not see very often.
  Earl Russell: My Lords, I should like to express my agreement with the point that the noble Lord, Lord Renton, has made. I agree with him that we cannot do much about it now, but the growing tendency to legislate by regulation requires attention.
  The Lord Chancellor: My Lords, the amendment is designed to limit the effect of that provision, so I hope that, pursuant to the principles which my noble friend and the noble Earl have mentioned, they will consider it an improvement. Instead of all the regulations being made the subject of a criminal offence, the regulations would be required to specify that point and we are seeking to target the regulations better and make them more effective.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  72 Clause 31, page 22, line 46, at end insert:
  '(4) On an application under subsection (2), the court or (as the case may be) the sheriff shall not question the maintenance assessment under which the payments of child support maintenance fell to be made.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 72. The amendment prevents a magistrates' court, or in Scotland a sheriff, from questioning the maintenance assessment when considering an application for a liability order. It does not seek to restrict a person's right to challenge decisions made under the Bill but rather seeks to ensure that disputes are heard in the correct forum. A review and appeals mechanism is provided for in Clauses 17 and 19 of the Bill. Either party wishing to challenge a maintenance assessment may use these facilities to do so.
  Moved, That the House do agree with the Commons in their Amendment No. 72.—(The Lord Chancellor.)
  Lord Mishcon: My Lords, if an assessment or the way in which it has been reached is the subject matter of a judicial review, does the amendment, bearing in mind that it refers to "the court", prevent the tribunal dealing with the judicial review from querying the assessment?
  The Lord Chancellor: My Lords, the opening words of the amendment are,
  "an application under subsection (2)",
  which I believe to be an application for assessment for a liability order by the Secretary of State. Therefore, it is not a judicial review application. The operation of the subsection is restricted to an application under subsection (2). It is for that reason that the answer to the noble Lord's question is no.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  73 After Clause 33, insert the following new clause:
  Enforcement in the county courts
  '.—(1) Where a liability order has been made against a person, the amount in respect of which the order was made, to the extent that it remains unpaid, shall, if a county court so orders, be recoverable by means of garnishee proceedings or a charging order, as if it were payable under a county court order.
  (2) In subsection (1) "charging order" has the same meaning as in section 1 of the Charging Orders Act 1979.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 73. In moving this amendment, should like to speak also to Amendments Nos. 77 to 79.
  I am pleased to bring forward this new clause for your Lordships' approval. It fulfils a commitment that I gave in this House on Report and on Third Reading. Your Lordships will recall that there was much discussion of the enforcement measures that would be available to the agency. Concern was expressed from all sides of the House on the effectiveness of those
  538
  enforcement powers in obtaining maintenance payments and minimising the numbers of maintenance debtors who came before the courts for committal proceedings.
  The enforcement powers of garnishee and charging orders can be used by maintenance creditors at the moment where the maintenance order is registered in the county or High Court. Although they are rarely used now, and likely to be used only in the minority of the cases by the agency, we believe that they will provide an effective and useful addition to the agency's enforcement powers. Comparable methods in Scotland are already provided for in Clause 35. They are tried and tested measures in matters of maintenance recovery. A garnishee order once obtained from the court can be used to recover a debt from funds held in the debtor's bank account. A charging order may be used to place a charge on the debtor's property in order to recover a debt.
  There is a consequential amendment to the imprisonment clause which makes it clear on the face of the Bill that, before considering making an application to the courts for committal proceedings, the agency will have to have attempted either garnishee or charging order action, or distraint.
  Amendment No. 78 alters the minimum age of imprisonment to 18. That is to ensure that the Bill is compatible with the provisions of the Criminal Justice Bill which raises the minimum age for such detention from 17 to 18.
  Amendment No. 79 is to make clear that, in Scotland, the Secretary of State may apply for a warrant for the civil imprisonment of a liability order defaulter. Without this amendment, there could be some doubt as to whether it would be for the creditor—that is, the parent with care—or for the Secretary of State to apply to the court for the warrant. Given the arrangements for England and Wales, that would be undesirable.
  I commend the new clause and the amendments to the House.
  Moved, That the House do agree with the Commons in their Amendment No. 73. (The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  74 Clause 34, page 24, line 21, leave out paragraph (b).
  75 Clause 35, page 24, line 31, after 'warrant', insert 'anywhere in Scotland'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 74 and 75. I spoke to these amendments with Amendment No. 22.
  Moved, That the House do agree with the Commons in their Amendments Nos. 74 and 75.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  76 After Clause 35, insert the following new clause:
  Liability orders: enforcement throughout United Kingdom
  '.—(1) The Secretary of State may by regulations provide for—

  (a) any liability order made by a court in England and Wales; or

  (b) any corresponding order made by a court in Northern Ireland,

  to be enforced in Scotland as if it had been made by the sheriff.
  (2) The power conferred on the Court of Session by section 32 of the Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in the sheriff court) shall extend to making provision for the registration in the sheriff court for enforcement of any such order as is referred to in subsection (1).
  (3) The Secretary of State may by regulations make provision for, or in connection with, the enforcement in England and Wales of—

  (a) any liability order made by the sheriff in Scotland; or

  (b) any corresponding order made by a court in Northern Ireland,

  as if it had been made by a magistrates' court in England and Wales.
  (4) Regulations under subsection (3) may, in particular, make provision for the registration of any such order as is referred to in that subsection in connection with its enforcement in England and Wales.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 76.
  This amendment introduces a technical provision which will allow enforcement of a liability order throughout the United Kingdom, regardless of where the order was made. This provision mirrors existing provisions in the Maintenance Orders Act 1950. I commend the amendment to the House.
  Moved, That the House do agree with the Commons in their Amendment No. 76.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  77 Clause 36, page 24, line 44, leave out from 'sought' to 'he' in line 46 and insert—

  (a) to levy an amount by distress under this Act; or

  (b) to recover an amount by virtue of section (Enforcement in the county courts),

  and that amount, or any portion of it, remains unpaid'.
  78 Page 25, line 20, leave out '21' and insert '18'.
  79 Page 26, line 13, at end insert:
  '(14) Where a liability order has been made, the Secretary of State (and he alone) shall be regarded as, and may exercise all the powers of, the creditor for the purposes of section 4 (imprisonment for failure to obey decree for alimentary debt) of the Civil Imprisonment (Scotland) Act 1882.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 77 to 79. I spoke to these amendments with Amendment No. 73.
  Moved, That the House do agree with the Commons in their Amendments Nos. 77 to 79.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  80 Clause 39, page 27, line 40, after 'that', insert
  '(a)'.
  81 Page 27, line 42, at end insert
  '; and
  (b) arrears of child support maintenance are recovered.'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 80 and 81.
  These amendments are concerned with deductions from benefit in respect of child support maintenance. They allow a deduction to be made both in respect of an on-going liability and in respect of outstanding arrears. Deductions in respect of both an on-going liability and arrears are already made in respect of, for example, fuel and water charges. There is an existing maximum level of deduction in respect of arrears. We intend that both deductions will count towards that maximum. I commend the amendments to the House.
  Moved, That the House do agree with the Commons in their Amendments Nos. 80 and 81.—(Lord Henley.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  82 After Clause 39, insert the following new clause:
  Jurisdiction
  '.—(1) A child support officer shall have jurisdiction to make a maintenance assessment with respect to a person who is—

  (a) a person with care;

  (b) an absent parent; or

  (c) a qualifying child,

  only if that person is habitually resident in the United Kingdom.
  (2) Where the person with care is not an individual, subsection (1) shall have effect as if paragraph (a) were omitted.
  (3) The Secretary of State may by regulations make provision for the cancellation of any maintenance assessment where—

  (a) the person with care, absent parent or qualifying child with respect to whom it was made ceases to be habitually resident in the United Kingdom;

  (b) in a case falling within subsection (2), the absent parent or qualifying child with respect to whom it was made ceases to be habitually resident in the United Kingdom; or

  (c) in such circumstances as may be prescribed, a maintenance order of a prescribed kind is made with respect to any qualifying child with respect to whom the maintenance assessment was made.'.

  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 82.
  This new clause provides for the territorial jurisdiction for the child support agency. Your

  541
  Lordships will see that, for the agency to have jurisdiction to make a maintenance assessment, it will be necessary for all the parties to a maintenance application to be "habitually resident" in the United Kingdom. That should provide an easily understood and simple test. Habitual residence is a test that is already recognised within existing family law legislation.
  Where one of the parties is regarded as habitually resident outside the United Kingdom, the agency will not have jurisdiction to make an assessment. Such cases will be, as now, for the courts to decide as the particular circumstances can be complex and the courts, using their discretionary powers, are better placed to deal with them. I commend the new clause to the House.
  Moved, That the House do agree with the Commons in their Amendment No. 82.—(The Lord Chancellor.)
  Lord Renton: My Lords, this is useful clarification, but we should bear in mind that increasingly in the years to come—it has already started—people who are citizens of this country and Her Majesty's subjects of this country will go to live in the EC. Some people already have holiday homes in the EC and spend a good deal of their time there. If, for example, the absent parent, who is the person who should perhaps be made responsible, is in that position, it appears that the child support agency will have no jurisdiction. It may be that it is too soon for us to start legislating for circumstances of that kind, but they are circumstances on which we should invite my noble and learned friend the Lord Chancellor to comment, if he feels in a position to do so, before the Bill leaves the House.
  Baroness Elles: My Lords, I support my noble and learned friend the Lord Chancellor. I should like to ask him a question similar to that asked by my noble friend Lord Renton. I am not sure of the meaning of the phrase,
  "or qualifying child".
  If a child of 17 or 18 is studying at a university on the continent, would the parent qualify as being habitually resident in the United Kingdom even though the qualifying child was no longer resident in this country but was a student on the continent or anywhere else for that matter?
  The Lord Chancellor: My Lords, my noble friend Lady Elles raised the question of whether a student studying abroad would necessarily be classed as habitually resident abroad. The mere fact that one is studying abroad for a period would not necessarily make that person habitually resident abroad. However, if the child in respect of whom maintenance is sought is habitually resident abroad, that would not apply. In other words, the agency would have no jurisdiction to make an assessment. The matter would then arise in the courts which would have the power to make the assessment in that case. If they made an order, they would have the benefit of the reciprocal arrangements within the EC which have recently been set up. From the point of view of convenience and effective administration, this is the right way to go about the matter. The agency should work only if all
  542
  parties are habitually resident within the United Kingdom. Otherwise, the courts should deal with the matter.
  On Question, Motion agreed to.
  7.30 p.m.

  COMMONS AMENDMENT
  83 After Clause 40, insert the following new clause:
  Failure to comply with obligations imposed by section 6
  '.—(1) This section applies where any person ("the parent")—

  (a) fails to comply with a requirement imposed on her by the Secretary of State under section 6(1); or

  (b) fails to comply with any regulation made under section 6(7).

  (2) A child support officer may serve written notice on the parent requiring her, before the end of the specified period, either to comply or to give him her reasons for failing to do so.
  (3) When the specified period has expired, the child support officer shall consider whether, having regard to any reasons given by the parent, there are reasonable grounds for believing that, if she were to be required to comply, there would be a risk of her or of any children living with her suffering harm or undue distress as a result of complying.
  (4) If the child support officer considers that there are such reasonable grounds, he shall—

  (a) take no further action under this section in relation to the failure in question; and

  (b) notify the parent, in writing, accordingly.

  (5) If the child support officer considers that there are no such reasonable grounds, he may give a reduced benefit direction with respect to the parent.
  (6) Where the child support officer gives a reduced benefit direction he shall send a copy of it to the parent.
  (7) Any person who is aggrieved by a decision of a child support officer to give a reduced benefit direction may appeal to a child support appeal tribunal against that decision.
  (8) Sections 19(3) to (5) and 20 shall apply in relation to appeals under subsection (7) as they apply in relation to appeals under section 19.
  (9) A reduced benefit direction shall take effect on such date as may be specified in the direction.
  (10) Reasons given in response to a notice under subsection (2) may be given either in writing or orally.
  (11) In this section—
  "comply" means to comply with the requirement or with the regulation in question; and "complied" and "complying" shall be construed accordingly;
  "reduced benefit direction" means a direction, binding on the adjudication officer, that the amount payable by way of any relevant benefit to, or in respect of, the parent concerned be reduced by such amount, and for such period, as may be prescribed;
  "relevant benefit" means income support, family credit or any other benefit of a kind prescribed for the purposes of section 6; and
  "specified", in relation to any notice served under this section, means specified in the notice; and the period to be specified shall be determined in accordance with regulations made by the Secretary of State.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 83.
  When the Bill was first introduced into this House, it contained in Clause 22 a provision for reducing the benefit of the parent with care in a case where she has failed without good cause to comply with a requirement to authorise recovery of child support maintenance. This clause attracted a good deal of debate in Committee. Your Lordships decided to remove the clause from the Bill following a vote during Committee stage. The arguments have been considered very carefully, as have the views expressed by all those who made representations to us. We have concluded that it would be right to reintroduce provision for a reduction in benefit. But the new clause differs in very substantial respects from the former Clause 22 because we have recognised some of the matters which have been raised.
  We have said all along that, in the same way that absent parents who can afford to pay maintenance for their children should not simply be able to choose to put the burden on the taxpayer, so parents with care have a responsibility to do what they can.
  We have considered very carefully the arguments made by your Lordships and the points put to us subsequently and we see no reason to change our view on the principle. The situation is that what one might call an encouragement—an increase—would be extremely costly because most people will give the necessary co-operation. The difficulty is to devise a suitable sanction. We have made changes in the way in which we suggest that the procedure should work.
  We do not believe that it is right that a parent should be able lightly to choose not to seek maintenance for the child and pass the task of supporting her child to the taxpayer instead. If there are grounds to believe that requiring her to authorise the Secretary of State to seek maintenance puts her or the child at risk of harm or undue distress, it is different. We have already put forward that amendment. That is not the sort of case which this new clause is intended to cover. This clause looks at the position where, after having given the parent every opportunity to reconsider and explain her reasons, it is not considered that there are reasonable grounds to believe that there is any risk of the type envisaged. These are the cases in which we propose that there should be a reduction in her personal benefit. This is important. Therefore I should like to take your Lordships through the new clause, expanding on what we propose to do where necessary.
  Subsection (1) sets out the circumstances in which this new clause will apply; namely, that the caring parent has not complied with the obligations imposed on her by Clause 6 to provide authorisation and information to the Secretary of State to enable him to seek child maintenance from the absent parent.
  I shall say a few words here about how we intend to deal with cases in which caring parents refuse to comply with the provisions of Clause 6. Where a parent with care who is required to give the Secretary of State authorisation to seek maintenance refuses to do so, we intend that there should be a "cooling-off
  544
  period—say, six weeks—during which time she can think over the whole question and decide to comply or provide the Secretary of State with reasons, or to expand on the reasons that she has already given for her refusal. I should just like to make perfectly clear that this cooling-off period occurs before the case is referred to the child support officer to consider action under this new clause. It is not the specified period mentioned in subsection (2) of the new clause, about which I shall say more shortly.
  We have spoken at some length about the types of circumstance which would provide good grounds for non-co-operation; that is, where there is a risk of harm or undue distress to the caring parent or any children living with her if the maintenance application were to proceed. I believe that there can be no doubt that we have responded positively to people's anxieties on the issue of good cause. I should like to acknowledge the help that noble Lords have been able to give us on that matter in focusing more on the consequences than on the actions which might give rise to the reasonable cause.
  If at the end of that six-week period the caring parent has declined to give authorisation and has not provided good reasons, her case will be referred to a child support officer, who may, under subsection (2) of this new clause, give her written notice requiring her either to comply or to give him reasons for not complying within a period to be specified in regulations. It may be useful for noble Lords to know that, for this second period—that is, following the cooling-off period already provided when the Secretary of State considered the issue—we think that a shorter length, perhaps of two weeks, would suffice. This is a further opportunity for her to reconsider and provide further information.
  Subsection (3) requires the child support officer, when this second period has come to an end, to have regard to any reasons provided by the parent. If he considers that there are reasonable grounds for believing that there would be a risk of harm or undue distress to the caring parent or any children living with her if the caring parent were to be required to comply, then under subsection (4) he can take no further action under this section; that is, there will be no reduction in the parent's benefit.
  I should just like to point out that the child support officer is having to make the same sort of judgment as the Secretary of State has to make under subsection (1A) of Clause 6. It is important to emphasise that this ensures that two different people are looking at the question of the reasons for non-co-operation. Only where the Secretary of State is not satisfied that there are reasonable grounds for believing that there is a risk to the parent or her children will he pass the case to a child support officer, and only when this second person considers there are no such reasonable grounds will he issue a reduced benefit direction.
  That direction will be copied to the parent, who will have the right of appeal against the decision of the child support officer to a child support appeal tribunal. The direction will specify the amount and duration of the benefit direction and this will be set out in regulations.

  545
  In Committee, the noble Earl, Lord Russell, and the noble Lord, Lord Mishcon, pressed us to say what were the Government's intentions in respect of the size and duration of the reduction. At the earlier time we were lot able to be too specific in answer to the question. But I can now respond. This is a very difficult area and we have given a great deal of thought to it. We feel that the rate and period of reduction need to be pitched at the minimum level to make caring parents think seriously about non-co-operation without good grounds.
  We propose that the benefit reduction should last for 18 months. For the first six months the reduction will be set at 20 per cent. of income support adult personal allowance—just under £8 a week at current benefit levels. For the final 12 months, the reduction rate will be lowered to 10 per cent. We believe that this level and duration of reduction achieves the right sort of balance to encourage the parent to think about her responsibilities and the benefits of maintenance to the child. I f, in the light of experience, it turns out that this rate and duration of reduction is not pitched at the right level, then powers exist to change it. This is one of the advantages of setting them out in regulations. It is open to the caring parent to comply with the provisions of Clause 6 at any time. If she does so, the reduced benefit direction will be withdrawn.
  In this connection, one has to think not only of the caring parent but also of the person who has the liability for the maintenance. We must be careful not to encourage a situation in which that person can buy off his liability by seeking to buy off the co-operation of the caring parent. It is very important to have in mind that not only is the caring parent involved in this matter but also a person who might wish to seek to buy off his liability: therefore the price must have regard to that as well. It is not just the caring parent whom one has to consider, it is also the possibility of inducement being offered by the person who is subject to the liability.
  To sum up, we believe that the provisions contained in this new clause are both important and necessary. We think it right that the caring parent should think carefully about the advantages to her children of maintenance. It would provide a regular income which can be of considerable help if she wishes to return to work. For caring parents on family credit or disability working allowance there is an immediate advantage, as the first £15 of any maintenance will be disregarded. Before reducing benefit, we shall be giving the caring parent ample opportunity either to comply with Clause 6 or to make representations as to why she should not comply. But ultimately, if the caring parent decides without good reason not to comply, then we feel that a benefit reduction is in order.
  I commend this new clause to your Lordships.
  Moved, That the House do agree with the Commons in their Amendment No. 83.—(The Lord Chancellor.)

  AS AN AMENDMENT TO COMMONS AMENDMENT NO. 83
  83A Line 20, leave out ("may give a reduced benefit direction with respect to the parent.") and insert:
  ("shall notify this to the parent, in writing.
  (5A) A notice under subsection (5) above shall include a statement as to the right of the parent to appeal to a child support appeal tribunal against the child support officer's decision and shall specify the time limit for bringing such an appeal.
  (5B) If the parent decides not to appeal, the child support officer may give a reduced benefit direction only after the expiry of the time limit for bringing an appeal.
  (5C) If the parent appeals a child support officer may give a reduced benefit direction only after the outcome of that appeal has been notified in writing to the parent.")
  Lord Mishcon: My Lords, there are occasions in the history of this House when this Chamber seems to be nearer to the response of the public of this country than does the other place. I should have thought that when this House threw back Clause 22 of the Bill, we did just that. If a poll were taken of the citizens of this land as to whether they wanted the people of the income limit about which we talk to suffer the penalty that has been described by the noble and learned Lord—I shall go into that in a moment—I would guess that about 80 per cent, if not more, of the population would say, "Don't have such a provision in the Bill".
  The other place decided that we were wrong in throwing out Clause 22. Nothing that I can say and nothing that your Lordships can do at this stage can reinstate it. From a practical point of view, we are left with saying, "The power is there. Let us see that it is administered in as fair, just and merciful a way as possible". That is the start of my address to your Lordships in support of Amendment No. 83A.
  Your Lordships will have noticed that in the amended clause to which the noble and learned Lord referred, subsections (5) and (6) provide that, if the child support officer considers that there are no reasonable grounds for thinking that harm or distress will be occasioned, he may give a reduced benefit direction. Under subsection (6), where he gives that direction he shall send a copy of the direction to the parent. There is not a word about giving the parent the opportunity to know in clear and simple language that there is a right of appeal and that the way to exercise that right of appeal shall be in a certain form.
  Therefore the first part of my amendment provides that there shall be a notification in writing and that a notice,
  "shall include a statement as to the right of the parent to appeal to a child support appeal tribunal against the child support officer's decision and shall specify the time limit for bringing such an appeal".
  Your Lordships may consider that it is but elementary justice to bring to the attention of citizens—especially the type of citizens to whom we refer—in clear, lucid, simple terms the right of appeal and the time limit specified by it.
  On many occasions we have been told that there is a similarity between the provisions that are made with regard to this benefit and voluntary unemployment deduction. It is interesting that one of the

  547
  organisations that has done much to help us in our treatment of the Bill has reminded me that the experience in decision-making on voluntary unemployment deductions is not a brilliant one from the point of view of the Ministry involved. The Chief Adjudication Officer's Report for 1989–90 reported that in a third to a half of cases "insufficient evidence" for the decision was cited by officers and a significant proportion of appeals is decided in the claimant's favour.
  The noble and learned Lord referred to a deduction. I shall refer briefly to the amount. I believe that the noble Earl, Lord Russell, will refer to the amount in more detail when he moves his amendment. With regard to a person against whom a prima facie finding has been made and confirmed by another officer (if that procedure were adopted) that she has reasonable grounds for thinking that harm will occur or that she will be caused undue distress, that penalty will fall immediately before the appeal is heard. I am trying hard not to use dramatic language; it does not appeal to your Lordships as a rule. That will mean in many cases literally not having enough food or clothing in the household. That is why I refer your Lordships—noble Lords may think quite fairly—to experience in what is supposed to be another field where decision-making has been upset by an appeal tribunal in many cases.
  Is it therefore not just—I believe that it is the rule in Australia—that on receipt of the notice, an appeal may or may not take place within a limited time, and that the penalty falls only after that time has been expended, if there is no appeal. If there is to be an appeal the penalty falls only after the appeal has been adjudicated. One is entitled to refer to the minority, and not always to the majority. Let us consider the minority of cases where the appeal will be successful, if the argument is that that will be a minority. Ought we to be responsible for the suffering and hardship which is caused until the appeal is heard? The appeal may be successful.
  I seek the spirit that your Lordships showed when throwing out Clause 22 completely in asking for the same support as your Lordships gave in all quarters of the House to a modification to the new clause. It is with some confidence that I leave the amendment in your Lordships' hands. I beg to move.
  Moved, That Amendment No. 83A, as an amendment to Commons Amendment No. 83, be agreed to.—(Lord Mishcon.)
  Earl Russell: My Lords, on behalf of these Benches I warmly support the amendment. It seems to us to be unjust that the penalty should be inflicted when a hearing is still pending and when it might well turn out that that penalty was unjustified.
  I agree with what the noble and learned Lord the Lord Chancellor said. Significant improvements have been made in the clause. But where a single mother is deprived of benefit pending a hearing, the effect of that deprivation may often be to force her compliance which perhaps after an appeal she may not have been held liable to give. Therefore the effect of the
  548
  procedure as laid out could be to diminish the force of the concessions which have already been made. They are real. I shall welcome them at greater length later.
  The trouble is that the Government have altogether underestimated the severity of the penalty that they are imposing upon single mothers. For that reason, it will have a much greater in terrorem effect upon those from whom compliance can be obtained than the Government suppose. The amount of hardship and injustice that will be caused will be much greater than the Government envisage. Finally, I echo entirely what the noble Lord, Lord Mishcon, said about the report of the Chief Adjudication Officer. I have read it. It is a disturbing document. It suggests that we should let the appeal process go its length before any penalty is put in place.
  Baroness Faithfull: My Lords, I congratulate the noble Lord on managing to get the amendment tabled when we only saw the Commons amendments on Friday. How did he manage to do something so clever?
  Lord Mishcon: My Lords, if the noble Baroness wishes me to reply immediately, I accept the compliment at once, but it was not all that clever of me. Having taken soundings, I anticipated what the Commons might do. I therefore read some papers before Friday. On Friday morning when I was told what the Commons amendments had been, I tabled my amendment.
  Baroness Faithfull: My Lords, I thank the noble Lord for his reply. The matter was of great interest to me. I have some questions for my noble and learned friend, who took the Children Bill 1989 through the House. I have dealt with cases where women on their own have applied for their children to be taken into care under the Children Act 1948 because they had no money to feed them. How will the Children Act 1989 and this Bill work together? If a woman's income support is to be reduced and she has two children—a sturdy child who can manage with little food and a delicate child who cannot—and she realises that she cannot care for them because her income has been reduced and applies for them to be taken into care, what will be the position? She is caring for the children but she knows that she cannot continue to do so. It is the bulrushes story all over again. She applies for the children to be taken into care, and is therefore doing her duty by the children if she cannot feed them. Where does my noble and learned friend stand on the two pieces of legislation, which are contradictory? I shall be grateful for an explanation.
  Some of the women whom a number of us have seen find it difficult to explain clearly why they do not want to give the father's name. A woman who has the child as a result of rape is diffident about saying that the child is the child of a man who raped her. That is an extreme case, but there are other cases where the woman is fearful that if she gives the man's name he will treat her cruelly. There is another point. She may know that the man who has fathered her child has abused other children and she may not want that man anywhere near her child because he has a history of

  549
  abuse. He has not been charged, but she knows of it. There are many women who know that a man has abused children but who do not want to go before the court.
  The Children Act 1989 and the Child Support Bill are in juxtaposition. It will be an extraordinarily difficult matter for social security officers and it will be equally difficult for social workers within social services departments. I have great admiration for the drafting of the amendment moved by the noble Lord, Lord Mishcon. Before making up my mind, I should like to know how my noble and learned friend will advise people on the extraordinarily difficult position that is created by the Bill.
  Lord Stoddart of Swindon: My Lords, I am against Amendment No. 83. As my noble friend Lord Mishcon explained, it is probably too late for us to throw it out in its entirety; and so I support Amendment No. 83A. Earlier today we had brought before us a citizen's charter. I wonder whether the women whom we are discussing believe that the charter refers to them. I wonder whether the Prime Minister, when he was mulling over the Citizen's Charter, had read the Child Support Bill. Had he considered the Child Support Bill? Had he considered the implications of Amendment No. 83, because they are serious for those who will bear the brunt of them?
  I have been informed—it may be more, it may be less—that single women may lose up to £8 per week in benefit because, for one reason or another, they refuse to name their child's father. Does anyone here have any concept of what £8 per week might mean to a woman and children living on the breadline? It could mean disaster. If someone is living on £80 a week and loses £8 per week, that means that the child or the woman will starve, and the latter is more likely.
  I hate to be emotional, but one can only treat the issue emotionally. To subject a family on such a low income to a further reduction in its income is nothing short of cruel. If a parent subjected the child to that action voluntarily, that parent might well be accused of child abuse. Here we have the state abusing the child. Whichever way we look at it, it is the child who will suffer. I therefore regret that the Commons sought to put back Clause 22 into the Bill. My noble friend Lord Mishcon is right: in many cases this House may have a better realisation of the consequences for ordinary people of actions taken by Parliament.
  Earlier we debated whether we should discuss the Bill today. Unfortunately the Government decided that they must have the Bill, not 48 hours hence, not a couple of months hence, but today. That was absurd. Indeed, the absurdity of it came to me when I went to my office for a couple of minutes to fetch a letter which I had to post. On my desk was an envelope containing a letter relevant to this debate. Had not gone to my office, I should not have seen the letter. It was from an organisation called Women Against Rape. Many of your Lordships will have heard of that organisation. I have, and I do not agree with everything it says. However, it has a right to be heard because rape and the possibility of rape has much to do with the amendment.
  550
  Because I believe that the organisation has a right to be heard, I shall read out two or three sentences from the letter. First, it states:
  "A government amendment has restored the 'penalty' clause which the Lords removed, making it all the more urgent to stop the Bill rushing through to the Royal Assent".
  I say to Women Against Rape I am afraid that we cannot do that. The Front Benches have agreed that we must rush it through. The letter goes on:
  "Mothers will be forced to re-establish connections with men they may have escaped from, and if they refuse, they can lose £7.93 a week from already inadequate benefits".
  It goes on to state:
  "The Law Lords are at this moment considering an Appeal Court ruling making rape in marriage illegal. In their comments on this case, they made clear that they want to oppose this rape, and consider that in the twentieth century it cannot be defended. Yet the Child Support Bill promotes rape in marriage".
  That is the view of Women Against Rape about rape in marriage.
  The letter goes on to state that the new amendment will not only increase poverty, but will put both women and children in danger of rape, violence and other assaults. The letter states:
  "The government say that women who have good reason to fear violence from the man may be exempt from penalty for 'non-co-operation'. But they will have to make their case to the Child Support Agency—and, inevitably, reveal the father's identity. Once the information is given, who can count on the Agency to respect their fears? Many will lose benefit rather than risk it".
  Finally, it states:
  "Another circumstance where women would not be forced to claim from the father is where the child has been conceived as a result of rape. But to benefit from this concession women would be required to tell officials about rape and assault which many cannot speak about to anyone".
  We know that that is true.
  Therefore, at least Women Against Rape has had a hearing, although it is not the hearing that it should have had. I hope that the House will take into account what the organisation said. I hope also that my noble friend's amendment will be supported and passed this evening.
  8 p.m.
  Lord Simon of Glaisdale: My Lords, your Lordships have heard a number of moving and well informed speeches. Having heard them, I fear that what I am about to say will sound cold-hearted and arid.
  The first matter which we must consider is the background to the clause. The original Bill contained Clause 22 which was highly objectionable to your Lordships. One is bound to ask why it was in the Bill at all. The answer is that in its original form it was entirely characteristic of the Bill.
  However, your Lordships removed it. The Government now put forward a new clause as an alternative. The noble Lord, Lord Mishcon, was inclined to say that there was nothing we could do about that other than to amend it. I venture to disagree. Your Lordships could throw out that new clause and the Government will then have to decide whether they really want the Bill as much and as urgently as they say. They must decide whether they are therefore prepared to accept your Lordships' rejection.

