Lords Sitting of 27 April 1994

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

Performance-related Pay: Armed Forces
Lord Craig of Radleyasked Her Majesty's Government:
What plans they have for introducing performance-related pay for servicemen and women, and whether such a concept would be applied to all ranks.
The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne): My Lords, we have no such plans at present, although the Armed Forces Pay Review Body and the Senior Salaries Review Body are examining the concept.
Lord Craig of Radley: My Lords, does the Minister recall that in the 1994 Senior Salaries Review Body report, the Government are quoted as saying that their view was that performance pay was inappropriate for the Armed Forces? Does not the Minister agree that the system of promotion is widely accepted and universally approved as a method of rewarding performance? Most importantly, do the Government accept that that process of promotion, which is founded on comprehensive annual reports on every individual by his most immediate superior, and a formal promotion board drawn from the individual's own service, is extremely fair and a key to the services' reputation for integrity and incorruptibility in such matters?
Viscount Cranborne: My Lords, I associate the Government with the latter part of the noble and gallant Lord's remarks, with which I am sure all of your Lordships will also wish to be associated. I refer the noble and gallant Lord in particular to paragraph 40 of the recent report issued by the Armed Forces Pay Review Body, with which I am sure the noble and gallant Lord is familiar, in which it is made plain that the pay review body would very much like to consider the concept. It recognises in paragraph 125 of the same document the difficulties attendant on systems of that kind. I suggest to the noble and gallant Lord that it would be wise if that independent and respected body —respected in particular by the armed services—were allowed to examine the concept and then report to the Government. In due course, we could then make our own judgment on its conclusions.
Lord Campbell of Croy: My Lords, is it correct that the aim of the proposals is to recognise the past achievements and experience of those who cannot expect further promotion because steps are not available, such as warrant officers? In that case, would it not be sensible to give the proposal a description which is more accurate and easily understood?
Viscount Cranborne: My Lords, that is certainly one approach which would have to be taken into account by the Armed Forces Pay Review Body in its considerations. My noble friend will be aware also that a number of private sector firms have examined systems of varying kinds. Many of them have reached the conclusion that individual performance review is not preferable to team performance review and that team performance review may be more effective for the Armed Forces. I suspect that that may invite a greater degree of approval from the noble and gallant Lord than would the performance review of individuals.
Lord Dean of Beswick: My Lords, does not the Minister agree that, while the Armed Forces capability is reducing substantially, it appears to lay people like myself that they have ever-increasing areas of responsibility because of what is taking place in various parts of the world today? Should not those men and women who are now taking on increasing responsibilities be rewarded more adequately than they are at present?
Viscount Cranborne: My Lords, I believe that the noble Lord, Lord Dean, whose interest in defence matters I welcome and recognise, has put his linger on the reason why the Armed Forces Pay Review Body welcomed the idea of looking at that concept. I am sure that the noble Lord will be as interested as I am in the results, because he clearly understands the motivation for such a step.
Lord Hailsham of Saint Marylebone: My Lords, is it not at least arguable that performance related pay would be inconsistent with the general ethos to be attached to a uniformed and disciplined service?
Viscount Cranborne: My Lords, I know that that is one view, and it is certainly a view which is held strongly in certain parts of all three armed services. Nevertheless, I ask my noble and learned friend to recognise that equally there are circumstances in which people of the same rank have different responsibilities and different jobs. If we are to retain the high quality people whom we already have the good fortune to have in the armed services, increasingly, we shall have to recognise that we must devolve greater levels of responsibility down to lower ranks, and that those greater levels of responsibility need to be recognised by higher rates of pay. That is one approach that we shall examine. I emphasise to my noble and learned friend that as yet we are entirely open-minded and unpersuaded either way.
Lord Mayhew: My Lords, does not the noble Viscount agree that the motivation of servicemen is in many ways different from and better than that of civilians? Do I understand the noble Viscount to say that the idea of performance-related pay for servicemen has not come from the new, wholly civilian review set up under the chairmanship of Mr. Michael Belt? Will the Minister inform the House which senior military officers are participating in Mr. Bett's review, and at what level?
Viscount Cranborne: My Lords, as to the first part of the noble Lord's question, I must answer—I am sure to his satisfaction—with an unequivocal yes. As to the second part, I believe that both he and I have discussed the matter previously in your Lordships' House. I can repeat to him the fact that the views of the Armed Forces Pay Review Body will be of paramount importance, if only for the reason that its independence ensures that it enjoys the trust of servicemen and women themselves —a trust which we were in danger of losing back in the 1970s and which we must be very careful about losing again.
Lord Williams of Elvel: My Lords, is the noble Viscount aware that we on these Benches very much resent what he just said about the trust of the Armed Forces in the 1970s? Will the noble Viscount very kindly take that point on board? Further, will he acknowledge that the Armed Forces Pay Review Body has appointed so-called "independent consultants" and that the name of those consultants and the fee that they are to be paid to establish something which, to my mind, is a load of absolute rubbish, have not been disclosed by the Government; nor, indeed have their terms of reference been disclosed? Until the Government come a bit cleaner on the matter, we shall continue to take the very hostile view that we have.
Viscount Cranborne: My Lords, I am always distressed when the noble Lord, Lord Williams, and I fall out over such matters, especially in view of the noble Lord's very considerable military experience, which certainly tops my own. However, I must tell the noble Lord that it is incontrovertible that there was a period in the not-too-distant past, before the Armed Forces Pay Review Body was set up, when the trust which, rightly, the Armed Forces should have in their pay arrangements was at risk of being lost. The Armed Forces Pay Review Body has restored that trust. It is something which any government—especially this Government—lose at their peril.
It is only right that a body like the Armed Forces Pay Review Body should take the lead in reviewing terms and conditions of service. It will then be certain in the minds of servicemen and women that the results will be independent and certainly not influenced by political or other considerations.
Baroness O'Cathain: My Lords, when the review body examines the whole concept of performance pay, will it take note of the experience in the private sector? To my certain knowledge, the whole concept of performance-related pay has been brought in as a buzz-word to hide a certain amount of avariciousness. It is extremely difficult to try to come to the right decisions with performance pay reviews; indeed, I have experience of the latter in three areas. It is most important that the point made by the Minister as regards the analysis of the team should be taken into account. Can the Minister say whether there is a chance that the House could actually look at whatever system might be proposed before a decision is taken?
Viscount Cranborne: My Lords, I am extremely grateful to the noble Baroness, who, I know, has
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considerable experience in the matter. I am the first to acknowledge that the experience in the private sector of a number of companies—mostly very substantial companies, both British and European—has been, at best, patchy. It is for that reason that I tried to emphasise to the House this afternoon that our views are entirely open on the matter. I should certainly very much like to give your Lordships an opportunity to discuss the concept a little later when the Armed Forces Pay Review Body has had a chance to report.
Noble Lords: Next Question !
The Lord Privy Seal (Lord Wakeham): My Lords, I believe that the House would now like to move on to the next Question.

National Nature Reserves: Management
2.49 p.m.
Baroness Nicolasked Her Majesty's Government:
Whether they have any plans to review the ownership and management of national nature reserves in England, Scotland and Wales.
The Parliamentary Under-Secretary of State, Department of the Environment (The Earl of Arran): My Lords, the Government have no plans for such a review.
Baroness Nicol: My Lords, I thank the Minister for that very positive, if short, Answer. Will the Minister accept that behind my Question is the anxiety in some circles that the privatisation plans of the 1980s were to be revived? There will be considerable relief that that is not so. Can the Minister confirm that, as the country agencies use some of those reserves for land management exercises and because they are so important to wildlife, the day-to-day management will stay in the hands of government agencies?
The Earl of Arran: My Lords, I can certainly say to the noble Baroness that we have never advocated such a policy of selling off NNRs but we have asked the agencies to consider whether some management functions could be contracted out. The noble Baroness is quite right and she is the first to appreciate that the national nature reserves are the jewel in the crown of nature conservation in this country. She is also quite right in saying that they have other important secondary values such as for demonstration and advice purposes and for education, amenity and recreation.
Baroness David: My Lords, the Minister has just mentioned education. Is he aware that a great deal of environmental education goes on in these reserves? Will he give some assurance that if there is contracting out the educational work will continue and that there will be no charge for it?
The Earl of Arran: My Lords, the noble Baroness is quite correct. I have stressed the importance of education and certainly that will continue.
Lord Beaumont of Whitley: My Lords, since the government funding for these bodies—the jewel in our

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crown—has dropped from £2½ million in 1985 to zero last: year, will the Minister provide financial assistance for conservation bodies to assist in their management of important sites for wildlife?
The Earl of Arran: My Lords, this jewel in the crown is mostly run by English Nature to which the government grant is some £40 million. I cannot say that is no funding.
Lord Williams of Elvel: My Lords, we keep on hearing this expression "jewel in the crown" which—is the noble Earl aware?—arouses certain suspicions on this side of the House. A jewel in the crown is almost immediately sold off. Will the noble Earl confirm that not only do the Government have no plans, in the terms of the original Question, on the ownership and management of national nature reserves in England, Scotland and Wales, but also that the Government are not even considering carefully —to use his expression of yesterday—such plans? Does he not accept that the national nature reserves are an enormous success and, in the words of my noble friend Lady Nicol, it is vitally important that their management and ownership remain in the public sector?
The Earl of Arran: My Lords, I can confirm that we have no plans nor are we carefully considering any such plans.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that if the general principle of contracting out has any basis, the reserves ought not to be excluded from it? There are so many of their functions which can be more efficiently and, I think, more cheaply carried out by outside contractors which need not interfere with the general presentation of the reserves to the nation.
The Earl of Arran: My Lords, my noble friend is indeed absolutely correct. Contracting out in many instances, including the management of national nature reserves, is very often a sensible and cost-effective method of looking after them.
Baroness David: My Lords, is the Minister aware that he did not answer the second part of my question? He said the education would continue; I asked whether there would be any charge for it.
The Earl of Arran: My Lords, whether or not there will be any charge will depend upon the actual circumstance. I am not aware at this moment whether there is any charge involved, but it is something that we shall keep carefully at heart.
Lord Beaumont of Whitley: My Lords, is it not true that although English Nature is funded in order to look after these reserves, the money for the purchase of nature reserves has now dropped to approximately zero?
The Earl of Arran: My Lords, once again the noble Lord, Lord Beaumont, is totally incorrect. The money spent on the purchase of national nature reserves by English Nature, which includes their management as well, is some £8 million.
Baroness Nicol: My Lords, the Minister agreed with his noble friend that certain functions of national nature reserves could be contracted out. That is interesting. Which functions does he feel would be suitable for that exercise?
The Earl of Arran: My Lords, I thought I had already made that clear. I am particularly referring to the management, running and maintenance of the reserves.

London Hospitals
2.54 p.m.
Lord Molloyasked Her Majesty's Government:
Whether they are continuing to receive representations from those working in the health service about the future of London's hospitals.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, there have been few formal representations from staff working in the London hospitals; but a series of meetings have taken place over a considerable length of time both with staff working in hospitals and others who work in the community and in primary care.
Lord Molloy: My Lords, I thank the noble Baroness for that reply, but is she aware that there are many members of the NHS staff, including surgeons, doctors, staff nurses, nurses and auxiliary staff, who are gravely concerned at what they see as a very serious rundown of the great hospitals in London, including the great teaching hospitals? I hope the Minister will agree that these great hospitals are important not only for London and not only for this country but also in terms of their history and what they can provide in the future for mankind. Those hospitals ought to be preserved and should not be threatened in any way whatsoever.
Baroness Cumberlege: My Lords, the National Health Service does have to change with differing needs, both in health and social terms. The King's Fund, a well respected body, has stated this recently. Its director, Robert Maxwell, has said that the,
"balance of health and social care in the capital is not appropriate to the needs of Londoners. However adjusting the balance will inevitably take time. Now the task is to work through these changes on the ground building up good alternatives that are affordable, that work and that make a better framework for the long term".
We agree with that.
Lord Carr of Hadley: My Lords, can my noble friend confirm that, while there may be some of those who work in the health service at all levels in London who are pessimistic, it is also true that there are a great many who are extremely optimistic and enthusiastic about the wonderful new chances they have been given to provide a better service to patients?
Baroness Cumberlege: My Lords, I am grateful to my noble friend. That is the case. Many nurses are seeking new opportunities outside hospitals, working in the community as nurse practitioners with more responsibility. They are finding it a very fulfilling experience.
Lord Strabolgi: My Lords, will the noble Baroness confirm that the Royal Marsden Hospital is now safe so that it can continue its important work in cancer research and treatment free from further uncertainty?
Baroness Cumberlege: My Lords, the Royal Marsden Hospital has now become a trust. It has to compete in the marketplace in London. I am sure, knowing of its high reputation, the work that it does and the respect that it has nationwide, that it will succeed.
The Countess of Mar: My Lords, will the Minister say whether the continuing reports of patients having to wait in casualty departments on trolleys are merely teething problems while things are being sorted out, or will they continue, and, if they are to continue, will she please see that something is done about it?
Baroness Cumberlege: My Lords, we are very anxious that people do not wait on trolleys in accident and emergency departments. We are putting further investment into these departments in several hospitals in London, including £1 million into the Homerton, £8 million into King's and £3.2 million into St. Thomas's. But the noble Countess is absolutely right. It takes time for the completion of all the building work; and all the changes have not yet been made.
Lord Boyd-Carpenter: My Lords, will my noble friend confirm that the Royal Brompton Hospital will survive?
Baroness Cumberlege: My Lords, it is impossible for me to give a cast-iron assurance for all these hospitals for ever and ever, because we know that things change. This is another special health authority that is now a trust. I believe it has a great deal of expertise and respect and a secure future.
Lord Rea: My Lords, does the noble Baroness accept Professor Brian Jarman's careful analysis which shows that London has no greater excess of hospital beds than any other large city in the UK with similar housing and social problems? Those are factors to which Professor Tomlinson may not have given full weight in his report. Does the noble Baroness not agree with Professor Jarman's view that the crux of the problem is that inner London has too few beds for long stay mentally ill and geriatric patients, and that these are blocking acute beds, with the result that general practitioners, particularly now that the total number of beds is going down, are having greater difficulty than ever in getting acutely ill patients admitted?
Baroness Cumberlege: My Lords, there is a difference between Professor Jarman's figures and ours. They are on different bases. Professor Jarman's figures are for the whole of London, whereas ours are for inner London, and that is where most of the changes will be. Professor Jarman also included community and long-stay provision. The research that we were doing was on acute services. But we recognise that there is a problem with those who are acutely mentally ill. That is why my right honourable friend the Secretary of State has introduced a very active dynamic plan to put more investment into this service.
Lord Rea: My Lords, perhaps I may follow up that point. Does the Minister not realise that general practitioners are finding it difficult to get acutely ill patients with other conditions, not only mental illness, into hospital? The emergency bed service is receiving more calls for help with admissions than it has for many years.
Baroness Cumberlege: My Lords, when I last looked into the situation with the emergency bed service about two months ago, it assured me that there had not been a red alert for over two years. I believe that it is going to take a little time for all these changes to come about. But we know that if we are to give a better service to Londoners it means that we have to invest more in primary and community care. Every single statistic we look at shows that they are much poorer in London. To do that we need to get resources from some of the London hospitals. We know that we have too many hospitals and they are inappropriately placed. We need to consolidate and build up expertise in fewer centres of excellence. Then, I believe, we shall have a much better service for Londoners.
Lord Molloy: My Lords, is the noble Baroness aware that many of the surgeons, doctors and nurses who are involved are of the opinion that the health service in London is not starved of funds but is not getting as good a crack of the whip as other parts of the United Kingdom? Bearing in mind what I have already said, I feel that everyone in this House will want to see our health service preserved and the great London hospitals enriched so that they do even greater work than they are doing now. In order to achieve that, will the Minister at least be prepared to consider that it might be right to have serious consultations now with the representatives of surgeons, doctors, nurses and ancillary staff so that we can arrive at a sensible conclusion, shared by everybody, to improve London's wonderful service?
Baroness Cumberlege: My Lords, we have invested £85 million extra in primary and community care and £105 million in the hospital service this year to bring about these changes. We know that London is better resourced than any other part of this country. Of course we work with staff, but we work on a constant basis. There is continuous dialogue: between the trusts, the London Implementation Group, Ministers and staff.

