Lords Sitting of 3 March 1992

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

Broadcasting Act 1990
Baroness Birk Baroness Birk asked Her Majesty's Government:
Whether they intend to amend the Broadcasting Act 1990.
The Minister of State, Home Office (Earl Ferrers): My Lords, no.
Baroness Birk: My Lords, I thank the Minister for that monosyllable. Is he aware that there is widespread fear that Mr. David Plowright's unfortunate disappearance from Granada TV is a symptom that profits will come before programmes under the Act, especially as in 1993 an estimated £350 million will go to the Treasury as a result of the auction? Further, if, as the Minister has just said, the Government are not prepared to amend the legislation, will they consider asking the ITC to vary percentages on revenue paid annually by the licensees so that quality will come before profit?
Earl Ferrers: My Lords, I do not believe that the departure of Mr. Plowright would have the effect which the noble Baroness believes. The Independent Television Commission awards its licences to companies and not to individuals. Granada's programme proposals are incorporated in its licence conditions. With regard to the point about percentages, that is a matter for the ITC.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that whether or not the Government decide to amend the 1990 Act, note should be taken of the absolute lack of impartiality on news and views relating to party political matters?
Earl Ferrers: My Lords, special provisions are made for party political broadcasts at the time of a general election. My noble friend seems to think that we might be amending the Act, but we do not intend to do so.
Lord Taylor of Gryfe: My Lords, in the light of the experience of the Act, will the Government look at the possibility of putting a reserve price on the franchise? Is the noble Earl aware that some companies bought for a few thousand pounds assets which were worth £7 million because no reserve price was put on the franchises at auction?
Earl Ferrers: My Lords, I was not aware of that. However, even if I were aware of it, that does not come strictly under the Broadcasting Act.
Lord Orr-Ewing: My Lords, is my noble friend aware that there seems to be no purpose in amending the Act since it is not obeyed in any way either by
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independent television or by the BBC? Did my noble friend see "Panorama" yesterday? That programme was heavily slanted in favour of coal. At the end of the programme it recommended that only the rejection of government policy would enable coal to retain its present place.
Earl Ferrers: My Lords, I thank my noble friend for what I may perhaps describe as an unhelpful supplementary question. I did not watch the programme because I was in your Lordships' House preventing the Government from being what I can only describe as ambushed.
Lord Ardwick: My Lords, is the noble Earl aware that there is widespread anxiety throughout the country about the future of broadcasting? When people see the difficulties which radio and television are in after the passing of the Act, they are wondering what fate the Government are cooking up for the BBC.
Earl Ferrers: My Lords, the Government are not cooking up anything for the BBC. That is dealt with completely differently. There will be plenty of opportunity for consideration and thought about what should happen when the current licence comes to an end. To turn to the Broadcasting Act and its effects, I can understand that there is anxiety about that. There is always anxiety when there is change. Change had to take place because of new and different technologies. We made arrangements so that provided a programme passed a quality threshold and the service could be maintained, then the highest bidder obtained the licence.
Lord Wyatt of Weeford: My Lords, is the noble Earl aware that the only television company which observes the impartiality code is Sky? That is why the Opposition do not like it. Is he aware further that in a recent "Question Time" programme on the BBC, the only person who was nominally a Conservative was Mr. Heath, who explained that Saddam Hussein was quite justified in his actions and that we should have been totally wrong in provoking him into a war? Further, is he aware that "Panorama" is choosing a new editor and on the short list is a Mr. Aaronovitch who is an ex-communist, an extreme Left-winger and may actually get the job? Other than Sky, no television company has any intention of observing the impartiality code. No matter how many laws are passed, they will not be obeyed.
Earl Ferrers: My Lords, that was a pretty good tour d'horizon, if I may say so. However, I do not agree with the conclusions of the noble Lord.
Baroness Birk: My Lords, I feel some sympathy with the Minister on this occasion. He has had so much trouble from his noble friends in the passage of the Bill, and with their ridiculous arguments on impartiality. However, in his response to my supplementary question in relation to varying percentages in revenue, he said that it was a matter for the ITC. Will the Minister agree that the Act is a piece of Government legislation, and that if something is to be done to improve it—as many of us feel and have felt

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all the way through —it is for the Government to take action? To keep saying that it is a matter for the ITC is not good enough.
Earl Ferrers: My Lords, I was trying to repeat that the Government have no intention of amending the Act. I know that it is difficult for the noble Baroness to accept that. But it has been in operation for only about 18 months. We must let the hare run a little before we change it.

Scientific Research: Funding
2.43 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
Whether they will review the procedures under which grants are made for scientific research in order to ensure continuity.
The Minister of State, Department of the Environment (Baroness Blatch): My Lords, the Department of Education and Science has a rolling programme for the review of the management systems of the research councils, including their procedures for making project grants. The Government have recently announced changes in the dual support system under which research in higher education institutions is supported through block grants from the Universities Funding Council and project grants from the research councils.
Lord Peyton of Yeovil: My Lords, I am grateful to my noble friend for that reply. However, will the Minister undertake, or do her best, to procure some extension to the Treasury mind in order to accommodate the notion that research projects, once embarked upon, should be given a reasonable assurance of continuity of funding? Without that, the projects will be crippled, the money will be wasted, and those involved will become demoralised and go elsewhere.
Baroness Blatch: My Lords, I shall always take back to my right honourable colleagues messages from this House that occur during Question Time. However, 78 per cent. of the Science and Engineering Research Council's funds are devoted to projects — mostly European—other than pre-empted funds for subscriptive projects. The amount is therefore substantial. But at the end of the day it comes down to determining priorities.
Lord Peston: My Lords, one can exaggerate the benefits of continuity. Sometimes, drastic change is required in all our affairs. In the case of scientific research, does the department of the noble Baroness have assessors on the relevant councils? Do they convey to those councils, in assessing priorities, the kind of thoughts suggested by the noble Lord, Lord Peyton? I refer specifically to staff for whom continuity is of the essence because, apart from their careers, work really does go on.
Baroness Blatch: My Lords, I am all for continuity in the context of the first use of that word by the noble Lord, Lord Peston. In relation to his second point, the work done by assessors is important and will be materially important when pressing the case for continuity of funding.
Lord Hailsham of Saint Marylebone: My Lords, can my noble friend confirm my own experience of some years ago? There were only two wise criteria for funding research. One was a hopeful lead and the other a first class researcher. The less that government interfere with a specific project the better.
Baroness Blatch: My Lords, I note what my noble and learned friend says. But the new system that has been set up and the framework within which the funding is now made mean that the Government are not interfering with funds.
Lord Dormand of Easington: My Lords, do the Government recognise the splendid and valuable work being done by some private companies? As one who is interested in Alzheimer's disease, can I ask whether the Minister is aware of the thousands of pounds and the manpower which Parke-Davis, for example, is investing in research in that area? Is that not something which the Government should recognise and assist in any way they can?
Baroness Blatch: My Lords, first, I recognise absolutely the specific need for research pointed out by the noble Lord. However, I am not certain what his question is. In terms of recognising the valuable contribution made by private companies, that goes without saying. The Government do regard it as valuable. I hope that the noble Lord is not saying that the Government should recognise it in such a way that it has an influence on the amount of money that the Government make available to research.
Lord Peyton of Yeovil: My Lords, will my noble friend undertake to read some of the recent reports from the Science and Engineering Research Council and the Medical Research Council? On the pages of those reports she will find, albeit expressed in restrained terms, a deep disappointment.
Baroness Blatch: My Lords, again I shall be guided in my bedtime reading by the request of my noble friend. However, I believe that the chairman welcomed the new rising profile of funding and the new system of determining pre-empted funds for subscription projects. In that respect I believe that at least for the moment the situation in 1992–93 is rather happier than it was in 1991.
Baroness Seear: My Lords, is the noble Baroness expecting to do any bedtime reading? I do not think that she has any bedtime, so far as I can see.

IAEA: Strengthening of Powers
2.49 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they will support the German proposal to give the International Atomic Energy Authority stronger powers to intervene and inspect nuclear facilities in countries suspected of using them to develop atomic bombs.
Lord Cavendish of Furness: My Lords, the Government are not aware of any specific German proposal. However, we fully support the proposals made by the Presidency on behalf of the European Community member states at the meeting last September of the Board of Governors of the agency.
Lord Jenkins of Putney: My Lords, I thank the noble Lord for that Answer. Is he aware that the present staff of the International Atomic Energy Agency is only 200? I believe that foreign Minister Genscher has given his weight to the view that unless it is increased to 2,000 it will be impossible for the agency to carry out the task of making sure that nuclear non-proliferation works. Is the Minister not aware that if one wills a specific aim one must will the means towards it or it will not be achieved?
Lord Cavendish of Furness: My Lords, the Government are working with partners to strengthen the IAEA safeguards regime to ensure that the shortcomings revealed by the Iraqi evasions are remedied. There is much work to be done. I am aware of the suggestion that the manpower of the agency be increased. We do not believe that an increase of this magnitude is necessary. The needs of the safeguards system will naturally occupy a central part of the discussions in the agency's forthcoming budget.
Lord Jenkins of Putney: My Lords, may I press the noble Lord a little further on this point? It is not only a question of an increase in manpower, but also of having the necessary authority. I am doubtful—and perhaps the noble Lord will confirm what is the Government's view—whether under its present constitution the authority has the power to carry out the investigations which it needs to execute to make sure that atomic energy is not being converted into atomic bombs.
Lord Cavendish of Furness: My Lords, the noble Lord, Lord Jenkins, makes a very interesting point. The authority of the agency is being inspected. I can tell the noble Lord that at the moment the belief is that it has the necessary authority, alongside the United Nations, to do the job that it is meant to do.
Lord Williams of Elvel: My Lords, how can the agency do the job properly when it had a 13 per cent. cut in its budget last year? Will the Government answer that question? Will the Minister also be kind enough to answer the question concerning the mandatory reporting of imports and exports of nuclear materials which I understand was a proposal before the meeting of the agency which has been
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deferred until June? What is the Government's view of that proposal? Do the Government support it and will they also support it at the June meeting?
Lord Cavendish of Furness: My Lords, as regards the second question, I do not believe that I am in a position to know at what stage those negotiations are or what view we take at the moment. Much work is going on. In relation to funding, the needs of the agency are being closely discussed and watched at the moment. We have to establish those needs before we can properly understand the necessary budget.
Lord Chalfont: My Lords, does the noble Lord agree that the questions asked by the two noble Lords are extremely valid? It is very important that powers are strengthened in order to make sure that people are not using atomic energy for military purposes. Does the Minister also agree that the powers of the agency derive from the nuclear non-proliferation treaty and not from the charter of the agency itself? Does the Minister further agree that it is the non-proliferation treaty that requires strengthening? Will the Government undertake to try to bring that about at the next review of the treaty?
Lord Cavendish of Furness: My Lords, I accept the importance of these matters. Our view is that the treaty is working rather well and that more and more people are coming into it. It is the source of the strength of the agency. A great number of proposals are being worked on. We have made a number of proposals, including special inspections which allow locations in addition to declared sites to be visited. They are a key feature. The agency has the right to conduct special inspections on sites with comprehensive safeguard agreements. That was confirmed at the meeting of the board of governors last week. There are other proposals including the requirement for the notification of new nuclear facilities before construction, a declaration of the domestic production of uranium ore concentrate, and the reporting to the agency of exports of other nuclear equipment. I understand that the requirement for notification of new facilities was accepted and that other proposals are subject to further discussion.
Lord Stoddart of Swindon: My Lords, can the noble Lord say whether all our atomic facilities are available for inspection by the International Atomic Energy Authority?
Lord Cavendish of Furness: My Lords, the safeguards do not apply to the military cycle. All civil nuclear material in the United Kingdom is subject to the EURATOM safeguards and to the terms of the UK/IAEA/EURATOM safeguards agreement.
Lord Stoddart of Swindon: My Lords, does that include weapons-grade plutonium held at power stations?
Lord Cavendish of Furness: My Lords, yes, I believe that it does.
Lord Whaddon: My Lords, will the noble Lord hear in mind that the inspectorate might be a very good place to use the skills of the former Soviet nuclear

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scientists, bearing in mind that America is said to be finding money to employ these people simply to stop them disappearing into the third world?
Lord Cavendish of Furness: My Lords, if the noble Lord is talking about the brain drain, that is clearly a potential cause for serious concern. We are looking at a number of ways to prevent the proliferation of expertise. We fully support the initiative to establish a scientific centre in CIS to provide peaceful employment for former Soviet scientists. The initiative accords with ideas of my right honourable friend the Prime Minister put to Mr. Yeltsin in January. The United Kingdom contribution is still under consideration. We shall be playing a full part in the discussions.
Lord Hatch of Lusby: My Lords, when the noble Lord says that the Government are satisfied with the way in which the non-proliferation treaty is working and with the powers behind the authority, have they looked at the history of this matter? For example, can the noble Lord tell us how many and which countries have a nuclear facility and to what extent that is being used to make nuclear weapons? Does the answer that the noble Lord gave to my noble friend Lord Williams that apparently the Government are quite happy that the budget should be reduced by 13 per cent. not rather smack of complacency?
Lord Cavendish of Furness: My Lords, the noble Lord, Lord Hatch, misheard me if he believes that I said that I was happy with the situation. I said that we would examine the needs of the agency. As regards the other questions which the noble Lord asked about the non-proliferation treaty, I believe that we are getting rather a long way from the German proposal which is referred to on the Order Paper.
Lord Jenkins of Putney: My Lords, having regard to the unusual degree of unanimity that there is on this matter, in referring it to his right honourable friend, will the noble Lord emphasise the need for some degree of energy and emergency because the matter is not one which can be left unattended?
Lord Cavendish of Furness: My Lords, I wish to emphasise the enormous importance which Her Majesty's Government attach to this area.
Lord Chalfont: My Lords, in case there should be any misunderstanding of a very important matter, will the noble Lord make two things clear? The first is this: will the noble Lord confirm that the IAEA safeguards are only applicable to those non-nuclear powers which have signed the nuclear non-proliferation treaty? Secondly, will the noble Lord also make it clear that no safeguards under the non-proliferation treaty are required to be placed in nuclear powers?
Lord Cavendish of Furness: My Lords, the noble Lord is correct on both those points.

School Meals
2.58 p.m.
Baroness Ewart-Biggs Baroness Ewart-Biggs asked Her Majesty's Government:
Whether they are satisfied with the provision and take-up of school meals.
Baroness Blatch: My Lords, the Government are satisfied that local education authorities have the freedom to decide what type of school meals service to provide and the content of any meals provided. It is for parents and pupils to decide the level of take-up.
Baroness Ewart-Biggs: My Lords, I am grateful to the Minister for answering my Question. Does she not agree that a serious situation is arising in the school meals service in that only four children out of 10 now take school meals? Is she aware that under the Social Security Act 400,000 children from poorer families lost their free entitlement to school meals? In contrast, is the Minister aware that a recent survey shows that as many as 80 per cent. of mothers questioned thought that the provision of school meals was of great importance? Will the Minister undertake to monitor the uptake of school meals in the face of the fear that it will decline even further? Will she also undertake to draw up a set of national nutritional guidelines for school meals in order to ensure that there is a similar standard in different areas?
Baroness Blatch: My Lords, as regards the statistics, the take-up is lower than it was in the 1970s. That is not surprising because the eating habits of children have changed quite dramatically since that time. It is interesting to note that 42 per cent. of all pupils took a school meal in January 1991. That compares with 49 per cent. —which is only a 7 per cent. difference—at the beginning of the decade. It would be helpful if the 80 per cent. of parents who responded to a questionnaire in the way that the noble Baroness has set out would follow that up with action and take up the offer of school meals. The truth is that school meals are not as popular in some parts of the country as in others.
Baroness Faithfull: My Lords, has any research been carried out through health visitors into the health of children whose parents are on income support and those children whose parents neither give them sandwiches nor pay for their school meals? The latter have a pizza from a van at the school gate.
Baroness Blatch: My Lords, perhaps I may make two points in response to my noble friend's important question. First, school children are out of school for 175 days of the year. Therefore we cannot simply leave it to schools to be the sole nutritional provider for our young children. Secondly, and on a more helpful point to my noble friend, the Government are in the process of preparing a health of the nation paper which follows up a very useful Green Paper to which there was a considerably healthy response. As part of that, school meals and their impact on young people will be

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addressed. It is always possible that if it is felt necessary, a task force could be set up to review the very area that my noble friend has pointed out.
Lord Ennals: My Lords, can the Minister say whether the Government know why there has been this reduction in take up? Is it because of the rising prices of school meals which therefore put them beyond the bounds of poor families?
Baroness Blatch: My Lords, the poorest families are helped by having free school meals provided. All local education authorities are bound to provide school meals for poor children. In other cases, local education authorities have to make a very real choice about whether they subsidise school meals to a greater level or whether that money is spent on education. Those are not easy choices for education authorities.
Lord Marlesford: My Lords, in forming the Government's advice to local education authorities on this important matter, will my noble friend enhance the prospects for the humble, but delicious and nutritious herring? Many herring are being caught in the North Sea and are, sadly, being processed into fish meal. Herring are extremely good fish. Will she try and encourage more use to be made of them in school meals?
Baroness Blatch: My Lords, I agree with what has been said about herring. However, I think that providing herrings for small children might produce some practical difficulties. The important point my noble friend makes is that one of the issues that is to be considered regarding the health of the nation document is the possibility of issuing nutrition guidelines to schools so that when our children are fed, they are fed in the most healthy way possible.
Lady Saltoun of Abernethy: My Lords, if the noble Baroness is considering issuing guidelines on the nutrition of school meals, will she consider consulting Caroline Waldegrave? The meals that she has organised for Guy's hospital are apparently so delicious that no one can resist them. The take up might then be greater.
Baroness Blatch: My Lords, I note the point that the noble Baroness is making. I also link with that a tribute to the many schools now which are not just simply providing nutritional food for young people but build it in as a core part of the educational system. Schools are linking-in education about nutrition with what they find available to them in the dining room.
Viscount Mountgarret: My Lords, on the subject of nutrition, will the Government consider taking up the idea of re-introducing compulsory milk at schools? The "pinta-a-day" might go some way towards assisting the dairy industry; but I am certain it would go a long way towards encouraging the health of children.
Baroness Blatch: My Lords, it is confession time for me. I have to say that I was one of those people who was subjected to one-third of a pint of milk a day at school. It was kept on the radiators to be warmed. The memories of it are still as painful now as they were
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then. However, I believe that the medical advice was that many of our children were suffering from obesity, and that feeding them another pint of milk a day would not be a resolution to their nutritional problems.
Lord Jenkins of Putney: My Lords, can the Minister say whether the recommendation about milk indicates the end of Thatcherism?
Baroness Blatch: My Lords, I do not agree with that. The system is flexible. Where schools believe that young people would benefit nutritionally from milk it is still possible to make that provision.
Lord Monkswell: My Lords, bearing in mind the Minister's earlier reply when she said that local authorities had to make a difficult choice between providing free or cheap school meals, and the education of the children, will the Government give some consideration to relieving local authorities of that horrible task by providing sufficient funds where both needs can be met?
Baroness Blatch: My Lords, the noble Lord uses an artificial distinction. The money that is spent locally and the money that is spent nationally is taxpayers' money at the end of the day; so one simply switches the burden from local to national taxation. It is all money, and it all has to be paid for.
Baroness David: My Lords, is the Minister happy that the DES does not have responsibility for this any more? Does she agree that there was a social benefit to be gained in children sitting down for a meal, and having a quiet time in the middle of the day, particularly the small children—
Noble Lords: Oh!
Baroness David: My Lords, I am sorry that that raises such a laugh; but I think there was a benefit and that it was a good thing for children to sit down and have a quiet time for a short while, instead of dashing around and probably not digesting their food very well. I hope that a little more information will be collected about the social effects of what has been going on, with the DES responsibility going altogether.
Baroness Blatch: My Lords, I did not say that the responsibility has gone altogether. For practical purposes, LEAs and schools themselves have the responsibility. But there are two points to be made about that. Of course it is very good for children to have a quiet time in the day. But we live in a free country, and if parents on behalf of their children do not take up the offer of meals, that is one thing; but it is worth noting that schools have a responsibility to make a place available at the table for any child in the school, whether or not they take school meals. That may be simply to have a quiet time or to eat the sandwiches or provisions that they have brought themselves.
Baroness Ewart-Biggs: My Lords, in view of the Answer that the Minister gave that she agrees that there are varying standards of meals throughout the

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country, will she be more specific in her answer about the Government setting up national nutritional standards, and also monitoring whether the uptake of school meals goes on decreasing?
Baroness Blatch: My Lords, there is a continual monitoring of the take up of school meals. I have already mentioned the statistics over the past decade; that will continue. There are annual returns about the take up. I also mentioned the health of the nation paper; I mentioned, too, the possibility that if it is deemed necessary, as a result a task force could be set up to investigate the particular anxieties of the noble Baronesses and of the other noble Lords.

Business
The Earl of Strathmore and Kinghorne: My Lords, it may be for the convenience of the House to know that, subject to the progress of business, the Committee stage of the Further and Higher Education (Scotland) Bill may be adjourned at about 7.30 p.m. for about one hour, and in that event during the adjournment the Committee stage of the Prison Security Bill and the Third Reading of the Aggravated Vehicle-Taking Bill will be taken.

Access to Neighbouring Land Bill [H.L.]
3.7 p.m.
Lord Murton of Lindisfarne: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Murton of Lindisfarne.)
Lord Mishcon: My Lords, this is a useful Bill and one that one hopes may go through the whole of the parliamentary machinery before the general election. I should like immediately to pay a tribute on behalf of the whole House to the noble Lord, Lord Murton of Lindisfarne, who has piloted this measure through with great skill and with his usual courtesy.
This Bill which was nodded through in another place without one word, except the moving of Motions. There was no question of criticism of the Bill, and no wish to amend it. Your Lordships' House has fulfilled its usual function of revising legislation, and it has done so with consummate skill.
It was only last night that your Lordships' House also found a useful way of exercising its authority. One rejoices that in regard to this measure—and this can be unanimous, whereas my former remark may not be—one can be unanimous about the part that the House has played in this Bill.
I shall be brief, but I should like to refer to the useful revisions that were made in this House at the previous procedural steps in the Bill. We managed to insert into the Bill a provision that the court should not make an order for access where there was such hardship as would seem to the court to be unreasonable for an order to be made. We also put in a very useful provision that registration under the Land Registration Act could take place in regard to
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applications and access orders. We made provision in this House that compensation should be paid to a householder against whom an access order was made where the place was used for residential purposes and where there was a substantial interference with privacy or indeed with convenience. It was my privilege to be associated, together with other colleagues in your Lordships' House, with those amendments, in regard to which, with his usual kindness, the noble and learned Lord the Lord Chancellor added his assistance when it came to advising the House on the type of amendments that ought to be made.
I have only one other comment to make. In the course of the progress of the Bill many of us expressed the hope that it would not lead automatically to litigation between neighbours. That is not the best way of providing a suitable neighbourly relationship. I remember the noble and learned Lord advising the House that that was not something that one could put into the measure but that one could put it into the procedural rules that would govern court procedures. It may be of use if I echo the hope now that those procedural rules will see to it that, before litigation is started, civilised notices are given by one party to another with an equally civilised opportunity to respond.
It is with pleasure that I associate my colleagues on these Benches with support for the Third Reading of the Bill. I hope, as I said, that it has a speedy passage through Parliament.
Lord Mackie of Benshie: My Lords, I too should like to support the Bill. I congratulate the noble Lord, Lord Murton of Lindisfarne, and thank the noble and learned Lord the Lord Chancellor for the work that he did on it. But I should like to stress, perhaps more than the noble Lord, Lord Mishcon, that the original purpose will now be fulfilled. Every Member of Parliament has had in his postbag some appalling case of obstruction which has caused misery—lifelong misery in many cases—to people who could not even mend their roof because of the situation. That, I hope, will be put right. Certainly, I hope and trust that the Commons will act exactly as they did before and pass the Bill now without discussion since it has been through the mill of your Lordships' House.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I should like to thank the noble Lords who mentioned me. I too wish the Bill very well and hope that, with goodwill at the other end of the corridor, it may reach the statute book very quickly. As the noble Lord, Lord Mackie of Benshie, said, it deals with an extremely important problem. The fact that this procedure is available may well produce a degree of neighbourliness that was not always present before and the absence of which gave rise to the problems.
Lord Murton of Lindisfarne: My Lords, before I ask your Lordships to give the Bill a Third Reading, perhaps I may thank the noble Lord, Lord Mishcon, for his very gracious remarks. He is more than modest because he produced some of the most telling and important amendments. I am grateful also to my noble friend Lord Coleraine for his support and to my

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noble and learned friend the Lord Chancellor for what he did to encourage me. Going back to the very beginning, I also hope that the Law Commission itself may be encouraged in the hope that the Bill will go through. The measure originated from that august body.
On Question, Bill read a third time.
Lord Murton of Lindisfarne: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Murton of Lindisfarne.)
On Question, Bill passed, and sent to the Commons.