  551
  On the other hand, they may seek to reinstate the clause. There is plenty of time for that—a whole week. Those matters do not take very long going along the corridor. When I say that I venture to disagree with the noble Lord, Lord Mishcon, I am strongly in favour of his amendment to the new clause if we have to put up with it.
  There is one other matter I should like to mention about the parliamentary background. This is one of the few issues which came before your Lordships when the House was full at a reasonable hour. We had had that experience before when discussing the Courts and Legal Services Bill. Noble Lords who wanted an amendment to be considered withdrew all the earlier amendments so that, to the Government's consternation, a particular amendment came before your Lordships when the House was full. The matter was fully debated and the Government were defeated.
  So it was on this occasion. The Government fought valiantly with all the dialectic skills which the Government's Ministers command. Nevertheless, a full House, listening to the issues, had no doubt that the original Clause 22 was quite intolerable and it was removed.
  Having said that about the background, on the main point, there are two contestants with which your Lordships are concerned: one is the child support officer, representing the Secretary of State and battling on behalf of the Treasury—there is nothing wrong in that but the interest is that the money shall be secured; on the other hand, there is the parent. There are two conflicting interests. Who decides? Is it consonant with our system and concept of justice that the issue is decided by the child support officer? And yet that is the case under the new clause.
  It seems to me at the very least that one can accept is what the noble Lord, Lord Mishcon, proposes: that there should be an appeal. I should like the issue to go to a court because a court is the proper body to decide what is good cause for withholding information. It is a question which courts in this country, in Scotland and all over the common law world decide every day. The courts should decide that and not one of the interested parties; namely, the child support officer.
  I should like the issue to be decided by a court. However, the next best thing is to allow an appeal. Again, I should like the appeal to be made to a court of law but faute de mieux to a child support tribunal. That was one of the bureaucratic additions imposed on the Bill during its passage through your Lordships' House. At least that is something. The child support officer's word is not to be final in his own interests. There is to be the right of appeal, albeit to an administrative tribunal; at any rate, it is an appeal to an institution with some neutrality.
  I desire to add only two short points which are nothing like as important as the issues I have been venturing to air before your Lordships. One relates to a phrase which fell from the lips of my noble and learned friend; that is, "failure to co-operate". The phrase occurred also in a letter from the noble Lord, Lord Henley, when I corresponded with him in regard to interim assessments.
  552
  It is said that a person brings the evil on himself by failure to co-operate; that means, failure to give the information that the child support officer desires. Perhaps your Lordships have heard the phrase before. We have read it repeatedly. Even the secret police excuse their actions by saying that the unfortunate man brought it entirely upon himself by failure to co-operate; that all he needed to do was to answer the questions put to him.
  My other point is that I cannot see that the new clause covers the case of a woman who says, "I cannot give you the name because I do not know it", either because she has been promiscuous at the time of conception or because she genuinely does not know the name of her paramour. So far as I can see, the child support officer must have regard to any reason given by the parent that there are reasonable grounds for believing that injury will come to the children. What about reasonable grounds of sheer ignorance? Is that covered? Perhaps my noble and learned friend will enlighten your Lordships on that point.
  As I said earlier, when Clause 22 was debated it was before a full House. Unfortunately this matter is being debated before a fairly empty and quite famished House. In those circumstances I do not know whether the noble Lord, Lord Mishcon, will press his amendment to a Division. If he does I shall have not the slightest hesitation in supporting him in the lobby.
  8.15 p.m.
  Baroness Elles: My Lords, I apologise to the noble Lord, Lord Mishcon, that I did not hear everything he said in support of his amendment. Unfortunately I was called urgently to the telephone. Judging by the atmosphere and the kind of things he was likely to say, I support his intention.
  First, it is highly regrettable that another place which purports to represent the people of this country failed to support the decision of the House of Lords in abolishing Clause 22. Anybody who has done voluntary social work for many years—including myself—will know perfectly well, as well as the noble Lord, Lord Stoddart of Swindon, what a 10 per cent. reduction of a minimum income support benefit will mean to a woman with a child or children to support. I find that intolerable.
  Further, the woman may attempt to obtain part-time work. Anybody who has done that at any stage of their lives knows that a woman can never obtain more than 75 per cent. of the male earning wage. That too should be taken into account.
  With the permission of your Lordships, I should like to make a number of other points. The first relates to the question of the child support officer. During the Committee and earlier stages of the Bill I was able to bring to your Lordships' attention decisions made by child support officers acting on behalf of the Department of Social Security which, to say the least, did not act on reasonable grounds in dialing with individual cases before it. That evidence came from the CAB which is a reputable organisation throughout the country. The wording used by child support officers horrified me.

  553
  The fact that child support officers can make the decisions that they are asked to make is totally subjective. Are the Government to set up guidelines which will restrict them in making those decisions? There is no mention in the clause of regulations which will define the reasonable grounds on which a child support officer may make a decision. That in itself is dangerous because different decisions may be given throughout the country by different child support officers as to how they regard the interpretation of "reasonable grounds".
  My other point which is fundamental and anathema to the clause is that it is a grave miscarriage of justice. Who is the person at fault? It is the man who has failed to maintain. The idea that one can insert a clause in a Bill and erect a kind of Aunt Sally and say, "Failure to comply therefore, bash, your benefit is reduced", is an extraordinary way to bring justice to the country and particularly to the most unfortunate of people—I will not call them deserving but certainly they are the people in the lowest category of incomes, support, happiness and home.
  The introduction of the clause by another place is lamentable and not worthy of the kind of welfare which on the whole this country is praised for maintaining. It is a grave dereliction of the kind of thing we should be doing in this House. Once again, I insist that it is a miscarriage of justice. Why should a woman who has been deserted and been left with her children be made to commit, so to speak, a crime which carries a penal financial sanction when the culprit is the man who has failed to maintain and provide money for her support and that of her children?
  Finally, I ask my noble and learned friend to take into consideration that in Australia—where this form of support is arranged through the Inland Revenue or the taxation authorities—the cases where women have failed to give information are very few indeed. I wonder whether my noble and learned friend can give an undertaking that, where a child support officer can obtain legitimate information from the Inland Revenue or any other source, that will be taken into account before the child support officer makes a decision. Perhaps I failed to read the amendment carefully, but I see nothing in the clause which obliges the child support officer to discover information concerning the culprit—the man who has failed to pay—or whether there is any way in which he can be traced without that information being given by the woman. If there is, I find it even more intolerable that a woman in that position should be penalised in the way the clause proposes.
  Lord Houghton of Sowerby: My Lords, while I share the indignation of my noble friend Lord Stoddart of Swindon, the best that I can do is support my noble friend Lord Mishcon. There is no time to cover the whole of the ground again. We must make the best of the situation which is in our hands for decision. I find the approach of the Government to this matter unspeakably mean.
  In the philosophy of the Government and in the terms of this Bill, when we put children first we are putting first the need to extract money from the absent
  554
  parent in support of his child. That is what we are thinking of and nothing beyond it. We are not considering the child as a person or the family as a whole. We are considering what we can extract from an absent parent even though the mother of the child feels unable to co-operate, if that is the word, or disclose the reasons why she would feel fear and acute distress were she to give the information that the income support officer can follow up.
  If we have to find a reason for accepting the position where non-disclosure can be a reason for continuing the existing system, the most we should seek is an expression of fear and apprehension in terms and from a person whom the child support officer can accept in good faith. To expect a woman to deploy reasonable grounds for fear and apprehension is asking for the disclosure of a state of mind. One's mind boggles at the kind of interrogation that a bureaucratic income support officer might apply to a woman in order to probe whether her grounds were reasonable. I find it abhorrent and unspeakably mean. For the Government to proceed on the lines they suggest is despicable. I hoped that when we got rid of Clause 22 we would never see its like again.
  If some excuse is necessary then what I have outlined is as far as we can go. Nevertheless, we have before us an amendment and it is the least that we should accept. It has been stated in reasonable terms. My noble friend is far too courteous and reasonable with your Lordships' House on occasions. I admire him greatly, but I would admire him more if we could see more of his fire and indignation when confronted with a situation of this kind.
  I hope that we shall press my noble friend's amendment. We cannot let it go on the terms submitted by the noble and learned Lord the Lord Chancellor in support of the main amendment. I cannot understand what type of mind is applied to this problem in the terms that we have before us. I can only suppose that the provision comes from people who have never experienced this kind of situation and who cannot possibly understand it. The problem is there. Such a situation is very deeply ingrained in the mind of a woman. If we are concerned with the welfare of the children that lies in accepting the judgment of the mother in the circumstances. It is not putting children first to pursue the matter to the extremes provided for in the main amendment. Therefore, I hope that we support my noble friend's amendment.
  Baroness Faithfull: My Lords, I apologise for rising again. When my noble and learned friend comes to reply I hope that he will answer the questions that I asked him. However, I forgot one. If a woman names a man and he is pursued, found and says that he was not the father of the child, while knowing perfectly well that she was perhaps living with one or two other men, who is to say who is the father of the child? If she persists in saying that he is and he persists in saying that he is not, then what happens?
  The Lord Chancellor: My Lords, as that question is so fresh in my mind I shall deal with it first. There are provisions in the Bill for determining these matters, if necessary, by a declaration of parentage. It is obvious

  555
  that what the woman says may or may not be correct. There is a question as to whether or not a declaration of parentage should be taken. Much will depend on the nature of the evidence available on both sides of the question. There is no situation in which a man will find himself saddled with a responsibility of this kind except in pursuance of a court declaration that he is the father of the child. Declarations of parentage are mentioned specially and are matters for the court and not the agency.
  The noble Lord, Lord Stoddart, wondered if the Prime Minister, in studying his proposals for the Citizen's Charter, was aware of these proposals. The answer is, yes; they are perfectly consistent with the Citizen's Charter. My noble friend Lady Elles put her finger on the point that the person who is in default in the case we are dealing with is the absent parent. We have to take reasonable steps to seek to work out that liability. The purpose of the clause is not to penalise the woman at all.
  Lord Stoddart of Swindon: My Lords, that is what it is doing.
  The Lord Chancellor: My Lords, for the moment I am talking about the purpose of the clause, which is to get the necessary information. In the nature of things the Secretary of State is unlikely to have the information unless he gets it from the woman. If he has the information in some other way (one of your Lordships has suggested that that might happen) then he certainly will not seek it in the way which we are now considering. If he has the information already, he is not going to pursue the woman for the sake of doing so. He is pursuing her purely for the purpose of obtaining information which is necessary in order to pin the proper responsibility on the person who has that responsibility.
  Baroness Elles: My Lords, I am grateful to my noble and learned friend for giving way. Does he agree that, where a child support officer asks a woman for information and she fails to give it for one reason or another, that officer can attempt to get information from the Inland Revenue or any other source before continuing the course set out in the clause?
  The Lord Chancellor: My Lords, my noble friend is well aware that there are many difficulties in getting information from the Inland Revenue. The noble Lord, Lord Houghton of Sowerby, would be the first to elaborate on that proposition if required. The purpose of the agency and of the inspector's powers that have been mentioned, is to get information in some circumstances. The nature of the information required is such that, if it is available in some other way or through some other method, obviously the Secretary of State will use the other method. We are only concerned here with the situation where it is necessary to get the information from the mother.
  My noble and learned friend Lord Simon of Glaisdale asked about the situation if the parent has not got the information. Clause 6 is the basic clause. Subsection (7) makes it quite clear that she,
  556
  "shall, so far as she reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the child support officer being provided with the information which is required to enable the absent parent to be traced".
  That is the principal point. If for some reason such as that suggested by my noble and learned friend she does not have the information, there is no question of her being pursued. The situation is where the caring parent is refusing to give information which she may be reasonably required to give in the circumstances. I used the phrase "co-operating with the child support officer". That seems to be a perfectly reasonable phrase in the circumstances of this case.
  There is an appeal to the tribunal and from the tribunal to the commissioner, with the leave of either. There is an appeal to the court on a question of law with the leave of either the commissioner or the court. Therefore, there is a complete system of appeal to the court on matters of law that might arise from decisions of the child support officer. The main matter in Amendment No. 83A, which is what we are properly considering now—
  Lord Simon of Glaisdale: My Lords, my noble and learned friend has just pointed out that there is appeal to a court on a point of law. However, whether there is a good cause is surely not a point of law, but a question of fact and degree.
  8.30 p.m.
  The Lord Chancellor: My Lords, I do not know that I should like to affirm that proposition without qualification. The question of whether a given set of facts amounts to a good cause may be a question of law. Certainly I have seen decisions on questions of law in the courts that closely resemble that kind of question. In any event, that is the situation.
  The question is whether the decision of the child support officer should contain a statement of a right of appeal. That is the ordinary practice, and it is the practice that will be followed here. Therefore, the first part of the noble Lord's amendment is not necessary because in all benefit decisions a statement is contained in the decision about the nature of the right of appeal and to whom an application by way of appeal is to be made.
  Lord Mishcon: My Lords, that will not be in the Act. One does not know whether another government will decide that, as it is not in the Act, it is not necessary to carry out what is a procedure elsewhere. Secondly, does not the noble and learned Lord agree that it certainly cannot do any harm? If this is the normal procedure, why is it harmful to insert it in the Bill?
  The Lord Chancellor: My Lords, the ordinary rule has stood on regulations in respect of the other benefits. I see no reason why that would not be an appropriate way of dealing with this situation.
  Regarding the second part, the question of deferment, when the decision is made to reduce benefit it comes only after two periods—one period of six weeks and one period of two weeks—during which the caring parent has ample opportunity to make

  557
  representations as to why she should not have to comply with the obligations imposed under Clause 6. The length of time we are giving the caring parent to consider her decision, plus the fact that both the Secretary of State and the child support officer have to be sure that there are no reasonable grounds for believing that harm or undue distress will occur to the parent or her children if the maintenance application were to go ahead, demonstrates that we see the benefit reduction as very much a matter of last resort.
  My noble friend Lady Elles referred to the position in Australia. The noble Lord, Lord Mishcon, did so also. It is true that in Australia the decision does not take effect until after an appeal has been decided. However, one has to think of the whole system. I understand that in Australia the benefit is lost altogether. That may well be an explanation of why, as my noble friend says, there are very few cases in Australia where people fail to give the information. Therefore, it may well be that a fairly solemn sanction of that kind has proved in Australia to be very effective without the need for actually using it. That is an important aspect of this matter. One must show that Parliament intends that, subject to the safeguards, the decision, which is subject to appeal, should be effective when it is taken. I am all in favour of the safeguards. We have described them in some detail, with help from the noble Earl, Lord Russell, and others, in the amendments that we have already dealt with. If an appeal is successful, the money is repaid. In this amendment we are not dealing with the amount. We shall come to that in due course. For the sake of good order, it would be right to discuss these amendments—Amendment No. 83A and the others—in the proper order. I shall come to that when and if these later amendments are moved.
  Lord Winstanley: My Lords, perhaps the noble and learned Lord will allow me to intervene for just one moment. Is the noble and learned Lord being wholly fair when he tells us that there is already a considerable period during which the person can consider the appeal? First, the noble and learned Lord gave a period of six weeks, and then a fortnight. Surely the six weeks was the so-called cooling off period to which he referred earlier. That six weeks precedes the decision of the adjudication officer. Surely someone cannot appeal in advance of the decision. Therefore there is only a fortnight—not eight weeks—as the noble and learned Lord appeared to tell us.
  The Lord Chancellor: My Lords, both the six weeks and the fortnight are before the appeal, the purpose being that the Secretary of State will be considering the situation. The cooling off period of six weeks is allowed before that decision is taken; there is a further fortnight before the child support officer can decide.
  I do not wish to mislead anyone. Both of these periods are before the decision is taken. I am saying that we have allowed the state of affairs in any event to run on for those eight weeks. I believe that that has to be taken into account. The amendment of the noble Lord, Lord Mishcon, is seeking, even after the Secretary of State has decided to go ahead, and the child support officer has decided on the situation put
  558
  before him, that then—even if the child support officer has decided that the benefit reduction should be made—no effective reduction is to take place until an appeal period has elapsed, or an appeal has been taken. One can see that that is the kind of situation which might very well encourage appeals. If there is substantial benefit in an appeal, it will encourage one, whereas, as my noble friend has pointed out, the situation is one in which one would want the system to operate properly. What we have proposed in these amendments, with the safeguards to which I referred earlier, is a proper basis for giving justice to people in these circumstances.
  I have one final point. The noble Lord, Lord Houghton of Sowerby, spoke as if those of us who are proposing these matters do not understand at all the situation. I think I do understand the situation; I understand the delicacy of it. We have tried to construct a system which recognises that delicacy at the same time as recognising that there are some people in the world, as my noble friend Lady Elles said, who would like to pass the responsibilities which are naturally theirs to other people. We have to strike a reasonable balance between these two. That is what these amendments seek to do. I well understand the difficulty in which women can find themselves in that situation. We have sought to provide very full and proper safeguards for them. I believe that the amendment that the other place has passed, taken with the earlier amendments to which I referred, provide that balance.
  I invite your Lordships not to accede to Amendment No. 83A, notwithstanding the courteous, gentle, or possibly even fiery, way in which it was laid before us.
  Lord Mishcon: My Lords, I do not think that any of those adjectives will apply to what I am now going to ask the noble and learned Lord before he sits down. It is a very short question.
  Can the noble and learned Lord indicate the maximum period that is likely to occur—and indeed the minimum period that is likely to occur—before an appeal is determined, during which time, as he knows, under the amendment brought from the other place the woman concerned will suffer the penalty week by week?
  The Lord Chancellor: My Lords, it is difficult to give either a maximum or a minimum period. Appeals under this provision would be appeals that would merit being taken rather specially; in other words getting expedition for them. However, the appeal process has to be a fair one and therefore involve a certain amount of time. The noble Lord is assuming that the decision appealed from is, on balance, likely to be incorrect when he makes the assumption that it is right that the appeal should be treated as if it were successful in the period until the appeal decision is ultimately taken. I believe that the money is secure since it is with the state. There is no way in which the money will be recoverable. We are not seeking to do that, and the noble Lord's amendment does not seek to do that. We are not seeking to recover the money

  559
  by way of arrears if the appeal is unsuccessful. I believe that the balance that we have is better in the circumstances.
  Lord Mishcon: My Lords, if it were one case in four, I believe that your Lordships would want to take the view that an injustice would be done by deducting this £8 plus per week from this little family week by week until the decision had been reached. The figures which I gave concerning the adjudication officer in another instance showed that it was a success rate of certainly more than one in four. I should like to test the opinion of the House.
  8.40 p.m.
  On Question, Whether Amendment No. 83A, as an amendment to Commons Amendment No. 83, shall be agreed to?
  Their Lordships divided: Contents, 51; Not-Contents, 55.

  Division No. 1

  CONTENTS

  Airedale, L.

  Llewelyn-Davies of Hastoe, B

  Avebury, L.

  Macaulay of Bragar, L.

  Beaumont of Whitley, L.

  Mackie of Benshie, L.

  Birk, B.

  Mallalieu, B.

  Carmichael of Kelvingrove, L.

  Masham of Ilton, B.

  Clinton-Davis, L.

  Mason of Barnsley, L.

  Cocks of Hartcliffe, L.

  Milverton, L.

  David, B.

  Mishcon, L.

  Dean of Beswick, L.

  Monkswell, L.

  Desai, L.

  Morris of Castle Morris, L.

  Donoughue, L.

  Nicol, B.

  Dormand of Easington, L.

  Peston, L.

  Ennals, L.

  Pitt of Hampstead, L.

  Faithfull, B.

  Prys-Davies, L.

  Flowers, L.

  Rea, L.

  Graham of Edmonton, L. [ Teller. ]

  Rochester, L. [Teller.]

  Russell, E.

  Grey, E.

  Shackleton, L.

  Halsbury, E.

  Simon of Glaisdale, L.

  Hayter, L.

  Stoddart of Swindon, L.

  Hollis of Heigham, B.

  Tordoff, L.

  Holme of Cheltenham. L.

  Turner of Camden, B.

  Houghton of Sowerby, L.

  White, B.

  John-Mackie, L.

  Williams of Elvel, L.

  Kirkhill, L.

  Winstanley, L.

  Kirkwood, L.

  Winterbottom, L.

  NOT-CONTENTS

  Arran, E.

  Hooper, B.

  Astor, V.

  Howe, E.

  Auckland, L.

  Huntly, M.

  Beloff, L.

  Johnston of Rockport, L.

  Belstead, L.

  Kitchener. E.

  Blatch, B.

  Long, V.

  Boardman, L.

  Mackay of Ardbrecknish, L.

  Brabazon of Tara, L.

  Mackay of Clashfern, L.

  Carnock, L.

  Marlesford, L.

  Cavendish of Furness, L.

  Mersey, V.

  Cochrane of Cults, L.

  Montgomery of Alamein, V.

  Constantine of Stanmore, L.

  Mottistone, L.

  Craigmyle, L.

  Oxfuird, V.

  Cumberlege, B.

  Palmer, L.

  Davidson, V. [Teller.]

  Pearson of Rannoch, L.

  Denton of Wakefield, B.

  Quinton, L.

  Elliot of Harwood, B.

  Rankeillour, L.

  Elliott of Morpeth, L.

  Reay, L.

  Ferrers, E.

  Renfrew of Kaimsthorn, L.

  Flather, B.

  Romney, E.

  Glenarthur, L.

  St. John of Bletso, L.

  Gray of Contin, L.

  Seccombe, B.

  Henley, L.

  Strathmore and Kinghorne, E

  Hesketh, L. [Teller.]

  Thomas of Gwydir, L.

  560

  Trumpington, B.

  Wise, L.

  Ullswater, V.

  Wyatt of Weeford, L

  Waddington, L.

  Young, B.

  Wade of Chorlton, L.

  Resolved in the negative, and Amendment No. 83A disagreed to accordingly.
  8.47 p.m.