Child Support: Maintenance Formula
3.3 p.m.
Earl Russellasked Her Majesty's Government:
Whether it is true, as stated by Mrs. Ros Hepplewhite on the Jimmy Young Show on 1st March, that for parents paying maintenance under the Child Support Act 1991 "the formula makes it impossible for you to be worse off than if you were on the dole".
Viscount Goschen: My Lords, the formula for assessing child maintenance contains an important safeguard called protected income. A calculation is

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made in all cases to ensure that an absent parent and his second family, if he has one, retains a level of income after paying maintenance which is higher than his income support would be if he were unemployed.
The changes to the scheme introduced in February significantly increased that level of protection, which is now at least £30 above the appropriate income support levels.
Earl Russell: My Lords, I thank the noble Viscount for confirming that the level of protected income is £30 above income support. Will he accept that the weekly cost of an annual season ticket from Chelmsford is £37, from Hastings £49, from Eastleigh £52, from Newbury £44 and from Oxford £51? Can he tell us how that is compatible with the view expressed by Mrs. Hepplewhite ?
Viscount Goschen: My Lords, I cannot possibly confirm the exact costs of travel quoted by the noble Earl. Of course expenses will vary from person to person. For example, for some people a particular method of travel to work will seem essential. Other people will regard some other expense as essential. The All Party Social Security Select Committee agreed that it would be wrong to allow a list of possible arguably essential expenses to take priority over basic child maintenance.
Lord Stoddart of Swindon: My Lords, does not the noble Viscount agree that the figures which have just been read out by the noble Earl, Lord Russell, indicate that many people will have additional expenses over the £30 above income support? I hope that he agrees that that should be noted. Is it still the Government's intention to extend the scheme after 1996 to people who are not drawing any social security? If so, why is it that the Government wish to interfere in arrangements between private persons which have often been made legally through the courts?
Viscount Goschen: My Lords, the noble Lord, Lord Stoddart, quoted the example of travel costs. It is not possible for the child support formula itself to make someone paying child support maintenance worse off than if he was on the dole. However, if account is taken of other commitments, such as high travel-to-work costs, then some absent parents may indeed perceive themselves to be worse off.
Lord Stallard: My Lords, does the Minister accept that his replies do not tally with the correspondence that many of us have received from victims of the CSA? Is it not becoming clear that the whole issue has been tackled from the wrong end and that we are attacking the wrong people? Those who already have legal agreements are being penalised with the result that great difficulties are caused where they did not exist before. Is this not another example of a cost-cutting exercise which has gone dramatically wrong and which ought to be put right as soon as possible?
Viscount Goschen: No, my Lords, I do not agree with the noble Lord, Lord Stallard. The basis is the maintenance requirement for keeping a child. The agency is not specifically concentrating its efforts on
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those absent parents who were already making financial provision for their children. It is estimated that in the first year 60 per cent. of all the cases dealt with were those in which no regular maintenance was previously paid.
Baroness Turner of Camden: My Lords, does the Minister agree that the formula is rather inflexible? Would it not be a good idea to introduce a right of appeal? Will the Minister accept that we on this side of the House support the notion that absent, parents should contribute to the maintenance of their children? But should not the system be applied in a rather more sensitive manner than it has been hitherto?
Viscount Goschen: My Lords, the system is a very sophisticated one which we believe targets resources appropriately. There is an existing appeal system, which is comparable to the social security appeal system. If any of the parties concerned are unhappy with the decision of a child support officer a review can be requested.
Lord Hailsham of Saint Marylebone: My Lords, will my noble friend bear in mind that there is a small number of people who still believe that the courts are a more appropriate vehicle than a formula?
Viscount Goschen: My Lords, we believe that the Child Support Agency is the best method for ensuring that the maintenance requirements of children are indeed paid by those who are responsible, the natural parents.

Business of the House: Finance Bill, 29th April
3.8 p.m.
Lord Wakeham: My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That Standing Order 44 (No two stages of a Bill to be taken on one day) be dispensed with on Friday next to enable the Finance Bill to be taken through its remaining stages that day.—(Lord Wakeham.)
Lord Simon of Glaisdale: My Lords, I hope that your Lordships will think it permissible for me to intervene at this moment in view of the fact that I have a Motion down that the Second Reading of the Finance Bill be adjourned to next Tuesday. I am most grateful to the noble Lords on the Opposition Front Benches for allowing me to go ahead in this way.
The proposal is that the Finance Bill be taken on a Friday at a time of the year when your Lordships do not normally sit on Friday. Moreover, it is a Friday before a bank holiday. What is more, only 11 days' notice was given that that was proposed. Obviously practically all of your Lordships will have made arrangements for the weekend. The Bill was read a third time in the other place only on Monday. It appeared in the Printed Paper Office only today. It is in two volumes. It runs to 462 pages. I have put down the Motion because it seems to me that the course that is proposed is derogatory to your

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Lordships' role in the constitution, and indeed difficult to reconcile with the terms of the Writ of Summons from our Sovereign to which your Lordships respond.
On 13th April your Lordships debated the constitutional role of your Lordships' House. There were many notable contributions. What was surprising was the degree of consensus on that occasion, even extending in large respect to those who believe that the composition of your Lordships' House should be altered. It was generally agreed that your Lordships' House has an important role to play in the constitution. That derived largely from the exceptional quality of your Lordships' House—the degree of experience and ability which is recruited and succeeds to your Lordships' House. Indeed, that is a large part of the political legitimacy of your Lordships' House. Whatever issue of public affairs comes before your Lordships, it commands a high degree of expertise, experience and knowledge. If any issue merited such attention, it would be finance, commerce, industry and fiscal matters—in other words, the issues that are contained in a Finance Bill.
It is impossible to enumerate completely, certainly without being invidious, the degree of experience and ability which your Lordships can command. However, one can start with five former Chancellors of the Exchequer, four former Chief Secretaries, a former Chief Permanent Secretary to the Treasury, noble Lords who have had experience in the administration of the fiscal laws in the Inland Revenue, three former governors of the Bank of England, the chairman of one of the biggest joint stock banks, and so on. One could go on almost indefinitely. Therefore, if there were any issue. which merited the attention of the wide knowledge that your Lordships can command, it would be a finance Bill.
I should like to ask this. How many of such people as I have enumerated were consulted? How far was their convenience taken into account? How many are likely to be available on Friday?
I say only this in addition. Owing to the cut-off date under the Provisional Collection of Taxes Act, the measure must be passed by 5th May. That is why I have amended the Motion that I have put down so that the Finance Bill can be considered next Tuesday, within that time. However, that date, 5th May, is not inscribed in some celestial calendar. It is the creature of the present Government, who put it into a recent Act when the Budget date was changed from the spring to the autumn. So the Government have had ample opportunity all along to know that the cut-off date was 5th May and that the Bill should arrive in your Lordships' House in time for it to be considered.
The Finance Bill was first considered in another place on 25th January. The Government have throughout had control of its progress. Yet it arrived here only on Monday. According to the Companion to the Standing Orders, two weekends should elapse between a Bill being received from the House of Commons and its Second Reading. Your Lordships have sometimes waived that requirement in the case of a Finance Bill. But if ever there was a Finance Bill where such a rule
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was requisite, it is this Bill—and not one word has been said to explain why that rule should have been disregarded among so many others.
This is a money Bill. However, your Lordships can amend a money Bill, and in the past have frequently done so. Your Lordships do not amend the supply provisions of a finance Bill; but your Lordships are free to amend other provisions notwithstanding that it is a money Bill. Even glancing through those 462 pages, no one can doubt that it is susceptible of improvement and clarification at least in its drafting. I hope that your Lordships will protest against being treated in this way.
I have one other point. A number of noble Lords have frequently sought to use the convenient opportunity of a Consolidated Fund Bill for a debate on general economic and financial matters. They have been brushed aside. They have been brushed aside with the assurance that there is ample opportunity otherwise. The last time was a few months ago when the Consolidated Fund Bill in question arrived conveniently between the economic debate on the Queen's Speech and the arrival of the Finance Bill.
I shall leave that issue to those who are frequently concerned with pressing their case. But it seems extraordinary that, after they have been brushed aside, your Lordships should be treated in this way, with the Finance Bill being put down at short notice on a Friday before a bank holiday.
Lord Harmar-Nicholls: My Lords, I believe that it is one of the rare occasions when the noble and learned Lord, Lord Simon, is being unreasonable.
Noble Lords: Oh!
Lord Harmar-Nicholls: Certainly it is. We know that the noble and learned Lord is an expert on matters to do with the procedures of this House and on adhering to standing orders. He is an invaluable watchdog. However, on this occasion, without evidence that the Finance Bill contains provisions which mean that the procedure should be adhered to rigidly, he is being unreasonable. There is no question, as I see it, of the House being ridden over roughshod. The matter is on the Order Paper. If we wish to do so, we can refuse to grant permission to my noble friend to deal with the matter in one day. The power is ours. But the Government suggest that with the business that must be dealt with in this Session this is one occasion when, by putting the two days together, we can carry out our duties.
I much admire the noble and learned Lord, Lord Simon, but on this occasion he is carrying the fact that he is a purist on such matters to the point where it conflicts with common sense. I should have thought that this is one occasion where we should put the two days together to everyone's advantage, without interfering with the constitutional powers which the House has.
Lord Stoddart of Swindon: My Lords, the noble Lord, Lord Harmar-Nicholls, has completely missed the point. The issue is not whether to take two stages of the Bill together. The point made by the noble and learned Lord, Lord Simon, was that we in this House are not being given the opportunity to discuss the Bill at a

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reasonable time, having received proper notice of it. In other words, we are not to discuss it on a Monday, Tuesday, Wednesday or Thursday but on a Friday before a bank holiday. As I understand it, that is what the noble and learned Lord was talking about. He is absolutely correct in that this House has certain rights. It has those rights because it is the only second Chamber that we have. We should not forget that. We may not agree 'with its constitution but it is the only second Chamber we have. Since the people of this country believe in bicameral government, they are entitled to expect that this House will do its duty properly and be allowed to do so by the Government and their business managers.
It is the Government's business managers who are to blame. As the noble and learned Lord, Lord Simon, said, they must have seen the problem coming and they must know that the House is entitled to expect that it should have a month in which to debate a money Bill. Therefore, they should leave adequate time to deal with it at a time which is convenient to the Members of the House and not when it is convenient to the House of Commons or the Government.
Lastly, I in no way blame the Leader of the House for what has happened. I know that during his period of office he has been careful to protect our interests. Although I believe little can be done on this occasion, I hope and ask the noble Lord that for the future he will ensure that the House of Lords is treated with rather more respect than has happened on this occasion. I ask him to ensure that in future years we have the opportunity to discuss the Bill after having received proper notice and at a proper and convenient time.
Baroness Seear: My Lords, unusually I agree with the noble Lord, Lord Stoddart. It is most regrettable that we should have been presented at such short notice with the discussion on the Finance Bill. It is not a Bill with which we deal in great detail. We do not amend it. It is usually the occasion for a well informed and serious economic debate. Surely there is more than enough need for well informed and serious economic debates in which we may relate to the contents of the Finance Bill without discussing the Bill in all its depth and detail. That is not our role.
It is a great pity that the matter should have been hurried in this way and that we should be asked to deal with the Bill on a Friday. Incidentally, I cannot quite see why it is so impossible for your Lordships' House to talk sense on a Friday as well as on the other four days of the week when we meet. However, I understand that the matter was discussed through the normal channels, who agreed to the procedure. I speak in the absence of my noble friend Lord Tordoff, the Chief Whip of my party, who is much better engaged at present in South Africa. If, as I understand it, he agreed to this through the normal channels, there is nothing we on these Benches can do except agree.
Lord Boyd-Carpenter: My Lords, despite the gallant and loyal effort of my noble friend Lord Harmar-Nicholls, noble Lords have a simple issue before them: whether or not it is reasonable to expect the House to debate the Finance Bill this Friday. Noble
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Lords may not all have observed the size and weight of the Bill. It is an enormous measure which was only available in the Printed Paper Office first thing this morning. I say particularly to my noble friend that it is absurd to suggest that it is possible properly to debate the Bill when it has only been available for less than 48 hours in advance of the debate. With respect, that is not treating your Lordships' House properly.
I have no doubt that, as will be said, the usual channels have agreed to it, but the usual channels do not always have wholly in mind the general interests of the House and the fact that the reputation of your Lordships' House depends very much upon the expert nature of the debates that it stages. It has already been said by my noble and learned friend Lord Simon that the House has an enormous reserve of knowledge on the subject. It is therefore a great pity if we are to be deprived of the opportunity of deploying that amount of knowledge because of the effect on the House's reputation.
Of course, in general we cannot amend the measure. But we debate a great many matters that we cannot amend: delegated legislation, for example. We cannot amend it but it is regularly debated here. The Wednesday debates, like the one this afternoon, often raise matters of importance on which there can be no vote. If noble Lords express intelligent and worthwhile opinions on a matter on which they cannot vote, they influence public opinion. The influence of the House, particularly since proceedings have been broadcast—and here I pay tribute to our broadcasters who do an admirable job—influences public opinion.
It is quite wrong to suggest that 48 hours after the arrival of the Bill the rest of us should be expected to debate the measure on a Friday before a bank holiday. I know that my noble friend the Leader of the House has a sincere concern for the welfare of the House. I ask hire to give further thought to the matter and to understand that the reputation of the House can be much affected by the way it handles matters of great importance.
On the whole, the Finance Bill is the most important measure of the year which merits considerable debate. I do not say that by way of criticism of it, but for your Lordships' House to pass it in circumstances in which the Bill cannot be properly debated is an abdication of our duties which I do not think we should be called upon to implement.
Lord Bruce of Donington: My Lords, I should like noble Lords' permission to add my support to the contentions that have been advanced by the noble and learned Lord, Lord Simon, and those who have agreed with him. One may consider the Finance Bill on its own merits as a taxing statute, a revenue-raising statute or, as in more recent years, the occasion for a debate upon the general economic state of the country. There have been occasions on which both matters have been discussed and that has been so by convention over the past few years.
Few would disagree with the general proposition that the economic affairs of the United Kingdom are in considerable disarray. There are very considerable matters of the utmost and urgent importance that ought to be discussed in this House as well as in another place.

