Lords Sitting of 26 November 1992

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of St. Edmundsbury and Ipswich): The LORD CHANCELLOR on the Woolsack.

Post Office Counter Services
Lord Boyd-Carpenter Lord Boyd-Carpenter asked her Majesty's Government:
What action they are taking to relax or remove restrictions on the type of transaction permitted to be conducted at Post Office counters.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Baroness Denton of Wakefield): My Lords, we are currently undertaking a review of the structure and organisation of the Post Office. Among the issues being considered is the future of Post Office Counters Limited, which will include the level and type of business it should undertake.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that Answer. Is she aware that in country districts where the Post Office offers perhaps the only counter open to the public, a wide series of services from that counter can be of great assistance to people who would otherwise have to travel many miles to find a shop? Is it the intention of the Government to pursue the investigation with that in mind?
Baroness Denton of Wakefield: My Lords, I am pleased to assure my noble friend Lord Boyd-Carpenter that we have a commitment to a nationwide network of Post Offices which includes rural Post Offices. We are well aware of their special importance in rural communities.
Lord Strabolgi: My Lords, is the noble Baroness aware that the Post Office is ideally suited to be a major retailer of lottery tickets? When the legislation goes through, will the Government bear that in mind?
Baroness Denton of Wakefield: My Lords, I am pleased to reassure the noble Lord that the Government intend to extend the powers of Post Office Counters to allow it to bid for work as a sub-contractor to the national lottery.
Lord Ewing of Kirkford: My Lords, can the Minister give an assurance to the House today that she will not make the future of the Post Office a lottery? Can she give Post Office staff, especially those of Post Office Counters, some indication of security? The staff are prepared to fulfil the full range of duties, wherever they are and whatever is needed. They need encouragement and support and not investigations that lead to uncertainty about the future.
Baroness Denton of Wakefield: My Lords, we are well aware of the dedication that is seen in postal services. I am delighted to re-confirm that the maintenance of a nationwide network of Post Offices is part of our policy.
Lord Peston: My Lords, the Question actually concerns removing restrictions on what Post Offices can do. Is the noble Baroness saying that the Government are looking at the issue with a view to removing such relaxations, not only in respect of lottery tickets but also many other things? In my experience Post Offices are better than banks in terms of the way that they look after their customers. Would it not be a good idea if they extended the range of financial services that they offer to the public?
Baroness Denton of Wakefield: My Lords, perhaps I may first welcome the noble Lord, Lord Peston, as one of our well-known economists to the practicalities of the Department of Trade and Industry. I take this opportunity to say that we will consider any requests from Post Office Counters to undertake new business as and when it arrives. However, we must measure such requests against our desire not to widen significantly the scope of the public sector.
Lord John-Mackie: My Lords, did I hear the noble Baroness say that the Government's policy was to ensure that there was a proper network of Post Offices in the country? If so, perhaps I can write and tell the Minister that our Post Office in a small village in Essex was closed a few years ago. No effort has been made to provide another one. Elderly people in the village now have to travel up to three miles to the nearest Post Office.
Baroness Denton of Wakefield: My Lords, obviously specific cases are a matter for the Post Office. I repeat that we are aware of the services that Post Offices provide. There have been specific measures introduced to ensure that some even continue on a part-time basis to help provide a service.
Lord Auckland: My Lords, can my noble friend help those who work in the City of London, where I spent all my working life, and who have a lunch hour between the hours of one and two? Can my noble friend urge the Post Office to open more counters for City workers, particularly junior workers who have a severely restricted lunch hour and find difficulty in obtaining service at that vital time?
Baroness Denton of Wakefield: My Lords, I am quite certain that there are people in the Post Office responsible for taking on board the views of your Lordships' House. I am sure that that point will be registered.
Lord Stoddart of Swindon: My Lords, following the question of my noble friend Lord Peston, is it not more essential than ever that the Post Office should be able to extend its range of services, preferably under public ownership, bearing in mind that the banks are closing so many branches throughout the country and their business is obviously insecure?
Baroness Denton of Wakefield: My Lords, my right honourable friend the President of the Board of Trade announced on 29th July that a Post Office review is looking at the future structure and organisation of the Post Office. I am sure that all those matters will be taken into account.
Lord Boyd-Carpenter: My Lords, in the light of my noble friend's helpful reply, can she further indicate when it is likely that a government decision will be announced?
Baroness Denton of Wakefield: My Lords, this is an extremely important matter and we would not wish to make a decision prematurely. It will be announced as soon as the options have been considered and conclusions arrived at.

Sheep Dip: Research into Effects
3.8 p.m.
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
What research is being conducted into the effects upon humans of organo-phosphates, in particular sheep dip, used in agriculture.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, the companies who market organo-phosphorus sheep dips have been asked to carry out detailed research into the effects of these products. In addition, the Veterinary Medicines Directorate is funding work by the National Poisons Unit to follow up its recent report on cases of sheep dip exposure. Similarly, the Health and Safety Executive, as well as a number of academic groups, is carrying out research into the possible chronic effects arising from occupational use.
The Countess of Mar: My Lords, I am grateful to the noble Earl for that full Answer. Does he accept that a significant number of people associated with sheep dipping or handling sheep after they have been dipped, including myself, have been suffering from a bewildering and weird number of complaints over the past years? We have been able to obtain no diagnosis from a GP and are rapidly coming to the conclusion that it is sheep dip that is poisoning us. Does the noble Earl appreciate also that since the 1960s scientists have suspected that organo-phosphates have long-term effects upon the human central nervous system? Can he say what advice he is giving to sheep handlers and GPs with regard to looking out for the symptoms and caring for patients afterwards?
Earl Howe: My Lords, naturally I sympathise with the noble Countess in her misfortune. In April 1991 the Chief Medical Officer wrote to all medical practitioners in Great Britain alerting them to the issues and to the need to report details of incidents involving veterinary medicines to the Veterinary Medicines Directorate. Additionally, the October 1991 edition of Current Problems, a bulletin circulated to all GPs, included details of symptoms associated with organo-phosphorus poisoning. We are considering what further action is required.
The Earl of Shrewsbury: My Lords, is my noble friend aware of a recent learned paper from the University of Newcastle upon Tyne which states that acute organo-phosphate poisoning is a significant cause of morbidity and mortality in the developing
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world and that epidemics of poisoning have occurred? Will the Government urgently review the situation with a view to the withdrawal of this highly toxic substance from the agri-chemicals market?
Earl Howe: My Lords, I am not aware of that particular report. However, it is recognised that the inhalation of fumes from concentrated sheep dip should be avoided. That is stated on product labels. When sheep dips are diluted and used in accordance with manufacturers' instructions, and taking account of COSHH requirements, there is no evidence to indicate that inhalation would pose a significant risk.
Lord Carter: My Lords, in this new era of open government can the Minister inform the House why his department refused a MAFF consumer panel access to the original data for the licence application for sheep dip; the survey of its use, which was conducted by the Health and Safety Executive in Devon; and the study by the National Poisons Unit at Guy's Hospital? Can the Minister further say why the Veterinary Medicines Directorate refused approval for a member of the consumer panel to speak to the consultant at the National Poisons Unit which, as the Minister knows, has studied sheep dip poisoning?
Earl Howe: My Lords, there is no question of barring access to the finished report prepared by the National Poisons Unit. It was simply not felt appropriate for discussions to be held until the full report had been finalised and published. That has now been done and copies of the report are freely available to inquirers from the Veterinary Medicines Directorate. There is absolutely no restriction on discussion of its findings with the researchers at the unit.
Baroness Masham of Ilton: My Lords, can the Minister say how many sheep dips there are without organo-phosphates? If sheep dipping is not now compulsory, are the sheep being monitored for sheep scab?
Earl Howe: My Lords, I believe that the overwhelming majority of sheep dips contain organo-phosphorus. There is another kind which I believe is based on a pyrethroid formula. It is unfortunately a fact that compulsory measures were not successful in eradicating the disease. They imposed a heavy burden on the farming industry. It is still a matter of good animal husbandry to dip sheep whenever a welfare problem is suspected.
The Earl of Halsbury: My Lords, is it sufficient to say "Do not come into contact" when in fact it is only safe if one wears a gas mask to avoid spray?
Earl Howe: My Lords, the noble Earl is not correct. That is not what the manufacturers necessarily recommend. All product labels contain recommendations on precautions to be taken when handling the sheep dip concentrate and dipping sheep. Those include the wearing of rubber gloves, rubber boots, a waterproof coat or apron and a face shield when handling the dip concentrate.
Lord Stanley of Alderley: My Lords, whatever decision the Government come to, will my noble friend bear in mind that if we do not dip our sheep there is enormous cruelty to our animals? A lamb will probably die within 48 hours. Will my noble friend's department encourage the use of the new mobile dips, which are very efficient? One does not get covered in dip as I do with the type of dip that I use. I have yet to manage to do it without falling in. Perhaps that accounts for the fact that my noble friend sits so far away from me.
Earl Howe: My Lords, as to the second point made by my noble friend, he is absolutely right. The responsibility to make sure that effective treatment is used properly lies with individual farmers. We will take action against anyone who causes a welfare problem by failing to deal properly with sheep scab.
Lord Carter: My Lords, the Minister referred approvingly to the report on this subject from the National Poisons Unit at Guy's Hospital. Can he tell the House of his department's decision as regards the further funding of the study?
Earl Howe: My Lords, the National Poisons Unit is continuing its survey of the effects on human health from exposure to sheep dip. In 1991 the unit examined 34 cases of suspected exposure reported to it by doctors. The conclusions were reported in a letter in the British Medical Journal of 31st October. The full report was published by the Veterinary Medicines Directorate which is funding the work at the same time. Further casework is expected to be completed by December 1992 with the results being made public in the middle of next year.
The Countess of Mar: My Lords, will the noble Earl reconsider the advice being given by the Health and Safety Executive about clothing? I believe that organo-phosphates are capable of passing through rubber. Will the Minister also bear in mind that when a sheep gets out of the dip the first thing it does is shake itself? The air becomes filled with droplets which presumably contain organo-phosphates. Not all of it will have stuck to the sheep's wool. The handlers will be inhaling considerable amounts if they are dipping between 500 and 1,000 sheep.
Earl Howe: My Lords, the work being carried out by the manufacturers of organo-phosphates includes work in the very areas which the noble Countess mentioned, including the details of the protective clothing worn and studies to show which areas of the operators' bodies are most exposed.

M. Delors: Term of Office
3.16 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
When the appointment of M. Delors as President of the EC Commission comes to an end.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, at the Lisbon European Council on 26th–27th June, M.
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Delors was reappointed President of the Commission for two years in accordance with the provisions of Article 161 of the Treaty of Rome. His term of office will expire on 6th January 1995.
Lord Jay: My Lords, in that case can the Minister assure us that the Government will not enable either M. Delors or M. Mitterrand to sabotage the GATT agreement at the last ditch? Meanwhile, will the Minister note the pronouncement by M. Giscard d'Estaing, who is a great authority on these matters, that the so-called Luxembourg compromise is no longer valid?
Baroness Chalker of Wallasey: My Lords, I note with care what the noble Lord, Lord Jay, has just said. I believe that the views of certainly 11 member states are very much at one on this issue. We shall work for a successful conclusion to the Uruguay GATT Round.
Lord Bruce of Donington: My Lords, in the time that elapses before M. Delors pursues a political career in one of the member states, will the Minister undertake that the Prime Minister will approach M. Delors, in his usual kind and courteous fashion, and point out to the President of the Commission that the country still expects M. Delors to comply with Article 157 of the Treaty of Rome? The noble Baroness will recall that paragraph 2 states that in the performance of their duties Members of the Commission,
"shall neither seek nor take instructions from any Government or from any other body".
Will she also ask the French Government suitably to comply with not endeavouring to give any such directions?
Baroness Chalker of Wallasey: My Lords, I believe that the noble Lord knows only too well that we consider Article 157 to be very important. I hope that it is one which is also remembered by all member states and their governments. While I cannot bind my right honourable friend the Prime Minister to putting it in quite such specific terms, we shall find a way of making sure that it is heard.
Lord Trefgarne: My Lords, can my noble friend say how M. Delors' successor is elected? Is there some form of democratic process or is it a question of Buggins's turn?
Baroness Chalker of Wallasey: My Lords, the procedure is most certainly not democratic in the terms in which we mean it. The member governments themselves select the most suitable one from among the Commissioners who are appointed by their individual governments.
Lord Richard: My Lords, does the Minister mean that it is done through the customary methods of consultation, which is the phrase which one used to associate with the party opposite when it was thinking about its leaders? Being more serious, can the Minister say whether in recent discussions which the Government have had with the President of the Commission they have discussed the issue of subsidiarity and its more precise definition? Can the Government tell the House whether they believe that a more precise and acceptable definition of

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subsidiarity will have to be included by way of amendments to the treaty or what other method do they see of doing that?
Baroness Chalker of Wallasey: My Lords, I think that the noble Lord, Lord Richard, knows that there are usual channels in Europe, just as there are between the different parties in another place and, indeed, in your Lordships' House. As far as the precise definition of subsidiarity is concerned—the noble Lord's main question—perhaps I may assure him that work is going on at the moment not only on the principles, but on how it will work out. This matter will be considered at Edinburgh.
Lord Hailsham of Saint Marylebone: My Lords, should not we amend "Hymns Ancient and Modern" to read, "When comes the promised time when Delors shall be no more"?
Baroness Chalker of Wallasey: My Lords, that is a very modern suggestion, but one that I am sure that your Lordships' House might like to take up.
Lord Campbell of Alloway: My Lords, can my noble friend the Minister confirm that the Luxembourg compromise, which has saved the European Community from total collapse on three or four occasions, is still effective and not dead as was suggested by the noble Lord, Lord Jay?
Baroness Chalker of Wallasey: My Lords, I understand that it could be re-enlivened, but I hope that that situation will not occur in coming to a successful conclusion of the Uruguay GATT Round and that no nation will seek to use it.
Lord Barnett: My Lords, does not the Minister's earlier answer on subsidiarity mean that it is an objective of Her Majesty's Government at the Edinburgh Summit to obtain a strict definition in legal terms?
Baroness Chalker of Wallasey: My Lords, yes.
The Earl of Onslow: My Lords, can my noble friend give us any comfort and, considering that the Italian Minister of Agriculture has just gone on record as saying that the new GATT terms are not acceptable to Italy, can she go on record as saying—as hoping—that M. Delors, the President of the Commission, will forgo his national ambitions and push the Community view as hard as he can, which is, as I understand it, that the GATT agreement is completely within the meaning of the reform of the common agricultural policy?
Baroness Chalker of Wallasey: My Lords, we do, indeed, believe that the agreement so far reached is in the best interests of Europe and certainly in the best interests of free trade throughout the world, particularly for the developing countries.
Lord Stoddart of Swindon: My Lords, bearing in mind the known fact that the longer that people are in power the more arrogant they become and the more remote from ordinary folk, is not 10 years far too long for the President of the European Commission to
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reign? Could we not at least have a bar, as in the United States, at eight years? Would not that be progress?
Baroness Chalker of Wallasey: My Lords, the noble Lord, Lord Stoddart, knows that I have always been one to argue for a limitation on terms of service. The point about the re-appointment of M. Delors is that there were simply no other candidates. Therefore, there was unanimity that he was the best candidate available at the time.
Lord Richard: My Lords, I am sorry to press the noble Baroness again, but she has now told the House that the Government want a more clarified legal definition of subsidiarity to emerge from the Edinburgh Summit. Does she see that as having to be incorporated in the treaty or does she see it in some other way as running alongside it without actually being part of the treaty?
Baroness Chalker of Wallasey: My Lords, my right honourable friend the Foreign Secretary has made it quite clear that arriving at the proper definition of subsidiarity with examples of how it will apply and getting that accepted by all member nations does not need to be part of the treaty but, if it were not agreed or if it were contested, it would then have to go before the Court.
Lord Elton: My Lords, is the interpretation of subsidiarity entirely dependent on the length of office of M. Delors? If not, are we not straying a little from the point and should we not by now be looking at the protection of fire in historic buildings?
Baroness Chalker of Wallasey: My Lords, I think that my noble friend is quite right.
Lord Jenkins of Putney: My Lords, does the extent to which supplementary questions have gone wide of the original Question on the Order Paper mark a new departure, and in future will all supplementary questions be allowed to depart as widely from the original Question as this one has?
Baroness Chalker of Wallasey: My Lords, a few moments ago I considered reminding your Lordships' House that we were a long way from the subject of the reappointment of M. Delors. However, I did not wish to be rude to your Lordships and I thought that, on this occasion, I would try to put your minds at rest on other subjects, too.

Historic Buildings: Fire Precautions
3.24 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether it is their policy to install sprinklers as an automatic and immediate measure against the spread of fire in appropriate historic buildings for which they have responsibility.
Viscount Astor: My Lords, the Government's policy is that all historic buildings should have adequate fire detection and prevention systems which

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are suitable for the individual building. Each historic building is unique. Method of construction, contents, location and number of persons who may be present have to be taken into account when considering whether sprinklers are appropriate.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that very sensible Answer. But are not sprinkler systems especially suitable for premises which are unoccupied for many hours? Although the water may cause some damage, is it not likely to be much less than that from the hoses which might be used on a fire later?
Viscount Astor: My Lords, sprinklers are indiscriminate in their use and can be triggered by a false alarm or smoke. A planned response to the particular circumstances of a fire is preferable. Sprinkler technology is, of course, improving all the time and its appropriateness will be kept under review. The National Gallery, for example, has recently installed a fire detection system. A sprinkler system has been installed in the non-picture areas of the gallery, but the gallery's view is that sprinklers are not installed in the picture areas as they can often do more damage than fire to the paintings.
Earl Russell: My Lords, may I thank the noble Viscount for drawing attention to the risks to pictures, and ask the Government to take into account also the risks from sprinklers to historical manuscripts?
Viscount Astor: My Lords, yes. Another reason why sprinklers are not always appropriate in certain rooms is that they may contain items such as manuscripts.
Baroness Masham of Ilton: My Lords, may I ask whether this magnificent Chamber has sprinklers?
Viscount Astor: My Lords, I do not know the answer to that, but I believe not.
Lord Montagu of Beaulieu: My Lords, does my noble friend agree that the use or non-use of sprinklers needs fine judgment and expert advice whereas there is no substitute for a well-trained firefighting force or for well-trained staff working in a snatch squad, as has been so effectively shown recently at Hampton Court and at Windsor Castle?
Viscount Astor: My Lords, I agree with my noble friend Lord Montagu. Following the Hampton Court fire, a detailed survey of electrical services and fire precautions was carried out at Windsor Castle and included the Chester Tower. In addition, in 1988 the Property Services Agency surveyed every part of the interior of the castle and recorded its findings in drawings, photographs and written reports. As a result of that, a works programme costing over £20 million was started in 1988 and is now nearing completion. It included fire prevention measures, such as re-wiring, an automatic fire detection system and fire-retardant measures.
Lord Donoughue: My Lords, I understand that the 1971 Fire Precautions Act requires premises to have a
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fire certificate. May I ask whether Windsor Castle had and has a fire certificate; and, if so, did it help, and if not, why not?
Viscount Astor: My Lords, the noble Lord, Lord Donoughue, is quite right that the Fire Precautions Act 1971 requires certain premises designated by the Home Secretary to have fire certificates. Royal residences are not included. The fire authority's responsibility is to ensure that the premises have adequate means of fire warning, escape and fire fighting. Incidentally, there is no specific requirement to fit sprinklers. The advice of the fire inspector depends on the circumstances. However, it is the policy of the Royal palaces to comply with the Act on a voluntary basis. The guidance in the regulations was more than fully complied with at Windsor Castle.
Lord Elton: My Lords, my noble friend has pointed out the danger of the accidental triggering of sprinkler systems and the damage that follows, but has thought been given to the use of sprinkler systems triggered by the fire brigade on arrival in areas which the fire brigade cannot safely reach once a fire has broken out, such as the void above ancient ceilings and that which exists above this Chamber?
Viscount Astor: My Lords, my noble friend Lord Elton makes an important point. He referred to one of the difficulties at Windsor Castle. The fire spread through roof voids which were difficult to reach and, equally, are probably rather difficult in which to install sprinklers. It is too early to tell what lessons may be learned from the Windsor fire, but we shall certainly look at the report very carefully when it is available.
Lord Jenkins of Putney: My Lords, can the Minister say whether any recent examination of the desirability of improving the fire precaution facilities in the Palace of Westminster has been carried out and, if not, would it not be desirable for such an examination to take place?
Viscount Astor: My Lords, I think that that has been done fairly recently. I am sure that, in the light of the fire at Windsor, many owners of historic properties will look carefully at their fire precautions.

Business
3.30 p.m.
Lord Hesketh: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lord Astor will, with the leave of the House, repeat a Statement that is to be made in another place on Sunday Trading in England and Wales. This will be followed by my noble friend Lord Strathclyde who will, again with the leave of the House, repeat a Statement on Local Government Finance: England.
It may also be for the convenience of the House if I move on to a matter of a restorative nature with regard to your Lordships. It is proposed that the House will rise for the Christmas Recess on Thursday, 17th December and return on Monday, 18th January. For those of your Lordships who are keen to match up your diaries for next year as we proceed, it may be for

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your Lordships' use and consideration to know that it is proposed that Holy Week will be the week set aside for the Easter Recess.

River Humber (Upper Burcom Cooling Works) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Delegated Powers Scrutiny Committee
The Chairman of Committees (Lord Ampthill): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That as proposed by the Committee of Selection the Lords following be named of the Committee:

L. Campbell of Croy,

L. Elton,

B. Llewelyn-Davies of Hastoe,

L. Mackay of Ardbrecknish,

L. Rippon of Hexham (Chairman),

L. Shaughnessy,

L. Shepherd,

L. Wigoder.

That the Committee have leave to report from time to time; and that the Committee do meet on Wednesday 2nd December at half-past ten o'clock. —(The Chairman of Committees.)
On Question, Motion agreed to.

Registered Homes (Northern Ireland) Order 1992
3.31 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (The Earl of Arran)The Parliamentary Under-Secretary of State, Northern Ireland Office (The Earl of Arran) rose to move, That the draft order laid before the House on 19th October be approved.
The noble Earl said: My Lords, the purpose of the draft Registered Homes (Northern Ireland) Order 1992 is to introduce provisions broadly in line with those already in force in England and Wales by the enactment of the Registered Homes Act 1984. I believe that it may be helpful to the House if I comment briefly on the order and then say a few words about the detailed provisions.
The order strengthens, updates and replaces the existing Northern Ireland legislation on the registration and inspection of residential care homes and nursing homes in the private and voluntary sectors. These homes provide accommodation and care for a wide range of people who are unable to continue living independently in their own homes because of old age and infirmity, illness or disabilities.
The review of legislation which led to the promotion of the order was prompted by two main factors. The first of these was the very substantial increase in recent years in the number of private and voluntary sector homes in Northern Ireland and the growing pressure on the registration authorities, the
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four health and social services boards, to ensure that satisfactory standards are maintained. The second main factor was the more up-to-date legislative provision made in England and Wales through the Registered Homes Act 1984 and its associated subordinate legislation.
The order includes a number of new provisions which strengthen the powers boards have to ensure that private and voluntary sector homes provide high standards of care for their residents or patients. It provides for the registration of both the person or organisation in control of a home and, where different, the manager. It enables the department, by regulation, to require notice to be given during prolonged absence of the registered person or persons. It enables a home to be registered both as a residential care home and a nursing home. It introduces a procedure for the urgent cancellation of a registration in cases where a justice of the peace is satisfied that the residents are at serious risk. It gives the department and health and social services boards a right of entry at all times to residential care and nursing homes operated by the private and voluntary sectors. It enables the department, for the first time, to prescribe by regulation registration fees and annual fees for residential care homes and annual fees for nursing homes. Current legislation provides only for the charging of registration fees for nursing homes. The introduction of fees will help to ensure that, as far as practicable, the boards' work of regulating these homes will become self-financing. It establishes a Registered Homes Tribunal to hear appeals from proprietors of private and voluntary homes against the decisions of the boards.
The order also takes account of the provisions of the Registered Homes (Amendment) Act 1991. The equivalent provisions in the order are intended to provide the minimum controls necessary to prevent unsuitable people operating small residential care homes for fewer than four people. I should add, however, that under the existing legislation in Northern Ireland such small homes have always had to be registered.
These provisions are designed to safeguard vulnerable people from unscrupulous owners of small homes, without subjecting families who are participating in such worthwhile schemes as the stay-a-while scheme for elderly people and adult placement schemes for mentally handicapped people to the full rigours of registration applied to the owners of larger homes.
The order also provides a convenient vehicle for an amendment to the Health and Personal Social Services (Northern Ireland) Order 1972 which is required to ensure that the department and health and social services boards have unequivocal powers to make contracts with the private and voluntary sectors for the provision of health and personal social services.
This amendment is contained in paragraph 2(1) and (2) of Schedule 1 to the order. Although this amendment can only be related loosely to the other provisions of the order, it is required as a matter of

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urgency following legal advice that the existing contractual powers in the 1972 order are open to challenge.
The order will make a significant contribution towards safeguarding the welfare of vulnerable people living in private and voluntary sector homes in Northern Ireland. I commend it to the House.
Moved, That the draft order laid before the House on 19th October be approved.—(The Earl of Arran.)
Lord Prys-Davies: My Lords, at the outset I should like to thank the House authorities for making it possible to discuss Northern Ireland matters at a reasonable hour of the day.
This is an important order for the elderly and infirm in Northern Ireland and for those suffering from disabilities and those who are vulnerable to abuse. The noble Earl, Lord Arran, is the Minister with direct responsibility for this area of policy in Northern Ireland. I want to thank him for explaining to the House so clearly the anticipated effects of the order. I propose to spend a little time on the order but the House will be pleased to know, particularly my colleagues from Scotland, that I shall not be spending long on the second order.
I am sure the Minister can confirm that over recent years there has been substantial growth in the number of residential care and nursing homes in Northern Ireland. I believe that there has been a fourfold increase over the past seven years. The incidence of infirmity and disability in Northern Ireland is even higher than on the mainland. Given that small piece of statistical information, I should like to know from the department whether it is financing research towards identifying broad groups of elderly and infirm people within categories of disability, and also research into the need for particular services. I have seen many references to planning research units, but what areas do they research? I know of the good work that has been undertaken at the Professorial Department of Geriatric Medicine at Queen's University. I wonder what specific areas of research it is undertaking which is helpful to the department.
The noble Earl confirmed that the order establishes a new framework for registration and cancellation of registration. He did not touch on closure but he could have mentioned that closure and inspection of care homes and nursing homes in the private and public sectors is based on the Registered Homes Act 1984 and the amending Act which came before the House last year.
We submit from this Front Bench that it is not satisfactory that the elderly and infirm in Northern Ireland should have to wait eight years for the shield of the 1984 legislation to be in place in Northern Ireland. We do not blame the Minister for that failure, but it is not good enough for Ministers to come up with the excuse, "This delay has enabled the Northern Ireland department to gain valuable experience". We accept that lessons have been learned since 1984, but, on the other hand, vulnerable elderly people in care homes and nursing homes in the community in Northern Ireland may have suffered unnecessarily as a consequence of the delay in updating the 1984 legislation. If the 1984 Act was then deemed to be
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necessary for England and Wales, with their lower incidence of disability and infirmity, should not the department have given a higher priority to the formulation and issuing of the order?
The Minister has confirmed that not all nursing and care homes will be covered by the order. Children's and young persons' homes will be exempted. If I am correct in assuming that that exemption applies because children's homes are already regulated and inspected under the Children and Young Persons Act 1969, perhaps I may ask the department whether it is now actively engaged in drafting an amendment to update the 1969 legislation in line with the relevant provision of the Children Act 1989.
There is a second exempted group which is worrying: homes governed by chartered bodies, the health boards, or social service trust boards will also be exempt. I notice that that baffled Members in another place and they know a thing or two about the failures of the present arrangements in Northern Ireland. It is our experience that within all human institutions there is a gap between aspiration and performance. We therefore say that all residential and nursing homes in Northern Ireland, be they in the public or the private sector, should be subject to the same controls and regulatory procedures. Perhaps the Minister will explain why that exemption is justified in the public interest.
The order came before the other place on 11th November. The business immediately ahead of it having collapsed, an opportunity opened up for the articles and the important schedule contained in the order to be discussed for about four hours instead of the usual 90 minutes. In fairness to the elected Members from Northern Ireland, they took advantage at very short notice of the opportunity that had offered itself and they fired a barrage of questions and criticisms. I suggest that Hansard of that debate is essential reading, because it records the interests and anxieties of all the Members who spoke, apart, possibly, from one voice which I shall not name. It will not be lost on the readers that their criticisms broadened out to include membership, policies and irregularities—if I may use that neutral term—of the health boards, about which we hear a great deal. I sought to voice many of those criticisms when we debated the latest appropriation order during the summer.
I could not help but read in the Hansard report of the debate in the other place that some criticism—I have mentioned this to the Minister—was made of the Minister's own office, and the Minister's alleged inability or unwillingness to meet representatives of the owners of homes in the private and voluntary sectors. Does the Minister intend to meet representatives of the Northern Ireland Care Homes Association in the near future?
Again, I cannot help asking why Sir Edward Archdale, holder of the DSC, a retired naval captain and, as I am assured, a well known figure in the County of Fermanagh, felt it necessary recently to resign his membership of one of the health boards. That is worrying. I am realistic enough to know that some of the evidence reported to Members in another

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place may have been innocently exaggerated by constituents, but I have a strong feeling that the core evidence which was referred to recently during the debate is not far off the mark. It is an old but reliable adage that there is no smoke without fire. I trust and hope that the Minister will confirm to the House that all claims and allegations of irregularities which went unanswered on llth November in another place will now be vigorously examined by the department's senior officials, with outside help if necessary, so that the alleged mischiefs can be identified and removed.
The order provides a framework, and no more. It will be reinforced by a number of regulations and orders which will be subject to the negative resolution procedure. The noble Lord, Lord Renton, is not in his place nor is the noble and learned Lord, Lord Simon of Glaisdale. If they were here I am sure that they would confirm that that procedure does not provide the best and most effective filter known to legislators. But, given the importance of the order for so many vulnerable people and their families, surely this subordinate legislation should require an affirmative resolution. The order is fairly short. It contains about 38 articles and one significant schedule. I have seen a reference to subordinate legislation in about nine articles. Although I am not certain how many will be published, I am sure the figure will not be so high as nine. Perhaps the Minister will tell us how many orders will be published.
I do not expect the Minister to reply today to the question I shall ask him, but perhaps the department can write to me and put a copy of the letter in the Library. I should like to be assured that the orders will contain criteria on the 10 following matters: the misplacement of residents or patients by virtue of their disability—people in the wrong places; inappropriate treatment with drugs; urinary incontinence; food and diet control; the keeping of residents' medical and care notes; complaints by residents/patients and by staff members—both sets of complaints are at an exceptionally low level in comparison with levels of complaints in the rest of the United Kingdom, which I find rather odd—an adequate level of pocket money; privacy for residents and patients; facilities for visitors; and, lastly, the monitoring of standards. We know from our experience in the UK generally that those are the grey areas which can be so troublesome.
I should like to know whether the Minister can explain why the draft regulations covering those matters—whether it is four, five or six—have not been placed in the Library in draft form. I understand that they are ready to be issued within the next week or so.
Finally on this point, may we receive a firm assurance from the noble Earl that the subordinate legislation will be the subject of adequate consultation with the caring staff, representatives of the residents, the community, proprietors and managers of the homes and also the Labour Relations Agency? I mention that agency as I am informed in a letter received today that there may be a potential overlap or conflict between this piece of legislation, this order, and the employment legislation, although I am not aware of the precise area of conflict.
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On the question of consultation, the Minister will know very well that there is a sharp division of opinion as to whether or not this order has received adequate consultation.
I am not quite certain whether the Minister referred to the procedure in the order for the urgent cancellation of a registration, a home certificate, in cases where the residents are at risk. In practice, we from this Front Bench fully support the giving of such power to the boards, but we are concerned that under Article 10, the board has to apply to a justice of the peace for such an order instead of making an application to the resident magistrate. I understand that in Northern Ireland the judicial or quasi-judicial role of a justice of the peace in the petty sessional division is normally carried out by the stipendiary magistrate. Perhaps we may have an explanation on that point.
I come to my last point—and no doubt the noble Earl is pleased about that. It is about Schedule 1, to which the Minister referred. It is an important schedule which introduces four statutory changes and two brand new articles: Articles 14A and 50, which will be inserted in the earlier order. I think it is the correct description that one "stumbles", unalerted, across the sweeping provisions of the new Article 14A. The Minister was frank with the House and, in fairness to him, he did not find the real reason—that this schedule is not directly related to the subject matter of the order. In fact, it seems to many people that Article 14A has nothing to do with the registration and conduct of residential care homes and nursing homes. However, it has everything to do with assisting the owners of homes in the private sector. Its purpose is to empower the department to assist a third party who wishes to provide any health services by permitting him to use premises, vehicles, equipment, goods or materials belonging to the Department of Health or to employ the department's staff on such terms and conditions as may be agreed.
I ask the Minister to confirm that the article does not authorise the department or the health boards to donate or in any way give away or sell at a discount any of their premises, equipment, goods or materials to the private sector; or to provide unfair financial advantage to any party.
I thank the House for having allowed me 16 minutes to present our comments on this important order. I could go on talking about it, but I shall refrain. The order contains some very good provisions, notwithstanding the reservations which I have expressed. I believe that the registration and inspection powers, if applied widely across the sector, could provide a strong shield against the abuse of standards.
Lord Holme of Cheltenham: My Lords, perhaps I too may thank the noble Earl for his presentation of the order. In responding I shall be somewhat briefer than the noble Lord, Lord Prys-Davies, not least because he has very eloquently asked some of the questions which I wished to put. However, there are one or two observations I wish to make and one or two questions I wish to ask.