  AS AN AMENDMENT TO COMMONS AMENDMENT NO. 83
  83B Line 40, leave out ("such amount, and for") and insert ("an amount not exceeding such amount and for a period not exceeding")
  Lord Mishcon: My Lords, the best way to achieve what my arithmetic tells me is another four or five votes in order to succeed on this amendment is to be brief. There may have been some diversion of opinion in regard to the last amendment which I believe there should not be on this amendment. The amendment states that there shall be no fixed penalty and that there shall be a discretion to make the penalty a maximum and to inflict a penalty of below the maximum in certain cases. All that one does by this amendment is to grant a discretion.
  .Your Lordships will remember that the granting of a discretion is extremely important. With Commons Amendment No. 1 we decided that we would give in all cases of discretion consideration to the welfare of the children. Therefore, by granting this discretion, we shall be able to take into account the welfare of the children. That is not a consideration which can necessarily be taken into account when there is a fixed penalty and no way of altering it.
  If I may say so, anyone who votes against this amendment—I hope that I am not putting it too high; and I am trying to be as fiery as my noble friend Lord Houghton of Sowerby would want me to be—must really have a very hard heart or have been absent from the Chamber, as is so often the case, and not heard my speech before voting on the amendment. I beg to move.
  Earl Russell: My Lords, one of the penalties of the hasty procedure which we have had today is that the noble Lord, Lord Mishcon, and I have not succeeded in getting our act together. I have had consultations about this matter with the noble Lord, Lord Carter, but unfortunately he is not able to be here this evening. I have also put down Amendment No. 83C, which should stand in my name but which, according to the Marshalled List, is attributed to the noble Lord, Lord Mishcon.
  I should like to answer the question put by the noble Baroness, Lady Faithfull. I acquired my information, as I regularly do in these circumstances, by listening to the proceedings in another place last Thursday. It is the only practical way of doing so. That is why I think that there is here a general question which is worthy of attention.
  The noble Lord, Lord Mishcon, is addressing a real problem. I sympathise with him. I agree with him about the need for discretion. One case is not exactly like another. But the noble Lord, no doubt inadvertently, did slightly mislead the House when he said that anyone who voted against his amendment

  561
  must have "a very hard heart". His amendment is not the only way to achieve the objective. Amendment No.83C, which I intend to move shortly, also allows for the element of discretion. It is a perfectly tenable view that either way of achieving the discretion is preferable to another.
  I am not happy with the amendment of the noble Lord, Lord Mishcon, because it allows the amount of benefit deduction to be fixed by regulation. As I have said during many stages of this Bill, that seems to be an improper use of regulations. My noble kinsman has often said that the right way to deal with the question of legislation or regulations is to put the general principles into legislation and the details into regulations. I do not argue with that view. However, the question is: what are general principles? I have asked my noble kinsman before to recognise that there is a subjective element to that question. A matter of general principle is what people generally disagree about on grounds of principle.
  It seems to me that there is nothing more important left to argue about than the size of the deduction for reasons that the noble Lord, Lord Mishcon, outlined so eloquently. I entirely agree with him that the question is whether people will have enough to eat. I cannot think of any question of more importance in principle in legislation than whether it will in fact have the effect of lowering people's living standards below subsistence level. I believe that it is the responsibility of Parliament to ensure that the legislation which is passed does not have that effect. I therefore cannot be happy about leaving the size of the deduction to be altered by regulation.
  An other reason I take that position is that the attempt on which the Secretary of State, the noble and learned Lord and my noble kinsman are engaged is one which has been repeated many times—I was going to say, over the past five centuries. The noble Baroness, Lady Faithfull, rightly corrected me: we shoul3 go back to the bulrushes. Time and again attempts have been made by people who, like the Secretary of State, were perfectly reasonable people, to compel single mothers to name the fathers of their children. They set out to apply—and I think that I am using the words of the noble and learned Lord, although I do not have a note of them to hand—the minimum penalty necessary to secure compliance. They did not secure compliance. Therefore, they felt it necessary to increase the penalty again so as to secure compliance.
  There are recorded cases of people leaning on the clergy to withdraw the sacrament of baptism from children of single mothers until the mother named the father. There are cases of all sorts of things happening in this direction. It used to be a matter which fell on the ratepayers of an individual parish. Therefore, whether the ratepayers were liable depended upon whether the child was born in that parish. I once found in a church warden's account an entry recording the payment of one shilling for carrying a woman with child, in labour and very near the time of her delivery, outside the boundary of the parish. I think that it would take a film producer to do justice to that journey. I cannot do so myself.
  562
  I do not suggest that the Secretary of State will go to those lengths. I believe that he will draw back and realise that he is attempting the impossible before he gets there. However, before that happens, I think that he will be tempted, because he is not achieving the intended effect, to increase the deduction from benefit even above the excessive level at which it already stands. I believe that he is embarking on a road which is very broad and one which is full of temptation. He will be tempted to continue increasing the penalty until it reaches a level where compliance will be secured. I do not believe that there is any such level. That is a conclusion drawn from 500 years of history.
  For that, among many other reasons, I am not prepared to allow regulations to give the Secretary of State permission to fix the amount of deduction at whatever level seems fit to him. Therefore, I hope that the noble Lord, Lord Mishcon, will not press his amendment. However, if he does, I cannot advise my noble friends to vote for it.
  The Lord Chancellor: My Lords, before I speak in my official capacity to this amendment I should point out that if Amendment No. 83B is agreed to I cannot call Amendment No. 83C as it pre-empts the former. I should also confirm that the noble Earl, Lord Russell, is correct. Amendment No. 83C was tabled by him. Due to a misprint on the Marshalled List, he does not have the honour which should be accorded to him in that respect.
  Amendment No. 83B, as the noble Lord, Lord Mishcon, shortly pointed out, seeks to give a discretion in the amount of the deduction made. It is obviously right that there should be a degree of discretion in connection with whether or not one should go to this length. However, once one has reached that stage, one is working against the background of a system of formula, assessments and so on. It seems right that the amount of the deduction should be something which is known in advance so that everyone knows exactly where they stand. Accordingly, we say that the amount of the deduction should be determined—and this will be the subject of discussion later—by regulation, but that the amount actually prescribed should be deducted on the basis which I have already outlined for the time that I indicated.
  The amount of the deduction is best dealt with under the next amendment if it is moved. We believe that our proposed deduction is fixed at a level that does not give rise to the kind of problem mentioned by my noble friend Lady Faithfull in her earlier questions to me. They did not arise strictly in relation to Amendment No. 83A but in relation to these later amendments. Our view is that only the personal income benefit will be affected and only to a maximum of 20 per cent. In Australia the whole benefit is deducted in the same situation. We do not believe that the result will be the kind of situation that my noble friend described.
  As regards Amendment No. 83B, the Government's view is that once one reaches this stage it is correct that the deduction should be fixed under the regulation.
  Lord Mishcon: My Lords, I am torn between the ideals that I am sure many noble Lords present wish to pursue—that is, the protection of the women whom we have in mind—a belief that my amendment is right and a belief that if I do not press the amendment to a Division there will be a little more unity in the House as regards the protection that we all wish to see. It is on that basis that I shall not press the amendment.
  Amendment No. 83B, as an amendment to Commons Amendment No. 83, by leave, withdrawn.
  9 p.m.

  AS AN AMENDMENT TO COMMONS AMENDMENT NO. 83
  83C Line 40, leave out ("and for such period") and insert ("not exceeding 5 per cent of the amount specified for the time being in paragraph 1(1) (e) of Schedule 2 to the Income Support (General) Regulations 1987, and for such period not exceeding 13 weeks.")
  Earl Russell: My Lords, I beg to move Amendment No. 83C.
  Until we reached this new clause we had been discussing what were mainly beneficial amendments. The fact that I have not said so does not mean that I do not appreciate that fact. Today we have received a number of concessions that are to be warmly welcomed. We have received concessions about the welfare of the child. There has been an amendment to the words with regard to complying with any regulation, about which we argued in Committee. On Report in another place last Thursday a valuable concession was made on passported benefits. We have been told that the regulations are to be put before the Social Security Advisory Committee, which is extremely welcome. We have had an amendment about harm and undue distress, which I have mentioned briefly and which I welcome warmly.
  In passing I wish to ask my noble kinsman a question about my understanding of that amendment. When we discussed the matter on Third Reading some of the evidence put before the House involved a threat of harm to other members of the family. In particular, threats were mentioned to the single parent's mother. She is not mentioned in the Government's wording, but I should like to be told that I am correct in my understanding that violence against the single parent's mother would be thought to be liable to cause undue distress to the single parent. I hope that my reading of the provision is correct.
  I believe that one concession deserves another. I confess that throughout the proceedings on the Bill it had been my intention to try once again to remove the clause if another place had decided to reinsert it. I have not done so because compromise, as the noble Earl, Lord Caithness, once said of consultation, is a two-way street. Anyone who believes in a bicameral parliament must believe in the virtues of compromise. Compromise, like toleration, does not deserve the name until it hurts.
  For that reason I have not moved the deletion of this clause. By my own test, that decision deserves the name of compromise. It does so for the reasons outlined by the noble Baroness, Lady Elles, with great
  564
  eloquence and power. However, merely because it is the biggest concession that can be made means that it is not unreasonable to say that I regret that in order to put the compromise in balance we are, like Oliver Twist, legitimately entitled to ask for a little more.
  My three objections to the clause were that it was wrong in principle, that it was not enforceable and that it took people below subsistence level. The noble and learned Lord the Lord Chancellor referred to single mothers "lightly choosing" not to comply. I ask him how he knows that they have lightly chosen. Knowing the secrets of other people's marriages is a great deal more difficult than the late Dr. Kinsey ever supposed. I do not believe that I can tell whether people lightly choose not to comply. If the clause stands I shall not know whether we are merely treading on corns or whether we are treading on broken bones.
  The other issue was raised by the Secretary of State in Committee in another place. He asked whether it was acceptable for someone to say in effect, "I want the taxpayer to pick up the Bill because I want nothing to do with the other parent". Whether anything is acceptable raises the question: what is the alternative? From the beginning of our debates on the Bill I have recognised the interest of the taxpayer as being valid. However, I have never recognised it as being the only valid interest.
  There are two other issues that I should put above the interest of the taxpayer. The first is the limits of the possible. I have already touched on the reasons why I believe the clause goes beyond the limits of the possible, and I shall not develop that argument. The second issue is that it appears to be a priority that we should keep the mother and child alive and adequately fed. That is the basic motive of the whole social security system. I do not find it believable that we can take 20 per cent. away from the mother's benefit without harming the child. I simply do not see how that can be done.
  There is a danger to which the noble Baroness, Lady Faithfull, rightly drew attention. When women are reduced to the point where they cannot care for their children, they abandon them or put them into care. There have been hundreds of such cases in past centuries, going back to the bulrushes. If that is the effect of the Bill, it will cost a great deal more to the Exchequer than the present situation. That is one reason why it is vital to me that, although I agree with everything that the noble Lord, Lord Mishcon, said about the need for discretion, there should nevertheless be a maximum deduction written into the Bill.
  My noble kinsman and I have had many arguments about whether income support is a subsistence benefit. I shall not repeat anything we have said in those arguments, but I ask him to consider the duration of the deduction. Six months at 20 per cent. and a further year at 10 per cent. is so unusual that, if there is anything like it anywhere else in the social security system, I cannot think what it is. It seems to me already to underline the point that the level of penalty needed to secure compliance will rise above the level of the tolerable before it secures compliance.

  565
  It is also a point of substance raised in another place that it will put many people into a position where they live on a short income for too long to be able to repay the social fund loans. Thus again we shall have more people who are too poor to obtain money from the social fund. To put it no higher, that is a perturbing situation.
  On the level of income support, I shall deal only with the major piece of evidence that has come out since my noble kinsman and I last debated the subject. It is the survey of which many of us know by the Nat oval Children's Home. It showed that 10 per cent. of children under five miss meals for lack of money; 20 per cent. of mothers go hungry regularly; and 44 per cent. have done so in the past year. The survey also showed that a healthy diet costs 17 per cent. more than an unhealthy diet. It found that, whereas for average families food takes 12.4 per cent. of the budget, for families on income support it takes 43 per cent. of the budget. That tends to show that for those on income support food is very tight indeed. It shows that on a deduction of 20 per cent. from present levels of income support, matters are likely to become impossible.
  I wonder whether it is in the public interest to make that situation worse. I shall not dwell on the argument of common humanity. I shall dwell on the argument of National Health Service costs. Malnutrition tends to produce ill health, both mental and physical, which tends to be expensive. I also believe that a deduction on that level is an invitation to crime. It is an invitation that we should be unwise to give. I beg to move.
  Baroness Faithfull: My Lords, I support the amendment. Like the noble Earl, Lord Russell, I do not so on humanitarian grounds at this stage but purely on economic grounds. If one does not look after these women and children it will cost the country a great deal. They will not be costly for the Treasury but for the local authorities, which do not have the money they require to run their services. As I said in an earlier debate, the local authority social services department will be put into a terrible dilemma. Suppose the parents cannot look after their children and ask for them to be accepted into care. If the children are weighed and measured and found to be underweight through lack of food, what does the local authority do? I should be grateful if the noble and learned Lord could expound on the dilemma that could be faced by the local authorities.
  I support the amendment on economic and also humanitarian grounds. In addition, there is the terrible dilemma of the social services departments, which must meet the needs of children in their area under Part II of the Children Act 1989.
  Lord Renton: My Lords, although frankly I have reservations about Commons Amendment No. 83, I did not support the amendment of the noble Lord, Lord Mishcon. However, I warmly support the amendment of the noble Earl, Lord Russell, for the reasons he has given. I stress that it seems to be necessary to have something on these lines so as to ensure that the reduction of benefit does not cause misery.
  Lord Mishcon: My Lords, 1 could not have said what I feel from these Benches any better than has the noble Lord, Lord Renton, in his last sentence.
  9.15 p.m.
  The Lord Chancellor: My Lords, we propose that the regulations, which are subject to affirmative resolution, would fix the deduction, and I have already indicated what we have in mind.
  So far as I am concerned, the situation is that it is right for the deduction to be fixed, and it is right to fix it at a level which is likely to be effective for its purpose. I am grateful for the degree of compromise which the noble Earl, Lord Russell, has signalled in his speech, and nothing I say is intended in any way to undervalue that, but the circumstances that we are seeking to deal with are those in which there has been a deliberate refusal without good cause—because that is the purpose of it—to give the information which is necessary for the Secretary of State to effect the obligations against the person who really has them, namely the absent father.
  That is the background. We say that this must be fixed on a basis that will make it work. The noble Earl, Lord Russell, says that there will be a temptation to push it higher and higher. We have undertaken that what we shall propose in the regulations is the amount that I have said for the period that I have said; that is, 20 per cent. for six months and 10 per cent. for a further 12 months, making 18 months in all. The intention is—although there is some question about this in a later amendment—that that would be in respect of a given liability, once only.
  Your Lordships are concerned about the woman in question. We believe that a deduction of this kind, while it would be testing, would not have the effect that the children would be so deprived that they would have to be taken into care. That is the answer I gave before to my noble friend Lady Faithfull. We believe that to be right—that the deduction is one that would not have the effect of putting the children at risk of going into care.
  The situation that has to be kept in mind is the possibility of buying off this responsibility. If one fixes the obligation at a low level such as is proposed in the amendment, it would be very low indeed at 5 per cent. of the amount in respect of income support, and only for 13 weeks. The total amount involved is so small that it would pay the father many times over to give the woman that amount in order to free himself of the liability.
  Lord Renton: My Lords, I am grateful to my noble and learned friend for giving way. He regards a total amount of 5 per cent. as so small as not to fit in with his ideas, but I think many of us would consider his suggestion of 30 per cent. to be too big. Also, it is not to be written into the statute; it is to be left to administrative practice, and what he says would not be binding in law on this point.
  The Lord Chancellor: My Lords, if I have misheard my noble friend he will correct me. I am saying 20 per cent. for the first six months and 10 per cent. for the

  567
  following 12 months, making 18 months in all. These figures do not add up to 30 per cent. because they are applied at different times.
  However, the point I am making is an important one. One has to look at the very real likelihood that the person with the real responsibility, the person on whom we are trying effectively to lay the responsibility, would think it easy to buy off his responsibility at that stage, with the consequent deprivation of the child or children for the rest of their lives of dependency. Therefore, I submit to your Lordships that the figure of 5 per cent. is much too small. According to my calculations, and I am subject to correction, it would make a total for the 13 weeks of £26.
  A noble Lords: Too much!
  The Lord Chancellor: My Lords, it is much too small—I have to interpolate on the intervention from a sedentary position—to be effective.
  There is no point in having that procedure unless it is effective. Therefore, the correct procedure is not for it to be fixed by administrative means but to be fixed by regulation under the statutory powers, subject to affirmative resolution of both Houses of Parliament. In that situation your Lordships will be able to see exactly what the circumstances are and, if necessary, be able to change the provision. However, if your Lordships accept the amendment it will be impossible to raise it above £26–5 per cent. for 13 weeks, making a total of £26. I await the noble Earl's calculation in a moment.
  The amendment would undermine the purpose of the benefit deduction. Unless the benefit deduction can be effective there is no point whatever in having it. Therefore, while I understand the argument, I suggest that the figure proposed in the amendment is much too small to make it an effective sanction to deal with a deliberate refusal to co-operate in enabling the Secretary of State properly and effectively to calculate the support for the children who ought to be supported.
  Lord Winstanley: My Lords, perhaps I may say a brief word, if the noble and learned Lord will allow me. Three times he has said that it is necessary to fix the deduction at a level which is likely to be effective. Effective to do what? If we assume that a woman has withheld the information for what she believes to be good reasons, does the noble and learned Lord mean that it will be effective in making her change her mind and decide that she does not have good reasons?
  The Lord Chancellor: No, my Lords. The point of the procedure which we have been discussing is to ascertain whether she has good reason. If she has good reason no deduction is applied. The purpose of the deduction is to deter people from wilfully and deliberately refusing to give the information when they have it. That is the paradigm case which the provision is designed to deal with. The appeal provision and decision-making are intended to
  568
  differentiate the one from the other. One cannot argue about the size of the deduction on the basis that the decision to apply the deduction is itself a wrong one.
  Lord Winstanley: My Lords, I beg the noble and learned Lord's pardon, but is it not a fact that the woman herself has decided that she has good reason and someone else has decided that she does not have good reason? To be effective the deduction must persuade her that she was wrong and did not have good reason.
  The Lord Chancellor: My Lords, there must be a limit to this. It is not right for the noble Lord to speak after I have spoken, but that will be the last time so far as I am concerned. The noble Lord is confusing the two cases. There may well be people who know perfectly well that they have no good reason but refuse to comply; the sanction has to deal with those cases.
  Earl Russell: My Lords, I should like to thank the noble and learned Lord for the care and courtesy of his reply. I do not think that he expected to convince me. I shall not answer him at length. I might risk repeating what I have already said, but he has made two miscalculations. He has underestimated the amount of sanction necessary to secure compliance. In the past women have been whipped until their backs were bloody to secure compliance with that requirement. It was not enough.
  I do not think that the noble and learned Lord proposes to go that far, but it will not be effective even if he does. He has altogether underestimated the severity of the deprivation. He talks about £26 over 13 weeks. I have not checked the figure, but I think it is in the target area. If that is a sacrifice of 26 meals over 13 weeks to people who already are not in the position to have one square meal a day, that is significant. I commend the amendment to the House.
  9.25 p.m.
  On Question, Whether Amendment No. 83C, as an amendment to Commons Amendment No. 83, shall be agreed to?
  Their Lordships divided: Contents: 39; Not-Contents, 48.

  Division No. 2

  CONTENTS

  Avebury, L.

  Llewelyn-Davies of Hastoe, B.

  Beaumont of Whitley, L.

  Macaulay of Bragar, L.

  Birk, B.

  Mackie of Benshie, L.

  Butterfield, L.

  Mallalieu, B.

  Carmichael of Kelvingrove, L.

  Masham of Ilton, B.

  Clinton-Davis, L.

  Mishcon, L.

  Cocks of Hartcliffe, L.

  Monkswell, L.

  David. B.

  Morris of Castle Morris, L.

  Desai, L.

  Peston, L.

  Donoughue, L.

  Prys-Davies, L.

  Dormand of Easington, L.

  Rea, L.

  Faithfull, B.

  Renton, L.

  Flowers, L.

  Rochester, L.

  Graham of Edmonton, L. [Teller.]

  Russell, E. [Teller.]

  Simon of Glaisdale, L.

  Grey, E.

  Stoddart of Swindon, L.

  Halsbury, E.

  Tordoff, L.

  Hollis of Heigham, B.

  Turner of Camden, B.

  John-Mackie, L.

  Williams of Elvel, L.

  Kirkwood, L.

  Winstanley, L.

  569

  NOT-CONTENTS

  Arran, E.

  Hooper, B.

  Ashbourne, L.

  Howe, E.

  Astor, V.

  Huntly, M.

  Auck and, L.

  Johnston of Rockport, L.

  Belofl, L.

  Long, V.

  Belstead, L.

  Mackay of Ardbrechnish, L.

  Blatch, B.

  Mackay of Clashfern, L.

  Blyth, L.

  Montgomery of Alamein, V.

  Boardman, L.

  Mottistone, L.

  Brabazon of Tara, L.

  Oxfuird, V.

  Carnock, L.

  Palmer, L.

  Cavendish of Furness, L.

  Pearson of Rannoch, L.

  Cochrane of Cults, L.

  Quinton, L.

  Craigmyle, L.

  Rankeillour, L.

  Davidson, V. [Teller.]

  Reay, L.

  Denton of Wakefield, B.

  Romney, E.

  Elliot of Morpeth, L.

  Seccombe, B.

  Ferrers, E.

  Strathmore and Kinghorne, E.

  Flather, B.

  Thomas of Gwydir. L.

  Gainsborough, E.

  Trumpington, B.

  Glenarthur, L.

  Ullswater, V.

  Gray of Contin, L.

  Waddington, L.

  Henley, L.

  Wade of Chorlton, L.

  Hesketh, L. [Teller.]

  Young, B.

  Resolved in the negative, and Amendment No. 83C disagreed to accordingly.
  9.32 p.m.

  AS AN AMENDMENT TO COMMONS AMENDMENT NO. 83
  83D After subsection (11) insert:
  ("( ) Once a reduced benefit direction has been given in respect of a parent no further reduced benefit direction may be given in respect of her failure to comply with any requirement under section 6(1).").
  Lord Mishcon: My Lords, in moving this amendment I shall be mercifully brief. It will be quite obvious to Members of the House who have heard all the previous debates and have voted after having heard them that this is an amendment which is simple to explain. It seeks to ensure that a benefit penalty cannot be repeated merely because a parent with care moves from one benefit to another. Examples of that are moving from income support to family credit or disability working allowance, or, after a break in the benefit claimed, moving back on to the same benefit. I beg to move.
  Moved, That Amendment No. 83D, as an amendment to Commons Amendment No. 83, be agreed to.—(Lord Mishcon.)
  Earl Russell: My Lords, not even God judges twice in the same cause. On these Benches we are happy to support the amendment.
  The Lord Chancellor: My Lords, some specification may be required about judging twice in the same cause. In broad terms I entirely sympathise with the aims of the amendment. I do not think it right that when someone has had a benefit reduced for 18 months we should look to reimpose a reduction if there has been no material change of circumstances. That would in effect negative the maximum period about which we have spoken.
  However, the amendment goes further in its effect. It would mean that it would never be possible to issue a second direction in any circumstance. But there may be many situations in which it would be appropriate to
  570
  give more than one reduced benefit direction to a caring parent. For example, if a caring parent leaves benefit six months after a reduced benefit direction has been given and then reclaims benefit, or claims a different benefit and still refuses to co-operate, there is a strong case for arguing that it would be right to give a further reduced benefit direction to cover the unexpired portion of the previous reduction. In the example that I have given, that is one year. The amendment would not allow that. It would enable the spirit of the amendment to be in effect abused.
  Moreover, in circumstances involving, say, a new question of liability, it would not necessarily be right to be restricted in that way. I can assure noble Lords that it is not our intention that a parent with care should have a benefit reduced for more than 18 months. But, as I have explained, there may be special circumstances when that may be better achieved by the issue of further directions.
  It is a matter of detail. I can undertake to the noble Lord that that will be dealt with in the regulations. I am sure that we shall be able to produce regulations which carry out the spirit of the amendment without the technical difficulties to which I have referred. I hope that, in the light of that undertaking, the noble Lord will feel able to withdraw his amendment.
  Lord Mishcon: My Lords, the debates in the Chamber today started on an angry note, that the business that we have been conducting should not be taken at such short notice. It is perhaps part of the spirit of this House that debates are ending on a courteous note from the noble and learned Lord the Lord Chancellor that he intends in regulations to carry out the spirit of the amendment. In those circumstances it would be wrong of me to divide the House. I am grateful to him even if he has not gone as far as I should have liked.
  Amendment No. 83D, as an amendment to Amendment No. 83, by leave, withdrawn.
  On Question, Amendment No. 83 agreed to.

  COMMONS AMENDMENT
  84 Clause 41, page 29, line 1, at end insert:
  '( ) may require any information which is needed for the purpose of determining the amount of any such fee to be furnished, in accordance with the regulations, by such person as may be prescribed;'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 84.
  The amendment allows the agency to request information so that any reductions or exemptions from fees may be assessed. Exemptions or reductions will be available to those who cannot reasonably be expected to meet the full fee. In making such an assessment the agency will require certain information on the individual's's income and circumstances. I commend the amendment to the House.
  Moved, that the House do agree with the Commons in their Amendment No. 84—(Lord Henley.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  85 After Clause 41, insert the following new clause:
  Right of audience
  '.—(1) Any person authorised by the Secretary of State for the purposes of this section shall have, in relation to any proceedings under this Act before a magistrates' court, a right of audience and the right to conduct litigation.
  (2) In this section "right of audience" and "right to conduct litigation" have the same meaning as in section 119 of the Courts and Legal Services Act 1990.'.
  86 After Clause 41, insert the following new clause:
  Right of audience: Scotland
  '. In relation to any proceedings before the sheriff under any provision of this Act, the power conferred on the Court of Session by section 32 of the Sheriff Courts (Scotland) Act 1971 (power of Court of Session to regulate civil procedure in sheriff court) shall extend to the making of rules permitting a party to such proceedings, in such circumstances as may be specified in the rules, to be represented by a person who is neither an advocate nor a solicitor.'.
  Lord Henley: My Lords, I beg to move that the House do agree with Commons in their Amendments Nos.85 and 86. I speak also to Amendments Nos. 107 and 109.
  These two new clauses will provide that officers of the department may be able to commence proceedings and conduct hearings on enforcement matters in magistrates' courts, and in Scotland in a sheriff court, in connection with child support maintenance matters. Amendments Nos. 107 and 109 make the necessary consequential amendments for Scotland to the extent provisions. I commend the amendments to your Lordships.
  Moved, That the House do agree with the Commons in their Amendments Nos. 85 and 86.—(Lord Henley.)
  Lord Mishcon: My Lords, perhaps one matter could be clarified by the Minister. It may be that on this occasion the noble and learned Lord the Lord Chancellor may wish to intervene. Having regard to the provisions of the Courts and Legal Services Act, and the tribunal that is to be set up in order to decide upon rights of audience and the right to conduct litigation—I raise no point about the right of audience—what precisely does the "right to conduct litigation" mean? It will now be under the authority of the Secretary of State and not the tribunal, and will not be under any provision that I can find in the Courts and Legal Services Act. What does that litigation refer to? How far does it go? Does it go to the House of Lords?
  Lord Simon of Glaisdale: My Lords, who is intended to be the subject of the order? Is it the child support officer?
  Lord Henley: My Lords, in answer to the noble and learned Lord, Lord Simon of Glaisdale, it is the child support officer. It would probably be safer if I wrote to the noble Lord, Lord Mishcon, rather than respond to his questions now. I hope that he will accept that.
  Lord Mishcon: My Lords, I do not wish to be discourteous to the Minister, but I have to decide whether to advise my noble friends to vote for the
  572
  amendment or not to vote for it. It is a serious point when the Secretary of State is given the power in the Bill to decide that people in his department should be able to conduct litigation. That does not mean that they have to be legally qualified. What sort of litigation? To what stage? Are appeals on law to the House of Lords to be covered by the clause?
  The Lord Chancellor: My Lords, as the noble Lord, Lord Mishcon, invited me to intervene, perhaps my noble friend will allow me to say that Amendment No. 85 applies only to proceedings before the magistrates' courts. It does not apply to the House of Lords or any other tribunal. The corresponding provisions in relation to Scotland will relate to proceedings before the sheriff.
  Lord Mishcon: My Lords, with the leave of the House, I am grateful to the noble and learned Lord. I assure him that his emphasis that the provision applies only to litigation before the magistrates' courts will give comfort in many quarters. It is extraordinary that the words "right to conduct litigation" are included, because that is most unusual before the magistrates' courts. I should have thought that rights of audience would have been sufficient.
  The Lord Chancellor: My Lords, as the noble Lord is aware those are two distinct concepts. It was thought right to make it clear that persons authorised by the Secretary of State were entitled to instruct, for example, counsel in the magistrates' court if they wanted to do so. All the rights that are required for the proper conduct of litigation in the magistrates' court can be exercised by the person authorised by the Secretary of State. I believe it is a reasonable provision. The principal subject would be the liability order and proceedings for enforcement.
  Lord Mishcon: My Lords, I am much obliged to the noble and learned Lord.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  87 After Clause 41, insert the following new clause:
  Unauthorised disclosure of information
  '.—(1) Any person who is, or has been, employed in employment to which this section applies is guilty of an offence if, without lawful authority, he discloses any information which—

  (a) was acquired by him in the course of that employment; and

  (b) relates to a particular person.

  (2) It is not an offence under this section—

  (a) to disclose information in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it; or

  (b) to disclose information which has previously been disclosed to the public with lawful authority.

  (3) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence—

  573

  (a) he believed that he was making the disclosure in question with lawful authority and had no reasonable cause to believe otherwise; or

  (b) he believed that the information in question had previously been disclosed to the public with lawful authority and had no reasonable cause to believe otherwise.

  (4) A person guilty of an offence under this section shall be liable—

  (a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both; or

  (b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.

  (5) This section applies to employment as—

  (a) the Chief Child Support Officer;

  (b) any other child support officer;

  (c) any clerk to, or other officer of, a child support appeal tribunal;

  (d) any member of the staff of such a tribunal;

  (e) a civil servant in connection with the carrying out of any functions under this Act;

  and to employment of any other kind which is prescribed for the purposes of this section.
  (6) For the purposes of this section a disclosure is to be regarded as made with lawful authority if, and only if, it is made—

  (a) by a civil servant in accordance with his official duty; or

  (b) by any other person either—

  (i) for the purposes of the function in the exercise of which he holds the information and without contravening any restriction duly imposed by the responsible person; or

  (ii) to, or in accordance with an authorisation duly given by, the responsible person;

  (c) in accordance with any enactment or order of a court;

  (d) for the purpose of instituting, or otherwise for the purposes of, any proceedings before a court or before any tribunal or other body or person mentioned in this Act; or

  (e) with the consent of the appropriate person.

  (7) "The responsible person" means—

  (a) the Lord Chancellor;

  (b) the Secretary of State;

  574

  (c) any person authorised by the Lord Chancellor, or Secretary of State, for the purposes of this subsection; or

  (d) any other prescribed person, or person falling within a prescribed category.