Aberdeen Harbour Order Confirmation Bill
Considered on Report.

Further and Higher Education (Scotland) Bill
3.15 p.m.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Strathclyde): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Strathclyde.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Duty of Secretary of State to secure provision of further education]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 1:
Page 1, line 13, at end insert:
("( ) In discharging his duty under subsection (1) above, the Secretary of State shall ensure that no student under the age of 25 who has learning difficulties shall be required to pay a fee for further education.").
The noble Lord said: It may be for the convenience of the Committee if, with this amendment, we discuss also Amendments Nos. 2, 3, 7, 13, 14 and 15. The purpose of the amendment is to make provision for students with learning difficulties who require longer to complete their course because of their disability. The Government have given a commitment that students between the ages of 16 and 18 will not be required to pay fees for further education. That welcome reassurance requires to be extended for some students with disability.
Students with learning disabilities are often willing and able to learn but they do so rather more slowly. As the Minister will be aware, research funded by the Scottish Office education department on the transition from school to adulthood of young people with recorded special educational needs has shown that the transition is more complex and lengthy than for people without learning disabilities. There may also be a need for students with physical disabilities to take
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longer. Sometimes it is because their disability means that they have to use special aids or techniques to carry out their work. Computer aids can be excellent tools for the disabled but they are often laborious to operate. People with visual handicaps do not have the easy access to written material that sighted people have. Many people with disabilities often have associated health problems which may require them to take time off from a course of further education.
I hope that the Minister, who suggested the grouping of the amendments, will feel that this is a good enough introduction for him to be able to accept the amendments or at least to accept the spirit of the amendments. I beg to move.
Lord Addington: I support the noble Lord, Lord Carmichael, in all these amendments, including Amendment No. 2 to which I have not put my name. That was an omission on my part, but I support him on the amendment. The matters arising here were discussed on the English Bill. On the first amendment the Government gave a concession that people up to the age of 25 with special educational needs would not have to pay their fees. I would be very surprised if the Government were not prepared to give a similar commitment in Scotland as I have not heard of any cases of people north of the Border having a different learning curve despite the difference in accent.
One of the most important amendments in the group is Amendment No. 14 which deals with assessment. If we have accurate assessment of our special educational needs and can find out exactly what the special needs are and the type of help that is needed, we can more accurately, more quickly and more cheaply provide that assistance. Surely the Government must concede that point. If they cannot accept the amendment they must come up with something very similar to it.
Baroness Darcy (de Knayth): I support this group of amendments. I shall not add much because the noble Lord, Lord Addington, has already put the case very clearly. As we said during proceedings on the Further and Higher Education Bill for England and Wales, the Government were extremely generous in their concessions to people with learning difficulties. I hope that they will be as generous to Scotland.
Lord Strathclyde: Perhaps I may start by thanking the noble Lord, Lord Carmichael, for the amount of work that he has put into the Bill and into preparing his amendments and also for agreeing so readily to the groupings that we have before us. I know that Members opposite have spoken briefly. I understand the intention of their amendments. If Members of the Committee will permit me, I shall answer them at some length.
The other place, rightly, gave considerable attention to the needs of students with learning difficulties. Our policy is clear: we wish to ensure that access to further education is more widely available, and that includes provision for those with learning difficulties. The Bill includes an important new statutory safeguard for such students. Clause 1 places a requirement on the Secretary of State to have regard

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to the requirements of persons over school age who have learning difficulties in exercising his duty to secure adequate and efficient provision of further education in Scotland.
A significant number of amendments have been made to the Bill by the Government to strengthen its provisions as regards students with learning difficulties. In other areas a commitment has been given to issue guidance to boards of management on how they exercise their duties and powers in relation to students with learning difficulties. I think that there is an important point of principle here that we should consider. Legislation can at times effect improvement in people's lives, but it is not always the best approach to be prescriptive. One of the best ways of improving the position of students with learning difficulties in further education is for boards of management to have clear guidance on best practice, to be adequately funded by the Secretary of State to provide for such students, but, ultimately, to have the freedom to adopt imaginative ways of developing provision. I am very confident that boards will do so.
As regards Amendment No. 1, part of the present difficulty in this area is the lack of basic information and of a coherent national approach. To rectify that, a lecturer with experience in this area, Mr. Paul Dumbleton of the Scottish School of Further Education, has been seconded to work with the Scottish Office Education Department on the matter. His remit is wide and his recommendations will inform crucial decisions on funding and on guidance to boards. Part of his work will involve looking at the financial support arrangements for students with learning difficulties. I suggest that it is too simplistic to include all students with learning difficulties in the same category or as having the same financial needs, be they aged 20, 25 or 26 as is the case with Amendment No. I. The bursary arrangements give discretion to authorities to support students. Full-time students have their fees paid. Those arrangements are currently being reviewed by the Scottish Office. We have confirmed that the present arrangements for not charging fees for those under 18 will continue.
I turn now to Amendment No. 7. I want also to draw the Committee's attention to the provision in Clause 12(2) (c) for boards to provide students of the colleges with such assistance of a financial or other nature as they may consider appropriate, including waiving or granting remission of fees. I acknowledge that the provision of transport for students with disabilities can be important in ensuring that they can benefit from further education. Education authorities make provision for transport for further education students, including those with disabilities. Boards of management will assume that responsibility from 1st April 1993, and Clause 12(2) (c) of the Bill gives them sufficient scope to do so. Clause 12(2) (c) and (3) already achieve the intention of Amendment No. 7 —that is, requiring boards to address their minds to the needs of those with learning difficulties in exercising their functions, which include the power to give financial or other assistance to students. I can restate an assurance given in another place by my
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honourable friend the Minister of State that we shall expect boards to provide as good a level of transport as education authorities currently do, and we will monitor the provision to ensure that that is the case.
As regards Amendment No. 2, I would emphasise that the purpose of the Bill is the transfer of the management and funding of further education colleges from local authorities and the establishment of boards of management. It is not about extending the powers or duties of local authorities. It is for authorities to judge how they exercise their power and to provide further education. I am sure that they will consider the needs of students with learning difficulties. Moreover, I gather that the amendment is flawed. It is difficult to reconcile with the duty that the Bill places on boards of management the requirement to have regard to the needs of such persons; for example, where the authority uses the board's college.
As regards the proposal that boards should establish a special needs advisory committee as set out in Amendment No. 13, I think that we are at one in agreeing that one means by which a college board can deal with their duties and powers for students with learning difficulties is to establish such a committee, with, if necessary, outside expertise represented on it. However, each college board and its staff must decide how best to tackle the matter. A knowledgeable committee where there are significant numbers of students with learning difficulties could be very useful. However, where, say, a college has relatively low numbers of students with learning difficulties, then it may not be sensible for the college to establish such a committee.
I turn now to Amendment No. 14, to which the noble Lord, Lord Addington, and the noble Baroness, Lady Darcy (de Knayth), spoke. I am sure that boards will carry out assessments of the needs of students with learning difficulties and judge how best to meet those needs, including any special facilities that are required. Clause 27 ensures that boards can be required to publish information as to the availability of special facilities.
The proposed new clause, as drafted, is unworkable. Any student with a learning difficulty could request assessment at any time, even a student still undergoing school education and on placement at the college by the education authority. That clashes with the assessment provisions of the Education (Scotland) Act 1980. It also introduces the concept of need for "special education provision" but gives it no meaning. It would be unfortunate to introduce such a narrow concept into the Bill which concentrates generally on the needs of those with learning difficulties in the context of further education, and is not restricted solely to needs calling for a special type of provision. However, I accept that, perhaps, in the drafting of the amendments, Members opposite will sometimes experience some difficulty in getting the wording right. I fully understand that.
As regards Amendment No. 15, I acknowledge that it will be desirable for boards of management and local authorities to work more closely together in the provision of further education for persons who have learning difficulties. We amended the Bill in the other

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place to place boards under a duty—in Clause 23—to respond to requests from authorities for information or advice in order to facilitate the carrying out by the authority of their duty under Section 65B of the Education (Scotland) Act 1980 to consider in relation to any recorded child what provision would benefit him after he ceases to be of school age.
Another area in which it will be important for boards and authorities to collaborate will be when authorities are carrying out community care assessments, and boards will be given guidance in that area. As I said earlier, the best way to cement and develop relations between boards and authorities is not to try to do so by legislation. That can be counterproductive and no more successful than a more flexible approach. The proposed new clause (Amendment No. 14) implies that co-operation is not desirable for other students. Much depends on the attitudes of individuals on both sides and their willingness and commitment to develop a relationship. We will ensure that the good work of the colleges in working with social work departments in day centres, adult training centres and residential establishments is supported and encouraged.
Perhaps I may now return to Amendment No. 3. I understand that this amendment has been suggested by the Scottish Society for the Mentally Handicapped, and others, to clarify the responsibility of Her Majesty's inspectorate with regard to disabled students in further education colleges. I should explain that Section 66 of the Education (Scotland) Act 1980 gives the Secretary of State power to cause inspections to be made of any educational establishment, and such inspections are made by HMI. HMI fulfils its responsibility by monitoring colleges' activity by regular contact with college staff and by whole-college inspections. The provision of further education for students with learning difficulties is dealt with by HM Inspectorate in the same way that it considers other aspects of further education. In addition, work is in hand for the issue of a report on "effective provision for special education needs", which will have a section on further education.
The effect of the proposed new clause would be to place a specific duty on the Secretary of State to ensure inspections of provision for students with learning difficulties, but no mention is made of the many other students in further education. While I would not wish to underestimate the importance of further education for students with learning difficulties, it needs to be placed in the perspective of the needs of all students. There are many aspects of provision which are applicable to all students; for example, the quality of guidance, accommodation and, indeed, the overall quality of teaching and learning in the college. I can give an assurance that HM Inpectorate will continue to play an important role in monitoring the provisions of further education in Scotland.
Finally, let me emphasise that the Secretary of State is under a duty to report to each House of Parliament on the discharge of his duties for further education. I am sure that Parliament will be assiduous in
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monitoring the provision being made for students with learning difficulties, which will form a part of that report.
I understand the goodwill with which noble Lords have tabled these amendments. The essential point that I am trying to make is that such amendments —and legislative proposals to deal with the problem —are not necessarily the best way to proceed. We need a certain amount of goodwill in this relationship. I believe that assurances from the Government will provide that goodwill. I hope that the noble Lord will feel able to withdraw his amendment.
3.30 p.m.
Lord Carmichael of Kelvingrove: The Minister gave a long reply, and I do not criticise him for that. Indeed, I am grateful for its length. He will appreciate that there is a great deal of feeling about this matter, although some of it may be rather enthusiastic and misguided, even to the point of thinking that more can possibly be done than is being done. We all believe that we should continually push the frontiers back to allow many people with disabilities to benefit as much as possible from education and from further education. One can continue to learn until a very great age. Indeed, some of the best pupils in further education are frequently those who have done a lot of other things in life and who, at the age of 30, suddenly realise that they have more potential than they had ever dreamt. The fact that they happen to be disabled in some way is no reason why they should not be able to benefit from the Bill.
I am grateful for the time that the Minister has taken to reply to the amendment. We may be able to find some common ground here, but as I believe that other noble Lords who are interested in the amendment are entitled to have their say, I reserve my rights until they have spoken.
Lord Addington: I do not think that I picked up the Minister's answer on Amendment No. 1. Is a requirement to provide further free education up to the age of 25 to be provided for in the Bill? That is an important point and should be in the Bill. Such provisions have already been agreed to in the English Bill. Many people with special educational needs need extra time to gain the requisite number of qualifications. That is often very difficult for them, especially if their problem has been spotted late and if correct assistance was not given to them in school. Such people will need extra time, and that is probably best available to them in further education. They should have a guarantee of that because, if they do not, there is no way in which they will be able to meet their full educational potential. Perhaps the Minister will clarify that point. I understand that I may have missed it in his long, complicated answer, but I repeat that such a provision should be in the Bill. It has already been agreed to in principle in the legislation for England.
Baroness Carnegy of Lour: Before my noble friend the Minister replies, perhaps I may say that I am not entirely clear to what the noble Lord, Lord Addington, is referring. I know that he has a great

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interest in people who have learning difficulties in relation to literacy, numeracy and basic skills learning. However, perhaps I may advise him that, if he was talking about such people, what he was saying does not apply in Scotland because adult basic education is part of further education and is being left with the local authorities on, as I understand it, exactly the same basis as at present. It is part of community education, and the Community Education Council is happy with that. Nobody pays for adult education courses. Therefore, I should have thought that such people are not within the bounds to which the noble Lord is referring. He knows Scotland well, having studied there, and probably understands what I am saying. The situation in Scotland is not the same. This Bill differs in many aspects from that relating to England and Wales and to my knowledge—unless my noble friend the Minister wants to put me right on this —I believe that it certainly differs in this respect.
Lord Strathclyde: Perhaps I may clarify this important point, on which I understand the strength of feeling. My noble friend Lady Carnegy made a useful intervention, and she is right.
The noble Lord, Lord Addington, referred to an amendment made to Clause 4(3) of the England and Wales Bill, to place a duty on the further education funding council in certain circumstances to secure provision for a person who has a learning difficulty up to the age of 25 outside the further education sector. That Bill of course does not guarantee exemption from fees—rather, assistance with fees may be given. Clause 4(3) instead deals with the provision of further education.
It is not necessary to have such a provision in the Scottish Bill. The two Bills start from different premises. The Scottish Bill, as drafted, achieves broadly the same effect as the England and Wales Bill. In the Scottish Bill, there is no new further education "sector" as such. As at present, the duty to secure the provision of further education does not depend on the extent to which colleges themselves can provide further education. The fundamental duty will lie with the Secretary of State, and it extends to Scotland as a whole.
The crucial question, to which the noble Lord, Lord Addington, would like an answer, is what would be the position of two individuals—one in Scotland, one in England both between school age and 25 who have identical learning difficulties and who believe that their needs are not provided for? In England, such a person would apply to the appropriate funding council. This is, however, no absolute guarantee that the person in England would obtain the provision they desire, as considerable discretion is involved and there are express cost restrictions and limitations.
In Scotland, the individual would first approach a further education college to ascertain if it has a course falling within Clause 6(1) (c) which covers special instruction for persons with learning difficulties. If it does not have such a course, a board of management would be obliged to consider if it was meeting its duty to have regard to the needs of persons with learning difficulties—that is provided for in Clause 12(3). If in
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its view it was, the individual could then approach the Secretary of State. If he thought that the needs of the individual were not being met, he could direct a board of management to make provision or alternatively he could pay some other persons for the provision using his power under Clause 4(1) (b). To satisfy his duty under Clause 1(2), he would need to demonstrate that he had considered those matters. There are no express cost restrictions or limitations as there are for England and Wales, but again there is no guarantee that the individual would get the provision he desired. I hope that that explains the differences between Scotland and England and Wales, and shows some of the similarities in the end result.
Lord Henderson of Brompton: Perhaps the Minister can help those who are not entirely familiar with Scottish law, which I suspect is the majority of us. I believe that in his very extensive replies, for which we are all extremely grateful, he said that he could not accept any of the amendments. That is right, is it not? He has now given us an explanation of why he cannot accept Amendment No. 1, which we had all hoped would become part of the Bill. Does the text, as currently drafted, substantially reflect the concessions that were made by the Government both in response to questions and proposals in another place and in this Chamber on the England and Wales Bill? If the Minister can give us that assurance, it would help us greatly.
Lord Strathclyde: I can give the noble Lord that assurance.
The Earl of Selkirk: My noble friend the Minister used the letters "HMI". Does that mean Her Majesty's Inspectors? Is it correct to say that the chief inspector carries some kind of royal enhancement of his position?
Lord Strathclyde: I am not entirely certain whether he does or not, but perhaps I can return to that question of detail later.
Lord Addington: Perhaps I may thank the Minister for clearing up that point. I was simply seeking to clarify whether that very important point was covered. In reply to the noble Baroness, Lady Carnegy, perhaps I may advise her that I was not thinking of basic literacy courses but of further education and further qualifications that might be gained following a delay in acquiring the initial basic literacy points. I think that is what the amendments are aiming at. That is why we are worried about the extension of fees to a person who may be late entering further education. That is what we are worried about in these amendments, not the preparation for further education. I should like to make that point clear because if we have to return to this, I think that it is important that that point is noted by the Committee.
Lord Carmichael of Kelvingrove: We are grateful to the Minister for that further clarification. I almost understood his explanation. However, although there is no reflection on him, I must point out that some people outside the Chamber are particularly anxious about the issue and they have spent a great deal of

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time briefing us. Although I shall withdraw the amendment, I cannot promise that I shall not return with it in some form after those who are more knowledgeable than I have read the Minister's reply. I hope that the Government are satisfied because we want to achieve results. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Function of education authorities]:
[Amendment No. 2 not moved.]
Clause 2 agreed to.
Clause 3 agreed to.
[Amendment No. 3 not moved.]
Clauses 4, 5 and 6 agreed to.
Clause 7 [Scottish Further Education Funding Council]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 4:
Page 4, line 28, leave out ("may") and insert ("shall").
The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 5 and 6. All three amendments relate to the establishment of the funding council. I am afraid that I have lost my papers—
Lord Strathclyde: Perhaps I may be of assistance to the noble Lord. The amendments which we shall address are Nos. 4, 5 and 6 and appear in the grouping which we agreed earlier. They relate to Clause 7 dealing with the funding council. The aspect that we are looking at in particular is whether the council should be introduced at an earlier date. I hope that we shall be able to have a useful discussion on the matter.
Lord Carmichael of Kelvingrove: I am grateful to the Minister not only for what he said but for the time that he took to say it. He gave me a chance to find my papers. The purpose of the amendments is to ensure that a future Secretary of State shall establish a further education funding council. Amendment No. 5 elaborates the proposal by inserting the words:
"with effect from the first transfer date (within the meaning of section 11 of this Act)".
It relates to the setting of a date for the establishment of the funding council. Amendment No. 6 is tabled in order to clarify the Government's intention with regard to duties in respect of further education.
The provisions in the Bill relating to the further and higher education funding councils were introduced at the Report stage in another place. They followed a commitment given in Committee that such an amendment would be tabled to keep open the option to establish a funding council for further education. The Opposition in another place proposed the creation of a funding council to provide a buffer between the Government and the colleges. The Opposition also supported the amendment in principle as did the Convention of Scottish Local Authorities and many other bodies in Scotland.
There is to be a funding council for England and for Wales. The parallel legislation has already been through this Chamber. There has been no opportunity for proper scrutiny of the Government's proposals for
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a funding council for Scotland and several reservations should be made at this stage. The amendment seeks to insert a provision which commits a future Secretary of State to establish a funding council. As it stands, the provisions of the Bill do not do that; they simply allow a Secretary of State in the future to establish a funding council if he so wishes.
On Second Reading the noble Baroness, Lady Carnegy, took the view that:
"If the Bill becomes law as it stands there is no way that any Secretary of State for Scotland could fail to set up a council in due course".—[Official Report, 21/2/92; col. 1464.]
We always have great faith in what governments will do. However, I am sure that the noble Baroness would prefer to see an absolute obligation on the Secretary of State to set up the funding council.
On Second Reading in another place the Minister of State for Education and Health in the Scottish Office stated:
"I remain of the view that it would be a mistake to establish such a council".—[Official Report, Commons, 5/2/92; col. 306.]
As a result of what occurred in Committee he had to change his mind, or appear to change his mind. We believe that the funding council is important. The Government should make a decision on the matter and that should appear on the Bill. The Government's position should be clarified and we believe that the proposed amendments, perhaps with the Minister's preferred wording, will ensure that the Government will establish such a council. I beg to move.
3.45 p.m.
Baroness Carnegy of Lour: The noble Lord, Lord Carmichael, referred to what I said on Second Reading but he did not complete the sentence. I said that there was no way that the Secretary of State could fail to set up a council because the pressure on him from all sides to do so would be too great. I took the view that he would not get away with not setting up a council, even if he wanted to.
The setting up of the funding council is almost certainly the right idea. It may be that originally the Minister did not want to do so believing that it could be introduced in later legislation if necessary. However, he listened to what was said in another place, as he did on so many issues. He responded by including an enabling clause to allow a Secretary of State in the future to set up a further education funding council if it is required.
I understood that the Association of Principals of Colleges, which before Second Reading had indicated to me its liking for the way in which the Bill was drafted, probably wanted a further education funding council. It liked the drafting because it thought that it would be some time before the further education system in Scotland was ready to work with a funding council. I understand that the association has now written to the Minister and that the noble Lord, Lord Carmichael, has that information. The association has stated that the funding council should not be set up immediately but that there should be a pause until such time as the costs of running the colleges are ascertained by the Scottish Office. It likes the idea of working closely with the Scottish Office for a year or