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The first observation is that this is an important order because it deals with the elderly, the infirm, the ill and the disabled—people who are vulnerable and therefore particularly deserving of the protection of the Government and Parliament. I believe it would be a mistake if that observation were to carry any implication that the growing number of homes in Northern Ireland—and the number has grown extraordinarily—as a matter of course ill treat their residents. We all know that the great majority give careful and loving care; it is the exceptions against whom the vulnerable need protection.
Since we are talking about the vulnerable, I wish to ask why any voluntary home or HSS home which falls under the Children and Young Persons (Amendment) Act 1986 appears to be excluded from the registration and inspection procedures of the order, given that children are the most vulnerable group. In another place, the Minister, Mr. Hanley, said that there was provision in the Children Act itself for registration and inspection. I believe he said that the noble Earl, Lord Arran, would be bringing forward a proposal to update that legislation.
If the legislation needs updating, that suggests prima facie shortcomings under the Children Act 1989. Might it not be desirable therefore to include children under the provisions for inspection in this Registered Homes Order in the meantime? Perhaps the noble Earl can give some idea of the timescale under which he is operating.
I wish briefly to refer to one point made by the noble Lord, Lord Prys-Davies. Establishments which are run by health and social service board trusts are exempt because they will no longer be under board management. That means that they fall outside the inspectorate control envisaged in the order. I shall be interested in the noble Earl's observation on why that should be. Why should there not be parity of treatment?
The issue that the noble Lord, Lord Prys-Davies, mentioned about the justices of the peace also deserves the Government's attention. In Northern Ireland the title of JP does not mean exactly what it means in the rest of the United Kingdom. JPs are not trained as lay assessors. They have no legal experience. They do not take part in the court process. In many ways, the title of JP in Northern Ireland is an honorary one. Would it not be better if registered magistrates were to decide in this situation?
Finally, I wish to raise the question of financing. The board's registration and inspection work with regard to the private sector—and most of these small homes are in the private sector—is to be self-financing. I believe that is stated on page 49 of the explanatory document. Are the Government satisfied that, in this rather marginal and not prosperous sector of the economy, the private sector will be able to finance it themselves? Is it a realistic proposition? Is the noble Earl entirely satisfied, given the importance of the order, that that is the proper way to provide for inspection?
The Earl of Arran: My Lords, I thank both the noble Lords, Lord Prys-Davies, and Lord Holme of Cheltenham, for their general tenor of agreement with
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the order. I also acknowledge that the noble Lord, Lord Prys-Davies, has personal knowledge and experience in the field. That is why he asked those interesting and profound questions. Therefore, I hope that both noble Lords will forgive me if I take a short time to answer the questions.
The noble Lord, Lord Prys-Davies, asked what research was being done by the department of geriatric medicine at the Queen's University of Belfast. The department of geriatric medicine has been engaged in research into hypothermia and the effects generally of cold weather on elderly people's health. I understand that the department wishes to build further on that research.
The noble Lord, Lord Prys-Davies, also asked why it had taken so long for the order to be promoted when the Registered Homes Act 1984 came into effect on 1st January 1985. As I mentioned in my opening speech, there is legislation in existence now to regulate registration and inspection of residential care homes in Northern Ireland. There is separate legislation to regulate registration and inspection of nursing homes.
Up to the early 1980s there was no significant increase in the establishment of new homes in Northern Ireland. In the 1980s there was a marked increase in the development by the private sector of residential, and particularly nursing home, care. For example between 1982 and 1987 the number of places in nursing homes increased from 347 to 1,564. That represents an increase in five years of over 350 per cent. At that stage it was decided that a review of existing legislation should take place and a wide consultation exercise on the need for, and scope of, new legislation was conducted in 1988 through to 1989. Following hard on the heels of that consultation exercise came the major review of policy on community care for this decade which in itself required legislative provisions to implement the Government's policy objectives on community care in Northern Ireland.
As the noble Lord, Lord Prys-Davies, said, the consequential delay in bringing forward the registered homes order has, however, undoubtedly—I do not use this an an excuse—enabled Northern Ireland to benefit from the practical experience of the 1984 Act having been in operation in England and Wales for several years. Both the noble Lord, Lord Prys-Davies, and the noble Lord, Lord Holme of Cheltenham, asked whether children's homes should not be included in the order. Children's homes are already protected through the provision for registration and inspection contained in the Children and Young Persons (Northern Ireland) Act 1968 and we intend shortly to bring forward a proposal for more up-to-date legislation based on the Children Act 1989 which is in operation elsewhere in the United Kingdom.
The noble Lord, Lord Prys-Davies, asked whether the order applies to statutory homes provided directly by health and social services boards. The answer is no: the order applies only to private and voluntary sector residential care homes and nursing homes. The noble Lord, Lord Prys-Davies, asked how many regulations will be needed to implement the order. The draft order

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will be supported by three sets of subordinate legislation: first, the residential care homes regulations; secondly, the nursing homes regulations; and, thirdly, the registered homes tribunals rules.
The noble Lord, Lord Prys-Davies, asked whether the department is conducting research on elderly, infirm and disabled people and whether the British Geriatric Society is helping in that work. The policy planning and research unit in Northern Ireland is conducting a survey on behalf of a number of Northern Ireland departments of the levels of disability and the need for services. That survey mirrors and builds on the OPCS survey conducted in the rest of the United Kingdom. To date one out of the seven separate studies in the survey has been published and a second is about to be published. The British Geriatric Society is not participating directly in this major piece of research. The Northern Ireland section of the society, however, is active in promoting the interests of elderly and infirm people and from time to time promotes its own research.
Why have the draft regulations to be made under this order not been placed in the Library, asked the noble Lord, Lord Prys-Davies, and why are they subject to negative and not affirmative resolution? The draft regulations issued on 16th November for consultation were sent to a very wide range of interested parties in the statutory, private and voluntary sectors. They were issued to every Northern Ireland Member of Parliament. Though subject to negative resolution, they have been given the widest possible consultation.
The noble Lord, Lord Prys-Davies, raised the matter of the new Article 14A being inserted into the Health and Personal Social Services (Northern Ireland) Act 1991. The existing Northern Ireland legislation contained in Article 71 of the Health and Personal Social Services (Northern Ireland) Order 1972 permits the health and social services boards to enter into contracts with voluntary organisations to provide any of the health and personal social services. Unfortunately, similar powers do not exist to permit the boards to enter into contracts with private sector organisations for the provision of such services.
Then the noble Lord, Lord Prys-Davies, asked why a justice of the peace is involved in the urgent cancellation procedure and whether the procedure will be on oath. The urgent cancellation procedure is expected to be used rarely and only in cases where there is a serious risk to the well being of the residents. A justice of the peace is involved because of the need for speed. This procedure has been agreed with the Northern Ireland court service. Further, the procedure does not involve the administration of an oath.
I was asked by the noble Lord whether we intend to meet members of the Northern Ireland Care Homes Association in the near future. I have to say that the association has not in fact asked to meet me about the registered homes order. I have had correspondence with the association on other matters in the community care field and certainly if its members still have concerns and feel that I have not fully answered them, I shall be happy to hear from them again.
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The noble Lord, Lord Prys-Davies, asked whether there would be consultation with the Labour Relations Agency because of potential overlap between the order and employment legislation. I am happy to state that I am not aware of any overlap between the order which I bring before your Lordships' House today and employment legislation. My department did not therefore have consultation with the Labour Relations Agency.
What will the regulations cover the noble Lord, Lord Prys-Davies, asked. I can tell him that the regulations will cover matters such as the conduct of homes; the provision of facilities and services, including adequate and balanced diet; registers and records to be maintained by homes, including medical records; visits by relations and guardians; religious observance; notification of death and illness; notice of absence of the proprietor or manager; notice of termination of accommodation; complaints procedures; and inspection of homes by the registering authorities.
Finally, the noble Lord, Lord Holme of Cheltenham, particularly asked whether inspection would really be self-financing. We are satisfied that the boards' inspection units should be adequately funded to carry out these registration and inspection duties under this order by virtue of fees paid by the private and voluntary sectors and by virtue of community care funds already made available to them in acknowledgement of their other duties to inspect statutory homes. I can assure your Lordships, however, that I shall be keeping the financial position of the units under very careful review.
I apologise if I have not answered all the questions put by the noble Lord, Lord Prys-Davies, but I shall do so after having carefully examined Hansard. I conclude by saying that the provisions of the order are designed to protect some of the most vulnerable citizens in our society—that point was made particularly by the noble Lord, Lord Holme of Cheltenham—particularly the elderly and severely disabled people.
On Question, Motion agreed to.

Private Streets (Amendment) (Northern Ireland) Order 1992
4.9 p.m.
The Earl of Arran The Earl of Arran rose to move, That the draft order laid before the House on 19th October be approved.
The noble Earl said: My Lords, the draft order amends the Private Streets (Northern Ireland) Order 1980, which is the legislative base dealing with all aspects of private streets matters in Northern Ireland. It contains provisions to amend the powers and duties of the Department of the Environment for Northern Ireland, as road authority, and the responsibilities of developers in certain matters relating to the planning, construction and subsequent adoption of private streets. The amendments will bring Northern Ireland legislation broadly into line with corresponding legislation in Great Britain.

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The effect of the draft order will be to introduce changes in five distinct areas. Firstly, Northern Ireland is at present the only part of the United Kingdom where the cost of lighting in private streets is met by the road authority. Article 3 effectively places responsibility for the provision of street lighting in new developments upon developers or, in the case of existing streets which are to be adopted, upon the owners of adjoining land.
Secondly, under existing planning legislation the department's current policy provides that where new developments cannot be accommodated except by improvement of the existing public road—for example, the provision of a footway or road widening —developers may be required to carry out the necessary improvements works. The provisions in Article 4 do not represent a departure from this practice.
Thirdly, under Article 5 the department will be empowered to stop up or temporarily close any street which has been constructed before or in contravention of planning permission.
Fourthly, in recent years there has been some pressure from the private housing sector, particularly at the more expensive end of the market, to permit completed streets to remain private rather than become public roads. Article 7 will enable the department, on request, to permit certain streets in new developments to remain private while continuing to ensure that such streets are built to a proper standard.
Finally, under Articles 6, 8 and 9 the procedures for dealing with expenses are modified and extended to include the costs of inspecting street works and the registration of various statutory charges. These changes basically reflect the general principle of recovering expenses from the responsible party and follow the widely accepted consumer pays philosophy.
The proposal for this draft order was circulated for comment to a wide variety of interested parties, including all district councils and relevant representative bodies. I beg to move.
Moved, That the draft order laid before the House on 19th October be approved. —(The Earl of Arran.)
Lord Prys-Davies: My Lords, once again I would like to thank the noble Earl for explaining clearly and succinctly his five main objects. I hasten to confirm that this Front Bench is pleased to support the order.
I should like to thank the Department of the Environment for having kept the opposition spokesmen well informed about the discussions on the draft order. In view of the criticism which I levelled earlier at the inadequacies of the consultation procedures in one department it is only fair that I should congratulate the Department of the Environment on the procedure it has adopted in respect of this narrow order. The department issued a statement setting out a clear summary of the general points of principle which have been raised in the consultation, together with helpful comments. That means that we know the pros and cons of the order. We have here an attempt at improving accountability to Parliament, which I am sure the whole House will welcome.
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I should be content if the Minister would throw light on just one matter of detail. I have mentioned it to the noble Earl. Under Article 5 the department is given a new power to stop up or temporarily close any street in prescribed circumstances. We agree that it should be given that power and we assume that the party who will be affected by its exercise will be given adequate written notice of the department's intention. Can the Minister confirm that?
If so, what will be the duration of the notice? How will it be served? Will the developer have the right of appeal? If so, who will determine it? Furthermore, what would be the position if the developer is bankrupt, if the developer no longer has a lawful right of access to the land, or if the owners of adjoining houses request the department to exercise or not to exercise, as the case may be, the new power?
I am sure that those points of detail arising from Article 5 can be clarified very quickly by the Minister.
Lord Holme of Cheltenham: My Lords, I, too, should like to thank the noble Earl for his introduction to the order. I should like to ask two brief financial questions. First, the order states that the DoE should secure a guarantee from the contractor by the means of a guarantee bond and that the need for a guarantee bond is demonstrable. I can quite understand that if the contractor goes bust insurance becomes important. For example, Down View Road in Green Island, Antrim, has never been made up as a result of the contractor going broke before 1973. It thus effectively remains a cart track. Therefore, the question of insurance is important. But the order goes on to say:
"or by any other means acceptable to the Department".
I should be interested to know what other means would be acceptable to the department in terms of a contractor guarantee.
The other financial question is this. Accepting that essentially the Government are carrying out some tidying up here, I hope that they are satisfied that the additional burden that this measure places on the construction industry, at a very difficult time for the industry, is justified. It has been estimated that it could, for example, add £500 or so to the price of a house or else the cost would have to be swallowed by the contractor concerned. Is the noble Earl confident that this is the right time to go ahead with the order?
The Earl of Arran: My Lords, again, I thank both the noble Lord, Lord Prys-Davies, and the noble Lord, Lord Holme of Cheltenham, for their helpful comments on this particular order. Perhaps I may take the question of the noble Lord, Lord Prys-Davies, first. He asked whether it was possible that the exercise of the power to stop up or temporarily close a street could deny access to occupied homes. This provision will essentially serve as support for existing enforcement powers and should prove to be a useful deterrent, in particular against persistent offenders. It will be used with caution, usually in the early stages of a development, and certainly not in circumstances where access to occupied houses could be denied.
The noble Lord, Lord Prys-Davies, also asked whether there would be a right of appeal against a

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closure notice issued under Article 5. The answer is no. As the power of closure would only be applied in the early stages of a development prior to the occupation of houses notice of appeal is not considered appropriate.
Finally, the noble Lord, Lord Holme of Cheltenham, asked, among two or three questions, what other means of guarantee there are. The answer is cash or insurance bond. Perhaps, with the permission of the noble Lord, Lord Holme of Cheltenham, I may be allowed to answer his other questions, which will require a little consideration, in writing as soon as I possibly can.
On Question, Motion agreed to.

Damages (Scotland) Bill [H.L.]
4.17 p.m.
Report received.
Clause 4 [Enforcement by executor of rights transmitted to him.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved the amendment:
Page 2, leave out lines 41 to 46 and insert—
("Enforcement by executor of rights transmitted to him.
2A.—(1) For the purpose of enforcing any right transmitted to an executor under section 1A or 2 of this Act the executor shall be entitled—

(a) to bring an action; or

(b) if an action for that purpose had been brought by the deceased but had not been concluded before his death, to be sisted as pursuer in that action.").

The noble Lord said: My Lords, during the Committee stage of the Bill my noble friend Lord Carmichael of Kelvingrove tabled a similar amendment to Clause 4, the principle of which I was happy to accept. I was grateful to my noble friend for agreeing to withdraw his amendment at that stage to allow a few minor drafting points to be considered. I undertook to bring forward at Report stage an amendment providing a similar tabulated version of the clause, which has now been done.
This is purely a drafting amendment which does not affect the provisions of the Bill. However, I believe that it renders the provisions somewhat easier to understand. As noble Lords will note, it stands in the names of myself and my noble friend Lord Carmichael and I understand that it carries Government support. I beg to move.
The Lord Advocate (Lord Rodger of Earlsferry): My Lords, I confirm that the amendment does indeed have Government support.
On Question, amendment agreed to.

Sunday Trading
4.19 p.m.
Viscount Astor: My Lords, with the leave of the House I should like to repeat a Statement on Sunday trading in England and Wales which is now being made in another place by my right honourable friend the Home Secretary. The Statement is as follows.
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"My original intention had been to come to the House once the judgment from the European Court was available. But I now understand that, because of circumstances that have recently arisen at the court, this is unlikely to be before January. I have therefore decided to let the House know how we propose to proceed.
"The Government are determined to give Parliament the opportunity to settle the vexed question of the reform of the law on Sunday trading in England and Wales.
"There is no body of opinion that finds the existing law wholly satisfactory. Everyone from Sabbatarians to deregulators is critical of some aspects of the Shops Act 1950. But there is a very wide spread of opinion about how it ought to be reformed.
"The House will wish to know how we intend eventually to ask Parliament to resolve the issue.
"The question now is not whether there should be reform but what that reform should be. This is a matter upon which every Member of Parliament is likely to have his or her own views. Views cut quite across our usual party lines. It is the opinion of Parliament as a whole which must determine the issue. The Government would expect to give their own supporters a free vote on the key issue of whether restrictions should apply to trading on Sunday and, if so, what they should be.
"Madam Speaker, the Government will in due course invite Parliament to decide between the three main options: total deregulation; proposals put forward by the Shopping Hours Reform Council; and proposals put forward by the Keep Sunday Special Campaign.
"Total deregulation would place the law in England and Wales on the same basis as the present law in Scotland. This gives complete freedom of choice and allows opening to be determined by commercial judgments of the wishes of the shopping public. I make no secret to my constituents that that is my own preferred option.
"The Shopping Hours Reform council propose a quite different model. Under theirs, any small shop would be able to open at any time on a Sunday to sell anything it chose to sell. Larger shops would be able to open only for a limited period of six hours. They propose a local authority registration scheme in which shops would inform the local authority of their intention to open on a Sunday.
"The Keep Sunday Special Campaign put forward proposals which would in general prohibit trading on Sunday but exempt certain classes of shop. These would be shops catering for recreation, emergencies, social gatherings and travel. Whether such a shop could open on a Sunday would be determined by what it sold. For some types of shops, whether they could open would depend on their annual turnover in a list of permitted goods. There would be a maximum floor size for some types of shop. For some shops, those wishing to open on a Sunday would have to register with their

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local authority, which would have the discretion to decide whether any shop should be permitted to open.
"The Government have concluded that Parliament should fully debate all three options to see precisely what each implies for shops, what they can sell, and what their customers can buy. This House should then decide which option is to be preferred.
"We have already begun to work on a Bill which will provide a mechanism for Parliament to make that choice. I have today written to the Keep Sunday Special Campaign and Shopping Hours Reform Council inviting them to work with the Government in formulating their proposals for a Bill. The Bill presented to the House will contain all three models as alternatives. One will be chosen by the House and that model will then go through the normal refinement process at Committee and Report stages. The result at the end of the parliamentary debates in both Houses will be the preferred legislative solution.
"We shall publish before Second Reading an explanation of the practical effect of each set of proposals. We will aim to draft each model with care to make them easy to implement, readily enforceable, and as free from anomaly as possible.
"The Bill will contain Government clauses to provide protection for existing shopworkers from being compelled to work on a Sunday if they do not wish to do so. We must, however, remember that a great many people would positively welcome the opportunity to work on a Sunday and their freedom must be protected too.
"I cannot yet say when the House will be given the opportunity to settle the law on Sunday trading. Our proposals will need to await a judgment of the European Court of Justice (ECJ). That court is considering a number of cases referred to it by some English courts, including the House of Lords, to establish whether our Sunday trading laws are compatible with the free trade articles of the Treaty of Rome. We are still hoping that the court will deliver its judgment soon. It would be wrong to enact fresh legislation while that judgment is awaited. To do so would risk a brand new law falling foul of Community law and therefore having to be replaced. But there is no need to delay the preparation of a Bill. I will be pressing ahead with that, seeking and expecting the co-operation of the Keep Sunday Special Campaign and the Shopping Hours Reform Council so that, once we have the European Court of Justice's judgment, we are well placed to take advantage of the earliest opportunity that can be found for legislation.
"Madam Speaker, I have described a process which will enable Parliament to settle the issue on Sunday trading reform. I hope that we shall be able to bring forward the legislative proposals without undue delay. I invite the House to endorse my proposals so that we can proceed, with the co-operation and assistance of the various interested parties, to draft the necessary Bill. I believe that this method of proceeding offers the
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welcome prospect of a conclusion to the uncertainty and anomalies of the present legal situation on the subject."
My Lords, that concludes the text of the Statement.
4.26 p.m.
Lord McIntosh of Haringey: My Lords, this is a fairly remarkable Statement in a number of ways. The first remarkable aspect of it is the timing. If it is now considered proper to make this Statement before the decision of the European Court of Justice, what on earth prevented the Government from doing it more than a year ago, when the matter was first referred to the European Court of Justice? What has been the benefit of the delay which the Government have permitted to take place?
There have certainly been disbenefits. Does the Minister agree that there has been considerable disruption caused for shoppers, those who work in the retail trades and local authorities by the confusion which perhaps has not been caused by this Government but has certainly been prolonged by this Government?
The second remarkable element of the Statement is the promise that Conservative Members of Parliament will be given a free vote. Noble Lords will recall that on this side of the Chamber we had a free vote on the Shops Bill. It is a matter of record and I do not wish to disguise the fact that I voted with the Government against most of my colleagues in favour of the Shops Bill at that time. I, like the Home Secretary, am a supporter of almost total deregulation. What has changed the Government's mind on this matter? Is it a change of conviction or is it a failure of nerve? I rather suspect that it is a failure of nerve.
The third remarkable aspect of the Statement is that it proposes a Bill with three options. Is it proposed that those options will be delivered raw, so to speak? Is it simply the opinion of the Shopping Hours Reform Council and the Keep Sunday Special Campaign that will determine the words which parliamentary draftsmen put into the proper form? Or will the Government have any say on that? The Statement makes the rather curious assertion that the Shopping Hours Reform Council proposes to have a local authority registration scheme. I am not aware that such a scheme has any prominence in the Shopping Hours Reform Council's proposals. Is that an indication that the Government will doctor the proposals of the Shopping Hours Reform Council before they come before Parliament?
The Statement refers to government clauses which will provide what seemed to be a very limited protection indeed for shopworkers on a Sunday, protection limited only to existing shopworkers or presumably those working in shops at the time when the Bill is either introduced or passed. Will the Government now go rather further in the protection of shopworkers and do what the Shopping Hours Reform Council certainly would wish and what I imagine many of your Lordships would wish to do; namely, to provide protection not only for existing

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shopworkers but for future shopworkers and to ensure that there are premium payments made for those who find it necessary to work on Sunday?
In all of this there is a curious lack of reference to the role of local authorities. The "Keep Sunday Special" campaign proposes that local authorities should have considerable discretion and responsibilities in regulation and policing. The Government appear to believe that there is some such reference in the proposals of the Shopping Hours Reform Council. The question which must be asked is: what guarantee can the Government give the House that adequate resources will be available to local authorities for the additional work that will be placed upon them?
The Statement is strange in a number of ways. It is early days for us to make a judgment on it. I repeat that Members of these Benches will have a free vote on the legislation when it appears. I welcome the Government's belated conversion to a more rational approach to the vexed issue of Sunday trading.
Lord Harris of Greenwich: My Lords, I thank the noble Viscount for repeating the Statement. I also welcome the arrival of the noble Lord, Lord McIntosh of Haringey, to his new responsibilities on the Opposition Front Bench. We shall be spending many happy hours together. It is only right to express some regret at the departure of the noble Lord, Lord Richard, although he has been called to higher things. He spent many hours trying to improve legislation in relation to the Home Office. I express my gratitude for the help that he gave to Members on these Benches and to the House as a whole.
I turn to the Statement. I welcome the fact that the Home Secretary announced that there will be a free vote on this matter in the House of Commons. If on the previous occasion his predecessor but three had taken the same view the Government would not have experienced their humiliating defeat on Second Reading when they tried to pass the Bill on a whipped vote. Therefore, the free vote is a great improvement. As the noble Lord, Lord McIntosh said, Members on the Labour Benches had a free vote as did those on this side of the House. It is far better to allow Parliament to decide difficult questions with free votes rather than imposing the discipline of the party whips; all the more so when that proves to be ineffectual.
The next issue is the way the Government have chosen to proceed. Unlike the noble Lord, Lord McIntosh, I believe that what they have suggested is a sensible procedure. It gives Parliament the right to determine as between total deregulation, the proposals of the Shopping Hours Reform Council and those of the "Keep Sunday Special" campaign. Does the noble Viscount agree that Parliament's final decision and the efficacy of the legislation will be determined by two questions? The first is whether the law will be enforceable and the second is whether powerful interests will be prepared to obey the law. Is he aware that many of us, whatever our views on Sunday trading, find it deeply distasteful that powerful interests have chosen to ignore the
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provisions of the existing law? That includes a number of people who have spent a great deal of time talking about their support for the cause of law and order.
I assume that the Bill will be introduced in the House of Commons. Most of us take the view that that would be sensible because we spent many days debating the previous Bill only to have it flung out on Second Reading in the House of Commons. Obviously, it would be extraordinarily foolish to repeat that procedure. It would be far better for the elected House to make a decision on the principles involved and then for this House to act in its traditional role as a revising chamber.
Viscount Astor: My Lords, I welcome the support of the noble Lord, Lord Harris of Greenwich, and the somewhat guarded support of the noble Lord, Lord McIntosh. I think that the noble Lord welcomed the Statement although he was rather upset by the fact that we were giving choices. The Government are usually accused of being dogmatic. Here we are giving a choice and being criticised for that.
Everyone agrees that the present law is unsatisfactory. However, the problem of reforming it has so far proved impossible to solve, whatever the complexion of the government of the day. There have been many attempts to seek parliamentary approval for reform and all have failed. Since 1956 there have been 21 Private Members' Bills. The Government's 1985 Bill was passed by this House but was rejected on Second Reading in another place. Therefore, the Government have recognised the special nature of the problem and the need for a new approach.
On Second Reading in another place the Bill will contain all three options for reform. It will provide that only one will be brought into force and the precise details need to be worked through. Your Lordships will be offered the same three choices when the Bill reaches this House. Our proposals for reform will contain provisions for the protection of shop workers. This House will have a full opportunity to consider them in their proper context.
The noble Lord, Lord McIntosh, asked me about local authorities. Each scheme involving a local authority's registration is self-financing. Obviously no government legislation can be enacted before a European Court judgment. We expected the judgment to arrive sooner than now appears will be the case and therefore it is sensible that a Statement is made at this stage. We plan to introduce a Bill in the future.
4.35 p.m.
Lord Boyd-Carpenter: My Lords, will the Minister say when the European Court might come to a decision and how long will the present unsettled position be allowed to continue? In that context can he give some guidance to local authorities about their duty in attempting to enforce our out-of-date legal system which is still the law? Can the Minister give some guidance to local authorities because it is ridiculous that, on the one hand, a state of law can continue while, on the other hand, the law can be allowed to lapse? Is my noble friend aware that the matter is urgent because during the weeks before

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Christmas many shops open on Sundays? Is it not the duty of local authorities to prosecute those which open?
Furthermore, why is this a matter for the European Court? It is a wholly domestic matter; that is, domestic to this country. Will the Minister indicate why it is assumed that a decision of the European Court, wise or foolish, should be binding on this country? In that context will he indicate whether if the decision is to be binding in England, it will be binding in Scotland? In Scotland deregulation has worked happily and successfully for many years and has caused no difficulties for anyone. Is the European Court to be allowed to interfere with that too?
Viscount Astor: My Lords, my noble friend Lord Boyd-Carpenter made an important point about enforcement. We do not believe that the European Court judgment will arrive before January. Of course, questions of enforcement are not for the Government but for my right honourable and learned friend the Attorney-General acting in his independent capacity as a law officer of the Crown. The Attorney-General explained in his Answer on 11th May that local authorities can issue summonses if the courts decide that the Shops Act is compatible with Community law. Any summons issued can be carried through to whatever result the court considers appropriate. Further to that the Attorney-General said in his Written Answer on 15th July that:
"The decision of the House of Lords [in the Kirklees case] means that local authorities can apply for interim injunctions against retailers in order to enforce the law without giving cross-undertakings in damages".—[Official Report, Commons, 15/7/92; col. 707.]
The House of Lords acting in its judicial capacity has concluded that our Sunday trading laws are unclear. It has, therefore, referred them to the European Court of Justice to clarify whether they are compatible with European Community law. Until the European Court of Justice gives its ruling to the House of Lords the fundamental question is whether the relevant provisions of the Shops Act 1950 remain the law. Therefore, it would be wrong to insist that the law should be obeyed when it is not clear what the law is.
Lord Boyd-Carpenter: My Lords, will my noble friend answer the point about Scotland?
Viscount Astor: My Lords, as your Lordships know there is Sunday trading in Scotland except, I believe, for hairdressers and barber shops. But that is not the point. The 1950 Act does not refer to Scotland, and the question about referral to the European Court is on the 1950 Act.
Lord Gallacher: My Lords, in replying to questions from both Front Benches the noble Viscount seemed to indicate that there would be three options in the Bill, and that each House would then have the opportunity of choosing one of those options. Did I understand him correctly? If I did, how will the Government deal with a situation that is perfectly possible in which one House opts for option one and the other House opts for option two or three? It is important that this aspect of the Bill should be
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clarified. I trust that the noble Viscount will reflect on what he said so that at some time he can give us an assurance as to what the procedure will be.
Secondly, options two and three—that is to say, those from the Shopping Hours Reform Council and the Keep Sunday Special groups—whatever their merits may be, would, if they became the finding of Parliament, produce a law relating to Sunday trading in England that did not coincide with the law in Scotland. That would not be a recipe for solving the problem. Ultimately, Parliament must decide, but whatever is the view of Parliament as regards England and Wales in the interests of peace and quiet it may need to apply also to Scotland, failing which we will never solve this problem.
Viscount Astor: My Lords, the noble Lord makes a particular point about Scotland, which of course he knows well. Scotland is not included in this Bill. He quite rightly asks what will happen if another place choose one option and your Lordships' House choose another. The answer is that the position is exactly the same as for any Bill that arrives in this House which is amended by your Lordships and sent back to another place. It is the same situation. What is important is that your Lordships will have the same three choices in this House as in another place.
Viscount Whitelaw: My Lords, it seems to me that my noble friend has produced a form of procedure that I do not think can conceivably work. Surely if the Bill starts in another place and comes here as a Bill that it has reviewed and an option inserted, I do not see how this House can do other than perform its role as a reviewing Chamber and review the Bill as received from the other place. I do not see how we could have another Bill that must go back again, when the other place had already passed it and given its option. I do not think that that is a possible form of procedure.
Viscount Astor: My Lords, the plans in another place are that there will be three distinct clauses, each with an option, and the other place will be voting on those clauses. This is not new. Your Lordships did exactly the same with the Human Embryology and Fertilisation Bill when we passed one option in this House. It then went to another place which was able to have that same choice of two options, and the option it chose at that stage was the same as your Lordships chose. It is not an entirely new procedure.
Lord Elton: My Lords, my noble friend has not entirely resolved the issues raised by my noble friend Lord Whitelaw. The prescription he first gave was of a Bill that arrived with three options in it, but in reply to my noble friend Lord Whitelaw he said that there would be a Bill from which two options had been removed. Is my noble friend saying that the Government will table alternatives that we shall be able to insert, or how are we going to proceed from that point?
When the European Court has reached its decision and we have decided to change our law, whatever the decision of the European Court we are, as it were, faced with a tabula rasa; so does not this whole matter become a question of subsidiarity? As my noble friend

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Lord Boyd-Carpenter said, surely it is something that we can decide ourselves, and that definition of subsidiarity will presumably then at last have been agreed upon.
I am glad that there will be a free vote. I am sure it is right. It means that for once I can vote against some of my noble friends with a clear conscience. I question whether in fact it is always a good thing for Scotland to do exactly the same as England, because so often we gain from Scotland's precedent when it does something different.
Viscount Astor: My Lords, I apologise to my noble friend Lord Elton if I was not entirely clear. He is quite right in that there will be three options in the Bill introduced to another place. When that Bill arrives in your Lordships' House it will have one option. However, the Government will ensure that the other two alternatives will be available as amendments so that they may be debated in your Lordships' House.
I agree with my noble friend Lord Elton that Scotland has many different laws on many different subjects. With regard to the question of Europe and the European Court, I cannot really say anything about whether this is a matter for subsidiarity until the judgment arrives from the European Court of Justice.
The Earl of Onslow: My Lords, I must obviously declare an interest, as I have interests in a garden centre at home. Whether or not we have actually been total obeyers of the law I leave to your Lordships' imagination. I have never heard a Statement in this House where the Government have come up with something by saying, "We don't know what we want to do. We don't know when we're going to do it. We have three options, some of which can be amended and some of which can't. We don't know when it is going to come into effect, and we don't know when we are going to do it". This could not by any stretch of the imagination be described as the smack of firm government. It is a wobble of immense wobbliness.
We know perfectly well that the only option in all logic is the Scottish solution. I ask my noble friend to grasp the thistle, if that is the right analogy, and show some logic and moral courage to produce a Bill that sets the shopping laws the same as they are in Scotland. The morality in England seems to be no worse nor better than it is on the banks of the Clyde.
Viscount Astor: My Lords, my noble friend Lord Onslow seems to be suggesting that he should have a degree of choice but that no one else should have a degree of choice, unless of course it is his choice. It is important that in order for the reform of the Sunday trading laws to succeed that there is a free vote in another place, and that there are a number of options that can be decided on in another place. We have had a Bill that went through this House, passed from this House to another place, and was defeated in another place. We are attempting to do something to what is obviously an unsatisfactory situation. Of course it is always open, either in this House or in another place, for anybody to put down an amendment to any of the preferred options.
Baroness Oppenheim-Barnes: My Lords, does my noble friend agree that what thousands of shopkeepers, millions of consumers and many shop workers want more than anything else is simply to be able to choose whether to open or not, to shop or not, or to work or not? Above all, what they want to avoid is undue complication, undue delay, and unduly prolonged uncertainty, which is the case at present.
Viscount Astor: My Lords, my noble friend is absolutely right. It is not satisfactory that there should be this law containing strange rulings on what can be sold and what cannot be sold on a Sunday. We have received over 29,000 written representations in favour of greater Sunday trading and only 4,900 against. It is important that we try to reform this area of the law.
Lord Finsberg: My Lords, as the procedure proposed is somewhat unusual—not unique, but unusual—will my noble friend take back to his colleagues a suggestion that might be worked on here? It concerns these three weird options. Might they for once appear in plain English, not in draftsman's nonsense?
Viscount Astor: My Lords, we are always happy to have suggestions from my noble friend and I shall certainly pass on his comments to the draftsman of the Bill.