  (8) "The appropriate person" means the person to whom the information in question relates, except that if the affairs of that person are being dealt with—

  (a) under a power of attorney;

  (b) by a receiver appointed under section 99 of the Mental Health Act 1983;

  (c) by a Scottish mental health custodian, that is to say

  (i) a curator bonis, tutor or judicial factor; or

  (ii) the managers of a hospital acting on behalf of that person under section 94 of the Mental Health (Scotland) Act 1984; or

  (d) by a mental health appointee, that is to say—

  (i) a person directed or authorised as mentioned in sub-paragraph (a) of rule 41(1) of the Court of Protection Rules 1984; or

  (ii) a receiver ad interim appointed under sub-paragraph (b) of that rule;

  the appropriate person is the attorney, receiver, custodian or appointee (as the case may be) or, in a case falling within paragraph (a), the person to whom the information relates.'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 87.
  During the passage of the Bill some concern has been expressed about the confidentiality of personal information collected for the purposes of the Bill. I fully understand the concerns expressed by a number of your Lordships in this area and hope that the new clause, which introduces a safeguard against unauthorised disclosure of such information, goes some way towards meeting those concerns.
  If an officer discloses information when not authorised to do so, he will, by virtue of the amendment, be guilty of an offence. That will remind officers that information is to be disclosed only when there is a specific authority to do so. I commend the amendment to the House.
  Moved, That the House do agree with the Commons in their Amendment No. 87—(Lord Henley.)
  On Question, Motion agreed to.
  9.45 p.m.

  COMMONS AMENDMENTS
  88 Clause 42, page 29, line 17, at end insert:
  '(aa) extending the categories of case to which section 17 or 18 applies;'.
  89 Page 29, line 21, at end insert:
  '( ) for the adjustment, for the purpose of taking account of the retrospective effect of a maintenance assessment, of amounts payable under the assessment;
  ( ) for the adjustment, for the purpose of taking account of over-payments or under-payments of child support maintenance, of amounts payable under a maintenance assessment;'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 88 and 89 en bloc.
  Amendments Nos. 88 and 89 extend the list of subjects which may be covered by regulations made under Clause 42. We have always recognised that there are a large number of regulation-making powers in this Bill but we have tried to be explicit about the likely content of these regulations by giving headings such as we have here. For that reason, we have brought forward these amendments.
  Amendment No. 88, in particular, is designed to ensure that provision can be made for appeal rights against certain decisions made by child support officers which are not directly connected to the making of assessments.
  Amendment No. 89 adds the example of regulations dealing with adjustments of the amounts of maintenance payable under an assessment because of over or under payments or because of a retrospective revision of an assessment; for example, following an appeal.
  Moved, That the House do agree with the Commons in their Amendments Nos. 88 and 89 en bloc.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  90 Clause 43, page 29, line 33, after 'Chancellor', insert the Lord Advocate'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 90.
  Moved, That the House do agree with the Commons in their Amendment No. 90.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  91 Clause 43, page 29, line 36, after 'containing', insert '(whether alone or with other provisions)'.
  92 Page 29, line 37, leave out 'or (7)' and insert '(7) or (8)'.
  93 Page 29, line 37, leave out '10(2)'.
  94 Page 29, line 37, after '39' insert '(1), (Failure to comply with obligations imposed by section 6)' .
  95 Page 29, line 38, after '41', insert 'or under Part I of Schedule 1 or an order made under section 40(1) or (6)'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 91 to 95 en bloc.
  Amendment No. 91 is a technical amendment, the effect of which is to allow that a statutory instrument
  576
  which includes regulations made under clauses listed within Clause 43(2) may also include regulations subject to the negative procedure. In other words, regulations which would otherwise be subject to the negative resolution will be affirmative if included in a package containing affirmative regulations.
  On looking at the various regulation-making powers, in order to understand fully and grasp the effect of proposals for affirmative resolution procedure regulations, we thought it wise to have alongside them others from the negative resolution provisions. Therefore, we have made this proposal so that the higher procedure would apply when it applies to any part of the package.
  Amendments Nos. 93 and 95 correct one of the references to a regulation-making power within this clause. Amendment No. 95 makes orders made under Clause 40(1) and Clause 40(6) subject to the affirmative resolution procedure.
  Amendment No. 92 restores the regulation-making power in Clause 6(10) to being subject to the affirmative procedure, which it was throughout the passage through this House. In addition, we intend to retain subsection (9) which was included in error in its place. This makes the regulations of a further regulation-making power subject to the affirmative procedure. Similarly, Amendment No. 94 extends the list by including new Clause 8. It also replaces Clause 39 by Clause 39(1).
  I hope that I have answered the point which my noble and learned friend raised on Amendment No. 92.
  Moved, That the House do agree with the Commons in their Amendments Nos. 91 to 95.—(The Lord Chancellor.)
  Lord Simon of Glaisdale: My Lords, I entirely agree with what has been said on Amendment No. 91.
  As regards Amendment No. 92, am I right in thinking that it implements an undertaking which my noble and learned friend gave on Third Reading when I moved an amendment relating to the affirmative resolution procedure? I rather think that it is because I have corresponded with the noble Lord, Lord Henley, about it. I agreed with the way that it was done. Am I right in thinking that that is what has happened? I did not understand Amendment No. 93. My noble and learned friend explained that a mistake crept in and has now been removed.
  The Lord Chancellor: My Lords, with regard to Amendment No. 92, the noble and learned Lord is correct. Amendment No. 93 corrects references to the regulation-making powers dealing with the formula and makes orders under Clauses 40(1) or 40(6), subject to affirmative resolution. Amendment No. 95 is strictly speaking an implementation of the matter referred to by my noble and learned friend Lord Simon.
  Lord Simon of Glaisdale: My Lords, perhaps in any case your Lordships will allow me to raise two matters that I should have mentioned earlier. At Third

  577
  Reading I tabled an amendment to make Clause 24(7) subject to affirmative resolution. That was a misprint. There is no subsection (7).
  Subsequently, in a letter to my noble and learned friend dated 17th May, I corrected that to subsection (2). I believe that it should be Clause 27(2). I wrote also to the noble Lord, Lord Henley, in that regard but it slipped out of the correspondence. I should like to be advised of what happened. It is clearly a provision that should be subject to affirmative resolution.
  The other matter to which I wish to refer was mentioned earlier. I would be grateful if the noble Lord, Lord Henley, could answer the specific questions I asked arising out of the speech of the Under-Secretary in Standing Committee A. In other words, I should like to know how many regulation-making powers now exist. It must be around 110 with the amendments we have made. Of those, only 13 are subject to affirmative resolution, which seems rather odd. That means that all those 110 minus 13 are considered to be trivial or consequential. That is plainly not the case. I should be grateful if the noble Lord, Lord Henley, would answer the questions I raised in my latest letter, which I wrote on Friday evening or Saturday morning, having discovered that the Bill was in today's business.
  Lord Henley: My Lords, it is difficult to keep up with the letters of the noble and learned Lord. As I explained earlier when I assured him that I had responded to letters about which he had doubt, I received a further letter from the noble and learned Lord only this morning. I shall respond to that in due time. In regard to the number of regulation-making powers and whether or not some are procedural, I can go no further than I did in my letter of 11th July from which I quoted at length earlier this afternoon.
  Lord Simon of Glaisdale: My Lords, I could not possibly object to the noble Lord replying by letter. Even if we received the information now there would be nothing we could do about it.
  The noble Lord did not refer to my other question regarding the point I raised with my noble and learned friend. It relates to what would now be Clause 27(2).
  I can check that.
  The Lord Chancellor: My Lords, it is Clause 27(2). These are regulations about the manner of payment which appears to be appropriate for the ordinary negative resolution procedure regulations. I do not see that it would be right to require them to be specially handled.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  92 Clause 43, page 29, line 37, leave out 'or (7)' and insert '(7) or (8)'.
  93 Page 29, line 37, leave out '10(2)'.
  94 Page 29, line 37, after '39' insert '(1), (Failure to comply with obligations imposed by section 6)'.
  95 Page 29, line 38, after '41', insert 'or under Part I of Schedule 1 or an order made under section 40(1) or (6)'.
  96 Clause 44, page 30, line 13, after 'the', insert 'Lord Chancellor or the'.
  97 Clause 45, page 30, line 23, at end insert:
  "child benefit" has the same meaning as in the Child Benefit Act 1975;'.
  98 Page 30, leave out line 28.
  99 Page 30, line 30, at end insert "'disability living allowance" has the same meaning as in the Social Security Act 1975;'.
  100 Page 30, line 38, at end insert:
  "maintenance agreement" has the meaning given in section 9(1);'.
  101 Page 31, leave out line 11.
  102 Clause 47, page 32, line 9, leave out 'this Act' and insert 'the provisions of this Act, other than provisions which relate to the appointment of Child Support Commissioners for Northern Ireland.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 92 to 102. I have already spoken to Amendments Nos. 92 to 95. I believe I am right in saying that I have dealt with all the amendments up to and including Amendment No. 102.
  Moved, That the House do agree with the Commons in their Amendments Nos. 92 to 102.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  103 After Clause 47, insert the following new clause:
  Application to Crown
  '.—(1) The power of the Secretary of State to make regulations under section 13 requiring prescribed persons to furnish information may be exercised so as to require information to be furnished by persons employed in the service of the Crown or otherwise in the discharge of Crown functions.
  (2) In such circumstances, and subject to such conditions, as may be prescribed, an inspector appointed under section 14 may enter any Crown premises for the purpose of exercising any powers conferred on him by that section.
  (3) Where such an inspector duly enters any Crown premises for those purposes, section 14 shall apply in relation to persons employed in the service of the Crown or otherwise in the discharge of Crown functions as it applies in relation to other persons.
  (4) Where a liable person is in the employment of the Crown, a deduction from earnings order may be made under section 29 in relation to that person; but in such a case subsection (8) of section 30 shall apply only in relation to the failure of that person to comply with any requirement imposed on him by regulations made under section 30.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 103. This is an amendment to provide for Crown servants, when giving information required for the purposes of the Bill, to be subject to the provisions in the Bill. It also enables inspectors to gain access to Crown property and to interview Crown servants subject to the conditions specified in the regulations. I commend the amendment to your Lordships.
  Moved, That the House do agree with the Commons in their Amendment No. 103.—(The Lord Chancellor.)
  Earl Russell: My Lords, I have no objection to the amendment. I wish to raise one small point about clarification. I listened with interest to the debate on the subject in another place. It may be that we shall now have an answer to a question that I asked when the Bill was in Committee. What happens when the requirements of this Bill clash with the requirements of official secrecy? I can imagine that such a clash will happen on occasions. I shall be glad of some idea of what will happen then.
  The Lord Chancellor: My Lords, I cannot envisage such a clash happening. However, if it did happen I believe that the theoretical answer is that the later Act will take precedence. In so far as it covered a situation, it would require to be given effect notwithstanding an earlier statute. As I have said, I cannot envisage a clash of the type that the noble Earl has in mind.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  104 Clause 48, page 32, line 38, leave out 'Secretary of State' and insert 'Lord Chancellor, the Secretary of State or Lord Advocate or by any of them acting jointly.'.
  105 Page 32, line 40, at end insert '(including, in particular. for different cases or categories of case)'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 104 and 105. As far as these amendments are concerned they provide for a range of transitional measures and consequential amendments to be made by order by the Secretary of State, the Lord Chancellor, the Lord Advocate or by some of them jointly according to the circumstances. As I explained earlier, the transitional arrangements are likely to be quite complicated. I sought to explain that before. That is why Amendment No. 106 is fairly complicated and comprehensive. However, we shall deal with that in a little more detail in a moment.
  Moved, That the House do agree with the Commons in their Amendments Nos. 104 and 105.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  106 Clause 48. page 32, line 40, at end insert:
  '(3A) An order under subsection (2) may make such supplemental, incidental or transitional provision as appears to the person making the order to be necessary or expedient in connection with the provisions brought into force by the order, including such adaptations or modifications of—

  (a) the provisions so brought into force;

  (b) any provisions of this Act then in force; or

  (c) any provision of any other enactment, as appear to him to be necessary or expedient.

  (3B) Different provision may be made by virtue of subsection (3A) with respect to different periods.
  (3C) Any provision made by virtue of subsection (3A) may, in particular, include provision for—

  (a) the enforcement of a maintenance assessment (including the collection of sums payable under the assessment) as if the assessment were a court order of a prescribed kind;

  580

  (b) the registration of maintenance assessments with the appropriate court in connection with any provision of a kind mentioned in paragraph (a);

  (c) the variation, on application made to a court, of the provisions of a maintenance assessment relating to the method of making payments fixed by the assessment or the intervals at which such payments are to be made;

  (d) a maintenance assessment, or an order of a prescribed kind relating to one or more children, to be deemed, in prescribed circumstances, to have been validly made for all purposes or for such purposes as may be prescribed.

  In paragraph (c) "court" includes a single justice.
  (3D) The Lord Chancellor, the Secretary of State or the Lord Advocate may by order make such amendments or repeals in, or such modifications of, such enactments as may be specified in the order, as appear to him to be necessary or expedient in consequence of any provision made by or under this Act (including any provision made by virtue of subsection (3A)).
  (3E) This Act shall, in its application to the Isles of Scilly, have effect subject to such exceptions, adaptations and modifications as the Secretary of State may by order prescribe.'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 106. This is an amendment which gives power to make orders to deal with the transitional provisions which will be required. The Bill is designed to set up a new scheme for the assessment, collection and enforcement of child maintenance in the great majority of cases. The Bill sets out in some detail the nature of the new scheme, both the way the maintenance will be assessed and the powers and duties of the child support agency on behalf of the Secretary of State in order that this should be done. We have already said that we believe that the child support agency should begin work in April 1993; it will have a potential case load of 2 million customers, representing around 3 million assessments every year. It will not be possible for the agency to take on all its work at once—the take-on will have to be very carefully phased. The purpose of this clause is to give the necessary flexibility in order to make these arrangements, which will be the subject of extensive consultation by regulation.
  Moved, That the House do agree with the Commons in their Amendment No. 106.—(The Lord Chancellor.)

  MANUSCRIPT MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT NO. 106
  Earl Russell 106A Earl Russell moved, That the House do disagree with the Commons in their Amendment No. 106.
  Earl Russell: My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 106.
  I hope your Lordships will read the Commons amendment with some care. When I read it it caused me a good deal of surprise. The parentage appears to me to be by Henry VIII out of Humpty Dumpty. Even in these permissive days, I have some doubt whether that is a legitimate parentage.

  581
  I have no objection to the stated purpose of the clause as it is set out in the Notes on Commons Amendments, which my noble kinsman has very kindly made available to us. The notes state that:
  "These amendments allow for detailed provisions regulating the transitional period until the Child Support Agency is fully operational to be made through commencement orders or other orders".
  I have no problem with that. I want to know why another place has found it necessary to use quite such sweeping and arbitrary words to bring that provision into effect.
  In dealing with the Executive, there are two duties which rest upon Parliament. There is a duty of scrutiny, and there is a duty of control. Until I hear the reply. I am engaged simply on the duty of scrutiny. I want to know why these powers need to be so sweeping. I want to know why all these powers are needed; and I want to know—and this is the most important one for our purposes—could they have been worded in a less arbitrary manner?
  This is a new commencement clause which emerged very late in the proceedings. There was not a single word spoken about it in another place. Therefore, we are going to hear today the first full explanation of why the Government want this clause. It may be simply to ensure the central purposes of the Bill. If so, I must say that this House has already approved the central purposes of the Bill. I would regard it as most improper at this stage to do anything to question them. However, I want to understand why it is necessary to have quite so much power to achieve the central purposes of the Bill.
  The other idea that came into my mind was that I wondered whether the Government feared that they had left something out of the repealing schedule. There I would find it rather more difficult to help them, because this House cannot really hand over to the Secretary of State the task of repealing statutes. If the Secretary of State has forgotten to repeal a statute, then lie must come back to this place and we would, I am sure, do our level best to be co-operative.
  I understand that it will be a complicated commencement; it will be a staged commencement for one thing. There is a process of meshing-in together the agency and the courts. I can see a good many problems in the commencement. I am reminded of the commencement of community care. Therefore, I can see that the powers which are set out in subsection (3C) of the government amendment may well be necessary. I do not intend to query that.
  What I am unhappy about in the proposed subsection (3C) is the words,
  "may, in particular, include".
  The subsection does not state that the Secretary of State nay make provision. It states that the powers,
  "may, in particular, include".
  That naturally leads me to ask: what else can the Secretary of State do? I looked at the record of the government amendment. In subsection (3A) I found a power to make such modification,
  "as appears to the person making the order to be necessary".
  That is a subjective judgment. The machinery for any further parliamentary control over the Executive will be very limited. It will only be a matter of the Secretary
  582
  of State's own judgment whether anything done under that subsection is relevant to the commencement of the Bill.
  Powers are also sought to bring about modification of,
  "any provisions of this Act then in force"
  The Secretary of State may amend his own Bill. That makes me wonder what all of us—in "all of us" I include the noble and learned Lord the Lord Chancellor and my noble kinsman—have been doing in using a great deal of concentration and carrying out a great deal of work in trying to make the Bill better. If the Secretary of State can simply amend the Act as he sees fit, I do not see why all our labours have been necessary.
  I am even more concerned about the provision allowing the Secretary of State to vary any provision of any other enactment. I have already argued that the Bill puts the Secretary of State into the way of temptation to behave in a more and more arbitrary manner. I do not want to make that temptation more acute by equipping it with these quite extreme powers. In making these remarks, I mean nothing personal to the Secretary of State or indeed to any successor he may have in the future. I believe that these powers should not be trusted to anyone. I am reminded in fact of the comment of one of my American colleagues about a new mortgage. "If I were a banker, I would not lend me that much money". I do not believe that these powers are proper, whoever has them.
  We may be given undertakings. If so, I shall accept them absolutely in relation to the present incumbents of their offices. But we are dealing here with the powers of the Secretary of State in 1993. We have no idea who will be Secretary of State in 1993, nor indeed do we have any idea of what undertakings he will feel bound by. The amendment states that the Secretary of State may modify any enactment. I admit that that applies in so far as it is relevant to the commencement of the Bill; but it is only the Secretary of State's judgment of what is relevant to the commencement of the Bill. So far as I can see, if we pass this clause we shall give the Secretary of State power to modify the due process clause of Magna Charta, to modify habeas corpus or the Police and Criminal Evidence Act, to modify the arbitrary imprisonment provision of the Petition of Rights. I could go on, but I shall not.
  I do not believe that the Secretary of State intends to do any of those things. But that is something which Parliament in its official capacity cannot presume. If we confer these powers on the Secretary of State, they are gone. We do not want to sound like the Emperor Caligula in what is doubtless an apocryphal story. It was said that he used in a fit of drunken rage to say of his friend, "Off with his head". He would then send for the friend the next morning only to be told, "He is executed". "Oh", the emperor would say, "I did not intend it". If any such use is made of these powers it will not be good enough for Parliament to say, "Oh, we did not intend it". If we grant these powers we must accept the possibility that they might be used.
  I know that they are limited to the commencement of the Bill. But that, in a phased commencement, is a

  583
  long period of time. One of things which worries me very much about the government amendment is there is no time limit put upon it.
  I am also worried by subsection (3D) of Amendment No. 106. It states:
  "The Lord Chancellor, the Secretary of State or the Lord Advocate may by order make such amendments or repeals in, or such modifications of, such enactments as may be specified in the order".
  In other words, the Lord Chancellor—and I do not say the noble and learned Lord because I am referring to any Lord Chancellor for the time being—will at last have achieved the true Gilbertian aspirations of his office: he will indeed embody the law. It is possible that there are good reasons for what is proposed, but I do not see them. However, I shall listen to what is said.
  I have one final question which is on a less serious level. Section (3E) refers to a special provision for the Isles of Scilly. I very much doubt that I would wish to object to it. However, I should like to know the reason for it and whether the Isles of Scilly have asked for the provision.
  Moved, That the House do disagree with the Commons in their Amendment No. 106.—(Earl Russell.)
  Lord Simon of Glaisdale: My Lords, this Bill makes an extraordinary leap forward in the arrogation by the Secretary of State of powers traditionally vouchsafed to Parliament and to courts of law. This is an example of the invasion of traditional parliamentary rights; in other words, to amend legislation. I support the remarks made by the noble Earl. However, there is one other point that I venture to bring to the attention of your Lordships. I have in mind subsection (3C). I am especially concerned about paragraph (a). It gives the Secretary of State power to make regulations providing for,
  "the enforcement of a maintenance assessment (including the collection of sums payable under the assessment) as if the assessment were a court order of a prescribed kind".
  Apart from the extent to which that provision goes constitutionally, the extraordinary thing is that the provisions of Clause 48 are not subject to the affirmative resolution procedure under what is now Clause 43. In other words, if there is any provision which ought to subject to the affirmative resolution, it is (3C) (a). It falls under both the first and the second headings of the report of the Joint Select Committee of 1972–73. Because it is such a power, it is not trivial or consequential. Moreover, it also falls under the second heading in that it involves a charge on a citizen. It is too late now to make that an affirmative resolution procedure provision. Therefore, it seems to me that the right course for us to take is to remove the whole provision as suggested by the noble Earl.
  Lord Stoddart of Swindon: My Lords, I should like to ask one short question. The noble Earl raised some very important points. He also pointed out that Amendment No. 106 went through the other place without any discussion, so there is no benefit of ministerial reply to any amendments or questions. Is there any precedent for such a clause as this?
  10.15 p.m.
  The Lord Chancellor: My Lords, the clause deals primarily with the commencement of these provisions. As I indicated earlier, the provisions will deal with almost 2 million customers, which represents about 3 million assessments each year. Therefore it is important that the work should be taken on in phases, as is obvious, in order that the arrangements should work. Precisely how that phasing will be worked out must be a matter of experience as we enter the transitional period.
  Under the present law there are a number of provisions dealing with maintenance. However, it is not right that they should be repealed because they continue to be effective until the transition is made effective. Due to the nature of the task that the agency will be taking on we cannot be certain during what period a particular burden of work will pass to the agency.
  The principles are settled in the Bill. I regard the clauses as clearly subsidiary to the principles. For example, the idea that any of the powers could be used in the way suggested by the noble Earl in relation to Magna Carta would not be correct. Before an order can be made under this provision it must be shown that the order is reasonably regarded as necessary or expedient in connection with:
  "the provisions so brought into force"
  by the order, as is stated in subsection (3A) (a) of the amendment. That includes such adaptations or modifications as are provided for. It is a cardinal principle of the interpretation of a statute of this kind that the powers are given only to effect the policy of the statute. It must be a reasonable exercise of the power before it would be sustained. I suggest to your Lordships that in presenting his argument the noble Earl has perhaps naturally exaggerated the alleged subjective nature of the power. One cannot use the power unreasonably and then attempt to cloak that with the idea that it appeared to the person making the order to be necessary or expedient—
  Lord Avebury: My Lords, surely the Government must know which provisions of which enactments they will need to repeal or amend as the Act comes into force. Therefore, instead of providing for any provision of any other enactment, could the provisions not have been put into a schedule and referred to by name?
  The Lord Chancellor: My Lords, that might be possible but it depends. For example, some degree of modification might be required before the provisions came into effect. The law contains a number of provisions dealing with maintenance but I believe that this is a reasonable way to deal with the matter as subsidiary to the question of the commencement of the statutory provisions.
  We hope that the interim period will be reasonably smooth. In that case it may be possible to bring forward the rest of the work quickly. On the other hand, if difficulties are experienced in carrying out the assessments on the first tranche the matter must be dealt with more slowly. It is therefore right that the existing jurisdiction should be retained and modified

  585
  only when the agency is ready to take over. It will always be necessary in that situation to make detailed modifications to the force of quite a number of existing enactments to cover different stages in the transition period. I am conscious that the clause ranges widely but the scheme is quite ambitious in order to effect an important change in the way in which the maintenance is collected.
  The situation is clearly related to subsections (3A) and (2), which explicitly refer to the order as making provisions supplemental to the commencement of provisions under the Act. I submit that that clearly limits the scope for the detailed provisions that are made.
  My noble and learned friend Lord Simon of Glaisdale spoke of the provisions of subsection (3C) (a) as:
  "the enforcement of a maintenance assessment (including the collection of sums payable under the assessment) as if the assessment were a court order of a prescribed kind".
  Obviously that provision might be required to relate a new maintenance assessment to existing orders. Accordingly, I submit that that is a reasonable provision.
  So far as concerns the Isles of Scilly, the purpose of subsection (3E) is for safety. It is unlikely to he needed but the way in which the Bill is to be brought into force may require that special provisions be made for the Isles of Scilly because of their special situation. This appears to me to be a reasonable arrangement.
  The nature of the clause is not precisely covered by previous precedents because the nature and the burden of the transition are unprecedented. I believe that the clause has the right balance of flexibility and structure to make it appropriate for dealing with a complicated transition from existing arrangements to the new arrangements. I must emphasise that all along we must have a system which operates the arrangements. We cannot completely stop enforcing maintenance for a period in order to bring in the new provisions. We must effect the change at the same time as keeping a comprehensive and effective system in place. For these reasons, I invite your Lordships not to accept the Motion.
  Lord Simon of Glaisdale: My Lords, before my noble and learned friend sits down, he said that he thought subsection (3C) (a) was reasonable. He did not say why it was not subject to the affirmative resolution procedure.
  The Lord Chancellor: My Lords, I do not see that these provisions, which are in the nature of transition provisions, need the affirmative resolution procedure. After all, they are supplementary arrangements in a commencement order. That is the purpose. It is a commencement order for the statutory provisions. The idea is that, because of the nature of the transition, the commencement order needs to be somewhat more complicated in this case than in many others. I believe that the negative procedure is appropriate in the circumstances. It goes without saying that the provisions will be carefully considered before they are put into effect by Parliament.
  Earl Russell: My Lords, it may be for the convenience of the House if I ask a question of the noble and learned Lord before he sits down. Would he be prepared to take back this clause, maybe only until tomorrow morning, to consider whether it can he drafted in a less arbitrary manner? I am sure that if we were only to sit down round a table we could come to some agreement on this. Is the noble and learned Lord prepared to help to that end?
  The Lord Chancellor: My Lords, all I can say is that those who drafted this clause did so conscious of the sort of constraints that this House would wish to see imposed on the clause. I strongly feel that the noble Earl, in making his comments, has not given sufficient weight to the place in which this clause appears and the purposes quite clearly stated in the clause which will govern any exercise of power under it. I honestly do not think that I can do more than abide by the clause as it is. which has passed the other place. Having regard to the advice I have received from those involved in drafting the clause, I do not believe that the time between now and tomorrow morning would be such as to produce any sensible modification of it.
  Earl Russell: My Lords, I can only say that I am extremely sorry for that answer. I understand what the noble and learned Lord is saying. I understand the limitation of purpose, that it is only to effect the policy of the statute and only to bring it into force. I do not think I object to what the noble and learned Lord is trying to do, as I understand it, but I cannot feel happy at having words of this sort passed into an Act of Parliament to remain there, to he used in circumstances that we cannot foresee by people whom we cannot foresee.
  I am sorry that the noble and learned Lord could not respond to the invitation to spell out in a schedule all the statutes he wanted powers to modify. That was just the sort of suggestion where I was hoping some common ground could have been found, but it has not been. I do not think we can agree to let Ministers change the law as seems to them best. That is not the sort of crust it has ever been Parliament's business to give.
  Here I should like to make an apology to the noble Lord, Lord Renton, who put down a Question last spring asking the Government to abandon the use of Henry VIII clauses. I then took a position rather more moderate than that of the noble Lord. I asked for the Government to go back to the position of the Donoughmore Committee. I think that I was wrong and the noble Lord, Lord Renton, was right. Like alcohol, Henry VIII clauses are addictive, and prohibition is the only answer. The only way to bring them under control is to have it known that whenever they are put in Bills this House will divide against them. I urge the House to disagree with the Commons in Amendment No. 106.
  10.28 p.m.
  On Question, Whether the said Motion (No. 106A) shall be agreed to?
  Their Lordships divided Contents. 23; Not-Contents, 43.