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From that point of view, to have a debate on a Friday afternoon is a little macabre. Surely the occasion of a debate of this potential—I emphasise the remarks that fell from the lips of the noble Baroness, Lady Seear —ought to be given a prominence that measures up to the importance of the subject.
Time and time again this House is faced with a situation in which matters of great importance which ought to be discussed at more reasonable times of the day and on more accessible days are relegated for some reason and given a far lower priority. I can understand, as your Lordships may also understand, that there are occasions when it suits the Government, and possibly also my noble friends, for the vital national question of salmon farming in Scotland to be given prime time. Indeed, there are many devotees of Scottish salmon in this House.
Lord Graham of Edmonton: That is a red herring!
Lord Bruce of Donington: But for a subject of this importance to be relegated to a Friday afternoon or, in some cases, for measures on issues of very considerable, importance that arise from our membership of the European Community to be relegated somehow for discussion very late at night when the Government, and possibly my noble friends, do not expect people to take very much interest in them, really one must protest. Nationally important matters which cover a wide spectrum and which go right to the roots of British national life ought to be given a prominence in day and in time in this House.
An undertaking was given by the Leader of the House, as the noble Lord, Lord Boyd-Carpenter, will recall, when we discussed the Consolidated Fund Bill that some endeavour would be made to accord the proper priorities and pre-eminence to really important debates which go right to the roots of the nation's fortunes. I hope that we shall receive some assurance upon that point from the noble Lord the Leader of the House.
Baroness O'Cathain: My Lords, is it not true, as the noble Baroness, Lady Seear, said, that we do not have any influence on the Finance Bill; and also that we are not able to amend it? If that is so, and bearing in mind the fact that the Finance Bill is as large as the noble. Lord, Lord Boyd-Carpenter, has shown it to be, surely it would take a long time for us to prepare for any debate that would be meaningful. Is it not better for us to take the Finance Bill, read it and go through it, and refer to it during the debates that we have on matters such as British industry and manufacturing industry and all the other points that were mentioned by the noble and learned Lord, Lord Simon of Glaisdale? Otherwise, given the pressure of business, and looking at the Order Paper going forward for the next couple of weeks when we shall be spending so much time on the criminal justice Bill, I cannot see how we are to fit the debate in. It is simply a matter of the logistics of managing the business.
Lord Cockfield: My Lords, as probably the last Member of this House who actually sat as a Treasury
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Minister in this House, perhaps I may say how strongly I support the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lord Boyd-Carpenter in what they said. Over the years the Government have increasingly ridden roughshod over your Lordships' rights, even where those rights are entrenched in statute, as they are in the Provisional Collection of Taxes Act as amended.
I go back to the days when I myself had to take the Finance Bill through this House in circumstances which breached your Lordships' rights under the Provisional Collection of Taxes Act. I protested most strongly to the then Chancellor of the Exchequer, Sir Geoffrey Howe (as he then was). I was given an undertaking that in future the Treasury would do its utmost to ensure that your Lordships' rights were respected. Shortly thereafter Sir Geoffrey Howe was exiled to the Foreign Office, I was exiled to Brussels and the undertaking was conveniently forgotten. But when I came back the matter was raised again. We had at least two, if not three, arguments of this sort in which the noble and learned Lord, Lord Simon of Glaisdale, myself and my noble friend Lord Boyd-Carpenter played a part. One of those discussions related precisely and exactly to the present circumstances; namely, the tabling of a debate on the Finance Bill on a Friday, when the Government could be certain that most Members of this House would be engaged elsewhere.
Perhaps I may remind my noble friend—I do not "remind" him because he was not there—tell my noble friend the Leader of the House that in the days of old, when the Labour Party had backbone, the noble Lord, Lord Houghton of Sowerby, mounted an ambush on such a day. But for the vigorous intervention of my noble and learned friend Lord Hailsham of Saint Marylebone, the Government could easily have lost the Finance Bill because there were not enough people present to form a quorum in a Division. Of course the Government are so accustomed to losing their legislation that no doubt they do not mind all that much if on Friday they do not get the Finance Bill through this House. But that shows what happens when memories do not go back far enough.
I suggest that the time has come when the Government need to pay more attention to what noble Lords think and feel. Quite frankly, if noble Lords look at what has been said in this House in the past few weeks, it is difficult to describe the usual channels as anything other than a conspiracy against the interests of the Members of this House. I hope therefore that my noble friend the Leader of the House will not come forward with that particular argument in defence of the monstrous thing that he is trying to do. I hope also that he will not fall for the bait that was offered to him by the noble Baroness, Lady Seear, and come up and say that we have had more than ample opportunity to discuss economic affairs. Some of us want to discuss the Finance Bill. And the Finance Bill this year is a monstrous document. I can go further than that and say that it is an absurd document.
What matters is not only the economic state of the country; it is also the state of the tax system. That is a matter that I wish to raise when we come to debate the

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Finance Bill. As a result of the vigorous efforts of the present Chancellor of the Exchequer and his predecessor, we are now reducing the tax system of this country to a state of total chaos. That is a point that legitimately needs to be made in this House. We can even make that point without upsetting the Government by trying to amend the Finance Bill. On all grounds, it is about time that the Government took a second thought about the way that they treat your Lordships in this matter.
Noble Lords: Hear, hear!
Lord Shepherd: My Lords, perhaps I may say one word in support of the Leader of the House. It is not the Leader of the House who should be pilloried today. It is those in another place who have managed their business with a degree of contempt—not only on the Finance Bill but on much other legislation—in the way that it is brought to this House with the minimum of time for our consideration. I suggest that if we divide on the Motion, it should not be on the basis that we are in any way criticising the Leader of the House or the Government Chief Whip.
The noble Lord, Lord Cockfield, referred to an ambush laid by the noble Lord, Lord Houghton. I remember that when I sat on the Benches opposite, I was confronted with amendments to the Finance Bill moved by Conservative Members of this House. I had always assumed that the Finance Bill was sacrosanct. The only such part of the Bill is that part that has been certified by' Mr. Speaker to be a money Bill. Every other part of the Bill is subject to amendment by this House if it so wishes.
I take the explanation of the noble and learned Lord, Lord Simon, that the Bill was concluded in the other place on Monday and came to this House yesterday. By no shadow of a suggestion could this House ever consider a Bill until it is in fact before it. There is no way in that short period of time to take the Motion of the Leader of the House without first of all looking to see what part of that Bill has been certified and falls within the restrictions of our standing orders.
Lord Boyd-Carpenter: My Lords, perhaps the noble Lord will allow me to intervene. Is not what he says consistent with deferring debate from Friday until next Tuesday? That is still within the number of days laid down.
Lord Shepherd: My Lords, I intended to come to that point. I seek to support the noble and learned Lord and others. Under the present procedure we do not have the opportunity to look at the Bill in any kind of detail.
Lord Wakeham: My Lords, I do not want to interrupt the noble Lord but I do not want the debate to get off on the wrong track. All the advice that I have received is that this Bill is a money Bill and cannot be amended by your Lordships, nor can any part of it.
Lord Simon of Glaisdlale: My Lords, would the noble Lord the Leader of the House consult the Companion to the Standing Orders? I think he will find that a money Bill can be amended.
Lord Wakeham: The answer is that a money Bill can be amended but a supply Bill cannot. I think that the point that I was making—namely, that this particular Bill cannot be amended—is still correct.
Lord Shepherd: My Lords, I bring my remarks to a conclusion by reacting to the question put to me by the noble Lord, Lord Boyd-Carpenter. There has been a lack of sensitivity in terms of the way in which this Motion has been put on the Order Paper. I hope that we do not have to take a Division upon the Motion. As I said earlier, I do not hold the Leader of the House responsible, other than as a member of the Government.
To avoid any dispute on the Motion, I suggest to the Leader of the House that we should agree that it should be taken back. I am sure that the House will be ready to respond to a debate taken next week on whatever day is convenient to the Government. I am sure that if the Leader of the House so responded, he would find no aggravation and no obstruction in the passage of this Bill.
3.45 p.m.
Lord Richard: My Lords, perhaps I may say a few words about this matter. I have very considerable sympathy with what the noble and learned Lord, Lord Simon, had to say. The House may be surprised that, for once, I am also in sympathy with the remarks of the noble Lord, Lord Boyd-Carpenter. It is not usual that we find ourselves even in sympathy on the same side of the argument. I am bound to say that some of their comments made a great deal of sense and had force.
What is the real problem—whence cometh it? It comes simply from the fact that the other place in the Finance Act 1993 established 5th May as the date by which this Bill has to be passed. It is very clear and is effected in Section 205(4) of that Act.
I have some sympathy with and possible attraction to the notion that we do not pass the Bill by 5th May. If we do not, I am advised that the provisions for excise duty on wine, cider, tobacco and petrol as well as income tax for the financial year 1994–95 will fall. It is a proposition of some attractiveness. But I suppose one has to say that it is not the function of this House to negate the fiscal provisions which have been passed by another place. Therefore we have to get the Bill through by 5th May.
I feel that it was somewhat insensitive of the Government, knowing that 5th May was the deadline, to organise business in the other place in such a way that the Bill reached this House only within the last 48 hours and, indeed, has only just been printed. Other noble Lords have made that point and I have a great deal of sympathy with it. I agree with it. I hope very much—I express the hope on behalf of the Opposition—that the Leader of the House will do his best to ensure that this situation does not happen again.
One knows that in the past Finance Bills taken at the end of July have been in a rush in this House. But I do not believe that they have been in quite such a rush as on this occasion, though I may be wrong about that. The Leader of the House should take on board the feelings that have been expressed in this Chamber today. They

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are strong and widely felt. To present your Lordships' House with a Finance Bill of such complexity a day or so before it is to be debated is not the way in which the Government should behave.
So far as concerns the Opposition and the usual channels, we were told that we have to have the Bill by 5th May. That is perfectly true. We were also told that there were two possible days on which it could be debated. One was Friday of this week and the other was Tuesday of next week. We were told that the Government wished to have the third Committee day of the Coal Bill on Tuesday next week. In those circumstances we took the view that, if the Government wanted to debate the Finance Bill on Friday of this week, we would accept that. That remains our position today. If the Government wish the debate to take place on Friday, then in accordance with the discussions that took place through the usual channels, so far as we are concerned the debate can take place on Friday.
Let me say just one word about that. The part of the argument of the noble and learned Lord, Lord Simon, which I do not totally follow is that part which argues that somehow it is worse to debate the Bill on the day before a bank holiday than it would be to debate it on the day after a bank holiday. When my noble friend the Opposition Chief Whip and I discussed this matter, it seemed to me that there was very little to choose between having the debate on Friday of this week or having it on Tuesday of next week.
I do not know whether the noble and learned Lord, Lord Simon, presented his proposition that the debate should be on Tuesday as, so to speak, a firm proposition and a practical suggestion to the House or whether it was a peg on which he wished to hang constitutional points. If it was the latter—a peg upon which constitutional points were to be made—I am, if I may mix metaphors, with him on the peg. In terms of support for a resolution to move the debate from Friday this week to Tuesday next week, I hope I have made clear that that would not be a proposition that the Opposition could support.
So far as I am concerned, at any rate, I think that there is force in the criticism that has been made. I hope that the Leader of the House will take it on board and act upon it in the future.
Lord Wakeham: My Lords, first, though it may not seem so, I am extremely grateful to the noble and learned Lord, Lord Simon of Glaisdale, who took this opportunity to raise some very important points. I shall do my best to answer them. I fully understand why the noble and learned Lord—indeed, he was supported by a number of your Lordships—feels that Friday would not be an appropriate day to take the Second Reading of the Finance Bill. I am sure that the whole House will agree that the Finance Bill is an important Bill and that debates on the Second Reading of the Finance Bill afford the House a useful opportunity to debate economic affairs in general.
I know also that the House will take most seriously the advice on such matters which the noble and learned Lord chooses to offer. Nevertheless, this Friday will
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afford the House the best opportunity for such a debate, given the other important matters which your Lordships wish to address both in the context of the Government's legislative programme and other matters—for instance, the debate on the Select Committee on Medical Ethics which will take place shortly.
Your Lordships have debated Finance Bills on Fridays quite frequently in modern times. I was reminded when my noble friend Lord Cockfield was going down memory lane that prior to 1979 a great many Finance Bills were actually taken formally in this House and not debated at all. That position has now been dispensed with and I make no complaint about that. But Finance Bills were taken on a Friday in July 1981, July 1986, July 1990 and July 1991.
Lord Simon of Glaisdale: My Lords, perhaps the noble Lord will allow me to intervene. He will recollect no doubt that those were all times with a Spring Budget. The cut-off date was therefore 5th August. Your Lordships' House then sat on a Friday in July as your Lordships habitually do. But your Lordships do not normally sit on a Friday at this time of year. That is why noble Lords were taken by surprise when they had made arrangements for the weekend and suddenly found that a Friday was proposed for so important a Bill as the Finance Bill.
Lord Wakeham: My Lords, the noble and learned Lord made that point in his speech. It is an important point and I am seeking to deal with it. If your Lordships will allow me I shall try to put the argument in the way I can handle it best.
Lord Boyd-Carpenter: My Lords, perhaps my noble friend will allow me to intervene. Can he say, in the examples that he quoted, how much notice was given of the debate? What was the interval between production of the Bill and the date of debate?
Lord Wakeham: My Lords, certainly. However, I shall seek to answer the debate in my own way. That is another point I shall seek to deal with as I go through what I am afraid will be a relatively long intervention. But I shall deal with it as quickly as I can.
I know that some noble Lords view Friday sittings with a certain amount of unease. For my part I feel that where business might otherwise be constrained by the lateness of the hour or by other competing pressures, Friday sittings can, with benefit, afford the opportunity for a more full and measured debate. I suggest that the fact that there are already 11 speakers on the list to participate in the debate on Friday suggests that the debate being held on a Friday proved no disincentive. There were 11 speakers in all in the debate on the 1992 Finance Bill and 14 in the debate on last year's Bill. Both of those Bills were taken on other days of the week.
Given the importance which many noble Lords attach to the debate next Thursday on the Coal Industry Bill it would not be for the overall convenience of the House now to change plans and displace that business for the Finance Bill which, after all, for some time had been fixed to take place next Friday by agreement