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two until those costs are ascertained and until the various procedures are clarified. The funding council should then follow.
That appears to me to make good sense. I do not believe that the suggestion should be interpreted as leaving a questionmark over the likelihood of such a system of funding being set up in the future. The Association of Principals of Colleges suggests that the funding council should not be set up until 1997, quite a long way off. Enabling legislation is sensible. It means that the year in which it may happen is not specified. There is the possibility of it happening sooner or later if necessary.
Given the circumstances of the much smaller further education system that we have in Scotland than south of the Border, it is sensible. If the principals and the Scottish Office feel that it will work, then it probably will. It seems a good approach and I hope that the noble Lord will not press the amendments, although I appreciate that it is sensible to air the subject.
Lord Strathclyde: Our intention has been perfectly clear from the time that the Secretary of State announced our policy for the further education colleges. They should become self-governing at 1st April 1993. That is the date we are working towards. The Scottish branch of the Association of Principals of Colleges recently wrote to my honourable friend the Minister of State and indicated:
"We believe that an implementation in 1993 is achievable given the excellent co-operation between SOED and principals to date".
Our approach is to provide for flexibility. The first step is for the colleges smoothly to achieve self-governance under boards of management. That process will be facilitated by direct funding from the Scottish Office education department. My noble friend Lady Carnegy explained that extremely well. It has built up expertise over the years in funding the central institutions and colleges of education. That is different from the position in England and Wales where the Polytechnics and Colleges Funding Council has been funding higher education colleges and higher education in further education colleges. Much of the expertise of the further education funding councils in England and Wales will be drawn from the PCFC experience. There is therefore an important difference in the starting position both sides of the Border.
Once the colleges' boards of management are well established they will no doubt have a view on the merits of the establishment of a further education funding council. It would be wrong, I contend, to try to do too much at once and without taking account of the views of boards. The wisdom of that approach is acknowledged by the Scottish branch of the Association of Principals of Colleges, as explained by my noble friend Lady Carnegy. In the letter to which I referred earlier it says:
"We are convinced that a funding council could not operate effectively until considerable trial work had been done in developing and implementing a funding formula and it is likely that this will take three to four years".
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I hope therefore that the noble Lord opposite would acknowledge the colleges' position, realise the merit of waiting to see the views of boards of management and withdraw the amendment.
Amendment No. 6 is unacceptable both legally and constitutionally. It seeks to ensure that the funding council would exercise all the Secretary of State's duties as regards further education without exception. It takes no account of the structure and context of the Bill. The Secretary of State will have clear statutory duties. He will be accountable in law and to Parliament for the discharge of those duties. He will be the person liable for any breach of those duties, whether in practice the breach arises from his own or the funding council's action or inaction. The amendment seeks to take away protection which is essential to the Secretary of State. It is inappropriate, in the context of the Bill—the Secretary of State having the basic duties and accountability—for the excluded functions listed in Clause 7(3) to be exercised by the funding council. Many of the activities there carry a high risk of legal challenge.
I hope that that is a useful explanation. I invite the noble Lord to withdraw the amendment.
Lord Carmichael of Kelvingrove: After the remarks of the Minister, I accept without hesitation that Amendment No. 6 probably goes too far and I shall not move it. In view of what was said on Amendment No. 5 and in the light of the letter from the principals of colleges, it would also not be appropriate to press that amendment at the moment. However, Amendment No. 4 ensures that a future Secretary of State will establish a further education council. I am less inclined to accommodate the Minister on it for a number of reasons. First, "may" in an Act of Parliament is—as it was so well put—"always a wobbly word". We are never sure what will happen with it.
I do not believe that the Government will have much power to do anything about the conditions after the summer, but we received a clear statement from Mr. Michael Forsyth in another place. He stated:
"I remain of the view that it would be a mistake to establish such a council". [Official Report, Commons, 5/2/92; col. 306.]
It would not come later on; he does not want it at all. Suppose a great misfortune befell the party opposite and ultimately Mr. Forsyth became Secretary of State for Scotland. He would not establish a council.
I shall bring the amendment back at the next stage, and I hope that the Minister will give it thought. We could insert "shall" without a timetable. That is a little firmer than what the Minister and the noble Baroness, Lady Carnegy, suggested, which was that we should leave matters as they are. In most cases, where it is possible, I prefer an Act to use "shall" rather than "may". Meantime, for the reasons I have given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 and 6 not moved.]
Clause 7 agreed to.
Schedule 1 agreed to.
Clauses 8 to 11 agreed to.
Clause 12 [Boards of management]:
[Amendment No. 7 not moved.]
Clause 12 agreed to.
Schedule 2 [Constitution and proceedings of boards of management]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 8:
Page 43, line 42, leave out ("ten nor more than sixteen") and insert ("sixteen nor more than twenty").
The noble Lord said: In moving Amendment No. 8, I wish also to speak to Amendments Nos. 9 to 12. The purpose of the amendment is to increase the minimum size of the board to allow greater flexibility and to include wider interests, including local authority interests.
The current arrangements for college boards provide for a maximum of 20 persons and no case has been made for a reduction in the number. The Convention of Scottish Local Authorities suggests that there should be no fewer than 16 members of the board. That would allow for, at the minimum, two representatives of the education authority and two other places which would be available for other interest groups; for example, a person with an interest in special educational needs.
It is important that the board of management should have flexibility to appoint members who, in the opinion of the board, reflect important local interests outwith those of the employers. This issue, along with the matter of education authority representation on boards of management, was discussed fully at the fourth sitting of the Committee in another place.
In previous briefings, the convention suggested 16 as a necessary minimum size for a board of management if any scope was to exist for involvement of board members for which provision is not made specifically in the Bill. In the course of wide-ranging discussions in Committee and on Report in the other place, insufficient emphasis was placed on the minimum size of a board. We believe that the main concern is that if the board agrees to restrict its membership to a minimum of 10 places, at least five would be taken by representatives of the business and professional community. There is no objection to their being on the board, but it is a high proportion. I want them on the board, but not in such a high proportion.
A further four places are reserved under the Bill for staff and students of a college, leaving only one place for any other member. Clearly, this would allow for only one member of an education authority or of another interest group and no scope for, perhaps, a local councillor and a representative of the voluntary sector. Raising the minimum to 16 would allow for up to four places for board members not otherwise provided for under the terms of the Bill. I do not like big boards any more than the Minister does. However, I do not believe the number suggested in the Bill is sufficient. My amendment suggests a good compromise. I beg to move.
4 p.m.
Lord Addington: I support the amendments. The size of the board is at present somewhat small. I do not believe it would hurt to have a larger maximum number of persons on the board as well as a larger
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minimum number. Such larger numbers of board members could cover the great variety of interests with which the boards will deal.
Lord Taylor of Gryfe: I have a certain amount of sympathy with the amendment moved by the noble Lord, Lord Carmichael. In a good deal of government legislation that affects Scotland I detect a diminution of the responsibilities of local authority representatives. We ought to state now, and again on discussions not only on this Bill but on a number of other matters, that there appears to be a move away from local authority representation. After all, local authority representatives are the elected representatives of the people in the community. One may not like their politics and one may not like the representatives themselves but they are part of the democratic structure.
I believe that there has been a move towards emphasising the importance of the local business community. We have seen this occur in relation to the setting up of the local enterprise boards. Those boards have substantial responsibilities. I wonder sometimes where we shall find these busy men who run local industries and who are willing to discharge the responsibilities of the local enterprise boards and to sit on the councils that are mentioned in the Bill. I suggest that the Bill is slightly overweighted in the direction of the business community. I very much support the idea that there should be representation from the local business community. However, I believe we should also accept that local authorities have responsibilities in these matters too.
Baroness Carnegy of Lour: I understand what the noble Lord is saying. However, he must realise that one of the main problems that colleges are meeting at the moment is that distinguished, able local business people who are at present on the governing bodies of colleges are finding it extremely tedious to have to plough through a lot of local politics in the discussions of the governing bodies. One cannot expect councillors who are sent from their council to be members of the new boards not to fight their corner, whether that corner is their political corner or their council's corner. These boards are a different kind of animal from what has existed before. I believe they will work much better than what we had previously from the point of view of training for local industry and commerce. I have been on three such governing bodies in the past, although that was some time ago now. Those of us on the governing bodies found that the less discussion we had on local authority politics and the more we discussed the needs of the customers, the better satisfied were the employers of those customers. I believe that union members who had the interests of employees at heart also found that to be the case.
I understand that local authorities may be sorry to lose the automatic statutory link, but that provision is essential to the working of the Bill. There will be much contact between local authorities and the new boards because the provision of the local authority and of the boards will be interlinked. The director of education will constantly move backwards and forwards

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between the colleges and the boards, and vice versa. I do not think that the amendment is the right way to tackle this issue.
The noble Lord, Lord Taylor of Gryfe, has been on a great number of boards and has been involved in the management of important organisations. However, I must ask him whether he does not think that 20 is a large number of people to have on a board in the modern world. I suggest to him that 16 is a better maximum number from the point of view of getting business done. The boards will always be able to have sub-committees to deal with different subjects and they will be able to consult people on different matters. I believe it is important to keep the boards small and if possible to keep the local political scene separate so that colleges may be run in the most efficient and effective way for the students. After all, that is the objective of the whole exercise.
Lady Saltoun of Abernethy: I wish to support what the noble Baroness, Lady Carnegy, has just said. I am sure that years ago every one of your Lordships studied Parkinson's law. I seem to remember that Professor Parkinson thought the optimum number of members for any committee or board was seven. I am not suggesting that we should reduce the minimum number of members on the board from 10 to seven. But if one has a large board or a large committee, the members will all want to talk and it takes far longer to get through the business. The noble Baroness, Lady Carnegy, was quite right to say that. That process has happened in this House. We now have far too many Members and that is why we have to sit so late and why the business takes so long.
Lord Taylor of Gryfe: I have a great deal of sympathy with the point made by the noble Baroness, Lady Carnegy, as regards the number of members on a board. I believe 20 is a fairly large number. However, I am making a plea for a different balance in the construction of the board of 16, if 16 were to be the appropriate figure. I am concerned that it may occasionally be tedious for some people to sit through the democratic processes of discussion. However, that is part of our democratic process of arriving at decisions. It is easy for people to say, "Let us have six or seven members and get through the business". That has nothing to do with democracy. Democracy is about allowing elected representatives of the people to have a voice in their local affairs.
The noble Baroness, Lady Carnegy, has suggested local authority representatives might introduce a political element into the discussions. However, they would not necessarily all be drawn from one political persuasion, although that is more likely in Scotland. Nevertheless, the people who will wish to sit on the boards will have a sense of responsibility for discharging good educational practices. They will not necessarily want to advocate a particular political doctrine. The suggestion of the noble Baroness is ill-founded. I have seen local councillors sitting on boards of various charitable, educational and cultural organisations. Those councillors are not weighed down by ideology. They attend the boards with a view
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to discharging their responsibilities. I do not like the idea that, because people are local authority representatives, they should not represent local opinion on important matters such as education.
I suggest to the Minister that I am not necessarily in favour of the figure 20, although that is what the amendment suggests. However, I am strongly of the opinion that there should be some reasonable balance. I do not regard the present arrangements as achieving that reasonable balance.
The Earl of Selkirk: I was on an education committee in Edinburgh for two or three years. A great many Edinburgh citizens were singularly ignorant of educational matters. Few of the members of the committee had a constructive part to play on it. The committee was set up to look after the interests of the city. When I was on the committee far more was achieved than is the case today. Many of the committee's achievements have already been discarded by the local authority for a number of reasons.
Education is an awfully complex subject for the ordinary citizen. Those who have not trained themselves in it—I do not pretend that I have trained myself in it—cannot make much of it. We on the committee depended almost entirely on the director of education. He was fortunately a first class man and for that reason we did little damage. This is not strictly a matter for local people. There is not a great deal of what I would refer to as democracy in this matter. It is a case of a board member learning various facts about, for example, chemistry or reading and all kinds of subjects that have little to do with democracy. If there is a good man then certainly he should serve on the board, but in general there should not be much control by local government.
Lord Macaulay of Bragar: I was fascinated by the observations of the noble Lady, Lady Saltoun, on the exercise of democracy, particularly as they came from a Member of a non-democratic Chamber. Was she suggesting that a time limit should be imposed on democratic discussion within local authorities and institutions established on democratic principles? That is a most interesting proposition. I was even more fascinated to hear her observe that there is a plague in your Lordships' House of too many noble Lords speaking for too long. I wonder whether in due course she would circulate a list of those Members of your Lordships' House whom she considers to be dispensable to the process of democracy.
Lord Strathclyde: Like the noble Lord, Lord Carmichael, I shall speak to Amendments Nos. 8 to 12 inclusive. Given that we have had a rather interesting debate, we should be clear on certain principles when considering this group of amendments.
We aim unashamedly for boards to have a strong employer interest because vocational education and training are among the most important aspects of the work of further education colleges. Likewise, links with local enterprise companies will be important because of the vital role those bodies play in vocational education and training. We acknowledge, however, that that is not the sole activity of colleges.

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Accordingly, Schedule 2 provides for others to be appointed who have an interest in the work of the college. Those can include local authority members or officials if it is felt that they will make a valuable personal contribution to the work of the boards. That was the point which my noble friend Lord Selkirk made. If they are good enough, people will want them on the boards. That is the most important aspect of the matter.
Lord Taylor of Gryfe: Who will want them on the boards and who can express that wish? Who can recognise suitable local people? Surely the elected representatives are recognised?
Lord Strathclyde: The noble Lord, Lord Taylor of Gryfe, made a number of points and I shall come to the aspect which he no doubt regards as a democratic deficit in this instance.
In practice, initially the members of the boards will be the same as those of reconstituted college councils. They will be appointed by the Secretary of State to ensure a smooth transition. After that initial round of appointments, boards will themselves fill vacancies as they occur. That is the current practice in Scottish central institutions and it works well. Education authority members or officials are not precluded from membership and I am sure that in some instances boards will wish to appoint such people because of their personal qualities and expertise.
As regards the size of boards, we judge that boards with an upper size limit of 16 will be more effective than larger boards. The noble Lady, Lady Saltoun, made that point. Sixteen people may not always have the expertise or experience to cover the multitude of activities of some colleges. That is why we have provided for non-board members to be appointed as non-voting members of committees.
Finally, we have to be clear that the boards will be running education establishments for the benefit of their students. It is our belief that that is best done without political influence. As the noble Lord, Lord Taylor of Gryfe, said, we may not like their politics. In many instances I do not like the politics of Scottish local authorities. I dare say that the noble Lord, Lord Taylor, does not like their politics either. However, that is not the point. The issue is less the type of politics than whether or not politics should be involved in the management of further education on a day-to-day basis. My noble friend Lady Carnegy was absolutely correct on that matter.
The noble Lord, Lord Taylor, does not need to get too excited about the democratic deficit. We are dealing with the Houses of Parliament; it is Parliament which will decide what the structure should be and, if Parliament decides that local authorities should have a lesser voice than business, then democracy has been well protected.
I am not sure what point the noble Lord, Lord Macaulay, tried to make about this Chamber. I regard this Chamber as part of Parliament and supremely democratic in the way in which it deals with its work.
Lord Macaulay of Bragar: My point was how the Minister could justify that position when none of us is here as a result of a democratic vote of the people.
Lord Strathclyde: I stand here as a member of the Government by virtue of the people of this country having voted for my party and not for the party of the noble Lord. That is the way we should like things to continue. We have built up a very successful relationship on that basis.
If experience shows that our concern proves to be ill founded and boards themselves feel that a change needs to be made, that will be possible in the future under the Secretary of State's order-making power in Clause 3 to amend certain provisions contained in Schedule 2, which include those on membership and chairmanship of boards.
I hope that the Committee will acknowledge those principles and note that the heart of the policy is to remove further education colleges from the direct management of education authorities. The provisions of Schedule 2 are consistent with that policy. I do not expect the noble Lord, Lord Carmichael, to agree with everything I have said, but I hope that he understands the basis on which we have put forward our proposal.
4.15 p.m.
Lord Carmichael of Kelvingrove: The Minister expected that I would disagree with his proposal. He is quite right. I am always amused by the fact that the party opposite seems to believe that local authorities are run by horrible political people while businessmen are non-political. That is a great joke. For many years there were business people serving on Glasgow Corporation. They served as the Lord Dean of Guild and the Deacon Convenor, who were supposed to be totally neutral. However, every time a casting vote was required on the occasions when the Labour Party had an overwhelming majority of the confidence of the people of Glasgow, (which happened twice), those non-political people always voted one way. The only thing to do was to take the vote away from them. They were allowed to sit there but they were not allowed to vote.
I do not think that we shall get anywhere. The Minister and the party opposite are convinced that local education authorities have little to contribute to those bodies while business people have. There is a later amendment which reflects my anxiety that some business people could be compromised in terms of the direction in which they would try to drive the colleges. I do not think that that is a matter of politics either.
I shall consider the matter and take advice and possibly bring it back at the next stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9 to 13 not moved.]
Schedule 2 agreed to.
Clauses 13 and 14 agreed to.
[Amendments Nos. 14 and 15 not moved.]
Clause 15 agreed to.
Clause 16 [Transfer of property etc. to boards of management]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 16:
Page 13, leave out lines 4 to 12.
The noble Lord said: This is an important amendment which concerns a matter which worries local authorities. In fairness I believe that the Minister explained the matter at Second Reading, although that was rather hurried. However, certain education authorities are worried because the Bill proposes that all land or other property in respect of a college will be transferred from the education authority to the board of management of the college on the first transfer date but any debt charges relating to such property will remain with the local education authority. We take the view that that is wholly unreasonable, although, as I said, I believe that the Minister tried to explain the matter in his Second Reading speech.
We are raising the matter in order to have it set out in clear terms that there will be no long-term liability on education authorities as a result of the transfer of land and assets. I beg to move.
Lord Strathclyde: I acknowledge what the noble Lord said. It is an important amendment. Perhaps I can explain more fully than I did at Second Reading. Local authorities' loan charges are met on virtually a pound for pound basis in the distribution of the aggregate external financial settlement and FE historic debt will continue to be taken into account in the calculation in the normal way. Loans taken out by local authorities are made up in a complex way. Although we acknowledge that it is possible to identify the overall total outstanding of some £86 million, it needs to be borne in mind that local authorities repackage particular loans so that it is not straightforward over a period of years to disentangle debt for a particular building.
Local authorities entered into those loan arrangements. They are experienced in administering them, including repaying debt. The most sensible and straightforward arrangement is to leave the authorities to administer debt. That presents no additional burden to them. Nor can there be justification for rewarding education authorities for taking out loans without consent as required by statute. Yet the amendment would do that and would therefore render useless the provisions of the Bill protecting college property in the run-up to the transfer of colleges.
Moreover, if historic FE debt charges were to transfer, because of the size of the total outstanding debt and the Treasury policy that it would have to be redeemed, that sum would have to be found out of the Secretary of State's block. That could only be done to the disadvantage of further education and other services. The proposed arrangements would have no such disadvantage; neither would they place any additional burden on the taxpayer, as they continue the present arrangements.
I hope that that is a more full explanation of what I recognise is an important and complicated issue.
Baroness Carnegy of Lour: Perhaps I may add—for the comfort of the noble Lord, Lord Carmichael—that during the passage of previous legislation relating to England and Wales, the same arrangement was
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included in the Bill. My noble friend Lady Young and I were very concerned that local authorities should have in their accounts a debt for borrowing to build or to add to a college which was no longer in their hands. We thought that very strange.
At more than one stage of the Bill we went into the matter at considerable length by means of an amendment rather like the one moved by the noble Lord. Finally, we came to the conclusion that this is the neatest and simplest way to deal with the matter. As my noble friend on the Front Bench said, it is simply not possible to identify precisely the debt of a given college. Therefore, it will appear in the local authority's accounts. The loan charges will be paid and, as I understand it, the local authority will be refunded for those loan charges. There will be no loss by anybody except the taxpayer who continues to pay the debt on the loan charges. In a sense that is a book-keeping arrangement rather than anything else.
That having been established and understood by the local authorities, I believe that they will accept it, as, I seem to remember, did the local authorities in England and Wales in respect of schools. I am not sure whether it applies to schools in Scotland.
Lord Carmichael of Kelvingrove: The Minister realised that the point was worrying. Perhaps it still is. The local authority will never be repaid for anything expended on the colleges. I assumed that the Secretary of State would be the ultimate owner of the colleges and not the new boards. If the new boards were the owners in law, the colleges might pay off the interest in, say, 10 years' time and sell the colleges at a very high capital gain. However, I am sure that the Minister will have considered the matter.
I am trying to find out as much as possible in order to reassure those local authorities which are very concerned. Some people have spent many years and have gone to a great deal of trouble fighting to get a college. It is rather sad to find that they may lose it. It would be even sadder if they were to lose it and find that it was a burden on the local authority of which they were members. I shall be only too glad to hear the Minister if he has any more reassuring words.
Lord Strathclyde: The noble Lord asked a question. Ownership will not be in the hands of the Secretary of State but in the hands of the boards. There is a more general point. I recognise that some local authorities wanted colleges. They argued for them and got them. But now those colleges are moving into a different era of further education. That is the way local authorities should view the situation. As to the amendment, it will not cost local authorities one penny more or less than they were paying before. The position is neutral and they are refunded pound for pound for the amount of money they expend in terms of debt repayment. That is the most important aspect.
Lord Carmichael of Kelvingrove: I am afraid that that is slightly more worrying. It means that the buildings and grounds are in the hands of the new body, which is not answerable to the Secretary of State for the disposal of the land and buildings. There are a number of examples from various parts of Scotland

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where the local authority has been able to take over a redundant school and make it into a very good block of flats. In the area that I represented, they were highly desirable blocks of flats. The college board could do the same and do rather well from it. It could find that it was more profitable than teaching pupils.
Lord Strathclyde: Under the Bill there is a clear responsibility for the boards to provide certain levels of education. We are not creating a system in which the boards, after five or 10 years, will say, "We have had enough of this education game. Let us get into the property development game."
Lord Carmichael of Kelvingrove: There have been many demographic changes and schools have become redundant. It may happen to colleges, and it is quite worrying. It is true that this provision will not cost local authorities any more money but they will lose one of their assets. I should like to look very carefully at the matter. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 agreed to.
Schedules 3 and 4 agreed to.
Clauses 17 to 21 agreed to.
Clause 22 [College development plans]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 17:
Page 17, line 23, after ("college") insert:
("(d) how the college development plan relates to overall educational provision in the area in which the college is situated;").
The noble Lord said: It may be convenient if, with this amendment, we take Amendment No. 18. The amendment seeks to ensure that college development plans cohere with overall education provision in the area. We welcome the new provisions introduced at Report stage in the other place, compelling colleges to produce annual development plans and to consult with local authorities in their preparation. The amendment provides that colleges must take into account the wider educational provision in a local area and take steps to ensure cohesion between college plans and the education plans of the local authority.
Amendment No. 18 deals with the same point. There is no objection to the involvement of business interests in the college boards. I return to a suggestion I made earlier. I said that we would welcome business interests which have contact with local enterprise companies. But we have difficulty with the provision in the Bill for formal involvement of local enterprise companies through membership of boards and the provision for consultation on college development plans.
Local enterprise companies are commercial organisations and will seek services from a range of training agents, including colleges. There could be a strong possibility of conflict of interest between local enterprise companies and college boards. It cannot be stressed too strongly that colleges serve the entire community, not only the needs of the local employers, and certainly not only the commercial interests of the local enterprise companies. The independence of
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college boards from local enterprise companies should be preserved by removing the formal links. I beg to move.
4.30 p.m.
Lord Addington: I support the noble Lord. I believe that there should be the greatest possible degree of co-ordination between the new colleges and the education authorities in any area. Education should not be sub-divided at any level.
Lord Strathclyde: I am slightly puzzled that the noble Lord opposite has tabled these amendments. When Clause 22 was introduced at Report stage in another place the Opposition spokesman very much welcomed it.
Perhaps I may point out to the noble Lords, Lord Addington and Lord Carmichael, that it is inevitable that boards must consider how their development plan relates to the overall educational provision in the area in which the college is situated. That is because Clause 12(1) places boards under an obligation to have regard to the provision of education in the area in which the college is situated. They will have therefore to consider not only education authority provision but provision made elsewhere, including in higher education institutions. The amendment would cause confusion where none would exist otherwise. Its meaning is vague and would be constantly open to question. I understand the principles that the noble Lord seeks to put forward. The provision clearly already exists.
I am also puzzled why the noble Lord should seek to exclude local enterprise companies from being involved with colleges in the preparation of development plans. LECS are key players in the planning of training and they will have vital information and views on local labour market and employment trends. Boards need to have that information if they are to be responsive. I do not consider that problems of commercially sensitive information are serious or cannot be overcome by those concerned. It may assist the Committee if I say that neither colleges nor LECS have expressed any difficulty to us on these provisions. I hope that the noble Lord will accept that explanation.
Lord Carmichael of Kelvingrove: The difficulty relating to what the Minister states and what may happen is that time sometimes changes people's attitudes. That is why we are always anxious to have matters on the face of the Bill. One would be surprised if at this stage of the Bill any LECs were to have the slightest intention of doing anything other than for the benefit of the education of the population. However, I was concerned that as time goes on conflicts of interest may arise. I do not believe that anyone doubts that. However, I do not believe that we shall make much further progress with the amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 18 not moved.]
Clause 22 agreed to.
Clauses 23 to 34 agreed to.
Schedules 5 and 6 agreed to.
Clauses 35 and 36 agreed to.
Clause 37 [Scottish Higher Education Funding Council]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 19:
Page 27, line 34, leave out subsection (3) and insert:
("( ) In appointing the members of the Council, the Secretary of State shall ensure that not less than two fifths and not more than three fifths of those members shall be persons appearing to the Secretary of State—

(a) to have experience of, and to have shown capacity in, the provision of higher education; and