  Division No. 3

  CONTENTS

  Avebury, L.

  Mishcon, L.

  Beaumont of Whitley, L.

  Monkswell, L.

  Carmichael of Kelvingrove, L.

  Morris of Castle Morris, L.[Teller.]

  Clinton-Davis, L.

  David, B.

  Peston, L.

  Desai, L.

  Rea, L.

  Flowers, L.

  Rochester, L.

  Graham of Edmonton, L.

  Russell, E. [Teller.]

  Hacking, L.

  Simon of Glaisdale, L.

  Hollis of Heigham, B.

  Stoddart of Swindon, L.

  Macaulay of Bragar, L.

  Tordoff, L.

  Mackie of Benshie, L.

  Williams of Elvel, L.

  NOT-CONTENTS

  Ampthill, L.

  Hesketh, L. [Teller.]

  Arran, E.

  Hooper, B.

  Astor, V.

  Howe, E.

  Beloff, L.

  Johnston of Rockport, L.

  Belstead, L.

  Long, V.

  Blatch, B.

  Mackay of Ardbrecknish, L.

  Blyth, L.

  Mackay of Clashfern, L.

  Boardman, L.

  Montgomery of Alamein, V.

  Brabazon of Tara, L.

  Oxfuird, V.

  Butterfield, L.

  Pearson of Rannoch, L.

  Carnock, L.

  Peyton of Yeovil, L.

  Cavendish of Furness, L.

  Quinton, L.

  Cochrane of Cults, L.

  Reay, L.

  Craigmyle, L.

  Romney, E.

  Davidson, V. [Teller.]

  Seccombe, B.

  Denton of Wakefield, B.

  Strathmore and Kinghorne, E.

  Elles, B.

  Thomas of Gwydir, L.

  Ferrers, E.

  Trumpington, B.

  Flather, B.

  Ullswater, V.

  Glenarthur, L.

  Waddington, L.

  Henley, L.

  Wade of Chorlton, L.

  Resolved in the accordingly.
  10.36 p.m.
  On Question, Commons Amendment No. 106 agreed to.

  COMMONS AMENDMENT
  107 Clause 48, page 32, line 41, leave out 'and 33' and insert '33, and (Right of audience)'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 107. I spoke to this amendment with Amendment No. 85.
  Moved, That the House do agree with the Commons in their Amendment No. 107.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  108 Clause 48, page 32, line 41, after '33', insert 'and paragraph 2B of Schedule 5'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 108. In moving this amendment, I should like to speak also to Amendments Nos. 131 to 133 and to Amendment No. 135.
  These are all technical amendments. Apart from Amendment No. 135, the amendments deal with matters of bankruptcy and provide that child support maintenance will be treated in the same way as court orders for maintenance are now in England and Wales. The amendments for Scotland extend the principles of the existing law on bankruptcy in Scotland to obligations to pay child support maintenance.
  588
  Amendment No. 135 adds to the definition of "maintenance order" in Section 106 of the Debtors (Scotland) Act 1987 a maintenance assessment within the meaning of this Bill. I commend the amendments to your Lordships.
  Moved, That the House do agree with the Commons in their Amendment No. 108.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  109 Clause 48, page 32, line 42, leave out 'and 26' and insert 26 and (Right of audience: Scotland)'.
  110 Page 32, line 43, leave out 'section 47(1)' and insert 'sections 47(1) and (Child Support Commissioners for Northern Ireland)'.
  111 Page 32, line 44, leave out 'Schedule 2' and insert 'Schedules 2 and 4'.
  112 Page 33, line 10, leave out subsection (10).
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 109 to 112. I have already spoken to these amendments with earlier amendments.
  Moved, That the House do agree with the Commons in their Amendments Nos. 109 to 112.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  113 Schedule 1, page 36, line 5, leave out from beginning to end of line 15 and insert—
  'AE=Z x Q x(A/A+C)
  where—
  A and C have the same values as in the calculation made under paragraph 2(1);
  Z is such number as may be prescribed; and
  Q is the aggregate of—

  (a) any amount taken into account by virtue of paragraph 1(3)(a) in calculating the maintenance requirement; and

  (b) any amount which is both taken into account by virtue of paragraph 1(3)(c) in making that calculation and is an amount prescribed for the purposes of this paragraph.'.

  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 113.
  I do not think there is any disagreement that parents should continue paying maintenance even when the maintenance requirement is met. Children should be able to benefit from the prosperity of their absent parent in the same way as children in families that are not broken do. But we believe that there comes a point where an automatic formula is not appropriate.
  We made it clear in the White Paper that it was our intention to set a cut-off point at which an absent parent who was well off would not automatically continue to pay extra maintenance under the formula. Provision for that is made in paragraph 4 of Schedule 1.
  This amendment deals with the way in which the cut-off point is to be worked out. It proposes that it should be worked out by setting a maximum amount of extra maintenance to be paid per child. We believe

  589
  that the amendment, by changing the approach for the setting of the cut-off point, so that it looks more at what is due to the children rather than looking to the parents' income in isolation, is a better approach.
  We believe that it is consistent with the aim of better providing for the interests of children.
  Moved, That the House do agree with the Commons in their Amendment No. 113.—(Lord
  Henley.)
  Lord Mishcon: My Lords, if anybody looking at the amendment understands its purpose (which was so clearly explained by the Minister), he is certainly a better mathematician than I ever was. Although I cannot do any more in regard to this Bill, certainly in the future when legislation is to affect simple people -especially when it affects simple people - I can only plead that complicated formulae are used which none but experts could ever hope to understand. One of those experts happens to be the noble and learned Lord the Lord Chancellor and another, I am sure, is the Minister. But they must be in a minority in this land.
  Lord Renton: My Lords, it may console the noble Lord, Lord Mishcon, to learn that, as it contains one formula, the proposed amendment is in fact much simpler than the combined effect of the two formulae that were in the Bill originally and which are now to he replaced. Although this may not be the best Bill to include something like eight or nine formulae, formulae have their place. Perhaps at this late hour I may use colloquial English. There is a thing called the Renton Report, in which it is suggested that in suitable circumstances formulae such as this one could be used. They do sometimes help.
  Having said that, will my noble friend clarify a point. which puzzles me? It arises from what he said and which is in his note. My puzzlement perhaps arises from my lack of understanding in the time available.
  The noble Lord said that this formula determines the maximum amount to be paid by the absent parent. Does that mean that, by order, a lesser amount than that maximum amount could be ordered by him to be paid? If so, and if he means what he says in the note, the matter is of some importance.
  10.45 p.m.
  Lord Simon of Glaisdale: My Lords, the formula is the bureaucratic heart of this bureaucratic Bill. The Renton Committee gave its blessing to the use of formulae, particularly in revenue statutes, but even there it gave warning that they must not be incomprehensible to the people to whom they were addressed. If I may say so, I entirely agree with the noble Lord, Lord Mishcon, that all these formulae are quite incomprehensible to the people to whom they are addressed.
  In correspondence with my noble and learned friend about another provision of the Bill, a letter came to me stating that it was important that the Bill should be understood by ordinary people. How many ordinary people will understand Schedule 1? Let us not forget who those ordinary people are. As my noble and learned friend pointed out many months ago, the
  590
  two typical people are those in Example 3 in the White Paper: a young man with under average earnings with a younger wife with two children. One goes further. The provisions have to be understood by girls of 12 years and upwards and boys of 14 in Scotland.
  It is against that background that one considers what the amendment provides. Curiously enough, it amends a provision to which I drew attention at Report stage and whose virtues the noble Lord, Lord Henley, offered to defend on a blackboard. As it was the early hours of the morning, your Lordships graciously dispensed with that kindness. The noble Lord, Lord Renton, pointed out that this was a shorter formula. However, it is a great mistake to think that everything is said by the way in which it is shown in the amendment.
  Let us consider lines 5 to 13—AE refers to the additional assessment:
  "AE=Z x Q x (A/A+c)".
  But each of those terms requires explanation. The proposed schedule states:
  "Z is such number as may be prescribed".
  In other words, it is completely at large. It continues:
  "Q is the aggregate of … any amount taken into account by virtue of paragraph 1(3) (a) in calculating the maintenance requirement … and any amount which is both taken into account by virtue of paragraph 1(3) (c) in making that calculation and is an amount prescribed for the purposes of this paragraph".
  If that were all, it would probably be enough for the hopeful young maintenance creditor or debtor. But in fact one has to spell out what A and C mean.
  Your Lordships will find A at page 34, line 37, which leads on to page 36, line 19. You will find C at page 34, line 38, which refers forward to page 36, line 30. That is the work that they have to do. When they have done it, the formula looks like this:
  "AE=Z x Q x (N-C/(N-C) x (M-F))".
  That is a mouthful for anyone seeking maintenance or advising in a citizens' advice bureau, or indeed for any parliamentarian. I suggest that it is an outrage to put such legislation before Parliament and then to state not only in letters to Ministers but in speeches in another place that the essence is to make the Bill comprehensible to ordinary people.
  The Earl of Halsbury: My Lords, perhaps my noble and learned friend will allow me to intervene. Has the Minister by any chance forgotten the number that he first thought of?
  Lord Henley: My Lords, I am sorry that I was unable to bring along a blackboard. On the previous occasion when we discussed various formulae it was rather late at night. We seem to be repeating ourselves. It may have something to do with the fact that schedules come towards the end of the Bill.
  I thank my noble friend Lord Renton for welcoming the use of formulae on certain occasions. This is an occasion when the use of a formula can be justified, and I shall set out what the algebraic formula means.
  But first I shall deal with a point made by my noble friend. He asked whether the formula set a maximum

  591
  and whether less can be payable by order. The answer is no. How much maintenance anyone pays is by a fixed deduction rate until the maximum is reached. How much is paid depends therefore upon income and affordability, which are built into the formula. I am not sure whether that was the point that my noble friend was trying to make. If he was also worried that that provides a maximum beyond which one could not go and that therefore the children might not be able to benefit from an absent parent whom we might call seriously rich rather than one having more income than the average, Clause 8 enables the courts to make awards in addition to formula awards.
  I shall now give an explanation of the algebra contained in the amendment. Where the total assessable income of both parents is more than sufficient to meet the maintenance requirement in full, the maintenance the absent parent will be expected to pay will be composed of two elements—the basic element and the additional element. It is the additional element (the AE) about which we are talking. The basic element is defined in paragraph 3 of Schedule 1 and represents the amount of the maintenance requirement the absent parent should pay based on his share of the total assessable income.
  The definition of the additional element which will apply normally is found in paragraph 4(1) and looks at the amount of the absent parent's assessable income left after he has met his share of the maintenance requirement. A lower deduction rate will apply to that income. However, if the use of that formula were unrestricted, some people with very high incomes would pay large amounts of maintenance. As I have already said, there should be a cut-off point for the amount of maintenance generated by the maintenance formula.
  In looking at what that cut-off point should he, we were guided by three considerations. First, it should reflect the number and age of children to whom the maintenance requirement applies—the more children, and the older the children, the higher the cut-off point. Secondly, the cut-off point should rise over time to match rises in income and prices, and we do not want to have to amend primary legislation to change the level of the ceiling. Finally, it is right to take account of the caring parent's ability to support her child when looking at the cut-off point for that child.
  The way we had drafted paragraphs 4(3) and 4(4) did not satisfy those conditions. We believe the amendment achieves our aim. It ensures that the total maintenance paid by both parents depends upon the maintenance requirement plus some multiple (named Z in the formula) of the aggregate Q of the amounts used in calculating the maintenance requirement and which are paid for the child or children and is therefore linked to the number and age of children. The multiplier and some of the amounts will be prescribed in regulations which will he affirmative and hence open to debate. As the amounts are linked to income support rates, the cut-off point will increase when benefits are uprated. The amount payable by the absent parent will depend upon his share of the total assessable income.
  592
  The noble Lord, Lord Mishcon. criticised the complexity of the formulae and said that it is very difficult for the man in the street to understand them. We had some fairly light-hearted discussion on the formulae generally at earlier stages of the Bill. I appreciate that they can be difficult to understand but we shall make available guidance which can spell out those matters in a way which legislation cannot do but in a way which will make it possible to understand for the man in the street or his adviser.
  With that assurance, I commend the amendment to the House.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  114 Schedule 1, page 37. line 16, after 'that' insert 'where the prescribed minimum amount fixed by regulations made under paragraph 7 applies'.
  115 Page 37. line 18, leave out from 'than' to end of line 19 and insert 'that amount'.
  116 Page 37. line 32, leave out 'sub-paragraph (1) "the' and insert 'this paragraph the "
  117 Page 37, line 41, leave out 'unless the case is one to which section 39 applies' and insert—
  '(3) In any case to which section 39 applies, and in such other cases (if any) as may be prescribed, sub-paragraph (2) shall not apply'.
  118 Page 38, line 7, leave out 'qualifying'.
  Lord Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 114 to 118 en bloc. Amendment No. 116 is a minor technical amendment. Amendments Nos. 114, 115 and 117 amend paragraph 7, which provides for a minimum payment of child maintenance. Potentially that could apply to all absent parents except for those on income support. The amendments make provisions to specify exceptions to the minimum amount.
  Amendment No. 118 amends paragraph 9, which provides for a number of regulation-making powers relating to the calculation of the parent's income and capital for the purposes of the maintenance assessment. It includes provision for the income of a child to be included in exempt income in any case where the child is the child of a parent whose resources are being assessed. That is needed to offset the allowance made in exempt income.
  Moved, That the House do agree with the Commons in their Amendments Nos. 114 to 118.—(Lord Henley.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  119 Schedule I. page 39, line 2, leave out 'dealing with any application or appeal under this Act'.
  120 Page 39, line 3, leave out second 'the' and insert 'a'
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 119 and 120 en bloc.
  Moved, That the House do agree with the Commons in their Amendments Nos. 119 and 120.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  121 Schedule 1, page 39, line 20, at end insert—
  '(e) where a new maintenance assessment is made with respect to any qualifying child with respect to whom the assessment in question was in force immediately before the making of the new assessment.
  (1A) A maintenance assessment made in response to an application under section 4 or 7 shall be cancelled by a child support officer if the person on whose application the assessment was made asks him to do so.
  (1B) A maintenance assessment made in response to an application under section 6 shall be cancelled by a child support officer if—

  (a) the person on whose application the assessment was made ("the applicant") asks him to do so; and

  (b) he is satisfied that the applicant has ceased to fall within subsection (1) of that section.'.

  122 Page 39, line 26, at end insert—
  '(2A) Where—

  (a) at any time a maintenance assessment is in force but a child support officer would no longer have jurisdiction to make it if it were to be applied for at that time; and

  (b) the assessment has not been cancelled, or has not ceased to have effect, under or by virtue of any other provision made by or under this Act,

  it shall be taken to have continuing effect unless cancelled by a child support officer in accordance with such prescribed provision (including provision as to the effective date of cancellation) as the Secretary of State considers it appropriate to make.'.
  123 Page 39, line 30, after 'sub-paragraph', insert '(2A) or'.
  124 Page 39, line 32, leave out 'under this paragraph'.
  125 Page 39, line 42, after 'such', insert 'supplemental, incidental or'.
  Lard Henley: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 121 to 125 en bloc. These amendments amend paragraph 16 of Schedule 1, which deals with the termination of assessments. These various amendments expand the provisions detailing the circumstances when assessments can be cancelled and make minor drafting amendments.
  Moved, That the House do agree with the Commons in their Amendments Nos. 121 to 125.—(Lond Henley.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  126 Schedule 3, page 41, line 38, leave out 'to act as full-time chairmen'.
  127 Page 42, line 1, after 'appoint', insert 'regional and other'.
  128 Schedule 4, page 44, line 28, at end insert:
  'Northern Ireland
  8. In its application to Northern Ireland this Schedule shall have effect as if—

  (a) for any reference to a Child Support Commissioner (however expressed) there were substituted a corresponding reference to a Child Support Commissioner for Northern Ireland;

  (b) in paragraph 2(1), the word "pensions" were omitted;

  (c) for paragraph 3, there were substituted—

  "3. A Child Support Commissioner for Northern Ireland, so long as he holds office as such, shall not practise as a barrister or act for any remuneration to himself as arbitrator or referee or be directly or indirectly concerned in any matter as a conveyancer, notary public or solicitor.";
  (d) in paragraph 4—

  (i) for paragraph (a) of sub-paragraph (2) there were substituted—

  "(a) from among persons who are barristers or solicitors of not less than 10 years' standing; and";

  (ii) for sub-paragraph (3) there were substituted—

  "(3) Paragraph 2 applies to deputy Child Support Commissioners for Northern Ireland, but paragraph 3 does not apply to them."; and
  (e) paragraphs 5 to 7 were omitted.'.
  129 Schedule 5, page 44, line 45, at end insert:
  'The Northern Ireland Constitution Act 1973 (c. 36)
  1A. In paragraph 9 of Schedule 2 to the Northern Ireland Constitution Act 1973 (certain judicial appointments to be an excepted matter), after the words "for Northern Ireland", where they first occur, there shall be inserted "the Chief and other Child Support Commissioners for Northern Ireland".'.
  130 Page 44, line 45, at end insert:
  'The House of Commons Disqualification Act 1975 (c.24)
  1B.—(1) The House of Commons Disqualification Act 1975 shall be amended as follows.
  (2) In Part I, (disqualifying judicial offices), the following entries shall be inserted at the appropriate places—
  "Chief or other Child Support Commissioner (excluding a person appointed under paragraph 4 of Schedule 4 to the Child Support Act 1991)."
  "Chief or other Child Support Commissioner for Northern Ireland (excluding a person appointed under paragraph 4 of Schedule 4 to the Child Support Act 1991)."
  (3) In Part III (other disqualifying offices), the following entry shall be inserted at the appropriate place—
  "Regional or other full-time chairman of a child support appeal tribunal established under section 20 of the Child Support Act 1991".
  The Northern Ireland Assembly Disqualification Act 1975 (c.25)
  1C.—(1) In Part I of the Northern Ireland Assembly Disqualification Act 1975 (disqualifying judicial offices), the following entries shall be inserted at the appropriate places—
  "Chief or other Child Support Commissioner (excluding a person appointed under paragraph 4 of Schedule 4 to the Child Support Act 1991)."
  "Chief or other Child Support Commissioner for Northern Ireland (excluding a person appointed under paragraph 4 of Schedule 4 to the Child Support Act 1991).".
  131 Page 45, line 8, at end insert:
  'Bankruptcy (Scotland) Act 1985 (c.66)
  2A. (1) The Bankruptcy (Scotland) Act 1985 shall be amended as follows.
  (2) In section 32 (vesting of estate and dealings of debtor after sequestration)—

  (a) in subsection (3)—

  (i) after paragraph (b) there shall be inserted—

  "(c) any obligation of his to pay child support maintenance under the Child Support Act 1991,";
  (ii) after "relevant obligations" where second occurring there shall be inserted "referred to in paragraphs (a) and (b) above";
  (b) in subsection (5) after "Diligence" there shall be inserted "(which, for the purposes of this section, includes the making of a deduction from earnings order under the Child Support Act 1991)".
  (3) In section 37 (effect of sequestration on diligence), in subsection (5A) for "or a conjoined arrestment order" there is substituted ", a conjoined arrestment order or a deduction from earnings order under the Child Support Act 1991".
  (4) In section 55 (effect of discharge under section 54), in subsection (2) (d)—

  (a) after "being" there shall be inserted "(i)";

  (b) at the end there shall be inserted—""or

  (ii) child support maintenance within the meaning of the Child Support Act 1991 which was unpaid in respect of any period before the date of sequestration of—
  (aa) any person by whom it was due to be paid;
  "or
  (bb) any employer by whom it was, or was due to be, deducted under section 29(5) of that Act.".'.
  132 Page 45, line 8, at end insert:
  'The Insolvency Act 1986 (c.45)
  2B. In section 281(5) (b) of the Insolvency Act 1986 (effect of discharge of bankrupt), after "family proceedings" there shall be inserted "or under a maintenance assessment made under the Child Support Act 1991".'.
  133 Page 45, line 20, at end insert:
  '(4A) In section 72 (effect of sequestration on diligence against earnings)—

  (a) in subsection (2) after "order" there shall be inserted "or deduction from earnings order under the Child Support Act 1991";

  (b) after subsection (3) there shall be inserted—

  "(3A) Any sum deducted by the employer under such a deduction from earnings order made before the date of sequestration shall be paid to the Secretary of State, notwithstanding that the date of payment will be after the date of sequestration.";
  (c) after subsection (4) there shall be inserted—
  "(4A) A deduction from earnings order under the said Act shall not be competent after the date of sequestration to secure the payment of any amount due by the debtor under a maintenance assessment within the meaning of that Act in respect of which a claim could be made in the sequestration.".'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 126 to 133 en bloc.
  Moved, That the House do agree with the Commons in their Amendments Nos. 126 to 133.—(The Lord Chancellor).
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  134 Schedule 5, page 45, line 22, leave out ', there shall be added at the end' and insert:

  (a) in paragraph (c) for "within the meaning of the Wages Councils Act 1979" there shall be substituted ", namely any enactment, rules, deed or other instrument providing for the payment of annuities or lump sums—
  596

  (i) to the persons with respect to whom the instrument has effect on their retirement at a specified age or on becoming incapacitated at some earlier age, or

  (ii) to the personal representatives or the widows, relatives or dependants of such persons on their death or otherwise,
  whether with or without any further or other benefit;"; and

  (b) at the end there shall be added—'.

  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 134. This amendment is intended to deal with the effect of the Debtors (Scotland) Act 1897. The purpose of it is to ensure that the obsolete reference in that Act to the now repealed Wages Council Act 1979 is removed and replaced with a definition of a superannuation scheme for the purposes of determining the debtor's net earnings; that is, the debtor's net pay capable of being subject to an earnings arrestment. In my submission, that is important to make effective the basis to which the formula is applied in this case.
  Moved, That the House do agree with the Commons in their Amendment No. 134.—(The Lord Chancellor.)
  Lord Renton: My Lords, it is difficult to see what this amendment has to do with child support, although one sees that it makes clear certain provisions of the 1987 Act, to which my noble and learned friend referred. At this late hour I do not press him to explain the connection. We all admire the stamina, patience and application that he has revealed for the past six-and-a-half hours. I hope that neither he nor your Lordships will ever again have to undergo a similar experience.
  The Lord Chancellor: My Lords, I am grateful to my noble friend for his kind remarks. It would be fair for me to share his hope with regard to the future. With regard to this specific definition, it is important for the basis of the formula that it be expressed correctly and that is why it is included in the Bill.
  On Question, Motion agreed to.
  11 p.m.

  COMMONS AMENDMENT
  135 Schedule 5, page 45, line 26, at end insert:
  '(6) In section 106 (interpretation) in the definition of "maintenance order"—

  (a) the word "or" where it appears after paragraph (g), shall be omitted; and

  (b) at the end there shall be inserted "or

  (j) a maintenance assessment within the meaning of the Child Support Act 1991.".'.
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 135. I have already spoken to this amendment with Amendment No. 108. I thank your Lordships for your patience and support at this hour enabling us to reach this stage.
  Moved, That the House do agree with the Commons in their Amendment No. 135.—(The Lord Chancellor.)
  On Question, Motion agreed to.
  Amendment (privilege) made.

Consolidated Fund (Appropriation) Bill
Brought from the Commons, endorsed with the certificate of the Speaker that the Bill is a money Bill, and read a first time.

British Technology Group Bill
11.4 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Reay): My Lords. I beg to move that the Report be now received.
Moved, That the Report be now received.—(Lord Reay.)
Lord Williams of Elvel: My Lords, I hesitate to detain the noble and learned Lord the Lord Chancellor after his marathon on the previous business, but I must protest that this is an important Bill and we are receiving the Report at 11 p.m. on the Mond ay before the Recess. I believe that it is not proper for this House to consider a Bill of this importance on Report at this late hour. Having said that, I do not wish to divide the House on this Motion.
On Question, Report received.
Clause 1 [Vesting of property etc. of NRDC and NEB in a successor company]:
Lord Flowers Lord Flowers moved Amendment No. 1.
Page 1, line 21, at end insert:
("( ) The Secretary of State shall not nominate a company for the purposes of this section unless he is satisfied that the articles of association of the company include a provision for the appointment of at least one person as a director of the company after consultation with such persons appearing to him to be representative of the Universities and Research Councils of the United Kingdom as he considers appropriate and not withstanding anything in the Companies Act 1985 no such provision shall be altered without the consent in writing of the Secretary of State.").
The noble Lord said: My Lords, when the Bill was debated in Committee at a somewhat earlier hour of the day, there was wide support for amendments which sought to provide some guarantee that the successor company would continue to carry out the business for which BTG is justly famous. The essential nature of that business concerns the development of the results of basic research into industrially profitable products and processes. Most of the research originates in the universities and their associated teaching hospitals and in the laboratories of the research councils. It is a business which takes many years, sometimes decades, to bear fruit, and the protection of intellectual property rights arising in many different fields of science is therefore a difficult matter requiring specialised experience.
The amendments to which I referred were withdrawn in the hope that the Government would think again. I gladly acknowledge that Ministers seem to have gone some way to meeting our anxieties in the latest draft of the articles of association, which in places adopt my own words. Our anxiety with the Bill as it stands is neither with the intentions of Government nor with the articles; it is with the fact that e guarantees we seek and deem essential if the company is to continue to provide services of the kind
598
now offered, are contained in the memorandum of association and not on the face of the Bill and may therefore be changed by a vote of the shareholders.
Despite our best efforts inside and outside your Lordships' House, Ministers have been unbending in this respect and perforce I must try again. They are willing to relax the articles of association, but not the Bill itself. It seems that the Government wish to legislate by article but not by Bill, but that they cannot do. If the articles are as binding as the Government make out, the essence of them might as well feature on the face of the Bill. If they are not, then a fortiori the Bill itself should provide the guarantees we seek.
I understand very well that the Government do not wish to hedge the Bill around with a mass of narrow restrictions. That would greatly reduce the value of the company to a potential purchaser and therefore rob the taxpayer of possible gains. At the same time, one has to recognise that, in the longer term, the continuing profitability of the company, and therefore the continuing gains to the taxpayer from its activities, depends on it being able to attract the kind of business it now attracts. That means that it must continue to enjoy the trust of the research community it serves, otherwise it might as well go off and manufacture marmalade. Indeed, that might be more profitable in the short term.
Perhaps it will be argued that the amendments that we are discussing this evening are causing intolerable uncertainty for the staff of the company. But if we do not get the Bill right it would be well to remember that there are not many marmalade makers on the staff of BTG. I assume that the Government are interested in the longer-term profitability of the company, not merely in its sale price on privatisation. However, there is nothing in the Bill to justify that assumption. I am therefore seeking the minimal amendment which would permanently enshrine in the Bill some essential flavour of the work of the company.
After taking professional advice, I have come to the conclusion that the best way forward, although it is certainly a minimalist approach, is to write into the Bill something that is already in the draft articles; namely, that there shall be at least one director of the company, appointed in an appropriate manner, to represent the research community. Of course, I shall be happier if there are two such directors or more, but the phrase "at least one" at least permits the more generous interpretation already allowed by the articles of association.
Perhaps this proposed measure will slightly reduce the value of the company to a buyer who would find the presence of a representative of the research community not to his taste. That would confirm my worst fears. It is, as I have said, a matter of balancing the short-term value of the sale against the continuing profitability of the company, which depends on it being able to retain the confidence of the research community. If that confidence is retained I can assure your Lordships that there will be no shortage of prospective buyers. On the other hand, if the directors of the company are not in a position to insist that the

599
essential characteristics of the company are to continue, the confidence of the research community will be lost.
What will then happen? Some universities—a few that are exceptionally strong in research—have already made internal arrangements to secure their own intellectual property rights and to develop the results of their research with appropriate firms of their own choosing. Even so, much of their more specialised business remains with BTG. Other universities will do likewise, or more likely will take advantage of offers of assistance from one or more of those that already have the facilities. In other words, a rival BTG will develop within the research community itself, probably in a university and since that will certainly have the confidence of its potential customers, it will attract away not only the business but also the staff of the existing BTG. That would be a shameful waste—a further stumbling block in the way of innovation for the benefit of industry and ultimately of the taxpayer.
It must be clear that thoughts such as these must be coursing through the minds of potential members of any consortium that the Government may have in mind to purchase the company. I am thinking of venture capital firms, universities and charitable foundations, all of which will be concerned about the continuing profitability of the company. If the Government refuse to concede the desirability of putting some reasons for confidence on to the face of the Bill, these people and organisations will draw their own conclusions, as will the scientists themselves.
I am the chairman of a charitable foundation that is considering whether to invest in the successor company. It will not do so in order to support the Government; that would not be a charitable action. It will do so, if at all, only because it is convinced that it would be a sound investment from its own, purely charitable point of view. I doubt, frankly, whether my fellow trustees would be impressed by the assurances so far provided by the Government, unsubstantiated as they are by the wording of the Bill. I would hazard a guess that trustees and investment committees of many other foundations will take the same line at the end of the day, no matter what interest they have shown so far.
The amendment proposed by the noble Lord, Lord Beloff, the noble Baroness, Lady Park of Monmouth, the noble Lord, Lord Kirkwood, and myself is an exceedingly modest one. It is intended to provide an indication on the face of the Bill that the essential nature of this company and its business will continue. I have heard it said that the Treasury strongly opposes any attempt to modify the Bill in this way because of the precedent it would create. We are dealing with a company that even the Government must by now realise is unique, requiring unique measures. We should not skulk behind our fears of raising precedents. I have spoken for too long and it is late. I beg to move.
Lord Peyton of Yeovil: My Lords, my first question—which I regard as a serious one—is: what is the hurry about this Bill? The Bill simply enables the Secretary of State to sell the British Technology Group to some person or persons as yet unidentified,
600
in a future which we cannot yet see. It seems to me very odd—to use a mild adjective—that we should be here at this time of night considering such a measure.
I cannot refrain from expressing some regret that my noble friend the Leader of the House, who was so recently in his place, did not feel able to stay and share with us some of the pain which I think is attendant upon further consideration of this measure now. In supporting the noble Lord, Lord Flowers, I do not want to repeat all the arguments that he used, but I want particularly to express my intense dislike of this growing habit of governments to legislate by means of articles of association or to half legislate by such means. Articles of association, or a draft of them such as we have available to us—I do not say "before us" because we cannot amend them—are useful as an indication of what is in the Government's mind at the present time or what the Secretary of State has in his mind now. They give no assurance about the intentions of whoever may be the eventual purchasers of the company.
Perhaps I may trespass on your Lordships' indulgence for a moment to give one example of why I dislike this in detail as well as in principle. The definition of "permitted person" occurs on page 14 of the draft articles. In paragraph 5, on page 16, we see the sentence:
"If, to the knowledge of the directors, any person other than a permitted person is or becomes a relevant person, including, without limitation, by virtue of being deemed to be one, the directors shall give notice to all persons, other than persons referred to in paragraph 10 below, who appear to the directors to have interests in the relevant shares, and, if different, to the registered holders of those shares".
If your Lordships were to go so far as to describe that as verbal garbage, I should find it exceedingly difficult to dissent. I certainly should not like in any way to give my implied approval to such material. I do not wish to dwell any further on a painful subject. I have tabled an amendment which I shall propose with reasonable brevity. I do not wish to repeat those points now. I support the amendment moved by the noble Lord.
Lord Beloff: My Lords, having put my name to the amendment, I should like to say something about it without repeating the, to my mind, convincing and detailed arguments put forward by the noble Lord, Lord Flowers. After the discussion at earlier stages of the Bill, I am surprised that it has been necessary to put down this amendment since one should have thought that the Government themselves would have been so anxious to allay the fears of the scientific community that they would have put forward this provision.
As the Minister knows, the issue is whether the British Technology Group should continue to provide the services it has provided under a different form of ownership or whether it should be treated as one of the Government's assets, available in order to stimulate the flow of petty cash. A fear, arising from statements from the Treasury or Treasury-inspired statements about the undesirability of giving precedents for other privatisation measures, is bound to be in people's minds.