Local Government Finance, England
4.50 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Strathclyde): My Lords, with the leave of the House it may be appropriate if I repeat a Statement being made in another place. The Statement is as follows:
"With permission, Madam Speaker, I should like to make a Statement about the Local Authority Finance Settlement for England for 1993–94.
"Next year is the first year of the council tax. As honourable Members will know, the tax will reflect both the value of the property and the number of people who live in it. The lowest value properties are in band A; the highest in band H. The occupants of a band H property will pay no more than three times as much in local tax as the occupants of a band A property in the same area, thus preventing a return to the excessive variations in household bills which occurred under the rates. All six million single adult households will receive a 25 per cent. discount. Almost all full-time students will be exempt. Three million households on income support will pay nothing. There will be transitional protection for those households facing higher bills. The new tax will be cheaper and easier to collect than the community charge because there will be only one bill per household and no need to keep a register.
"The council tax will place local government on a strong financial footing. I believe that it has considerable support not only among members of the public but also among local authorities. They have worked hard with us to ensure a smooth and

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successful introduction of the new tax. I am grateful to them and the local authority associations for the constructive role they have played.
"In considering the details of the settlement, I have taken into account the representations made to me by local authorities and their associations, the responsibilities which local authorities face and the scope for further improvements in value for money. I have had in mind our intention that public sector pay settlements should fall within the range 0 to 1.5 per cent.
"I have also considered very carefully what the country as a whole can afford. Local government expenditure accounts for 26 per cent. of general government expenditure. It has increased by 3.6 per cent. per annum in real terms over the past two years. In present economic circumstances it is unreasonable to expect such growth to continue. The Government must keep a tight grip on public spending and within the total we must give as much priority as we can to capital spending. Local government must play its part too.
"Authorities will be able to spend considerably more on capital projects next year since they will have full use of nearly all the capital receipts they receive from 13th November to the end of December 1993. I expect this change to make an extra £1.75 billion available to local authorities for capital expenditure. As an additional incentive, I have already announced a range of capital partnership programmes which offer authorities extra support from my department to make these receipts go even further and to encourage projects of lasting benefit to local communities and industries.
"It was against this background that, on 12th November, I announced the aggregate figures for the local government settlement for the coming year. Those figures have now been increased by £26 million, as announced by my right honourable friend the Secretary of State for Health today in the light of changes to the Independent Living Fund. Taking account of this additional sum, the Government's view is that the appropriate level of spending for local authorities in England in 1993–94 will be £41.168 billion. Central government funding in support of that expenditure will be £33.545 billion.
"These figures reflect a number of changes in local authorities' functions next year. They include £565 million which we intend to set aside as a special grant to help authorities as they take on their important new responsibilities for community care. On the other hand, they make no provision for functions—principally further education—for which local authorities will no longer be responsible next year and for which about £2.5 billion was provided in the current year.
"Making full allowance for these changes, the year-on-year increases underlying my proposals are 3.1 per cent. (about £1.2 billion) in the appropriate level of spending, and 3.7 per cent. (which is also about £1.2 billion) in government funding. These increases should enable local authorities to
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maintain service provision. Overall, local authorities should need to raise no more next year through the council tax than they have budgeted to raise this year from the community charge.
"I am today issuing a consultation paper setting out how we propose to distribute that funding. Copies have been placed in the Vote Office and the Library and are being sent to every local authority.
"In the Statement I made on 12th November I proposed that the non-domestic rate poundage for 1993–94 should increase by 3.5 per cent. to 41.6 pence in line with the rate of inflation. This will ensure that businesses continue to benefit from the Government's success in reducing inflation. In addition, under the changes announced by my right honourable friend the Chancellor in his Budget Statement earlier this year, business ratepayers who stood to benefit from the introduction of the unified business rate or from the 1990 revaluation will receive the whole of their benefit next year. Transitional protection will continue to be available for those who stood to lose and the shortfall will be made good by the Exchequer.
"I now propose to set the distributable amount of non-domestic rates at £11.559 billion. This represents a reduction of £747 million from 1992–93, largely as a result of repayments following appeals. I am today publishing details of the full calculation. All receipts from non-domestic rates continue to be distributed in full to local authorities.
"I propose that the total of revenue support grant for 1993–94 will be £17.052 billion. In addition, some £4 billion of specific grants will be available.
"My detailed proposals for the way in which standard spending assessments will be calculated for 1993–94 are set out in the consultation paper. I have also provided the provisional figure for each authority's standard spending assessment. I am proposing some modifications to the way in which SSAs are calculated.
"The main changes are inevitable as they result either from changes in local authorities' responsibilities or from the new basis of local taxation. The main change of functions is in relation to further education, which will become the responsibility of the Further Education Funding Council from April 1993. This means that a simple comparison of proposed SSAs for 1993–94 with those for 1992–93 will, for all education authorities, show a decrease.
"Expenditure on authorities' new community care responsibilities will be funded by the special transitional grant and so there is no allowance for this expenditure in the SSA element for personal social services.
"Other changes to the calculation of SSAs result from the use of more up-to-date information. In particular, we now have estimates of resident population for mid-1991 based on the 1991 census. I propose to include these in SSAs for 1993–94 as they clearly represent a better basis than the previous figures based on the 1981 census. But I

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realise that for some authorities there will be changes, either up or down, between these better estimates, only very recently available, and those previously used. I therefore propose to pay a special grant to those authorities whose SSA in 1993–94 will be reduced by 5 per cent. or more as a direct result of incorporating the population estimates based on 1991 census results rather than those based on 1981 census results.
"Council taxes will be set locally by individual councils. They will depend on how much councils decide to spend and how much they provide for non-collection, community charge arrears and successful appeals. There are 366 billing authorities and eight separate valuation bands. So tax levels will inevitably vary widely.
"At the level of the individual household, the variation in bills will be even wider because of single person discounts, income support exemption, council tax benefits and transitional relief. Against this background, any figure for average taxes needs to be treated with great caution. What matters is the individual tax bill for the individual taxpayer.
"But in order to distribute grant fairly to each council, we have to allow for different levels of taxable resources in each authority. This means that for each of the eight valuation bands we have identified a notional council tax for standard spending which can be derived from the figures. For example, for band C—and two-thirds of all properties fall in bands A to C—the CTSS is £439. I emphasise that these figures are part of the grant calculation. They are not predictions or averages.
"Many households, particularly those living in properties in the lower bands, will gain from the council tax. On the other hand, those living in properties in the higher bands should expect to make a relatively larger contribution to the cost of local services. But I am determined that any year-on-year increases in bills between the community charge and the council tax should be held down to affordable levels.
"I am therefore proposing a scheme of transitional relief which will ensure that no household faces an excessive increase in liability next year as a result of the introduction of the council tax. Relief will be provided against increases above a specified amount, which will be different for each of the eight valuation bands. For properties in band A, relief will be provided against increases above £1.75 a week. For each higher band the starting point for relief will rise by an additional 25 pence. So for properties in band B it will be £2 a week and for properties in band H it will be £3.50 a week.
"I expect that in most cases the calculation of relief under this scheme will be based on authorities' actual budgets and not assumed budgets. The scheme will last for at least two years, and we shall review the arrangements for later years in the light of experience of the operation of the scheme in 1993–94. I will set aside resources from
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the total of government support to meet the cost of the scheme, which I expect to be about £340 million in the first year.
"My department has written to local authorities today with details of the scheme. Copies of the letter have been placed in the Vote Office and the Library.
"I have consistently made clear to the House that I am determined to protect local taxpayers against unreasonable demands by their local authority. I have no doubt that most authorities will wish to play their part in setting reasonable budgets and reasonable levels of council tax. But where councils propose excessive budgets or excessive increases in budgets, I shall not hesitate to use my powers to protect council tax payers from the consequences and to ensure that local government spending does not rise above affordable levels.
"I am today announcing my provisional capping criteria which authorities will need to take into account when they set their budgets over the next few months. I am also issuing my proposals for exercising my statutory powers to specify for each authority a base position—known as a notional amount—by reference to which I intend to measure budget increases for the purposes of applying capping criteria. I have placed papers in the Library and Vote Office setting out in detail my provisional criteria and my proposals for notional amounts. Copies have been sent to local authorities.
"No authority which sets a budget at or below its SSA can or will be capped. Only those which budget above their SSA are potentially liable to capping. I intend to allow larger increases for authorities with budgets close to their SSAs than for those whose budgets are higher. Where budgets are very substantially above SSA, I intend to seek budget reductions. But in all cases I intend the reductions to be manageable.
"I am proposing that each authority's notional amount is to be its 1992–93 budget adjusted to reflect changes in boundaries and functions, and that under the new council tax system interest on collection fund cash flow will for the first time fall within the authority's budget.
"My intended criteria are therefore that any increase of more than 2½ per cent. over the 1992–93 notional amount will be considered an excessive increase if it gives rise to a budget requirement over the authority's SSA; that any increase of more than 1¾ per cent. over the 1992–93 notional amount will be considered an excessive increase if it gives rise to a budget requirement over 1 per cent. above the authority's SSA; that any increase of more than 1 per cent. over the 1992–93 notional amount will be considered an excessive increase if it gives rise to a budget requirement over 5 per cent. above the authority's SSA; and that any increase of more than ½ per cent. over the 1992–93 notional amount will be considered an excessive increase if it gives rise to a budget requirement over 10 per cent. above the authority's SSA.
"In addition I intend that any budget requirement more than 12½ per cent. above the SSA

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will be considered excessive save that an authority will not be designated if it fulfils certain conditions equivalent to the conditions which I applied this year.
"This year I adopted a de minimis proviso allowing authorities budgeting by no more than £1.50 per adult above the criteria for excessiveness not to be designated. I told the House at that time that it should not be assumed that in any future year we would judge such a de minimis provision to be appropriate. Local authorities should not assume that there will be any such proviso or principle for 1993–94.
"My proposals allow for the particular circumstances of the inner London boroughs, which still bear the cost of overspending inherited from the Inner London Education Authority, and of the City of London.
"These criteria are necessarily provisional. When I come to make my decisions on capping I will, of course, take into account all appropriate considerations.
"My proposals for local authority spending and for external support are realistic and manageable in the current economic circumstances and, in particular, in the light of the Government's policy on public sector pay. We expect pay settlements for local government employees within a range of 0 to 1.5 per cent. over the coming year. Given my proposed increases of 3.1 per cent. in total spending and 3.7 per cent. in external support, provided that local authorities manage their resources efficiently they should be able to maintain the full range of services they provide.
"This settlement also means that authorities will not need overall to raise from their tax payers next year any more than they did under the community charge this year. For individual taxpayers, my proposals will provide additional protection in two ways: through capping, which will restrain unreasonable levels of spending, and through the transitional relief scheme.
"I am confident that this settlement will provide local authorities with the resources they need to deliver the wide range of local services of the quality people expect and deserve and at a level of tax which they can afford."
My Lords, that concludes the Statement.
5.7 p.m.
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Lord the Minister for repeating what is an extremely difficult and complex Statement. I must say at the outset that this is one of a succession of Statements that we have heard which tend to erode the basis of local democracy. I shall come back to that.
The Statement says that the council tax will place local government on a strong financial footing. What is the justification for that statement? As I understand it, the council tax is going to be the last resort for councils who wish to provide services for the needy. If they have to do that and the revenue support grant, under the standard spending assessment, will not
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allow them to do so, then the only means they have at their disposal is to raise the council tax. There is a gearing factor in the council tax which I believe will become fundamentally unpopular.
The Statement goes on to say that the Government must keep a tight grip on public spending and that,
"within the total we must give as much priority as we can to capital spending".
It goes on to say that the Minister expects the change in allowing capital receipts to be used by local authorities to make available an extra £1,750,000 to local authorities for capital expenditure. What is the basis for that calculation? Is this going to be a question of "fire sales" of council houses in order to get that money? What is the basis?
The Statement says:
"These increases should enable local authorities to maintain service provision".
Does the Minister not acknowledge that local authorities will be £200 million short in cash, if we compare this year's budget with next year's settlement? Given that, how on earth can they maintain service provision?
Can the Minister indicate how the non-domestic rate will be distributed among local authorities? Will it be, as now, per head of population? Or will it be by need? If it is by head of population then clearly the method proposed is not the right way to go about it. If it is on the basis of need, then we shall certainly look at that with some favour.
The Statement says a good deal in regard to the council tax and how it will operate. However, all predictions on the poll tax turned out to be wrong. The poll tax was always higher than the Government estimated. We have had estimates for the council tax starting at £356 and going to £439. I strongly expect from the information I have been given that even that figure is low and we should be talking of something nearer £500.
Transitional relief is welcome for those who are rich and able to afford to pay their just obligations towards local authority services. Can the noble Lord say what will be the effect of the transitional relief scheme in the London borough of Wandsworth? As I understand it, the transitional relief scheme there will be such as to ensure that Conservative voters continue to vote Conservative come what may.
As to the capping provisions, we must wait and see what the criteria really mean. As the noble Lord said in repeating the Statement, criteria are necessarily provisional. The Statement says:
"These criteria are necessarily provisional. When I come to make my decisions on capping I will, of course, take into account all appropriate considerations".
What appropriate considerations is the Secretary of State going to take into account when he decides on his final criteria?
Finally, there is a philosophical point. As I said when I started, this is another Statement the effect of which is to destroy local democracy. Those who look carefully at the documents supporting the Autumn Statement may wish to note that the planning total previously used as the main figure to be controlled by government has been superseded by a new controlled total. The new controlled total includes local authority

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self-financed expenditure, whereas the planning total excluded it. The Treasury's reason for bringing forward that new definition is that the total cannot sensibly be allowed to vary without any requirement for offsetting adjustments. In other words, the Treasury must control the whole of local authority expenditure. Therefore, the total of council expenditure is now planned for each year up to 1995–96. However, there is no plan at all—the noble Lord will correct me if I am wrong—for detailed service-by-service local government requirements. In short, the Government have taken stronger powers to plan the total of council spending while avoiding responsibility for detailed programmes. If ever there was an example of power without responsibility, that is it.
I do not believe that the central control—consciously adopted—of local authority expenditure will work. If and when growth ever returns to our economy—goodness knows, that may be a long time —council spending will have to resume its upward path. If control is centralised in the way the Autumn Statement and this Statement provide for, then 24,000 elected councillors in England will be effectively redundant. That is the price that the Government are asking us to pay for what is now still conceived as local democracy.
Baroness Hamwee: My Lords, perhaps I should declare an interest as a local councillor who is certainly feeling semi-redundant, if not completely so, having heard the Statement. I thank the Minister for making it and echo his thanks to the local authorities and the local authority associations for the work that they have put in over the past few months in an attempt to make this extremely difficult tax have a prayer of becoming workable. The following question was put to me this morning, and though I repeat it I do not seriously expect the Minister to respond to it. Do the Government intend to bleed local government to death or to administer a swift death blow? The contents of the Statement confirm the underlying anxieties of that question.
We have heard a good deal about capital receipts and their use by local authorities both today and in the Autumn Statement. Does the Minister not agree that unless the market improves the capital receipts will simply not be there to be spent? He says, and I do not disagree, that priority must be given to capital expenditure. I do not disagree because capital expenditure has its benefits in assisting the economy. But does the Minister not agree that if the capital receipts do not become available then credit approvals for local authorities will need to be given in order to replace those moneys?
Perhaps I may ask specific questions with regard to the comment in the Statement on population changes. While I agree that it must be good practice to use the latest available figures, we are told that if those figures mean that the SSA is reduced by 5 per cent. or more, then a special grant will be made. Five per cent. is an extremely large sum. Can the Minister say how many local authorities will be eligible to receive that grant and how that will affect the capping arrangements? if
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the capping arrangements relate to SSA, which they do, will the grant be of any use to the local authority, bearing in mind that its expenditure is capped?
We are told that the reductions brought about by capping are to be manageable and the first of the criteria given is an increase of more than 2.5 per cent. over the current notional amount. In order that your Lordships may assess the equivalent and the considerably tightened rules that are to apply, perhaps the Minister will confirm that the figure for the current year is 6.5 per cent. I believe that those criteria are similar to the Scottish criteria which apply. Comments have been made to me by those running well organised authorities, not extravagant ones, who fear that there may be such tight criteria that massive and unmanageable reductions will be required. Will the Minister confirm that if the local authorities which are required to apply the reductions are able to demonstrate quite genuinely that they are massive and unmanageable reductions, they will be among the appropriate considerations to be taken into account?
The transitional relief is welcomed. But is it not the case that those in properties in the higher bands who are said to be required, appropriately, to make relatively larger contributions, do not necessarily have an income which matches the value of the property? We have spent a good deal of time in this House discussing the council tax and considering the plight of those who have large properties which, particularly in the current market, they cannot easily sell at the expected price. They do not have the income to maintain the lifestyle which, from a swift and unquestioning assessment, might appear to be relative to the property.
We have had long debates and knowing the further business to come in the House this evening, it would not be appropriate to repeat all those points now as regards the council tax. I wonder whether we would not all agree that to call it the council tax is a misnomer and that this Statement confirms that this is a central tax locally collected.
Lord Strathclyde: My Lords, I am grateful to the noble Lord, Lord Williams of Elvel, and to the noble Baroness, Lady Hamwee, for their responses to the Statement. Perhaps I may begin by offering my congratulations to the noble Lord, Lord Williams of Elvel, who, I believe, is representing his party for the first time on this particular portfolio dealing with the Department of the Environment. I believe that he will find it as interesting and stimulating as I do.
The noble Lord began by saying that the Statement was difficult and complex and he is absolutely right. It deals with issues which go to the core of our local government structure and the money it can raise and spend. I said in the Statement that these provisions would put local authorities on a strong financial footing. Clearly they will do so. Support for local government spending is up by 3.7 per cent. or £1.2 billion this year. We have a special grant of £565 million for community care and to help meet the needs of the severely disabled on top of that.
Of course we want to keep a tight grip on public spending. That is why we have kept the spending totals as low as possible. But we respect that there is

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a community in this country with special needs and which requires particular kinds of services from local authorities. Therefore, I say to the noble Lord, Lord Williams, that although we want to keep that tight grip on public spending, we want to make sure that people are well catered for.
Perhaps I may talk about capital receipts which both the noble Baroness and the noble Lord raised. There is an important change for the coming year. Local authorities are allowed to spend 100 per cent. of their capital receipts. I hope that it will not lead to fire sales. The provision allows local authorities to take a measured look at all their available assets and to seek to sell them. We believe that over the course of the next 12 months, as the economy grows, people will be looking to expand into various assets. We have made our calculation of £1.75 billion based on what we understand is possible and on what has happened in the past.
In a characteristic way the noble Lord, Lord Williams, put his finger on the button by saying that all our estimates could well be wrong: after all, they were on the poll tax. There was a clear reason for that. That was the extravagance and profligacy of local authorities, particularly the socialist ones, which took the opportunity between the end of the rates and the introduction of the community charge to make an increase in overall spending of about 30 per cent. I sincerely hope that local authorities will not take that opportunity; in fact I do not believe that they will be able to because of the structure of the council tax.
Both the noble Baroness and the noble Lord talked about the philosophy of local government and its democratic basis. The noble Baroness, Lady Hamwee, said that we are allowing local authorities to bleed to death. We believe strongly in local democracy and in having strong and powerful local authorities which can make decisions to provide for the needs of their local communities. Generally speaking, I believe that in this country we have a strong tradition of civic pride. But sometimes, over the course of the past few years, we have seen local authorities behave in a wasteful and extravagant way. What we have announced today as regards the arrangements for government spending and the introduction of the council tax, will mitigate those tendencies and provide for a good and viable future for local authorities to continue doing their good work.
5.25 p.m.
Lord Stoddart of Swindon: My Lords, the Statement is very long and complicated. However, one thing is absolutely certain—the Government are centralising local government even more than before. The Government might just as well send down to local authorities gauleiters or commissars to carry out their work because the local people who are supposed to be running affairs will have so little discretion that they will feel that what they do is not worthwhile. That is unfortunate for local government.
The noble Lord said that it should be relatively easy for local government to meet its targets bearing in mind government expenditure. Has the Minister made an estimate of how many additional people will
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become unemployed as a result of this Statement, particularly if local authorities are unable to enforce the 1.5 per cent. limit on wage and salary increases? Does he realise, and has he borne in mind, that the people on whom this limit is to be imposed are some of the worst paid in the country and are unable to bear the imposition that the Government are putting on them? Will the Minister say how many of those people are likely to be made redundant as a result of this Statement?
As regards local authorities being able to spend their capital receipts, that depends on their ability to sell their assets. Does the Minister not agree that as regards council houses, the best have already been sold? The reason so many remain is because their tenants do not believe that they are worth buying at the asking price. Therefore, how are local authorities to get the £1.75 billion estimated by the Government to help to resuscitate our economy by the expenditure of capital receipts? Do not the Minister and the Government realise that one way or the other the expenditure of capital implies further and additional expenditure on the revenue account? Anyone who has ever served on a local authority knows that. Yet the revenue account, which is going to bear the extra cost, is being squeezed by the Government. So it is all really sleight of hand and local authorities are being squeezed as never before.
As far as I am concerned the Statement is a very bad one. It will make things extremely difficult for local authorities; in particular for the people who work for them and who run our great public services.
Lord Strathclyde: My Lords, I say to the noble Lord, Lord Stoddart of Swindon, that we have no intention of sending commissars to local authorities to help them run their affairs which are quite properly their own business. We have to make sure that local authorities do not stretch the resources of their local communities in the way they sometimes did in the past; and to make sure that the growth of public spending as a whole is kept to a minimum.
The noble Lord asked a specific question about unemployment. The whole point of this Statement, the Autumn Statement and the decision that we made on capital spending was to make sure that we had a minimum effect on the increase in unemployment and to ensure that people could keep their jobs, particularly in that most vital sector, the construction industry, where local authorities have such an important input into the provision (or at least the refurbishment) of housing.
We have set a government total of an increase in pay of between 0 and 1.5 per cent. and we have done that for very good reasons. Rather than local authorities not being able to keep their planned increases down to that level, it would be far more helpful if all sides of the House could agree that that was a reasonable increase in pay and could encourage acceptance of it. Perhaps the noble Lord, with his influence in certain quarters in local authorities and unions, should use that influence to get people to see sense and, for this year, keep their pay levels down to ensure that people are not put out of work.

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That is the issue at stake over the course of the next 12 months. We want to keep people in jobs. We want to keep capital spending up. We want to continue construction projects, and we want to keep the increase in pay as low as possible. That will ensure that we have an effective local authority network.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that many of us feel that the Government have no option but to seek to control the growth of local government expenditure? Local government expenditure is now so substantial a figure and so substantial a proportion of national expenditure that any government, with their responsibility for the management of the economy as a whole, would be in default if they did not seek to control this very large element of expenditure. Therefore, although many of us who have had some experience in this area appreciate the enormous difficulty of controlling local government expenditure, is my noble friend aware that we realise that a government who did not attempt to do that—this Government seem to be attempting successfully to do so—would be failing in their duty?
Lord Strathclyde: My Lords, my noble friend is quite right and puts his point eloquently. There is a clear responsibility on the part of the Government and on behalf of the whole electorate to keep the overall spending limits of the Government and local authorities down as much as possible. Given the vast amount of money—over £40 billion—that will be spent this year, we believe that local authorities will be able to spend the kind of resources that they need in order to provide local services. That is the most important thing.

Car Tax (Abolition) Bill
Brought from the Commons; read a first time, and to be printed.

Human Rights: ECC Report
5.33 p.m.
Baroness Elles Baroness Elles rose to move, That this House takes note of the report of the European Communities Committee on Human Rights Re-examined (3rd Report, HL Paper 10).
The noble Baroness said: My Lords, just two years ago the European Commission issued a communication in which it sought a mandate from the Council of Ministers to negotiate the Community's adherence to the European Convention on Human Rights. The report before your Lordships today contains the results of the deliberations of the European Communities Select Committee Sub-Committee E with regard to that communication.
Our discussions centred on some complex legal issues and we are particularly fortunate this evening that we shall have the opportunity of benefiting from the very great experience and knowledge of the noble and learned Lord, Lord Slynn of Hadley, in his maiden speech. He is the first member of the Judicial Committee of your Lordships' House who has also
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served both as advocate general and judge at the European Court of Justice in Luxembourg. We very much look forward to hearing from him later.
Just 12 years ago the committee considered the same subject, arising from a Commission memorandum. The committee came to the conclusion that it did not favour Community accession to the European convention, and we have come to the same conclusion. It must be said that, as in 1980, there has been some difference in emphasis among some of our members and, indeed, as in 1980, there have been one or two cases of what one might term "reluctant acquiescence" to our conclusions. At this juncture we wish to express our thanks to all those who gave evidence, both written and oral, and to the legal adviser, assistant and clerk who devoted so much time and effort to the preparation of the report.
Since 1980 many measures have been taken to improve the protection of the human rights of individuals who live within the member states of the European Community. Not only are all member states signatories to the convention, but they now all recognise the right of individual petition and the jurisdiction of the European Court of Human Rights in Strasbourg, which I shall refer to as the "Strasbourg Court". More resources have been allocated to the Strasbourg institutions, the Commission and the Court to assist them in reducing some of the delays which are inherent in the system at the moment.
It should be noted that all states applying for membership to the Community are now under an obligation to ratify the convention. Cases affecting the rights of European Community institutions' staff were at the time (1980) subject to very serious delay. The establishment of the Court of First Instance in Luxembourg has dramatically reduced waiting time for these cases which often involve the redress of grievances concerning violations of rights.
The growth in the number of petitions to the European Parliament has led to some cases coming before the Luxembourg Court, and the proposal in the Maastricht Treaty (assuming that that treaty comes into force) for the appointment of an Ombudsman or Parliamentary Commissioner to receive petitions will be one more step in ensuring greater protection of human rights. One further strengthening of protection is the new treaty provision which will enable the European Parliament to set up an investigative committee in cases of maladministration by Community institutions. On these last two matters, whether or not the treaty comes into force, the provisions could still be introduced by means of inter-institutional agreements between the institutions of the Community so as not to lose the possibility of those very valuable proposals.
The Commission bases its claim for Community adherence to the convention on two main grounds. The first is political. Adherence would reinforce the high profile that human rights protection plays in the Community's policies and activities both internally and in relation to third countries. It would also, apparently, enhance the standing of the Community itself.

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The committee found no evidence to support the view that there was any doubt whatever as to the Community's total commitment to the protection of human rights. The inter-institutional declaration in 1977, proclaiming determined attachment to the respect for human rights, was just one example of the Community's position. I should like to take this opportunity to pay tribute to the late Lord Broxbourne who was a member of Sub-Committee E and who played such a vital role in getting the declaration onto the Floor of the European Parliament and in carrying it forward to completion.
The Commission also claims that there is a gap in the Community's legal system—that, unlike the member states, the Community as such is not subject to the control system of the Strasbourg Court and that it enjoys a kind of "immunity" from the convention. In our analysis of the Commission's claims, our primary and overriding consideration (as in 1980) was whether accession to the convention would ensure greater protection of human rights. Would the individual benefit from accession by the Community to the convention or would it make no difference?
First, it is recognised that, despite recent additional protocols relating, for instance, to property rights, the convention is concerned mainly with the civil and political rights of the individual. The European Community in its treaty provisions has up to now been mainly concerned with economic and social rights. It is, of course, accepted that in the development of the Community there is a certain growing overlap of interests, but the Luxembourg Court has over the years recognised the protection of human rights as part of its general principles. Already in the 1960s, the Court stipulated in the Stauder case that,
"fundamental rights were enshrined in the general principles of Community law and protected by the Court".
Since that time there has developed a corpus of Community law concerned with the protection of the human rights of the individual with specific reference to the convention as, for instance, in the Rutili case and in subsequent cases coming before that Court.
Secondly, the committee has analysed some of the recent major cases coming before the Luxembourg Court involving human rights. The committee was impressed by the concern of the Court to ensure its protection where there has been a violation of rights suffered by an individual as a result of Community law or action or where there has been an infringement through national action implementing Community law. The Court, in applying general principles of protection for human rights, has not always confined itself to the convention. As in the Orkem case, which is also quoted in our analysis in the report, the Court went beyond the provisions of the convention and showed that it was willing and prepared to examine rights not guaranteed by the convention. A summary of our examination of case law is set out in paragraph 74 of the report.
It is accepted by the committee that there may be potential gaps in the legal system, where, for instance,
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the jurisprudence does not yet exist or where the individual is not able to bring a case before the Luxembourg Court. However, as we say in the report:
"None of our witnesses was able to point convincingly to a single case where an individual had been denied justice in terms of the Convention on complaining of a Community action".
I have quoted paragraph 71 verbatim in order to clarify a misunderstanding contained in the Foreign and Commonwealth Office's reply, for which I thank the Minister. We did not maintain that there was not a single convincing case where an individual's rights had been infringed as a result of a Community action. On the contrary. We pointed to cases where there had been infringement, but where the individual had received justice from the Luxembourg Court.
While we consider the gap claimed by the Commission to be very marginal, in view of the development of the case law of the Luxembourg Court, the committee recommends that there should be closer co-operation between the Luxembourg and Strasbourg Courts as well as easier access for the individual to the Luxembourg Court, mainly under Article 173 or by reference from a national court under Article 177.
Without going into the complexities of the arguments there are important legal issues which could affect the United Kingdom. These were raised in the Commission's communication and I shall touch on them very briefly. I shall not go into the legal arguments because that would take some considerable time, which I am sure would not be acceptable to your Lordships' House, particularly this evening.
First, would accession of the Community to the convention confer increased competence to legislate internally, involving supervision of national implementation of obligations? Would the Community's external competence be increased, becoming party to international agreements involving human rights provisions? The arguments set out in paragraphs 89 to 91 of the report lead to our conclusion, in agreement with the Foreign and Commonwealth Office witness, although apparently not entirely clear in the Foreign and Commonwealth Office's reply, that,
"it would be essential that any instrument of accession by the Communities should be accompanied by a statement of interpretation by all Member States which would specify that the Community accepted responsibilities under the Convention only within the limits of its own competence".
That is an important point that should be noted. We added, in paragraph 93, that it would be possible in the future for the Community to become a party to international instruments relating to human rights, but only by the unanimous agreement of the member states.
For those who would like to see the European Convention on Human Rights incorporated into United Kingdom domestic law, this issue cannot be ignored. It was touched on by our committee, although it was not one of the main issues considered. It is accepted that, Community law having supremacy over national law, in so far as the convention forms part of the principles of Community law, a national action implementing Community law can be challenged within the terms of the convention, as in the Kent Kirk case which is included in the report.