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through the usual channels. The sitting was publicised in the forthcoming business issued on 14th April and put down in the Minutes of Proceedings on 18th April.
Perhaps I can deal with the other points by briefly outlining the background to the timing of the Finance Bill. Certain of the Budget resolutions on which the Finance Bill is partly founded are given special statutory force under the Provisional Collection of Taxes Act 1968. The 1968 Act originally provided that resolutions on these issues should be given temporary statutory effect for a March or April Budget until 5th August that year. Each Finance Bill now contains provisions replicating the effect of those resolutions and doing so retrospectively. The authority for tax changes thus passes from the resolutions of another place to the provisions of the Finance Act itself. Under the old Budget arrangements your Lordships were therefore accustomed to receive the Finance Bill towards the middle of July and to give Second Reading and Royal. Assent to the Bill before the Summer Recess or 5th August. The Provisional Collection of Taxes Act has now been amended in respect of the new Budget date to provide that the Commons' resolutions now expire on 5th May. In short, as the noble Lord the Leader of the Opposition made clear, that means that Royal Assent for the Finance Bill is now required by 5th May.
Perhaps I may mention some of the dates going back in the past. In 1992 the House of Commons had its Third Reading of the Finance (No. 2) Bill on 8th July; the proceedings in your Lordships' House were on 14th July. The Third Reading in the House of Commons of the first 1992 Bill was on 13th March and the proceedings were on 16th March, although noble Lords will recall that that was just before the general election. In 1991 the proceedings in the Commons finished on 16th July; your Lordships dealt with the matter on 19th July. In 1990 the proceedings in the Commons were on 17th July and it was dealt with on 20th July. In 1987 the Commons dealt with it on 20th July and the proceedings were on 23rd July. In 1987 the Commons dealt with it on 12th May and it was dealt with in your Lordships' House on 14th May. In 1982 it was dealt with by the' Commons on 14th July and by your Lordships on 20th July.
There is therefore a history of dealing with these matters in a relatively short space of time. The fact that the Bill has been certified as a money Bill does, I agree, give your Lordships the theoretical ability under the Parliament Acts to consider the Bill for a month before it goes for Royal Assent. However, from the descriptions I have already given —indeed, the noble Lord the Leader of the Opposition put it more graphically than I—of the troubles that would occur given the effect of the lapse of the Commons' resolutions under the Provisional Collection of Taxes Act, your Lordships would be ill-advised to insist on that. I am not aware of any occasion in recent years, save in the years in which the general elections intervened, in which a Finance Bill has been sent up to your Lordships' House more than a month before the date on which the relevant resolutions expired. Nor is there any
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occasion on which your Lordships contemplated interpreting the provisions of the Parliament Act in such a manner.
Your Lordships will be aware that some Finance Bills have been certified as money Bills and some not. That is purely a decision for the Speaker and that decision is only known when the Bill arrives in your Lordships' House from another place. In this case that was on Monday. Your Lordships would need to consider carefully whether it would be sensible or appropriate to contemplate asking the other place, which has the exclusive right to consider Finance Bills in detail, to curtail its deliberations on such Finance Bills simply to enable your Lordships' House to have a month in which to debate the Second Reading of such a Bill in the event the Speaker certified it as a money Bill.
Nevertheless, I recognise the strength of feeling in the point made by the noble and learned Lord, Lord Simon, in his original speech and emphasised in his intervention, and the point made by the noble Lord the Leader of the Opposition, that this year's Bill, which is the first Bill that arises from the unified Budget in November, has given rise to a rather different set of circumstances than previous Budget arrangements. If there is anything that we can do in the context of those arrangements in the future I shall be happy to look at the matter again; to discuss it with any noble Lords who feel that better arrangements can be made and to discuss it with the usual channels to give your Lordships as much time as possible and avoid a Friday if at all possible.
On Question, Motion agreed to.

Business of the House: Debate this Day
Lord Wakeham: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the Motion in the name of the Viscount Waverley set down for this day shall be limited to five hours.—(Lord Wakeham.)
On Question, Motion agreed to.

The Commonwealth
4 p.m.
Viscount Waverley Viscount Waverley rose to call attention to the role and future of the Commonwealth; and to move for Papers.
The noble Viscount said: My Lords, we are here today to listen to an exchange of views on the role and future of the Commonwealth. We are privileged to be addressed this afternoon by two maiden speakers—the noble Earl, Lord Courtown, and my noble friend Lord Wright of Richmond, a former head of the Diplomatic Service and an undoubted specialist on Commonwealth and other matters involving the national interest. I am confident I echo your Lordships' sentiments when I say how much we are looking forward to their contributions.
The Commonwealth has grown from a few dominions to 50 members in the past 40 years. It is the largest multilateral organisation other than the United Nations, spanning a quarter of the world's land area. Its peoples derive from all five continents and from every

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major regional bloc and economic zone, uniting large and small, developed and developing nations, as equals on common ground. This common ground consists of a complex web of essential principles and values.
Hallowed principles include democracy and democratic processes, the rule of law and the independence of the judiciary, just and honest government and fundamental human rights. These often repose cheek by jowl, sometimes even in conflict with, such bedrock values as a common commitment to equality for women, universal access to education, sustainable development, the alleviation of poverty in member countries, protection of the environment and the promotion of international consensus on major issues.
The Commonwealth is the first and only organisation to recognise that small states are a special category which merit separate consideration and action. Its seminal expert group report on the vulnerability of small states has been adopted by the United Nations as an official document. The Commonwealth, through the Secretariat, continues to liaise with the United Nations and NGOs to rescue from the morass of definitions of "human rights" a workable solution reflecting the disparate cultural and economic conditions of its members. Human rights are actively promoted by providing training and assistance to countries, designed' to assist institution building, a recent example being human rights workshops and institutional development in the Gambia.
It has also responded in a practical way to the need to promote democracy more vigorously by developing a niche for its experts in the electoral process of its members. Top Commonwealth observers are dispatched to monitor elections in their entirety, most recently in Pakistan, Lesotho, Guyana and Kenya among others. The interactive nature of the "Commonwealth way" shares the expertise of eminent Commonwealth citizens, not least of which have been Members of your Lordships' House, with potential or fledgling legislators. Their presence helps to restore much-needed confidence in the electoral process and in multi-party democracy. The success of this three year-old endeavour can be measured by the reduction in non-democracies among its members; from nine at the 1991 Harare CHOGM to four at present, of which Malawi has elections in May and Sierra Leone has made a commitment to a return to democracy.
The flagship of Commonwealth work—perhaps its most public face—has been the task of bringing. apartheid to world attention. We have witnessed the unleashing of pent-up passions in that former Commonwealth member country with trepidation. Yet we welcome this day and hope that it marks the beginning of the new democratic South Africa.
Much-needed Commonwealth assistance with violence, crowd control, policing and mediation has been provided in the run up to today's elections. Five Members of your Lordships' House are in that country, assisting as Commonwealth election monitors in the transition to a non-racial democracy.
The Commonwealth has recognised the need for pragmatism and progress; once its sanctions programme
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was ended, immediate steps were taken to tap into multilateral funding sources to train and empower South Africa's new citizens. It may be that the Commonwealth work in this area has really just begun.
It has been a long, tortuous journey for that country. We bid God speed, and look forward to its re-entry into the Commonwealth family at the earliest opportunity. A stable South Africa will have benefits for other nations in a region of the world dominated by Commonwealth member states.
In addition to activity at government levels, there is a unique informal network of tens of thousands of people in non-governmental organisations, promoting contacts and exchanging knowledge, skills, information and ideas between professionals of different countries facing similar problems; the so-called "unofficial" Commonwealth. They are the cement, keeping the brickwork in place. Co-ordination is facilitated by the Secretariat and the Commonwealth Foundation.
I should like to turn briefly to three familiar pillars of the infrastructure. The Commonwealth Parliamentary Association would benefit from active support by Members of both Houses of Parliament. The UK branch does a useful job at Westminster arranging conferences and meetings with visiting members from Commonwealth Parliaments. Parliamentarians everywhere have an essential responsibility to safeguard democracy by ensuring that good governance prevails. It is argued that its effectiveness could be enhanced if its status were altered from that of a UK charity to an international organisation, under the provisions of the International Organisations Act 1968. Perhaps the noble Viscount, Lord Cranborne, will share his thoughts on the merits of such a development.
The Commonwealth Institute was set up to promote awareness of the Commonwealth throughout Britain. Appropriate changes need to be made to the institute, in the light of withdrawal of government support after 1996. These changes could include a decentralisation of the institute to all member countries as part of an effort to enhance awareness. The institute has a vision of its work for the future, which explores ingenious self-financing schemes through partnership with the private sector. If decentralisation to all member countries occurs, I believe there will be a justifiable basis for an equitable formula for contributions to the institute's budget from Commonwealth governments as well. Certainly, the Secretary-General, Mr. Stephen Cox, is doing an excellent rearguard job, and deserves your Lordships' support.
The Commonwealth, through the Secretariat, plays a substantial role in the combating of drug trafficking and abuse, attempts to help the waves of refugees, problems of third world debt, technical and medical co-operation, environmental strategies, and much more. It serves its members' interests as far as its budget allows. It is prudent, however, for it to continue to operate chiefly in those areas where it has "comparative advantage". For instance, concern for the environment expressed in the Langkawi Declaration of 1989 was followed by pioneering action such as Guyana's offer of nearly 1

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million acres of its rain forest for a sustainable forestry project, and the pace-setting pre-Rio conference on sea level changes, hosted by the Maldives.
Multi-faceted action to improve the plight of its poorer members is channelled through the operational division of the Secretariat, the Commonwealth Fund for Technical Co-operation, where marketing, export promotion, training, health, agriculture and even specialised legal, industrial and technical expertise is made available. A notable example has been the specially developed debt management system which has benefited more than 35 countries and which is sought after by many non-Commonwealth countries.
The Commonwealth Secretariat is relatively small and sparsely financed compared to other international organisations. It has been re-structured into a leaner and fitter organisation, though its overall tasks have not become lighter. It is recognized that in a fast-changing world all institutions need to be examined every few years.
The programmes of the Commonwealth are widely acclaimed to be effective and, by international standards, economical. Members pay very little in comparison to all the returns. Greater recognition of its exemplary benefits is hampered by a poor, out-dated public image. Few people realize just how much of practical value is accomplished annually. While a low profile is consistent with the Commonwealth's behind-the-scenes methodology, it rather plays into the hands of its detractors.
Many tangible advantages accrue as a result of membership. One of the most important is access to 49 friendly countries who share certain common traditions, language and outlook. The Commonwealth's diversity is its strength, and its unity is built on acceptance of this. The development of understanding between, for example, Islamic Pakistan, Christian Caribbean, Buddhist Sri Lanka, and the commitment to opposing the sort of racial prejudice which has once again appeared in Europe, underpin the Commonwealth approach.
Does Britain's foreign policy include a decisive, well thought-out role in Commonwealth matters? I believe we grossly under-sell the importance of the Commonwealth and it should command greater attention in discussions of foreign policy issues in Britain. We have an enormous stake, and asset, in the Commonwealth. We must avoid the danger of giving the impression that Britain attaches less and less significance to the Commonwealth as new circumstances emerge; for example, our membership of the European Union. We have an important role to assume as respected broker for both organisations.
It is said a sense of apathy and indifference exists, displayed by the lack of public support from Her Majesty's Government. And yet I discovered that Britain has the Commonwealth near to the centre of its aid programme because 66 per cent. of bilateral aid goes to Commonwealth countries. However, it is necessary to ask: how much is that in real terms? If aid is tied, do British industrialists and exporters see appropriate returns? Our bilateral trade with Commonwealth friends
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totals £10.3 billion, some 20 per cent. of our worldwide performance. We cannot afford to see this figure diminished.
For her part, Britain certainly derives many advantages from membership. Political credibility with European partners and North Atlantic allies is enhanced, and influence within the Commonwealth partly justifies our place on the United Nations Security Council. United platforms can be forged to address world issues, and coherent action pursued within the United Nations system. This link in turn gives Commonwealth members direct access to a Security Council member.
Commonwealth students bring experience and diversity to UK universities, colleges, and to the wider community. Benefits accrue when these students take up positions of influence in their home countries.
And what of the future? The Harare Commonwealth Declaration was a turning point, and clearly defined the nature of things to come. Heads of government reaffirmed their confidence in the Commonwealth as a voluntary association of sovereign independent states, each responsible for its own policies, consulting and co-operating in the interest of their peoples, and in the promotion of international understanding and world peace. They expressed their determination to renew and enhance the value and importance of the Commonwealth as an institution, which can and should strengthen and enrich the lives, not only of its own members and their peoples, but also of the wider community of peoples of which they are a part. This was reaffirmed at Limassol.
The Secretary-General, Chief Anyaoku, through whose commitment and dexterity the organisation has performed well and grown in stature, has ensured that the Commonwealth is uniquely equipped, both by virtue of its character and through its activities, to help its membership and the wider international community, by responding to a number of the challenges of today and tomorrow. I believe that this House should pay tribute to him. He has outlined clear goals, endorsed by heads of government, for the 21st century. The divisive potential of plural societies forced to accept arbitrary borders with scarce natural and financial resources; faced with threats to their identity, culture and way of life, with many elements often denied a sufficiently active role in governance mechanisms, is all too often the reality of the new world order; and the Commonwealth, through the good-offices of the Secretary-General, is a practised peacemaker.
The challenge of human resource development to assist its members is another area. An important practical step has been the signing last week of a memorandum of understanding with Singapore, aimed at improving management structures and systems in government and public enterprise. The programme has been designed to assist other Commonwealth governments as they embark on the task of administrative and managerial reforms.
The Commonwealth as a whole must try to solve difficulties and problems among two or more members on the basis of consensus. Should difficulties arise with no such consensus, perhaps individual countries would submit to arbitration by the Commonwealth. The