(b) to be currently engaged in the provision of higher education;

and in appointing the remaining members the Secretary of State shall have regard to the desirability of including persons who appear to him to have experience of, and to have shown capacity in, industrial, commercial or financial matters or the practice of any profession.").
The noble Lord said: Amendment No. 20 is linked with the amendment. The intention of Amendment No. 19 is to ensure that a reasonable proportion of funding council members have an up-to-date working knowledge of universities while at the same time acknowledging the valuable contribution of industrialists alongside them. The proportion that we consider reasonable is that which applies in the present Universities Funding Council under Section 131(3) of the Education Reform Act 1988. The draft reflects the language of that enactment. I believe that the Minister is aware of the arguments and has had consultation with the universities. I beg to move.
The Deputy Chairman of Committees (Lord Skelmersdale): I should point out to the Committee that if this amendment is agreed to I cannot call Amendment No. 20.
Lord Strathclyde: Amendments Nos. 19 and 20 were debated in Committee in another place. My right honourable friend the Minister of State accepted the Liberal Democrat amendment which is now Amendment No. 20 but unfortunately it was never moved by Mr. Nicol Stephen, and we are now putting that right and accepting it in this Chamber.
Amendment No. 20 brings the Bill into line with the equivalent provisions for England and Wales and strikes the right note in requiring the Secretary of State to have regard to the desirability of including currently engaged academics or academic administrators in the council.
Clearly the Secretary of State will want to appoint members who are currently engaged in higher education, but for a whole series of reasons ideal candidates might not happen to be currently engaged at the time a vacancy came up. For instance, someone might have recently retired, have taken a temporary appointment in industry or have been seconded to an international organisation. It would be wrong to impose thresholds in those circumstances, as Amendment No. 19 does, which might prevent an outstanding candidate from being appointed.
I hope that I have sufficiently explained why I do not believe that Amendment No. 19 is a reasonable amendment. I hope that the Committee will accept Amendment No. 20.
Lord Carmichael of Kelvingrove: The Minister meets most of the points about which we were concerned in Amendment No. 19. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Strathclyde Lord Strathclyde moved Amendment No. 20:
Page 27, line 39, after ("education") insert ("and, in appointing such persons, he shall have regard to the desirability of their being currently engaged in the provision of higher education or in carrying responsibility for such provision").
On Question, amendment agreed to.
Clause 37, as amended, agreed to.
Schedule 7 agreed to.
Clauses 38 to 40 agreed to.
Clause 41 [Administration of funds: supplementary]:
Lord Addington Lord Addington moved Amendment No. 21:
Page 30, line 26, after ("bodies") insert ("including bodies representing the views of students").
The noble Lord said: The amendment deals with the consultation of student bodies relating to the activities of the funding council. Effectively all we ask is that those bodies which represent students' interest —they are the ultimate consumers of education—are consulted. It is not a totally unreasonable consideration especially since the Government have given so much emphasis to the power of the consumer. I beg to move.
Lord Strathclyde: I am not entirely certain in the amendment that bodies representing the views of students would have any real interest in the terms and conditions which the council intended to attach to its payments to particular institutions. Those terms and conditions will relate principally to the arrangements for the proper stewardship and efficient administration of public funds. They will cover the responsibilities of the governing bodies of institutions and in particular those of the accounting officer as well as accounting and internal audit procedures. In particular they might cover the earmarking of funds for particular purposes such as access courses, or the broad divisions between teaching and research and between capital and recurrent expenditure.
All those conditions will impose a requirement on the governing body to ensure that they are complied with. It is therefore quite appropriate that, as at present with the UFC, the council should be required to consult institutions collectively and individually as appropriate. Where students are members of governing bodies, as they frequently are, they will have an opportunity to influence the response made by the governing body to the consultation process. However, at the collective level—the level addressed by the amendment—the interests of students are surely tied up with the level of student support and not with the responsibilities which councils may place on governing bodies in relation to their institutional grant.
I can understand that bodies representing students will be interested in the former but not in the latter. I do not make an anti-student response, but on that basis I hope that the noble Lord will withdraw the amendment.
Lord Macaulay of Bragar: I was interested to hear the Minister refer to the student body. Perhaps if we were to substitute the singular for the plural, so that the amendment refers to a body representing the views of the students, that may be more in line with the democratic principles of the college. After all, the students are the core of the college. It is wrong to cut them off at an administrative level when dealing with funds as though that group of people are incapable of applying their minds to the administration of funds.
Perhaps the Government will consider accepting the principle of the amendment so that student representation goes right through the whole system of the administration of the college and its funds. The college does not belong to the students; the students belong to the college. They are the people most affected by what is happening within the college.
I can understand why the Minister does not accept the amendment because bodies representing the interests of students could include every society within the college—political societies, philosophical societies, debating societies and so on. However, perhaps the Minister will agree to take away the amendment and think about bringing the student body into the consultative procedure from beginning to end on the discussions on the administration of funds.
Lord Strathclyde: Students are on the governing bodies of individual institutions so they are fully consulted.
Lord Taylor of Gryfe: I have a great deal of sympathy with the point made from the Liberal Benches and made by noble friend Lord Macaulay.
It is important to get students to realise the full responsibilities of administration of a college. Sometimes in universities and higher education there is a them-and-us relationship between the governing bodies and the students, which is undesirable. Perhaps the Minister will assure us that the voice of the students will he heard. I realise that this part of the Bill may not be the appropriate place to deal with that. However, that seems to me to be an extremely desirable part of the well-run institutions which are now being created. It would help students to realise the funding problems, which is extremely important. They should realise that everything that they seek is not available. If the Minister will assure us that the voice of the students will be heard, we shall be happy with that.
Lord Mackie of Benshie: I found it rather difficult to see the objection to the amendment. I do not believe that the Minister could envisage an occasion when it may not be better to consult the student body. I know that students can be an appalling nuisance, but the way to make them rational is to give them responsibility.
The argument was raised that the amendment may make it necessary to consult philosophical societies and so on. However, the Bill states quite clearly that:
"the Council shall consult such of the following bodies as appear to the Council to be appropriate to consult in the circumstances".
I can envisage that the expenditure of funds on student facilities, teaching facilities and accommodation may
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affect a student body. In such a case, it would be essential and extremely helpful to consult a body representing students.
4.45 p.m.
Baroness Carnegy of Lour: This part of the Bill is likely to be largely concerned with the funding of staff, which always comprises a large part of the provisions for a university or other higher education institution. The noble Lord, Lord Mackie, with his experience of the University of Dundee, will remember that it is always necessary to discuss staff with staff. It is preferable that staff matters are not discussed in the presence of the students.
This part of the Bill deals with the funding terms and conditions of the institution in general. We are not talking about the day-to-day running of the institution in which students are fully involved in Scotland. That is a somewhat different matter.
Earl Russell: I apologise for intervening so soon after my arrival but as my name is to the amendment, I should like to say a few words in favour of it.
I entirely accept what the noble Baroness says about reserved areas. That is an accepted principle of business in any committee involving students. It is understood and does not seem to give rise to any dispute.
One reason for consulting students on occasions is that there are certain matters about which they know a good deal more than anybody else. In many areas, they know where the shoe pinches. In some areas, which are frequently forgotten about—such as the capacity of the refectory—if the students are not consulted, the issue is not discussed at all. I have also found from my experience of student representation that we hear from them a great deal of practical common sense. The 1960s are rather a long time ago.
Lord Strathclyde: I should not want this debate to get out of hand. It is not a case of whether or not there is student consultation. We are delighted to consult with student bodies. Nothing prevents a council from consulting any body. However, we believe that the student interest is best covered at institutional level.
As regards this amendment, we cannot see that students have any real interest in the terms and conditions which the council intends to attach to its payments to a particular institution. Those terms and conditions will relate principally to the arrangements for the proper stewardship and efficient administration of public funds. I may be wrong. Perhaps students throughout the country are fascinated by those subjects and would play a valuable role.
The noble Lord, Lord Macaulay, made a suggestion which I am happy to consider. I believe that the greater the consultation, the better. However, I do not wish to impose consultation where none is genuinely required.
Earl Russell: There are circumstances in which the student voice may be particularly appropriate on terms and conditions. One of the terms and conditions most often discussed at present is how many students the college will be asked to take in return for a specific

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amount of money. On the question of the physical capacity of the college, the students can see the problems arising usually before and better than their teachers can. Also, they can weigh the force of the argument for expansion because they need only to think back to the situation which existed for them a maximum of three years ago. Therefore, their capacity to weigh one argument against another seems to deserve a particularly careful hearing. In such matters, their views should be taken as seriously as those of anybody else.
Lord Macaulay of Bragar: I agree with the Minister that we do not want the debate to get out of hand. However, it is important to look at what we are talking about. The Minister is rather dismissive of student bodies in regard to what is being discussed here. Clause 41(1) gives the council the right to refuse to consult because the Bill states:
"the Council shall consult such of the following bodies as appear to the Council to be appropriate to consult in the circumstances".
If an approach was made by the "student body" as a whole to the council, the council could tell it to go away. The clause refers back to Clause 40(3)(a), which reads:
"The Council may—
(a) make grants, loans or other payments to the governing body of any institution within the higher education sector in respect of expenditure incurred or to be incurred by them for the purposes of any activities eligible for funding under this section by virtue of subsection (2) (a) or (b) above".
Clause 40(2) (b) states:
"The activities eligible for funding under this section are …
(b) the provision of any facilities, and the carrying on of any other activities, by such institutions in Scotland as are within the higher education sector which the governing bodies of those institutions consider it necessary or desirable to provide or carry on for"—
note the words which follow—
"the purpose of or in connection with education or research".
If we take the first phrase,
"the purpose of or in connection with education",
who can be more affected by that part of the Bill than the students? I cannot see what harm can be done to the principle of the Bill and of this clause by giving representation of the students at least a mention in the bodies which should be consulted under the terms of Clause 41.
I detected an indication from the Minister that he will take the matter away and consider it. I see that he nods his head. In that case I am happy to have made the point and at this stage I leave the matter there.
Lord Addington: The debate hinges on the fact that students are ultimately those with whom the institutions are concerned. It is a question of how the students come through them and what they think. They are the consumers of the education provided and take away the final product—qualifications. It is difficult to see them not being able to give at least something to most, if not all, specific areas of what goes on inside the institutions. I agree that there are probably one or two areas in which they should not be included as there are one or two areas where staff would not be included. However, I cannot see why they are excluded.
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The Minister said that there will be some thought given to the matter. I am prepared to withdraw the amendment but I shall certainly come back to it if nothing positive happens.
Baroness Carnegy of Lour: Before the noble Lord sits down, perhaps he will clarify something. I am a little unclear as to what student body would be consulted in this case.
Lord Addington: It could be the student council, the NUS, or some other federation where students happen to be included. Generally, it could be the student body in any institution.
Baroness Carnegy of Lour: The noble Lord was more recently a student than any of us. Is there a body which would be able to represent the views of students in all these institutions? He made an inspiring speech about the need to involve them and, as he knows, I absolutely agree with him. I am keen on the subject. I am concerned, however, with the practicalities of how the funding council can consult students about issues being dealt with under this part of the Bill. I wonder whether the noble Lord can clarify that. I am not necessarily against the amendment, but I cannot imagine how it would be fruitful.
Earl Russell: If it is in order to intervene before my noble friend sits down, perhaps I can say that student representatives on the academic board would be appropriate people to undertake that responsibility.
Baroness Carnegy of Lour: That happens in individual colleges. We are talking about funding in general.
Earl Russell: They could perfectly well be consulted by any funding council.
Lord Strathclyde: Perhaps I can offer some clarification. The point made by my noble friend is a good one. At the individual college level, students are members of governing bodies and are consulted on that basis. We are talking about the collective level by which the funding council wants to make general terms and conditions for all colleges. My noble friend was making the point about which student body it would consult.
Lord Addington: I should have thought that the NUS would be an excellent body with which to consult. The name "union" may not go down too well. But the NUS acts in a responsible way in the vast majority of cases. I see no reason why it could not be regarded as a suitable body for consultation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41 agreed to.
Clause 42 [Grants]:
The Deputy Chairman of Committees: If Amendment No. 22 is agreed to, I cannot call Amendments Nos. 23 or 24.
Lord Strathclyde Lord Strathclyde moved Amendment No. 22:
Page 30, line 44, leave out subsections (2) and (3) and insert:
("(2) The terms and conditions subject to which grants are made by the Secretary of State to the Council—

(a) may in particular impose requirements to be complied with in respect of every institution, or every institution falling within a class or description specified in the terms and conditions, being requirements to be complied with in the case of any institution to which the requirements apply before financial support of any amount or description so specified is provided by the Council in respect of activities carried on by the institution; but

(b) shall not otherwise relate to the provision of financial support by the Council in respect of activities carried on by any particular institution or institutions.

(3) Such terms and conditions may not be framed by reference to particular courses of study or programmes of research (including the contents of such courses or programmes and the manner in which they are taught, supervised or assessed) or to the criteria for the selection and appointment of academic staff and for the admission of students.").
The noble Lord said: we have what appears to be a series of competing amendments, all attempting to do exactly the same thing. I do not want to rehearse the history of this complex matter. Your Lordships debated it long and hard on the corresponding Bill for England and Wales. The provisions in this Bill have also been debated at length in the other place and have been the subject of extensive and detailed consultation with the higher education institutions.
As Members of the Committee will be aware, my ministerial colleagues at the Scottish Office sought to construct a Scottish solution to this problem which would satisfy all concerned. That, unfortunately, was not to be. I made clear at Second Reading that I was willing to consider your Lordships' views and the views of Scottish higher education interests before determining the best way forward.
It was clear from that debate that your Lordships wished Clauses 42 and 54 to be amended to bring them into line with the provisions in the England and Wales Bill as they left this House. That was also the view of the Scottish universities, although earlier they had seemed content with the provisions currently in the Bill. The grant-aided colleges, on the other hand, had no problem at all with the current provisions.
Taking all those views into account, I have accepted that Clauses 42 and 54 should indeed be brought into line with their England and Wales equivalents. However, I should perhaps explain that Amendment No. 32 to Clause 54, in the name of my noble friend Lady Carnegy of Lour and the noble Earl, Lord Russell, refers to functions of the council "under this part of this Act." Those words do not generally appear in the Scottish Bill, although they do in the England and Wales Bill because it is possible that the council might have a function conferred on it by Clause 82 of that Bill. Clause 82 extends to Scotland and deals with the joint exercise of functions by the three territorial councils. The amendments I have tabled to Clause 54 —Amendments Nos. 33 and 34—however, remove directions otherwise than from financial mismanagement without restricting the scope to functions under this part of the Bill. With regard to Clause 42, Amendments Nos. 22 and 23, are identical and both achieve the desired effect. Amendment No. 24 to Clause 42, tabled by the noble Lord, Lord Carmichael, would also secure the desired effect, but
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mine and my noble friend's amendment go rather further in bringing the wording in the two Bills together, and so I think they are preferable in the circumstances.
I turn now to Amendments Nos. 35 and 36—
Lord Simon of Glaisdale: I am obliged to the noble Lord for giving way. I propose to move Amendments Nos. 35 and 36 separately. I am sure that it will be more convenient for the Committee if the noble Lord postpones his observations until that stage.
Lord Strathclyde: I thank the noble Lord for his courtesy in advising me of that before I stumbled into responding to what he has not yet explained. I shall wait until we reach Amendments Nos. 35 and 36.
I hope that the noble Lord, Lord Carmichael, will be willing to withdraw Amendment No. 24 to Clause 42, and that my noble friend Lady Carnegy and the noble Earl, Lord Russell, will be willing to withdraw Amendment No. 32 to Clause 54. My amendment and my noble friend's amendment to Clause 42—Amendments Nos. 22 and 23—are identical and I shall be content if the Committee accepts either. Finally, I hope that my amendments to Clause 54, Amendments Nos. 33 and 34, will be accepted.
Lord Beloff: I rarely intervene on Scottish affairs but I should like to congratulate my noble friend the Minister on adopting word for word the amendment which I drafted and which this Chamber passed at my suggestion on the English and Welsh Bill. I suggest that this might be a very useful precedent. If the Government were to accept amendments that I draft to education Bills they would spare themselves a great deal of trouble of the kind that they got into last night, for instance. Perhaps my noble friend will convey to his right honourable friend the Secretary of State that rather than threaten this House through the radio and the media, as he has been doing today, with dire penalties if this Chamber does not reverse its majority decision of last night, he might, on reflection, think that the House of Lords is more often right than wrong, and that in the amendment moved by the Minister we have accurate and convincing proof of that fact.
5 p.m.
Baroness Carnegy of Lour: I am sure that we all understand my noble friend Lord Beloff wishing to use the opportunity of a Scottish Bill to remind us of his great work last night which concerned the inspectorate in schools applying entirely to England and Wales. Last night the clause on the Scottish Bill was unchanged. I return to the amendment. We owe a debt of gratitude to my noble friend Lord Beloff for the wording. I thank my noble friend for his introduction to Amendments Nos. 22, 33 and 34. I am sure that the Committee is grateful to the Government for their flexibility and willingness to amend this part of the Scottish Bill not once but twice.
In speaking to the amendments in my name and those of the noble and learned Lord, Lord Simon of Glaisdale, the noble Earl, Lord Russell, I apologise for the exact repetition of Government Amendment No.

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22 in my amendment which is Amendment No. 23. When I originally tabled the amendment, I was advised that it was flawed. I adjusted the drafting, but the weekend intervened. It was only this morning that I realised that the only two differences on the Marshalled List between my amendment and that of the Government are a misprint in the middle of paragraph (a) where the letter "n" is floating in space instead of having an "i" before it to make the word "in". In the last line of paragraph (a) of the Government amendment there is a semi-colon, and in my amendment there is a comma. That may seem insignificant; but punctuation does matter. I was informed only today of something which I should have known already; namely, that in this century someone was hanged because of the lack of a comma in the Treason Act 1351 which I understand is still on the statute book and without any commas. Apparently not much punctuation was put into legislation at that time.
In this case I do not believe that my amendment or that of the Government say anything different. The sense is exactly the same. Perhaps we can ignore that matter. In fact, it is my amendment which contains punctuation from the English Bill and not the Government amendment.
My Amendment No. 32 and the Government Amendments Nos. 33 and 34 are differently worded, but they have almost identical effect. As my noble friend Lord Strathclyde has said, he has omitted one phrase which was unnecessary, but otherwise the effect is the same. I gladly accept Government Amendments Nos. 33 and 34 as I am sure do other Members of the Committee whose names are attached to Amendment No. 32. I shall not move that amendment.
It seems to me that the outcome is now satisfactory to all concerned. As originally drafted, the Bill allowed for too much Scottish Office interference in the affairs of higher education institutions. That perhaps reflected the Scottish Office experience of close control of what used to be called central institutions. The Government listened very carefully to the arguments in another place on this matter. When their amendments were put forward and agreed, the Government had the impression, and so I believe did all Members of Parliament present, that the universities in Scotland were satisfied. However, once the Scottish university principals reflected on the matter, they were not satisfied. The Secretary of State for Scotland would still have more power than the Secretaries of State for England and Wales to intervene in university affairs in certain circumstances.
Scottish universities wanted the same degree of autonomy and freedom for Scottish institutions as is allowed for in the England and Wales Bill. The Government have now provided that. There is a long and much-cherished devotion in Scotland to the concept of academic freedom in universities. But more than that—and this is important—despite separate funding councils now being set up, it is of vital importance to Scotland that our higher education institutions do not become isolated. Quality and the funding of research must continue to be handled on a
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UK basis. Academic freedom and institutional relationships with the government of the day may affect both quality and research funding. That is particularly why Scottish higher education institutions have reason to be grateful to the Government for their willingness to listen and to respond not only once but twice to their requests. I hope that the Committee will accept the Government Amendments Nos. 22, 33 and 34. In turn, I shall not move Amendments Nos. 23 and 32.
Lord Simon of Glaisdale: These amendments concern the important matter of academic freedom. At Second Reading, I asked the Minister why the Scottish Bill, which is now before the Committee, did not include the safeguards which had been written into the English Bill, if I may call it that. If I may say so, the noble Lord, showing a precocious mastery of the technique of the Dispatch Box, omitted to answer that question. As the concession has been made, it would be ungracious for me to repeat it. In this matter, I eat out of the hand of the noble Baroness, Lady Carnegy of Lour. I am entirely content to follow her line and to thank the noble Lord for the concession that he has brought forward.
On Question, amendment agreed to.
[Amendment Nos. 23 and 24 not moved.]
Clause 42, as amended, agreed to.
Clause 43 [Further functions]:
Lord Addington Lord Addington moved Amendment No. 25:
Page 31, line 19, after ("Scotland") insert ("including performance measures which describe as fully as possible the education received by students including measures such as staff-student ratios, funding per student, student library book ratios, drop out rates, spending or student support facilities and other measures as appropriate").
The noble Lord said: This amendment merely states that there should be made available information as regards,
"staff-student ratios, funding per student, student library book ratios, drop out rates, spending or student support facilities and other measures as appropriate".
For each institution these facilities will be comparatively easy to provide. They will assist with the choice of institution. I cannot see how this amendment can be objected to because under the Citizen's Charter we have heard more about consumer choice and so forth. Surely we can bring these facilities into the Bill. It should not be very expensive to state how many students and staff there are in an institution. It cannot be difficult to do that or to include the number of books and the drop out rate. That would be very simple. It would not greatly inconvenience anybody as the information must be readily available if the institution is functioning in a reasonable and efficient manner. I beg to move.
Earl Russell: I think that this is a reasonable proposal for exactly the same reason as before a horse race it is reasonable to specify the weights; otherwise a good many of us guess wrong.
Lord Strathclyde: The noble Lord, Lord Addington, asked how could anyone object to this amendment, and the noble Earl, Lord Russell, said that the amendment is reasonable. The point is, I do

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not object and it is reasonable. But it is an amendment that is unnecessary because it seeks to require the funding council to give the Secretary of State the kinds of information that the Secretary of State would wish to receive and that the council would wish to provide. It therefore adds nothing of substance either to the Secretary of State's powers or to the council's ability to address the important area of performance indicators.
Clause 43 requires the council to provide the Secretary of State with information about higher education in Scotland which he may require, and enables the council to provide him with such information as it thinks fit.
The Government's belief in the importance of performance indicators is well known. The department formed a joint working group with the grant-aided colleges two years ago to examine the issue. In addition, the launch letters of guidance to the present funding councils in 1988 made clear that the Government looked to the UFC and PCFC,
"to develop further indicators of both the quality and quantity of institutions' teaching."
In the universities sector, joint work by the UFC and Committee of Vice-Chancellors and Principals on the development of such indicators is also continuing.
The higher education White Paper repeated that expectation in relation to the new council, and I am sure that the Secretary of State will want to reinforce that in his guidance to it. It would in any case be remarkable if performance indicators relating to the output and quality of higher education as well as its funding, did not become an increasingly important part of the information collected and provided by the council.
I hope that what I have done is to describe the tremendous advances that the Government believe need to be made in this area, but why the amendment is not necessary. I hope that having explored the amendment fully, the noble Lord will withdraw it.
Lord Addington: I thank the noble Lord for that reply. Certainly it appears that he has met most of my points. However, I should like to go away and read his answer and check it out to make sure that everything is there. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 26:
Page 31, line 25, at end insert ("and shall be published by him.").
The noble Lord said: In speaking to this amendment, it may he appropriate if I speak also to Amendments Nos. 27 and 28.
The purpose of these amendments is that we feel very strongly that the advice of the funding councils to the Secretary of State should be published in order to establish greater openness in the framework of government within which the institutions have to work. It is especially important that the issue of funding and quality should be seen to be separate. That was the view taken by a number of noble Lords during speeches on the Bill for England and Wales. All those involved in higher education should have good
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data on the sector at their disposal. That is particularly relevant to the determination of student numbers, for example, as well as to other aspects which have a substantial impact on the work of the university institutions.
If we are moving into a new era where there are to be citizen's charters and a greater spread of the knowledge and the reasons for decisions being taken, surely this is a place where there are enough responsible people able to handle the publication of advice to the Secretary of State from organisations such as the Universities Funding Council. I beg to move.
Lord Strathclyde: I too shall reply to the same amendments to which the noble Lord has spoken.
There was an extensive debate during Committee in the other place on the question whether and to what extent the information and advice provided to the Secretary of State by the council should be made public. In answering the debate, my right honourable friend the Minister of State made clear that he expected that a good many of the exchanges between the Secretary of State and the council would be made public as a matter of course, and the council would have a public role in influencing the climate of opinion on issues affecting the higher education sector in Scotland.
However there were occasions where it would be undesirable, or indeed damaging, for the council's communications with the Secretary of State automatically to be made public. For instance, exchanges could well concern the confidential financial resources of a particular institution, or the level of resources which the council considered the sector required. It has been the long-standing practice of successive governments to conduct the discussions leading up to public expenditure decisions in private. The reason being that this provides the most conducive environment for an objective and rational appraisal of competing bids for the available resources to be carried out.
The difficulty with Amendment No. 26 is that it requires publication in all circumstances which in effect would mean that the Government could not benefit from the advice and assistance of the council in the most difficult and sensitive cases. The Government have no wish to gag the council. The intention is simply to preserve the existing arrangements under Sections 131(8) (b) and 132(10) (b), of the Education Reform Act 1988 which rest discretion over publication with the Secretary of State. That will allow the council to function effectively both on matters which are appropriate for the public domain and those which must remain at least for a period in the private domain.
An identical amendment to Amendment No. 27 was also debated in another place. What I feel about this amendment is that student numbers are such a basic statistic that the council could not fail to be aware of them. Therefore it is unnecessary to require them to keep these numbers under review. In general, the collection of statistics and other data and details of