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The new provisions contained in the Maastricht Treaty—should it come into force—strengthen the role of the Luxembourg Court. Article F(2) stipulates that the Union shall respect fundamental rights, as guaranteed by the European Convention on Human Rights and Fundamental Freedoms. Even if the Community were to accede, it should be pointed out that migration and asylum questions, which are possibly among the more frequent subjects of human rights cases, would still necessitate any Community resident to have recourse to the Strasbourg Court, as these matters fall within co-operation in the fields of justice and home affairs and are outside Community competence. The treaty stresses nevertheless that these issues shall be dealt with in compliance with the convention and the Status of Refugees Convention. The convention would still remain a guideline for courts when dealing with these issues although they are not within Community competence as such.
Finally, it must be observed that the Commission considered that the institutional difficulties which would be incurred in Community accession to the convention were not insurmountable, although it was recognised that they did exist. The committee concludes that institutional difficulties are among the main obstacles against accession, and witnesses agreed with that assessment. At present the convention is open only to member states. It would therefore have to be amended to allow for the Community as such to accede. The Community would claim representation on the Strasbourg Commission and the Strasbourg Court. Membership of the Committee of Ministers —the Strasbourg Committee of Ministers—poses a problem. One suggestion by the Brussels Commission was that cases considered admissible by the Strasbourg Commission should go straight to the Court—the Strasbourg Court. That is unacceptable on two counts.
First, not all admissible cases go to the Court; some are decided upon by the Committee of Ministers. Many are not of the nature or importance that they should take up the time of the Strasbourg Court. Secondly, this procedure would create priorities for EC cases over cases from Council of Europe member states which are not members of the European Community, as well as increasing the congestion with which both the Strasbourg Commission and Court are faced.
It may interest noble Lords to know that according to the latest report dated 1991 there are 2,332 cases undecided in the Commission, with 250 cases at the end of 1990 still before the Court and an average—this is a generous average—of five to six years before a case is heard. Those who follow these matters as reported in The Times will notice that the applications for nearly all the recent cases were lodged in 1986 and judgments have been coming forward in the past few months. Delay of this length cannot be conducive to redressing grievances resulting from violations of human rights and fundamental freedoms.
The increasing number of states now becoming members of the Council of Europe and parties to the convention is to be warmly welcomed, as the
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principles of democracy and the guarantee of the protection of human rights and fundamental freedoms spread across the whole of Europe. The numbers of cases coming to Strasbourg are inevitably thereby increased and make even less attractive the idea that European citizens should have recourse to Strasbourg when they have the possibility, with very much less delay and assurance of judicial protection of their rights under Community law, of resort to the Luxembourg Court.
As it was affirmed in the Magna Carta, justice delayed is justice denied. That remains true today, 700 years later. The committee remained unconvinced that Community accession to the convention would ensure greater protection for the individual resident in the Community and we would encourage the continued development of the Luxembourg Court's jurisdiction in human rights cases arising from Community action. I beg to move.
Moved, That this House takes note of the report of the European Communities Committee on Human Rights Re-examined (3rd Report, HL Paper 10)— (Baroness Elles.)
5.48 p.m.
Lord Archer of Sandwell: My Lords, it is a pleasure to follow the noble Baroness. She may remember that nearly a quarter of a century ago she succeeded me as the United Kingdom delegate to the United Nations Third Committee.
I am sure she would agree that in those days this whole debate would have been inconceivable. If René Cassin, Sean MacBride and Lionel Elvin could have read this report they would have believed that their life's work was vindicated. The European Convention was an esoteric subject discussed by a few eccentrics. If I remember correctly, not a single country then accepted the right of individual petition. Now the arguments begin from the axiom that there is a substantial body of jurisprudence which has emanated from the Strasbourg Court and interfaces with human rights jurisprudence in other regions of the world and with the human rights committee under the international covenant.
As the noble Baroness reminded the House—it was repeated several times in the evidence to the committee of Mr. Lester—the Luxembourg Court, while it cannot apply the convention as it could do if the Community were to accede, a matter to which I hope to return in a moment, has repeatedly looked to the convention for guidance. One consequence of that—it was a dream many years ago—is that part of the decision-making machinery of virtually every European government is that at some stage the matter is referred to the human rights section of the Foreign Ministry to consider whether the proposal has any human rights implications.
In the early years of Amnesty International, we were struggling to get the expression "human rights" into the English language. Now, the whole concept is very much part of our governance. So the nature of the discussion has changed. The debates now relate to questions such as whether the rights to which people in this country are admittedly entitled under the

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convention are best protected by reference to the commission or whether they should be enforceable in the national courts. As the noble Baroness asked, how can the Strasbourg court best be helped to cope with the flow of cases? The whole human rights scene has been transformed. It is not surprising that there are people who say, "Well, you human rights campaigners, you have won all you could conceivably have hoped for. If you want more, aren't you just being fussy?".
I understand that feeling and I concede that there has been one major change since the inception of the convention. Then, human rights were thought of as contrasting with major acts of tyranny. Before the Second World War, the world believed that what a government did to its own subjects was a matter to be dealt with within the confines of national sovereignty: the rest of the world was not interested in a family affair. It was events in Nazi Germany and occupied Europe which persuaded the civilised world that the international community must establish standards for governments and the all-mighty nation state should have to answer at the bar of international opinion for its conduct to its own citizens. Never again, it was said, would the world wash its hands of tyranny in one country. That was the philosophy behind the convention.
I accept what the noble Baroness implied: that now, cases heard by the European Commission and Court relate more usually to a conflict of human rights. The issue relates to where the emphasis is to be placed between two contending rights. It is arguable that that kind of issue is best resolved by the political process, and, in the last resort, by an electoral majority following political debate. Of course, there are some situations which do not fit into that pattern; for example, where one section of the community is permanently in a minority in relation to an important electoral issue, as in Northern Ireland. But I concede that it is not self-evident that those issues are best decided by enunciating the principle in a form which commends itself to one generation, based upon the experiences of that generation, removing it from all future political debate, and then inviting the court to decide how that interfaces with another principle similarly enshrined—and all that in a situation which was not contemplated by those who enshrined it. I accept, at least, that it is not self-evident.
There is a very little historical evidence to help us to decide whether human rights are better protected under a healthy electoral system or a healthy judicial system, for the obvious reason that the two are usually found together. If the one withers, it is not often that the other maintains a robust existence. So I do not believe that a Bill of Rights—we are discussing a European Bill of rights—is a substitute for a lively political sensitivity to civil economic rights and freedoms.
A great American judge, Learned Hand, expressed it better than I could ever hope to do. He said:
"Liberty lives in hearts of men and women. When it dies there, no constitution, no law, no judge can save it".
But where the political system is in the process of being forged and where it has not yet fully matured,
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then there is a need for an effective judicial procedure. The European debate, in a number of countries including the United Kingdom, has reached the stage where most people and most political parties are prepared to accede to a substantial degree of integration in the regulation of economic matters, and, perhaps to a lesser degree, of social matters, and for that purpose to create a powerful bureaucracy. That is not a moral judgment. Sometimes a powerful bureaucracy is necessary if an activity is to be subject to a sensible degree of co-ordination and regulation. But a bureaucracy, by definition, consists of officials who, understandably, are committed to the implementation of what they believe to be a valuable policy. If the price in a particular instance is that the individual should be hurt, then they may be prepared, like most of us, to bear with fortitude the misfortunes of others. They are likely to perceive objections as ill-informed and unreasonable.
Justice, in its memorandum to the committee—the noble Baroness will remember—pointed out how many countries, including the United Kingdom, which believed that their human rights record was of a high order, were surprised to find how often they had violated the convention. A bureaucracy requires to be subjected to some scrutiny either by a political or a judicial process. We have been prepared to accept economic integration, with a consequent bureaucracy, but we have not been prepared to accede to the political integration which would have endowed the European Parliament with the necessary muscle to scrutinise it. So in relation to human rights, we may be in danger of finding ourselves with the worst of all worlds.
It may be that 10 years from now a parliamentary ombudsman, in a stronger European Parliament, may provide stronger support for human rights, especially when the right of direct petition is understood and widely used. But, until then, I believe it important that the commission should be subject to a more direct scrutiny than would be possible by the indirect application of the convention through the Luxembourg court. I say that with great deference in the presence of the noble and learned Lord, Lord Slynn, to whose contribution we are all very much looking forward and who is himself an exception to what I am going to say. It is a court where most of the judges achieved distinction in fields which did not include a human rights jurisprudence. It is revealing and encouraging that the commission itself feels the need for more direct scrutiny by the juridical processes of the convention. I find myself persuaded that it is right.
I am fortified in that conclusion by another matter to which the noble Baroness adverted which was put to the committee by Dr. Pipkorn that there is also a presentational factor. We are continually and properly preaching human rights to the third world and there is now a great deal of discussion about how aid should be related to human rights. The third world may wonder whether the Community is wholly dedicated to its own philosophy if it finds that the

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Community does not accede to the convention which embodies the international standards of the countries of Western Europe.
I accept that there may be technical difficulties. I should be worried about the future of the law and the legal profession if I believed that, where there was obviously a will, we were defeated technically in finding a way. I have the misfortune to differ from the committee's conclusions, but I am sure that the House is indebted to the committee for its careful and well-informed report and for inviting us to participate in the debate.
5.59 p.m.
Lord Slynn of Hadley: My Lords, the protection of human rights is a subject which can generate strong feelings, so on the first occasion when I have the privilege of speaking in your Lordships' House I must steer between the Scylla of being controversial or at any rate too controversial and the Charybdis of being so anodyne that at the end it may be thought that I have said nothing. Whether or not I steer between those dangers in the course of my speech, for which I ask the indulgence of the House, I thank the noble Baroness, Lady Elles, for the gracious words with which she began her speech and for the kind remarks made by the noble and learned Lord, Lord Archer of Sandwell.
The proposal that it should be made possible for the European Community to accede to the Convention on Human Rights, and that the Community should do so, has had a somewhat chequered history. When I was asked by the noble and learned Lord, Lord Hailsham of Saint Marylebone, as Lord Chancellor, to go to the European Court of Justice 12 years ago, I found that senior lawyers in the Commission seemed very enthusiastic about the idea. Then, perhaps partly because of the report of the Select Committee of this House on human rights, but also for other reasons, the enthusiasm seemed to cool and the idea was put aside.
Now, the proposal has been revived and, as I understand it, with more vigour. There is plainly nothing wrong in the Commission reviving a proposal after leaving it on one side. On the contrary, it seems to me that the proposal needs to be looked at from time to time, if it is not adopted.
The question, however, as I see it at the moment, is whether it is now right to adopt the proposal that the Community and indeed perhaps the three communities should accede to the Convention on Human Rights. There are clearly arguments in favour of doing so, as has been shown in the speech of the noble and learned Lord, Lord Archer of Sandwell.
It is a natural progression, when all the member states have ratified and granted rights of individual petition. It looks right, since nationals of all member states would have a right of access to an independent commission of inquiry and a Court of Human Rights in Strasbourg, if breaches of the convention by the Community or by the institutions are alleged. Accession would avoid the peculiarity of the
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European Court of Justice being both defendant and judge in cases brought by officials of the Court alleging breaches of human rights.
Yet, on the other hand, it is quite clear that accession by the Community would only open up such a right to go to the Court in areas concerned with Community activity. It would not affect, it would not enlarge, the citizen's rights against his own member state and it seems to me that the number of cases at the moment which are likely to be involved will be few.
In that regard, it is a critical factor, as the noble Baroness has already indicated, that from the early days the European Court of Justice has established that fundamental principles of law exist beyond those spelt out in the treaty. The Court recognised that certain rules of fairness, reasonableness and legal certainty are observed by all the member states, which member states must have intended to apply to action in the Community. Those principles, I venture to suggest, have had a very beneficial effect in protecting the citizen against arbitrary and unreasonable conduct.
The Court of Justice slowly recognised that fundamental or human rights were included among those general principles. After France had ratified the convention, she finally accepted that the principles set out in the convention should be reflected in Community law.
I suggest that that was a major step and the Court of Justice now asserts categorically that these fundamental human rights are part of the law of the Community which it is the Court's duty to secure and enforce. It has thus recognised such fundamental rights as the right not to be discriminated against on the basis of religious faith; the right to develop property as set out in the protocol to the European convention, subject to acceptable restrictions in the general interest by way of planning controls and otherwise. The Court has recognised rights of the defence such as the right to a fair hearing. It has recognised that retroactive legislation making acts criminal which were not criminal at the time is wholly illegal and unacceptable.
It is important, I think, to bear in mind that in all this the European Court in Luxembourg has followed the interpretation of the convention adopted by the Court and the Commission in Strasbourg and has refrained from laying down wide-ranging decisions in uncharted areas. So there is considerable consistency between what has been done by the Court of Justice and what is done by the Court and Commission in Strasbourg. I doubt very much whether it can really be said, as I think was suggested by some of the witnesses to the committee, that the court in Luxembourg is not in a position to be informed of what is going on in the Strasbourg institutions.
It is clear, on the other hand, that if these cases have been few—and they have been very few where both the principle and a breach of the principle have been established—in the definition of the rights, the Court has done much and is capable of doing much in the limited area of Community activity. It has done so —and I think this is important—to such an extent that even the German Supreme Constitutional Court—

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which has a basic law of human rights which at one time it was disposed to insist upon against Community legislation—now accepts that it will not test the validity of Community directives against that basic law, but will leave it to the Court of Justice to apply the necessary rules of fundamental rights.
A special point has been raised in the discussion before the committee, as appears from the report, about officials and other employees of the Community. Is it necessary that the Community should accede to the Convention on Human Rights in order to protect the interests of those officials? I doubt very much whether that is necessary. It seems to me that the detailed rules governing the conditions of employment of employees of the Community are dealt with by the new court of first instance and by the Court of Justice in a way which sufficiently protects their interests. I doubt very much whether allegations of breach of the convention are likely to be raised by officials in many cases.
So for my own part I do not feel concern that in practice—whatever the theoretical or cosmetic objections may be—officials of the Court or of the other institutions are likely to be prejudiced.
The Commission has suggested that there may be gaps. There is undoubtedly a risk that some cases will not get to the Court of Justice. The Court can only deal with situations falling within the area of Community law which come before it. But I observe that Mr. Anthony Lester (who has been referred to and who has great experience in this area and who 10 years ago was against the Community acceding to the convention) now feels on balance—I repeat on balance—that the Community should accede.
If I were satisfied that there were serious gaps, I should agree with that. But on balance I do not consider that in practice it has been shown that there is any need for the Community to accede.
Finally, it would be perhaps somewhat strange for the United Kingdom to be supporting accession when we have not made the convention part of our domestic law. This is something which I suggest needs now to be thought about again in the light of the subjects raised in the report of this committee.
On the one hand, some people are perturbed by the block which seems to have occurred in the Supreme Court of Canada by the number of cases flowing from the adoption of the charter of human rights. On the other hand, I commend to the House two considerations which arise out of this report. The first is that every time the European Court recognises a principle set out in the convention as being part of Community law, it must be enforced in the United Kingdom courts in relation to Community law matters, but not in domestic law. So the convention becomes in part a part of our law through the back door because we have to apply the convention in respect of Community law matters as a part of Community law.
Secondly, when I was counsel for the United Kingdom on many occasions in the court of the commission on human rights at Strasbourg it was
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quite plain that many, although perhaps not all, of the cases could be dealt with just as well and more expeditiously by our own judges here.
I have for many years felt it would be right that the convention should now become part of our domestic law. Having read the report of the committee I feel fortified in that view. I mention this briefly because it seems to me to put in perspective the proposal that the Community should accede to the convention. The committee is right to conclude that the Community for the moment has more urgent and more immediate things to do, yet the topic is an important one and the situation must be monitored. I am grateful to the noble Baroness, Lady Elles, for having introduced this debate.
6.12 p.m.
Viscount Colville of Culross: My Lords, there are a number of strands in what we are discussing this evening. We are talking only about taking note of the report of the sub-committee. The very first strand which I must grasp is the one which involves thanking the noble and learned Lord, Lord Slynn, for his maiden speech. He said that it was 12 years ago that the noble and learned Lord, Lord Hailsham, invited him to participate in the European Court. It feels to some of us that it was about 12 years ago that this debate was due to start. However, I note there are a number of noble Lords waiting for subsequent business and I must therefore be brief.
Your Lordships will look with amazement at the distinction of the noble and learned Lord, Lord Slynn, in his professional life at the Bar and in the European Court. Noble Lords will appreciate what an asset we now have in this Chamber, not only from having listened to him today but also when they realise that he has already taken charge of matters and is now chairman of the sub-committee. I had the pleasure of sitting under his jurisdiction. I know he is very much in command of the subject. Your Lordships will want to hear him on many future occasions. He made a number of very constructive comments and we welcome him as a Member of this Chamber who has now made his maiden speech. If he so wishes, he can be even more controversial in future.
There is one other person who requires a word of congratulation, and that is my noble friend Lady Elles. My noble friend must be the only person to have been in charge of the sub-committee who is not a Law Lord. She was in charge when the debate took place which led to the report now before your Lordships. She has an amazingly clever way of timing the reports. It is not just a matter of the organisation of the committee and the chairmanship of it; it is also a matter of the timing of what has been produced. If noble Lords did but know what my noble friend has done behind the scenes to get these matters at a suitable moment in front of Parliament—I hope also in front of parliaments across Europe—they too would thank the noble Baroness. I sat underneath her chairmanship, and I profited greatly from the knowledge I acquired.
Like the noble and learned Lord, Lord Archer of Sandwell, I have sat on human rights bodies. We used

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to talk in terms of flowers, tributes and other such things. Those matters are appropriate today both in terms of the noble and learned Lord and my noble friend. However, the flowers cover a substantial substance in this debate because although we may not be doing more than taking note of the report I believe we shall send out messages to all the Community countries as well as to those people who are interested in the matter in this country.
It is enticing to think that the European Communities should join and become members of the European convention and that it would be good for us all if they did. However, this House was not convinced in 1980 that that was the way forward and there are reasons set out in the new report before the House this evening which show that even now not only are there no more reasons but matters have progressed very much further, as indeed the noble and learned Lord, Lord Archer, said, although I do not think he came to the same conclusion. What we have done is to look at the detail of the matter but not to go beyond the terms of reference. I know that other noble Lords will want to do that and will want to talk about wider issues. However, on this particular point and on this particular report, we in the sub-committee have had to confine ourselves to the particular issues that were before us.
There is no doubt that the technical issues that would be involved in the various European Communities joining as members of the convention would be very substantial. I say in passing that just at this moment I would have thought that there were more important and more pressing issues and tasks —as the committee says in paragraph 105—for the diplomats of the European Community to address. There may come a time when everyone has the leisure to undertake what is required, but I should have thought that this was not the moment. I do not say that through wanting to be fussy or not fussy, as the noble and learned Lord, Lord Archer, said. If one looks at the substance of the matter one sees that it is not a question of fussiness at all because we already have, in terms of the results of the courts at Luxembourg and indeed in this country something which has gone beyond a mere approach to being fussy about whether we are looking after human rights.
Of course we have to look after human rights. But we need to look at the substance of the convention we are discussing and, it is suggested, the Communities should join. What are the rights that we are being asked to commit the Communities to join? They are the right to life, although that is not really something that the European Communities are involved in; inhuman, degrading treatment; slavery; a fair tribunal; a fair hearing; the avoidance of retrospective criminal offences—one might think of the war crimes legislation—private life and property; freedom of thought; conscience and religion; freedom of expression; and freedom of association. In addition there are protocols which, particularly in the case of the United Kingdom, involve rights of property.
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Most of those rights are already encompassed in the machinery of justice in this country and in the European Court, as the noble and learned Lord said. In this short debate we are not talking about an instant vision of what the European Communities are about. We are not considering encompassing the entire range of United Nations conventions and covenants on civil and political rights or economic and social rights. Those are not matters which are before the House this evening, however much some Members may wish that they were. Nor ought we to spend much time talking about the competence of the Communities in joining the convention on human rights, although that is equally an extremely difficult subject and one which is controversial in its own right.
We should remember that before the House, and before Parliament and the country, there is now the whole issue of subsidiarity and the way in which it will be applied, in the context not only of the text of the Maastricht Treaty but also of the Single European Act and the way in which that has already passed into law so that it now binds all of us, regardless of any amendments which may have to take place.
What is the gap? When the Commission put forward the proposal that the Communities should join the convention it saw a conspicuous gap. Noble Lords have not identified—even the noble and learned Lord, Lord Slynn, did not make much inroad into the matter—a large gap which needs to be filled by a difficult legislative process which is now being suggested. I note that the noble Lord, Lord Owen, and the noble Lord, Lord Jenkins of Hillhead, as they now are, signed the note on page 57 of the document that we produced in 1977 saying that the Communities would abide by the convention on human rights. I suggest that no one on this side of the House would disagree with that.
Because there was some time during the general election we asked for examples of the gap and what would be achieved for the citizen by the Communities joining and becoming members of the convention. Your Lordships will see in paragraph 72 what the staff, who did so much to help us, produced by way of the jurisprudence of the European Court. They had to find a very elaborate example under Article 10, concerning freedom of expression, to show how one would get into difficulty if the Communities did not join. The rest is quite straightforward.
Noble Lords will have seen the quotations from cases which are set out in the footnotes. One which is not set out goes back to 1979. It is the case of Hauer v. Rheinland-Pfalz which concerned vine planting. It was subsequently affirmed in a milk quota case about 10 years later. The issue concerned the right of property, which is covered by Protocol 1. In summary, the court said that even if it is not possible to dispute in principle the Communities' ability to restrict the exercise of the right to property in the context of the "market", it is still necessary to examine whether the restrictions correspond to the objectives of general interest pursued by the European Communities, or whether they constitute a disproportionate and

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intolerable interference with the rights of the owner impinging on the very substance of the right to property.
I think that is what human rights is about. It is about property. Other issues are also involved. That is what the court was saying 13 years ago. It is saying so now, loud and clear. The noble and learned Lord. Lord Slynn, has been saying that himself in the participation which he has enjoyed in the deliberations at Luxembourg.
I ask that this evening the House takes note of the report. We should not go any further at the moment. I understand that there is an entirely different debate about whether we should incorporate the convention into our own law and whether we should subscribe to some of the protocols to which we have not subscribed. But that is not the issue which is before the House this evening. I hope, therefore, that we shall restrict ourselves to moderate and well informed debate upon the exact issue which the Commission has put forward. If we want to go further we must have another debate.
6.25 p.m.
Lord Finsberg: My Lords, perhaps I may say how much I, too, enjoyed the speech of the noble and learned Lord, Lord Slynn. From the other centre of good restaurants—Strasbourg—I have often watched with envy what goes on in Luxembourg. I now know that behind what goes on in the restaurants in Luxembourg is the excellence of the judicial system. Certainly, the noble and learned Lord is a great acquisition for this House.
The reports of your Lordships' Select Committee are highly respected throughout Europe. Talking to many of my colleagues, I find that more than those of any other parliament your Lordships' documents are regarded with deep respect because they convey a sense of what is right and they follow through a proper analysis. This particular report needs to be read in conjunction with the earlier report—the 71st report —which, as my noble friend Lady Elles said, dates from the 1979–80 Session.
I am sad to see that neither in that report nor in the current report was evidence apparently taken from the Council of Europe. I have had the great privilege of being a member of the Council of Europe for some 10 years. I lead the United Kingdom delegation and I have just ceased being president, the first British president for more than 25 years. It is that assembly which elects the judges and the commissioners to the commission and to the court at Strasbourg. Therefore, I have been closely involved. I put it to your Lordships that there is another side to the report which has not come out so far.
My noble friend Lady Elles spoke about the problem of membership of the court and the commission when the Community accedes. That is going to happen, there should be no mistake about that. The simplest solution is that of double hatting. It is well known in international organisations. It is known in NATO, the Western European Union and elsewhere. During the time that a particular country
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holds the presidency, for example, of the Commission, it would sit on the appropriate bodies of both the court and the Commission.
My noble friend also spoke about the delays at Strasbourg. Yes, indeed, there is appalling delay in the cases at Strasbourg. In comparison justice in this country is not always very swift. However, we are addressing the subject. We are considering three possible options—although I hesitate to say that after the earlier Statement. The options are: whether the judges should now become full-time judges; whether there should be a merging of the commission and the court; or whether the court should sit in panels, which is not unknown. All those ideas are being addressed with a degree of urgency because we realise that justice is being denied in that cases are taking too long.
The noble and learned Lord, Lord Archer, referred to René Cassin. I have a feeling that he would have been saddened at how slowly things had developed since his pioneering days. I also believe that he would have been saddened at the balance of conclusion that the sub-committee has come to in its report today. I noted one other sentence that the noble and learned Lord used. He said that the world was sad at the sight of tyranny and would never let it happen again. The people of Serbia and Bosnia must think very ill of a world where civilised governments have not had the courage to take action.
The Council of Europe is the oldest and largest institution in Europe. It has some 27 member countries, with a queue of up to 10 more countries waiting to come in. We are responsible for the convention and I believe, as does the noble Baroness, that much of what is in her report has been overtaken by events. Many who gave evidence on that last occasion have changed their minds, notably Anthony Lester. I notice that the noble and learned Lord, Lord Slynn, said that, on balance, he had come to a different view. The committee in its report in paragraph 119 has also, on balance, come down against. So it is a fairly narrow feeling as to whether or not, in the view of the committee, we ought to give our voice and say "accede" to the convention, so far as the Community is concerned.
Conditions have certainly changed very much. As has already been said, every country now within the Council of Europe admits the right of individual petition. They all recognise the competence of the court, and although my noble friend said that the Community wants adherence to the convention to be a prerequisite for membership of the Community, in many cases that is a long way away: 10 or 20 years. But those countries want membership of the Council of Europe. We have made it a condition not merely of membership but of guest membership, which is the precondition state, that they must in fact accept all the principles without reservation: principles of human rights, agreement about the convention and agreement to follow multi-party democracy.
I am in the middle of preparing a report on the application of Moldova to become a guest member. One of the things that may hold Moldova back is that it has not fully committed itself to those principles. But Hungary, Poland and the Czechoslovak Federal

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Republic (until 31st December) have all signed. That was an enormous advance, and it will be many years before they can come to the Community.
The Commission wants to sign; it wants to accede. I suggest to my noble friend Lord Colville of Culross that the Commission must have taken into account its workload before deciding that it wished that to happen. So I do not believe that it thinks it has more important things to do. The European Parliament wants to sign. The Assembly of the Council of Europe wants to sign. As noble Lords well know, the Assembly of the Council of Europe is not a directly elected body; it has membership from the national parliaments of the 27—members who are close, I like to think, to what is happening in their own parliaments and in government. The body which is not sure is the Committee of Ministers. I am sad that it still has to be convinced.
Reading this report I noticed on page 11 in paragraph 17 (i) a quotation from the previous report which states:
"The Committee do not underestimate the difficulties of achieving this common level of commitment".
It is accepted that it will be difficult but those who have already said that they wish to accede have taken that into account. Further down, and perhaps even more important, in paragraph 18 we are told that in 1979 the European Parliament passed a resolution in favour. That parliament was comprised of members drawn from national parliaments. Members of our two Houses were there and took part in that decision, and they said that they wished the Community to accede to the convention. So the United Kingdom Parliament has already expressed a view. That needs to be remembered.
I had intended to mention, as the noble and learned Lord, Lord Archer, mentioned, the comment of Dr. Pipkorn, but I can save the House the trouble of listening to me on that. I should also like to tell your Lordships about the views of the Secretary General of the Council of Europe, Madame Catherine Lalumière, who produced earlier this year, in February, a very interesting report for the Ministers in which she makes it very clear that in her view it would be a good thing if the Community were to accede.
That matter is now being looked at by the Committee of Permanent Representatives, which has decided to refer the question to a working group for further study. A comment was made, I think by my noble friend Lady Elles, that if the Community were to accede it would require unanimity from all the countries who have membership. I might perhaps add that it was only in December 1991 that the Community became a member of the Food and Agriculture Organisation and there was little difficulty in getting unanimity on that point.
Finally, the Secretary General again stresses,
"the legal and political significance of the Community becoming a party to the Convention. This would highlight the central role of the Convention and its supervision machinery in the protection of human rights in Europe, as recognised by the Charter for a new Europe which was adopted at the CSCE Summit in Paris on 19–21 November 1990. The importance of
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the Convention and its role as a point of reference was emphasised in the Declaration on Human Rights adopted by the European Council on 28–29 June 1991".
It all seems very difficult but it is not for this House to solve those difficulties. All noble Lords have to do is assert that no harm can be done to the cause of human rights by saying, "Yes, it is time that the Community acceded to the Convention". If I thought for one moment that we would be infringing anyone's rights, I should have looked for a stronger report against the idea from the sub-committee, but I do not. I do not believe that that is going to happen. Some may say, "Well, it will not do much for human rights". I shall not argue on that point. But as nobody says it will harm them, I believe that we must make some progress instead of being, as I fear we are on this occasion, negative.
Therefore, I go along with what the noble and learned Lord, Lord Archer, said, and I disagree with the report. I hope very much that my noble friend Lady Trumpington will agree that the House and their Lordships do not share the view of the sub-committee. I am sad about the report because, as I said. they are usually superb. However, I believe that this report has gone slightly off beam. I hope too, echoing the words of the noble Lord, Lord Colville, that it will not be long before the House has a report with a Motion that is positive rather than one which merely "takes note".
6.40 p.m.
Lord Hacking: My Lords, two noble Lords have disagreed with the recommendation of the report of the sub-committee of which I was a member under the able chairmanship of the noble Baroness, Lady Elles. I participated in every session of our deliberations on the matter. I was present at every session of the giving of evidence, except when the Commission gave its evidence. Of course, I had the opportunity fully to read that evidence before we wrote our report. At the end of our deliberations I joined with my fellow sub-committee members in endorsing the recommendation that appears in the report.
It is right to record that I was the sub-committee member most attracted to the proposition that the Community should now accede to the European Convention on Human Rights. We considered the matter with the greatest of care. I was conscious of the greater experience of other members. The noble Baroness, Lady Elles, has great experience in the European Parliament and my noble friend Lord Colville of Culross has great experience in human rights issues and in attending important meetings on that subject in Geneva. I hope therefore that I shall accurately construe the deliberations of our committee in telling your Lordships that, in looking at the two main planks of the argument which the Commission presented to the Council, we saw the logic of the argument that the Community should in its own actions—that is, the actions of the Commission, its institutions, and directives—be subject to the human rights convention. It should not, as it were, be above the law on the issue of human rights.
It is also right to record that the sub-committee could see the logic of the Community in taking up every important human rights issue internationally.

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for example, we considered the Haiti response following the denial of human rights in that country after a forcible change of government. We therefore saw the logic of the argument that, in making representations in the international field, the Community should have the mantle of accession to the convention.
We also listened to the powerful arguments presented to us by a number of our witnesses. The argument presented by Mr. Philip Allott, is recorded at the beginning of our report. The quotation that we recorded in paragraph 28 was a direct quotation from Mr. Philip Allott who stated:
"The installing of fundamental rights in a constitutional system is not merely a technical matter or even a routine political matter. In the case of the EC, it goes to the very legitimacy of the EC as a democracy, a democracy containing democracies".
Notwithstanding the powerful argument we came to our decision because politics is the art of the possible and the art of the practical, is it not? Nor do I believe it right that we turn down the symbolism of the European Community acceding to the Commission. As has been said by other noble Lords, on looking at the matter with greater care there is no question of the Community having doubtful credentials in the area of human rights.
Perhaps I may give one other insight into the deliberations of the sub-committee so that your Lordships can see how eventually on balance we came down in favour of our recommendations, as was pointed out by the noble Lord, Lord Finsberg, in paragraph 119. One of the issues that we considered was the advantage of an individual petition to both the Commission and the court. That has been accepted, though it has not been ratified. It is contained in Protocol 9 of the convention. In considering that matter we were aware of, and mentioned in our report, the difficulties of the individual in presenting an application to the European Court in Luxembourg under Article 173. There are severe limitations on the individual presenting a petition under that article.
Of course, we had to look at the court in Strasbourg and at the question of delay. Regrettably we found that the delay was in the region of five to six years. Such a delay is a defiance of the granting of human rights. We greatly welcome the noble and learned Lord, Lord Slynn, to the Chamber and to the chairmanship of our sub-committee. As he said, this is an important subject which we must continue to monitor. That also expresses the view of the sub-committee in reaching its recommendations.
I wish to draw one further matter to the attention of my noble friend the Minister. It concerns the ratification by the United Kingdom of Protocols 4, 6 and 7. One of the matters that we considered was this. If the Community were to accede to the European Convention, what would it be acceding to? Would it be acceding to the original text of the convention and how many of the protocols would it be acceding to? That focused upon the position of the United Kingdom which, with Turkey, is alone in ratifying the convention but not Protocols 4, 6 and 7. Will the Minister indicate the Government's proposals to ratify those protocols? We are rather out of line with
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most member states. If your Lordships later examine Protocols 4, 6 and 7 you will find them largely in accordance with English law.
Protocol 6 relates to the abolition of the death penalty. There are some exceedingly macabre statutes of Parliament dating back to the 14th century and they should have been repealed by Parliament long ago. But the practical position is that we have long since abandoned the death penalty and I am glad to record that.
Your Lordships will know that I am using new language in addressing Members on this side of the House. I should be grateful if I could have an answer from my noble friend the Minister either when she addresses the House or perhaps she will write to me afterwards.
6.48 p.m.
Lord Holme of Cheltenham: My Lords, I must first apologise to the House—I have already apologised to the Minister—because I must leave before the end of the debate. I regret that all the more since the debate has been particularly interesting. On behalf of Members on these Benches I wish to express my gratitude to the sub-committee and to the noble Baroness, Lady Elles, who so ably introduced our deliberations tonight.
From these Benches I speak for a party and as someone who has reached the firm conclusion that we should incorporate the European Convention into UK law. It was good to hear the judicious and elegant maiden speech of the noble and learned Lord, Lord Slynn, and to note that he too has reached that conclusion.
However, having reached that conclusion I do not share the noble and learned Lord's view that the time is not right to incorporate the convention into Community law. I have in that view been affected by the evidence given to the committee, which was generally of extraordinarily high quality. I refer not just to the evidence given by Justice and by Liberty and the characteristically analytical evidence given by Anthony Lester, whose contribution in this area and over many years is so immense, but also to the evidence given by the Commission's own lawyer, Dr. Pipkorn, who said—and this really summarises the position of the Commission—
"It makes the position of the Community in the field of protection of human rights more coherent and fills a gap in the protection of human rights as regards Community legal acts."
One of the reasons that the sub-committee—and I recognise that this is, on balance, a balanced argument —thought that the time was not right to do this was that the Community has, in its own words, "more pressing tasks". I am certain that the Community has many pressing tasks. We read about them in the newspapers every day. We discuss them in this House. But can they really be described as more pressing than anything that would potentially lead to the improvement of the primacy given to human rights in the European Community? In the current political climate in Europe it is surely becoming increasingly difficult to divorce human rights from other areas of Community activity.