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Commonwealth is ideally suited to provide its good offices for conflict prevention and resolution, given the discreet way in which it can operate. Twice in the past three months those good offices have helped to defuse tensions in Lesotho. There is potential for their use elsewhere. Indeed, there may be scope for the Commonwealth to play a role in the area of peacekeeping, in a way which supports and reinforces the obviously pre-eminent role of the United Nations in this field.
Human rights recognition for all citizens of the Commonwealth seeking to defend their civil and other liberties is needed. A specially convened panel to hear complaints and empowered to require Government's to respond would perhaps go some way towards satisfying the expectations of your Lordship's House.
Finally, I trust our deliberations here today will reveal the wisdom of Mr. Arnold Smith, the first Secretary-General, when he remarked:
"A hundred years from now, historians will consider the Commonwealth the greatest of all Britain's contributions to man's social and political history."
My Lords, I beg to move for Papers.
4.18 p.m.
Lord Thomson of Monifieth: My Lords, I must begin with an apology. Owing to a very longstanding commitment I shall not be able to be here to listen to the winding-up speeches. In all my years in your Lordships' House I believe that this is the first time that I have sought such an indulgence. I hope that I may be excused on this occasion.
I would like to pay tribute to the noble Viscount, Lord Waverley, for his thoughtful and interesting speech. He has provoked a very timely debate, taking place as it does in the week of the historic South African general election. I listened last night to Mr. de Klerk saying that a new South Africa has been born. I listened to Nelson Mandela, who spent most of his adult life in prison, speak without a word of bitterness and looking, even at the age of 75, only to the future. I believe that the world is fortunate to have two leaders on either side of what has been such a deep racial divide with such courage and vision. Now, as the noble Viscount said, the general election in South Africa opens up a new chapter for the Commonwealth, with South Africa now in a position to rejoin the Commonwealth family.
I speak as the last Secretary of State for Commonwealth Affairs in a British Government. I have always regarded the post-war transformation of Empire into Commonwealth as a truly great British achievement. It is true that not all the high hopes and visions that some of us had in days now past—that the Westminster model might be more exportable than it has sometimes proved to be; that there might be a Commonwealth defence identity, a Commonwealth economic identity and perhaps a Commonwealth court —have not always proved realistic or realisable. But the hope of successive British Governments in building on the great achievement of the Commonwealth has been bedevilled in the past by two great post-Imperial problems: South Africa's retreat into apartheid and
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repression and the Rhodesian rebellion. The latter was finally resolved by the statesmanship of the noble Lord, Lord Carrington, and my old friend and colleague the late Lord Soames. Now, as we have said, South Africa can rejoin the Commonwealth family.
The fact that the Commonwealth has survived as a positive multi-racial group in world affairs, described in such useful detail by the noble Viscount, Lord Waverley, in the face of those divisive pressures is due, I think, in large part to the role that Her Majesty the Queen has played over many years. Nobody has done more in a quiet and dignified way to provide a personal focal point for all the members of the Commonwealth in the face of many conflicting tensions.
I had the privilege and responsibility when the noble Lord, Lord Callaghan, whom I am glad to see in his place, was Prime Minister of travelling round the Commonwealth at his request to seek to prepare the Commonwealth heads of government for a meeting that was to take place in the Queen's jubilee year. It was a time of great difficulty for Britain in the Commonwealth and we wondered whether all members of the Commonwealth would be equally enthusiastic about joining us on what we hoped would be a very notable occasion. I discovered that no head of any Commonwealth state needed any persuading at all to come here to London at the invitation of the Queen. The only problems that I had were whether certain dietary problems of a special nature would create any difficulty at the state banquet in Buckingham Palace! That illustrated to me how the Commonwealth was still very much alive and how much it owed to the Queen as its head.
As the noble Viscount said, as well as being a group of independent sovereign states with historic links from having been part of the British Empire, the Commonwealth enjoys in a very important sense an international, multi-racial, personal relationship fortunately going very much deeper than the ephemeral disputes of politicians. The noble Viscount rightly referred to the many non-governmental links in the professions and among students, teachers, doctors, lawyers and many other groups of people. I think, for example, of the Commonwealth Scholarship and Fellowship Plan, in which I remember being involved from the Opposition Benches many years ago. That has now lasted for 33 years and very nearly 20,000 Commonwealth scholars and fellows have enjoyed the multi-lateral experience of going to another country in the Commonwealth for a further stage of their education. I should like to pay tribute, first, to successive United Kingdom Governments who have throughout played a major role in the scheme, as in other forms of aid. I believe that more than 60 per cent. of those Commonwealth scholarships are provided by Her Majesty's Government. I should like to pay tribute also to the quiet and constructive work of the Commonwealth Secretariat in this area and to the Association of Commonwealth Universities.
I echo the words of the noble Viscount, Lord Waverley, that the Commonwealth Secretariat might take a rather higher profile and be seen to be more active in some of its operations. I think, for example, that it

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would be useful if the Commonwealth Secretariat, reflecting, as it does, one of the great groupings in the world, established a closer relationship with the European Community and the European Commission in Brussels. I may be misinformed but I believe I am right in thinking that no Secretary General of the Commonwealth Secretariat has ever paid an official visit to Brussels and the European Commission. That could be productive in terms of overseas development aid.
The change in South Africa presents a new challenge. In our global economy, Africa is the only continental economy suffering an absolute decline in its GDP and with an increasing level of poverty. The noble Lord, Lord Callaghan, spoke movingly of that in a debate in your Lordships' House not long ago. I hope that South Africa, with its human and natural resources, properly helped and harnessed, can play a big part in reversing that trend in sub-Saharan Africa.
I conclude that the Commonwealth, with the Queen at its head, has still a useful and reconciliatory role to play in our troubled multi-racial world.
4.26 p.m.
Lord Bottomley: My Lords, it is a pleasure to follow the noble Lord, Lord Thomson of Monifieth, in congratulating the noble Viscount, Lord Waverley, on the manner in which he opened the debate.
I came into Parliament in 1945. Soon afterwards, I was sent on a parliamentary mission with the noble Lords, Lord Wyatt and Lord Aldington, to inform the Indian leaders, Gandhi, Nehru and Jinnah, that the Labour Government intended to transfer power to them. Soon afterwards, a Cabinet mission went there, composed of Pethick Lawrence, Stafford Cripps and Alexander. Soon after that independence followed. Thus was created the new Commonwealth.
Eventually I became the Commonwealth Secretary and had the opportunity to visit many of the Commonwealth countries. Most of the past and present Commonwealth leaders I know well. They all take a close interest in the well-being of the Commonwealth. The Commonwealth is made up of an extraordinary mixture of countries like the UK, Canada, New Zealand, Bangladesh, Sri Lanka and Pakistan. There are the West Indian islands, the African countries and the outposts like the Seychelles, the Falkland Islands and Gibraltar. The Commonwealth is an example of international co-operation among countries of totally different levels of economic wealth, civilised advance and living standards.
I joined the European Movement and the Empire Parliamentary Association at the end of the last war. I saw nothing contradictory in doing so. We are linked with the European Community. The aim is to match politically and economically the power of the USA and Japan. The Commonwealth enjoys the advantages of a common language and a long history of many friendly and intimate contacts at all levels.
Lee Kuan Yew once asked me, "Why don't you British take the lead in Commonwealth affairs?" He said, "You should hold your heads high and stick your chests out". When I said to him that the days were gone
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when Britain had the military might or economic strength to strut the world, he replied that it was not military might or economic strength that were needed but moral leadership, which the British could give not just to the Commonwealth but to the world. It is very encouraging that such an intelligent statesman should think so highly of us.
I have talked at length with some of the Commonwealth leaders and suggested to them that they should follow the democratic traditions of the Commonwealth. When I was Secretary of State for Commonwealth Affairs, the Commonwealth Secretariat was created to co-ordinate the work of Commonwealth countries and to organise formal meetings every two years between heads of governments. Meetings are also organised to deal with practical problems of mutual trade, poverty, indebtedness, medical and scientific problems and human rights. The Secretary General is Chief Anyaoku, a man of talent and experience.
There is then the Commonwealth Parliamentary Association, whose secretary general, Arthur Donahoe, is doing an excellent job. Three hundred or more Commonwealth Members of Parliament meet in one Commonwealth country or another. They are not selected by governments. They come as individual MPs to debate and give guidance to governments as a result of their deliberations. The UK branch plays a special part in the work of the CPA. The secretary is Peter Cobb, a very hard worker who is backed by a most efficient staff. The office is open for the welcome of Commonwealth MPs, and scores of visiting Commonwealth MPs are entertained to lunch in the Houses of Parliament.
A parliamentary seminar on parliamentary practice and procedure is held each year, and usually about 24 delegates, representing 24 legislatures, attend. Race relations is of great concern to the Commonwealth, and the Commonwealth Secretariat and the CPA pay particular attention to that problem. Field Marshal Smuts once told me that peace and security would be ensured only if there were equality of the races. To my query as to how he would try to bring that about, he said that he was trying to bring the Indians into the administration but that they had declined. The white population was incensed and voted against him. The Nationalist Party came into being, and apartheid followed.
It is fashionable in some quarters to deride the Commonwealth as a body which has no relevance in the modern world, but the fact that over 50 nations, most of them of considerable importance in the world, still wish to preserve that multi-racial society speaks for itself.
4.34 p.m.
Lord Selsdon: My Lords, it is often difficult to speak when one is sandwiched between experts. With the noble Lord, Lord Wright of Richmond, following, I know that I dare not speak on anything to do with foreign policy or foreign affairs, and I shall probably steer clear of all politics. Therefore, there is nothing left for me to do except perhaps to speak as a rather faded merchant. I thank the noble Viscount, Lord Waverley,

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for presenting so well and in such an informed and dispassionate manner the scenario of the Commonwealth as it is today.
My intervention will begin with the past and go on to the future where, undoubtedly, I may be provocative. I begin by saying to myself, "What is the point of the Commonwealth? What value does it have? What does the United Kingdom get out of it, and what does it get out of us?" I go back to the past, and it is always a mistake to go back beyond the day of one's birth. I go back to some 14 days after my birth in 1937 when the Admiralty produced an excellent chart that one will find in the Department of Transport today. It shows the position of the ships of Her Majesty's merchant marine at 12 noon on a particular day in the second week of November.
There were 1,500, or more, ships at sea; 750 in harbour; and a further 250 or more on lakes and rivers. The map or chart is simple. It has two colours: red and black on white. The ships' flags, naturally, were all red, and a large part of the world was red: it was the greatest empire the world had ever seen. Today, not so long after, there are some 450 ships in Her Majesty's mercantile marine, of which I think, 320 are at sea, flying the red flag. There are few countries left which are part of the empire and they are called dependent territories. The word "dependent" makes me think. Only 10 years after that chart was produced we had been through a major war; the break up of the empire began; and the Commonwealth rose up from it.
If one considers the transition period of many of the Commonwealth countries, it was not particularly easy. They did not have a good deal in common. It began with what might today call the fundamentalist terrorist activities of beating up the British, followed often by putting in British troops or arresting the leading terrorists who would then be locked up for a number of years as extremists. The leader would then be let out, and there would be democratic elections. He would be duly elected and become a great friend of the United Kingdom and, in particular, of Her Majesty.
One wonders why that transition of such stress was necessary. Would not it have been possible to manage that change more easily? Those stresses and strains helped to build and strengthen relationships. We and our fellow members of the Commonwealth know well how great those problems have been, but they caused one major piece of damage to the world economy. From what was basically political stability, came political chaos and a breakdown in the economy. No one was prepared to invest in or trade with countries where such chaos existed, and their economies collapsed. I suggest that the reason our empire was created originally was economic, not necessarily political. There were political moves when we took Aquitaine and parts of France with the longbow, which I gather even today has a range of over 800 yards and will always outdo a crossbow—nothing of course like a super gun! But we had steam and we could take over countries that were nearer to us in a direct line rather than have to rely on the sailing boats which had been responsible for the development of other people's empires.
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What happened? Economically, if we look at it now, as a trading partner the Commonwealth is not of particularly great significance to us, and we are not of particularly great significance to it. Perhaps in joining the EC we destroyed the preferential trade with the Commonwealth and destroyed those relationships, but that would have come any way with the market economy. There were two things that caused the greatest break up of all. One was the floating of currencies where suddenly, almost over night, the softer currency countries had no reference point and no stability. The second was obviously the tremendous hike in oil and energy prices which, combined with the devaluation of their own currencies, left them unable to trade and reliant more and more upon aid. With that reliance upon aid came more and more demands: "It was the fault of the British. It is your fault. You should help us. You have put us in this mess. It is you who drew the lines in the sand in the wrong places". But the people who were responsible for that are either long since dead or out in some very peaceful pastures.
As the noble Viscount, Lord Waverley, pointed out, some 30 per cent. of United Nations countries are members of the Commonwealth. The number of countries seems to be growing fast. I always thought that there were about 210 countries but I checked in the Library and there are now 244 in the world. That seems to be the biggest growth of all time. As greater independence comes, so more countries seem to emerge.
Does the Commonwealth have an economic role as a major trading partner? No, it does not because it is a collection of individual trading countries and each country will be assessed and examined in terms of its own trading potential and the stability of its economy. But it does have a role because without political stability there is no economic growth and no trade. I believe that countries which are members of the Commonwealth should have a better credit rating in relation to stability and should be regarded as more reliable and trusted as trading partners. Those matters are beginning to develop almost through—I hate to say it—the old boy network or the usual channels.
We sit here today and ask what our own future is to be. If we remain an isolated island, it is not a bright future. Most of my international friends say, "You have a great future. You are the nicest, safest and most attractive country in which to live", although it is not necessarily the best place in which to work or develop. But we are a nice country made up of nice people. We have brilliant people at the Foreign Office who are capable of boxing way above their weight.
We have a role. There are no Commonwealth territories in the United States or in the former Soviet Union. With certain small exceptions, there are no Commonwealth territories within the EC. We are there perhaps as the leader of what I hate to call the third world and what I prefer to call the developing world. I believe that we can play that role well. I believe, too, that we should give consideration to extending the Commonwealth. Why should we not extend membership of the Commonwealth to all those countries