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funding methodologies are best left to the three funding councils to work out in consultation with the institutions.
With regard to Amendment No. 28, the council already has sufficient powers under the Bill to conduct all the research and engage in all the statistical activity that will be appropriate. The necessary statutory cover stems largely from subsections (1) and (2) of Clause 43. The council could therefore already commission its own independent research and no doubt will wish to do so. I believe that Amendment No. 26 is undesirable, and that Amendments Nos. 27 and 28 are unnecessary. I ask the noble Lord to withdraw them.
5.15 p.m.
Earl Russell: The Minister has made an interesting reply. I wonder whether there might possibly be some scope for further discussion. I take the Minister's point about confidential information concerning the financial circumstances of an individual institution. If the Minister would prefer an amendment tabled in the form of a requirement for the Scottish Higher Education Funding Council to provide an annual report, that might be something that the noble Lord, Lord Carmichael, might wish to consider.
The other part of the Minister's argument is essentially about the public expenditure round. The Minister argued that governments prefer to have this conducted with as much confidentiality as possible. I can see perfectly well that they do. It is much more convenient for them. But the Government's convenience is not always the only criterion to be taken into account. There is a considerable number of parties whose confidence, ideally, should be gained if possible. While it is a great deal easier for the Government to conduct everything in private, it does not necessarily follow that that results in arriving at a better decision.
The policy of restraint from giving advice in public is not a longstanding government policy; it is something that was brought in in the Education Reform Act 1988. It has given rise to a good deal of comment since. It has been reflected on, somewhat unfavourably, by Sir Peter Swinnerton-Dyer when he was censured by the Public Accounts Committee in another place for not revealing in public advice which the Education Reform Act 1988 did not allow him to reveal. He felt that that was a little unfair. I have a certain amount of sympathy with him.
Therefore, is the Minister prepared to consider that there may be some scope for discussion about how far people should know the advice which is coming in from the funding council? After all, because it is a public body it ought to be able to contemplate informing Parliament on occasion, as well as the Secretary of State. I understand that the Secretary of State needs to be able to make an informed decision, but so on occasion do we. If we knew what the funding council was advising, very often we could do it rather better.
Lord Strathclyde: Perhaps I may briefly respond to that point. With regard to general consultation, I am
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always delighted to have more discussions with the noble Earl or anyone else on these subjects. But there is a general point of principle here. If there is a requirement to publish all advice, which under this amendment is the case, in all circumstances, what will happen is that the advice will not be sought in the first place. I cannot believe that that is what the noble Lord opposite or the noble Earl would like to see. Privacy is not just convenient. It allows better decisions to be reached between the competing claims on the limited resources available. The 1988 Act probably strikes the right balance.
I hope that I have replied to the noble Earl in such a way that he can accept the force of argument. There is always a problem that governments of whatever colour seek to have these kinds of discussions in privacy. If the position were ever reversed between the noble Lord Carmichael and myself, he would want exactly the same provisions. These are the provisions that work best in terms of government, and from the accountability point of view it is Parliament's right to cross-examine the Secretary of State or other Ministers to find out what decisions have been made and what advice has been received.
Lord Carmichael of Kelvingrove: It has been an interesting debate. The noble Earl, Lord Russell, suggested that a report of the Scottish Higher Education Funding Council should be laid before Parliament. Perhaps the Minister will take that suggestion away. We all accept that every organisation must have some confidentiality about its discussions and dealings with other bodies. However, in Britain we seem to ask, "How little do we have to tell them?"; and never, "How much can we tell them without doing damage to our point of view?" The Minister was quite right. I was in much the same position as he now is. I had to withhold some so-called secrets. However, I shall not go into details—that the figures that we were trying to protect for various reasons were produced in America via the Freedom of Information Act. There was an agreement between Britain and America that all data on certain subjects should be given to the Americans. They published them but even then we were not allowed to discuss them in the British House of Commons.
Rational appraisal is more difficult if everyone knows the facts or everyone knows a lot of the facts. However, I believe that a start should be made at some point. A modus vivendi should be found through the facts given by the SHEFC to the Secretary of State. Perhaps we can gradually build up until we know the minimum that the Secretary of State and the Government need before damage is done to the argument. I believe that the more discussion one has on most things, the better. With all their faults and all the contradictions in terms of what the Government have been saying about confidentiality, that even applies to the league table published on Friday of last week concerning not only the standard of education in some of our schools, or what the Government crudely thought was the standard of education, but the cost per pupil. That should have been better dealt with than it was. Secrecy serves the Government

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sometimes; perhaps, sadly, all governments. At other times, when it suits them, they want to dispense with secrecy.
However, I take the Minister's point and I hope that he will take on board the point made by the noble Earl, Lord Russell, and give thought to the idea of a report being laid before Parliament periodically on the advice of the SHEFC to the Secretary of State. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 27 and 28 not moved.]
Clause 43 agreed to.
Clause 44 [Designation of institutions]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 29:
Page 32, line 25, at end insert ("which is not a university and").
The noble Lord said: This may seem to be an unnecessary amendment. Its purpose is to prevent confusion between the status of a university as currently instituted and a designated institution under this clause. In particular, Clauses 38(2) and 50(1) and (2) do not make absolutely clear that the Secretary of State may not choose to designate an existing university and thereby obtain extra powers. This amendment would make absolutely clear what in any case appears to be the Government's intention. I beg to move.
Lord Strathclyde: I think I can help the noble Lord. The Secretary of State cannot designate one of the existing universities under Clause 44. There is a very clear distinction in the Bill between designated institutions and the existing universities. Therefore the provisions of Clauses 45, 47 and 49 cannot apply to the existing universities. Accordingly, the amendment is unnecessary and I hope that the noble Lord will withdraw it.
Lord Carmichael of Kelvingrove: With that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 44 agreed to.
Clause 45 [Power of Privy Council in relation to designated institutions]:
Lord Addington Lord Addington moved Amendment No. 30:
Page 32, line 39, after ("body") insert ("which shall include at least two students nominees elected from the student body").
The noble Lord said: We find ourselves returning to the matter of student representation. The amendment states that the governing body shall include at least two student nominees from the student body. The amendment effectively states that there should be elected student representatives and that there should be at least two.
I regard it as something of an opening position to say that there should be at least two, but I think that two is the minimum functioning number for student representation on any one of these bodies for the simple reason that they will need support, one from the other. One will also have a better cross-section of the student body if it is represented by two persons rather than one. It is quite conceivable that one person
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may be able to do a particularly good job under certain circumstances but two covers the fact that there may be disagreements in the student body and that it may be divided. It also covers the fact that a person may be incapacitated through illness or for reasons of academic study.
I shall not speak at any great length about the value of student representation. When discussing the Bill relating to England we found dozens of situations where Ministers had said how wonderful, or at least how useful, student representation was. I do not think it has ever been disputed that student representation is useful. On those grounds I would suggest that the amendment is certainly one that should be considered very seriously as it seems to express the consensus of all the opinions on this issue in their various guises. I beg to move.
Lord Strathclyde: The composition of the governing bodies of the Scottish grant-aided colleges has traditionally been dealt with by regulations rather than in primary legislation. At present, the relevant provisions are contained in Part II of the Central Institutions (Scotland) Regulations 1988 and in Schedule 1 of the Colleges of Education (Scotland) Regulations 1987. Clause 45 as it stands simply repeats the provisions of Section 77(1) of the Education (Scotland) Act 1980 and transfers the powers concerned from the Secretary of State to the Privy Council. It would therefore be out of keeping with our established practice in these matters to specify one element of the composition of governing bodies on the face of the Bill.
Members of the Committee will no doubt he aware that the Secretary of State indicated on Second Reading in the other place that, before the Privy Council began making governing orders for institutions, it was right that a number of changes should be made to relax the present restrictions on the composition of the grant-aided colleges' governing bodies. However, the grant-aided colleges argued in favour of retaining the existing arrangements under the 1987 and 1988 regulations, and accordingly the Government listened to their views and have now decided to make no changes to those arrangements. That means that the requirement for staff and student representation and for local authority experience will remain. I accordingly invite the noble Lord to withdraw the amendment.
I believe that Amendment No. 31 is both unnecessary and inappropriate. It is unnecessary because the academic appeals procedure is already covered under paragraph (a) of subsection (3) which allows the Privy Council order to prescribe the administrative and other arrangements to be adopted by the governing body for the purpose of discharging its functions. The amendment is inappropriate because—
5.30 p.m.
Lord Addington: I was under the impression that Amendments Nos. 30 and 31 had not been grouped together and that they would be dealt with separately.
Lord Strathclyde: The noble Lord is quite right; I apologise.
Lord Addington: I thank the noble Lord for his response. It seems to cover most of the points which I raised. I shall want to have one or two consultations, but I suspect that the matter has been dealt with sufficiently. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Addington Lord Addington moved Amendment No. 31:
Page 33, line 25, at end insert:
("( ) prescribe the procedure to be followed in case of an academic appeal by students in attendance at any such institution, following consultation with relevant bodies, including those representing students,").
The noble Lord said: I shall be very brief in my remarks as the Committee has already heard half of the answer. The amendment prescribes a universal process for academic appeal throughout the institutions covered by the Bill. It also requires that the relevant bodies, including those representing students, are consulted when the process is brought into being.
The consultation with student representative bodies —presumably the NUS—means that the student view, which is the one that probably should be taken into account when one considers what is going on, will be heard—for example, why a certain given mark has been arrived at. It may be due to some sort of doctrinal difference within a discipline. For instance, inside politics, if you have a student with views "A" and an academic with views "B", you can end up in the position where everyone is very unhappy and the final interpretation of the mark could be brought into question. I therefore suggest that the amendment should at least be given some serious consideration. I beg to move.
Lord Strathclyde: I apologise to the noble Lord for pre-empting his remarks, which of course were very helpful in clarifying my mind. Perhaps I may again make the point that the academic appeals procedure is already covered under Clause 45(3) (a). It allows the Privy Council order to prescribe the administrative and other arrangements to be adopted by the governing body for the purpose of discharging its functions. I believe that that point makes the amendment as drafted unnecessary. Further, the academic appeals procedure is a detailed matter which is best dealt with by each institution individually under its delegated powers to make rules relating to the discharge of its functions. That is the way the matter is dealt with at present. Moreover, it seems to be the way that works best. Accordingly, I invite the noble Lord to withdraw the amendment.
Lord Addington: This is one case where we are not so much defending the status quo as asking for some form of improvement. A form of unified structure would make the procedure easier to understand. For example, it would make it easier for governing bodies of students to give assistance when talking about appeals. However, I have taken note of the noble Lord's remarks. Although this is one issue to which I
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feel that it may be necessary to return in a somewhat different form, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 agreed to.
Clauses 46 to 53 agreed to.
Clause 54 [Directions]:
[Amendment No. 32 not moved.]
Lord Strathclyde Lord Strathclyde moved Amendments Nos. 33 and 34:
Page 37, line 35, leave out from ("mismanaged") to end of line 38.
Page 37, line 42, leave out from ("mismanagement") to end of line 43.
On Question, amendments agreed to.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 35:
Page 37, line 43, at end insert:
("( ) No order under this section shall have effect until approved by a resolution of each House of Parliament.").
The noble and learned Lord said: The amendment concerns the parliamentary control over the regulation-making power of the Minister. Members of the Committee will see from Clause 54 that there are two sorts of power in question. Under subsection (2) of the clause, the Secretary of State, "may give general directions" to the funding council. Under subsection (3) he may in certain extreme situations give institution-specific directions. Those extreme situations are, roughly speaking, financial mismanagement or a financial crisis. As it was put during the discussion on the English Bill by the Paymaster General, it is a power of last resort when the funding councils and the specific institutions appear to have gone, as it was put, "completely off the rails".
The question is whether one or other of those types of directions—that is, the general direction or the institution-specific regulation—should be subject to the affirmative or the negative resolution procedure. As Members of the Committee know, so far as concerns parliamentary control, the negative resolution procedure is far from satisfactory. For one thing, in the other place the resolutions very rarely come on for discussion because time has flown before they have come into force. When they are dealt with in the other place, they are dealt with at an extremely inconvenient hour. The big difference in both Chambers is that the Government find time for the affirmative resolution procedure. Moreover, the Government explain at the outset why they need the regulations: whereas, under the negative resolution procedure, the Minister replies at the end and there is no answer to what he says. Therefore, the affirmative resolution procedure is really the only effective parliamentary control. If one is to delegate important powers to the Secretary of State, the least that Parliament can do is to ensure that there is some effective control.
That fact was recognised by the Joint Select Committee on Delegated Legislation of 1972–73. I shall read the longer passage from its report because that was summarised later in the document at

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paragraph 77. However, as regards what should be subject to the affirmative resolution procedure, paragraph 46(1) entitled,
"Powers substantially affecting the provisions of Acts of Parliament",
reads:
"Everything turns upon the word 'substantially'. The view of Your Committee is that when important issues are involved, whether because of the nature of the enactments … it is likely to he obvious that the affirmative procedure should be used—if indeed it is appropriate for the amendment to he made by order at all, and not by the Bill. Conversely, there will be cases [for the negative resolution procedure] where the amendment is of a trivial or tidying-up character, or is consequential"
on previous provisions.
The relevant word is "trivial" in contradistinction to "important".
I previously exonerated the Minister from answering a question that he had omitted to answer on Second Reading for reasons that I think all of your Lordships understood and sympathised with. However, on this occasion I venture to ask him to answer specific questions because they can be answered in one word. First, on subsection (2) and the general directions to a funding council, are those directions trivial or important? One word will do. Secondly, turning to the institution-specific regulations, which are matters of last resort when everybody has gone off the rails, are they important or can they be dismissed as trivial? Again, one word will do. I beg to move.
Earl Russell: The noble and learned Lord, Lord Simon of Glaisdale, is right to move this amendment. When we agreed in the course of our deliberations on the English Bill not to oppose the Government's powers to deal with financial mismanagement, we made a significant concession. We were right to make that concession because it contributed to an honourable settlement. However, "mismanagement" is a potentially subjective word. On occasion, mismanagement may be in the eye of the beholder. It is possible that there could be occasions when this Chamber might want to be able to satisfy itself that what it is dealing with is mismanagement.
I very much take the noble and learned Lord's point about terms and conditions and the directive. Is that trivial or substantial? The character of higher education in this country is being affected by terms and conditions and is capable of being further affected by terms and conditions. This Chamber does not always have the opportunity to debate the most important points. I do not think that that is trivial. The noble and learned Lord was right that it is substantial.
Turning to the use of the directive, where there is a case of serious financial difficulties it may be necessary to change the whole character of an institution. Let us imagine, for example, a directive that the University of Cambridge should have no scientists. I imagine that a great many of your Lordships might think it important that that should be considered by the House. Therefore, I think that the noble and learned Lord is right and I am glad that he has moved his amendment.
Lord Harmar-Nicholls: Only one point strikes me about this and it is the old argument about negative and positive resolutions. I believe that the negative resolution is often the best way to achieve good, effective government. It goes through quickly without setting in process a time-consuming machine that operates in a sometimes misleading way. It is a question of whether this point comes in a category for which the certainty of the positive resolution can be justified. I do not know enough about the details of this to have a worthwhile opinion on it; but my feeling is that in this case the negative resolution would meet the need. I do not, however, want to argue with our experts on further and higher education in Scotland on this point. By and large, rather than debase the coinage of the positive resolution procedure, which we must have for the really important matters, I should have thought that, on this occasion, the negative procedure would meet the bill.
5.45 p.m.
Earl Russell: I hear what the noble Lord, Lord Harmar-Nicholls, says. It has force. As it happens, I was in the Printed Paper Office last night reading some affirmative instruments that are about to come before this Chamber, some of which were made affirmative partly at my request. When I was trying to follow the language of those instruments, I said to myself that I was doing my penance. I understand therefore what the noble Lord is saying, and I have weighed that point in my mind before speaking. However, I believe that we are witnessing what is capable of becoming a total change in the character of higher education in this country, and I think that that is more important than the point about efficiency, which was made by the noble Lord. Both points have force and can be weighed against each other.
Lord Strathclyde: The noble and learned Lord, Lord Simon of Glaisdale, has argued forcefully in favour of the wider use of the affirmative resolution procedure. He has brought tremendous experience and knowledge to bear and has quoted from various documents. I recognise that this is a subject that has exercised the noble Lord both during the passage of the equivalent England and Wales Bill and during the passage of the Local Government Bill. I hope that I can justify the practicalities of what we are trying to do in this Bill, as my noble friend Lord Harmar-Nicholls did a few moments ago.
The order containing any directions from the Secretary of State to the council, whether general or specific, will be subject to the negative resolution procedure. That is the case at present under the Education Reform Act 1988. During the passage of this Bill and the corresponding England and Wales Bill, the Government have agreed to a very significant restriction in the power of direction which effects both its scope and the circumstances under which it may be used. The savage beast feared by some of your Lordships has been tamed, and the docile creature we have before us hardly merits the full rigours of the affirmative resolution procedure.

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The noble and learned Lord, Lord Simon of Glaisdale, asked me what sounded like a simple question requiring a "yes" or "no" or "trivial" or "substantial" answer. I feel that the restrictions that we have already imposed on this power would confirm that the nature of the order is nearer the trivial than the substantial under the terms of the definition that was quoted by the noble and learned Lord.
Lord Simon of Glaisdale: Does the Minister mean that that applies also to the general directions?
Lord Strathclyde: No, it applies simply to the terms that were defined by the noble and learned Lord.
Perhaps I may continue to justify my position. There is another point to do with the nature of the power itself. As the Government have made clear, it is intended to be for use in emergencies. Emergencies, by their very nature, tend to move rapidly, demanding urgency and haste in those who would deal with them. They are not noted for their propensity to wait upon the completion of sometimes lengthy parliamentary processes. That is one problem with the affirmative resolution procedure. In general, it takes longer to complete than the negative resolution procedure. In theory it can be completed quickly, but in practice it is not.
Finally, it is wrong to dismiss the negative resolution procedure as being of little significance, because, like the affirmative resolution procedure, it gives Members of the Committee and Members of another place an opportunity to make known their views on the Government's intentions and if necessary to reject them.
For all those reasons it is right that the orders containing directions under Clause 54 should be subject to the negative resolution procedure, as indeed are their equivalents in the England and Wales Bill. I do not suppose for one moment that I have convinced the noble and learned Lord but I hope that he recognises the validity of our arguments. I hope too that he will not press his amendments.
Lord Simon of Glaisdale: I am particularly sorry, for reasons that I gave previously, that I cannot accept the validity of the Minister's argument. Three arguments have been put forward. The noble Lord, Lord Harmar-Nicholls, spoke of the devaluation of the affirmative resolution procedure. Let us not forget that the normal parliamentary method of regulating behaviour is by the provisions of an Act of Parliament. Immediately we are vouching safe that ancient and valuable power to a Minister. Therefore, there can be no question of devaluation of the affirmative resolution procedure. If any devaluation has occurred it has been by giving power to do by regulation what is normally done by Acts of Parliament. That applies in particular to the general regulations.
The second argument was based on the 1988 Act. It was said that the equivalent provisions were subject only to the negative resolution procedure. So they were, but under peculiar circumstances. When as a Bill that Act passed through the other place there was
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constant agitation on two fronts; first, that academic freedom was threatened and, secondly, that in any event the regulations ought to have been by the affirmative resolution procedure. In the end the Government gave way on the first and safeguards for academic freedom were written into the Bill. As a quid pro quo the critics dropped their demands for the affirmative resolution procedure.
The third argument was that the regulations would be needed in an emergency. That might conceivably apply to the regulations under subsections (3) but it cannot possibly apply to the regulations under subsection (2). They are the general regulations to the funding councils.
In the end the noble Lord valiantly took the question: are the regulations trivial or are they important? He said that so far as he could guess they verged on the trivial. Does any Member of the Committee, having considered the matter, believe that general regulations to the funding council are other than important and that specific regulations as a last resort are other than important?
In withdrawing my amendment I come back to my opening remarks. I withdraw it not because I consider the Minister's reply to be satisfactory but because this is not an occasion on which to divide the Committee. I must add that in persistently devaluing parliamentary control in this and in other ways the Government will have made a harsh rod for their own backs should a government of another complexion come to power. Such a government will not hesitate to govern by regulation, and it will be regulation with the least parliamentary control possible. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54, as amended, agreed to.
Clauses 55 to 59 agreed to.
Clause 60 [Regulations and orders]:
[Amendment No. 36 not moved.]
Clause 60 agreed to.
Clauses 61 to 63 agreed to.
Remaining schedules agreed to.
House resumed: Bill reported with amendments.

Prison Security Bill
5.56 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Skelmersdale) in the Chair.]
Clause 1 [Offence of prison mutiny]:
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 1:
Page 1, line 8, leave out ("two") and insert ("six").
The noble Baroness said: The purpose of the amendment is simple. Under the Bill the offence of prison mutiny can be committed by just two people. During the debate on Second Reading I argued that

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that number was too low and I said that I would return to the matter in Committee. I now propose that six would be more appropriate.
The reasoning behind the amendment is twofold. First, the notion that two people can commit the kind of incident in a prison that we are all concerned to tackle seems to be far fetched. Surely, we are concerned to deal with the kind of event that we witnessed on our television screens happening at Strangeways and other prisons up and down the country; namely, violence and destruction on a large scale causing mayhem.
That is what the Bill was originally designed to prevent. However, it would appear that along the way the original purpose has been changed because the Bill is now about mutiny. That concept is derived from military legislation and deals with the refusal of subordinates to obey commands. On Second Reading the Minister said that two was the number required in the Army Act definition of mutiny. However, he added that no doubt it would be a rare occurrence for the conduct of two prisoners only to get out of control.
I believe that it would be right to say that two people may be sufficient for a mutiny situation but that it would be absurd to think of two people committing the kind of rioting that we saw at Strangeways. For example, it would be difficult to imagine only two people going on the rampage and causing the widespread damage that we watched to our dismay.
The second reason behind the amendment is that we believe that the number of people who can commit mutiny must be higher than the number of people who can live in one cell. It would be quite wrong for behaviour that takes place in a cell to be caught by this legislation and therefore carry a maximum sentence of 10 years. After all, in cramped conditions with three men sharing a cell, all kinds of difficulties may arise. We believe that those prisoners should not fall foul of the legislation.
The issue was extensively debated at both Committee and Report stages of the Bill in another place. The Minister there appeared at one point to be persuaded that a higher figure would be advisable. However, nothing was forthcoming from the Government and that is why we now put forward this amendment. We have a great deal of hope that the Government have now had time to reconsider and that they will acknowledge that the arguments that have been used both here and in another place are forceful and that they will accept the amendment. I beg to move.
6 p.m.
Lord Donaldson of Kingsbridge: We feel that the whole idea of mutiny in prison is confusing. Mutiny, after all, is an organised revolt against authority by men or women who are recruited and paid to do a certain job under the equivalent of a contract and who owe loyalty to authority.
Prisoners, on the other hand, are forcibly deprived of liberty and one cannot expect them to feel loyalty to authority. Our view and that of the noble Baroness is that the right way to deal with general revolt is
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under the Public Order Act 1986. But if the Government insist on this, then when two or three are gathered together, that seems to me to be as good a number as six or 12. Therefore, I do not feel passionately in support of the amendment, although if it were carried I believe it would do no harm.
Earl Ferrers: I wish to show the noble Lord, Lord Donaldson of Kingsbridge, that if the amendment were passed it might do harm. I shall try to explain why. The amendment would make the offence of prison mutiny harder to prove, which is unfortunate to start with. It would therefore reduce the value of the offence of prison mutiny. An amendment with the same effect was tabled in another place and the reasons that we gave then are the same now.
Amendment No. 1 raises from two to six the minimum number of inmates who have to be involved in an incident before it may be charged as mutiny. My right honourable friend the Minister of State in another place gave thought at an earlier stage to whether this type of amendment was the best way to tackle the anxiety that had been expressed about the effect of the Bill. She concluded that it was not, and we have considered it and still feel that the view is correct.
The difficulty that many honourable Members saw with the Bill was that the range of behaviour that might constitute mutiny was too wide. It seemed to encompass everything from a passive protest about the food to the destruction we saw in our prisons in April 1990. The Government tabled an amendment at Report stage in another place to narrow the definition so that it applied only to the most serious types of incident. Honourable Members on both sides welcomed this. Raising the minimum number of inmates involved, on the other hand, would have been wide of the mark. Whether the minimum is two or six does not affect the nature of the conduct we seek to penalise.
The noble Baroness's amendment is open to serious objections. The first is that six—indeed, any number above two—is an arbitrary choice. I can see that a governor may have a greater problem containing an outburst by six inmates than one by two or three. He may need to deploy control and restraint staff from elsewhere in the prison, disrupting the regime with the risk of trouble over a wider area. But I think he would have the same problem in quelling a disturbance involving five rather than six inmates. It is a matter of degree. It would not be possible to say that six constitutes a mutiny whereas five does not.
A second and more fundamental objection is that, in a prison context, it may only take two prisoners hell-bent on overthrowing order to set off a full-scale riot involving many more prisoners. Raising the minimum to six would make it much harder to prove a common purpose of overthrowing lawful authority. It is difficult enough to prove that two people had a common purpose. I can quite easily envisage a disturbance involving 30 prisoners who run riot in a wing of a prison and cause widespread damage. The defence may argue successfully that no six prisoners shared a common purpose, but the same defence would fail if the offence required a minimum of only two.