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if there were accession it would mean that the European Convention on Human Rights would become directly binding on Community institutions, and this would assist in filling the gap—and I recognise that there is argument about how wide that gap is—in human rights protection that exists in areas which fall under Community competence. Individuals would have recourse under Community law in situations where a Community act can be seen to be in violation of the convention.
The real issue is: what kind of European Community do we want? That of course is not in the end a juridical issue; it is an intensely political issue and one of current controversy. There is disagreement about whether the European union that the Treaty of Rome envisages will eventually be a federal community, a confederal Community, or a looser association of nation states nevertheless striving to find some kind of political unity. On these matters there is legitimate and continuing disagreement. But I very much doubt that any of us would want to have a European Community that did not rest on the inviolability of individual human rights as its fundamental and basic principle, more important than any other pushings and shovings of the political process.
During the Maastricht debate there was discussion of what should be done in the Community and what should be done by the member states. There is no doubt that the competence of the Community over the years has increased—and probably will increase—but I would argue that it ought to be constrained at all times by the primacy of individual rights, so that as the institutions develop greater powers and wider duties and come into conflict with individual rights and freedoms, it is clear where the priority lies.
I suspect—I fear this may be the case—that the sub-committee was slightly over-influenced by the evidence of the Foreign and Commonwealth Office. We know that the Government—and perhaps the noble Baroness will be able to refer to it in her concluding remarks—are conscious of the thin-end-of-the-wedge argument; that any discussion of the European convention is potentially embarrassing for the British Government, which, in my view curiously, refuses to incorporate the convention.
I believe that if the European convention was incorporated into Community law so that the Community could be seen to control its own human rights with integrity, this would lend credibility and moral force—a point made by the noble and learned Lord, Lord Archer—to action that the Community takes on human rights issues beyond its own borders through the use of trade sanctions, or the linking of development aid to human rights records.
I should like for a moment to digress from the tight focus of the sub-committee's report to this question of the external attitudes of the Community. There is a case that has continually been put on the back burner, and that is the dispute in the western Sahara. Morocco has been guilty of many gross abuses of basic human rights involving both its own nationals and Sahara wari people who have been arrested, imprisoned, and
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tortured without trial, and who, in some cases, have disappeared without trace. I am glad to say that requests by Morocco for additional aid from the EC have recently been turned down, and rightly so, on the specific grounds that Morocco is deliberately delaying the UN peace plan for the western Sahara, and indeed that it has recently arrested hundreds more of the Sahara wari people who were peacefully demonstrating. Could Her Majesty's Government confirm that they are also opposed to these continuing Moroccan practices and are prepared to say so in New York and at the United Nations?
Reverting to the sub-committee's report, there is one other point that I should like to raise on what I might call the log-jam argument. The argument is developed quite strongly in the report that there is already something of a log jam in the European Commission and Court, and that that would be further increased. I have no doubt that there is some truth in this. It always strikes me as slightly odd that when people use this as an argument for not incorporating the European convention into Community law that they do not recognise that the logic of it is that we should help in this country to relieve some of that pressure by incorporating the convention into United Kingdom law. It is a strong supporting argument.
One final point that I should like to make is that the events in Germany and in other parts of Europe have highlighted a need for additions to the Community protections of human rights, whether we incorporate the convention or not. We desperately need a prohibition on the grounds of race discrimination to be added to the prohibition of discrimination on the grounds of gender. Events of recent weeks prove this. The parallel need is for governments to send a clear message both to right-wing extremists who are flourishing throughout the Community and to those whom they are persecuting that the permanent legal residents of the Community who are not EC nationals should not be considered second-class citizens. Some 8 million people in the Community continue to be deprived of the rights of free movement which are enjoyed by their EC national colleagues, and continue to be subject to cumbersome impediments to their ability to acquire EC nationality. As long as these obstacles remain no amount of rhetoric about human rights from member states will convince these people that the people and governments of Europe are on their side.
In conclusion, I would say on this issue that it would be a great shame if, yet again on these Community matters, Britain is the laggard and not the leader; that we are elaborately finding reasons for being out of step. The noble Lord, Lord Finsberg, has said that throughout the Community, its institutions and the Council of Europe, many people have thought about this and decided that it is right symbolically and probably right practically. It would be refreshing to see the Government prepared to take the lead in the creation of a citizen's Europe, because a lot of the political problems in Europe are fundamentally due to the fact that people do not believe that Europe is for the people of Europe. If nothing else, the

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incorporation of the convention into Community law would demonstrate that Europe is for people and not just for governments.
6.58 p.m.
Lord Judd: My Lords, one of the great things about this House is the opportunity to learn from its expertise and experience, which are so wisely deployed. I have certainly learnt from this debate today. It was a particular privilege to hear the distinguished maiden speech of the noble and learned Lord, Lord Slynn of Hadley. It generously fulfilled our expectations in its clarity, insight and perspective. His observations on the evolution and enhancement of the role of the European Court of Justice in the realm of human rights cannot be lightly dismissed, and I do not do so. However, I noticed that his conclusions were on balance, and he will therefore at least understand if the balance for some of us comes down in another direction.
I should like to pay tribute to the members of the European Communities Committee for producing such an interesting report on the Community's commitment to human rights, and on the question of whether or not the Community should accede to the Convention. The noble Baroness, Lady Elles, and the noble Lord, Lord Hacking, spoke to it well tonight. The committee has undertaken its work during one of the most significant and dramatic periods in the history of the European Community. This, I believe, has added to their burden, and it is a testimony to their diligence that they have been able to produce such a comprehensive, thought-provoking and balanced report despite the distractions caused by the Maastricht treaty negotiations and the subsequent Danish vote against the treaty, which have thrown the whole ratification process into turmoil.
Notwithstanding these recent difficulties, it has become very clear that many within the European Community have become increasingly concerned with the protection of human rights. This concern is widely regarded as central to the future economic and political development of the Community and, reflecting this, the preamble to the Single European Act specifically refers to respect for human rights.
We must build on this and develop the Community's emphasis on human rights and democracy. I shall argue the same case as I was glad to hear my noble and learned friend Lord Archer argue, together with the noble Lords, Lord Holme and Lord Finsberg, with all his Council of Europe experience. One of the ways to promote the objectives would be for the Community now to accede to the convention and for it to take steps to strengthen the Conference on Security and Co-operation in Europe as regards its human rights regime. That is vital not only to the overall development of existing member states, but also to that of the former Communist states of central and eastern Europe which are currently queueing up eventually to join the European Community.
The Community that they join must be seen to have a meaningful and tangible commitment to human rights and, equally, to be seen to te taking an active
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part in protecting them, not only externally through its aid and co-operation policy but also internally with regard to the individual rights of its citizens. There must be no opportunity for this central priority in the fight to preserve decent society to be perceived or portrayed as part of the hollow rhetoric of armchair conscience.
The current fighting in Bosnia-Herzegovina and its attendant refugee crisis, the incidence of ethnic conflict throughout central and eastern Europe and the grim resurgence of fascism in Western Europe highlight the need for the European Community demonstrably to develop such resolve and for it to take a lead in promoting effective measures to bolster the CSCE. It must be asked whether, if the latter's human rights mechanisms had been stronger, changes in the former Yugoslavia could have been less anarchic and less bloody.
The potential for ethnic conflict throughout central and eastern Europe underlines the need for both the Community and the CSCE to have strong and effective human rights regimes. The economic and political development of the former communist states can be facilitated through the European Community, but these countries must be left in no doubt that membership of the Community will ultimately depend on their commitment to democracy and their record on protecting human rights.
If those standards are not rigorously applied there is a real danger that central and eastern Europe will be plunged into still more dreadful ethnic and nationalist conflict. The incidence of the nightmare of so-called "ethnic cleansing" in the former Yugoslavia and the use of national laws by certain republics of the former Soviet Union to discriminate against ethnic Russians indicates the kind of dangers that can emerge all the more easily in the absence of such criteria unyieldingly applied.
Those countries wishing to join the European Community must meet the required standards of democracy and respect for human rights. They must demonstrate their commitment in those areas and accept that they have obligations to respect the human rights of their citizens, including full rights for minority groups. However, equally, European Community recognition of new states and their international borders should depend on the respect of each of those states for democracy and human rights.
The premature recognition of the republics of the former Yugoslavia illustrates the dangers and consequently the Community must, for example, proceed with the greatest care in relation to the case of the former Yugoslav republic of Macedonia which is currently seeking independence and international recognition. The fulfilment of these prerequisites for international recognition could be better achieved if the European Community as such were to accede to the Convention and if it thereby became still more clear that the European Community endorsed a human rights regime which had to be met before any country was deemed fit and ready to join it.
The member states of the Community are all now party to the convention and it is this key issue of whether the European Community itself should

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accede which was the main question dealt with by the Select Committee. As we have read and learnt, the committee concluded that the Community should not at present accede, and I understand that view is shared by the Government. The report argued that accession would,
"not bring major practical improvements to the protection of the rights of individuals resident in the Community",
and that the technical difficulties involved would far outweigh the advantages.
In view of the outstanding quality of so much of the report, I find this a disappointing conclusion. Given the increasing human rights dimension to the role and work of the Community and its institutions—a development advanced recently by the European Parliament's adoption during April 1989 of the declaration of fundamental rights and freedoms of European citizens—it is a conclusion which I find difficult to accept.
The Government's hostility to accession is, as has been pointed out, out of step—not, of course, an unusual experience these days—with current trends within the Community; trends which indicate growing support for the Community's accession to the convention. Reflecting that, accession has the support of the European Parliament and the European Commission. Perhaps in winding up the Minister will tell us when this matter will next be discussed by the Council of Ministers and what she anticipates the Government's position will be in that discussion. Perhaps she will also give an indication of current thinking within the Council in relation to accession.
The Government's hostility is also at odds with recent events which have witnessed the Community becoming involved in a growing number of areas with human rights implications. European Community law now has a direct applicability to rights guaranteed in the convention in areas such as privacy and data protection, insurance law, access to employment and education, policing and extradition arrangements, the effect of harmonisation on the differing legal status of minorities —for example, gypsies—and the impact on human rights of new technologies; for example, biotechnology and environmental protection. This is by no means a comprehensive list and Community participation has been extended further as a result of the treaty on European union signed at Maastricht. This seeks to bring matters such as freedom of movement, trans-European networks, the regulation of land use, asylum and immigration policies and judicial co-operation in civil and criminal matters within the scope of common European Community action. The treaty provides for there to be respect for the convention, but provides no specific means of ensuring it.
Organisations such as Justice have therefore found it difficult to follow the committee's reasoning that the Community's accession would provide "limited benefits" and that,
"the Community has more pressing tasks".
Surely the Government must consider that it is precisely because these pressing tasks impact on
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human rights that it is important that they are carried out within the framework and subject to the provisions of the convention.
There is a closely related matter; namely, the United Kingdom's refusal to incorporate the convention into United Kingdom law. That is unusual and, as has been argued tonight, it certainly demands separate debate. However, I am sure that the Minister recognises the important relationship between the incorporation of the convention into UK law and the European Community's accession to the convention. It should in that context be noted that the UK's position and that of Ireland and Denmark is increasingly isolated, particularly as the countries of central and eastern Europe now acceding to the convention at the same time automatically incorporate it into their domestic law, even though there are far greater difficulties in aligning domestic law with the convention's provisions. However, one point must be stressed, as has been underlined in the debate: whatever the arguments for incorporation into domestic law, the proposal for the European Community's accession in no way amounts to "back-door incorporation" into the UK as it would affect only the application of Community, not domestic, law.
Accession would give the European Community credence and strengthen its institutions, especially as the Community is increasingly being called upon to act on human rights violations outside its borders. Reflecting that, there are growing links between development aid and recipient countries' human rights records and increased joint action in the former Yugoslavia which may have to be replicated in other countries of the region. The moral authority for the Community's actions in these areas would be much greater if the Community's commitment to human rights extended to the supervision of its own acts. That would strengthen the Community's world role and give it greater authority in its dealings with countries and other institutions, as well as reinforcing its policies in areas such as aid and development.
The accession of the Community to the Convention is also particularly important as the Community heads towards greater levels of integration. Against that background, Justice, the United Kingdom-based human rights organisation, has stressed that any Community moves towards greater integration must be supported by the safeguard of a legal system—which, as we have heard tonight, would have to be properly resourced—based on respect for fundamental human rights. Justice has emphasised that it is vital to ensure that the Community's institutions,
"are not just committed to human rights"
but bound by them as well. This issue will not go away. Sooner rather than later the Community will have to address it.
Admittedly, the Maastricht Treaty allows for citizens of member states to petition the European Parliament and also for the creation of an ombudsman, to whom application could also be made. Justice, however, has warned that,
"welcome as these remedies are, they are not an effective substitute for a binding legal framework",

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which the European Community acceding to the convention could provide.
The treaty does refer to the European Convention on Human Rights as being a body of law which the European union will respect, but it fails to indicate itself how that respect is to be guaranteed. This again accentuates the need for a formal European Community accession to the convention, and it would be illuminating if the Minister could tonight elaborate on how this respect can be effectively and consistently guaranteed without such an accession.
I believe the Community's accession to the convention is desirable because democratic values and the protection of human rights are central to the future development of the Community, particularly since the countries of central and eastern Europe are desperate to join the Community. These countries must be given achievable political and economic targets which will take into account their human rights record as one of the main prerequisites for their membership. In this respect, the Community's accession could play a pivotal role in the membership process and in the overall development of the Community as a whole.
Failure to ensure the development of these countries along democratic lines and to facilitate their emergence as countries which offer full protection for human rights could plunge Europe into a destructive cycle of ethnic and nationalist violence and conflict. There is no room for complacency. The danger signs are there for all to see: indeed, those who recall the pre-Second World War history of Europe tremble at the familiar patterns which are emerging. The Government must consider how they would encourage the development of the Community and its enlargement, in the light of the Government's own hostility to the Community's accession to the convention.
Accession to the convention would enhance the world role of the European Community and reinforce its involvement in the field of protecting human rights. The Community has considerable influence, and it deals with a large number of countries and institutions. Formalising its support for this convention will give it even greater stature and provide it with the means and authority to promote respect for human rights throughout the world. Acceding to the convention is particularly important at the current moment, because the Community is in the process of embarking upon its most ambitious stage of development to date. Endorsement of the convention would therefore give a clear indication of the sort of vision and hopes its leaders have for the future of the Community, and indeed for its domestic and international role.
7.16 p.m.
Baroness Trumpington: My Lords, I start with praise and with a very deep apology. My praise is of course due to the noble and learned Lord, Lord Slynn of Hadley, for steering his superb maiden speech with such authority into port. It is only too obvious how
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greatly his speech has been appreciated by your Lordships. It has been a rare experience to listen to the noble and learned Lord.
My apologies to your Lordships are for the fact that I, and not my noble friend Lady Chalker of Wallasey, am standing here. My noble friend has asked me to say how very disappointed she is to miss this important debate at the last moment. Life, as we know, is a question of timing; and when two equally important events suddenly converge something has to give. My noble friend Lady Chalker is greatly beholden to my noble friend Lady Elles for initiating this debate and of course my noble friend will read your Lordships' speeches with the very greatest interest. In the meantime I can only crave your Lordships' indulgence for my inadequacies.
The Government welcome the key findings of the Select Committee report on the question of Community accession to the European Convention on Human Rights; and also the opportunity to debate the issues involved. The report of the committee provides a detailed and balanced account of these. The Government gave evidence during the hearings, and they have of course given a full response to the report. I should like, however, to restate briefly the position of the Government on Community accession.
The unique feature of the European Convention on Human Rights is this: that it provides individuals who have exhausted the national remedies open to them with a further means to seek redress from their own governments for violations of their human rights. The protection of individual rights is therefore at the very heart of the legal process in Strasbourg. We have approached the proposal for Community accession to the convention with that very much in mind. Our aim has been to determine whether accession would bring any significant benefit to the individual. It is because we consider that it would not, and also because of the considerable technical and legal problems surrounding accession, that we do not support the proposal made by the Commission.
The Commission has claimed that there is a considerable gap —this point was raised by my noble friend Lord Colville—in the protection of individual rights within the Community. We do not consider this to be the case. The United Kingdom was one of the first member states of the Community to ratify the convention, which it did in 1951. As my noble friend Lady Elles has already said, all member states have now signed and ratified the convention and have accepted the individual right of petition. They have accepted the jurisdiction of the court in human rights cases. In addition, there have been considerable improvements in the protection of human rights in the Community. The Court of Justice of the Communities has for some years consistently applied the European convention as interpreted in the case law of the Strasbourg institutions. Article F of the Treaty on European Union will commit the union to respect fundamental rights as guaranteed by the convention, and as they arise from the constitutional traditions common to member states, as general principles of Community law.

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My noble friend Lady Elles has drawn attention to the precise terms of the committee's conclusions about the evidence given to it. The committee said in their report at paragraph 71:
"None of our witnesses was able to point convincingly to a single case where an individual has been denied justice in terms of the Convention on complaining of a Community action."
We are sorry if, in our efforts to be concise in the Government's response, we did not do justice to the precise terms of this finding. We paid tribute then—and I do so again—to the careful and thorough analysis of potential problems which the committee undertook. The findings exhibit a very proper legal caution but, as a non-lawyer, it still seems to me a fair description of the outcome of the investigation that the perceived gap in protection is potential, not actual, and small, not large.
The Government are therefore in agreement with the committee's findings on those essential points. In our response to the committee's report, we highlighted some areas where the view of the committee and of the Government to an extent diverge. I should now like to comment briefly on those points.
On the question whether accession would involve an extension of Community competence, the committee's summary conclusion was that,
"The Community could accede to the ECHR without implications for its internal competence provided that any instrument of accession was accompanied by a suitable statement of interpretation".
As I said in my response, the Government agree that an interpretive statement of that kind would help, but we remain doubtful whether it would be wholly effective in restraining an extension of internal competence in that field. Such statements as to the division of competence are quite rare and the Commission does not propose that any such statement should be made in this instant. Even if one were made, it would be for the Court of Justice, in the last analysis, to decide upon the effects, and we could not predict with any confidence what the outcome might be.
With regard to external competence, the Government and the committee are at one in the view that a consequence of accession would be to make it possible in the future for the Community to become party to other international agreements relating to human rights. The Government continue to believe that such an extension of competence externally, as internally, is unjustified and undesirable. Those are matters which, in accordance with the principle of subsidiarity, should remain primarily for the member states.
It is also our belief that incorporation—a point raised by the noble and learned Lord, Lord Slynn—far from increasing the protection of individual rights in the UK, may actually undermine our constitutional and democratic tradition whereby Parliament has supreme responsibility for enacting and changing our laws. Direct application of its provisions in the UK court would bring British judges into the political arena by forcing them to make decisions regarding the
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interpretation of the convention and effectively giving them the power to strike down laws passed through Parliament.
On incorporation, I should make it clear that we do not envisage any change in policy. Both at a legal and a political level, Community accession to the ECHR might increase pressure on the UK to incorporate the convention into domestic law. If the Community acceded to the convention as a whole, as the Commission proposes, and not simply to those provisions where it has competence, the convention would become binding on member states as a matter of EC law. That might lead to a situation where the convention was applied directly in the UK courts. We would not wish to allow such an important step as incorporation to be brought in by the back door.
Incorporation of the ECHR into domestic law would therefore have more far-reaching implications in the UK than in many other countries with different constitutional arrangements. Proponents of incorporation argue that giving UK citizens the means to seek redress in our domestic courts would benefit the individual. It is by no means certain that that would be the case. The experience of other states which have incorporated the convention into their law suggests that a significant number of cases would still be decided in Strasbourg.
The committee notes in its conclusions that it inclines to the view that the Council have, under Article 235 of the EC Treaty, the power to decide that the Community can accede to the European convention if member states, acting unanimously, decide that that is necessary.
I should like to stress that that conclusion is hypothetical. Member states of the Community have only once discussed the current Commission proposal for accession. Only two member states were fully in favour of Community accession to the convention. That aside, we continue to have doubts as to whether Article 235 of the EC treaty gives the Community adequate vires to accede. The question hinges on whether the promotion of human rights can be regarded as an objective of the Community. It is because we believe that, in a legal sense, it cannot, that we continue to doubt the Commission's assertion that Article 235 provides sufficient grounds for the Community to accede.
My noble friend Lord Hacking asked about Protocols Nos. 4 and 7 dealing with immigration.
Lord Hacking: My Lords, I asked also about No. 6.
Baroness Trumpington: My Lords, I am coming to No. 6. It is a different subject.
The UK has no plans to ratify the protocols. They are broadly drawn and not in conformity with our detailed laws. My noble friend asked also about Protocol 6. Successive governments have taken the view that capital punishment is an issue of conscience which will be decided by a free vote in Parliament. The noble Lord, Lord Judd, said that we were out of step with our Community partners. That was during the Dutch presidency last year. Given that lack of support for a measure requiring unanimity, subsequent presidencies have not scheduled discussion of the

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measure. With regard to the other point raised by the noble Lord—the discussion of EC accession in the Council of Ministers—I shall ask my noble friend to write to him.
I listened carefully to the arguments of my noble friend Lord Finsberg and the noble Lords, Lord Archer and Lord Holme, who indicated their disagreement with the principal conclusions of the committee. However, our position is clear.
First, I should like to record the gratitude of the Government to the Select Committee for its careful and excellent work in compiling this report. But our reservations are shared by the majority of the member states of the Community. Our opposition to Community accession to the European Convention on Human Rights is fully consistent with the Government's firm commitment to uphold and enhance human rights. We continue to work for the widest possible implementation of the established standards of human rights. Nor does our opposition to Community accession detract in any way from our support for the work of the Council of Europe; or our high regard for the European convention and the mechanisms in place for its enforcement.
During our presidency of the Council of Europe, which started this month, we will seek to enhance the convention by bringing forward discussion within the Council of Europe on reform of the procedures which are used in its application. There are important decisions to be taken in that respect. The membership of the Council of Europe is increasing rapidly. The backlog of cases, as most noble Lords commented, and therefore the delay in hearings at Strasbourg, is extremely serious. Reform will bring real improvements in the protection of the human rights of our citizens, in clear contrast to the marginal and symbolic improvements which, at best, Community accession may offer. Finally, a telling point which the Select Committee notes in its conclusions: the Community has more pressing tasks.
7.28 p.m.
Baroness Elles: My Lords, I thank the Minister for replying to our debate, especially at such short notice. We are therefore particularly grateful to her for undertaking that task. I should like to thank also all noble Lords who took part in the debate. Interestingly enough I believe we have a balance of the kind of arguments that we heard in our committee. Those in favour were slightly fewer than those against, which again reflects the committee; otherwise we should not have had that conclusion in our report.
I should like to thank most warmly the noble and learned Lord, Lord Slynn of Hadley, who has brought a new light to the debates of this House. We shall at last have somebody, who will be listened to, with great authority on the effects of European Community law on our national and domestic law. He is warmly welcomed. I hope that our learning curve will go ever up through his presence in this House and his participation in our debates.
At this juncture I do not believe that noble Lords will expect me to go into the details of the debate. There were many pressing points made on all sides. I
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say to my noble friend Lord Finsberg that a certain person was invited from the Council of Europe but did not reply to our invitation to give evidence to our committee. That was covered, but I shall not go into details. I would also like to say how much we all regard the Council of Europe as what I might call the threshold for entry into the European Community as a whole. It plays an important role in instilling the principles of human rights throughout Europe, particularly among new members of the Council of Europe.
I believe that we have all accepted the great importance of respect for human rights. Those who came to that conclusion in the report still hold that if one is going to be seen as respecting human rights one must provide facilities for the redress of grievances where there have been violations of human rights; otherwise, it is a sham and symbolic, serving no practical purpose. Until member states show the political will and the financial intention to improve the circumstances in Strasbourg, I remain firmly committed to the findings of our report.
On Question, Motion agreed to.

Hereditary Peerages Bill [H.L.]
7.31 p.m.
Lord Diamond: My Lords, I beg to move that this Bill be now read a second time. I am very grateful for the great interest shown by your Lordships in the Bill. A number of noble Lords have put down their names to speak. In particular, we are to be honoured by a maiden speech to which I am greatly looking forward. Perhaps I may say to the noble and learned Lord the Lord Chancellor that I consider it a very great courtesy on his part that he should have found it possible to attend our debate and participate in it.
First, I should like to explain what this short, one-clause Bill does; secondly, what it does not do; thirdly, what it might do if the House so desired; and, finally, why it is high time that it was enacted. The Bill provides an option for all those hereditary Peers who do not wish to continue the present practice under which, on their death, an elder daughter will be wholly disregarded in favour of a younger son—not because she is less able or less willing to carry out the duties of a Peer, but simply because she is a woman. All that Peer has to do is to petition Her Majesty who is given power under the Bill to amend the letters patent so that the peerage will in future pass to the eldest child, whether male or female. However, if the hereditary Peer wants the present practice to continue, or at all events to continue for the time being, then he will do nothing and everything will go on as before or until some future holder of the title decides that change should be made.
That is the only alteration in the law which the Bill seeks in its present form. It merely raises the issue of sex discrimination. It does not touch on succession to the Throne, nor on life peerage, nor on property rights.
As to what the Bill might do, if your Lordships so desired, perhaps I may explain that the Long Title has

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been deliberately drawn in order to permit of the widest possible discussion. For example, some of the many Peers who have approached me have expressed an anxiety about disappointing long-held expectations. They recognise the great injustice being done to the eldest daughter but are anxious not to create a new injustice by preventing the title passing, for example, to a brother, who has long been regarded as the heir. I understand that anxiety although it should not be overstated; for irrespective of this Bill, the late arrival of a son will always upset such expectations.
The simple answer is that a hereditary Peer need do nothing. His heir could let it be known that, on his succession to the title, he would be making the change envisaged by the Bill, thus avoiding the build-up of fresh expectations. But if a Peer feels that even the decision to do nothing might cause him some domestic embarrassment, and that he would therefore prefer not to have any freedom of choice, then he could put forward a new clause for discussion at Committee stage. The new clause might provide that where the option to make the change had not been exercised, then, automatically after the next succession, the title would in every case descend to the eldest child whether male or female. The net effect of all this would be that those hereditary Peers who wished to make the change during their lifetime could do so. In all other circumstances the change would necessarily apply to their heir's heir.
I would hope that all such matters could be discussed at Committee stage in the expectation of reaching a consensus as to the best way forward. Of course, if the amendment on the Order Paper were carried (an unusual proceeding in your Lordships' House) there would be no opportunity for any such discussion. It is clear that anyone who exercised his undoubted right to vote against the Second Reading of the Bill would be denying the opportunity of his fellow Peers to put forward their ideas in the form of amendments for discussion at Committee stage. I should have thought that noble Lords might prefer to see how the Bill finally emerged and, if still opposed to it, vote against it then.
Before putting forward the reasons for enacting this short Bill perhaps I may define my terms. I am told that Peeresses are the wives of Peers and that the correct description of the female holder of a peerage is quite simply "a woman Peer". I propose to do as I am told, even though Mr. Gladstone referred to them as "Peeresses" when he said that women in the Upper House would,
"be disastrous: the majority of Peers would die of shock and the Peeresses would die of boredom".
Clearly, women are playing an ever-increasing role both outside and inside Parliament. No one would dispute the immense ability of women Prime Ministers both here and in other countries or the increasing contribution made by women in public life, industry, the arts and in the professions. More women than men are now entering universities: more women than men are qualifying as solicitors. We should remember that when we speak of women we are referring to the majority of the population and, incidentally, nearly
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half the workforce. Within Parliament we have a Madam Speaker; we had a woman Prime Minister; a woman Leader in the Lords; women party leaders; women Ministers of the Crown—the list is endless. In your Lordships' House the statistics show that women on average attend not merely more than men, but twice as much. The case I am putting forward is quite overwhelming.
We really can no longer justify a situation in which 97.5 per cent. of hereditary Peers are male and a mere 2.5 per cent. female. Why then do we continue this hugely discriminatory practice which had its origins in the days when a baron's duty was to lead a large body of armed men to aid his Monarch whenever the need arose, he himself no doubt arrayed in shining armour? It is certainly not because the House approves of sex discrimination. We have played a full part in passing anti-discriminatory laws. Nor can one point a finger at a government who themselves introduced the legislation and signed the international convention on the elimination of all forms of discrimination against women, in company with nearly 100 other nations.
The Prime Minister himself launched Opportunity 2000 saying,
"I want to see all women having the same opportunities as men".
The Government have made their views clear in this place on many occasions. For example, as Leader of the House, the noble Lord, Lord Waddington, in December 1990 when replying to an intervention from me, said that,
"it is part of the Government's programme to see that there is real equality of opportunity".—[0fficial Report, 13/12/90; col. 579.]
As recently as 26th February this year, the noble Baroness, Lady Denton of Wakefield, when replying to a debate on opportunities for women, said:
"On this side of the House"—
which phrase includes the Conservative Party as well as the Government—
"we believe in, and have worked for, a world that is as open to women as it is to men".—[Official Report, 26/2/92; col. 308.]
The phrase,
"as open to women as it is to men"
is a fine phrase to which I humbly subscribe.
So, I cannot understand why we have accepted this sex discrimination in our own affairs for so long. I suppose that it has been partly a determination to keep a tradition alive long after its cause had died, and partly because for so long this place was a very agreeable men's club and, as with other men's clubs, the members were averse to change. As we all know, it was not until 1958 that women were admitted at all, and it was not until 1963—less than 30 years ago—that women Peers in their own right were allowed a voice in our affairs. For 40 years they had successfully been kept out of the Chamber by reliance on the familiar argument that one should wait for an overall reform of the Lords rather than deal with one aspect only. The best has ever been the enemy of the good, and I trust that no one will try to resurrect that argument against this Bill.

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To summarise the position, I cannot do better than quote the late Lord St. Davids in February 1987 during Question Time when I raised this very issue. He said that,
"in view of the mistake made by my 11th great-grandfather 500 years ago in changing the system from heirs general to heirs male, and in view of the very different ideas of today, is his act not an excellent precedent for putting the matter right now and allowing the ladies to have what they should have?" —[Official Report, 5/2/87; col. 327.]
That is all that I seek.
Noble Lords have been very patient while I have argued against the negative aspect of sex discrimination. If they are willing to consider the positive side and, by opening more doors to women, to share in enriching life in the whole of our society and in widening the experience and the understanding of the membership of this House, they will give this Bill a Second Reading. I commend it to the House.
Moved, That the Bill be now read a second time. —(Lord Diamond.)
7.44 p.m.
Lord Denham Lord Denham rose to move, as an amendment to the Motion that the Bill be now read a second time, to leave out ("now") and at the end to insert ("this day six months").
The noble Lord said: My Lords, in moving this amendment I must declare an interest, in that I am the present holder of an hereditary peerage and have four children, a daughter and three sons born in that order. Perhaps I should also declare a more personal interest, in that I also have an elder sister and, had the noble Lord, Lord Diamond, carried his Bill some 45 years ago, I myself might never have reached this House at all.
I think that I also owe the noble Lord, Lord Diamond, an apology. He is making a sincere attempt to revitalise hereditary peerages and in some cases save them from extinction and it seems, to say the least, ungrateful that it should be an hereditary Peer who is opposing him in this.
But the real objection to this Bill is that in seeking to remedy, or make it possible to remedy, what the noble Lord sees as injustice (the eldest child if a girl being unable to inherit her father's peerage), he is doing so at the expense of imposing what I believe to be a far greater injustice—depriving the present heir male of a right that, perhaps even from birth, he has had every reason to expect.
It does not stop there. The Bill would enable one holder of a peerage, in perhaps a long line of such holders, to decide that the succession should at that particular point go down one particular female line, for example, his daughter, possibly at the expense of a son or, if he himself has no children, his younger sister at the expense of their mutual younger brother. But what if the Peer also had an elder sister who had already been by-passed because this Bill had not then been in operation, why not her? Why not his father's elder sister, why not his grandfather's elder sister and their respective lines?
But is the noble Lord absolutely certain that his Bill, as at present drafted, does not take account of them? It operates by amending retrospectively the
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original letters patent, which may date from decades, even centuries ago, and it is far from certain as to what the effect of this would be. It would be an ironic Gilbertian twist if the noble Earl, Lord Blankshire, who was the undoubted holder of that title at the time that he petitioned Her Majesty, were to find that he has thereby disfranchised for all time not only his son but his daughter too and even himself and that it is now his great-aunt Jemima who has instantly replaced him as countess in her own right.
But supposing the Bill were to have the effect that the noble Lord, Lord Diamond, intends, there are still to my mind overwhelming objections. One of the privileges conferred on the original recipient of an hereditary peerage by the sovereign of the day is the satisfaction of knowing that future heads of his family, or of his branch of the family, will in perpetuity hold the title that he has earned. This Bill would enable any of his descendants to take that away from him because, with the marriage of the daughter who succeeds to it, the title would pass out of the family that bears his name.
There could, on occasion, be an element of spite. The existing holder of a peerage may invoke this Bill not so much because he thinks that his daughter should succeed him as because, perhaps unjustly, he disapproves of, or has quarrelled with, his son or other heir male.
There may be undue influence. Many elderly widowers are, in the nature of things, cared for far more often by a daughter than by a son, and this has been known to have an effect on the bequeathing of money or property. But if undue influence is suspected, leading to the changing of a will, it can be challenged in the courts and I would ask my noble and learned friend who sits on the Woolsack: in similar circumstances, could the courts be brought into it in this case?
There may, however, be cases in which there has in fact been no undue influence by the daughter; the present Peer having made up his own mind to invoke the provisions of the Bill for highly respectable reasons, but where the heir male may mistakenly suspect otherwise—and there is no end to the family rows and heartache to which this may lead.
A Peer who has no sons of his own would be more than likely to invoke this Bill in favour of his daughter at the expense of his sometimes far more distant heir male. But is it right or fair that he, who must be prejudiced in favour of his own child, should be the one to make the decision in such a case?
But what worries me perhaps more than anything else is that the existing Peer himself may be put in a quite intolerable position, often at a time when his own death is imminent. Should he deny his daughter something that by Act of Parliament he is now specifically enabled to pass on to her, or should he deprive his son, his younger brother or his nephew of something that he himself in his heart of hearts believes should still be theirs by right? That is a decision that I personally believe I should not be called upon to make. I beg to move.
Moved, as an amendment to the Motion that the Bill be now read a second time, to leave out ("now") and at the end to insert ("this day six months").—(Lord Denham.)
7.50 p.m
Lord Strabolgi: My Lords, I am sure that we are all grateful to the noble Lord, Lord Diamond, for introducing this Bill to amend the law relating to hereditary peerages. I think there is certainly room for legislation to enable women to succeed to future peerages by letters patent, and to broaden this section of our peerage law.
I had the privilege of becoming a Member of your Lordships' House when it was an all-male and all-hereditary assembly. I have therefore seen many changes, all of them for the better. I am well aware of the great contribution that the women Peers—both the life Peers and the women Peers by succession—have made, and continue to make, to our debates and committees, since the 1958 and 1963 Acts. I yield to no one therefore in my admiration for the role of women in our public life. Indeed, I should like to see a much wider Bill than the present one, as I shall explain.
This Bill, for example, does not deal with baronies by writ, but only with peerages by letters patent. Baronies by writ, which are mostly those dating from mediaeval times, already allow a daughter to succeed when there is no son. But if there is more than one daughter, the peerage falls into abeyance between them, for the reason that all are deemed to be co-heiresses with an equal claim. The peerage remains in abeyance unless a petition is made to the Sovereign for its termination in favour of one or other of the co-heiresses, or a descendant of the remaining line. Such petitions are usually referred to the Select Committee for Privileges by the Crown, after advice from the Attorney-General.
The Committee for Privileges of your Lordships' House, of which I have the honour to be a member, has the task of establishing the facts of the case. If the facts are established by the committee, and accepted by the House, the matter goes to the Sovereign. The decision whether to terminate the abeyance, or not to terminate it, and in favour of which co-heir, lies at Her Majesty's discretion. Such petitions take time, and can result in considerable expense.
There is, I suggest, a strong case for our peerage law to be changed, to allow the eldest daughter to succeed automatically, and of right, when there is no son, to all baronies by writ. This is already the case with some of the older peerages of Scotland, and indeed there are Scottish Ladies, who have succeeded in this way, sitting in the House. I should perhaps declare an interest here, as I am the holder of a barony by writ which fell into abeyance between daughters and which was in abeyance for a very long time between co-heirs until it was terminated in favour of my grandfather, after a lengthy peerage case at the beginning of this century.
Letters patent can make special provision already for a daughter to succeed. This happened with the Mountbatten and Portal peerages, where in each case
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neither of those distinguished war heroes had a male heir. If hereditary peerages continue to be created in future, this is surely a provision that could also be adopted.
I regret that the Bill before us makes no attempt to make such changes to our peerage law. Where the Bill does not go far enough therefore in one direction, it goes too far in another! I think that Clause 1, allowing the son to be passed over, if he is not the eldest child, will give rise to many problems within the family, as the noble Lord, Lord Denham, said. There is the question of retrospection, for example. At what point is this switch to be made? It could happen that an elderly Peer towards the end of his life decides—perhaps he has been got at—that he prefers his daughter to succeed him rather than her younger brother. The male heir might be the bearer of a courtesy title, by which he has been known from an early age. Now he could be told that he and his children are to be passed over in favour of his sister, at the whim of his father. I can envisage many disputes, opportunities for family intrigue and much bitterness once we embark on such a course.
The Bill would give too much power to the holder of the title. Why should he have the right to decide —and to petition the Sovereign—who is to succeed him? A hereditary peerage is not the sole possession of the holder to do what he likes with; it belongs to the whole family, even distant relatives, and to all heirs, including heirs as yet unborn!
I remember that when the Bill that became the Peerage Act 1963 allowing a Peer to relinquish his peerage, and to put it into abeyance for his lifetime, was being considered in Committee in both Houses of Parliament, amendments were proposed to allow the Peer to put the title into extinction for all time. It was argued against this proposal that no Peer had the right to deny his title to his heirs, which he might well want to do for malicious reasons, to spite his heir, or if he did not believe in hereditary peerages any way! The House took the view that a hereditary peerage was not the sole property of the holder, and the amendments were defeated by large majorities in both Houses.
As I have tried to outline, I think that there are ways by which peerage law could be amended to take account of modern requirements; but I submit, with respect, that the present Bill is not the right way to do it. The Bill is well meaning, but it would result in many problems and anomalies. If it comes to a vote, I shall support the amendment of the noble Lord, Lord Denham.
7.57 p.m.
The Viscount of Falkland: My Lords, I joined these Benches some eight years ago. It seems like only yesterday. At that time the noble Lord, Lord Diamond, was my chief. Those were the heady days when the Social Democrats and the Liberals formed an alliance which held a quite considerable percentage of the votes. I have a healthy respect both for the noble Lord's sincerity —I absolutely take the Bill as he proposed it at face value—and for his remarks on