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which have an historical relationship with the United Kingdom? There are many such countries and I have visited some recently.
Some of the most difficult countries regard us as having tremendous power and influence over the Commonwealth. In fact, it is often the other way round. If one considers the Gleneagles Agreement, and others like that, the Commonwealth has far greater influence over us. But the Commonwealth has a role to play in the world and in the creation of political stability. It is not a mini-United Nations. I believe that successive governments have done their best. Above all, I pay tribute to Her Majesty the Queen, who is one of the best-informed people in the world.
4.43 p.m.
Lord Wright of Richmond: My Lords, in asking for your Lordships' indulgence this afternoon, I hope that it is proper for me also to congratulate the noble Viscount, Lord Waverley, on his timely initiative in calling for this debate today. He is, as your Lordships may know, in a real sense, more wedded to the Commonwealth than any of us.. Indeed, I should like to add my personal congratulations to him and to the High Commissioner of Belize on their recent marriage.
But I must dissociate myself from the noble Viscount's over-generous remarks about my so-called expertise on the Commonwealth. I have noticed, with the help of the Librarian, that a number of your Lordships have compared the experience of a maiden speaker to that of a new boy at school. That is exactly how I feel, particularly following two former Commonwealth secretaries. Any maiden speaker must feel daunted when speaking for the first time in an assembly where so many of the senior prefects, as it were, have much greater experience of whatever subject is under debate.
I certainly felt daunted but also I felt immensely honoured and privileged to be summoned to join your Lordships' House. I was also very surprised, although not quite in the same way as my 90 year-old and rather deaf mother who, on being told, just before the New Year honours list was published, that I was moving to the Lords, expressed astonishment that I should be mowing the lawn in late December.
It is a happy coincidence that today's debate falls on the very day on which South Africans of all races go to the polls for the first time in history. Today's election is a reminder of an important new role which the Commonwealth has assumed in recent years; namely, to provide observer missions at elections—with the help and participation, I might add, of Members of this House. I understand that, in the past three years, Commonwealth missions have been sent to observe elections in nine countries, but none of them has been of the size or complexity of the mission which the Commonwealth Secretary-General has mounted for South Africa, in co-operation with the United Nations, the Organisation of African Unity and the European Union. The fact that the Commonwealth stands at the forefront of this mission to assist South Africa's momentous process of transition is, as Chief Emeka Anyaoku put it in a recent speech,
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"evidence of its reputation and rich experience, with the problems of pluralism".
South Africa's problems will not end the day the new government are installed. I hope that the Commonwealth will be able to help out in the difficult period which follows the election, as it has done in Namibia and Mozambique. It can help by re-establishing links which have withered since 1962: in the academic world, in the professions, in medical and charitable organisations. South Africa's return to the Commonwealth, if that is what the new South African Government want, would allow the Commonwealth itself to move into a new phase.
For too long, Commonwealth meetings in the 1970's and 1980's concentrated on South Africa and sanctions, while overlooking the issue of accountable government in many Commonwealth countries. At Harare in 1991, under President Mugabe's chairmanship, the Commonwealth rose to the challenge. In the clear language of the Harare Declaration, which owed much to the input of the noble Lord, Lord Armstrong of Ilminster, the Commonwealth declared what it stood for. The noble Viscount, Lord Waverley, has already summarised parts of it, but I think it may be worth quoting more fully. It states:
"the protection and promotion of the fundamental political values of the Commonwealth: democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government, and fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed, or political belief".
It is not only the South African elections which make this debate timely. For too long, attitudes in this country towards the Commonwealth—the noble Viscount referred to it as its public image—have been adversely affected by three misconceptions. The first has been to see the Commonwealth merely as an attempt to freeze Britain's past relationships with our former dominions and dependent territories rather than as a forward-looking and pragmatic association of friends, with a common language and a common heritage but with a wide and rich diversity of ethnic and cultural backgrounds.
The second misconception, sadly encouraged by ministerial experience, was that many had come to regard Commonwealth heads of government meetings as little more than an opportunity for others to lecture the British Government on sanctions against Rhodesia and, later, South Africa. As of today, that should happily be a thing of the past. The third was that Britain's membership of the Commonwealth was in some way in contradiction to, or in competition with, membership of the European Union or the Atlantic Alliance. This, in my view, largely arose from a misunderstanding of the Commonwealth's role. I firmly believe that we can, and should, revive our commitment to the Commonwealth, without in any way derogating from our position in Europe or as good NATO allies.
The Commonwealth no longer monopolises, if it ever did, the attention of any of its members. But a common history, and a shared set of values cart keep a family together, even if that family meets only irregularly. I believe that the Commonwealth is that sort of family,

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under the same head of the family in Her Majesty the Queen, and that the Commonwealth, in all its guises and entities, is the stronger for it.
Let us not underestimate the value—for all members of the Commonwealth—of maintaining and developing the whole nexus of Commonwealth bodies and associations, governmental, non-governmental and parliamentary, in helping each other through our various social, political, ethnic and economic difficulties; and, perhaps most importantly, in broadening our outlook on the world. I hope that today's debate will do something to correct the misconceptions which have, I believe, weakened those family links in recent years.
4.50 p.m.
Lord Pitt of Hampstead: My Lords, I am deeply honoured to have the privilege of congratulating the noble Lord on his maiden speech which, if I may say so, was really brilliant. The noble Lord compared himself to a new boy. Well, of course, he is a new boy; but he is a new boy who not only has great ability, but one who also has plenty of knowledge. I hope that he will give us the opportunity to listen to him very often. I am sure that we shall all do so with great pleasure and that we shall derive great benefit from it.
I, too, must thank the noble Viscount for giving us the opportunity to discuss the Commonwealth. I agree with what has already been said; namely, that it is particularly important that we should be discussing the Commonwealth today when the people of South Africa are voting in their first truly democratic election. The Commonwealth has played its part in bringing that about. It is not merely that it is monitoring the election: it played a major part in the stages that preceded it. I especially remember the Eminent Persons' Group and other activities within the Commonwealth which have been instrumental in making today possible. Of course, it is a great joy to all of us.
We hope that the election is a prelude to South Africa's return to the Commonwealth which it left in 1961, following criticism of the Commonwealth Heads of Government Conference as regards its racialist and political philosophy. However, South Africa will not be the first country to return to the Commonwealth. If noble Lords remember, Pakistan once left the Commonwealth and then later returned. Therefore, South Africa must not feel that there will be any difficulty in returning; indeed, it will not be the first Commonwealth country to do so.
As has been said before, since the inception of the Commonwealth in 1963, the association has been viewed, and has viewed itself, as a voluntary body comprised of independent sovereign states each responsible for its own policies, but with consultation and co-operation in their common interests and in the promotion of greater international understanding. That is very much the essence of the Commonwealth.
Over the years, Commonwealth members have shared many experiences—indeed, many of them were former colleagues —which range from de-colonisation, national and individual liberty, democracy, racial equality to the objectives of minimising poverty and
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maximising international co-operation. I believe that members of the Commonwealth share all those interests.
Although the Commonwealth developed from the Empire, it is a new concept. As Her Majesty the Queen once said, it is built on friendship, loyalty and the desire for freedom and peace. The Harare Summit has already been referred to by previous speakers, so I shall not dwell on it. However, it was a most important declaration. It underlined the principles that were already stated in the 1971 Singapore Declaration.
More recently, the Cyprus Communiqué dealt with trade. That, too, was of the utmost importance because bridging the gap between the developed and the developing countries is one of the roles that the Commonwealth needs to play. It may well be said that the Commonwealth has those objectives, but that one is not so sure whether it can achieve them. I am not one of those who share that view. I believe that the Commonwealth is well placed to influence such matters in the world.
The Commonwealth consists of large and small nations, both rich and poor, and it is represented in every regional economic and political grouping. Two of the G7 countries—namely, the United Kingdom and Canada—are members of the Commonwealth. The Commonwealth is represented in Europe by the United Kingdom and it is represented in the North Atlantic free-trade area by Canada. It is represented in the Organisation of American States by several countries in that region and it is represented in the Organisation of African Unity by many countries in the area. It is also represented in the Association of South East Asian Nations. Indeed, it is well represented in all groupings. Moreover, although Britain is a permanent member of the Security Council it will be found that, nearly always, one of the other 14 members is also a member of the Commonwealth. Therefore, that gives the Commonwealth an opportunity to play a role in every discussion and in every activity that takes place around the globe.
I should like to pay tribute to Canada. I am sure that noble Lords will forgive me; but coming as I do from the Caribbean, I know about the part that Canada plays in helping countries in that area. One of the reasons why I felt like making such a tribute was that I suddenly discovered the part that Canada has played in helping Botswana to develop its mining industry. That is the sort of role that I believe the developed countries of the Commonwealth can play. So far as concerns the Caribbean, Canada has had trade agreements with those states which allow one-way free trading where certain Caribbean products remain free of duty. Now that Canada is part of the North Atlantic free-trade area, the gradual removal of tariffs on Caribbean goods over the next few years will certainly be of great value to those countries.
I know that the United Kingdom also helps the African, Caribbean and Pacific countries in the European Community through the Lomé Convention. However, I have a little criticism to make about Britain. Whenever the Lomé agreement is being discussed, I find that it is Britain which fights for the lowest level of the

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Lomé development fund. Therefore, although Britain does fight for the least developed countries in the Commonwealth in Lomé, it is always dragging its feet about the extent to which it really helps.
I note the noble Viscount mentioned the part the Commonwealth is playing in encouraging democratic governments around the globe. I feel that I am more critical then he because I believe we ought in fact to be stronger in our condemnation of dictatorships within the Commonwealth. One of the principles of the Commonwealth is democracy. The democratic ethos is very much one of our principles and we should not tolerate non-democratic governments within the Commonwealth. We should in fact be indicating as firmly as possible our non-approval of these dictators. If I am to criticise our Commonwealth leaders, I want to say that they should be doing much more in that particular field.
If South Africa is to succeed—and we all pray that it will —then of course it must demonstrate that people of different races and different cultures can live together in equality and friendship. That is the biggest problem confronting the world today. I also want to say to your Lordships that we in this country also have an opportunity of showing how this can be done and done successfully, and that by doing it here successfully we will be aiding other countries like South Africa to do likewise. I really do hope that that is one of the resolves that we will make here.
My speaking time is up and I conclude by saying that I hope that when the Minister replies he will be able to tell us that the Government have the Commonwealth in the forefront of their thinking and that the Government envisage a strong, effective and influential Commonwealth and are determined to play their full part in making sure that that is so.
5.2 p.m.
The Earl of Courtown: My Lords, it has been 15 years since I first took my seat in your Lordships' House. I do hope that your Lordships will consider that this, my maiden speech, was worth the wait. For the past few months I have attended regularly and I have to admit that at times I have felt rather like a bullock; that is to say, a beast that can be overweight, has a tendency to be inquisitive but is in fact somewhat incapacitated.
My recent experience of this House has made me realise that the excellent reputation of the debates and speeches in your Lordships' House is well founded. This, coupled with the surroundings, has led many a maiden speaker to use the word "trepidation" in describing their feelings. I think that I would describe mine in slightly stronger terms. I understand it is the custom of the House to thank the noble Lord who proposes the debate and I do this in thanking the noble Viscount, Lord Waverley, for introducing this very topical subject.
It has been 63 years since the birth and inception of the Commonwealth from the Statute of Westminster in 1931, which gave legal status to the independence of former colonies. From an initial handful of countries, there are now 50 members, with the possibility of a further two joining in the near future. The point I wish
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to make is that the Commonwealth is still growing and a future does exist for this loose collection of countries originally bound together by a common colonial history.
I think that in many cases people do not comprehend the breadth and size of the Commonwealth. The population total is 1.5 billion, close to a quarter of the world's population. It is made up of many different races, religions and cultures from many varied geographical regions. Another fact that tends to be overlooked is the influence of the Commonwealth. Member countries belong to numerous worldwide organisations such as the UN Security Council and the Organisation for Economic Co-operation and Development. I could add to that list but a number have already been mentioned before, but what I intend to show is that the spheres of interest are worldwide. In January 1971 at the Commonwealth Heads of Government meeting in Singapore a Declaration of Commonwealth Principles was made. This was the beginning of the organisation as we know it today. This declaration was a statement of core beliefs which were meant to be calls for action with certain guidelines. These help to define the future role of the Commonwealth.
Since 1971 there have been biennial meetings of the CHOG at which further declarations have been made. Many of these have concentrated on the existence of racism and in particular the apartheid system that was found in South Africa. This started with the Gleneagles Agreement, with additional declarations on the same subject made in Lusaka, Nassau, Ottawa, Kuala Lumpur and Harare. It culminated with the Commonwealth lifting all remaining trade, investment and financial sanctions against South Africa in September 1993 following the establishment of a transitional executive council. I feel that the Commonwealth must take a considerable amount of credit for the first fully democratic elections being held today in South Africa. In addition, the Commonwealth Observer Mission has been operating in South Africa for the past two years with its valuable expertise in the areas of community relations, diplomacy, politics, law enforcement and legal and judicial matters. The Commonwealth has also supplied an observer group to help oversee the election numbering 120 from 30 different countries.
Where to now? For two decades the Commonwealth has concentrated in the main on ridding South Africa of the apartheid system. Of course racism still exists both inside and outside the Commonwealth and it must be vehemently resisted. But the removal of apartheid makes it possible for the focus of concentration to shift.
There is, for example, the continuing poverty in developing countries. There should be concentration upon improved rural policies and programmes as well as specific poverty alleviation measures. So often action takes place only after we see the headlines in the newspapers or after the television footage is shown on the nine o'clock news. Only then are nations shocked or shamed into action. I believe that the Commonwealth is supremely positioned to co-ordinate action quickly and effectively.
The environment is another area in which it has a role to play, particularly with reference to sustainable