601
The Government have had a perfectly easy and straightforward way of allaying our doubts. They could have said that they undoubtedly wish that the services which BTG provides for the scientific community should continue; that they appreciate that these services are necessarily long-term in their financial return; and that, to ensure that this is so, they will provide for appropriate directors who, being in touch with the scientific community, would know what were the opportunities which BTG might have and the dangers which it should avoid.
Therefore, I believe that it is necessary—and I think that the House will also find it so—for the Minister to explain why the Government have not acted in that way. Is it that they fundamentally disbelieve in the future potential of BTG and that they are not interested in making possible the development of inventions and discoveries made in our institutions of higher education and in our research laboratories? Alternatively, do they have some other way in which they propose to demonstrate that devotion?
As I have said before in many other contexts—and I believe it is worth repeating—the Government are on a had wicket when it comes to dealing with universities and the scientific community at present. Their record has been challenged in many respects, often on finance al grounds. However, here we have something which is, in a way, costless; namely, the nomination of a couple of directors to a future privatised company. Her Majesty's Ministers now have a chance to say, "We have been misunderstood. We are, in fact, in favour of British science. We should like to see the development to the utmost of what can be discovered by the talents of our scientists and inventors. We gladly offer this, or an alternative method". If they are unable to do so, I fear that they are, even at this time of night, making a grave political mistake.
Lord Williams of Elvel: My Lords, I support the noble Lords, Lord Flowers and Lord Beloff, in what they said. This is a test of the Government's intentions as regards BTG and its future. However, having said that I support them in principle, I must say that I have certain reservations about the text of the amendment moved by the noble Lord, Lord Flowers. It seems to me—I hope that I am not anticipating the speech about to be made by the noble Lord, Lord Reay—that to put into articles of association something which, notwithstanding anything in the Companies Act, cannot be altered unless the Secretary of State consents to it in writing, cuts across our companies legislation.
While I approve of the spirit of the amendment—and I very much hope that the noble Lord will accept that spirit—I am sure that the noble Lord will wish to take it to his own counsels to ensure that it is drafted appropriately. As the noble Lord, Lord Beloff, said, this is something which is a matter of principle for the Government. Either they wish to support BTG and its future in the transfer of technology from universities into the commercial reality or they do not.
I do not wish to pursue that argument on this amendment because I have other arguments to put forward in regard to future amendments. However, as I said, I very much hope that the noble Lord, Lord
602
Reay, will accept the spirit of the amendment which has been offered, and that he will produce something on Third Reading which is appropriate to the parliamentary draftsmen.
Lord Butterfield: My Lords, I am convinced by the argument put forward by the noble Lord, Lord Flowers, supported on all sides of the House. I am convinced by his strong argument that the community from which the ideas will be emerging will be much happier if it believes that on the board of the company will be someone who understands the work that it is doing. It should be someone who will have contact with a wide range of people in the network of inventive science in this country. In the past the work of people in the research councils and in the universities has flowered, while others have taken the profitability because people in high places have been unaware of the possibilities for development. People in laboratories need that information to give them confidence in the body that is to be set up.
The Earl of Halsbury: My Lords, I support the amendment. The noble Lord, Lord Flowers, and I have been friends and colleagues in the same environment for approximately 30 years. It comes as natural to me to rise in his support. I have already declared my interest in this matter. However, I want your Lordships to understand why I am so dubious about what the Government are proposing. On one interpretation of their proposal they will render nugatory 10 years of my life; that is one quarter of my professional career.
The corporation was the conception of the noble Lord, Lord Wilson, who can no longer be in his place but who I was glad to see in the Chamber at Question Time. I was the midwife or chief executive of the corporation. For 10 years I appointed the young men. I was not a tree under whose shade other trees do not grow. The young men I appointed were the future managing directors of that corporation and they did very well. They took the seed that I had sowed and turned it into fruit. Each year £1½ billion worth of goods were manufactured under licence from the corporation. It had a royalty revenue of £30 million per year. I began that corporation with a total loan capital of £5 million, of which I used only £3 million. The whole amount was paid back with compound interest in the course of the years.
I believe that to be an achievement. The Government are laying an axe to the root of that tree by threatening the future potential sale of the BTG to philistine asset strippers who will stop all forward development on a large scale. On Second Reading and in Committee I told your Lordships how the next big revenue earner will be based on a product for which the authority of development was under my managing directorship 35 years ago. In some cases that is what it takes to make a major technological breakthrough.
On one view of the matter all that will come to an end. The assets will be stripped. "I'll take the cash and let the credit go—nor heed the rumble of the distant drum", is what the asset strippers will think, say and

603
do. The distant drum will be the technological development that they have not looked forward to 35 or 40 years ahead.
Perhaps I may remind your Lordships of the normal organisation of a well-managed public liability company. The shareholders meet only once a year in annual general meeting. There they elect the directors of the company, who are thereby given the authority to manage its affairs for the next 12 months. They then report and submit their accounts. They also submit themselves on rotation for re-election by the shareholders. That is all that the shareholders have to do with the management of the company. If the Government are to find some future shareholder who will submit to those conditions they will have a long way to hike because they have already submitted themselves to a restriction that no one may own more than 15 per cent. of the shares. That is quite a big shareholding.
I have no doubt that the noble Lord who replies for the Government will say that the proposal of the noble Lord, Lord Flowers, is a bad precedent. It is not, for the simple reason that it is not even a precedent. I can give the precise precedent for what he proposes: it is the upper board structure of BP. When it was a big public company—as it still is—it had a government nominee always on its board. The reason I can speak on this with such assurance is that one of the latest government nominees—Sir Frederic Harmer—is an old friend and colleague of mine who was nominated to the meteorological committee, of which I was chairman. He represented the shipping interests. For the amusement of his wife, he and I made a tape recording of our reminiscences of our careers which included exactly how he was promoted to the board of BP as government nominee.
As in The Hunting of the Snark, one threatened its life with a railway-share, I can threaten the noble Lord's ministry with a tape recording of the precedent on which my noble friend Lord Flowers is entitled to rely.
I have been active behind the scenes in the past few weeks, testing opinion. I tested the opinion of a City company of which I am a liveryman. It was quite intrigued with the idea that it might be nominated as one of the great and the good which might hold shares in this passive owning of shares. I have discussed it with a charity which was intrigued with the idea that it might own shares. I have discussed it with the university of which I am chancellor and it is intrigued. I have discussed it with the Royal Society of Chemistry. There is a possibility that we could get together a consortium of research councils, universities, charities and City companies, all of which could be the great and the good, earning revenues from shares of which they disinvested themselves in order to invest in the future BTG. This is a viable proposition, I am convinced it could be carried through to a successful conclusion. What I want from the noble Lord, Lord Reay, on behalf of the Government, is an undertaking that they will do nothing to subvert our efforts to try to bring such a consortium into being.
11.30 p.m.
Lord Desai: My Lords, I rise at this late hour because I feel that although this is a somewhat technical matter, much cultural and historical fact hinges on it. For far too long the sad story of the British decline has hinged on the fact that there is a great contempt for knowledge, especially professional knowledge. For far too long we have thought that basic research was a luxury which the practical men did not need.
We have now reached a stage of industrial technology where that can no longer be the right answer. Basic research is vital to industrial technology. It is in the universities and nowhere else that basic research is developed. It is folly to think that one can ignore academics.
I am not a scientist, I shall never do any useful research for BTG, but I passionately believe that unless we integrate basic research into industrial technology right from the beginning in an important place we shall once again have missed the bus. The German caricature is of the professor who becomes managing director. We need to do the same. I believe that BTG has, after some difficulty, developed a good combination of university and industrial cooperation. It is important that we should not lose it.
Lord Rochester: My Lords, my noble friend Lord Kirkwood had hoped to speak on the amendment. He has had to leave in order to attend a conference in Cambridge early tomorrow morning. In his absence, I wish simply from these Benches to express my strong support for the principle underlying the amendment.
Baroness Hollis of Heigham: My Lords, I too should like to be associated with this amendment. We argued at great length at Second Reading and in Committee on the virtues and merits of BTG, especially since 1985 and the new management. The new BTG has offered the capacity to move and to draw virtues from both the public and the private sector, to be able to loop back British inventiveness into British industry, to hoard the long-term quality of research and development and to be able to move from patenting and development to exploitation in the public as well as the private interest.
These are all the distinctive virtues of BTG that the academic and research communities fear—let us hope wrongly—may be jeopardised by movement into the commercial sector, with some of the short-termism that unfortunately has been all too evident in British research and development in the private sector over the past 20 to 25 years.
It seems to me that this is now the time for the Government to give the signal back to the university community that the privileged status of the universities and research councils in terms of the articles of association should be protected and enshrined in law. If the Minister can give us that assurance tonight and can give that signal to universities, it will dispel many of the fears that universities have and the threat, if one likes, that they may have to re-invent their own version of BTG, with the implications that that will have for its asset value

605
to future purchasers. Then it may be that BTG would have a happier and more assured commercial, entrepreneurial and public future.
Lord Reay: My Lords, in the light of some of the rather harsh words that have been directed at the Government, it may be appropriate if I summarise the safeguards which the Government have already put in place for the privatised BTG and explain the reasons for the two new measures which we announced last week.
As noble Lords will know, the Government have already announced that they will take a special share in the privatised BTG. We have done this in recognition of the need to protect BTG's independence and to continue its traditional technology transfer activities after privatisation. The special share's provisions were set out in the draft articles of association placed in the Library of the House before the Committee stage. The two key provisions are: first, the protection of a 15 per cent. limit on individual shareholdings—I said at an earlier stage that the 15 per cent. is a bench-mark figure and is not rigid and that the Government are prepared to consider higher individual shareholdings should this be necessary to attract the right consortium—and, secondly, a restriction on substantial disposals of assets above a certain level—25 per cent. of net asset value or 25 per cent. of the average income—without the special shareholder's consent. In addition, under the articles there is also provision for one director of the new company to be appointed by the universities (the CVCP) in consultation with the polytechnics.
The Government have not rested on the measures which they proposed to the House at Committee stage on 27th June. We listened carefully to the constructive points which were put forward at Committee stage about BTG's future operations. As a result, we are now proposing two further improvements to the provisions in the articles of association. These improvements are: first, a provision for the 15 per cent. limit on individual shareholdings to continue in the articles after the special share is redeemed at the end of the five-year period; and, secondly, a provision for the appointment of one director of the new company who has had wide experience in the exploitation of public sector science and technology, in addition to the director to be appointed by the CVCP
The continuation of the 15 per cent. limit on individual shareholdings will mean that the consortium structure will continue even after the special share is redeemed. The shareholding limit will remain in the articles of association, which will continue to govern the company beyond the term of the special share. This provision, as with other provisions in the article. of the company, may be changed only by a special resolution of the members, which requires a 75 per cent. vote in its favour at a general meeting.
Regarding our proposal for a director with wide experience of the development of science and technology, the exact definition of the wide experience required follows closely the wording suggested by the noble Lord, Lord Flowers, the noble Baroness, Lady Hollis of Heigham, my noble friend Lady Park of
606
Monmouth and the noble Lord, Lord Kirkwood, in their amendment at Committee stage. We have gone beyond that amendment in one crucial respect. The provision which we have made in Article 79 would apply on an ongoing basis because it will be a requirement in the articles that the company should have a director with wide experience of and capacity in public research. The former amendment in the name of the noble Lord, Lord Flowers, would have applied only to the first set of appointments to the board. In that respect I hope that noble Lords will recognise that we have gone beyond what was proposed by the amendment which we discussed at Committee stage.
I believe that the measures of substance taken by the Government which I have described will help BTG establish itself in the private sector and will also help to ensure that its traditional technology transfer activities are continued. The package of measures we have now announced goes as far as we think is necessary to achieve those objectives without prejudicing the sale process and the necessary commercial freedom of the new company.
I turn now to Amendment No. 1. A common thread running through many noble Lords' speeches on the Bill has been the need to reflect the interests of the universities and public research establishments in some way. We had already, after Second Reading, announced provision for the right of universities to appoint a director to the board. I point out that the Government's proposal goes further than what is suggested in the amendment. The amendment refers to an appointment after consultation with the universities, whereas the Government's proposal gives the universities the direct power of appointment to the board.
In addition, as I have just explained, the Government now propose that the board of the new company should include one other person with wide experience of the commercialisation of scientific ideas from public sector research. The revised articles placed in the Library on 17th July make provision for that in Article 79. These measures have been taken in recognition of the vital contributions to BTG made over the years by universities and public sector bodies and in the expectation that those sources will continue to make important contributions to the company after privatisation. However, Amendment No. 1 also requires that the provision in the articles for there to be a universities-appointed director could not be removed or altered by the company without the written consent of the Secretary of State. In our view it would not be appropriate to adopt such a requirement. The articles can be changed by a special resolution of shareholders, requiring a 75 per cent. majority at a shareholders' general meeting. We consider that to be a perfectly adequate protection for a provision of this sort. It is not the intention of the Government to continue government involvement in the running of BTG beyond the limited provisions of the special share.
We believe that our provision for two directors from the academic world—one to be appointed by the CVCP, the other with experience in public sector

607
science—are sensible provisions, which will do much to ensure the continuation of BTG's traditional activities and to retain the confidence of the academic world in the privatised company. No privatised company will take lightly any decision to alter such a provision in a way which could damage its standing and credibility in the eyes of the academic community on whom it will continue to depend for a large proportion of its inventions.
I also think that the noble Lord is demonstrating a certain lack of confidence in the value of the contribution which such directors are likely to make to the running of the privatised company. The Government have given them an opportunity to make a contribution to the company. It is surely up to them now to make a go of it, without any intervention from the Secretary of State.
We believe, therefore, that the normal provisions of company law should apply and not be overridden in the way proposed by the amendment.
11.45 p.m.
Lord Flowers: My Lords, I am grateful to those all around the House who have given unanimous support, as I understood it, to this amendment. The noble Lord, Lord Reay, correctly said that there are a number of measures that the Government have proposed which assist the argument that we have put forward: a 15 per cent. share, a 15 per cent. limit, a second director and increased emphasis on the 75 per cent. vote of shareholders in order to change the articles. All those things are perfectly correct and, as I said, I am grateful for the contributions that the Government have made to meet us.
However, it is wrong to say that the Government have gone further than we asked for. They have not gone as far. Those changes are changes in the articles of association. They are not changes to the Bill. Not one is a change to the Bill. My amendment is intended, as other noble Lords who signed it with me know, to produce a minimal change to the Bill itself which will give some indication that the unique characteristics of BTG will continue.
I do not have the heart at this time of the night to press the House to a Division, but, in saying that I beg leave to withdraw the amendment, I give notice that we may fight very hard on Third Reading.
Amendment, by leave, withdrawn.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 2:
Page I, line 21, at end insert:
("( ) The Articles of Association of the successor company shall contain inter alia the provisions set out in Schedule (Articles of Association Qt. the British Technology Group Plc) while the company is wholly owned by the Crown, and thereafter until altered by the affirmative resolution of both Houses of Parliament.").
The noble Lord said: My Lords, it may be for the convenience of the House if I speak also to Amendments Nos. 3 and 5.
I regard Amendment No. 5 as consequential on Amendment No. 2. Amendment No. 3 stands in the name of the noble Lord, Lord Peyton. Amendment No. 2 directly addresses the problem of the articles of
608
association. When replying to the first amendment, the noble Lord, Lord Reay, put his faith in the articles of association of the company. Having listened to the arguments put forward by the Minister, I am not impressed. It is true that, under the Companies Act, once the special share, if that is written into the articles of association, has been redeemed, the articles can be changed by a special resolution. A special resolution requires only 75 per cent. of the vote. Clearly, if someone makes a hid for the company after the appropriate moment, the company will be sold because the shareholders will say that they want to amend the articles of association. I do not want to denigrate the status of ministerial assurances in your Lordships' House or in another place, but I believe that their status is less than the status of something written into the Bill. That is why I am moving the amendment.
My amendment states that the articles of association, in the particular respect referred to in Amendment No. 5, can be changed not only by a special resolution which changes all articles of association under the Companies Act, but by approval of Parliament.
With regard to Amendment No. 5, the schedule that I would like to see in the Bill specifies the conditions of the special share. It says simply that the Government maintain a special share and the special share may be redeemed only by a change in the articles, which must he approved by both Houses of Parliament on affirmative resolution. The amendment further specifies what the special share shall do: 15 per cent. of all votes at a general meeting of the company offends the conditions of the special share; disposal of more than 10 per cent. of the net asset value of the group offends against the conditions of the special share. So the special shareholder can veto any disposal or voluntary winding up—or anybody who polls more than 15 per cent. of votes at a general meeting.
When I moved this amendment in Committee, as the noble Lord, Lord Reay, is aware, it met a rather hostile response from the Government. Nevertheless, I believe that it is wise for noble Lords to reconsider this point. Unless the special share is written into the articles of association and on the face of the Bill, it has no value at all.
I do not believe that the articles of association are sufficient warranty for the company to continue in the way that it is has continued up to now and should continue in the future. It is up to Parliament to make sure that the essential provisions of what BTG will do in the private sector should be subject to a veto from the Secretary of State in respect of certain matters. I do not argue that it should be a veto across the board but that it should be a veto on certain things. Unless the Secretary of State exercises that veto, he will have to come back to Parliament, as is quite proper, and say, "I don't wish any longer to assert my authority. The company is on its way; it is doing commercially very well and does not need my protection. Therefore I propose an order which will amend the articles of association in the way that the shareholders have voted".
To be honest, it does not seem to me to be a very outrageous requirement. I just wish that the Government would accept—and here I come to Amendment No. 3, which is the amendment of the noble Lord, Lord Peyton—that the articles of association are not enough. There must be something on the face of the Bill. Having said that, I look forward to the Minister's response. I beg to move.
Lord Peyton of Yeovil: My Lords, I understand that my amendment is to be taken with the amendment of the noble Lord, Lord Williams. I should have preferred it to be taken separately, but if it is for the convenience of the House, I shall very readily deal with it now. In the event, I should like to apologise to noble Lords for the absence of my noble friend Lord Caldecote whose name is also on the amendment. But for an unexpected change of business late on in the day, M would certainly have been in the Chamber.
First, let me say that neither I nor my noble friend take any pride whatsoever in the drafting of our amendment. I am absolutely confident that someone as able and sensitive as my noble friend on the Front Bench would not even dream of using the argument that the amendment itself was flawed. I should be content—I am very easily pleased—if my noble friend on the Front Bench, on behalf of the Government, would indicate his readiness to accept this amendment in principle. I do not begin to insist upon the terminology as it appears on the Marshalled List.
The second point that I wish to make at the start is that I hope that the Government will not say, because the Treasury wants them to say it, that they are frightened of setting a precedent. That is a bogus doctrine which occasionally is voiced by Ministers who themselves are in the habit of setting precedents which not everybody would think of as being very desiratable. Therefore I have less fear of the amendment, if accepted, being the source of undesirable precedents. Ministers from time to time express the desire to keep their Bills short and tidy. We do not have to go far back in memory today to dig up a measure which no one can possibly describe as short, tidy or easy to understand.
The amendment that I wish to move contains three elements. First, it sets out to establish a special share which the Government in the latest draft of the articles are clearly prepared to accept in principle. I should like to see the principle on the face of the Bill. As I have already said—and I endorse what was said by the noble Lord, Lord Williams of Elvel—it is one thing to have an intention expressed in articles; it is quite another to have it on the face of the Bill. I do not see any reason why, in a matter of this importance, the provision should not be on the face of the Bill.
It is also the purpose of the amendment that the special share should survive for five years after privatisation. However, the Government have some objection even to putting that in the articles. Nevertheless I hope that they may have second thoughts now that they appreciate that the special share idea has some virtue.
Secondly, the amendment places an obligation on the Government to consult with the company before
610
requiring redemption. The Government have admitted that they see no objection in principle to the notion; they just do not like putting it on the face of the Bill. I find that difficult to accept. A casual look through the Bills which come before your Lordships' House regularly and in quantity does not immediately suggest that the virtues of brevity, tidiness and simplicity always commend themselves to Ministers.
Thirdly, the amendment seeks to put on the face of the Bill that there should be a 15 per cent. limit on any one shareholding. The Government are prepared to accept that. They will allow it to continue after redemption of the special share. If the Government have accepted that provision, I cannot see for the life of me why they should not put that proposal also on the face of the Bill.
I have absolutely no allegiance to or love for the phraseology of the amendment. I shall happily withdraw the amendment if I were to hear the Government say, "We accept this very reasonable amendment in principle and we shall put it in the Bill, but we cannot accept the amendment as proposed". If the Government cannot say that, I shall need to consider the matter and return to it at a later stage.
12 midnight
The Earl of Halsbury: My Lords, I support both the noble Lords, Lord Williams of Elvel and Lord Peyton, in so far as they have this element in common: they want to see "it" on the face of the Bill. There is, however, room for argument as to what "it" should be. On the assumption that they will withdraw their amendments this evening, reserving the right to bring them forward on Third Reading in the autumn, it would benefit the House if they were to get together and could agree on a common form of wording.
One of the difficulties we face is characteristic of government bungling at this late stage in the legislative year. Typical of that was the shambles we had earlier this afternoon over the Child Support Bill, where the usual channels had to retire to have a conference about whether they could continue the debate. There never could have been a Third Reading on Thursday this week. We have to have three sitting days before Report and Third Reading, and we cannot cover Monday to Thursday in three sitting days, and so that was a bit of a bungle.
There was then the matter of the first and second editions of the memorandum and articles of association. I heard that there was a second edition only on Friday, and I had confirmation of it last Saturday. When I tried to obtain the second edition this afternoon, the Printed Paper Office did not have it; the Library had only one copy which it could not let me have; but by some mysterious channel the noble Lord, Lord Williams of Elvel, has a copy, but where he obtained it I do not know.
All that has a bad effect on morale. I ask your Lordships to believe that NRDC and BTG have always been young men's organisations. They are young men with fire in their bellies and a gleam in their eyes for the future. They are all highly redeployable into the hands of competitors, which, struck by the success that NRDC has been, are beginning to operate

611
on an international scale, where BTG, already operating on an international scale, is to some extent hamstrung by people wanting to know, "Who are you? Who owns you, and what will you be in the future? If we make a joint partnership agreement with you, are we by some mischance making one with our competitors?" People want to know. Delay is to be deplored.
I assume that the noble Lords, Lord William and Lord Peyton, will withdraw their amendments. I hope that they will accept my invitation to get together over a form of words so that we can have "it" on the face of the Bill. I realise that the Government do not like it. They never do, but they must face the syndrome of distrust. In this context, people do not trust the Government. They do not trust the Treasury as the Government's adviser. They remember that the Government are a transitory organisation that will be replaced by another government within a twelvemonth, of the same complexion or a different complexion matters not, because there will be general post among Ministers. No undertakings given now can be valid a year from now, and so on, so we must have it on the face of the Bill. I beseech the Government to bend and yield on this matter because it is critical for the future of the whole enterprise.
Lord Reay: My Lords, Amendments Nos. 2 and 5 would have the effect of writing the special share provision onto the face of the Bill and thereby ensuring that it could never be changed without the direct approval of Parliament by affirmative resolution. To write the special share provision onto the face of the Bill has not been done before in a privatisation. The noble Lord, Lord Flowers, and—if I do not not misquote him—on another occasion the noble Lord, Lord Williams, have said that BTG is unique; but so were some of these other companies: the British Airports Authority, British Aerospace, British Gas, British Telecom, Britoil, the National Grid Company, National Grid Holdings, Rolls-Royce, BCL Consortium, Vickers, Cable and Wireless, Jaguar, Enterprise Oil, the water companies, the regional electricity companies, British Steel, Amersham and Sealink. All those companies had special shares and none of them was written into the Bill. In all cases special share provisions were written into the articles of association, as they will be in this case.
We have several objections to the proposal in these amendments.
Lord Flowers: My Lords, I and others have said that BTG is unique. The uniqueness to which we are referring is the uniquely long-term nature of its business which stretches sometimes into decades and in any case into many years. In that respect it is unique and it is that feature which calls for the special measures for which we ask.
Lord Reay: My Lords, I am sure that people intimately connected with other companies which have been previously privatised would have argued
612
that those companies had unique qualities which should have deserved the special share provisions to be written into the Bill.
We have several objections to the proposal. In the first place, such an amendment would prevent the Government, as the owner of the company up to privatisation, from exercising their discretion to change the articles before privatisation—which, as I have indicated, they may wish to do, for example where the 15 per cent. limit on shareholdings is concerned, in order to accommodate an acceptable consortium.
In the second place, we believe that after the special share has been redeemed the company law provision that a 75 per cent. majority of shareholders is required before the articles of association can be changed provides adequate protection.
Thirdly, it would be unprecedented to interpose Parliament in such a way between a private company and its articles of association. Parliament has no place to be permanently involved in a company's routine affairs. Articles of association are a contract agreed between shareholders. They set out objectives agreed between shareholders. It should be up to shareholders to decide whether those objectives should be changed—subject to safeguards: namely, the requirement for a 75 per cent. majority and the protection of the special share during the first five years.
As regards a 10 per cent. limitation on asset disposal, in our view that would reduce it to far too small a proportion in view of the absolute size of BTG's assets and in the light of BTG's business. It would impose an unacceptable limitation on the normal conduct of the company's business. It would go far beyond what is necessary to meet worries about asset-stripping and would start to impinge on disposals—for example, of patents or equity holdings—which could be a normal part of the company's trading activities. I should add that 25 per cent. has been used in previous privatisations, even in the case of companies with much higher net assets than BIG. Such a limit is designed to prevent a sale of the whole or a substantial part of the business without involving the Government in vetting the privatised company's business affairs. A 10 per cent. limit would depart from that principle.
As regards the requirement for parliamentary approval before the special share could be redeemed, I must repeat the rationale for a special share. It is to enable the company to accomplish its transition to the private sector; it is not to provide a permanent government involvement. That is the situation which privatisation is designed to end.
We wish to privatise BTG for reasons which we went into fully on Second Reading. Among them is the wish to remove the Government's involvement from the company's day-to-day activities. A time-limited special share has a constructive part in that process in allowing for BTG's adjustment to the private sector. However, what is proposed in Amendments Nos. 2 and 5 would frustrate that process. BTG cannot be considered privatised if Parliament retains the power indefinitely to intervene in the company's business. We therefore oppose Amendments Nos. 2 and 5.