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television last night explaining that he sees discrimination. I respect that view but I regret that I cannot support the Bill as he has presented it to your Lordships today.
I thought until last night that I had well rehearsed my arguments. My wife seemed satisfied with those arguments until she heard the noble Baroness, Lady Mallalieu. She then said, "I'm sorry, I agree with what Lady Mallalieu says". The noble Baroness supports the noble Lord entirely. I lost that one but I hope that I shall do better this evening.
I accept that it is necessary for more women to be given the chance to be heard in your Lordships' House. However, as the holder of a hereditary peerage, albeit a slightly odd one in that I think mine is the only English family that has a Scottish peerage, I am a little concerned about the Bill. Indeed, the first holder of my title was certainly the first Scottish Peer to sit in the House of Commons. He then quickly became naturalised as a Scotsman some four years later. Whether the English wanted to get rid of him entirely or whether there were other reasons, I do not know. My peerage is by letters patent and, unlike other Scottish peerages, does not go down through heirs general but through the male line like English peerages.
I feel no particular status in being a Peer. I feel it a great privilege to be in your Lordships' House and I know that other hereditary Peers think likewise. In a way I feel somewhat like the tenant rather than the freeholder. I believe that I am holding for the time being—I hope that it will be for a little time to come this right so that eventually my heirs—in this case one of my sons—will be able to follow me in that privilege.
What worries me about the proposal of the noble Lord, Lord Diamond, can be found in its first five words. That has already been eloquently said, but perhaps I may add to it. To allow the holder of a peerage to petition opens up all kinds of undesirable possibilities. One must be realistic about hereditary Peers. In the 17th century I had an ancestor whose abilities and general character were eulogised extravagantly after his death. Within 150 years I had another ancestor of whom it was written in a well-known publication:
"To be the bully of a brothel, the hector of a tavern or the keeper of a faro table is the highest pitch to which the ambition of this noble Peer soars".
The later ancestor, being a Scottish Peer, had to be elected to come to your Lordships' House as one of the 16 elected Peers. He would probably never have got near the ballot box. He did not sit as a representative Peer. If he had lost all his money at the faro table and had a daughter married to an ambitious man, and, for whatever reasons, would have liked his daughter to succeed to the title for his own purposes —perhaps commercial or social—it would have been only too easy for him to have been pressured to make a change for a financial consideration.
I agree with other noble Lords that it is putting too much of a responsibility upon the holder of a title for him to have to decide to make that change. With hereditary Peers —this may not be the same for life Peers, who may not feel the same as hereditary Peers
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—there is a unique link between the family name and the title. I shall not explain the mechanics of it, but it is clear that if there is a change to the female line the distance between the title and the family name will become ever greater. On future creations, I am with the noble Lord. What he suggests is desirable.
I do not know how we shall reach the position the noble Baroness, Lady Mallalieu, sketched for us on television, of having young women in the House, something of which I am greatly in favour. Even with the suggested changes, I do not see how we would have young and attractive women in the House, perhaps on the Government Front Bench, but perhaps she will be able to explain that when she speaks.
There is a desire for equality these days, as we all realise. I do not see that there is discrimination within the peerage. When the arrangement was made—this does not usually cover peerages by writ but only peerages by letters patent—it was between the monarch and he who was to be honoured. To a great extent, the letters patent were tailored to the particular needs of that period. To interfere with that arrangement, and to say that by its very nature the peerage is discriminatory, is not being realistic. The duties which attached to the peerage in the early days were onerous by virtue of the travel and other matters which brought the holder to Parliament to answer his writ of summons.
I am one with the noble Lord on discrimination. Ideally, I should like to see equal numbers of women and men in your Lordships' House. That may be difficult to achieve, even over a period of time in the way that he proposes. The House of Lords has been under steady pressure to eliminate its hereditary element for many years. We do a good job with the hereditary element included. We do it impartially, quietly and efficiently, although our role is that of a revising Chamber only. But a revising Chamber requires the independence which comes largely from the hereditary element. I find difficult to see how that could be replaced were the hereditary element to be eliminated.
Perhaps I may indulge myself by suggesting a way, dealing with the hereditary element in the House should the prospect of abolishing it get close. I shall also deal with the question of women. We might well follow the procedure which used to prevail in the case of Scottish Peers. Hereditary Peers might be able to vote among themselves for a number—100 or 200 or whatever—to sit and vote in the House provided that they did not take the party Whip and sat as independents. They could of course take the party Whip and perform the functions which hereditary Peers do so well on the Government Front Bench, but without being able to vote.
In the event of there being Peers who were unsuitable for election, females in the family might be able to make themselves available and qualified for election, with the aim of bringing half of that 200, let us say, as women into the House. That is a suggestion for consideration should the abolition of the hereditary element become a reality. In the meantime, we are here. Our families are—to use the words of the noble Lord, Lord Denham, in his eloquent speech—

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without any particular domestic embarrassments over the succession. I have never sensed in my family that my daughters look upon my son with anything but family affection. I hope that that continues. If the Bill became law and I was able to petition, I would not do so. Nor do I believe that my son would do so. If it becomes law, I hope that the scenario that I have described of the wrong people succeeding to the peerage for the wrong reasons will not occur to cause much more than domestic embarrassment. There may be domestic strife and worse.
8.8 p.m.
The Duke of Norfolk: My Lords, perhaps I may start by saying that I consider it an honour and privilege to be a hereditary Peer in your Lordships' House. I also declare, so to speak, several interests. I happen to be a Duke of Norfolk. That title has switched sideways three times for lack of male heirs. If that had not happened your Lordships might have had my noble friend Lord Mowbray and Stourton as the Duke of Norfolk which would possibly be better.
I am not talking about the various impeachments and beheadings that we have had in the dukedom. We have had many interruptions since 1483. I have several other peerages behind me including a barony by writ. I first sat in your Lordships' House as Lord Beaumont, through my mother, when I was senior to my father Lord Howard of Glossop. I hold that barony too.
Perhaps I may now turn to the Bill. The noble Lord, Lord Diamond, wishes to see more women in the House; he has a good point and I suggest that the method of achieving that is to have more women elected as life Peers. I am not short of women Peers; I am happily sandwiched between two at the moment. I am sure that making them life Peers is the quickest and simplest way of getting more women Peers.
However, the complicated suggestion of the noble Lord, Lord Diamond, in the Bill is to my mind totally wrong. It would be changing the original intention of the reigning monarch who created the peerage by letters patent. When the monarch created the peerage of, say, the dukedom of Norfolk, or Lord Maltravers, or something, it was that monarch's intention that it would descend by the male line. Who are we to change that now centuries later? It is interfering with history and I do not like it. History has guided us well. We should respect it in our humble little world of hereditary peerages.
I doubt whether the noble Lord, Lord Diamond, has thought out the consequences of his Bill. At the moment, the Norfolk dukedom will descend to my eldest son or, if he is killed, to my second son, or a nephew. Thank heavens, we Howards are not an extinct species at the moment. Does the noble Lord, Lord Diamond, really intend me to avail myself of the privilege and the opportunity to petition Her Majesty to enable one of my other peerages such as Arundel or Surrey to descend to my eldest daughter, letting the dukedom go to my eldest son? It becomes complicated when we multiply the peerages that are held. Most hereditary Peers hold one, two, three or even four
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peerages. I believe that I hold 16. Am I to release those to my eldest daughter? I do not think that the noble Lord, Lord Diamond, has thought about that at all.
I am glad that he has not included baronies by writ. As we all know, a barony by writ is roughly what the monarchy has. A barony by writ goes to the son, if he is there, or the next son. If there is no son, it then goes to the eldest daughter or the monarchy decides to which daughter it should go. I am glad that the noble Lord has not included that. The subject would be endless. But the system of baronies works happily; it goes through daughters.
If the Bill makes progress, I think that it will need an immense amount of amendment. The noble Lord, Lord Diamond, has not thought about it deeply. I shall have no hesitation in voting for the amendment of the noble Lord, Lord Denham.
8.13 p.m.
The Earl of Strafford: My Lords, it is a great privilege to address this House, even if it has taken me eight years to rise to the occasion. In fact, the only reason I am standing here is that my great-uncle only had two daughters and we have the law of primogeniture. If this Bill had been on the statute book, the title would have passed in direct line from his eldest daughter to his grandson which would, I believe, have been the best thing to have happened.
The result of primogeniture has been that in our family the title and the family house and estate have become permanently separated, which for me is a cause for great regret. I sometimes feel that an hereditary Peer without his estate is like a mediaeval knight without his horse—both are slightly spare. Clearly, however, how the existing law has affected one particular family is pretty insignificant. What is of importance is how it has affected the composition of this House. That is important because of the changes in our society.
This century has been a period of unprecedented social change, greatly accelerated by two world wars. Nothing has altered more than the status of women. Their position has been transformed. To see all this in perspective, it is worth glancing back at the Great Britain of 1900. The country was then run by men; they dominated every aspect of society. Women had a very important role as wives and mothers, based on their homes, but often not much else. Even there, the man was head of the house and held the purse strings and because few women had any proper education they were not in a position to argue. The conventional wisdom was that outside this domestic role, women were non-starters.
This century has seen the overturning of that conventional wisdom. Major landmarks have been women getting the vote in 1918 followed by the great expansion of higher education. As has been mentioned, more than 50 per cent. of those in higher education now are women. That had a crucial effect. It gave women the tools and the motivation to challenge the domination of men.
If added to that is the idea of choice for the individual so that women can not only choose to be at home but also to have a full-time career, together with

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the concept of equality of opportunity, which has been mentioned, it is not surprising that all the traditional male bastions have crumbled and been infiltrated by women.
I believe that in voting for the Bill we place ourselves firmly on the side of the angels. It is well worth remembering that they make up half the population.
8.17 p.m.
Baroness Platt of Writtle: My Lords, it is my great pleasure to congratulate the noble Earl, Lord Strafford, on his maiden speech today. We are honoured that it has happened in this debate. It is a particular pleasure for me to congratulate someone who shares my alma mater on the shores of the Cam, an excellent preparation for life in this House. I hope that we shall hear the noble Earl on many occasions in the future and not have to wait another eight years before we hear him again.
This House is steeped in tradition going down through the centuries, hallowed by time. It is therefore difficult for a Bill such as the one before us today to obtain universal approval. There are those who wish to abolish the hereditary system and those who wish to go all the way to inheritance of peerages by the eldest child, irrespective of sex. Then there are those who cling tenaciously to the male line.
I should like eventually to see inheritance by the eldest child, but feel that it must take some time before it could be enacted. There are too many justifiable expectations at present of heirs groomed from birth to inherit. Also, this is a simple Bill and in order to make good law it will almost certainly need amendment, as the noble Lord, Lord Diamond, accepted. Nevertheless, the spirit of the Bill is a good one and it is a step on the road in the right direction. I shall vote for it, in the hope that the principle will then be found worthy of further serious consideration by the Government. I welcome the expression of the noble Lord, Lord Diamond, in favour of justice for women, which I shall not repeat.
I came into your Lordships' House over 10 years ago as a life Peer with a great deal to learn. I am still learning. A noble Lord once said to me, "Always listen carefully to other noble Lords' speeches, however boring they sound and you will learn a great deal". I have found that very true and of course there have been many excellent and interesting speeches from which to learn. I have certainly never been in danger of dying from boredom.
Life Peers have spent their lives in specialised fields, and that experience in depth is of very great value to the House both during the passage of Bills and in its specialist committees. However, it means that life Peers are nearly always created during the latter half of their lives when their hair, like mine, is grey. The House needs young people and the contribution of our young male hereditary Peers is therefore to me of great value, as they represent a different viewpoint which is very necessary during the passage of Bills. They look forward to the future, which will be very different from what we older Peers have experienced in the past. We need that perspective. Their parents have prepared
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them well for inheritance and have educated them to exceptional responsibility when they grow older. Sometimes by the accident of fate that responsibility falls on their shoulders earlier than expected and they serve our House well.
I feel that we need young women of the same calibre, and where a Peer has only daughters—that does happen—it would be excellent if early on in their lives he could designate the eldest daughter as his heir. She would then be educated and prepared for responsibility from an early age. I am sure she would be just as valuable a Member of this House as her cousin or more remote kinsman. It would also mean that the peerage was inherited in the direct line within the family, which seems to me to be far more desirable than that it passes to a remote descendant who may have had no preparation for that inheritance. That is why I like the idea of option that is central to this Bill.
It is important that Peers should not be able to exercise the option capriciously. It needs to be thought out carefully years before the inheritance is likely to happen so that the whole family know where they stand. It could also of course enable a father to make that kind of petition in favour of his eldest daughter where there is only an educationally sub-normal son, or one with some other major unfortunate characteristic making him unsuitable for inheritance, or indeed in the tragic case where the only son dies before his father, and of course in the special case where it is likely that otherwise a peerage might become extinct. The Peer himself, of course, cannot decide this matter —only the Queen can do that. I am sure that Her Majesty would take many considerations into account, and particularly the reasonableness of the request.
The Scots have always been far more enlightened in this matter than we have in England. We benefit very much from Scottish women hereditary Peers and would miss them deeply if they were not here. Hereditary peerages are seldom created these days but I hope, as other noble Lords have said, that any new peerages could be created to allow the eldest child to inherit. That would lead the way to progress in the future. I am heartened that the Prime Minister has stated his firm intention that there should be more women in public life. The spirit of this Bill echoes that wish.
I should also like to make reference to the inheritance of the Crown in our country. We have been fortunate in having great Queens such as Elizabeth I, Victoria and now Elizabeth II. Her Majesty's magnificent lifelong devoted service to her country is a shining example of how fortunate our country is in that the Crown can be inherited within the female line. I believe that would also be the case if this Bill were to pass and women were able to inherit peerages.
I shall support this Bill and not the amendment, as I hope will many other noble Lords, accepting that it may need amendment as it passes through its various stages. The spirit of the Bill to allow the option of the father to settle who is his most suitable heir is a reasonable one in the kind of situations I have mentioned. He cannot decide on his own and that is

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right. He must then petition the Queen and I would suggest that Her Majesty's decision might be assisted by a recommendation from either the Privy Council or the Committee of Privileges on the basis of carefully drafted regulations and on the merits of the case. That would ensure that it would not either be entered into or allowed lightly and, once determined, would produce a stable expectation within the family. I believe it would constitute a step on the road towards justice for women and also be of benefit to your Lordships' House.
8.25 p.m.
Lord Jauncey of Tullichettle: My Lords, I first join with the noble Baroness who has just spoken in congratulating the noble Earl on his maiden speech. I hope very much that we shall hear him speak again and much sooner than eight years. The general concept of altering the destination of a peerage will not be alien to those Members of your Lordships' House who hold Scottish peerages, nor indeed to a Scottish lawyer such as myself. Scottish peerages were always given on much more flexible and broader grants than were English peerages. I use the word "always" but that is perhaps an overstatement. That was generally the case.
It may interest your Lordships to know that the late Sir Iain Moncreiffe, Albany Herald, and a notable genealogical and heraldic lawyer, analysed the pre-Union Scots peerages. He found that out of some 362, 110 were granted on special destinations, 93 admitted descent to females, 86 were to heirs male whomsoever, 73 only were to heirs male of the body, of whom 14 were Royal cadets, 12 were brothers of existing Peers, seven were generals and eight were Englishmen. Noble Lords will appreciate that far from a mandatory male descent, that was the exception rather than the rule.
The flexibility in Scottish peerages related not only to the original grant but also to the ability of a Peer to resign his peerage and obtain from the Sovereign a regrant. I shall give an example of a special destination. In the case of the barony of Ruthven of Freeland, which is now held by the noble Earl, Lord Carlisle, the destination was to the son of the grantee and that son's heirs of tailian provision. The effect being that the son could determine who his heirs were going to be.
I do not seek at this stage of the Bill either to support or oppose the concept of the Bill, but it seems to me that there are certain serious difficulties in the Bill as it is presently drafted. I shall divide my brief remarks into two parts. First, I shall deal with the immediate effect of Clause 1. As the noble Lord, Lord Strabolgi, has already pointed out, it does not apply to baronies by writ. Perhaps in this context I should mention that certainly in Scotland a destination to heirs general would not admit to the succession the eldest daughter of a Peer where there was in life a younger son. The son would be considered to be the heir.
It is not absolutely clear from the Bill whether that would apply to a Scottish charter of peerage, certainly
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not to charters which were lost such as the Ruthven of Freeland peerage was. It would—as the noble Duke, the Duke of Norfolk, has mentioned—or could lead to a proliferation of peerages; that is to say, a Peer petitioning to have one of the peerages he held descend to an elder daughter. Whether that is a good thing or a bad thing is for your Lordships to decide. I merely point that out as a possible result. Perhaps a more difficult concept is the use of the words "eldest child". If that child died during the petitioner's lifetime that would be the end of the matter. It would obviously have to be a surviving child.
That is not a quibble, because as I understand it, up to now, certainly in Scotland and I suspect in England, peerages have been destined to heirs. Every man and every woman who has any descendants of the blood has an heir, but the heir can only be ascertained at one's death. An heir can sometimes be ascertained for succession purposes under a will at a later date, but one cannot ascertain an heir before death. But an eldest child is ascertained as soon as it is born. It by no means follows that an eldest child will survive its parent. That is a further difficulty in the matter.
The noble Lord, Lord Denham, has already pointed out the problem of an elder son using a courtesy title, perhaps for many years, suddenly finding himself demoted in favour of his sister.
The Bill provides no guidance as to what criterion is to be followed in giving advice to Her Majesty. Presumably on a petition Her Majesty would seek the advice of Ministers. By what criteria are they to decide what advice should be given?
It may be that these matters could all be cured by extensive amendment and rewriting of the Bill. However, what concerns me particularly is the subsequent effect of the Bill. As I have already said, in Scotland there were three principal ways in which the devolution of a peerage could be altered. The first was by a resignation in favorem in which the Peer resigned his peerage into the hands of the sovereign and sought a re-grant on a new line of heirs which he nominated. If the resignation was not accepted by the sovereign the existing devolution continued. The circumstances in which a re-grant was usually confirmed by the sovereign were: there was an unsuitable heir—perhaps an idiot son or a traitor son; to prevent the conjunction of two peerages in one person; or to prevent an existing peerage dying out.
Another method was the same resignation but with a re-grant enabling the resigner or a named son to resettle the peerage in accordance with an entail—a tailzie. That was usually done in connection with the devolution of land. The third method was the confirmation of an entail made by the settling Peer.
Perhaps I may give just one example as I do not want to weary your Lordships' with a number of examples. In the case of Loudon, where the line was about to die out, the Peer obtained a resettlement on John Campbell, who was to marry his granddaughter. That was one method of keeping the peerage going, to use a colloquialism, after his death as it would otherwise have died out. There are other examples —Lord Sempill and the Earl of Erroll.

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The problem with the Bill is that it lacks any indication as to what is to happen after the death of the eldest daughter. One could illustrate the problem by giving an example. The Bill simply says that the peerage should be permitted to descend to the eldest child of the body. That presumably means the eldest child of the body of the petitioner. Let us assume the grant of a peerage made in 1806 with a destination to heirs male of the body. It is reasonable to assume that in 1992 there would be a number of male descendants of the original grantee descended through the male line and who would therefore be eligible to take the peerage as heirs male of the body.
The present Peer—let us call him Lord X—has two children—an elder daughter, Mary, and a younger son, John. When Mary survives Lord X what happens on her death? Does the peerage go to heirs male of her body? Does it go to her eldest surviving child and its surviving child, and so on? As I have said, the destination to eldest children is quite unknown in the law of Scotland and, I suspect, probably in the law of England. Does it go to the heir male of the body of the original grantee—in other words, back into the order of succession—in which case the only person cut out would be Mary's brother John? Or does it go to the heir male of the body of Lord X? Again, that would cut out all collaterals of Lord X descended through males from the original grantee. If it were to go to Mary's eldest surviving child then serious problems could arise. The result could be that one of Mary's descendants, an eldest child, died, leaving other descendants of Mary descended through a younger child of Mary. What is intended should happen here? Are there to be destinations over, or is the whole peerage simply to die out?
It seems to me that very complicated matters of devolution are involved, certainly in Scotland, and I suspect in relation to earlier English peerages. I respectfully submit that the matters involved are far too complex to be dealt with in a single clause Bill. Complete rewriting would be the only possibility. If there is to be a Bill of this type I submit that it must be very carefully drawn and all possible contingencies catered for. This Bill does not do so. For that reason I support the amendment of the noble Lord, Lord Denham.
8.37 p.m.
The Earl of Shrewsbury: My Lords, first, I join with other noble Lords, in congratulating the noble Earl, Lord Strafford, on an excellent maiden speech. I sincerely hope that we shall see a great deal of him in the future. I should also like to congratulate the noble Lord, Lord Diamond, on promoting his Bill tonight. He has brought to your Lordships' attention, with noble intentions, a major subject which could well have far-reaching consequences for your Lordships' House.
I would not normally have taken part in this debate, especially having seen the length of the list of speakers, but, as the premier of my rank, I felt that it was my duty to protect what looks increasingly like a future endangered species. I am most concerned about the issue.
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I have no difficulty in principle with the idea that my eldest child, whether male or female, should inherit my family's title. But as to my making a choice between my children as to who should inherit, I am not clear about that at all. Such a decision would not only be extremely difficult to make but might perhaps be ill-judged, perhaps unfair and perhaps clouded by family matters which were at issue at a particular time. The present system is proven. I believe that it is adequate.
I should like to describe my own case very briefly, purely to portray the problems as I see them. The Bill appears simple at first glance, but it raises some interesting and extremely complex difficulties which might not be apparent at first sight.
My title was created in 1442—unfortunately for knocking seven bells out of the Welsh. I hope that there are no Welsh Peers here tonight. It was created in tail male. In 1446 we were created Earls of Waterford, which is the premier of the rank in Ireland. It is an Irish title, also in tail male. My son has the courtesy title of Viscount Ingestre. I am also the hereditary High Steward and Great Seneschal of Ireland—these titles granted by letters patent in 1446, to be inherited, according to the letters patent, by only the male heirs of the body of the first Earl, John Talbot. That is great history. But what if I fell out with my eldest son? My daughter is older than he is and under the Bill being debated I should be able to say to my eldest boy "James, you and I have great differences and you are not going to be my successor in title. Your sister is going to be the chosen one". That is a major decision to make, perhaps in difficult circumstances and involving a certain amount of favouritism—and perhaps also under the most ridiculous of circumstances. I might be a complete idiot at that stage—not that I may not be now.
If this particular scenario materialised, many other problems would be flagged up, apart from the appalling private family antagonism which would undoubtedly emerge. For example, my daughter, on my death, would be the Countess of Shrewsbury with a seat in your Lordships' House. My son would still have the courtesy title of Viscount Ingestre. But by that stage my daughter would perhaps be married with a son of her own who would be her heir. He could not be Lord Ingestre because his uncle would already have that title by courtesy of his father.
Will the noble Lord's Bill cover the peerage of Ireland? If not, a further anomaly will have been created. Noble Lords will recall that I said earlier that I hold the title of the Earl of Waterford, an Irish title which is, as I mentioned, in tail male by letters patent, and it gives me the right and great privilege to act on behalf of all Irish Earls at a coronation. I do not for one moment believe that my daughter, having inherited the Earldom of Shrewsbury, would be permitted to fulfil this particular function without a change in law with regard to the Irish peerage. Neither could she be the Lord High Steward and Great Seneschal of Ireland. She probably would not want to be.
What about those Peers like myself who have family trusts agreed by Act of Parliament again in tail

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male? My daughter could not have the benefit of my parliamentary trusts agreed to by your Lordships in 1954, as they are all written for the benefits of the Earls of Shrewsbury in tail male.
This is an horrendous problem. I am in principle relaxed about whether the title goes to my first-born, male or female. But I have a great problem with the noble Lord's Bill and the injustices which I am absolutely certain it will cause. It will not, I am sure, achieve the noble Lord's targets. I am absolutely certain that it will divide families, and I believe that it is completely unworkable. I shall have to support my noble friend Lord Denham.
8.41 p.m.
Lord Redesdale: My Lords, I speak as the youngest hereditary Peer in the House, having taken my seat very recently. I believe I can claim that my mind has been very clearly focused on this problem, since I have four elder sisters. We have discussed the issue quite clearly.
The issue did not come up before this Bill. I have always known that I would inherit the title. However, I shall support the Bill of the noble Lord, Lord Diamond, since it relates to the future. There must be a way of changing letters patent if your Lordships put your mind to it. I believe that one of the reasons that this subject has received so much media attention is that descent through the male line is one of the cornerstones of sex discrimination.
I would like to point out that the question of changing who should actually inherit the title has arisen before. The Redesdale Committee which sat between 1816 and 1825 actually disallowed women from inheriting earldoms. I am sure that in the future we shall be able, if we put our minds to it, to allow women, the eldest daughters, actually to inherit the title.
I agree that there are many problems regarding this Bill. Many of them have been expressed far more eloquently than I could express them myself. For the sake of brevity I would like to raise only two of them. I have to admit that one of the problems is the choice that would be given to the incumbent peer.
I come from a large family, as I have already pointed out, and I believe that had the choice been there it would have caused a lot of friction over many years.
The only other problem I would like to put forward is one that has been pointed out to me; namely, that if we change letters patent, would it not be possible to do so retrospectively, since it is a piece of retrospective legislation, going back through the female line? I would almost be tempted to support my noble kinsman's amendment and I must congratulate him on showing no avarice towards my title. My grandfather had an elder sister who was my noble kinsman's mother, and I should not be sitting in this place if the noble Lord's Bill had been enacted a number of years ago.
I shall support the Bill because although there are many complex problems that have been put forward by noble Lords, I believe that they could be overcome.
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I believe that the noble Lord's Bill is destined to fail tonight. However, as many noble Lords have put forward their view that this would be a good piece of legislation, I hope that one day it will come back. If it does return, then, given the choice, I would say that it should be the eldest child, regardless of gender, who should inherit the title.
8.46 p.m.
Lord Mowbray and Stourton: My Lords, I was fascinated to hear the speech of the noble Lord, Lord Redesdale, and all the more so because he is so close a relative of his noble kinsman Lord Denham, who opposes the Bill. The noble Lord, Lord Denham, is very proud of his Mitford mother. I would turn over in my sleep with disturbance were I to think of what his aunt would have thought of Uncle Matthew, thinking about his speech disowning his family.
I turn to more serious matters. The noble Lord, Lord Diamond, for whom I have enormous respect and affection, may be not only misconceived but even mischievous in the conception of this Bill. The Bill is misconceived because, as has been pointed out by many noble Lords tonight, the noble Lord has not thought about the problems of Peers by writ. He did not mention them at all. They are just as important an element as the others. They are not many but they are important. The noble Lord has not thought possibly that Peers by patent or writ include lots of Peers of Ireland. I do not think he thought about those people.
This matter concerns more than just the House of Lords. The noble Lord seemed to think that sex discrimination in this House would be avoided by his Bill if it were carried. I suggest that this is not a Bill about membership of the House of Lords. At the moment the House of Lords contains many Peers appointed for life as well as hereditary Peers. There are also legal Peers who are life Peers in the law.
This is a mixed House. It has been such a House for many years. Some of our ancestors were appointed. We are a mixed body descending over several hundred years. Around the country we represent mixed views. Hereditary Peers sit among all the parties and I think of the noble Lords, Lord Strabolgi, the noble Viscount, Lord Falkland and the noble Lord, Lord St. John. When one looks around the House one sees that this is not a one-party House. Peers are all over the place. Those of us who are hereditary Peers are just as much entitled to have our views and intelligence taken for what they are worth as are appointees of Prime Ministers, ex-retired MPs, ex-professors and even young professors as well as young tycoons of industry —all kinds of people who are bright and beautiful when appointed. They all get old as we do. I look at the noble Baroness, Lady Mallalieu, who is very beautiful. She comes from a great legal family in her own right. In her husband's right, she is allied to another great legal family I have known, in her father-in-law and her grandfather-in-law.
I have the utmost admiration for all people of either gender who are elected to this House. I have no feeling against women being made Peers. I do not carry that feeling to the bishops. Being a Roman Catholic, I am perhaps biased. Nevertheless I admire all women who