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I very much doubt whether an incident involving only two inmates would in itself be sufficient to be regarded as conduct intended to overthrow lawful authority. I suspect that we are more concerned with large-scale incidents involving many inmates. But the point is that two prisoners can precipitate a large-scale incident and it is right that the Bill should provide that only two need have that common purpose.
For those reasons, I hope that the noble Baroness will agree that it is best to leave the figure of two in the Bill.
Baroness Ewart-Biggs: I am grateful to the Minister for explaining his reasons so clearly. However, he did not touch at all on the second reason I gave for putting forward a higher number than two. It seems to us that it would be wrong for behaviour that takes place in a cell which can and often is inhabited by three prisoners to be caught by the legislation and therefore be subject to a large sentence—a maximum of 10 years. That was one of our serious anxieties which brought us to wish to increase the figure above the number who can inhabit a cell. I can imagine only too well the kind of behaviour that can erupt from cramped living quarters, in a cell inhabited by three men and which may be construed as mutiny or riot. I am disappointed that the noble Earl did not touch on that.
Earl Ferrers: Perhaps I may interrupt the noble Baroness. I apologise; she is quite right, I omitted to reply to that. We believe that it is unlikely that two or three people who are involved in a cell could be construed as overthrowing authority, for the simple reason that they are in a cell. The chances are that it would require them to be outside the cell for the process of overthrowing authority to become recognised and therefore for them to participate in the act of mutiny.
Baroness Ewart-Biggs: I am grateful to the Minister for responding to both the points I made. They have been argued and discussed at great length. Therefore, in the light of the thought that has been given to the matter on both sides, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 2:
Page 1, line 9, leave out from ("prison") to end of line 16 and insert ("together use or threaten violence for the common purpose of overthrowing lawful authority in that prison.").
The noble Baroness said: I know that Amendment No. 2 was grouped with the first amendment, but I wish to say a few words on it now. It is separate from Amendment No. 1. In it we try to ensure that the offence of prison mutiny consists of actual violence or the threat of violence to overthrow lawful authority in a prison. I believe it is important to recollect that the Bill was first conceived as a response to the appalling scenes at Strangeways and other prisons. As I have said, those scenes were characterised by violent behaviour and enormous destruction. But, as has been said before, the intention to deal with such behaviour was lost in the drafting of the Bill. In Committee in another place the Minister argued that the Bill did not
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deal with riot, which is what we are all so concerned about. He said that it dealt with mutiny, which we are less concerned about at the present time.
As originally drafted, the Bill would have encompassed a wide range of non-violent protest. The Minister remarked on that just now. Fortunately, in another place the Government accepted an amendment to remove the most objectionable clause. That change was welcome but we feel that it did not go quite far enough. The offence of prison mutiny can still be committed where no violence or even threatened violence has taken place. The noble Lord, Lord Hesketh, gave examples of behaviour in prisons on Second Reading. He stated on 14th February:
"'Taking part' in a mutiny will include both active and passive participation. Prisoners may be drawn towards the scene of a disturbance: to offer moral support, out of curiosity or simply to watch. Their presence adds to the problems of control".—[Official Report, 14/2/92; col. 966.]
Those are the kind of incidents that occur frequently in prisons at present. Officers are, after all, trained to handle such incidents. As the noble Lord, Lord Donaldson, said, such incidents are currently dealt with under Rule 47 (19) of the prison rules which makes it a disciplinary offence for a prisoner to disobey any lawful order. Surely that kind of behaviour does not warrant a 10-year sentence.
I do not believe we should allow the kind of offences that are dealt with under Rule 47(19) to be included in the Bill. We must draw a clear line between the two kinds of offences so that serious cases such as those we have witnessed in the past 12 months are dealt with under the Bill. It is our view that legislation must be precisely phrased. We believe Clause 1 is still open to abuse. After all it could be applied to behaviour which is non-violent and simply does not warrant an offence that carries such a draconian sentence. Our amendment would ensure that the new offence was focused on the kind of behaviour that we are all greatly concerned about. I beg to move.
Lord Donaldson of Kingsbridge: I fully support what the noble Baroness said. I have little to add to her remarks. I take the view that if we must have this concept of prison mutiny, it must at least consist of the presence of violence or the threat of violence. Anything else seems to me entirely unreasonable in the conditions of a prison. Almost any normal conversation between prisoners as often as not is one of bitter complaint. That conversation could be interpreted by a hostile companion, or anyone else, as subversive talk. It usually is subversive talk, but unless there is at least a threat of violence it is just a matter that every prison officer knows he has to put up with. No one worries about it. It is absolutely wrong to have left out that provision from a Bill of this importance. I believe the element of at least a threat of violence is a necessary component in this legislation. I hope very much the Government will think again.
Earl Nelson: Before the noble Lord sits down, I hope he can enlighten me on a matter. Let us suppose that two prisoners decide to take the whole prison out on strike. They refuse to work and refuse to leave their cells, or indeed take part in a dirty protest. Does the noble Lord not agree that that in itself could lead to

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mutiny within the prison? In other words, violence does not necessarily have to occur to start off a situation that could lead to prison mutiny.
Lord Donaldson of Kingsbridge: I do not think I should answer that as I think it is a matter of common sense. A prisoner may be bitterly humiliated and furious at being imprisoned. Many prisoners feel humiliated. In my opinion some of them are in the wrong to feel that way and some of them are in the right. That is a normal attitude of prisoners. Such prisoners will make plans all day long to work out how they can do down the authorities and that kind of thing. That is absolutely normal procedure. The noble Earl, Lord Nelson, suggests that any behaviour of that kind could be regarded as the beginning of a mutiny. It is entirely unreasonable to suggest that. Clearly, any mutiny will begin with that kind of behaviour. The first step will be people talking and complaining and the final step will occur when someone says, "Can we not do something about this? Let us talk to old Joe round the corner." That is the way mutinies start. However, one cannot stop that process by saying that the conversation is mutinous.
6.15 p.m.
Earl Ferrers: The noble Baroness, Lady Ewart-Biggs, said that we need to make sure that the criteria for mutiny are carefully phrased. Her amendment narrows the definition of mutiny in Clause 1(2) by requiring the use or threat of violence before a charge of mutiny may be brought. The noble Lord, Lord Donaldson of Kingsbridge, said that there would always be a threat of violence before a mutiny occurs. I am sure an element of violence will be present in most of the serious disturbances at which the Bill is aimed. I do not think there is anything between us on that.
However, we need to recognise that it can be very difficult to prove particular acts of violence against particular inmates who are in a prison and behind locked doors. An incident may occur within a building and out of the sight of any onlookers, particularly where a large number of inmates have barricaded themselves in. If, despite the evidence of widespread damage, it is not possible to prove the use or threat of violence against a particular inmate, the amendment would prevent any of those involved being successfully prosecuted for mutiny. That would completely weaken the whole purpose of this part of the Bill.
Furthermore, the ringleaders in a disturbance—those who instigate or orchestrate it, often from the sidelines—may not themselves participate in acts of violence. In our view, they are as culpable as those who do. However, this amendment would let them off the hook.
Lord Donaldson of Kingsbridge: I should have thought that they would at least have participated in a threat of violence.
Earl Ferrers: Again, one has to prove they have been part of the threat of violence. They may have orchestrated it from the sidelines, but it is difficult to prove they have created a threat.
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Amendment No. 2 would also remove Clause 1(3) from the Bill. The first part of Clause 1(3) provides that the intentions and common purpose of prisoners may be inferred from their conduct. That is similar to a provision in the Public Order Act in relation to the offence of riot. It is not clear how prisoners' common purpose is to be proved if not by inferring it from their conduct. In the absence of an admission by the prisoners concerned, there may be no evidence of the formation of a plan to overthrow lawful authority other than the conduct of the prisoners being consistent with such a plan.
The second part of Clause 1(3) provides that the conduct of different prisoners may take a different form. Of course, if a number of prisoners act together to overpower an officer and take over and wreck part of a prison, it might be quite easy to prove that they had a common purpose. We want to cater for the situation where the same prisoners do not act in unison but do different things in different parts of a prison with the same purpose of overthrowing lawful authority. For example, one prisoner may smash the furniture; another may erect a barricade; a third may overpower an officer and take his keys; a fourth may break through to the roof and start shouting slogans. Clause 1(3) as it stands means that, provided that the prisoners share a common purpose, it does not matter that they further that purpose in different ways.
The noble Baroness, Lady Ewart-Biggs, referred to Rule 47(19). That makes it a disciplinary offence to disobey an order and carries with it a maximum penalty of 28 days loss of remission. I do not think that that is relevant to the amendment, which concerns whether or not violence needs to be proved against particular people who set out to create mutiny.
The noble Lord, Lord Donaldson of Kingsbridge, referred to conversation and complaints being subversive. It is not mutiny within the definition of the Bill to make plans and to make subversive complaints. One has to engage in conduct which is intended to overthrow lawful authority.
For those reasons I hope that the noble Baroness and the noble Lord, Lord Donaldson of Kingsbridge, will see that if the amendment were passed, it would considerably weaken the purpose of the Bill. That would be quite wrong.
Baroness Ewart-Biggs: The purpose of the amendment is not exactly as the noble Earl said. It is to make it quite clear that a prisoner has to act with violence in order to fall under the legislation.
Perhaps I may remind the noble Earl of the provisions of the Public Order Act 1986 under which powers exist in relation to many offences which now take place in prison. The Act provides, first, for a statutory offence of riot, defined as involving 12 people or more; secondly, for an offence of violent disorder involving three people or more; thirdly, for an offence of affray; and, fourthly, for a summary offence of threatening abuse or insulting behaviour. All of those offences can be committed in prison. Certain powers exist. In addition, there are powers under the prison rules, which I have already mentioned.

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We are trying to confine the Bill to offences which are not covered elsewhere. That was made clear at Second Reading and was a point made by all speakers. However, I am grateful to the Minister for having explained the Government's point of view. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 3:
Page 1, line 16, leave out subsection (4).
The noble Baroness said: The purpose of the amendment is to remove Clause 1(4) from the Bill. That subsection reads:
"Where there is a prison mutiny, a prisoner who has or is given a reasonable opportunity of submitting to lawful authority and fails, without reasonable excuse, to do so shall be regarded for the purposes of this section as taking part in the mutiny".
We believe that that harks back to the old riot Act which rendered individuals liable to prosecution as a severe penalty simply for being present at the scene of a riot and failing to disperse when told to do so even though they took no active part in the violence or disorderly behaviour. At Second Reading the example was given of a food protest, which occurs a great deal in prisons. If people were standing by because they did not have much to do, they would be caught under that subsection although they were not actively involved in the disorderly behaviour.
The riot Act was abandoned as an unnecessary and unjust blunt instrument in a modern system of criminal justice, but the Bill effectively reintroduces such a provision for people in prison. We believe that the subsection is unnecessary and should therefore be dropped. I beg to move.
Lord Donaldson of Kingsbridge: Once again I support the noble Baroness. Such definitions are very difficult to get right, but it seems to me that any submissive type of prisoner, of which there are great numbers in prisons, is liable to be beaten up if he does not cheer anybody who is carrying out any act of violence anywhere. It is very difficult to stand by without getting into trouble oneself. The existing provision appears to suggest that people could be given a 10 year sentence if the judge thought that necessary, although I do not think that he would, for simply looking on while somebody else committed a crime. That is not the kind of legislation we ought to support.
Earl Ferrers: With the greatest respect to the noble Lord, Lord Donaldson, I think that it is the kind of legislation that we ought to support and I hope to be able to persuade him to change his mind.
The noble Baroness, Lady Ewart-Biggs, referred to the riot Act, which covered a wide range of disturbances. However, mutiny in prison is a very specific offence and we have seen the effects in prisons. That is why we have introduced the Bill.
The purpose of Clause 1(4) is to deal with the real problem which arises in a serious situation when large numbers of onlookers congregate and refuse to disperse. Protests about food or other conditions would not fall within the definition of mutiny.
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A prison disturbance becomes more dangerous as the numbers involved grow. The disruption caused is greater, and it becomes more difficult to quell the disturbance and to restore order. Clause 1(4) is designed to stop the numbers growing. It provides a clear incentive for prisoners who may not be actively involved to leave the scene and get out of the light when a mutiny begins. Their departure—whether or not it is in response to an order from the prison officers —makes it much easier to resolve an incident peacefully and to restore order. If they will not disperse and their presence adds fuel to the mutiny, then it seems to me to be only fair to regard them as taking part and to make them liable to the same penalty.
Secondly, it may not be obvious in a disturbance which takes place out of the sight of prison officers exactly who is taking an active part, who is lending encouragement and who is merely a bystander. Acts of violence and criminal damage may be committed; it may not be possible to identify the perpetrators, but those present will not be able to hide behind that. Under Clause 1(4), once it has been established that there is a mutiny and that there was a reasonable opportunity to leave the scene in safety but that some people did not do so, all prisoners who remain would be regarded as taking part in the mutiny unless they had a reasonable excuse for not leaving.
It is also not unknown for ring-leaders to try to pass themselves off as bystanders. A prisoner who does not take a reasonable opportunity to leave the scene of a mutiny and deliberately remains there without reasonable excuse cannot in any reasonable view properly be described as an innocent bystander. In my view he is a guilty bystander.
I could understand the need for the amendment if the Bill was still perceived to penalise trivial and passive protests. Clause 1(4) might have been thought to catch the innocent bystanders in a food protest. However, the Bill now clearly does not apply to such minor acts of collective disobedience.
That does not mean that all those who are present will necessarily be found guilty of mutiny. Of course, there may well be prisoners who are unwittingly caught up in a mutiny, who wish to leave the scene but who might be attacked by their fellows if they did so. Prisoners on Rule 43 may be particularly vulnerable. If they are unable to leave in safety then the offence will not apply to them. It is a necessary safeguard to protect the innocent.
Clause 1(4) does not reverse the burden of proof. The prosecution will need to prove beyond reasonable doubt that there was a prison mutiny and that the prisoner concerned remained on the scene despite having a reasonable opportunity to surrender in safety. If the accused gives evidence that he had a reasonable excuse for his behaviour, the prosecution will also need to convince the court that he did not have such an excuse. Clause 1(4) is designed to catch the culpable bystander (and I make no excuse for that) while providing adequate safeguards for the genuinely innocent bystander.

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I hope that that explanation serves to reassure the noble Baroness that this provision meets a real need and that it will not have the unwelcome effects she ascribes to it.
Lord Auckland: I intervene on a point of clarification. I presume that any decision on this matter would have to be made by the prison governor personally and not by the chief prison officer following any prosecution. I believe that the Bill is basically right, but it is very widely drawn. I wonder whether my noble friend can confirm that it will be a matter for the very top authority in the prison to give a decision.
Earl Ferrers: Quite clearly if there is a mutiny, that is the responsibility of the prison governor. The prison governor will accept responsibility for whoever is charged.
Baroness Ewart-Biggs: The noble Earl sees matters very differently from those of us on this side of the Chamber. However, I was glad to hear him say that he does not intend the Bill to catch prisoners who indulge in minor acts of civil disobedience. But I believe that there is a very fine distinction between those who do something wrong and those who stand by and watch it. There is a great fear that the draconian sentence included in the Bill may catch a completely innocent bystander who has been dragged into the central events.
At this point it is important to remind the Government that the prison governors did not want this Bill. They were asked whether they wished to have the Bill but they did not respond, or so I understand from the information we had at Second Reading. They must feel able to deal with the kind of disturbances that we are discussing now. I remind the noble Earl that neither the Prison Reform Trust nor the National Association for the Care and Resettlement of Offenders wanted the Bill. The POA seemed very doubtful about the usefulness of this Bill to them.
With that in view, I return to the remark made by my noble friend Lord Richard, which I quoted at Second Reading. He said:
"It is difficult to think of an example of a mutiny for which the offence is needed".—[Official Report, 14/2/92; col. 969.]
That thought runs right through the amendments that we have tabled which are meant to mitigate the possible harm that the Bill could do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 4:
Page 1, line 22, at end insert ("who shall not give his consent unless he is of the opinion that a prosecution is necessary in the public interest.").
The noble Baroness said: The amendment requires the Director of Public Prosecutions to withhold his consent to a prosecution or a prison mutiny unless he is of the opinion that a prosecution is necessary in the public interest. As I argued in relation to earlier amendments, the Bill would allow prisoners to be convicted of prison mutiny for involvement in non-violent protests, such as sit-down protests and protests about various prison matters.
We believe that it is quite wrong to charge prisoners with a serious criminal offence for such behaviour. In deciding whether a prosecution should take place, the Director of Public Prosecutions should therefore have regard not just to the strength of the evidence and the probability of conviction but also to whether the behaviour was such that a prosecution for prison mutiny should be brought in the public interest.
It may be argued that the DPP would adopt such a course whether or not such a requirement is included on the face of the Bill—that is perhaps what the Minister will tell us in a moment—but we believe that an explicit statutory recognition of the need for such an approach would strengthen his hand in so doing. I beg to move.
Earl Ferrers: I am bound to tell the noble Baroness that it would be unprecedented to seek to fetter the consent of the Director of Public Prosecutions in the way in which her amendment proposes. I am glad to say that I do not think it is necessary to do so. As I told my noble friend Lord Auckland, governors are responsible for their prisoners. The decision whether to charge is not made by the governor but by the Director of Public Prosecutions.
The noble Baroness may not be aware of the Code for Crown Prosecutors, issued under Section 10 of the Prosecution of Offences Act 1985. Section 10 requires the Director of Public Prosecutions to issue a code giving guidance to prosecutors on the general principles which are to be applied in determining, among other things, whether proceedings for an offence should be instituted. The code's provisions are set out in the annual report made by the Director of Public Prosecutions to the Attorney-General and published by him.
According to the code, the first question to be determined is the sufficiency of the evidence. After that, paragraph 7 of the code states:
"Having satisfied himself that the evidence itself can justify proceedings, the Crown Prosecutor must then consider whether the public interest requires a prosecution".
The code goes on to list a number of factors that may properly lead to a decision not to prosecute. They include cases where the circumstances of an offence are not particularly serious and a court would be likely to impose a purely nominal penalty.
I hope it is clear from this that a Crown prosecutor would certainly have to consider whether the public interest required some prisoners' acts of disobedience to be prosecuted as prison mutiny. A prosecution would by no means be automatic. He could well decide that the conduct in question did not justify a prosecution and that the matter should be left to the governor to deal with under the prison disciplinary system. The penalties which are available to the governor range from the mild to the quite severe. They should be quite adequate for the majority of incidents in our prisons.
I am bound to tell the noble Baroness that not only would it be inappropriate for her amendment to appear on the face of the Bill and so in statute fetter the Director of Public Prosecutions, but the action which she seeks is in fact covered by the code of practice.
Baroness Ewart-Biggs: In the light of the Minister's explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Offences relating to escape]:
Baroness Ewart-Biggs Baroness Ewart-Biggs moved Amendment No. 5:
Page 2, line 10, leave out ("ten") and insert ("seven").
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 6. I should say immediately that these amendments are designed to draw an explanation from the Government for their reasoning on two points. First, I ask the Minister to explain why it is thought necessary that such large increases in maximum penalties are required: from five to 10 years for assisting an escape; and, even more dramatically, from two to 10 years for harbouring or assisting an escaped prisoner. That is either twice as much or five times the original sentence.
Secondly, can the Minister tell the Committee why there should be no differential between the maximum penalty for assisting a prisoner to escape and that for harbouring or assisting an escaped prisoner? Currently there is a clear differential, the maximum for the former offence being five years and for the latter two years. However, the Bill provides a maximum 10-year penalty for both offences, putting them at the same level.
At Second Reading the Minister said that increasing to 10 years the maximum penalty for harbouring an escaped prisoner would remove an anomaly because 10 years is the maximum sentence for the offence of impeding the apprehension of a person known or believed to be guilty of an arrestable offence under the Criminal Law Act 1967. But it seems to us that in removing one anomaly the Bill has created another. The usual principle when setting maximum penalties is that they should reflect the relative seriousness of different offences. While both offences are serious matters—we certainly do not disagree with that—most people nevertheless would regard helping a prisoner to escape as more serious than harbouring or assisting one who has previously escaped. I should be grateful to the Minister for comments on Clause 2 of the Bill, and for some explanation as to why those sentences have been decided upon. I beg to move.
Earl Ferrers: The noble Baroness, Lady Ewart-Biggs, quite reasonably wants to know why we fixed on the penalties that we did for assisting a prisoner to escape and for harbouring an escaped prisoner or assisting him to avoid arrest. She thought that we had increased the maximum too greatly.
There are two reasons why we settled on a 10 year maximum. The first is simply that assisting an escape, and harbouring an escaped prisoner, are grave offences. The first—assisting an escape—covers a wide range of situations from smuggling a hacksaw blade into an establishment to an attempt by an organised gang to break in, possibly using explosives. The second covers the situation where someone on the outside prepares a safe house for an inmate to go to. If he is a particularly dangerous prisoner, harbouring
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him could well lead to the death or injury of others. In our view, those are very serious offences. The noble Baroness and I agree that they are serious offences.
The second reason for settling on a 10 year maximum is to correct an anomaly in the law. The maximum penalty under Section 4 of the Criminal Law Act 1967 for assisting a person who has committed an arrestable offence to avoid arrest is in some cases 10 years' imprisonment. I do not see why there should be a different and lower penalty for the related offences under the Prison Act 1952 and the Criminal Justice Act 1961 of assisting a prisoner to escape, and assisting an escaped prisoner to avoid arrest. It is anomalous to have different penalties for those offences. We think they should be brought into line and, in view of their serious nature, that they should be brought into line at 10 years.
Perhaps I should add that 10 years is a maximum and not a mandatory penalty. The courts will be able to impose a lower penalty within the maximum for the less serious type of offence. I hope that serves to reassure the noble Baroness of the reasons why we decided on the 10 years maximum.
Baroness Ewart-Biggs: I am grateful to the noble Earl for the clear explanation that he gave to the probing amendments. I am not entirely convinced by his argument that he has removed one anomaly because I still believe that most people would regard helping a prisoner to escape as more serious than harbouring a prisoner. Nevertheless, he has put forward his arguments for making those penalties on the same level. I am grateful for that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
Clause 2 agreed to.
Remaining clause agreed to.
House resumed: Bill reported without amendment; Report received.