613
As regards Amendment No. 3 in the name of my noble friend, the point contained in paragraph (c) of that amendment—namely, a 15 per cent. limit on individual shareholdings—is a point which we have met fully. Indeed we have gone further. In the new draft articles of association placed in the Library of the House last week, Article 42 has been altered so that the 15 per cent. shareholding limit will continue even after the redemption of the special share. It will require a 75 per cent. majority vote of shareholders in a general meeting to change this article.
With regard to the requirement that certain provisions in the articles—namely, the special share provisions—should not be changed between vesting day and the day of sale, I assume that my noble friends are motivated by a fear that the Government may not put in to the final articles of association what they have told Parliament they will put into them. I can give a further assurance that the basic principles of the articles of association as they now stand, and in particular those underlying the special share provision s, will not be altered by the Government between vesting day and the day of sale. I hope such an assurance will allay somewhat the anxieties of my noble friends on that point.
I would add that I believe this assurance meets the request from BTG, in its open letter of 19th July for a commitment from the Government,
"implementing the draft Memorandum and Articles incorporating the key provisions safeguarding BTG's independence, integrity, impartiality and critical mass".
I would also ask my noble friends to note that in its letter BTG said that if that was done,
"there would be no need to have these provisions on the face of the Bill".
The proposal in the amendment to have a fixed five-year special share without the possibility for earlier redemption was a matter to which we gave careful thought. However, the Government decided on balance that, in order that they should be able to react to any unforeseen circumstances which might arise, it was preferable not to fetter irrevocably their discretion to redeem the special share before the five-year period is up. I can assure the House that it is not tie current intention of the Government to redeem the special share before the full five years are up. It is our expectation that the BTG special share will continue for the full five years.
There comes a point where it is not possible to impose further restrictions on a privatised company without being inconsistent with the whole purpose of privatisation, which is to free a body from government control. Noble Lords present will have seen the views of BTG on this subject in the letter from which I have already quoted. BTG's view is that,
"provided the current draft M&A were adopted as the Final Memorandum and Articles of the privatised BTG, then our concerns about the protection of BTG's independence and critical mass have been properly balanced against the need for BTG to behave commercially and be exposed to the rigours of the private sector."
With specific reference to the amendment of the noble Lord, Lord Williams of Elvel, I would point out BTG's view that,
"Any amendment which meant that future changes to the M&A could only take place by reference to Parliament, would
614
be commercially undesirable and unhelpful, because it would place constraints on BTG which its competitors would not have to suffer"
On that basis and in the light of the further step we have now taken to continue the 15 per cent. shareholding limit after the special share has been redeemed, I hope that the noble Lord, Lord Williams, and my noble friend will not press the amendment.
The Earl of Halsbury: My Lords, before the noble Lord sits down perhaps he will elucidate a constitutional point arising out of something that he said; namely, that the Government could not accept responsibility for intervening in the affairs of BTG for an indefinite period. Surely the Queen in Parliament has the authority to intervene in absolutely anything until the end of time.
Lord Reay: My Lords, I said that it was inconsistent with the principle and purposes of privatisation that the Government should continue to be able to interfere with the running of BTG.
Lord Williams of Elvel: My Lords, the noble Earl, Lord Halsbury, scored a valid point. If Parliament decides with Royal Assent that that is what Parliament wants, then that is what Parliament gets until a future Parliament repeals that.
With regard to the unique nature of this privatisation, the noble Lord, Lord Flowers, properly answered the point. It has nothing to do with British Gas or anything else; it is a unique and unprecedented form of privatisation. The noble Lord, Lord Reay, has not quite understood, as other noble Lords have, the difference between this privatisation and others.
As regards the question whether the articles of association should be on the face of the Bill, that we should rely on ministerial assurances that they will not change the articles before vesting, or that the articles will obtain this or that, I still hold to the view, which is a very simplistic one (I think the noble Lord, Lord Peyton also holds the view) that if it is right that Parliament wants certain things to be in the articles and it decides that there should be a continuing process of discussion between the Secretary of State and the company on how the future of the company evolves, then Parliament has the right to do that. To say that we should rely on assurances, whatever concessions the noble Lord has made in the articles of association, does not advance the argument very far.
The noble Earl, Lord Halsbury, invited me and the noble Lord, Lord Peyton, to get together to agree some form of wording for an amendment which might be introduced at Third Reading. I must tell the noble Earl that, having listened to the Minister, I do not believe that the Government are prepared to accept any wording that can be written on the face of the Bill at Third Reading or at any other stage. The noble Lord is nodding as I say that. The Government are simply not prepared to accept this measure. Although I have the most cordial relationship with the noble Lord, Lord Peyton, and he with me, I do not see us getting together and producing any wording however brilliant he and I may be. I do not see us producing

615
any wording that the Government will accept. They do not accept the principle of having the commitment to articles of association on the face of the Bill.
As regards the BTG management letter—I stress that it is a letter from the management and not from the staff—the staff disagree with the management on the matter. I do not necessarily believe that the management and the council of BTG are wholly correct in their view. Leaving that aside, I now return to my Amendments Nos. 2 and 5. I regard Amendment No. 5 as consequential to Amendment No. 2. I have spoken to Amendment No. 3, as has the noble Lord, Lord Peyton. Nevertheless I believe that at Third Reading we may well get to a point where the noble Lord, Lord Peyton, and other noble Lords, might join with me in drafting something which we would accept, but I do not believe that the Government would accept it. That is why I believe that if we pursue this matter at Third Reading it would be a futile exercise. Therefore I wish to take the opinion of the House on Amendment No. 2.
12.18 a.m.
On Question, Whether the said amendment (No.2) shall be agreed to?
Their Lordships divided: Contents, 18; Not-Contents, 23.

Division No. 4

CONTENTS

Beaumont of Whitley, L.

Hollis of Heigham, B.

Beloff, L.

Macaulay of Bragar, L.

Butterfield, L.

Monkswell, L.

Carmichael of Kelvingrove, L.

Peston, L.

David, B.

Prys-Davies, L.

Desai, L.

Rochester, L.

Flowers, L.

Russell, E. [Teller.]

Graham of Edmonton, L. [Teller.]

Tordoff, L.

Williams of Elvel, L.

Halsbury, E.

NOT-CONTENTS

Ashbourne, L.

Johnston of Rockport, L.

Belstead, L.

Long, V.

Blatch, B.

Mackay of Ardbrecknish, L.

Blyth, L.

Mackay of Clashfern, L.

Brabazon of Tara, L.

Marlesford, L.

Cavendish of Furness, L.

Reay, L.

Davidson, V. [Teller.]

Strathmore and Kinghorne, E.

Denton of Wakefield, B.

Trumpington, B.

Henley, L.

Ullswater, V.

Hesketh, L. [Teller.]

Waddington, L.

Hooper, B.

Wade of Chorlton, L.

Howe, E.

Resolved in the negative, and amendment disagreed to accordingly.
12.24 a.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil had given notice of his intention to move Amendment No. 3:
Page 2, line 17, at end insert:
("( ) The Articles of Association of the successor company shall at all times from vesting until the Secretary of State has disposed of the securities allotted to him under section 3 contain a provision to the effect that—

(a) a special rights redeemable preference share ("Special Share") shall be issued to the Secretary of State or a person acting on behalf of the Secretary of State ("Special Shareholder"), which Special Share shall not be redeemable until 5 years after privatisation;

616

(b) after the five year period referred to in paragraph (a) the Special Shareholder may require the Special Share to be redeemed after consultation with the Board of the successor company;

(c) no person other than a Permitted Person may directly or indirectly own or control the right to cast on a poll 15 per cent. or more of the votes at general meetings of the successor company.").

The noble Lord said: My Lords, I have no desire to detain your Lordships for any length of time. Suffice it to say that I regret that my noble friend was unable in any way to share the dislike which has been expressed on all sides of the House for legislating by means of articles of association. I do not believe that articles of association, which are destined for the guidance of a future company, are proper material for governments to deal with.
I very much welcome what my noble friend was kind enough to say about the Government not changing the present draft of the articles. That at least gives us some comfort that we know where we now are. I do not intend to move the amendment today. However, I shall look with care and interest at what my noble friend said. I consider myself completely at liberty to put down a similar amendment and return to this important issue at Third Reading.
[Amendment No. 3 not moved.]
Clause 3 [Initial Government holding in the successor company]:
[Amendment No. 4 not moved.]
[Amendment No. 5 not moved.]
Schedule 1 [Provisions Supplementary to s.1]:
[Amendments Nos. 6 to 8 not moved.]

School Teachers' Pay and Conditions (No.2) Bill
12.28 a.m.
Read a third time.
Clause 5 [Interpretation, orders and application of provisions of Education Act 1944]:
Lord Peston Lord Peston moved Amendment No. 1:
Page 5, line 34, after ("Act") insert ("and subject to subsection (3A) below").
The noble Lord said: My Lords, this amendment stands in the name of my noble friend Lady Blackstone and the noble Lord, Lord Rochester. I must preface my remarks on the amendment by saying that this has not been the happiest of days in your Lordships' House. For those of us who seek to defend the House as a serious revising chamber, the experience of the past eight to nine hours will take a good deal of explaining away. I for one regard it as absurd that I should be moving an amendment to an important Bill at this time of night. It is all very well for the Government to refer to a Citizen's Charter when something so significant for our citizens—namely, education—cannot be debated properly in your Lordships' House. I make those remarks for the record.
An important matter which has occupied us at some length throughout the proceedings on the School Teachers' Pay and Conditions (No. 2) Bill has been local flexibility. There seems to have been a certain amount of confusion throughout the proceedings on

617
the Bill. I do not believe that there is any confusion of logic or intention. I believe that the Government have no desire to bring to the centre what ought to be left locally and flexible. On our side we have no desire to see that happen. The real question is whether the Bill achieves what is sensible; namely, that only such matters are dealt with centrally as need to be for the purposes of the Bill.
In considering local flexibility, we come to that marvellous but not fictitious document, the Burgundy Book. It is essentially a volume which is almost the embodiment of local flexibility. Our concern throughout has been whether the Bill as it stands really produces as much flexibility as already exists. I find it hard to believe that the Government would wish to have less flexibility.
The noble Lord, Lord Cavendish, said on Report:
"the majority of matters covered by the Burgundy Book clearly do not relate to duties or working time and therefore automatically fall outside the scope of the Bill".
He went on to say:
"It is only those areas where there may be some doubt about the employers' right to include supplementary provisions in contracts which need to be dealt with by an order under Clause 5(3)".—[Official Report, 15/7/91; col.50.]
We have tabled these amendments because even though the noble Lord made his point, some of us were rather puzzled as to whether, nonetheless, the conditions to which he referred were actually met.
In particular, we are concerned about certain obvious matters in the Burgundy Book. I shall refer to only two of them. First, there is the leave for jury service and other public service which is dealt with in paragraph 9.4, and, secondly, the maternity leave under the teachers' maternity scheme which is dealt with in paragraph 9.2 of the document. We want to be clear that these matters are still left for local flexibility.
The second point of concern is one which was raised '1y the noble Baroness (at col. 48 of Hansard) on the same date. It was also mentioned by my noble friend Lady Blackstone. The noble Baroness asked:
"although there is an assurance as regards conditions that exist at present, what will happen to changes in the future in relation to the Burgundy Book?".
The purpose of these amendments is straightforward. It is to write on the face of the Bill two provisions: first, to make it absolutely clear that nothing except what has to be centralised will be centralised; and, secondly, to ensure that conditions of service. in so far as they are agreed at the local level and are, so to speak, Burgundy Book material, do not run foul of the Bill when it becomes enacted and therefore do not constrain the local flexibility which, in my view, the Government would want to see in any event. That is the purpose of the amendments. I beg to move.
12.30 a.m.
Lord Rochester: My Lords, I should first like to associate myself with the remarks of the noble Lord, Lord Peston, about the time at which this important Bill is receiving its Third Reading. He explained the purpose of the amendment. Therefore, at this time of night there is no need for me to do more than say that I support it.
618
Since we last discussed the matter, the noble Lord, Lord Cavendish, has sent a letter to the noble Baroness, Lady Blackstone, of which he was kind enough to send me a copy. In that letter the noble Lord gave certain assurances that matters which could be held to be non-statutory conditions of employment would continue to be left to employers and employees to determine. I understood that to be the burden of the letter. I should have liked to see that further assurance included in the Bill. Failing that, I am glad that discussion of the amendment provides the opportunity for the contents of the noble Lord's letter to be recorded in the Official Report.
The Paymaster General (Lord Belstead): My Lords, the amendment tabled by the noble Lord, Lord Peston, makes a serious point. I hope that my comments will bring our thinking closer together. As the noble Lord explained, the Burgundy Book sets out various collective agreements concluded between the local authority employers and representatives of the five teacher associations. He wishes to be sure that the employers of teachers—which include not only local education authorities but the governors of aided schools and a growing number of governing bodies of grant-maintained schools—will still be able to conclude binding agreements with their teachers in the areas which at present comprise the contents of the Burgundy Book, and import these agreements into teachers' contracts of employment.
However, I believe that to use an order-making power as sweepingly as this amendment requires is to go too far. These amendments would require the Secretary of State to make an order which would specify all the present collective agreements relating to professional duties and working time set out in the Burgundy Book as all being conditions of employment that would fall within, and only within, the discretion of LEAs to decide whether they should be part of teachers' contracts of employment.
There are two problems with these amendments. The first is that they will not work. The most recent edition of the Burgundy Book appeared in 1985. Since then it has effectively been frozen. Six years and several Education Acts later, some of its contents are plainly out of date. I am sure that the employers and the teachers' associations themselves recognise that the Burgundy Book needs considerable revision. Paragraph 11, for example, covers the area of the teachers' day, duties and holiday entitlement, and states that:
"there are no existing national collective agreements on these matters beyond that affecting the school midday break".
To import that particular paragraph into the contracts of teachers—which could be the ultimate effect of this amendment—would clearly lead to a very odd result. Time has moved on and we are no longer in that situation.
The second difficulty is that the Burgundy Book has been overtaken by recent legislation and needs thorough revision for that reason too. Parts of the Burgundy Book are simply inconsistent with provisions of the Education Reform Act 1988. For example, the powers which governing bodies now have under the Education Reform Act to take

619
decisions about the appointment and dismissal of staff, and their duty to draw up disciplinary and grievance procedures for their staff, could well be at odds with collective agreements in these areas. Nor is it a sufficient answer to say that the second part of the second amendment provides for the revision of existing collective agreements. That would require the Secretary of State, in effect, to sign a blank cheque on behalf of governing bodies. These amendments could lead to serious conflict over powers and duties explicitly transferred to the local managers of schools, and therefore would be undoing what is already provided for in the Education Reform Act passed fewer than four years ago.
I have been critical but I understand the purpose underlying the amendment. The noble Lords, Lord Peston and Lord Rochester, have made it clear. I do not believe that the reasons which the noble Lords have given are entirely misplaced. Much of the Burgundy Book is concerned with matters which are plainly neither professional duties nor in working time. If they could be judged to relate to duties in working time, they do so only marginally. I believe that they would therefore automatically remain matters for employers—that is to say, in most cases the local education authorities—and employees, their teachers, to decide.
The Government also accept that there may be matters which might be interpreted as statutory conditions of employment and would therefore no longer be matters which could be dealt with through national agreements. But if that is what the employers and employees want, they should continue to be dealt with in that way.
The noble Lord, Lord Peston asked me a point blank question about jury service and maternity leave. On this side of the House, the Government would be minded to leave precisely those two areas within the Burgundy Book via a Clause 5(3) order.
It is because of this line of thought which I am developing that my noble friend Lord Cavendish said, when we were debating this at previous stages of the Bill, that under Clause 5(3) the Secretary of State would be prepared in principle to make an order providing for some matters to be Burgundy Book matters for LEAs and teachers to decide. They would not therefore come within the scope of the review body.
However, I believe it would need careful thought and not, if I may be forgiven for saying so, the rather sweeping requirements which these amendments, which we are taking at Third Reading, would put on the face of the Bill if we were to agree with them. I hope that assurance shows the Government recognise that there are many aspects of the employer-employee relationship which can be determined by the kind of process which brought the Burgunday Book into existence. As they stand, the amendments would be difficult to accept and I hope I have said enough to assure the noble Lords that they could safely be withdrawn.
Lord Peston: My Lords, I thank the noble Lord, Lord Belstead, for his reply. I reiterate my point that
620
I hope that there is nothing between us on the outcome we should like to see. I am well aware of the deficiencies of the amendment. As I am sure the noble Lord is aware, it is difficult within the context of the Bill to find a suitable amendment that would preserve the degree of local flexibility that one wants. I am willing to accept the Government's assurances, and all I can say is that the proof of the pudding will be in the eating.
One's concern, as I said and as I will repeat when we come to the next stage of our proceedings, is that whatever we think about the Bill, the teachers' pay procedures must work. That is vital from now on. However, we do not want all this to get in the way of matters that should not concern the review body and that should be left to local initiatives and local flexibilities.
Before I withdraw the amendment, I repeat that we shall have to wait and see. I do not quite understand how, if matters do not work out, the Government will get themselves out of the rather centralised position in which they are. Having made those remarks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
12.45 a.m.
Lord Belstead: My Lords, I beg to move, That the Bill do now pass.
At this late hour, I briefly thank noble Lords for the debates that we have had on the Bill. Although we have not made changes to it, we have quarried out a certain amount of useful detail.
On the previous amendment, in the light of the noble Lord's concluding remarks, it might be useful to give an assurance to the noble Lord, Lord Peston, that I think the Department of Education and Science will certainly want to talk to employers about what Clause 5(3) orders will cover and what are going to remain in the Burgundy Book. The noble Lord asked how we were going to see the way forward. I hope there will be some consultation about this. I felt I should like to say that because the noble Lord has been eminently reasonable in moving the amendment.
It is fair to say it has been quite a long haul since the Burnham arrangements came to an end. Finding the right permanent pay machinery which balances the legitimate interests of teachers, employers and the Government has not been easy. I like to think that the search has at last had a considerable amount of success.
The response to the offer of having a review body has been very heartening. Five out of six teacher unions have said that they support the principles enshrined in the Bill that we have been considering. The reaction of individual teachers has been positive, and although some will want to reserve judgment, they will do so because they want to see the recommendations that the review body will produce and the reaction which the Government are going to give. But it is clear that the great majority of teachers have welcomed in principle the Government's offer of professional recognition through review body status

621
in return for acceptance and recognition of their professional responsibilities as the teachers of the nation's children. So we must look to the future.
I should just like to say a word of tribute to the Interim Advisory Committee, of which my noble friend Lady Denton was a distinguished member. Their achievements over the past four years in developing a more progressive and flexible salary structure, with the emphasis on rewarding achievement and responsibility, provide an excellent base on which I hope the review body will build.
We have had a great deal of debate on the powers and duties of the review body. The essential point is that the arrangements proposed will put the body on all-fours with existing review bodies: the same absence of prior constraints; the same freedom to make recommendations; the same commitment by the Government with respect to implementation. But at the end of the day I hope we see eye to eye—I think we do—that the government of the day must take decisions and have the right to have the final word. What is important in this context is whether the basic framework for the operation of the review body is sound. I like to think that in all essentials, by following the established and successful model of the existing review bodies, the arrangements in this Bill are in the right direction.
Before I sit down, I should like to thank the noble Lord, Lord Peston, and the noble Baroness, Lady Blackstone, for the part they have played in considering the Bill. If I may say so, both the noble Lord and the noble Baroness are very knowledgeable and formidable opponents, and I am genuinely grateful to them for what they have done on this Bill. I should also like to thank the noble Lords, Lord Rochester and Lord Ritchie of Dundee, the noble Lord, Lord Rochester, bringing particular knowledge not only of education but also of training matters, which always enhances our study of these education Bills The noble Lord had the benefit of interventions from his noble friend Baroness Seear and from the Benches opposite of the noble Baroness, Lady David, the noble Baroness, Lady Phillips, the noble Lord, Lord. Houghton, and the noble Lord, Lord Desai, all of whom have specialised knowledge of education, and I recognise that. We also had intervention from the noble Lord, Lord Kilmarnock, from the other Benches.
Finally, I should like to thank my noble friend Lord Cavendish for doing a great deal to pilot this Bill through, and my noble friends Lord Renton, Lady Cumberlege, Lord Pearson, Lady Denton and indeed Lady Young for the much needed support which they have given me and my noble friend Lord Cavendish.
Moved, That the Bill do now pass.—(Lord Belsiead).
Lord Peston: My Lords, it is my pleasure to thank the noble Lord, Lord Belstead, for his kind remarks.
This was not a very long Bill but we have worked hard at it. We moved several amendments which we took very seriously and which we think would have improved the Bill. I shall not bore your Lordships by rehearsing all of them, but we considered the amendment requiring there to be clear and compelling
622
reasons if the review body's recommendations were to be rejected to be extremely important. We believed that switching to the affirmative procedure would have been useful. We considered other amendments which I shall not go into important. The apparent anomaly concerning the sixth form colleges may lead the Government to reflect that they ought to have accepted an amendment in the form we proposed or to have put one forward themselves. I should also have liked more on the face of the Bill on the question of guidance. To introduce an area of controversy, my views on grant-maintained schools remain unchanged.
Having said that, I remarked at Report stage that from now on it is of overwhelming importance that teachers should have confidence in what the review body does, not for the sake of the teachers but because it is education which matters. If teachers feel that they receive a raw deal from this body, our children will then receive a raw deal. Even though we favour a review body we are not keen on this one. We should have preferred a slightly different one. That is now a bygone. What now matters is that the review body must be made to work. I hope that it will work.
It is my pleasure to join with the noble Lord, Lord Belstead, in thanking noble Lords. In congratulating them I may say that this is one occasion on which I cannot remember a single speech which did not make a genuine contribution to our deliberations. I cannot recall shuddering at any point during the course of our debates.
I must thank my colleagues, my noble friend Lady Blackstone, who to my deep regret is not with us, and my noble friend Lady David. The noble Lords, Lord Ritchie and Lord Rochester, made important contributions. I shall not embarrass everybody, but I was very pleased by the contributions of the noble Baronesses, Lady Denton and Lady Cumberlege. I look forward to their being persuaded to take further part in such deliberations. Lastly, I must thank the noble Lord, Lord Cavendish, for the courteous and helpful way in which he has endeavoured to deal with our worries and, similarly, the noble Lord, Lord Belstead. We have dealt with the Bill as best we can and I wish very much to associate myself with the supportive remarks of the noble Lord, Lord Belstead.
Lord Rochester: My Lords, on these Benches our attitude to the Bill as it leaves this House is much the same as when it first came to us. At both Committee and Report stages I moved or supported a number of amendments. It is therefore all the more important that I should reiterate that we fully support the principle underlying the Bill, namely, that the pay and other statutory employment conditions of school teachers in England and Wales should in future be determined by an independent review body.
As I said at Second Reading, the main reason for our support is that the last thing that is now needed is further delay and confusion. By passing the Bill now we can help to restore the morale of school teachers by correcting the way in which they feel they have been treated in recent years.
Having said that, we retain some reservations about the composition and powers of the proposed review body and other matters. On a number of points

623
we have sought unsuccessfully to persuade the Government that assurances given by Ministers in another place and here should find expression on the face of the Bill. The noble Lord, Lord Peston, has mentioned some of them. At this time of night I shall not weary the House by mentioning others. He mentioned particularly the question of how sixth form college teachers should be treated. For our part, we consider that, if the pay and other employment conditions of teachers in primary, secondary and grant-maintained schools are to be determined by a statutory review body, sixth form college teachers should be dealt with in the same way.
The noble Lord, Lord Belstead, will recall that on Second Reading I suggested that the same principle should be extended to teachers in higher and further education. I was unable to pursue that point in subsequent debates because those teachers do not come within the ambit of the Bill.
At this point I am obliged to observe the convention of the House that Third Reading should not be used as an occasion to lament lost opportunities. All I can do is to say to the Government as sincerely and objectively as I can that, if they persist in the view that an independent review body is appropriate for school teachers but not for teachers in other sectors of education, they may in the long term come to regret it.
There are one or two other matters that continue to concern us, but I shall not detail them further now. Despite the continuing reservations to which I have referred, I should reiterate that we nonetheless support the Bill's underlying principle.
In conclusion, I should like to associate my noble friends with what the noble Lord, Lord Belstead, said about the excellent work that has been done during the past few years by the Interim Advisory Committee. In that connection I am glad to see the noble Baroness, Lady Denton, in her place. I should like to thank the noble Lords, Lord Belstead and Lord Cavendish, for the unfailing courtesy, patience and good humour that they have shown in piloting the Bill through your Lordships' House. From these Benches, perhaps I may also thank the noble Lord, Lord Peston, and the noble Baroness, Lady Blackstone, in particular for the contributions that they have made during the passage of the Bill through your Lordships' House.
On Question, Bill passed.