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are holy and good. There are many from whom we can take great advice, and far be it from me to disregard that.
However, we are not discussing that issue; we are discussing the suggestion of the noble Lord, Lord Diamond, that sex discrimination in this House is part of the Bill. As the noble Lord made that remark, I wish to remind the House that many years ago—I cannot remember whether the noble Lord was then a Member—there was a reform Bill for this House. It was put before us that we should be reformed and we were given various details. I wish to remind the noble Lord, Lord Diamond, and any Members who were not here, that most of us who were here—including hereditary peers such as the noble Lords, Lord Denham, Lord Elton, Lord Carrington and myself —voted for the reform of this House of Lords by Parliament. What happened? That other place down there, under the influence of Tony Wedgwood Benn, Michael Foot, Enoch Powell and Hugh Fraser (son-in-law of the noble Earl, Lord Longford), made an unholy alliance for whatever reason not to reform us.
We must remind noble Lords opposite—most of whom are missing tonight—that it was not Members on this side who stopped the reform of this House. It was the House of Commons which did not want to see the House of Lords given more reasonable powers to check whether perchance it had extreme views. Those in the other place preferred us to be thought of as silly old hereditary Peers whom they could run down with silly speeches. We were willing to be reformed; the other place stopped that. I suggest to the noble Lord, Lord Diamond, that his suggestion is non-existent.
If I may go on and bore your Lordships I wish to point out that I am not a feminist. I note that in last week's Sunday Telegraph the noble Earl, Lord Longford, for whom I have the utmost affection and respect, stated that he was proud to think that all his descendants would be worthy of his ancestral office. I could not agree more. From what I know of him, his wife and his noble family, all are brilliant, clever, intelligent and attractive. We should be proud to have any one of them in this House. We are not in the business of selecting who should come here. We all agree that we have wonderful children. I hope that we would not be in this business if we did not.
Perhaps I may appeal to your Lordships. As my noble but slightly distant kinsman the Duke of Norfolk said—and I am proud to be his heir general because, had the female lines gone, I should be Duke of Norfolk—and as another noble kinsman, the Earl of Shrewsbury, said, I am kinsman to the barony of Talbot. If the earldom of Shrewsbury had gone to the female line I should also be Earl of Shrewsbury because I am heir general to that family. I am well in the business of heirs general; I know all about it. But it would not do me any good.
We in my family were made peers in the male line. The father of the first Lord Stourton was Speaker of the House of Commons in 1414. Unfortunately, he died a fortnight later and so held the office for the shortest time on record. I do not believe that he was poisoned or assassinated, but he was Speaker for a
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fortnight in 1414. In 1448 his son was made Lord Stourton having fought in France and having been Treasurer to the King. That then involved a certain amount of money manipulation as now. Unfortunately, the money did not come to us; I suspect that it went to the King. We have been peers in the male line since 1448.
Since then my family has grown up aware that it is the family of Stourton in the male line. All members of my family know that they are the Stourton family. Who is the noble Lord, Lord Diamond, I ask myself, to ask this House to disinherit the House of Stourton, the House of Talbot from the Shrewsburys, the House of Howard from the Norfolks, and the Somersets from the Duke of Beaufort who is a direct descendant of John of Gaunt? The noble Lord wants to destroy the history of England. Families are thought of as in the male line.
I seriously suggest—and without being anti-feminist, which I am not—that when daughters marry they think of themselves as marrying into their husbands' families. The noble Lord presupposes that when they marry they say, "To hell with my husband's family, I am going to be myself." That is a Lady Summerskill idea. There are others like Lady Summerskill whom I respected a great deal. I suggest that nine out of 10 people in this country regard a family line as being in the male line.
I think of Lord Rhodes who used to sit over there on the Labour Party's Privy Council Benches. He was a great Yorkshireman; the first Yorkshireman to be made a Lord Lieutenant of Lancashire. He fought in the First World War and received an Air Force gallantry medal. He was regarded with affection by Members on all sides of the House. He led three delegations to China to trade. Her Majesty the Queen thought the world of him and gave him her personal gift of the Garter. He was the one who used to say, "My Lords, I was born a manufacturer, my son is a manufacturer. We are manufacturers now", which noble Lords opposite would like to repeat today; we all would. But I remember that Lord Rhodes used to say to me, "Do you know, Charles, I can tell you that I am son of Bloggs who was son of Bloggs who was son of Bloggs?". He could go back 16 or 18 generations. When Her Majesty the Queen accepted the recommendation of the noble Lord, Lord Wilson, to make him a Peer the then Garter, Sir Anthony Wagner, thought he would check up on that inheritance by rote. And do you know, blow me down, he found every one of them absolutely on the ball and accurate. That was a family in the male line.
As regards Welsh families, the noble Lord, Lord Cledwyn, is proud of his Welsh descent, as was the late Lord Elwyn-Jones. They knew the male line descent. People do not really know their mother's lines, they knew their father's lines. Perhaps I may give as an example Queen Victoria and Prince Albert. If one wants to have a kind of Polynesian descent of mother to daughter to daughter one goes mother to daughter to daughter to daughter, and ends up with the Queen of Spain. That is the daughter's daughter's daughter's daughter's daughter. There you are! She is highly respectable. But do you think that she is conscious of

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the fact that she is part of that family? Her mother was mother to the King of Greece. Another ancestor was married to a Hanoverian, another was married to a Prussian, and so on. If one takes the male line there is the Gloucester family and if one takes the heir general one ends up with Her Majesty the Queen. That is what most of us would agree is about the right thing. That inheritance goes in the male line must not be disregarded. Royal families are exceptional.
Supposing the noble Duke, the Duke of Norfolk, had not existed. I think of his four noble cousins, the four daughters only one of whom has children, and that is probably Lady Jane who married my godson. He is an MP in the other House, and his father is the Marquess of Lothian. How silly would it be for the Duke of Norfolk, the Earl Marshal, to suddenly appear in the title of Kerr, Marquess of Lothian, ranked as an MP who is tending to say that he is not going not to take up the title? The male line is not something to be disregarded.
I have taken far too long, and I apologise, but I feel strongly about the Bill. Male line inheritances ought not to be discarded, especially as I see before me just sitting down the noble Viscount, Lord Cranborne. Can you imagine a Cecil suddenly having a daughter he dislikes who inherits and who marries a Bloggins? It would be appalling. I beg your Lordships please to repel the Bill.
9.1 p.m.
Lady Saltoun of Abernethy: My Lords, I wish to support the Motion in the name of the noble Lord, Lord Denham. I do not think that this Bill has been properly thought out. It gives a Peer the right to petition the Queen to change the destination of his peerage along the lines that the noble Lord, Lord Diamond, has explained. How is the Queen to decide whether or not to grant this petition? Who will be her advisers? These questions have not been addressed.
Another thing that worries me is that surely meddling with the wishes of a previous monarch regarding the succession of a peerage which he created, in many cases hundreds of years ago, is a little like setting aside the wishes of a testator clearly expressed in his will. It should certainly not be done lightly. Then when you have meddled once there is nothing to stop you meddling again. If the wishes of the creator are to be set aside once, why should they not be set aside for a second time to enable, shall we say, adopted children to inherit? I am a little worried.
Then there is the question of the monarchy itself. I have a nasty feeling that any change to the rules governing the destination of hereditary peerages may also affect the destination of the monarch. I must emphasise that I am thinking of situations that might arise in future generations. Incidentally, the noble Baroness, Lady Platt of Writtle, who, alas, is not in her place now, expressed great admiration for various female sovereigns that England has been lucky enough to have, starting with Queen Elizabeth I. I must take issue with her over that. I cannot share that admiration because she had my Queen beheaded, and I think out of jealousy.
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A better recipe for causing quarrels and ill feeling in families would be hard to devise were one to set about trying to do exactly that. Let me put to your Lordships the case of a Peer who does not wish to speak in this debate on account of his own interests. He is in his 70s and has three daughters but no son; he has granddaughters but no grandsons. His heir, also in his 70s, is his younger brother, who has two sons and also grandsons, and who has for many years expected that one day he or his eldest son will succeed.
Should this Bill become law this hapless noble Lord is being confronted with the possibility of having to decide whether or not to petition the Queen on this issue, because he would have to consider on the one hand the interests of his eldest daughter, an extremely competent middle-aged woman who would be justifiably aggrieved if her father did not do anything, and on the other hand he would have to consider the interests of his brother, his nephews and his great-nephews, who would be justifiably aggrieved if he did. There is certainly plenty of scope for family discord here, and, in some other cases where property is entailed with the peerage, for a lawyers' bonanza too.
Incidentally, my eldest daughter and heir views with a jaundiced eye the possibility of being under pressure from her eldest daughter to disinherit her little brother in her favour. It really is no use the noble Lord, Lord Diamond, saying what he said in his letter to the Telegraph. Somerset Herald, in his letter to the Telegraph on 10th November, was quite right about the uncertainty and discord that this Bill would cause in families.
The noble Lord, Lord Mowbray and Stourton, rightly says that this is not a Bill about the House of Lords. But, as I see it, the only point in being a Peer is to be entitled to a seat in this House. I wonder whether the noble Lord, Lord Diamond, has taken into consideration that this House depends heavily on quite young hereditary Peers as Ministers and Whips, whose jobs are often too arduous nowadays to be undertaken by a good many older men? They are able to undertake the jobs that they do because most of them have wives to run their homes and look after their children.
If these young Peers had been supplanted by their sisters, it really is ridiculous to suppose that the sisters would be able to do the job equally well. Women have babies. Women nurse babies. Both are time-consuming and exhausting jobs which cannot be done by anyone else and are incompatible with strenuous careers on the Front Bench, or indeed regular attendance and activity on the Back Benches. Even I, an old woman whose children are now on the threshold of middle age, suffer from a degree of conflict of interest between my duty to my husband, home and family and my duties here.
I do not think that men have this problem to the same extent. Incidentally, for that and other reasons, I think that what has been done to the eldest Swedish princess by a lot of woolly-minded do-gooders in making her the heir to the throne over her brother's

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head is just sheer cruelty. I am here through an accident of war, but I should not have wished to inherit over the head of a younger brother.
At the end of the day the rule that governs the destination of many Scots peerages—that is, to heirs general—has much to be said for it. There is no going into abeyance: it is cut and dried and the lawyers do not make a penny. An excellent letter in today's Telegraph from Charles Kidd, co-editor of Debrett's Peerage, suggests amending the law governing the destination of English and UK peerages to bring it into line with what I have just described. The succession of the monarchy would not be affected, for that is how it devolves. If it were deemed sensible to make any change, that is what I should recommend. However, any change should be the outcome of serious consideration by the Lord Chancellor with those knowledgeable about these matters, and should be the subject of a Government Bill, not a Private Member's Bill. I assume that this Bill is intended to apply to Scots peerages too. If so, it will apply in some cases—those where there are letters patent extant or on record. In many cases—for example, the earldom of Erroll and my own—there are not.
The noble and learned Lord, Lord Jauncey, went in some detail into the rules of inheritance of peerages in Scotland. However, as I understand it, there is one thing that he did not say; namely, that as recently as 1962 or 1963, the Lord Advocate said:
"On the whole matter I am of opinion that the pre-Union procedure has never been abrogated and is still legally competent".
Under that procedure you could resign your peerage to the Crown and petition the Crown for a re-grant so as to alter the destination. If anything is to be done, that would be a sensible way of doing it.
I believe that this is a thoroughly pernicious little Bill and that it is quite unamendable. It is curious how often the smallest Bills seek to do the most harm and I hope that your Lordships will vote against it.
9.10 p.m.
Lord Glenarthur: My Lords, I hesitated before putting my name down to speak in this debate because the more I have looked at the subject, the more complex a matter I have found both it and the history behind it. I am bound to say that everything I have heard this evening has added weight to my anxieties about the complexity of the subject upon which the noble Lord, Lord Diamond, has embarked.
The Bill as drafted may appear innocuous enough at face value and in the way that the noble Lord, Lord Diamond, with every good intention I am sure, has described it, but closer examination of what it says leaves me in no doubt whatever that it is highly undesirable. As others have said, notably my noble friend Lord Denham, and as was so well illustrated by my noble friends Lord Shrewsbury and Lord Mowbray and Stourton, its effect would be to put some of your Lordships in intolerably invidious positions, although I accept that it might please some others.
On hearing the many arguments that have been put forward this evening, the ramifications of the Bill seem to go much wider than that. The Bill is narrowly
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drawn as regards the purpose described by Clause 1, but the Long Title goes much wider than that, as the noble Lord, Lord Diamond, himself explained. To that extent, I suppose the Bill is amendable, should it be granted a Second Reading, but if it is granted a Second Reading, how on earth could it sensibly be amended?
I must confess that the scope for amendment to introduce a variety of changes to the principle of hereditary peerages seems very substantial. Any examination of the principle, let alone the scope, of the Bill would have to be thoroughly researched over a considerable period by a body of real experts. To try to tackle the subject piecemeal—and, with respect to the noble Lord, Lord Diamond, I think this is what his Bill invites, even if he does not intend it—would be likely to throw up many more problems than it would solve and certainly many more than can be adequately considered in a debate such as this evening's.
There is one issue which, notwithstanding the views expressed by my noble friend Lord Mowbray and Stourton, may be ripe for consideration at some point; namely, the case of titles becoming extinct when there is no male heir. I must immediately say that I do not have an interest to declare in that respect, but perhaps several of your Lordships are faced with that situation.
Because of the wide nature of the Long Title of the Bill, it has been suggested that it may be possible to amend the Bill to give effect to the transmission of a title through the senior heiress so as to avoid the title becoming extinct. This might require the holder of the hereditary peerage, faced with the extinction of the title under the terms of the original patent, to petition the Queen to amend the terms of the letters patent. It might even be possible to include a proviso that thereafter the peerage must descend according to the terms of the original patent.
I am not convinced that such a procedure is either desirable or practicable. I can of course see its attraction for some, but on the other hand peerages have become extinct many times over the centuries, although until comparatively recently hereditary peerages have been fairly commonly created and have replaced to some extent those which have become extinct. It may be that the effect of such a change would be to introduce the concept of heirs general, with all that that might imply: a question which was addressed by the noble and learned Lord, Lord Jauncey. I most certainly do not believe that this Bill is a suitable vehicle for such a change, although I hope that my noble and learned friend the Lord Chancellor, when he comes to wind up, may be able to address the validity or otherwise of the point that I have made. For my part, I shall certainly support the amendment.
9.15 p.m.
Lord Kilmarnock: My Lords, in considering this brief Bill—perhaps too brief—which the noble Lord, Lord Diamond, has brought before us, I think it is important to rule out those issues which I believe should not influence the view we take. The first of these concerns the whole principle of a chamber of peers dominated numerically by the hereditary

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peerage. Some feel that this is wrong for the composition of a second chamber which still has significant legislative powers. The holders of such views tend to want an elected chamber although on a different basis from the House of Commons, possibly through the regions, to produce something much nearer a senate.
If that were to come about, the whole terminology would change. Peers of Parliament would cease to exist and if hereditary peers continued to attempt to preserve their order or their caste it would be as a sideshow, without constitutional significance, whose activities would rightly be relegated from Hansard to Jennifer's Diary. In such circumstances who succeeded to which title would be of little or no public significance and it would be hardly worth legislating about.
However, that is not the situation in which we find ourselves and it would not be proper to use this debate or this Bill to advance that day. We are not talking about root and branch laws reform, down which path the noble Viscount, Lord Falkland, perhaps strayed a little. We are talking about a situation in which hereditary peers still come to Parliament, where they exert a significant influence on legislation which affects all sections of the community, male and female alike. That is the role that they may continue to exercise for some time to come; so short of wreck or reform there is a legitimate public interest in the composition of this Chamber, quite apart from the question of sex discrimination, which the noble Lord, Lord Diamond, seeks to address.
If it is generally accepted that this is something worth debating and legislating on, I can see that a cynic might advance a further objection. He might object to the tidying up or the modernisation, if you like, of peerage law in that it would reverse or slow down the already very slow process whereby the hereditary peerage withers on the vine through extinctions. If women were able to inherit United Kingdom peerages, as they can inherit Scottish peerages, some extinctions would clearly be avoided. I would consider the argument of withering on the vine a disreputable approach but, with or without some extra women peers, that process could take centuries and the only honest way ahead in this regard would be a conscious decision by Parliament to disestablish the hereditary element by excluding it from Parliament. There may be arguments for and against that, but it would be the only proper way ahead. So natural wastage is not a viable option, and therefore not a good reason for debarring a certain number of additional women.
Traditionalists may snort that it would be sacrilege to tamper with the status quo, and some have already this evening. The noble Duke, the Duke of Norfolk, for whom I have the greatest respect, referred to "interfering with history" and the noble Lord, Lord Mowbray, who spoke with passion, referred to destroying the history of England. According to this view, the peerage grew up in the mists of antiquity and is an estate on its own, with laws, rules and observances that brook no change. The noble Duke,
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the Duke of Norfolk, talked of multiple peerages, as did the noble Earl, Lord Shrewsbury. But these are almost exclusively the preserve of the older aristocracy. In relation to the vast majority of peerages the facts are at odds with the traditionalist position. It is not only the life peerage which is a recent creation, but of the 776 current hereditary peerages approximately 620 have been created since 1831: that was the year of the Reform Bill. Nearly 500 of those were created during or since 1918, the end of the First World War. There were few multiple peerages then.
Of course, it is an adornment and an important reminder of our past that we have Mowbrays, Howards and Talbots in this House. They make an important contribution to its work. But the fact remains that the connection of the vast majority of Peers with the age of chivalry, when being a Peer was a man's work, is extremely tenuous and frequently non-existent.
On all those grounds it is perfectly reasonable and perhaps timely to look at some of the anomalies and inequities of the hereditary system as it exists. As long as it exists in its present form and fulfils a constitutional function, it should do so—I would suggest—in such a way as to conform broadly to the general body of law and custom and to the growing, if still incomplete, tendency towards equal treatment of the sexes in most walks of life.
I turn to the single clause of the noble Lord, Lord Diamond, on the precise wording of which considerable doubts have been expressed, some of which I share. My noble friend Lord Jauncey, the noble Viscount, Lord Falkland, the noble Earl, Lord Shrewsbury, the noble Lord, Lord Strabolgi, and even the noble Lord, Lord Redesdale—although he said he intended to vote for it—were all concerned that if the election of the heir is to be left to the discretion of the parent to the extent that a male heir under the present system may be passed over in favour of an elder sister, that could give rise to extremely tense family relations and disputes and be almost unworkable on that score.
I have some sympathy with that feeling. It may be better to specify simply the eldest child of the body, as the noble Lord, Lord Redesdale, wanted to do. Some may feel that that also was too radical and prefer simply that United Kingdom peerages are put in the same position as peerages in Scotland, which, after all, has given us the great benefit that we already enjoy of a number of Scottish Peeresses in their own right, among them the noble Lady, Lady Saltoun, who has just spoken.
Whatever the different views on those matters, the proper place to discuss them is in Committee, and that is why I support the Second Reading of the Bill. It both deserves and requires a Committee stage at which it may be considerably altered or even, as my noble friend Lord Jauncey suggested, rewritten. He did not seem to think that that was a good idea. With respect to him, it is not unknown even with major Public Bills which have received considerable transformations in your Lordships' House.
I have another reason for supporting the Second Reading and securing a Committee stage. The noble Lord, Lord Diamond, addressed the question of sex

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discrimination. The Long Title of the Bill is quite sufficiently wide—as the noble Lord, Lord Glenarthur, pointed out—for me to address an additional problem which the noble Lord, Lord Diamond, did not touch on; namely, that of discrimination on the grounds of illegitimacy.
Here I must declare an interest. My own son and only child was born outside wedlock. His mother and I subsequently married when we were in a position to do so and he was thereby legitimated for virtually all purposes other than inheriting a title of honour. As a matter of general principle the Law Commissions, both of England and Wales and Scotland, recommended in various reports the removal of legal discrimination against persons born outside marriage. Those recommendations have been largely adopted by Parliament in subsequent legislation such as the Legitimacy Act 1976, the Family Law Reform Acts of 1969 and 1987 and the Children Act of 1989.
Bromley's Family law, 8th edition 1992, states that the Family Law Reform Acts removed many of the remaining differences between children whose parents were married to each other and those who were not. Children of unmarried parents now have full rights of intestate succession and can succeed, for example, as an heir to an entailed estate. The Legitimacy Act 1976 had already much reinforced the position of subsequently legitimated children particularly in relation to citizenship. To all that there is one outstanding exception. A person legitimated by subsequent matrimony is still unable to inherit a title of honour.
As far as I know the Law Commission has not yet proposed any change in the law in that respect. But the Law Commission for England and Wales, in its Report No. 118 of 1982 on grants of hereditary peerages, states:
"If the form of words currently prescribed were to be changed so as to allow illegitimate persons to qualify, it might be necessary to consider whether this change is consistent with the judicial principle that the Crown cannot give a grant of a Dignity or Honour to a 'quality of Descent unknown to the Law".
But it goes on to say:
"Any power which the Crown lacks in this respect may of course be provided by an Act of Parliament (as with the Life Peerages Act 1958)".
So there seems little doubt that Parliament could act in relation to this and other matters if it saw fit. It has in fact, as far as I can see, already modified the definition of,
"Descent unknown to the Law"
in other respects and could go further if it wanted. If this Bill proceeds to Committee I am therefore minded to look for a form of words, perhaps by adding after the words "lawfully begotten" the further words "or subsequently legitimated" to the principal clause.
The noble and learned Lord the Lord Chancellor will have many points to pick up from this debate. He has been asked a number of questions. If he can give some indication of his view on illegitimacy, subsequently rectified by matrimony, as a debarment to inheritance of peerage, that would be much appreciated.
In conclusion, there is nothing God-given or sacrosanct about peerage law. There is no reason why
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it should not move with the times. It may not have to move very far. I do not know if we want to go as far as the noble Lord, Lord Diamond. There seems to be a general feeling around the House that perhaps we do not. But alternatives can only be tested at Committee stage and for that reason I support the Second Reading of the Bill.
Lord Mowbray and Stourton: My Lords, before the noble Lord sits down perhaps I may ask one question of him and the House. If I am right in saying that his direct male ancestor was legitimately the Jacobite Earl of Kilmarnock, was he not a Scottish Peer created before 1707? Was not that title attainted after the '45 rebellion? Has not every Jacobite title attainted since the '45 rebellion been unattainted except his earldom? Therefore, if Her Majesty, advised by the Government, were to advise that he should be unattainted, would he not legitimately be the Earl of Kilmarnock now and—because it was a pre-1707 Scottish peerage title whereby if one married the girl by whom the child was born it legitimated the child, which is Scottish law—his son undoubtedly be the Earl of Kilmarnock in his due time?
Lord Kilmarnock: My Lords, nobody yields to the noble Lord, Lord Mowbray Segrave and Stourton, in knowledge of genealogy and peerage law both north and south of the Border. What he is saying is broadly correct, although there is some considerable process which would have to be gone through. I am not sure that he is entirely correct in saying that my son would automatically inherit. That would be a matter for further discussion. I did not wish to bring that up within the context of this Bill. In the last part of my speech I was looking at the question of illegitimacy in general as it applies to the inheritance of peerages in the United Kingdom.
9.29 p.m.
Viscount Davidson: My Lords, after that intervention I rise with some trepidation to make what I can only describe as my maiden speech Mark Two from the comfort of the Back Benches after six years in the wilderness on the Front Bench. And it makes a change to be able to deliver a speech which I have written myself. I can therefore declare truthfully that I agree with everything that I am about to say.
I must first declare an interest. I have four daughters and no son. I have a younger brother who has a son. Incidentally, I have two older sisters. So it is fair to say that I can look at the problem from most angles.
The title which I bear is of relatively recent origin, my father having come to this House from another place in 1937. There is therefore no strong historical background to influence my feelings about the importance of continuity. On the other hand, I believe strongly in the importance of the hereditary system in this Chamber as a way of continuously bringing in a younger generation of Peers, often with wide interests and experience and knowledge of matters other than party politics.
But every system has to be examined from time to time to see whether it can be improved, and that is why

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the House, I am sure, is grateful to the noble Lord, Lord Diamond, for giving us the opportunity to discuss the subject. My criticism of the Bill lies in the fact that it gives an hereditary Peer the power to choose his successor. This, to my mind, would only lead to endless arguments and family rows. I shall not enlarge on that as the point has been fully covered by my noble friend Lord Denham, by the noble Lord, Lord Strabolgi, in what I thought was an excellent speech, and by other noble Lords. However, in spite of that, I shall vote for the Bill on Second Reading as a step towards further discussion. What I would support wholeheartedly is an amendment to remove the element of choice, stating simply that, where there is no son, a daughter (the eldest if there is more than one) should be able to succeed to the title.
As we are talking about heredity, perhaps I may introduce a personal note before I sit down. The reason I am here is that Stanley Baldwin introduced my father to my mother. After an active political career, my father came to this House with Stanley Baldwin on his resignation as Prime Minister in 1937. My mother took over from my father as Member of Parliament for Hemel Hempstead at the by-election, a seat which she held until she retired in 1959. Incidentally, she was made a life Baroness in 1963 and, after my father died, she and I sat together on these Benches for 15 years until she died seven years ago. I could expand on that, but I shall not tonight.
Her father, my maternal grandfather, Mr. Dickinson, later Sir Willoughby Dickinson, was a Liberal, who had been Member of Parliament for North St. Pancras from 1906 to 1918. He was a leading advocate of women's suffrage and introduced a Bill for women's suffrage in another place as early as 1907. On 10th January 1918 he wrote in his diary:
"The House of Lords has passed the Women's Suffrage clauses by 134 to 69. So this job of mine is finished".
In 1930 Ramsay MacDonald offered him a peerage. His introduction to the House of Lords was performed by Archbishop Davidson (no relative, although he had christened me the year before), and my grandfather took the Labour Whip.
I apologise for introducing this potted personal history, but it seemed to illustrate the dilemma which I feel I am in. How would my father, my mother, my maternal grandfather —all sometime Members of this House—have voted tonight? My grandfather would, I am sure, have voted for the Bill. My father, who always expressed pride that he was descended directly from John Knox, who wrote a pamphlet entitled, The First Blast of the Trumpet Against the Monstrous Regiment of Women, would, I guess, have voted against the Bill, and my mother would have just told me to make up my own mind.
9.33 p.m.
Lord Addington: My Lords, we have heard a great deal about history and about equal rights in relation to this Bill. As has been pointed out to the noble Lord, Lord Diamond, the main problem with the Bill is that it provides an element of choice. That is something with which everybody has some difficulty. All the
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hereditary Peers in this place have arrived here by accident. No choice has been exercised over whether we arrive here or not. We are all the beneficiaries of some biological lottery. Thus, if the element of choice is provided in the Bill, we have a problem because, even if it happens in only one generation, somebody will have to decide who will succeed to the title. Before deciding how I shall vote tonight I should like to hear from the noble Lord, Lord Diamond, when he comes to speak again, what kind of amendment he would be prepared to introduce to try to overcome this difficulty.
I can see no reason why we should not have a system whereby the eldest child inherits the title. That would have removed me from the Chamber as I have an elder sister; indeed my father had an elder sister. But it is very easy to be generous once one has arrived, and I feel no moral problem about saying that henceforth the title should go down through the female line.
To counter the point that has been made about history, I would say to the noble Lord, Lord Mowbray, and to the noble Duke, the Duke of Norfolk, that, although we may have a historical past, we also have a political present. We affect the decisions that are taken now and we will affect decisions that are taken in the future. If we intend to use this position of privilege, we must be prepared to change. Unless we are prepared so to do, we cannot effectively carry on being part of the political system of the country.
It does not really matter if we have a great political past or that we have a great tradition of family. I am no expert on the subject but, when I was doing my A-levels and later when I was at university, I remember reading speeches made in the House of Commons about the Great Reform Bill. There were many marvellous speeches about family ties to a rotten borough. They were family property, quite literally. There was family control over county seats. One can justify more or less anything if one takes a historical precedent.
In addition, the reasons why we have arrived in this Chamber might not in today's parlance be all that acceptable. In my own situation, I think it would be a case of the nouveau riche of the 19th century acquiring land, political power and status and thus being rewarded by a place in your Lordships' House. Was that actually a very beneficial process? One can go back further. Should the descendants of people who were leading groups of the mediaeval equivalent of the heavy battle tank in military triumph and behaving to their tenants like the equivalent of Hell's Angels on horseback be in the position of exercising political power? Those are the questions we should ask ourselves when we decide how we should vote.
I agree that there are certain problems with the Bill. However, before we make a decision, we should listen to what the noble Lord, Lord Diamond, is prepared to accept and what changes he would suggest. We are not just a political past. We are a political present and future. If we lose sight of that we make our own position totally untenable.
9.38 p.m.
Lord Lucas: My Lords, I must declare an interest in the Bill as I inherited my English title from my mother and she in her turn from her mother. We have, therefore, as a family, a little experience of what life would be like if a Bill of this kind were passed.
I can reassure your Lordships that we have retained all the sense of family and history that is associated with male succession despite swapping surnames every other generation and leaving a trail of extinguished male only titles behind us. The association of the concept of family with the male family name is not a necessary one. We seem at last to be entering a world, or at least a part of one, where the qualities associated with women are recognised by men as being the equal of their own. Our constitution is one that evolves, that survives and gains strength through change. Whether or not the hereditary peerage remains part of this House, but certainly while it does, we should give most serious consideration to making changes to reflect this fundamental and permanent change in our society. Every other element of the House is now committed to the principle of equality, and we have some catching up to do.
This is a simple Bill that raises many thorny and complicated issues, but ones that it is important that we should address. If, at the end of the debate, we find ourselves with no better alternative forum, we should allow the Bill to go forward to Committee at an early date. The anxieties reasonably expressed by my noble friend Lord Denham and others should surely be debated at length rather than being a reason to close debate now.
9.40 p.m.
Lord Simon of Glaisdale: My Lords, I venture to address your Lordships as an avowed feminist and an avowed admirer of the noble Lord, Lord Diamond. Nevertheless, I am afraid that I cannot possibly support his Bill for two reasons.
First, the Bill has fatal and fundamental flaws which are not susceptible of improvement in Committee. Secondly, the issues that it raises are part of a wider issue; namely, the composition and responsibilities of your Lordships' House—those two being interconnected are part of a wide spectrum of constitutional issues which are now clamant for consideration by a Royal Commission. I shall run through them: there is the referendum which seems to have come upon the Government unexpectedly so that we are all unprepared to consider in what circumstances a referendum is justified and who frames the questions; then there is the question of devolution. I refer not to the break-up of the United Kingdom which was fairly before the electorate at the general election, but to the much more modest and moderate case that was urged, for example, by my noble friend Lord Perth and which obviously demands consideration.
If there is to be devolution—I am sure that we shall be faced with it within this Parliament or at the next general election—how is it to be financed? What effect will it have upon representation at Westminster, as to
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the residual powers of the United Kingdom Parliament and as to specifically English issues which are similar to those which are devolved? What will be the Scottish representation in those cases? That is the second big issue.
There is also the question of what is to happen in a hung Parliament, a question which has barely been considered and which is liable to be extremely embarrassing to the monarch and to all who value her independence and prerogative. Finally, as I said, there is the question of the composition and the powers of your Lordships' House. I have no doubt that the Government hope that by shutting their eyes many of those problems will simply disappear. I do not believe that for a moment. They seem sometimes to think that by sticking their heads deep into the sand the wind will not ruffle their tail feathers. That is hopeless. Those problems, together with the problem which the noble Lord, Lord Diamond, has posed to us, have to be considered and considered at a high level.
I turn from those issues to the flaws in the Bill. They arise from the fact that an option is given which seems to be considered in two ways. The noble Lord, Lord Diamond, and some of the other Members of your Lordships' House who have spoken in support of the Bill seem to think that the option carries the day, that the Queen, the monarch, is bound to accept the choice of the holder of the title. But that is not what the Bill says. It says that there is a discretion. Whether it is a binding convention that the monarch has to accept the option of the holder of the title or whether there is a discretion, either course is equally objectionable.
Let us take first the binding force of the option exercised by the holder of the title. At the moment, the monarch is the fount of all honour and the succession to a peerage is governed by law and not by discretion. But what is proposed, if there is a binding option, is that an individual Member of your Lordships' House can control the membership of the House. That is surely quite unacceptable.
If there is a discretion, who is to exercise it? The noble Baroness, Lady Platt, seemed to suggest that it would be exercised by the Queen herself, but it is surely quite impossible to bring her into the family squabbles which a disputed decision presupposes. What normally happens in a dispute as to who is entitled to be called to your Lordships' House is that the law officers advise the monarch and identify any issue of fact, although that is rare. It may arise, for example, on a paternity issue and also on the issues of law.
The monarch refers the question on the basis of that advice to your Lordships' House and your Lordships refer it to the Committee for Privileges. Half the committee members are lawyers and half are lay Peers. It is quite impossible for them to sort out, as a matter of discretion, whether the option shall be implemented. It would be one thing to enact that unisex primogeniture—in other words the succession of the eldest child, whether male or female—should replace male primogeniture, but that is not what the Bill does. That would be logical and sensible to a feminist but it is not what the Bill does. In any case,