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development. Protection must be given to the rain forests. This is easy enough to say from here, but where timber is the main currency earning export it puts immense pressure on the governments of the countries concerned.
The Commonwealth can and does have a policy relating to international crime such as money laundering and drug trafficking. But more action is needed at the root of the problem. Alternative crops are required in those countries where drug production is the main form of agriculture. So effort must be put into giving rural populations alternative sources of income.
These are only a few of the areas where the Commonwealth can expand its many roles and these can be carried out through the Commonwealth Fund for Technical Co-operation. The fund gives help in foreign debt management, creates export-marketing systems, helps in the rehabilitation of industries and also provides training, consultancy and expertise. In the year 1991–92, it had a budget of £22.6 million, with the United Kingdom being the second largest contributor after Canada. In 1992–9–93 our contribution went up to £7.5 million, but on top of that there were 205 training places and 23 long-term experts.
In some member countries republicanism is being considered, but this is no bar to membership. In Australia the Prime Minister, Paul Keating, has stated that Australia's path lies towards more involvement in regional trade and economic groupings and less towards the Commonwealth, but he agrees that Australia will give full and active support to the Commonwealth programmes in every respect.
The Commonwealth has contributed to one of the most important events in recent times, the death of apartheid. It still has many important roles to play. Now is the time for it to look forward towards the future and redefine its role, making full use of its vast bank of enthusiasm and expertise.
5.10 p.m.
Lord Charteris of Amisfield: My Lords, it falls to my good fortune to be the one to congratulate the noble Earl on his maiden speech and on having broken a silence of 15 years. We were all very glad to hear it broken and hope that we shall hear much more of him during the next 15 years and thereafter.
I should like to add my congratulations to the noble Viscount, Lord Waverley, on having instituted this debate on the role and future of the Commonwealth because that is a matter which is given insufficient consideration. Normally we hear about the Commonwealth only when there is a row going on among its members or when they are attacking us. When we do hear about it we are inclined to hear more about the row than the friendliness and good sense with which it is normally settled.
I fear that nowadays many people are a little bored with the Commonwealth. They are inclined to discount its value for the present and the future, even if they recognise that in the past it has had a valuable part to play.
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I should like to begin by saying something about the past. The Commonwealth began in 1931 as a small group of what might be termed the white dominions —Australia, New Zealand, South Africa and Canada, to which was added Rhodesia as a kind of honorary membership, largely because everyone was so fond of Godfrey Huggins. Now it has developed into the present large, multi-racial, multi-coloured group of 50 independent countries which were all once part of the British Empire. As each territory has been given its independence it has applied for membership of the Commonwealth club. With the exception of South Africa, all are still members. Pakistan has been in and out of membership. It is greatly to be hoped that South Africa, under its new multi-racial government, will reapply for membership and once more become a respected member of the Commonwealth.
Whatever anyone may think about the future role of the Commonwealth, I believe that all will acknowledge that its development and existence represent the most civilised method yet devised in the long course of history for dismembering an empire. I believe that history will look upon the metamorphosis of empire into commonwealth as a product of the British genius not greatly inferior to the development of parliamentary government.
What is the value of the Commonwealth today, and what role has it in the future? Winston Churchill once described Ramsay Macdonald as a "boneless wonder". Many people might consider it not unreasonable so to describe the Commonwealth. It has no common policy, political or economic. It has no homogeneity. It is multi-racial, multi-coloured and multi-religious, and it has no common territorial boundaries, being scattered across the oceans and the continents. There is no parliament which controls its destiny and, to say the least, some of its members are more democratic in their forms of government than others.
It is boneless all right, but I believe that it is also a wonder, and not just because of its lack of a cohesive structure. It is a wonder because these 50 independent countries, held together only by a shared history and a common use of the English language, have decided that the association is of real value and worth continuing.
Noble Lords who have already spoken have described in some detail what the Commonwealth provides for its members, and I shall certainly not repeat what they have said. They have made the case very clearly that the Commonwealth has a very real value, particularly for the smaller members and those new to independence. It must be a great comfort for a small country which has just become independent to feel that it belongs to this great association. It must be a great source of comfort and encouragement for the leaders of the countries to meet every other year at Commonwealth heads of government meetings, those great get-togethers for the members of the club known as "CHOGMs".
We are now so preoccupied with Europe that the Commonwealth may appear an irrelevancy, but I am sure that it is a very different matter for the small countries. For them the Commonwealth is of real value. I cannot avoid the reflection that had Burma been able

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to become a member of the Commonwealth on gaining independence, that country would be far less isolated than it is today, and, I suspect, in much better shape than I believe it to be. Unfortunately, when Burma became independent the inspired decision to allow India to remain in the Commonwealth in spite of becoming a republic had not been taken.
It was when India became a member of the Commonwealth, although also becoming a republic, that the position of Head of the Commonwealth was first invented. Having had the honour to serve in the private secretary's office of the Head of the Commonwealth for nearly 30 years, I hope that your Lordships will consider it in order if I say something about the way the Queen has performed as Head of the Commonwealth and the significance this has had for the Commonwealth.
It is worth noting that the Queen is almost certainly the longest serving servant of the Commonwealth, if I may so describe her. She has served the Commonwealth for 42 years. Her presence at the CHOGMs, where she receives each individual head of government for an audience of 20 minutes or so, and the fact that she entertains them all, has in my opinion added great significance to the meetings and to the atmosphere of family friendship which is generated at them. I believe that it is of some significance that the one really bad-tempered CHOGM—the one which was held in Singapore in the early 1970s—is the only CHOGM which the Queen has not attended.
I am certain that the service given to the association by the Queen as Head of the Commonwealth has had a profound effect upon its development. I do not believe that without her it would have held together in the remarkable way it has, nor do I believe it would be what I am sure it is, a real source of good in the world.
5.18 p.m.
The Earl of Selkirk: My Lords, I should like to thank the noble Lord for the speech that he has made to us today. In relation to his final point, I cannot refer to such an exalted person as he mentioned. I believe that the Commonwealth is a reflection of the strength of our character. In that connection, in the coming together of the two sides in South Africa, character has been the making of the agreement which they have now reached. That is of enormous importance. We have something to give and we should not be ashamed of making it available.
I have found the debate this evening extremely stimulating. I was worried about what would happen. I was frightened that those holding high appointments and with command over assets which they could make available would not make them available as was hoped. I believe that much could be done by help from our Government and elsewhere.
I wish to record my experience when in the Royal Air Force in the war. I was in 36 Group. We trained people who came from outside this island. We trained them to be useful as pilots. Between 1,000 and 1,500 people were involved. When the great D-Day took place, those people landed with their small air boats somewhere on the edge of France. They came from New Zealand, Australia, South Africa, India, South America and, of
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course, Canada in large numbers. They wanted to work with us and were willing to do so. I am afraid that some of them undoubtedly lost their lives in so doing. But they were men of great character. They came willingly and happily to fulfil the role of helping us.
Why should such people come from halfway around the equator to help us? They did so and we should express our thanks to them for so doing. I believe that we have sufficient leadership to encourage other people to lead the ranks, perhaps in politics. I must confess that I was frightened that the Government of this country would not do enough to help Canada and other places. We must ask and press them to do so. If the Government do not help the Commonwealth countries, they may collapse. If they collapse, we may collapse, so perhaps I am being a little selfish—as everyone in this world tends to be. With that thought in mind. I sit down.
5.21 p.m.
Lord Armstrong of Ilminster: My Lords, I should like to add my congratulations to those already expressed to the noble Lord, Lord Wright of Richmond, and the noble Earl, Lord Courtown, on their maiden speeches. We look forward very much to their continued contributions to our deliberations. If the noble Earl will allow me to say so, I am particularly glad to welcome to this House my noble friend and ancient colleague—I use the term "ancient" in the French sense—Lord Wright of Richmond. He is a welcome addition to the diplomatic firepower in your Lordships' House. I am glad to note that the carrying power of his voice has not diminished since we shared an office together in 10 Downing Street 20 years ago.
My experience of the Commonwealth, like his, has largely been at governmental level, from inside the Government. I attended seven CHOGMs between 1971 and 1991. Those have not been easy years for the Commonwealth. At times there must have been many of us who wondered whether there was any useful role for the Commonwealth to play in the world and whether it had any future. I believe that the answers to both those questions can now be more positive than at any time within my memory.
The first point is that by the Harare CHOGM of 1991, the first generation of Commonwealth Prime Ministers, many of whom had brought their countries through from being colonies to independent status, had in various ways left government and the new, second generation of leaders are men and women who are less concerned with the historical struggle for independence from Britain than with the present problems and pressures of governing and managing the economy of a developing country. In that situation, Britain is no longer suspected as the potential enemy but seen as a potential source of friendship and assistance.
That was perhaps the second great change over the period. Britain increasingly came to be seen not as the former colonial power but as another member of 'the Commonwealth, admittedly one of the larger ones., whose membership of the Security Council and of other international organisations enabled her to represent the needs and aspirations of the Commonwealth and Commonwealth countries in those organisations.

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Of course, the third great change affecting the Commonwealth —it is especially relevant as we meet today—has been the ending of apartheid in South Africa. In one way or another, to a greater or lesser extent, issues surrounding apartheid dominated and divided the Commonwealth from 1971 to 1987 or 1989. There was indeed no fundamental difference of principle: the politics and practice of apartheid were abhorred no less by the British Government than by the governments of other Commonwealth countries. But there were profound and often acrimonious differences on the ways in which and the extent to which other countries should seek by their actions to bring pressure to bear on the South African Government to end apartheid. In those differences, the British Government too often found themselves in a very small minority —and sometimes seemed to revel in the fact.
By the time of the Harare Conference, all that had changed. The issue was no longer whether we should impose or intensify sanctions on South Africa: it was how soon the sanctions already in place should be lifted, and how the Commonwealth and its members could best assist the development of multi-racial democracy in South Africa.
In that connection I should like to join those who have paid tribute to the contribution which is made by the Commonwealth Secretary-General, Chief Emeka Anyaoku. His deep commitment, and the skill of his quiet and unflamboyant diplomacy, have earned him the trust and confidence of all those involved, and have enabled him to ensure that the Commonwealth has been positively and actively contributing in a number of ways to the progress that has been achieved in South Africa.
The fourth great change that has affected the Commonwealth, as it has affected every aspect of international affairs, is the ending of the cold war. So long as the cold war lasted, the Commonwealth seemed inevitably somewhat peripheral to the main issues of East-West relations. In the new order following the end of the cold war, full as it is of regional uncertainties and disagreements, the capacity of the Commonwealth to be a unifying force becomes easier to see.
It is an extraordinary institution. When the Heads of Government meet, there are representatives of a quarter of the world's population—50 countries sitting around a table together, able to communicate directly with each other, without the mediation of interpreters, coming from a great diversity of regions and countries, each with his or her own national culture but all sharing a common culture derived from their association with this country.
The Commonwealth has no written constitution or charter. It has been endowed by its members with no formal powers. Its decisions and conclusions are arrived at by consensus. The capacity of the Secretary-General for action derives partly from mandates laid upon him by Heads of Government and other ministerial meetings, partly from the willingness of member countries to provide the resources it needs and partly, and especially, from the confidence which member governments place in him.
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But the very flexibility and informality of those arrangements enables the Commonwealth to adapt more easily to changing needs and circumstances. In the new and so far confused post-cold war world order, there is increasing value and importance in an international body which is not fettered by formal documents but is able to respond flexibly; in a body whose members come from the developed and the developing countries and from all five continents of the world.
All are independent sovereign states, each with their own national cultures, interests and regional groupings. But when they come together, for instance at a CHOGM, one is conscious not only of their diversity but also of what unites them, in particular the English language in which they can converse directly with each other, the elements of common culture which they have inherited from the past, in many cases the practices and precedents of the common law, and often shared educational links.
The Commonwealth has long been, and I hope long will continue to be, an important channel for economic aid and support from the developed countries to the Commonwealth's developing members. But now with the divisive issue of apartheid behind it, the Commonwealth is able to turn its attention to principles and causes to which it has been committed, as we were reminded earlier, for over 20 years and which have resonances across the world. I refer in particular to the encouragement of democratic values and institutions in member countries, the strengthening of good governance, the rule of law and the independence of the judiciary, the principles and practices of equal opportunities, irrespective of differences of racial origin or gender, and improvements in educational and health opportunities. The Commonwealth renewed its commitment to those values and principles in the Harare Declaration of 1991, in which, as the noble Lord, Lord Wright, said, I had some small part to play. It is possible for the Commonwealth to be increasingly active in these areas without excessive calls for increased resources. The Secretary-General has been reviewing and modifying the organisation of the secretariat in order to strengthen its ability to respond to the calls upon it.
If there is one thing that I particularly urge upon the British Government, it is that they should do everything in their powers to increase and strengthen the educational links that should bind the members of the Commonwealth. On a recent visit to this country, the Prime Minister of Singapore reminded us that, unlike previous generations of leaders in Singapore, he and his contemporaries had received their higher education in the United States and not in this country. That is a tendency which we should seek to reverse if we care about the future of the Commonwealth.
Finally, I should like to say a word about the Commonwealth Institute. Eighteen months ago the Government invited me to undertake a review of the Commonwealth Institute. I was impressed to find that it does not live in the past but lives in the present and looks forward to the future. It is housed in Kensington in a building of considerable architectural merit, but the building is liable to fall down. It needs many millions to be spent on restoration work. The institute has been