Dentists Act 1984 (Dental Auxiliaries) Amendment Order 1991
12.57 a.m.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper)The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper) rose to move, That the draft order laid before the House on 21st June be approved [23rd Report from the Joint Committee].
The noble Baroness said: My Lords, Section 45 of the Dentists Act 1984 provides that the General Dental Council may make regulations establishing
624
classes of dental auxiliary, prescribing the dental work that they may undertake and the conditions under which they may undertake that work. The relevant regulations are the Dental Auxiliaries Regulations 1986, which establish a class of dental hygienists and apply both to dental hygienists providing national health services in the community and in hospital dental services and to dental hygienists working in general or private dental practice.
All dental hygienists receive similar training, and the role of dental hygienists maintained by the General Dental Council does not distinguish between them. Those working in the national health services have been permitted to carry out certain kinds of dental work under the direction of a registered dentist who has examined the patient and who has indicated to the dental hygienist what treatment should be provided, without the need for direct personal supervision by the dentist. Dental hygienists employed in general dental practice or in private dental practice, however, have not been allowed to undertake any dental work unless they are personally supervised by a dentist.
The General Dental Council takes the view that that situation should be rectified. Apart from removing an obvious anomaly, there is a growing need for dental hygienists to undertake domiciliary visits, particularly to elderly people. Removing the direct personal supervision requirement for dental hygienists in general or private dental practice, where in fact 77 per cent. of them are employed, would allow them to provide an improved service to their patients. It is therefore intended to amend the regulations to remove the anomaly. To do that it is necessary to repeal Section 46(3) of the Dentists Act 1984 and to delete the words:
"in the course of the provision of national health services",
in Section 46(2). The draft order makes those two amendments and requires the approval of your Lordships. The draft order prepared by the General Dental Council has been approved by the Privy Council. On their behalf, I commend it to noble Lords.
Moved, That the draft order laid before the House on 21st June be approved [23rd Report from the Joint Committee].—(Baroness Hooper.)
Lord Graham of Edmonton: My Lords, in his absence, my noble friend Lord Ennals has authorised me to say that he has no objection to this order.
On Question, Motion agreed to.

Dental Auxiliaries (Amendment) Regulations 1991
Baroness Hooper Baroness Hooper rose to move, That the draft regulations laid before the House on 27th June be approved, [24th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move the Motion standing in my name on the Order Paper. The draft regulations before us introduce four changes. They will allow dental hygienists in the National Health Service, in general dental practice and in private dental practice to provide dental work

625
under the same conditions. They will make it a requirement that dental hygienists can only provide dental work which has been prescribed in writing by a dentist who has first examined the patient. They will allow dental hygienists to scale teeth under a local infiltration analgesia administered by them or under any local or regional block analgesia administered by a dentist, and they will increase from £3 to £6 the fee payable each year by dental hygienists to have their names retained on the roll kept by the General Dental Council.
These regulations, again, have been prepared by the General Dental Council and approved by the Privy Council in accordance with the requirements of Section 45(9) of the Dentists Act 1984. Once more, the approval of noble Lords is required. These regulations introduce some sensible changes in relation to the dental work which can be undertaken by dental hygienists and will permit a necessary increase in the retention fees payable by dental auxiliaries. I therefore commend these regulations to your Lordships.
Moved, That the draft regulations laid before the Howe on 27th June be approved [24th Report from the Join, Committee].—(Baroness Hooper.)
Lord Graham of Edmonton: My Lords, my noble friend Lord Ennals has again asked me to say that he has no objection to this order.
On Question, Motion agreed to.

Fair Employment (Amendment) (Northern Ireland) Order 1991
1 a.m.
Lord Belstead Lord Belstead rose to move, That the draft order laid before the House on 4th July be approved.
The noble Lord said: My Lords, I beg to move this order which relates to an issue that your Lordships have addressed before. Fair employment is important to the political, economic and social well-being of Northern Ireland. There have been advances in the provision of equality of opportunity for both communities since the passage of the Fair Employment (Northern Ireland) Act 1989. However, the recent fair employment Act which I have just mentioned was found to have a weakness in the discrete but important area of individual cases of alleged discrimination.
Noble Lords may recall that up to 1989 the determination of such cases rested with the former Fair Employment Agency. After 1989 the determination passed to a new Fair Employment Tribunal and such cases were handled in similar manner to sex discrimination cases in Northern Ireland and Great Britain and race discrimination cases in Great Britain.
In October 1990, in the case of Pryce v. University of Ulster, it was found that the confidentiality provisions relating to information from which community affiliation could be determined were too widely drawn. The confidentiality of such information is important in Northern Ireland, where an individual's religious affiliation is perhaps a matter of greater sensitivity than in the rest of the United
626
Kingdom. So it was both important and appropriate that the 1989 Act should have protected the confidentiality of such information.
But the legislation of 1989 was unbalanced in that the effect of Section 30 of that Act was that no information on community affiliation could be divulged either to individual complainants wishing to pursue a case or to employers who might wish to use such information in answering a case. In effect the defect in Section 30 stopped the processing of all individual cases before the Fair Employment Tribunal. Some 330 cases are now logjammed. The primary purpose of this amending order is to enable those cases to flow again—and to flow as quickly as possible—to and through the new Fair Employment Tribunal.
When government addressed the problem of Section 30, and consulted widely upon it, the views divided upon the most appropriate form of remedial action. Some favoured total repeal of Section 30, effectively removing confidentiality altogether. Others, while accepting the need for some amendment of Section 30, wished to retain very tight prohibitions on the disclosure of monitoring information. So it was necessary to find a means of balancing the need for disclosure with the concern that the confidentiality of such information should be respected and protected.
It is important to mention that the monitoring of a large number of smaller employers—those with 10-plus employees—is due to commence in January 1992. So the retention of some confidentiality will become even more important for a wider number of people. At the same time, the tighter and more stringent the prohibition on disclosure, the greater is the legal risk of inordinate delay, legal complexity and dispute.
Accordingly, the Government have decided upon an approach, which we are laying before your Lordships today, which we consider a reasonable compromise between the competing requirements of confidentiality on the one hand and disclosure on the other.
Briefly, the draft order has the following features. It will repeal Section 30. It will add a new provision to Section 28 of the 1989 Act to enable monitoring regulations to provide for the confidentiality of monitoring information. It will enable new regulations to be made which will define the information to be protected and to set out exceptions. Those are set out in Article 3.
However, the amending order does not require disclosure of monitoring information. Nor in fact do the regulations which are to be made under the new provisions of Section 28. So an employer as at present will not be required to disclose information unless ordered to do so by the Fair Employment Tribunal. The amending order and regulations are premissive. The regulations will allow but not compel employers to disclose otherwise confidential information in certain specified circumstances.
The order has three main features. First, it protects information about religious affiliation obtained from the three principal methods of monitoring. Secondly, it protects information on the determination by an

627
employer of the community to which an employee or applicant is treated as belonging for monitoring purposes. Thirdly, it provides exceptions in regulations and in the order to allow, but not to compel, disclosure of otherwise confidential information.
This draft order has been debated both in the Northern Ireland Committee and in another place. The debates have reflected different views on the way forward; but they have also reflected a unanimous recognition that it is important in the interests of equity and of justice that the Fair Employment Tribunal begins to address individual cases as quickly as possible. That is important not only to the individual seeking justice before the tribunal but also to the overall effectiveness and general impact of the Government's fair employment legislation. One of the best ways to facilitate the success of that legislation is to encourage inward investment and job creation. Fair employment and equality of opportunity are both best promoted in healthy and robust economies where there are expanding job opportunities. That is why campaigns, ostensibly for fair employment, but which in practice discourage investment and job creation are both damaging and misguided. People who do that cut off those essential new job opportunities that can do so much to sustain and increase the momentum of best fair employment practice.
Accordingly, in commending this draft order to your Lordships, I also call upon your Lordships, as in the past, to express your support for the complementary objectives of fair employment and job creation. If your Lordships think that is right, it will transmit a positive message of hope to all those genuinely concerned with equality of opportunity and economic prosperity in Northern Ireland.
Moved, That the draft order laid before the House on 4th July be approved—(Lord Belstead.)
Lord Prys-Davies: My Lords, I thank the Minister for explaining the significance of the order so clearly and convincingly. We on these Benches fully support the order and the reasoning upon which it is based. It was appreciated two years ago when we were discussing the provisions of the Bill that we are amending, that they would have to be read alongside the provisions of the Fair Employment Act 1976. However, it is now clear that we did not examine carefully enough the impact of Section 30 on individual complaints of discrimination under the Fair Employment Act 1976. In the result, it was left to a respondent, in the position of the University of Ulster in proceedings brought against it under the Fair Employment Act 1976 by Mr. Stephen Thomas Pryce, to highlight the difficulty. The Minister has referred to those proceedings.
It should be recalled that Mr. Pryce sought an order that the university o should disclose the perceived religious affiliation of candidates for a particular post at the university. It was the university in reply which claimed that it would be unlawful for it to supply that confidential information because of the operation of Section 30 of the 1989 Act, which makes it a criminal
628
offence to disclose such information, except under the limited circumstance allowed by that section, which the Minister has explained.
The president of the Fair Employment Tribunal refused to make the order that had been sought because he thought that it would be clearly wrong for the tribunal to make an order which carried the risk that it might involve the commission of a criminal offence. The implications of that decision and certain other points raised by the president had relevance in other fields, such as sex discrimination and labour relations. The Minister has told the House that the hearing of over 300 cases of alleged unlawful discrimination are being held up pending this piece of amending legislation.
The president of the tribunal delivered his judgment on 9th October last, and it must be said that the Government have proceeded with commendable speed to redress the position. On 14th November they issued a consultative document, suggesting two main ways of resolving the difficultes, and they have eventually come up with a third option, published in February, which is basically enshrined in the order. It is fair to say that others have flirted with other possible solutions. I am sure that the Minister will confirm that the order, as it now stands, meets with the approval of the Fair Employment Commission, the Labour Relations Agency and the Equal Opportunities Commission.
I note that the effect of the order will be retrospective. As far as I can see, that point was not raised in the consultative document. Ordinarily we are rightly critical of retrospective legislation because it can make for unfairness. However, in the circumstances of this case, there would, in the absence of retrospectivity, be much unfairness and many disputes and difficulties, particularly in cases which have been filed between January 1990 and the coming into force of the order.
The consultative document made it clear that the amending legislation would take the form of an order in council because of the need for urgent action. I note that that position has been the subject of some criticism but, in my view, that criticism does not on this occasion hold its usual merit.
I have made it clear that we welcome the order. For the reasons given by the noble Lord, Lord Belstead, it is in the interests of Northern Ireland that the fair employment legislation should be working smoothly in order to overcome discrimination where it exists, so that, in spite of differences, communities proceed steadfastly towards the objective of a fairer society in Northern Ireland. As I see it, that is part of the healing process. On that, the Minister has offered encouraging and positive words.
1.15 a.m.
Lord Belstead: My Lords, I am grateful to the noble Lord, Lord Prys-Davies, for his reception of the order at this late hour. The noble Lord is always assiduous in being present for Northern Ireland business and I am most grateful to him.
I say that in particular because, as the noble Lord pointed out so clearly in his closing remarks, this is a

629
very important order. As he made clear in opening, the whole idea of the 1989 legislation was in danger of becoming a dead letter because the Pryce v. University of Ulster case fell to the ground due to the unworkability of Section 30 of the 1989 Act. I believe that the noble Lord and I are both relieved that that is now to be unblocked. This House will now give effect to the order, another place having looked at it.
The noble Lord asked me whether the three organisations which the noble Lord mentioned—the Fair Employment Commission, the Labour Relations Agency and the Equal Opportunities Commission—are content with the order. I understand that they are, although it is fair to say that their first preference would have been the complete repeal of Section 30. As I sought to explain in moving the order, the Government felt it necessary to try to find a compromise between the different views on this matter. I hope that the noble Lord believes that we have reached a reasonably good compromise.
Finally, the merit of the order is that we can now get natters going again. It is very important that the matters before the tribunal can now be heard and that we can get the fair employment legislation working again. That is important not only to meet individual needs but for the wider reason that fair employment and t good economy go hand in hand. Once again, I thank the noble Lord for his contribution to the debate. I commend the order to your Lordships.
On Question, Motion agreed to.

Forth Ports Authority (Rateable Values) (Scotland) Order 1991
1.20 a.m.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne rose to move, That the draft order laid before the House on 27th June be approved [24th Report from the Joint Committee].
The noble Earl said: My Lords, the two draft orders laid before your Lordships' House on 27th June 1991 for approval prescribe rateable values for 1991–92 for the operational lands and heritages of the Forth Ports Authority and Caledonian MacBrayne Limited. The rateable values for other statutory dock and harbour authorities in Scotland are also calculated by formula as prescribed by the Secretary of State in an order approved in 1990. In their case the annual revisions are made by the regional assessor in the area in which the undertaking is located.
FPA and Cal-Mac are treated separately because in each case the lands concerned span more than one valuation area. Consequently, it would be awkward to have their valuations carried out by different regional assessors acting independently. We have therefore arranged for the valuations of those two undertakings to be calculated by officials following the same method as is applied to the other statutory port authorities, then to be apportioned among the local authorities concerned and for the resulting rateable values to be prescribed by order.
Statutory docks and harbour undertakings have been assessed for rating by formula valuation
630
prescribed by the Secretary of State for many years. Nevertheless, we are reviewing the need for this approach to the valuation of the various statutory and other utility undertakings with the aim of implementing any advisable changes in 1995, the year of the next revaluation. The method of valuation used to assess the rateable value shown in the draft orders before your Lordships is to assess rateable value at 9 per cent. of the relevant income of the undertaking. Relevant income is the total income for the year less that for certain defined activities which are not related to the occupation of property or are connected with properties separately assessed.
In order to ensure harmony of treatment between Scotland, England and Wales, the method and percentage used for assessing other statutory ports are the same throughout Great Britain. The apportionment of the rateable value of each undertaking among the relevant local authorities is made on the basis of its relevant income in each area. The FPA and Cal-Mac, again in common with the other statutory port authorities, are subject to the annual transitional limits on increases and decreases in rateable values resulting from the revaluation in 1990. Where those limits are still relevant for 1991 and 1992 they have been applied to give the rateable values shown in the schedules to the orders.
The assessments and provisions contained in the orders have been the subject of consultations with the two undertakings concerned; that is, with the Convention of Scottish Local Authorities and also with the Scottish Assessors' Association. All are content with the draft orders and I commend them to your Lordships.
Moved, That the draft order laid before the House on 27th June be approved [24th Report from the Joint Committee].—(The Earl of Strathmore and Kinghorne.)
Lord Carmichael of Kelvingrove: My Lords, I thank the noble Earl for his full explanation. I read the Standing Committee report in another place and was glad to note that the noble Earl emphasised again that there were certain difficulties in the method of applying valuation principles to a network that crosses several valuation area boundaries. The Minister in another place, Mr. Allan Stewart, pointed out, as did the noble Earl, that the next revaluation in 1995, which would be the earliest date at which a change could be made, will help the assessors to collect essential information about each undertaking.
I understand that CoSLA and the Scottish Assessors' Association are content with the orders, and with the formula upon which they are based. Therefore, having read the report and heard the full explanations given by Mr. Allan Stewart in another place, supplemented by those of the noble Earl this evening, I am happy to agree to the orders.
On Question, Motion agreed to.

Caledonian MacBrayne Limited (Rateable Values) (Scotland) Order 1991
1.23 a.m.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne rose to move, That the draft order laid before the House on 27th June be approved [24th Report from the Joint Committee].
The noble Earl said: My Lords, I beg to move.
Moved, That the draft order laid before the House on 27th June be approved [24th Report from the Joint Committee].—(The Earl of Strathmore and Kinghorne.)
On Question, Motion agreed to.

Food Protection (Emergency Prohibitions) (Paralytic Shellfish Poisoning) (No. 4) Order 1991
1.25 a.m.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne rose to move, That the order laid before the House on 8th July be approved [25th Report from the Joint Committee].
The noble Earl said: My Lords, last month I sought your Lordships' approval for two emergency orders to ban fishing for bivalve molluscs in areas off the north-east coast of England and the west coast of Scotland. This was due to a build up of the naturally occurring toxin of paralytic shellfish poison, or PSP for short. These two orders, Nos. 4 and 5, before the House today are similar. They ban fishing for bivalve molluscs, which includes mussels, cockles, scallops, queens, razor shells and oysters in defined areas off the west coast of Scotland. The decisions to make these orders were based on test results from our PSP monitoring regime, which were over the 400 unit limit, the internationally agreed action level. Our aim in making the ban is to ensure effective protection for the public from PSP toxin with the minimum disruption of the shellfish market.
I should like to assure your Lordships that the orders will remain in force only for as long as it is necessary and no longer. They will be revoked as soon as the results of continued sampling indicate that the toxin has subsided to a safe level.
Order No. 4 extends the closure in the area of water known as the Inner Sound, near Skye. The lower half of this area has been closed for fishing for bivalves since 29th May. That ban was introduced by the No. 2 order which received approval last month. Test results of mussel samples from Loch Torridon in the north part of the Inner Sound were 2,140 units on 4th July compared with 825 units the previous week. In such situations levels of toxin can continue to rise very swiftly and so Order No. 4 was made on 5th July which banned fishing for bivalve molluscs in the top part of the Inner Sound.
The following week, levels of PSP toxin of 3,066 units were found in samples of queen scallops taken from Loch Eishort on the south of Skye. Order No. 5 was therefore made on 12th July which prevents
632
fishing for bivalve molluscs in Loch Eishort, neighbouring Loch Slapin and the entrances to both lochs. All these order will be revoked when we are satisfied on scientific and medical advice that it is safe to do so. I beg to move.
Moved, That the order laid before the House on 8th July be approved [25th Report from the Joint Committee].—(The Earl of Strathmore and Kinghorne.)
Lord Carmichael of Kelvingrove: My Lords, I thank the Minister again for explaining these orders. Since we followed very closely the earlier orders, I have no hesitation in approving them.
I am grateful to the Minister for having provided on this occasion maps of the area affected as well as a description. Although the description is perhaps more important, to many people who are not too familiar with the area the maps are a great help in showing exactly the total area involved. I thank the Minister for that.
Like him, we would like the orders rescinded as soon as possible but we agree that that cannot be done until there is complete confidence, following advice from medical and other sources, that there is no danger at all to the public.
The way in which the department has gone about putting the orders through and the careful monitoring it has been carrying out shows that we can all have confidence that it will not hasten to rescind the orders until there is complete confidence that there is no danger to the public. I am grateful to the Minister for his explanation and for the fact that the shellfish and the area concerned have been so clearly defined that the public will be in no danger until the area is clear. We shall give any help we can to implementing the orders.
On Question, Motion agreed to.

Food Protection (Emergency Prohibitions) (Paralytic Shellfish Poisoning) (No. 5) Order 1991
1.28 a.m.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne rose to move, That the order laid before the House on 15th July be approved [26th Report from the Joint Committee].
The noble Earl said: My Lords, I beg to move.
Moved, That the order laid before the House on 15th July be approved [26th Report from the Joint Committee].—(The Earl of Strathmore and Kinghorne.)
On Question, Motion agreed to.

Age of Legal Capacity (Scotland) Bill
1.30 a.m.
Lord Macaulay of Bragar: My Lords, I beg to move that the Bill be now read a third time.
I should like to remind your Lordships, even at this late hour, that this is a thoroughly useful Bill based on a very full report prepared by the Scottish Law

633
Commission. The main function of the Bill, as indicated at an earlier stage, is to update and clarify the rules governing the ability of young people to enter into legal transactions. It replaces a system which over the years has become increasingly complex and difficult to understand, and which has on occasions worked against the interests of the young person.
I also wish to thank the Scottish Law Commission for the characteristically helpful and detailed report on which the Bill is based. I am sure that if the Bill receives its Third Reading tonight, the very passing of the Bill will encourage the staff of the law commission. It is difficult for the law commission staff who produce many reports but not much legislation results.
I should also like to thank noble Lords who spoke during the Second Reading debate and ensured that some of the matters affected by the Bill could be scrutinised by your Lordships' House. I am particularly grateful to the noble and learned Lord, Lord Fraser of Carmyllie, the Lord Advocate, for his helpful assistance during the passage of the Bill.
It was unfortunate that the noble Lord, Lord Robertson of Oakridge, was unable to be present during the Committee stage of the Bill to move the amendment which he had tabled relating to a child's right to consent to medical, surgical and dental treatment, and the relationships between that right to consent and parental rights. Had the amendment been moved, I should have sought to persuade your Lordships that it was unnecessary and technically deficient. The noble Lord is unable to be here tonight, but I understand the noble Lord, Lord Ashbourne, will be making a contribution on his behalf.
The question of consent for surgical, medical and dental treatment has, to my knowledge, evoked a response of seven letters - five from doctors, one from the Church and one from a lay person. The general view is that the Bill does not alter the present situation; indeed, it clarifies it. I have studied the latest professional advice to medical practitioners issued by the General Medical Council which requires doctors in treating young people under the age of 16 to seek to persuade them to involve their parents and obtain parental consent wherever possible. As I understand it, that advice applies in Scotland, as in other parts of the United Kingdom and will no doubt continue to be valid after the enactment of the provisions of the Bill. It is important to record that advice in the Official Report. I quote from the council's booklet, Professional Conduct and Discipline; Fitness to Practice, dated February 1991. Paragraph 81 states:
"If the doctor is satisfied of the child's maturity and ability to understand, he must nonetheless"—
note the word "nonetheless", my Lords—
"seek to persuade the child to involve a parent, or another person in loco parentis"—
which goes beyond what Lord Robertson's amendment would have covered—
"in the consultation. If the child nevertheless refuses to allow a parent or such other person to be told, the doctor must decide, in the patient's best medical interests, whether or not to offer advice or treatment. He should, however, respect the rules of professional confidentiality".
The issues in the Bill have tended to become—if I may use the phrase—bogged-down on the question of contraceptives, abortions and so on.
634
I should also say that the British Medical Association expressed a view on 11th May on the report of the Scottish Law Commission on which the Bill is based, although the letter seems to be in error because it speaks of the legal capacity of young people under the age of 18. The letter states that:
"This matter was considered by Scottish Council of the Association at its meeting on 11th May. Scottish Council considered the recommendation on consent to medical treatment only, since members did not feel qualified to comment on the wider aspects of the recommendations.
Scottish Council supported the Commission's recommendation in respect of consent to surgical, medical or dental procedures or treatment and considered that it was flexible enough to take account of the age and understanding of the particular patient, the complexity of the treatment and the seriousness of the risks involved".
I hope that with these views expressed by the medical profession, some of the fears that have been expressed will to some extent be allayed. I understand from my talks with the Scottish Law Commission that, in the course of the present review on parental rights, it will monitor, in so far as it is possible, cases of consent by young persons under 16. I hope that I have satisfied any doubts about the Bill. I beg to move.
Moved, That the Bill be now read a third time.—(Lord Macaulay of Bragar.)
Lord Ashbourne: My Lords, it is late and so I shall not detain your Lordships for long. However, I would be failing in my duty if I did not apologise to the House on behalf of the noble Lord, Lord Robertson, who cannot be here as he went on holiday at the weekend, a holiday that had been organised many months ago, and also on behalf of myself for failing to move the amendments that we put down in the normal way at the Committee stage.
Without wishing to make any excuses for us or to shift any blame, I should like briefly to explain to the House exactly what happened in the hope that it may evince just a tiny amount of comfort to us. We had been following the progress of the previous business very carefully. We had discussed how we should be on our toes to get into the Chamber quickly because we realised that the business would move with great velocity. Noble Lords may think that it was particularly stupid of us not to make it having alerted ourselves to the problem. In the discussion of the previous Bill, Amendment No. 10 was on the screen for about 25 minutes. After that there were four more amendments—two groupings of two—which went down rather like skittles in a skittle alley. I imagine that they were all "not moved". By the time I looked again at the screen—I was only in the Peers' Lobby—it showed the name of the noble Lord, Lord Robertson of Oakridge. I plunged in to find that, unhappily, the noble Lord was not in his place and certainly was not speaking. By that time the noble Lord in the Chair had reached Clause 6 or 7—he was going through the Bill, clause by clause. I was ahead both of the noble Lord, Lord Robertson of Oakridge, and the noble and learned Lord the Lord Advocate, who was representing the Government.
I am not making excuses for the noble Lord, Lord Robertson, and myself. We accept responsibility for what happened. We are big boys now and should have reached the Chamber in time. Nevertheless, noble

635
Lords will judge for themselves. I suspect that many noble Lords will take the view that the most useful function of your Lordships' House is the refining and revising of legislation. In our case we had tabled carefully thought-out amendments which we believed were reasonable and ones which could easily have been considered in a constructive way. If our procedure does not permit that to happen, is that really in the best interests of the House? I put that thought to the Government's business managers. However, I do not wish to make any excuses. I know that the noble Lord, Lord Robertson, would not wish me to make excuses on his behalf.
I am most grateful to the noble Lord, Lord Macaulay of Bragar, for what he said. It certainly gave me some comfort. Our primary concern is that parental responsibility seems to have become sidetracked. At Second Reading, the noble Lord, Lord Macaulay, said:
"It is of course true that the Bill leaves untouched the question of whether any treatment given with the effective consent of a child infringes on parental rights".—[Official Report, 1/7/91; col. 869.]
A few minutes later the noble Lord said:
"I am afraid that we have to face up to the realities of life and say that if the child consents and is capable of understanding the consequences, it is up to the doctor to consider what should be done". [Official Report, 1/7/91; col. 880.]
It appears to us that the doctor is taking the place of the parent. That is not reasonable because the doctor is not accountable in the same way as the parent is and never can be so. In addition, the doctor does not have that ongoing relationship which the parent clearly does have.
Finally, I should like to conclude by asking the noble Earl, Lord Strathmore and Kinghorne, to confirm that, under the Bill, the procedure will be for the doctor to consult the parents and that only in exceptional cases—by "exceptional cases" I mean something relatively minor like a cut leg; or, possibly, a case where the parents cannot be contacted or are not available for one reason or another—would consent be sought from a child. If the noble Earl could reassure the House on that point, I am sure that we would all be very much in his debt.
The Earl of Strathmore and Kinghorne: My Lords, on behalf of the Government I wish to thank the noble Lord, Lord Macaulay of Bragar, for bringing this Bill before us and for his skill in guiding us through the complexities of the Bill's provisions. I should also like to thank my honourable friend the Member for Perth and Kinross (Sir Nicholas Fairbairn) for his endeavours in steering the Bill through the other place. I can only express regret about what happened to the noble Lords, Lord Ashbourne and Lord Robertson of Oakridge. However, I have to point out that your Lordships' House has rules which must be
636
obeyed. Unfortunately, the kind of incident he described has happened before and will no doubt happen again.
The noble Lord, Lord Ashbourne, asked for an assurance that when the Scottish Office Home and Health Department issues guidance to doctors, such guidance should continue to stress the importance of seeking to persuade a child—even where it understands the nature of the treatment or procedure being prescribed—to involve its parents and to obtain parental consent to the treatment wherever possible. On behalf of the Government, I am happy to give your Lordships such an assurance.
The Government support the Motion that the Age of Legal Capacity (Scotland) Bill be read a third time.
Lord Macaulay of Bragar: My Lords, I am grateful to the noble Lord, Lord Ashbourne, for his constructive contribution to the debate. Perhaps I may reassure him that it was not a plot on the part of this side of the House to exclude him and the noble Lord, Lord Robertson, from the Chamber. It was regrettable. I believe that we could have had an interesting debate, as the noble Lord indicated by the observations he made, without being disrespectful, while trying to argue the case for an amendment on Third Reading.
The parental responsibility in Scotland is not changed. I think that we have to look at the realities of life. The amendment of the noble Lord, Lord Robertson of Oakridge, would have placed an absolute duty on the doctor to consult the parent. Perhaps I may give one example. What would happen if a young child under the age of 16 years who has been rendered pregnant either by an outsider, or by her father in the course of an incestuous act, went to the doctor to consult him on the matter? The amendment of the noble Lord, Lord Robertson, would force the doctor to go to the very man who not only is responsible for the child's condition but has also committed a criminal offence.
Those are the kind of issues which might have been decided in the course of any discussion on the amendment. However, I am grateful for the observations which the noble Lord made, for the support which the Bill has received from the Government and for the undertakings given by the noble Earl.
On Question, Bill read a third time.
Lord Macaulay of Bragar: My Lords, I beg to move that the Bill do now pass. I do not wish to add anything to what has already been said.
Moved, That the Bill do now pass.—(Lord Macaulay of Bragar.)
On Question, Bill passed.
House adjourned at sixteen minutes before two o'clock.