Aggravated Vehicle-Taking Bill
6.45 p.m.
Lord Airedale: My Lords, I have four amendments set down. If it please the House, I shall move the first amendment and speak to the other two together because the words proposed to be inserted in the Bill are the same in all three amendments.
The amendments arise because I simply do not understand the meaning of the words—
Earl Ferrers: My Lords, perhaps I may interrupt the noble Lord. I believe that we are slightly out of order. I do not believe that the Question was put that the Bill be now read a third time, or indeed that Amendment No. 1 was called. If the Lord Chairman were able to do that it might help.
Read a third time.
Clause 1 [New offence of aggravated vehicle-taking]:
Lord Airedale Lord Airedale moved Amendment No. 1:
Page 1, line 23, after ("vehicle") insert ("recklessly or carelessly").
The noble Lord said: My Lords, I have been thrown completely off my stride. I was saying that I had put down the first three amendments—and I hope that the bargain still stands that we can take the first three together—because I could not understand the meaning of the words,
"owing to the driving of the vehicle, an accident occurred".
Those words appear in subsection (2) (b) and (c) of Clause 1 of the Bill.
At Report, I asked what those words meant. I do not consider that I received a satisfactory reply; I do not believe that I received a reply. It may be rather strange that we reach the Third Reading of a Bill in the second House and people still ask what the words mean. Perhaps I am obtuse. It may be that it does not matter very much whether or not I understand what the words mean. What is important—indeed vital—is that the courts understand what the words mean. The courts are responsible for administering criminal justice under the Act—as I suppose it will become.
Let me give two examples. A person commits the basic offence of taking a vehicle and driving it without the owner's consent. He is not a hooligan. He is probably by himself. He merely seeks to get from A to B, and he drives perfectly sensibly. Some drunken idiot drives along in the other direction on the opposite side of the road and crashes into him. A bystander witnesses the offence. The bystander is asked, "Did the accident happen owing to the driving of Mr. Smith's vehicle?" (Let us call him Mr. Smith.) The answer is, "No, it was owing to the driving of the lunatic who was drunk, and driving in the opposite direction". The courts presumably will agree with what the witness said. The courts will say that the accident was not owing to the driving of Mr. Smith's vehicle, and they will not convict the person of the aggravated offence under the Bill. The Bill is directed not against ordinary people (if I may call them that) who take vehicles, but against hooligans who go about in gangs taking vehicles and driving them dangerously.
I give another illustration. Mr. Brown is driving along perfectly sensibly, having wickedly committed the basic offence of taking somebody else's vehicle for which he deserves to be punished. A dog rushes out almost under his wheels. He swerves to avoid it and an accident occurs. A bystander witnesses the incident. He is asked whether the accident was owing to the driving of the vehicle. He says that it was not. He says that it was owing to the dog rushing out almost under the driver's wheels. Presumably the court will accept that evidence and will decide that the accident was not owing to the driving of the vehicle and the person will not be convicted of the aggravated offence.
I have moved amendments to insert words which indicate bad driving and not merely the driving of the vehicle. That would make the matter perfectly clear. If the court realised that in those two instances bad driving had to be proved, there would be no possibility of the prosecution proving that. Therefore, the matter would be made even more clear to the court.
I want the courts to be able to understand what this Bill is about. That is why I beg to move the amendment.
Lord Morris of Castle Morris: My Lords, I support every cogent and persuasive word uttered by the noble Lord, Lord Airedale.
At earlier stages of the Bill, on these Benches we have attempted to point out that the phrase:
"owing to the driving of the vehicle"
must mean either owing to the fact that the vehicle was being driven or owing to the fact that the vehicle was being driven dangerously, recklessly, carelessly, badly or in some other way. We have attempted to persuade the noble Earl that an adverb of one kind or another would add a pleasing touch of clarity to the clause. Consequently, we support this final attempt by the noble Lord, Lord Airedale.
Earl Ferrers: My Lords, I was surprised when I saw the amendments tabled by the noble Lord, Lord Airedale, because, first, they were tabled so late that I thought that some of your Lordships may not have had the benefit of seeing them as they appeared on the Marshalled List only this morning.
Secondly, I was surprised because the noble Lord, Lord Airedale, is usually so punctilious on points of style and grammar and yet the first two amendments are clearly ungrammatical. Thirdly, I was surprised because the noble Lord has reverted to the concept of reckless driving which has been found unsatisfactory and was replaced by the idea of dangerous driving in the Road Traffic Act. The noble Lord, Lord Airedale, wants to slip us back into reckless driving.
The noble Lord explained what concerns him. He gave the astonishing example of Mr. Smith. He had taken somebody else's car and was driving along quite sedately, just like any old gentleman aged 60 or so. The fact that it was somebody else's car was irrelevant. Suddenly, hooligans smashed into him. The noble Lord, Lord Airedale, says that it is unfair that Mr. Smith should be prosecuted because, although the accident was "owing to the driving of the vehicle", hooligans have smashed into him. The reason that the words "owing to the driving of the vehicle" are important is because if Mr. Smith had not stolen and driven the car in the first place, the accident would never have occurred.
The noble Lord, Lord Airedale, goes on to give a second example in which the gentleman is ingeniously called Mr. Brown. He took a car. He was absolutely tight in somebody else's car. He was driving along when a stupid dog walked across the road which caused an accident. The noble Lord asks why that person should then be prosecuted when the accident was the dog's fault and not the driver's fault. If Mr. Brown had not taken the vehicle in the first place, there would have been no accident.
I find it hard to persuade the noble Lord, Lord Airedale. I believe that I said in Committee that I think that his morals are most peculiar. In this respect —and in this respect only—I believe that they are most peculiar. I do not know how he can feel sorry for a person who has stolen somebody else's vehicle and then happens to become involved in an accident which may not have been his fault. I ask the noble Lord to think about the person to whom the vehicle belonged. Not only had he been deprived of his vehicle but when it is returned, it is smashed to pieces. The noble Lord

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seeks to point out that it was not the poor driver's fault. However, the whole philosophy of the Bill is that it is the fault of the person who took the vehicle.
I have tried to explain before that the Bill is needed because gangs of youths habitually take cars and it is usually not possible to prove who was driving at a particular time, who did what damage or what they may have thought about it. The law as it stands has simply been inadequate to cope with that particular crime. The amendments in the name of the noble Lord, Lord Airedale, would have the effect of requiring the prosecution to prove what they cannot prove at the moment. Therefore, that would not improve the present position.
The third of the noble Lord's amendments adds insult to injury by providing that the deliberate infliction of damage is not an aggravating event. That would be aggravating only if the damage were inflicted recklessly or carelessly. I do not believe that the noble Lord intends that result. I hope he will agree that that is not his intention. The amendment would have the bizarre result that a defendant, who admitted that he had smashed up another person's car which he had stolen, would not be guilty of the aggravated offence because the act was not done recklessly or carelessly but merely deliberately. That would be a funny old how-do-you-do. I hope that the noble Lord will realise that his amendments are quite unsuitable.
Lord Airedale: My Lords, perhaps I may take what the noble Earl said in the order in which he said it. He began by saying that my amendments are ungrammatical. However, he did not specify in what way they are ungrammatical. They do not appear to be ungrammatical to me. Nobody else has suggested that they are. However, that is a minor point.
Lord Kilbracken: My Lords, is it not the case that in the first two amendments an adverb is used when it should be an adjective qualifying the word "driving"?
Lord Airedale: My Lords, perhaps we should move on to the substance of the amendments.
Earl Ferrers: My Lords, the noble Lord said that I did not specify why the amendments are ungrammatical. I did not do so because I did not wish to embarrass him. However, as he has asked to be embarrassed, I shall do so.
As amended, the Bill would read:
"that, owing to the driving of the vehicle recklessly or carelessly, an accident occurred by which injury was caused to any person".
Lord Airedale: My Lords, I do not know what is ungrammatical about that. However, we must move on otherwise we shall be here all night.
The noble Earl then complained that I was late in tabling the amendments. First, almost the minimum time was allowed between Report stage last Tuesday and Third Reading. Furthermore, the noble Earl will remember that I met him yesterday evening and told him that I was tabling these amendments. I offered to let him have a copy of them in advance yesterday evening. However, he declined that invitation on the ground that those who were advising him were not
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present at that time to advise him. Therefore, I have done my best not to rush this matter. I am sorry about that. We heard again the old refrain that has been running through this Bill, "He should not have been there in the first place".
Noble Lords: Hear, Hear!
Lord Airedale: I agree; hear, hear! He should not have been there and he committed the basic offence. We then had—I hesitate to call it a "paraphrase"—a "parody" from the noble Earl of what I was saying. If I may say so, that is an old parliamentary trick. If one does not have a good answer, one tries to make one's opponent's argument grotesque because that is all the ammunition one has.
I am hammering at a closed door. For reasons that I hope to give when we come to the Motion that the Bill do now pass, I do not believe that the Bill will do nearly as much harm as it might. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 and 3 not moved.]
7 p.m.
Lord Airedale Lord Airedale moved Amendment No. 4:
Page 1, line 29, at end insert:
("( ) A passenger in a vehicle is not guilty of an offence under this section if he neither aids, abets, counsels nor procures the offence.").
The noble Lord said: My Lords, perhaps I may give an illustration to explain the intention of Amendment No. 4. It is the case of two acquaintances, who are not close friends, on their way to a football match. One says to the other, "Let's take that car and drive in style to the football match." The second person, who becomes the passenger, agrees. They get into the car and are immediately guilty of the basic offence.
The passenger is certainly not a car hooligan. He has no interest other than to be driven sensibly to the football match. But the driver starts driving much too fast. The passenger says, "Stop that. We do not want to land in the next world. We want to get to the football match. Slow down." But the driver continues driving much too fast. The passenger continues to urge him to drive sensibly.
What else can the passenger do? If he seizes the steering wheel or grabs the handbrake he is almost sure to make matters worse. The driver pays no heed and continues driving dangerously and an accident occurs. The police investigate. They take statements. The passenger says, "I did not want him to drive like that. All I wanted to do was to get to the football match." The driver, in his statement, says, "That is perfectly true. He was trying to restrain me and I foolishly went on driving too fast and an accident occurred. It was entirely my fault and not his."
That is all the evidence available. Under the Bill as drawn, upon that evidence the passenger is guilty not only of the basic offence of taking the vehicle and driving it without the owner's consent, but guilty also of the aggravated offence. It is a novel piece of criminal law that if one is present at the scene of a crime and does one's utmost to prevent it, nevertheless one is guilty of that crime. It is quite extraordinary.
Perhaps I can take from the noble Earl his example of a case of that kind. In his illustration the driver of the vehicle is accompanied by a group of robbers. The noble Earl said:
"If a group of robbers agree to take a gun with them, and to use it if need be, then all of them are jointly liable for any consequences which may arise from the use of that gun".
We all agree about that. The noble Earl continued:
"Only if the robber who used the gun can be shown to have departed from the agreed plan can the others escape liability". —[Official Report, 25/2/92; col. 244.]
If we substitute the driver for the robber and the passenger for the group we arrive at this: "Only if the driver who drove the vehicle can be shown to have departed from the agreed plan can the passenger escape liability." The noble Earl puts my case precisely. The passenger had no part in the aggravated driving. By being present at the scene of the crime, though doing his utmost to prevent it, he becomes liable to be convicted under the Bill of the aggravated offence. That is a complete nonsense. I beg to move.
Earl Ferrers: My Lords, I have such admiration for the noble Lord, Lord Airedale, on almost every occasion other than on this Bill. All I can say is that words defy me to comprehend the logic of the noble Lord. He says that one finds two people walking along and they find a car—it may be the noble Lord's car sitting outside his flat. They say, "We want to go to a football match. Let us take that car." One says, "All right. I will drive it." The other says, "Yes, and I will sit in the passenger seat." When the person driving it drives too fast, according to the noble Lord, Lord Airedale, the second person says, "For goodness sake, do not drive so quickly, we might land up in the next world too soon. For goodness sake stop." But the driver, in his anxiety to reach the football match quickly, does not slow down and there is a smash.
Along comes the noble Lord, Lord Airedale, and says, "This poor fellow, the passenger, has done all he could to stop the man driving so fast. He did not want to have a smash."
The noble Lord, Lord Airedale, actually says that this poor man is now going to be guilty of an offence. What about the car of the noble Lord, Lord Airedale, which had been taken? The noble Lord, Lord Airedale, may have woken up and found his car gone; the next time he sees it it is smashed up. But according to the noble Lord, Lord Airedale, the passenger must get away scot-free.
It may be that the passenger in the first place said, "Come on, Bert, let us take a car. Let us take this one. You drive it. I don't want to drive it." He may have instigated the taking of that car. The point is that one cannot argue about who said, "Let's take it" and who was driving. If they were party to the knowledge that it was a stolen car they were both party to the offence of taking without consent. Having taken the car without consent, if an aggravated offence occurs, they are both party to that aggravated offence.
I should be delighted to try to persuade the noble Lord, Lord Airedale, of the inability of his case to stand up to any kind of reasonable argument. I should be happy to continue the debate for a long while. But I fancy that that would not meet with your Lordships'
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approval. I can only say that I find the noble Lord's arguments astonishing and suggest to the House that it would be inappropriate to accept the amendment.
Lord Airedale: My Lords, we have heard another grotesque parody of what I was saying.
Earl Ferrers: My Lords, it was almost word-for-word. I did not like to rehearse exactly the same words, but they were not far from what the noble Lord said.
Lord Airedale: My Lords, let us take a single instance. In the course of the noble Earl's speech he raised the question of who was driving. In the example I sought to give the police took statements from the driver and the passenger. The driver said, "I was driving and did not take any notice of the passenger's encouragement to me not to drive dangerously." That is a single example of a gross parody of what has been tabled in the amendment.
I do not believe that in 1,000 years a court will convict somebody of an aggravated offence when that person, though present at the scene, was seen doing his utmost to prevent the commission of it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Obligatory disqualification]:
Lord Ackner Lord Ackner moved Amendment No. 5:
Page 4, line 34, at end insert:
("( ) In section 22 of the Road Traffic Offenders Act 1988, which requires a court to notify the Secretary of State for Transport that an accused may be suffering from a disability, there shall be added the following subsection—
"(3) Where a person is convicted of an offence under section 12A (aggravated vehicle-taking) of the Theft Act 1968 a relevant or prospective disability (within the meaning of section 92 of the Road Traffic Act 1988) shall be deemed to include a propensity to misuse or abuse alcohol or controlled drugs.".").
The noble and learned Lord said: My Lords, unlike all other amendments which have hitherto been moved, with the exception of the attempts to improve the rather inelegant Title of the Bill, my amendment seeks to add strength to it. I recognise that this Bill is designed to deal with a dangerous situation in regard to which the public are entitled to as much protection as the law can reasonably provide.
The majority of the offenders who are likely to commit this offence will be in their teens. At the time they commit the offence they are likely to have drunk too much or to be to some extent on drugs. Detention or imprisonment will safeguard the public only for the limited period that they lose their liberty. What is required is to ensure that they are kept off the road until they have achieved a proper measure of responsibility. Hitherto that has been obtainable only by virtue of disqualification, actual or prospective.
What this amendment tries to achieve is quite simply this: when such a young man or young woman is convicted and disqualified, actual or prospective, they do not regain their licence until they have appeared before the Medical Advisory Committee of the Department of Transport and satisfied that committee that they have mended their ways. Your Lordships may ask why that cannot be done at

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present. The answer is quite simple. Section 22 of the Road Traffic Offenders Act 1988, which is referred to specifically in my amendment, requires a court to notify the Secretary of State for Transport where,
"in any proceedings for an offence committed in respect of a motor vehicle it appears to the court that the accused may be suffering from any relevant disability or prospective disability (within the meaning of Part III of the Road Traffic Act 1988)".
Quite simply the trouble is that the definition of the word "disability" in Section 92 of the Road Traffic Act is far too narrow. The section is concerned with physical fitness to drive. That is apparent from the heading of the section and the sidenote. Section 92(2) provides that,
"'disability' includes disease, 'relevant disability' means any prescribed disability"
that is prescribed by regulations made by the Minister",
and,
"(b) any other disability likely to cause the driving of a vehicle by him in pursuance of a licence to be a source of danger to the public".
As regards this type of offence the probation officer's report frequently says "this young man (less likely, "this young woman") has a drink problem", in the sense that from time to time he takes too much drink or too much of a drug. He then takes somebody else's car and drives in a dangerous manner and causes damage either to persons or to property. He has not drunk or taken drugs in circumstances that have resulted in his becoming an alcoholic and as a result incapable of resisting the urge to drink and probably suffering some liver damage in consequence. This offence is an act of irresponsibility that occurs from time to time.
As I informed your Lordships during the passage of this Bill, the former judge, His Honour Judge Alfred Blennerhassett QC, who has been chairman of the Home Office committee on drink and driving and who is an expert on this subject, has sought without any success to persuade the Minister for Roads and Traffic to widen the definition of disability. I have previously quoted to your Lordships a letter from the Minister to Judge Blennerhassett dated 31st July 1991, which states inter alia:
"It remains the Department's view, and one which is supported by the Medical Advisory Panel on Driving, Alcohol and Drugs, that alcohol misuse represents a relevant or prospective disability".
With the greatest respect to the Minister that just cannot be right. Alcohol misuse is an activity, not a disability. That it can lead to a disability when it results in alcoholism—that is a dependency on alcohol and usually physical damage—is not to be doubted. Let me make it perfectly clear. I am not seeking to criticise the Minister personally. He is the son of a former circuit judge with whom I practised when at the Bar and whom I used to visit in Cornwall when I was the presiding judge on the Western Circuit. What I am criticising is the advice that he has received on this subject.
Because I consider the point made by Mr. Blennerhassett a sound one, I decided to raise it in your Lordships' House. The noble Earl, Lord Ferrers, with whom I consulted prior to raising it, most
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helpfully advised me that I should be going outside the scope of the Bill if I sought to make the appropriate amendment to Section 92 of the Road Traffic Act 1988. That is why my amendment is focused solely on a person who is convicted of an offence under Section 12A of the Theft Act, which is the very offence which this Bill is creating.
When marshalling my thoughts prior to Second Reading, almost as a conditioned reflex from one's days at the Bar, I thought that I would take a look at the leading textbook on Road Traffic Act offences. As a result I came across a reference to a decision in February 1981 of the Divisional Court presided over by Lord Justice Waller. The case was the Queen and the Chichester Justices ex parte Crouch reported only briefly in the journal, Justice of the Peace. However, I managed to get faxed from the Crown Office a photocopy of the transcript of the judgment. It was concerned with an application for judicial review of a decision made by those justices to refer to the Secretary of State, under Section 92 of the Road Traffic Act 1972, which is in similar terms to Section 22 of the Road Traffic Offenders Act 1988, to which I have already referred.
Quite briefly what happened was this. Mr. Crouch had drunk far too much. He pleaded guilty to the usual drink-driving offence. He was suspended for some 21 months and heavily fined. The solicitor who was seeking to make a plea in mitigation thought that he was making a satisfactory point in favour of his client and said, "my client had a drink problem" whereupon the clerk to the justices, who knew his law, or some of it, said "very well, we will refer you to the Minister". It is apparent from the report that the chairman of the magistrates took the view that, because the applicant appeared to have a drink problem in the past and because he admitted driving a vehicle with a high concentration of alcohol in his blood, that suggested a significant tolerance to alcohol with the result that he might be suffering from alcoholism.
The Secretary of State's letter to the court also expressed the view that he thought that it had been disclosed that the defendant was an alcoholic. It was also clear from the report that the clerk had advised the Bench:
"Although it is not a physical disability, alcoholism can fall into the definition of "disease" because it is known to cause irreversible brain damage".
In this situation it is not surprising that Lord Justice Waller, giving the judgment of the court, said:
"In this case all that was said by the solicitor acting for the Applicant was that the Applicant had a drink problem and this was a first conviction for an offence of this nature. In my judgment, that does not suggest at that stage either that he was suffering from a relevant disability or prospective disability. It may be it could be said that it was a prospective disability but that is not sufficient in my judgment for the court to draw it to the attention of the Secretary of State … a statement that he had had a drink problem does not go far enough to suggest that the Applicant is in fact an alcoholic and, in my judgment, there was not sufficient material in this case on which the magistrates could properly refer the matter to the Secretary of State".
In Committee, that decision was described (perhaps understandably in view of the advice that had been consistently given to the department) by the noble

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Lord, Lord Brabazon of Tara, as "an inconvenience". That was at col. 710 of Hansard for 11th February. It clearly supports the view which Mr. Blennerhasset had taken for a very long time that the definition of Section 92 is far too narrow. The department appears to have been totally unaware of this decision, since guidelines were issued to magistrates seeking to encourage them to refer more cases. They were referring very few. The guidelines stated:
"A driver who has an alcohol or a drug misuse problem may properly be regarded as suffering from a relevant or prospective disability within the meaning of Section 92".
As your Lordships are fully aware, guidelines from however important a source, cannot extend the meaning of the words used in an Act of Parliament.
For completeness sake and finally, I should inform your Lordships that "prospective disability" upon which I believe the noble Lord, Lord Brabazon, will rely, means:
"… any other disability which—

(a) … is not of such a kind that it is a relevant disability, but

(b) by virtue of the intermittent or progressive nature of the disability or otherwise, may become a relevant disability in the course of time.