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it would require to be carefully considered in relation, for example, to succession to the Crown and also in relation to property.
The noble Lord, Lord Diamond, was not quite right when he said that the Bill does not affect property rights. Although entail has largely but not wholly disappeared from our law, there are several estates which devolve with the title. That was the case, I recollect, in the Fitzwilliam peerage case fairly soon after the war when very large sums passed with the title. Either way of operating the option is deeply flawed and is quite unsusceptible of being put right in Committee. As I have said, this is not a Bill to substitute unisex primogeniture for male primogeniture.
However, we are in debt to the noble Lord, Lord Diamond, for having raised this issue. If my noble and learned friend on the Woolsack would indicate that consideration would be given to having the issues raised by this Bill, and all the other issues which I have mentioned, investigated by a Royal Commission, the noble Lord, Lord Diamond, would have once again performed a valuable service to your Lordships' House.
9.51 p.m.
Lord Teviot: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, will not mind if I slightly disagree with him because, rightly or wrongly, I accept the fact that the noble Lord, Lord Diamond, is introducing this Bill for daughters to inherit peerages as a part of the ongoing process of achieving equal opportunities for women. Before going any further, I must congratulate the noble Lord upon giving us so much notice of this Bill. He let us know his intention to introduce this Bill last summer. One is rarely given such warning of a Bill. We had plenty of notice.
The main object of this Bill is to entitle daughters to inherit titles. Therefore I shall start by discussing the history of women gaining opportunities as it is the expression "equal opportunities"—that is a far nicer expression than "sexual discrimination"—which is on offer. That history must surely begin with the Married Women's Property Act 1882. There had been nibbles at the injustice in question going back to 1874, but I am sure my noble and learned friend on the Woolsack would agree that that Act was the most important one, as I believe it applied to Scotland. I have discovered in the Library that the Act passed in 1962 resolved that situation. However, the important date is that of the Act of 1882.
Again it is that Act rather than the vote that women gained in 1919 that was the turning point. It was surely utterly iniquitous for the husband to have control of the wife's finances. I hope your Lordships will bear with me as I explain this. The argument about that had continued for a century or two before then. As a genealogist I have read many wills where fathers have left money to their daughters. Those fathers have stated that their money or property should be left for
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their daughters' sole use and not for the use of their daughters' husbands. I am sure that was done with good reason.
Following that Act the vote for women under 28 was established in 1919 and the rest is history. I must add that women played an important role in commerce long before those two statutory events. Usually those women were widows but sometimes they were spinsters. They had to employ a runner in their commercial activities. There have been many situations since where women's paths have been cleared though that has usually not been easy. Since then women have held responsible positions in life. Walls have ceased to exist and barriers have been broken down. Hurdles have been flattened and the path is now fairly dry.
I now turn to the Bill itself. I have given great thought to it since I met the noble Lord on the stairs and I believe firmly that the holder of a title is totally unsuited to deciding which heir to choose. That personal choice could be invidious, creating bitterness and unhappiness. I am sure that your Lordships will agree that we do not want that to enter into the argument.
Where wealth is involved it does not matter whether the amount involved is £50 or £500,000 to the beneficiaries. It must be made clear. There is so much gerrymandering. People are kept on a string. We do not want it to be possible for a Peer to say, "You are not going to get my title". We cannot allow any individual Peer to decide the issue. Even if it was extended to the family that could be distorted.
We will all be familiar with instances where it has not been decided who will get grandfather's half-hunter watch. It will probably go to Cousin Edgar, who, at the first opportunity, will take it to the market. There might be Aunt Lucy's brooch of amethysts and garnets, surrounded by pearls. It is an heirloom, but it has not been decided who will receive it. Everything must be clear cut. I say to your Lordships that we must make this issue clear cut.
My noble friend Lord Denham made a remarkable speech on 19th November 1968 (reported in cols. 699 to 706 of Hansard of that date) in relation to the proposed reform of your Lordships' House. I felt that his argument today was rather thin in comparison to his argument on that occasion, when his was a striking speech. We are not contesting hereditary peerages this evening.
I cannot accept the Bill as it stands, but I am sure that it is worthy of amendment. Perhaps the noble Lord, Lord Diamond, could give a clear undertaking that he would be prepared to accept an amendment that would allow daughters to receive a peerage as of right through primogeniture. I am sure that that would enrich the hereditary principle. In my humble submission, I believe that we should agree to a Second Reading and go through the processes. There are several stages which would follow, and I believe that we should consider this very important Bill.
9.57 p.m.
Lord St. John of Bletso: My Lords, I join with other noble Lords in congratulating my noble friend Lord Strafford on his maiden speech. I hope that he will make many more contributions in the future.
When I put my name down to speak on the Bill I did so with the sole intention of expressing my support for greater representation of women Peers in your Lordships' House. While I remain resolute on that stand I must admit that having spoken to many noble Lords before the debate today and having listened to the excellent, cogent and in many cases complex speeches I am all the more confused. I had intended initially to support the noble Lord, Lord Diamond, but I shall certainly look for more assurances when he closes the debate before deciding which way to vote in a Division.
I have heard some noble Lords describe the Bill as an attempt to start the ball rolling and ultimately to abolish hereditary peerages. I do not agree with that approach. Without speaking my own book, I believe that hereditary Peers have a valuable and constructive role to play in your Lordships' House, both through their contributions to debates, through Select Committees and in the many other roles which they play. I took exception to the recent Channel 4 programme, which in my opinion gave a biased, inaccurate and skewed overview of the functionings of your Lordships' House.
As the twentieth speaker in this Second Reading debate it is difficult to come up with novel arguments that have not already been raised. As the noble Lord, Lord Diamond, mentioned, the Bill relates to the subject of sex discrimination and the power of Her Majesty to amend the letters patent of hereditary peerages. I shall not dwell on my argument for the retention of the role of hereditary peers. I am the 21st St. John of Bletso, a title which was created in 1559. I have not yet had the good fortune of getting married and setting up a family. But I do have a male heir who is a fairly distant relation. Should I become a father only of girls, I personally would wish that my eldest surviving daughter should inherit my title.
However, having said that, I do not support the wording of the Bill before us. I agree with the criticisms expressed and the concerns of many noble Lords; namely, that giving the holder of an hereditary title the option of applying to Her Majesty to amend the letters patent so as to pass on the title to the eldest child, being a female, rather than to a younger or more distant male, could lead to massive abuse. It could certainly lead to dashed expectations and even to serious family feuds. While I am sympathetic to the call for the eldest child to inherit the title irrespective of sex, I accept the strong feelings and arguments of those noble Lords who feel that it would undermine the inheritance system.
Peerages are described by many as a particular kind of inheritance which should be passed only through the male line. But I feel that there is scope for a re-think of this policy should there be no male in line.
As several noble Lords have mentioned, the House of Lords was originally a feudal assembly required to do military or knightly service for the sovereign. It was
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never intended that females should lead their soldiers into battle. Thankfully, contemporary thinking and policies have changed and there is no denying the invaluable role that women Peers play in your Lordships' House.
I am particularly in favour of allowances being made to hereditary Peers whose titles are destined to become extinct as they have no male heirs but have daughters. I would welcome the concession being granted in those cases to petition Her Majesty to amend the letters patent, thus allowing the eldest daughter to take on the title. I would also recommend that more special remainders be granted—a point raised by the noble Lord, Lord Strabolgi—in the event of more hereditary titles being created in the future.
In conclusion, though I am not in favour of the wording of the Bill, I strongly support the objective to increase the balance of women Peers in your Lordships' House. It may be that, as my noble and learned friend Lord Jauncey of Tullichettle mentioned, the Bill should be scrapped and totally redrafted from scratch. If, however, the Bill can be amended at Committee stage to provide a compromise for the concerns and desires expressed by many noble Lords today, I believe that it deserves a Second Reading.
10.3 p.m.
Lord Gainford: My Lords, we have heard many arguments for and against the Bill. What I might have been able to say is pure repetition, so I shall not say very much more. My interest in the Bill is purely personal. Unless the present constitution is altered, the Gainford peerage is safe because I have two younger brothers who have between them five sons. I myself have no sons but I have two daughters. I should love it if my eldest daughter could follow me into your Lordships' House. That is my personal wish. I know that my judgment is prejudiced but I believe that she would make a cracking good Member of this House.
I support the Bill and, like other noble Lords, would like to see it go forward to Committee and Report stages. There are always experts available in your Lordships' House. Noble Lords' expertise is well famed and admired throughout the whole world. If the Bill becomes law I have promised that I will make the choice available to me only with the full consent, understanding and, in particular, the good will of my younger brothers and their families. I could not do so otherwise. Having spoken previously about the Bill to the noble Lord, Lord Diamond, and in the hope that it will go on to further stages, I give it my full support.
10.5 p.m.
Lord Milverton: My Lords, I declare an interest and the fact that I hold a recent peerage. I inherited it from my father, who was the first to hold it. In his early days he sat on the Benches opposite. Clement Attlee gave my father the peerage for services in the colonial service. He left those Benches at the time of the nationalisation of steel.
I too have no sons; I have two daughters. Both are as able and capable as I have been perhaps in a small

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way and as capable as my younger brother or older sister. My daughters would be capable because they represent the younger generation of women who have as many gifts, capabilities and virtues as any of us men. More women Members will bless this House by their presence.
I hope that if the Bill is passed I can persuade my family that it is only right, natural and proper that my daughter shall succeed. Some noble Lords have implied that only good and excellent virtues can be taken from the male line. I do not believe that families will be broken up if the daughters inherit. If the family is real and true it will not break up. Therefore, that argument is not good. After all, good qualities descend from women too. Those of us who begat daughters hope that our daughters will carry on those good qualities. I am sure that many daughters have carried on the wonderful and decent characters of their fathers.
I know that there are difficulties but I believe that the introduction of the Bill is good. If we delay or dismiss the Bill we shall not be doing women, ourselves, the country or anyone any good. I acknowledge that many of its provisions need tidying up. But surely this House has the ability to do that. For instance, it would not be right or fair for a Peer with an older daughter and a younger son to have to decide after talking with them who should inherit the title. That sort of thing, as has been said already, needs to be put right. It should basically be the eldest who succeeds. If the eldest is a daughter, let it be the daughter. Therefore, I support the Bill.
I do not think it would be at all helpful to delay the Bill. We ought to take courage, accept it, and then believe, even though there may be many things to tidy up and put right, that we can do that in Committee. I hope that that is what will happen. We owe the noble Lord, Lord Diamond, thanks for having the courage to introduce this Bill, because it needed courage to do this.
10.11 p.m.
Lord Thomson of Monifieth: My Lords, I join with the noble Lord, Lord Milverton, in thanking my noble friend Lord Diamond for introducing this Bill. Even those who are most strongly opposed to the Bill and its purpose would concede that he has provoked a most fascinating debate in your Lordships' House. We all listened entranced to the noble Lord, Lord Mowbray and Stourton, and to the possibility that he might simultaneously also have been the Duke of Norfolk and the Earl of Shrewsbury. For my part I was totally fascinated to discover that the noble Duke, the Duke of Norfolk, for whom we all have great respect, actually holds 16 peerages. If in fact the Bill were to pass into law in its present form, which I am bound to say seems rather doubtful, I should think that the noble Duke, the Duke of Norfolk, might be able to make quite a notable difference to the composition of this House.
The Duke of Norfolk: My Lords, I have just worked it out. It is only nine.
Lord Thomson of Monifieth: My Lords, even nine Peeresses in their own right as part of the noble Duke's contribution to this House would be of great interest to us.
As a mere life Peer I do not have the same family interest in the merits and effects of this Bill as do the Members of your Lordships' House who are hereditary Peers. Those are highly personal issues involving, as has come out poignantly throughout the debate, great family pride and pride in tradition and the role that the family has played in this House, sometimes over many generations. It is not surprising that many different views have been expressed. Indeed not even my colleagues on these Benches have totally agreed with each other about what they wish to say about the Bill.
After some of the absorbing speeches we have heard I am afraid that my duty from this Bench is the rather dull one of seeking to state my party's approach to the issues raised by the Bill. So far as some future reform of the Upper House is concerned, we on these Benches do not believe in the hereditary principle as a modern basis for selecting legislators. On the other hand we believe in your Lordships' House as it is presently constituted, in the principle of equal rights for women to succeed to peerages and to play the part in the work of the House that so many of them already do so notably.
It is not a radical suggestion that lies behind my noble friend's Bill. He is simply seeking to bring the system of hereditary peerages in this House into line with modern ideas about the role and place of women. As the noble Lord, Lord Kilmarnock, said in an extremely interesting way, this House has gone through a continual process of modernisation. Apart from the ancient aristocratic peerages, whose history we listened to with great interest, a large part of the composition of this House is of fairly recent appointment.
In saying that I do not wish to reflect in any way on the contribution that hereditary Peers make to the work of this House. Some of my best friends are hereditary Peers. How could it be otherwise when I find myself, towards the end of my political life, in a party in which life Peers outnumber only narrowly —by 31 to 28—their hereditary colleagues? As regards the hereditary Peers on the Conservative Benches, where normally heredity flourishes—we shall wait to see what happens tonight—and one can always be summoned from the shires to produce a majority, I endorse what has been said by other noble Lords in this debate as regards those who serve on the Front Bench. Many of us admire the way in which the hereditary Members of the ministerial Bench, overworked and underpaid, carry out their duties with zeal and dedication. All things are relative in your Lordships' House and these people add a relatively rejuvenating atmosphere to the work of the House. In the absence of hereditary Peers, the Conservative Government would find it more difficult to provide a working Front Bench than would a Labour Administration.
However, enough of that. This debate has revealed how long the battle has continued to allow women to

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sit as hereditary Peers in their own right in your Lordships' House and how resistant the House has been to each change until perhaps it has finally been considered. Having listened with great interest to the noble Lord, Lord Denham, I am not sure whether that attitude has totally changed even today. I regard the noble Lord, whose presence on the Front Bench we all miss, as a kind of latter-day Lord Birkenhead, who in the 1920s fought a vigorous campaign to prevent Lady Rhondda taking her place here in the House and who opposed vigorously the efforts made by the grandfather of the noble Viscount, Lord Astor, to produce Bills that would have dealt with the disqualification of women. As has been said, it was not until the Peerage Act of 1963 that the small number of women possessing hereditary Peerages were given the right to sit and to vote.
When the noble and learned Lord the Lord Chancellor comes to speak, I hope that perhaps he will agree with me that they order these things better in Scotland, where, from the 12th century onwards, the tradition of heirs general has ruled. Today your Lordships' House benefits from the presence of a number of noble Baronesses who come from that Scottish tradition. I personally was a little saddened that, adorning that tradition as she does, the noble Lady, Lady Saltoun, seemed so very strongly opposed to spreading the benefits that she has enjoyed to other people coming from south of the Border.
Lady Saltoun of Abernethy: My Lords, I was not entirely opposed to spreading the benefits that the noble Lord says I enjoy. I said that, if it is done, I thought it should be done by remainder to heirs general, not by the means that the noble Lord, Lord Diamond, suggests.
Lord Thomson of Monifieth: My Lords, I am grateful to the noble Lady for that clarification. She certainly sounded pretty opposed to the proposal of my noble friend Lord Diamond.
However, I am bound to say that the whole tenor of the debate, even among those of us who strongly support the objectives of the Bill, has expressed concern about the practical problems of the formula that my noble friend proposes. For my part, I think that the noble Lord, Lord Diamond, would have been wiser to have adopted the straightforward Scottish principle of descent to heirs general. As has been said, the noble Lord gives hereditary Peers the extremely agonising discretion to decide whether the eldest daughter should succeed to the title or whether it should continue to pass to a younger son.
I understand the desire of the noble Lord, Lord Diamond, to meet his critics half way—at least I assume that that is why he has put the proposal into the Bill—but it seems to me to be an unsatisfactory compromise. Either there is a consistent principle that the daughters in a Peer's family should be treated on the same basis as the sons, or there is not. It has been argued that this eldest child principle would destroy unacceptably the legitimate expectations on the part of a male heir. I understand the human problem that might very well be involved in that, but it is not a unique human problem confined to the sons of
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hereditary peers. In life as it is lived today in this country, there are a very large number of people of all kinds who find that their legitimate expectations are not likely to be fulfilled during their lifetime.
The fact is that much legislative change, like much economic change, is continually destroying the expectations of those who would prefer, like so many of us, an undisturbed status quo. I do not myself think that that is an insuperable objection. However, I agree with those who feel that at the Committee stage of this Bill—and I personally hope that there will be a Committee stage—there will be much to examine and amend, in terms of making progress.
The noble Viscount, Lord Davidson, in what I thought was a delightful speech, put forward a modest compromise of his own. I prefer what I have proposed, but his proposal, as I understand it, was that if there was no son the eldest daughter should be entitled to the peerage. That is something worth exploring, as are other ideas that have come up in the debate.
On these Benches, we strongly share the objective that the noble Lord, Lord Diamond, seeks to achieve with this Bill. We for our part hope that it will be given a Second Reading and that during Committee stage it may be amended in whatever way your Lordships think wisest in order to make it as effective as possible.
10.22 p.m.
Baroness Mallalieu: My Lords, like earlier speakers, I should like from these Benches to congratulate the noble Earl, Lord Strafford, on his maiden speech. He was commendably brief and I agreed with virtually every word that he said. I hope that we shall be hearing from him frequently in this House in the future.
As a relative newcomer to your Lordships' House, I am, perhaps naively, still surprised at how little it takes to summon up the forces of reaction or to stir up the seemingly bottomless currents of resistance to the 20th century, or to any change. In your Lordships' House those forces sometimes come clothed in the disguise of reason, like the noble Viscount, Lord Falkland, or the noble Lord, Lord Glenarthur; sometimes such forces come naked and unashamed in the guise of the noble Lord, Lord Mowbray and Stourton, whose encyclopaedic knowledge of the breeding of almost everyone in this House leaves me breathless with admiration, even if his views do not.
I had thought that the principles that a woman should be treated by law and in fact as not in any way intrinsically inferior to a man, that a woman should have the same right to play a part in the government of her country as a man does and that discrimination on the grounds of sex is inherently unjust were principles which had found universal favour in our land. I also thought that they had been endorsed by your Lordships' House both in the anti-discrimination legislation, to which the noble Lord, Lord Diamond, referred and in the way in which this House treats those who are presently here as women Peers and who play a full and equal part in its work. But I was wrong.
This modest little Bill, which does no more than to whisper in the ear of noble hereditary Lords that they might, but only if they see fit, care to start to apply

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these principles in their own lives and within their own families, has been met with a storm of protest from some of your Lordships, which could scarcely have been louder if the proposed legislation had been intended to close down the College of Arms and make redundancy payments to Garter and the Heralds.
The Bill of the noble Lord, Lord Diamond, goes nowhere near as far as we on these Benches, and I sense others too throughout this House, would wish. In our view on these Benches the hereditary principle, while it may serve some quaint, archaic function and be of use perhaps to the tourist trade or on ceremonial occasions, has no place whatever in government. If the Upper Chamber is to survive —and speaking for myself I feel that this House performs a role which is both unique and valuable and without which the government of this nation would be the poorer—full-scale reform will almost certainly be required. But —and now I speak in a personal capacity because there is no Whip on this issue from these Benches—until that time, which may not be that far away, the hereditary principle will continue to play a part, and an important part, in the composition of this House. It is surely therefore desirable that the system should be improved as much as possible during that period.
This House suffers from an acute shortage of women—77 out of 1,217 if my figures are correct. There is no woman as yet on the Bishops Benches, although it is perhaps a little early to expect that; but no women as yet among the Law Lords is inexcusable. While there are young men in this House, some of whom—and I entirely accept and endorse what the noble Baroness, Lady Platt of Writtle, said—represent an age group and points of view which would have no other means of expression in this Chamber, what is noticeable to anyone coming into your Lordships' House is the total absence of young women. My attention was graphically drawn to that shortly after I came into this House by a young hereditary Peer on the other side of the House who is not in the Chamber at present but who, having cast his eye around the occupants of the Library one soporific afternoon, turned to me and said, "The real trouble with this place is that there is absolutely no opportunity for adultery".
While the noble Lord, Lord Diamond, did not choose to advance that argument in support of his Bill, women who have to deal personally with the difficulties of a home, a young family and a job as well and who constitute a substantial and important part of the population, are virtually totally unrepresented in your Lordships' House today. I confess that I was shocked to hear the noble Lady, Lady Saltoun of Abernethy, say that they should remain in that position as they were too busy feeding children. That was a view which I thought had faded into the mists of history and I venture to suggest that no man in your Lordships' House would have dared to advance it in 1992.
For my money the Bill is far too modest in its aims. I should have preferred to be supporting a Bill which, for so long as hereditary peerages continued, required the title to descend automatically to the eldest child
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regardless of sex. I understand the noble Lord's reason for taking his present course. He has chosen to present a Bill which seeks to meet the objections of some of those who either want to continue to live in the past when boys were considered preferable to girls, or who choose to perpetuate an injustice in the name of history and tradition and also, to be fair, those who feel that promises and expectations have been made within their families which they wish to honour. The Bill would allow them all to do as they please. Accordingly, I find it difficult to understand many of the objections that are still raised in those respects.
I have great sympathy for those who, under the Bill, would face a hard choice between an eldest daughter and a youngest son. But the picture that certain noble Lords painted and in particular the noble Lord, Lord Denham, and the noble Viscount, Lord Falkland, of dying Peers with gambling debts possibly being bribed, threatened or blackmailed by their children on their death beds, paints a worrying and disturbing picture of family life among the hereditary aristocracy of which I, as a mere life Peer, was wholly unaware.
A difficult decision for an individual Peer is surely preferable to the automatic insult to the eldest daughter which is currently enshrined and given respectability in the law and which, by its very nature, is an insult not just to the oldest children of hereditary Peers who happen to be girls, but to all women.
The noble Lord, Lord Denham, seeks, in effect, to wreck this modest Bill with his amendment. He has done so with great cleverness and without showing his hand at all. Will he tell us whether he thinks it is better that some other reform of the hereditary system of this House takes place or none at all? If, as I suspect, his answer would be, if pressed, that he wishes to keep the status quo, then I hope that his amendment will not attract the support of those who, like me, would ideally have preferred sterner stuff.
For all its shortcomings, defects and faults, this Bill is a step along the right path. The underlying principle is right and whatever its imperfections they should be addressed at a later stage of the Bill. The noble Lord, Lord Diamond, will therefore have my support and also my thanks for prompting, through the introduction of this Bill, an excellent debate which has been an education to all of us who have sat through it in this House. But he also deserves our gratitude for raising this matter at all; the gratitude not simply of women Peers or of potential women Peers, but of all who care about equality and fairness.
10.31 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I would like to begin by adding my congratulations to those already offered to the noble Earl, Lord Strafford, on his very eloquent and interesting maiden speech. I share also the hope that we shall hear him more often as time goes on.
As has been made clear, this Bill makes provision for Her Majesty to have the power, on a petition from the holder of an hereditary peerage to amend the letters patent creating that peerage so that it may descend to the Peer's eldest legitimate heir whether male or female. I am sure that I have the support of the

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whole of your Lordships' House in thanking the noble Lord, Lord Diamond, for drawing the House's attention to this important topic. I am sure that I also speak for the whole House in saying that we have had a most interesting debate and one which has illuminated some interesting corners of the peerage system, with an intimate knowledge displayed on these matters by a number of your Lordships.
The Government are fully in support of equal opportunities for the sexes and understand therefore the principle underlying the Bill. I do not myself think it likely that, in promoting the Bill, the noble Lord, Lord Diamond, was wishing to meet the aspiration of the gentleman whom, apparently, the noble Baroness, Lady Mallalieu, met in the Library.
I believe that the Government's record in relation to equal opportunities for the sexes bears out what I have said. I wish to highlight two matters. The first is the Government's full support for the aims of Opportunity 2000, a national campaign to increase the quality and quantity of women's participation at work. As part of this campaign, government departments are producing action plans for improving the position of women in their various areas of responsibility. The second is the Prime Minister's initiative, launched last year, to improve the number of public appointments held by women and members of the ethnic minorities. As a result of that initiative the overall percentage of women holding public appointments has risen from 23 per cent. in 1991 to 26 per cent. at 1st September 1992. The noble Baroness expressed disappointment that there was not yet a woman among the Law Lords. Well who knows what may happen in that connection?
I am sure that I also reflect the views of all of your Lordships in paying tribute to the valuable and hard work done by the female Members of this House. Our debates are much enriched by their contributions. As the noble Lord, Lord Diamond, pointed out, statistics reveal that female Members have a much better attendance record per head than their male counterparts. I am sure that that is not an accident. In that connection, it is right that I should also warmly support what my noble friend Lady Platt of Writtle said about our gracious sovereign and the devoted service that she has given to this nation, the Commonwealth and, indeed, the world during her reign. I am sure that we are all anxious that every blessing will attend herself and her family in the years to come.
I should like to say a word or two about the legal background to the Bill. Under English law, the letters patent creating an hereditary peerage must specify, among other matters, the descent of that peerage to future heirs. Any such descent must be of a kind known to the law and it is well established that the Crown cannot grant a peerage which is limited to descend in a form unknown to the law. The rule and practice in modern times are that it must be a limitation to heirs male of the body with an occasional addition of special remainders to bring in the daughters and their issue, brothers, nephews and collaterals, but ultimately the descent is fixed in an heir male line.
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My noble and learned friend Lord Jauncey of Tullichettle has already indicated the rather different position in relation to Scottish peerages. He referred especially to those created before the Union. Perhaps it would not be advisable for me, speaking from this position, to associate myself too closely with the remarks on this subject of the noble Lord, Lord Thomson of Monifieth.
The situation is, of course, special in relation to life peerages because of the obvious qualification involved. Consequently, the form of descent proposed in the Bill is one which is unknown to the law and which, without the statutory sanction the Bill would confer, would not be valid.
So far as the object of seeking equal opportunity for the sexes is concerned, I have nothing further to say. However, the Government see several considerable difficulties with the Bill as it is presently drafted, and I wish to speak about it on that basis. First, as most of the speeches have borne out, there is a strong feeling on all sides of the House that the holder of an hereditary peerage holds his peerage in trust, as it were —a tenant, as the noble Viscount, Lord Falkland, said, rather than a freeholder—for his descendants so that he should not be able to influence the line of succession at his choice. To allow him to do so would both disappoint the legitimate expectations of the male heirs of the Peers in question and also operate retrospectively in the sense that it might remove the vested, albeit contingent, rights of those heirs.
As has been said, it is true that people's expectations are often disappointed, but it is a question of whether it is right to alter these by retrospective legislation—retrospective in the sense that it would affect letters patent granted long before the Bill came into effect. A strong view could certainly be taken that it would be unfair to such heirs and a recipe for unhappy dissension in those families where it is sought to alter the descent of the peerage.
A second difficulty is that to alter peerage law in the way proposed could also create practical problems for those Peers where arrangements have been made for their property to descend, through trusts, to their male heirs. The Government understand the concerns of those who foresee such difficulties arising from the separation of property from title in these circumstances. The noble Earl, Lord Shrewsbury, referred to this matter.
I construe the Bill as first of all requiring action on the part of the current holder of the title in application to Her Majesty. My noble friend Lord Denham asked me whether, if that had been tainted by undue influence, the court could have a place. The details of the arrangements proposed are not sufficiently specific to enable me to give a confident answer to that question because it is linked with the next matter.
A third and significant difficulty with the Bill, as it is presently drafted, is the uncertainty it would create in relation to the role of Her Majesty the Queen in the matter. No machinery is provided for dealing with any request for the succession to be changed. It leaves the decision to Her Majesty without any rules or guidance as to how such a request should be dealt with. It is not difficult to imagine such a request being opposed by

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the prospective male heir to a title, thereby involving the Crown in determining between the claims of the existing heir and an eldest daughter. The Government consider it inappropriate that the Crown should be involved in this way in what could be unseemly family arguments.
This is the fundamental approach of the Bill. The Bill is not a general one of the kind described, for example, by the noble Baroness, Lady Mallalieu. The thrust of the Bill is to initiate the change by reference to the application of the current holder of the title. That is part of the fundamental structure of the Bill, although the Bill itself has a very wide Long Title.
My noble and learned friend Lord Jauncey of Tullichettle drew attention in his speech to difficult questions about the nature of the further devolution if this change were to be initiated and the application granted by Her Majesty. A number of noble Lords have spoken about more general questions. I think it right to confine myself to the subject matter of the Bill as presently proposed. Questions regarding the proper effect of legitimation by subsequent marriage in relation to titles and also questions about whether or not a general destination to heirs general would be preferable in these titles have been raised but I think it wise for me simply to give the view of the Government on the Bill. What I have been doing is to draw your Lordships' attention to defects in the Bill as drafted which seem to me to be important. Others have been mentioned but I have selected those as the principal ones. But whether or not the Bill should receive a Second Reading is pre-eminently a matter for your Lordships on a free vote.
I merely wish to conclude on a note of gratitude to all those who have taken part in what has been a most lively and interesting debate. As I said at the beginning, we are all grateful to the noble Lord, Lord Diamond, for his action in initiating the debate.
10.44 p.m.
Lord Diamond: My Lords, no one could be more grateful than I am, not just to the noble and learned Lord the Lord Chancellor for what he said, or to the maiden speaker who spoke with such clarity and helpfulness on a matter which he found sufficiently important to devote his maiden speech to it, which is a great honour to anyone introducing a Private Member's Bill, but generally to Members of your Lordships' House for appearing in such large numbers and contributing so fully to the discussion. I cannot possibly, nor does the time permit, answer every detailed point, but I shall deal with one or two of the themes which have come up time and time again.
First, perhaps I may remind your Lordships that the Bill has nothing to do with the total reform of your Lordships' House. Anyone who was in government the last time an attempt was made will not easily make another attempt. There has to be a Speaker's Conference, agreement between the parties and an enormous amount of free time available in the Chambers of both House to enable almost endless discussion to take place, because, of course, on a constitutional issue such as this one cannot limit the
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length of speeches. All that has to happen before a government—not a private individual—can attempt to bring forward a major reform of your Lordships' House. That is out of consideration.
It seemed to me that we could do something which would improve the work of the House, improve the standing of the House in public esteem, and enable a gross disfigurement of our activities to be removed; namely, the exclusion of women from an equal share in the opportunities which the Government want and I want them to have. That is what I had in mind in bringing forward the Bill. It is one that has been in my mind, as must be obvious to the House from the number of times I have raised the subject at Question Time, for over eight years. It is no sudden inspiration. It is something which has been steaming up inside me until I could control it no longer. That is why I introduced the Bill at this time. I had in mind also that it is a long Session and there is therefore ample time for discussion here and in another place if one were fortunate enough to achieve a Second Reading.
Clearly I made a major mistake. I am not by nature a person to compel other people to do what they do not want to do. Therefore, I thought that I was right to start with a small, one-clause Bill. I am deeply grateful to the House authorities who have enabled me to bring forward the idea couched in just a few lines and in one clause. I thought it far better to start with a Bill which left it to noble Lords to decide what they wanted. If we could reach a Committee stage we could put forward amendment after amendment and have a thorough discussion. One cannot discuss on Second Reading; one can make speeches on Second Reading. I even have the good fortune to be able to make a second speech. We cannot exchange views on detailed points on Second Reading, we can only do that in Committee. I had hoped that in Committee Members would come forward with any ideas that occur to them, including, in particular, the remedy to a difficulty to which many Peers have referred—namely, that they do not want the responsibility and embarrassment of making the choice themselves. I referred to that issue in my opening comments and I mentioned a way of overcoming that difficulty.
I apologise for my misjudgment. I must say that I share with the noble Baroness, Lady Mallalieu, surprise at the extent to which a number of hereditary Peers felt themselves incapable of making choices. It must be my fault. I spent six years as Chief Secretary to the Treasury making several choices per day. It was not all that difficult because every choice was "no"; nevertheless, I was a little surprised, but that is for your Lordships to decide. That is why I wanted merely to bring the matter forward and let your Lordships decide at Committee stage what was the best way to proceed.
I am grateful to all who expressed the view that we should do our best to remove the blatant discrimination against women. That is my main purpose. I hope that those noble Lords will also share the view that this matter is of great interest outside your Lordships' House. The media have picked it up. I have done seven television broadcasts. People in Canada and in the United States were interested.

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Clearly, the outside world is looking at what we do. I hope that the message going from this House will not be that we are so unwilling to consider change that we are not even prepared to give the Bill an opportunity to be considered at Committee stage. Your Lordships may come to the conclusion at the end of the Committee stage, or any further stage, that there is no future for the Bill, no possibility of getting a consensus. I hope that we can. but your Lordships may reach that conclusion. Very well, then is the time to vote against the Bill, but not now. Therefore I hope that your Lordships will be good enough to allow the Bill to go on to its Committee stage.
10.51 p.m.
Lord Denham: My Lords, after that speech in such moderate terms by the noble Lord, Lord Diamond, I feel particularly bad about having to proceed with my amendment. I hope that no one will get the idea that any Peer who votes against the Bill is against women and is some kind of reactionary chauvinist. I wish to assure the House that certainly I and, I suspect, anyone who happens to come into the Division Lobby will be only too pleased to see as many young women as possible in the House, and not only for the reasons hinted at by the noble Baroness, Lady Mallalieu's friend.
My sticking point over the Bill is that I do not think that it is right. However right it is to have hereditary Peeresses in the House, I do not think that it is right to deprive the existing heirs male of something that they always had a right to expect. That is my sticking point with the Bill.
I also feel slightly that in parliamentary terms it is not proper to give a Second Reading to a Bill whose Long Title is so widely drawn and whose single clause is, I think, admitted in its main contention to leave the choice of successor to the existing Peer. Through the course of the debate that clause has been held by the majority of people to be flawed. I am afraid that I must therefore press my amendment.
10.53 p.m.
On Question, whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 60; Not-Contents, 33.

Division No. 1

CONTENTS

Aberdare, L.

Cranborne, V.

Ackner, L

Cumberlege, B.

Allenby of Megiddo, V.

Denham, L. [Teller.]

Astor, V.

Denton of Wakefield, B.

Bessborough, E.

Donegall, M.

Brougham and Vaux, L.

Dudley, E.

Buckmaster, V.

Elton, L.

Cadman, L.

Falkland, V.

Caldecote, V.

Geddes, L.

Camoys, L.

Glenarthur, L.

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Goschen, V.

Norfolk, D.

Halsbury, E.

Palmer, L.

Harrowby, E.

Pender, L.

Henley, L.

Romney, E.

Hesketh, L.

St. Davids, V.

HolmPatrick, L.

Salisbury, M.

Hylton-Foster, B.

Saltoun of Abernethy, Ly.

Jauncey of Tullichettle, L.

Shrewsbury, E. [Teller.]

Lauderdale, E.

Simon of Glaisdale, L.

Liverpool, E.

Stockton, E.

Long, V.

Strabolgi, L.

Mancroft, L.

Strathclyde, L.

Mills, V.

Strathmore and Kinghorne, E.

Milner of Leeds, L.

Terrington, L.

Monckton of Brenchley, V.

Thomas of Gwydir, L.

Monk Bretton, L.

Trefgarne, L.

Monson, L.

Trumpington, B.

Morris, L.

Vivian, L.

Mowbray and Stourton, L.

Wakcham, L.

Napier and Ettrick, L.

Warnock, B.

NOT-CONTENTS

Addington, L

Mallalieu, B.

Attlee, E.

Milverton, L.

Balfour of Inchrye, L.

Ogmore, L.

Birdwood, L.

Parkinson, L.

Byron, L.

Platt of Writtle, B.

Colville of Culross, V.

Rea, L.

Craigavon, V.

Redesdale, L.

Davidson, V.

Richard, L.

Diamond, L. [Teller.]

Rodgers of Quarry Bank, L.

Gainford, L.

St. Edmundsbury and Ipswich, Bp.

Gardner of Parkes, B.

Graham of Edmonton, L.

St. John of Bletso, L.

Howie of Troon, L.

Strafford, E.

Jenkin of Roding, L.

Teviot, L.

Kilmarnock, L.

Thomson of Monifieth, L [Teller.]

Kitchener, E.

Lucas, L.

Wharton, B.

McNair, L.

Resolved in the affirmative, and amendment agreed to accordingly.

London Docklands Railway (Lewisham, etc.) Bill now London Docklands Railway (Lewisham) Bill
The Queen's consent signified, and Bill reported from the Unopposed Bill Committee with amendments.
London Docklands Railway (Lewisham, etc.) (No. 2) Bill now London Docklands Railway (Lewisham) (No. 2) Bill
Reported from the Unopposed Bill Committee with amendments.

City of Bristol (Portishead Docks) Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at two minutes past eleven o'clock.