It can have no application to what we are considering. Dr. John Kemm, senior lecturer at the Department of Public Health and Epidemiology at the University of Birmingham, in a letter which he wrote to me on the 21st February last, said:
"Considering non-dependent alcohol or drug misuse to be 'prospective disability' would be justified if it could be shown that people showing these behaviours inevitably progressed to become dependent. However there is ample evidence that this is not so and therefore classing alcohol or drug misuse as a 'prospective disability' cannot be defended".
It would indeed be very depressing if an opportunity was lost to make a significant contribution to the public's protection from this very dangerous crime with which we are dealing, because those advising the Minister have apparently an invincible repugnance to admitting that they have been in error in failing to recognise the narrowness of the definition of "disability" in Section 92 of the Act. That appears to be the real motivation for resisting this amendment. I beg to move.
The Earl of Swinton: My Lords, I am not suffering from an alcoholic problem—at least, I do not think I am. I may be very stupid but perhaps I may ask the noble and learned Lord, or my noble friend on the Front Bench, when he comes to answer, whether there is any great punishment in taking away driving licences. The young people who commit these crimes tend not to have driving licences. The last thing that they are worried about is whether they have a driving licence.
Lord Ackner: My Lords, I take that as being a question to me. This Bill is designed to protect the public. There are doubts which have been aired as to whether it will achieve that. The Bill will only achieve it by the deterrent of the punishment, be it in a detention centre or in prison, or community service, and by the deprivation of a licence. So if the young man goes on driving and is caught, he will lose his
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liberty yet again. There does not appear to be available any other method of dealing with this type of offence.
Lord Lucas of Chilworth: My Lords, when we started out at Second Reading, there was general agreement that this Bill, as it was then written, had a limited effect. However, we agreed that it was a useful piece of armament in the business of the taking away of motor cars and the resultant accidents in which these people became involved.
It seems to me that the noble and learned Lord, Lord Ackner, with the best will in the world, is now trying to attach to this Bill some element which has to do with drink and driving. That may be very commendable because all your Lordships are concerned at the number of cases of motoring offences where drink is involved. I understand that there are about 120,000 cases a year. I suggest here that this is the wrong Bill in which to give further support to drink and drive legislation.
The noble and learned Lord quoted His Honour Judge Blennerhassett's splendid report where he discusses this matter. As a result, in June 1990 further regulations were laid under the Road Traffic (Driver Licensing and Information Systems) Act 1989 to deal with some further elements of drink and drive; that is known commonly, as I understand it, as the high risk offender.
From a purely practical standpoint, it seems to me that we have a piece of legislation in place that deals with drivers who are convicted of a drink-drive offence with two-and-a-half times the legal limit of alcohol in their blood—the legal limit being 80 milligrams in 100 milligrams of blood. Some may say that two-and-a-half times is not very much because a large number of cases involve people with five times the limit. It also provides for people so convicted, that where there is a conviction a second time within 10 years, further penalties accrue. So I should have thought that in a way we have a piece of legislation already in place that deals with the problem which the noble and learned Lord seeks to resolve in this Bill.
If there is a gap in the current legislation, I suggest that this is not the Bill in which that loophole can be put right. We would have to go back and make an amendment to the 1989 Act—certainly not the 1988 Act.
At Committee stage, and again this evening, the noble and learned Lord discussed the Crouch case. I know he will forgive me if I do not use the legal terminology. He understands quite well what I mean. In Committee, my noble friend the Minister said that what occurred was perhaps a little unfortunate. It occurred in 1981. Since 1981 we have had a fair raft of traffic and driver legislation and, most notably, drink-drive legislation. I think my noble friend the Minister would agree that such legislation has met with some success alongside the changing attitudes of society to drink-drive offences. We should leave that matter where it is. We should deal with this Bill, which deals with a different type of offence that may lead to the aggravated offence and with a different type of offender, as it stands and get it on the statute book. We shall then have that other piece of weaponry in the

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armoury. If we still have doubts about drink-drive issues, we must come back to them in a more appropriate piece of legislation.
Baroness Masham of Ilton: My Lords, I should like to join in the debate, having rushed round from the Throne because of what the noble Lord, Lord Lucas, has said. It is our duty in this House to try to improve legislation, however late the stage may be. As a member of a board of visitors of a young offenders' institution I know very well that the offences of these young people are aggravated by drink and drugs. I come from the North. On Teesside and in Newcastle the problem is very serious and a great worry to the local population. Before bringing the Bill to Parliament, the Home Office must have done some research. Can the Minister say how many of the young people who have taken cars without permission were under the influence of drink or drugs? I support the noble and learned Lord, Lord Ackner.
The Minister of State, Department of Transport (Lord Brabazon of Tara): My Lords, I have listened carefully to the noble and learned Lord, Lord Ackner. He has spoken with his customary force and eloquence in moving the amendment. We have also exchanged letters on the subject since we discussed the amendment at Committee stage. I fear, however, that we are still somewhat apart on the interpretation of Section 22 of the Road Traffic Offenders Act 1988 and on the need for the amendment before us.
The noble and learned Lord has taken great care to make his amendment relevant to this Bill. He explained as much in moving the amendment today. However, the problem with which he is really concerned is much wider, and fundamentally quite different. It concerns the fact, which I do not dispute, that the courts learn of a number of cases of persons who may for medical reasons be a risk to other road users, yet very few of these cases ever get reported to the Secretary of State, despite the very clear duty to do so in Section 22 of the Road Traffic Offenders Act 1988.
The fact that I am not enthusiastic about this amendment must not be taken to mean that I am complacent about the problem of lack of notifications. Far from it. But I very much doubt whether this amendment would help matters, well-intentioned though it undoubtedly is. Indeed, I fear it could do harm to the procedures we use to deal with those drink-drivers—the vast majority—who are not involved in aggravated vehicle-taking. That will perhaps explain to the noble Baroness, Lady Masham, my anxiety about the amendment.
Let us consider what the effect of the amendment would be. For reasons of scope, which I fully understand, and which the noble and learned Lord has explained, it applies only to persons convicted of one particular offence—aggravated vehicle-taking. Moreover, it applies only to the duty of the courts under Section 22 of the Road Traffic Offenders Act, and not, for example, to the duties of drivers or the Secretary of State under Part III of the Road Traffic
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Act. Only in a very limited context, then, would alcohol or drug misuse be "deemed" a relevant disability.
As I explained at some length in Committee, the Government take the view that the existing term "relevant disability" does cover a situation where fitness to drive is impaired through misuse of alcohol or drugs. Indeed, applicants for driving licences are required to declare that they do not suffer from relevant or prospective disabilities, including "alcohol or drug misuse or dependency". I should remind your Lordships that, when the relevant parts of the Road Traffic Act 1991 come into force, new and tougher penalties will be introduced for those who knowingly drive while physically unfit or after making a false declaration of physical fitness. We should certainly not want to weaken the definition that would apply for that purpose.
The noble and learned Lord has mentioned the opinion of Dr. John Kemm, senior lecturer in social medicine at Birmingham University, who has said that in his view alcohol misuse is not a disability. Dr. Kemm's opinion was discussed by the Secretary of State's honorary medical advisory panel on alcohol and drug misuse. The panel comprises national experts in this field and is chaired by Dr. Philip Connell, CBE, who is adviser to the General Medical Council in these matters. The Secretary of State's panel unequivocally advised that alcohol misuse may constitute a relative or prospective disability in the terms of the Act.
Equally important for road safety is the high risk offenders scheme. I am grateful to my noble friend Lord Lucas of Chilworth for reminding us of this and for providing some facts and figures about it. The scheme is prescribed under the current powers relating to disabilities, and it forms an important element in our road safety policy. Many of the people dealt with by the scheme would be correctly described in the terms used in this amendment; that is to say, they have,
"a propensity to misuse or abuse alcohol".
They would not necessarily be "alcoholics" and at the very least there would often be insufficient evidence available to the court to describe them as such. Indeed, Mr. Crouch, who has often been mentioned in our proceedings, would himself have been caught by the scheme if he had committed the offence today.
Let us imagine that such a person is convicted of a serious drink-drive offence in which he was driving while three times over the legal blood-alcohol level. He is disqualified and, under the Motor Vehicles (Driving Licences) Regulations, the circumstances therefore obtain under which the Secretary of State may make medical inquiries as to his fitness to drive so as to ascertain whether or not he is suffering from a disability. Now let us suppose that the person in question wishes to challenge the right of the Secretary of State to make any inquiries. He may say that what gót him into trouble was not alcoholism, but rather "a propensity to misuse or abuse alcohol". At present I trust this argument would get him nowhere. But if this amendment were carried, could he not then argue that, as that propensity is deemed to be a relevant

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disability in the case of aggravated vehicle-takers only, it cannot possibly be a relevant disability in his case, as he was driving his own car and not a stolen one?
If there is any danger of such a challenge succeeding, and putting the whole of our policy on high risk offenders in jeopardy, I must say that it is not a gamble which the Government are prepared to take. So while I have considerable sympathy with the aims of this amendment, I fear I cannot commend it to the House.
Having said that, however, let me assure the noble and learned Lord that I am not in any way rejecting his plea for the Government to get tough, or should I say even tougher, with drink-drive offenders, whether they offend in a stolen car or their own. Indeed, from the victim's point of view the distinction is irrelevant.
I hope therefore that I can end my part in tonight's debate on a more positive note. The noble and learned Lord may not have persuaded us to accept his interpretation of the Crouch judgment, or of the meaning of "disability" in the Road Traffic Act 1988, but we do agree that the system of relevant driving disabilities and the notification procedure needs looking at.
The fact is that, across the whole range of relevant and prospective disabilities, the Driver and Vehicle Licensing Agency gets not much more than 200 referrals per year from the courts, whereas from all sources it gets around 1,000 notifications every working day of persons medically unfit to drive. So it certainly appears that a number of potential referrals by the courts are not being made. This seems to be a general problem, and not one confined to alcohol or drug misusers.
I have already assured the noble and learned Lord in correspondence that the Government are monitoring the situation carefully and that we are keeping an open mind on the possibility of primary legislation in a future Session to deal with it. In fact, the Government have already set up an official group to review the working of the whole system of notifying disabilities. We have asked the group specifically to consider notifications concerning unfitness to drive through misuse of alcohol or drugs. It will look very carefully at possible changes to the framework of legislation including Sections 92 to 94 of the Road Traffic Act 1988 and Section 22 of the Road Traffic Offenders Act. The group will report, on this aspect at least, by the end of the year and a consultation document will be issued on any proposed changes. Any legislation arising from the review will be able to avoid the pitfalls that beset any amendment limited by the scope of the Bill.
I must point out to the noble Baroness, Lady Masham, that I do not in fact have the figures for which she asked. But my point is that we want the provision to cover the whole ambit of drink driving rather than just aggravated vehicle-taking. With that explanation, and the assurance that I have given about our concern in the matter and what we are doing to address it, I hope that the noble and learned Lord, Lord Ackner, will feel able to withdraw the amendment.
Lord Ackner: My Lords, perhaps I may first answer what the noble Lord, Lord Lucas of Chilworth, said. The high risk scheme, commendable though it is, does not touch what I am dealing with. I am not dealing with alcoholic youngsters who have doubled or trebled the limit; I am dealing with those who have drunk too much but who may well be within the limit or below it. Therefore, the high risk scheme has no relevance. As regards the noble Lord's observation that much has happened since 1981, I must say that nothing has happened since 1981 or 1988 with regard to dealing with a definition which is too narrow. That is the point at issue.
The noble Lord, Lord Brabazon, is saying that irresponsibility equals disability. But, with great respect, that just is not so. Disability in this legislation is hedged around with physical disability. I need to quote only one portion of what the noble Lord said in Committee:
"In medical circles alcohol misuse implies the taking of alcohol to the extent that it causes harm to oneself or others, or is illegal". [Official Report, 11/2/92; col. 708.]
"Harm to oneself" means affecting one's liver or one's heart —producing a physical prejudice; it does not mean losing one's inhibitions to the extent of driving like a lunatic. That is what we are concerned with. Here lies the whole misunderstanding, and the inability of those advising the Minister to realise that he has a problem with the definition.
If I had been given an assurance that the definition would be looked at and dealt with within the foreseeable future in a new road traffic Act, I would have been persuaded by the rhetoric. But, instead, it is said that, "We propose to do nothing about the definition. Your attempt to do something about it is, by necessity, circumscribed by the scope of the Act. It does so little that we should ignore it".
I must remain consistent. I have said throughout that I am trying to strengthen the Bill. I have been told that, if I press the amendment to a Division and succeed, it will wreck the Bill because there will not be sufficient time to deal with an accepted or passed amendment. I do not wish to do that. But at least I have put firmly on record on the occasions that I have addressed the Chamber the fact that I think the resistance to widening the definition borders on —and I must be moderate—pigheadedness to a degree.
Lord Brabazon of Tara: My Lords, before the noble and learned Lord sits down, I must remind him, with the greatest respect, that I have promised an urgent and thorough-going review of the matter. I have promised that it will be completed by the end of the year. Indeed, I referred to that in my speech. Moreover, it will cover the points about which the noble and learned Lord is concerned.
Lord Ackner: My Lords, I believe the noble Lord said that the trouble was that we do not agree that the definition requires widening. That being so, I cannot see how the review will achieve that which I have set out when we are in complete disagreement on the vital point. Hence my lack of optimism and hence my high degree of pessimism. I have already indicated why I shall withdraw the amendment. I do so not because I

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am convinced but because I do not wish to wreck the Bill. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.45 p.m.
Earl Ferrers: My Lords, I beg to move that this Bill do now pass.
We have had considerable discussion of the merits of the Bill as it as passed through your Lordships' House. For that we are chiefly indebted to the noble Lords, Lord Morris of Castle Morris and Lord Airedale, and to the noble Baroness, Lady Mallalieu, whose amendments have directed our attention to some of the major issues in the Bill. The noble and learned Lord, Lord Ackner, raised the problem which was originally identified by His Honour Judge Blennerhassett.
The noble and learned Lord is, of course, always a devastating advocate, most especially I find when he is on the other side of the argument to myself, as was shown this evening. I was, therefore, particularly grateful to the noble and learned Lord for intervening so formidably on my behalf—I might almost say in my defence—in Committee when, as a mere layman, I presumed to contend with such a distinguished lawyer as the noble Baroness, Lady Mallalieu. My gratitude to the noble and learned Lord, and I am sure that of my noble friend Lord Brabazon, went sliding down the Richter scale of appreciation when he returned to His Honour Judge Blennerhassett's views for the third time today. However, I can assure the noble and learned Lord that our sense of gratitude shot up again when his sense of parliamentary prudence restrained him from dividing the House on the matter.
Perhaps I may summarise the doubt which some have had about the Bill. I think that it is that, in our eagerness to protect the public and in order to ensure that those who take cars should pay for the full consequences of their crime, we have lost sight of some of the principles of good law. I know that the noble Lord, Lord Airedale, entertained some considerable difficulties in understanding the concept of the Bill or the anxieties of those whose cars are taken and ruined. I do not think that the Bill will result in the conviction of the innocent. I hope that it will ensure quite the reverse; namely, the conviction of the guilty.
The real injustice lies in a situation where gangs of youths can take vehicles illegally, where they can race them, crash them and cause all manner of injury, damage, mayhem and devastation, and then walk away with an inadequate punishment simply because the law has been unable to pin responsibility for what has occurred on any particular one of them—even though it is quite evident that they were all involved in one way or another. That situation is one which can rightly be called unjust, and it is a situation with which we are too familiar.
The Bill aims to right that wrong, not by punishing the innocent but by saying to gangs of thugs that if they were all involved in taking the vehicle they will all suffer the penalty for the consequences of that crime. That seems to me to be a common-sense approach
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and, more important than that, a just approach—one which will commend itself to the sense of justice of the British people.
The noble Baroness, Lady Mallalieu, who is not present in the Chamber this evening, described my argument on Report as the,
"jurisprudence of the saloon bar".
I thought that that was quite witty, but somewhat unfair. Quite how the noble Baroness knows about saloon bars is a matter which, I am bound to say, has dilated my imagination —but one which I judged it better not to pursue but to keep in the realms of fantasy. In this case, though, the punishing of gangs of thugs collectively for the damage that they cause I consider to be the jurisprudence of common sense.
I believe that we are all agreed that the law as it stands is not satisfactory, and that all too often the punishment which is meted out to so-called, "joy riders", is totally inadequate and does not begin to reflect the gravity of their offences. The aggravated offence, which is provided by the Bill, should help to remedy that. It should provide a further and valuable weapon in our armoury against car crime. I commend the Bill to your Lordships.
Moved, That the Bill do now pass.—(Earl Ferrers.)
Lord Morris of Castle Morris: My Lords, it will come as no epiphanic surprise to anyone to learn that we on these Benches are all a little disappointed at the progress of this Bill through your Lordships' House, since neither we, nor any noble Lord on any other Bench has succeeded in convincing the Government that anything in it could possibly be improved. In the sporting phrase, "We haven't laid a glove on it."
We do not oppose the Bill because, clearly, something must he done about the alarming increase in car crime over the past few years, with 494,000 recorded offences of theft or unauthorised taking of motor vehicles in 1990—a 25 per cent. increase on the previous year. Only today, one newspaper has reported the case of a police constable in Cleveland who has been forced to retire at the age of 24 after a neck injury that was received when his patrol car was rammed by a stolen vehicle. We on these Benches do not in any way underestimate the seriousness of this virtual epidemic of lawlessness.
What disappoints us is that we have been completely unable to refine what we see as the heavy handedness of the Bill. We cannot believe that it is in the best interests of law and justice when we refuse to discriminate between different degrees of culpability. I refer to the law which makes passengers and drivers equally guilty of the aggravated offence on the very dubious moral grounds that they should not have been there in the first place. That lack of discrimination in Clause 1 between the dangerous driver and the passive passenger seems to us to be regrettable.
Similarly, we are saddened that we have been unable to convince the Government that to reverse the onus of proof in Clause 1(3) (a) and (b) is unnecessarily strong. Although precedents for it have been quoted, we are not convinced that it is necessary, for this offence, to overturn the basic assumption of English law that a person is innocent until he is proved to be guilty.

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Perhaps your Lordships will permit me a brief personal reminiscence. I was an officer cadet at Eaton Hall Officer Cadet School in 1951 when, on Monday morning, the commanding officer paraded the entire school and berated us for our lack of community spirit in that only 20 people had turned out to watch the rugby team on the previous Saturday when they were beaten by a cricket score. The commanding officer announced that there would be extra parades for the entire week. After dismissal, B Company sent a deputation to the commanding officer to clarify that it would not be involved in the extra parades since the entire company had been on leave for the whole of the previous week and could not have supported the team. The commanding officer rejected that submission in words that I still recall, saying, "The fact that B Company was on leave is irrelevant. I can only assume that, had they been present they would similarly have failed in their duty". The analogy is imperfect and the circumstances are not parallel, but I venture to think that the passive passenger who is unable to prove his innocence may well feel the same sense of outrage and injustice—a passion which will do little to bring about either repentance or reformation.
As the Home Secretary said, "The Bill is not the whole answer to car crime, and nor does it pretend to be." We would urge upon the Government the vital necessity of continuing discussions with the car manufacturers to impress upon them the need to make cars harder to take away unlawfully. Similarly, we hope that they will encourage the insurance companies to recognise and reward those car owners who take every possible precaution against the law-breaker. Above all, we hope that the Government will do everything in their power to multiply the motor schemes for young people, such as the one in south London, where only 9 per cent. of those attending have reoffended, while in the immediately surrounding area, the figure has been 80 per cent.
Finally, we hope that the Government will take up the constructive suggestions that were made when this Bill was given its Third Reading in another place, that the Home Office should publish a pamphlet on this change to the law which can be widely distributed to schools, workplaces and to all other places where it may come to the attention of those likely to commit the offence so that young people may be brought to understand how serious and dangerous it is to take and drive away a vehicle.
I should like to thank all noble Lords who have contributed to our debates on this Bill, especially perhaps my noble friends Lady Mallalieu and Lady Hilton of Eggardon, the noble Lord, Lord Airedale, and the noble and learned Lord, Lord Ackner. I should also like to pay tribute to the virtually impeccable patience and courtesy of the Minister, whose task it has been to steer this aggravating measure through your Lordships' House.
Lord Airedale: My Lords, this is the traditional occasion when we hope to be able to congratulate one another and ourselves on having made a wonderful job of improving the Bill that we are considering and when we can depart with smiles all round. We cannot claim to have improved this Bill because we have not
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done anything at all to it. However, before proceeding with the rest of my speech, perhaps I may say that, under considerable pressure throughout the passage of the Bill, the Minister has shown unfailing courtesy and patience despite—I am sorry to say—a most unfortunate tendency, in the absence of a solid argument to present against seriously produced amendments, to attempt to parody, ridicule or lampoon the arguments that have been advanced by his opponents. We are not taken much further unless solid arguments can be presented against solid arguments.
The Bill was cobbled together in great haste to deal with what is not exactly a new phenomenon, but with the multiplication of a new phenomenon—the taking of vehicles by hooligans in gangs and the driving away of those vehicles through the streets at 70 miles per hour. It has been unfortunate that there has been no time for the Bill to distinguish and identify the hooligans against whom it was aimed from what I may call the ordinary person who, down the years, has taken people's vehicles, probably by himself and not in a gang, and has driven that vehicle away, thus committing the basic offence but no more. The result of that haste and of that failure to identify the people against whom the Bill is aimed has been that every person who has taken a vehicle unlawfully, whether a hooligan or not, has been scooped into the net, just like the trawl net that trawls in the mature fish, the immature fish, the eggs and the plant life upon which the fish depend. That is no way to proceed.
Indeed, it was quite unnecessary because the existing law was perfectly adequate to deal with the ordinary case of taking a vehicle without the owner's consent. As the Minister said:
"In the case of vehicle-taking the law has long recognised that the offender should be liable to pay the price for an accident however and by whomsoever it is caused."—[Official Report, 25/2/92; col. 244.]
The Minister also mentioned the compensation that is payable. Referring to the relevant section of the 1973 Act, he said:
"That section says that a person convicted of the basic offence … is liable to pay compensation for any damage to the vehicle occurring while it was out of the owner's possession, and that such damage is to be treated as resulting from the offence "however and by whomsoever" it was caused."— [Official Report, 25/2/92; col. 247.]
The noble Earl cannot possibly say that the Bill was necessary in order to deal with cases of ordinary vehicle-taking.
The Bill was rushed through the House of Commons in a single day. It came to this House. I am sorry to refer to the matter again but I believe that it is important. At the end of the Committee stage a Motion was moved from the Government Front Bench to dispense with the Report stage. By great good fortune the Opposition Chief Whip, who cannot be expected to be in his place the whole time, was present. He protested and by a narrow piece of good fortune the Report stage was permitted to take place. I am advised that there is no known precedent for a Report stage of a Bill to be restored once a Motion has been agreed to by the House that the Report stage be dispensed with.

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So last Tuesday we came to our Report stage, and what happened? At 20 minutes past three o'clock the noble Earl took his place on the Government Front Bench in charge of the Third Reading and passing of the Charities Bill. At two minutes to seven o'clock the noble Earl made his final speech on that Bill. It occupied nearly four columns of Hansard. At 7.42 p.m. the noble Earl, without refreshment or time to rethink, was pitchforked into the Report stage of this Bill. I do not believe that the government business arranged for that day was in the least defensible. It was unfair to the noble Earl. It was also unfair to noble Lords who wished to move amendments on Report and who were entitled to be answered by a Minister coming reasonably fresh to his task. I am sorry to say that I regard that Report stage as having been largely a disaster.
The Bill has been rushed through Parliament under the nose of the Royal Commission. That was established by the noble and learned Lord the Lord Chancellor about a year ago in order to inquire into the whole of the administration of criminal justice in this country. The noble and learned Lord asked that the report be produced within two years and therefore we hope to have it in one year's time from now. I hope that the right honourable gentleman the Home Secretary, having listened to the strong reservations about the Bill expressed by distinguished lawyers in another place, will see fit to put those reservations before the Royal Commission. I hope that likewise the noble Earl will inform his right honourable friend of the strong reservations that were expressed in this House in order that they too may be considered by the Royal Commission.
Today the noble Earl said that he did not believe that there would be any conviction of the innocent under the Bill. That was contrary to the view expressed by the noble Baroness, Lady Mallalieu. I believe that the Bill will not do a great deal of harm. By the time that the Royal Commission has considered the Bill and expressed its opinion upon it, it will cease to exist in its present form. It will be either a dead letter, or more appropriate legislation will be put in its place.
I do not wish to end on a sour note. I compliment the noble Earl on his patience and good humour, and I think that I had better sit down.
Earl Ferrers: My Lords, that was a happy note on which to sit down and I appreciate the noble Lord's comment greatly. I am also grateful to the noble Lord, Lord Morris of Castle Morris, for his description of what happened to poor old B Company. The story was not particularly relevant but it was very good.
I know that the noble Lord, Lord Airedale, does not like the Bill; he has made that perfectly plain. He said that I parodied, ridiculed and lampooned all his arguments and that I did not produce solid arguments against solid arguments. Although I believe that I did
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produce solid arguments, I am prepared to accept that I did not persuade the noble Lord that they were either solid or good. However, I did not wish to upset him unduly if I ridiculed some of the things that he said, as he suggests I did.
The noble Lord said that the Bill has been rushed through Parliament. That is a slight exaggeration. It went through another place fairly quickly. In this House it has had a Second Reading, Committee stage, Report stage and Third Reading. Apart from Second Reading, amendments were tabled at each stage. The noble Lord referred again to the fact that, as he put it, only by a narrow piece of good fortune was there a Report stage because I moved that the Report be now received after no amendments had been agreed in Committee. That is a perfectly normal procedure. In no way did I seek to bounce your Lordships or to truncate the proceedings.
The noble Lord, Lord Airedale, was in his place this afternoon when your Lordships dealt with the Prison Security Bill. Again, no amendments were passed in Committee. The noble Lord might have noticed that I moved that the Report be now received and he did not complain—
Lord Airedale: My Lords, surely the case this afternoon was totally different. No noble Lord connected with the Prison Security Bill said that they wished to reserve their position until Report, having consulted their advisers outside Parliament. That is what happened during the Committee stage of this Bill. Noble Lords were not told by the noble Earl that the Report stage would be abandoned and that therefore there would be no opportunity to move amendments. The two situations are totally different.
Earl Ferrers: My Lords, I have now explained to the noble Lord, Lord Airedale, on three occasions how that came about. It was not my intention to bounce your Lordships but the noble Lord seems convinced that that was the case. I can say only that I am sorry that he feels that. I appreciated his expression of care for me in saying that he was sorry that I had to deal with the Charities Bill and then the Aggravated Vehicle-Taking Bill. He said that my speech occupied four columns of Hansard. I believe he will find that the speech he made this evening occupies five columns. When I made a mild bleep that possibly to deal with the Aggravated Vehicle-Taking Bill after the Charities Bill might be excessive, I asked someone what would happen about the poor Minister who had to deal with both Bills. There was a silence and I was told that it was the ministerial diet day.
I am grateful for the spirit in which your Lordships have dealt with the Bill. I realise that at times noble Lords did not find it an easy measure to contend with. I commend the Bill to the House.
On Question, Bill passed.
House adjourned at nine minutes past eight o'clock.