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largely dependent on public funds, but the public funds available to it—about £3 million a year—enable it to conduct only a restricted pattern of activity and oblige it to raise funds from other sources. The grant makes no contribution to the funds required for the restoration of the building.
The institute does good and valuable work. I am sorry that the Government have felt obliged to give notice of a decision to discontinue public funding in two years' time, in March 1996. The institute has responded to the challenge with spirit, by developing a new vision and a new strategy which will enable it to continue to play a useful and imaginative part in promoting the significance of the Commonwealth, not least through a newly developed education programme.
The value of its work and the sturdiness and imaginativeness of its response to the proposed withdrawal of public funding deserve your Lordships' consideration and support. I hope that the House will join me in urging the Government to consider very sympathetically the institute's case for the financial and other support which it will need if it is to be able to implement its strategy and secure its long-term future.
5.32 p.m.
Lord Gridley: My Lords, it is usually in keeping to make some reference to the previous speaker and I do so with pleasure, congratulating him on the constructive way in which he spoke. However, that has not always been the case this evening with some speeches. I was somewhat upset when the comment was made: "What can we get out of the Commonwealth if it gives nothing to us?" I also wondered when we heard the opening speech in the debate; I suspect some of the comments dealt with the Secretary-General to the Commonwealth and representations made to him by some of our Commonwealth states overseas. I am not in a position to comment on that and it seems to me difficult for anyone to do so in the circumstances.
It is difficult to keep one's speech on the role and future of the Commonwealth within reasonable bounds because it is a tremendous theme to debate and consider. As regards my experience, I was involved in giving effect for 30 years overseas to the policies of His Majesty's Government in a Commonwealth country—Malaysia. I got the impression that the policies were pretty good and that they were well received by people out there. The policies were constructive and easy to follow and if any complaint was made it was dealt with quickly. When there was trouble in the formation and re-introduction of the rubber industry after the slump, the Government—I think that a Labour Government was in power at the time—sent out people from this country, union leaders, to contact the people who were complaining. That was accepted. It was constructive and showed that in those days we were dispassionate and wanted quickly to get to the bottom of difficulties.
I was 22 years old when I left these shores to take up an appointment in the British Colonial Service in Malaysia. My service was in that country, which was known at the time as the Federated Malay States, and it was one of the Free Associations of Sovereign States within the British Commonwealth of Nations;
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comprising Great Britain and a number of its former dependencies who chose to maintain ties of friendship and to practise co-operation with Britain. It has not been mentioned sufficiently tonight that that country acknowledged the British monarch as the symbolic head of the association for the period from 1931 to 1946. A previous speaker mentioned that when India became a republic and chose to remain within the Commonwealth, the phrase "Head of the Commonwealth" was substituted for "Emperor of India" in the royal title of Queen Elizabeth II. That WETS in 1953.
I have covered those points because feel it necessary to set out the constitution applicable to Her Majesty the Queen on the Throne today in relation to the style followed by her father and grandfather in earlier years. That constitution has been in force ever since, for the whole of that period. At that time, various colonies were evolving from states subordinate to the United Kingdom into an association of equal partners. In that respect I should like to comment on life in the Commonwealth as it evolved and as it appeared to me and to mention my views on the constitutional situation. I wish to state that I consider it necessary to maintain royalty and the services it gives to the nation and the Commonwealth. I cannot see that there is any other constitution or system capable of rendering the service it gives and has given to the nation and the Commonwealth I shall give my reasons in greater force later on.
I should like to refer in this connection to a broadcast made by Her Majesty's grandfather, when I was 12,000 miles away from this country, in the early days of overseas broadcasting. I was in the Federated Malay States, with others, on that great day, waiting to hear a speech by King George V to his empire. First, we were able to hear an account of the cheering of the British crowds on the King's drive from Buckingham Palace to Westminster Hall. Having heard the King as he spoke, people with me were of the opinion that, from the effect, he seemed near to them, very human. He spoke about the First World War. He seemed very tired at the approaching end of a long reign and he spoke of the war's terrible casualties. The reaction was indicative to me of what the people felt, listening to what the King had said. One of them jumped up and said: "Tuan, having heard the King speak has made me feel I must do something better with my own life".
Let us look at that. All the time from those early years, great value was given in the broadcasts of the BBC to the cohesion of Britain with the Commonwealth states which brought Britain and those countries ever closer to one another. The distance was shrinking by the speed of air travel, as well as the BBC's efforts in letting people overseas know what was happening in England.
Secondly, I remember the great air flights that took place between this country and Australia. Notification was given by wireless or telephone (I do not know which) of the time and dates when certain planes would land in a certain area to refuel. That caused great excitement to people who lived overseas, and who admired those people for the risks that they were taking. But not only that; the flights again demonstrated that through air power, development and production, the

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Empire, or the Commonwealth, was drawing nearer and nearer through a reduction in the time of travel between one country and another. I remember (I hope that I am right) that the people who carried out those flights were Jean Batten, Amelia Earhart, Cobham, and Amy Johnson. I do not know whether any of them is alive today, but they were household names at the time. It would be quite impossible to overlook the excitement that the air race to Australia caused. Great service was given by that demonstration of the way in which distance was "being reduced" at that time.
Earlier still in that period of air development, two British pilots succeeded in flying across the Atlantic from America and landing in Ireland. They were John Alcock and Arthur Whitten-Brown. Both pilots were knighted by the Queen for their achievement.
Another person who captured the admiration at that time, about whom we read in the British newspapers, was the American, Charles Lindbergh. He flew solo from America to France—and flying solo was considered a very brave thing to do in that particular instance.
I cannot cover everything in this debate and I shall make no attempt to do so. But I want to mention the attack by the Japanese on Singapore in 1942 and what happened to the people there and the civil servants after that attack. On a certain day instructions were given that the High Commissioner and the Governor of Singapore were to meet with all the white Europeans and people serving in that country, together with other people. They were to assemble and be led on foot by the Governor, Sir Sharton Thomas, marching the nine miles from that city to Changi gaol. It was the intention on that day that we should see many hundreds of Singapore citizens lining the streets. The reason that the Japanese—or our conquerors, whatever one likes to call them—did that was to cause a loss of face to the Europeans. The Japanese also realised, given what the Government of Britain had been to their territories overseas —incidentally there were 1,000 civil servants on that walk —that if we were allowed loose during the Japanese occupation we would be a danger to the way that they governed. The Japanese had not come there to enjoy themselves; they had come there to—
Lord Annaly: My Lords, I remind my noble friend that this is a timed debate. Perhaps he will draw his contribution to a conclusion.
Lord Gridley: My Lords, I regret that I have lost time on this matter by diverging. I should just like to mention our constitution. The broadcasts that reached Singapore from Britain on our constitution—that is, on royalty, our democracy, and so on—were used when people were dying in the jail. The daily reports that we received from the BBC kept people alive who would otherwise have died. That observation is justified this evening. I cannot elaborate any further and give noble Lords the explanation as it would not be fair for me to do so.
5.45 p.m.
The Lord Bishop of Lichfield: My Lords, in congratulating the noble Viscount, Lord Waverley, on initiating this debate, I should also like briefly to contribute an experience from the rather more recent past. It is one that I can never forget, and I hope that it will be of some interest in this debate. I shall never forget the experience, stretching over several years, of living and working in an African Commonwealth country during the nightmare years immediately following that country's transition to independence. I refer to Uganda's early years after gaining its independence in the early 1960s, during Dr. Obote's first administration, and then the years of Amin's reign of terror.
It was precisely through living through those years that those of us who were there were able to see at close range the various political, legal and cultural norms and values that were inherited from Uganda's experience, first as a British protectorate and then as a Commonwealth member. We were able to witness during those years that inheritance coming under the most intense pressure.
In particular, and most vividly, as Members of this House will remember, we saw the whole tradition of freedom and security for individuals under the rule of law being eroded by General Amin's terrifying attitudes of greed, violence and contempt for those human rights and liberties which Uganda's past experience had indicated should be preserved. I remember, for example, the executions that regularly went on in the police barracks just below the theological seminary where it was my privilege to teach.
On another occasion I remember a small group of African and European children who were travelling to school by car being ambushed by Amin's thugs. They were hurled into the road at gunpoint and the vehicle was stolen. There was nothing that could be done to prevent it.
A particular incident remains in my mind. A visiting British trade official was suddenly seized—again by Amin's henchmen—while eating his breakfast in a Kampala hotel. Her Majesty's Government responded swiftly by submitting a writ of habeas corpus to the Ugandan high court. That placed the Ugandan chief justice of that time in a position both of grave judicial responsibility and of radical personal danger. Yet, as Members of this House may recall, that chief justice, who had spent a number of years here in England practising the disciplines and standards of English law —and who, I might add, would often pay tribute to the inheritance that he learnt here—made arrangements swiftly to hear the case. He released the British trade official, who I am glad to say is now safe in this country. The chief justice was never seen again and is buried anonymously in some unknown banana garden near Kampala.
The point of this example lies in its sequel. A few days later, a not inconsiderable group of younger students asked to see me. They were concerned to let me know that the chief justice's "costly stand", as they said, would never be wasted or forgotten. Rather, they were

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sure that their generation would continue the struggle for justice and the rule of law in forging their country's future. That is not nostalgic, anecdotal memory. It is rather to suggest that those facts in the history of the Commonwealth have a present, living force. Like other noble Lords, I could add other examples from the educational record of the Commonwealth. The noble Lord, Lord Armstrong, and other noble Lords emphasised that aspect. Our own Anglican Archbishop of Uganda died, probably under the hands of Amin himself, for a similar form of resistance.
My point is that the role and future of such a Commonwealth country are still in the melting pot. They are still being forged. On a recent visit to Uganda, I had the privilege of meeting a few members of the Ugandan Cabinet and the legal commission, which is presently travelling throughout that country and struggling to gain understanding and assent for a new democratic constitution. In that struggle the experience and support of the Commonwealth is a not unimportant factor. In fact, without the help of the neighbouring country of Tanzania, Uganda would not be in its present slate of being on the way to greater well-being and stability.
The Speaker of the Canadian Parliament once used a splendid image of the Commonwealth, with which I should like to conclude. He said that when geese migrate, they fly in formation and help each other. Each goose, as it flaps its wings, creates an uplift for the goose that follows. All the geese, as they make their individual contribution, give the whole flock a 70 per cent. greater flying range than would be the case if each goose had to fly alone. Furthermore, when a goose begins to lag behind or gets out of formation, the others honk it back into position.
I hope that your Lordships' House will show no sign of lagging behind in enthusiasm for supporting the noble Viscount's Motion. Rather, let us fly together in a flock and go farther in this uncertain and turbulent world.
5.53 p.m.
Lord Beloff: My Lords, at lunchtime today I was asked by an interviewer from Wales Radio whether any discussion of the Commonwealth could be anything more than an exercise in nostalgia. In reply, I made many of the points which noble Lords have presented tonight about the current activities and prospects of the Commonwealth. I concluded by saying that at any rate there was quite enough in the Commonwealth for the House of Lords to have a very good debate for a full five hours. That statement has already been borne out, thanks to the noble Viscount, Lord Waverley, and the two maiden speakers in particular.
Even so, there have been one or two items in the list of elements that bind the Commonwealth together which have been omitted; for instance, cricket or—until we heard the very moving speech from the right reverend Prelate—the law. That was mentioned by the noble Lord, Lord Armstrong of Ilminster; but it seems to me that one ought not to underplay the importance which the British system of common law has had in forming the attitude toward law in most Commonwealth
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countries. Now of course appeals to the Privy Council are fairly rare and only a few countries preserve that practice. Also, there are few countries now in which British lawyers may be heard before their courts. But I still feel that is a very important additional element.
My own experience has been in the academic sphere, a field which several noble Lords have mentioned. I began studying the Commonwealth in any depth some 30 years ago. When preparing some lectures in the University of Delhi I remember looking out of a window and being distracted by the gorgeous sari clad female students of that institution; then, writing the lectures in Canberra, and being equally distracted by the even more colourful parrots around the campus; and finally, delivering the lectures in snowbound Montreal—all within a matter of weeks. The Commonwealth is a very varied place.
When one tries to forecast what is likely to happen, it is useful to remember that the process of change has been constant. Several noble Lords indicated that there is a kind of birthdate for the Commonwealth, which is either the Statute of Westminster or some other, similar fixed point. In fact, the embryonic idea of an association of self-governing countries goes back to the time when the empire was still at its greatest; namely, before the first world war. When I wrote my book, The Dream of Commonwealth, I was thinking of the attitude taken in the inter-war years to the possibility that there could be a free association of self-governing countries. At first, as one noble Lord pointed out, it was envisaged as the original dominions plus Rhodesia, to which other countries which were still dependencies could be added as they achieved measures of self-government.
I suppose that the question is why, after the war, although the association remained, much of the substance—which from the military point of view had been important during the war—disappeared and, from the economic point of view, became much less significant. Nonetheless, I feel that the noble Lord, Lord Selsdon, slightly underestimated the importance of some Commonwealth trade and its importance even today.
I have no doubt that the turning point was our decision to seek association with the European Communities. Much as I appreciated, as I am sure did all noble Lords, the maiden speech of the noble Lord, Lord Wright of Richmond, I cannot agree with him. More and more I believe that there is a fundamental inconsistency between the idea of the Commonwealth and our membership of a supranational organisation. In its nature, the Commonwealth is an association of independent, sovereign states. The objective of the European Community, which we are now told to call the European Union, is to subordinate Britain into becoming simply a unit in a federal system. I cannot see why the other countries of the Commonwealth, which have preserved and attach great importance to their independence, should be prepared to regard as an equal a country which has no more constitutional status than that of, let us say, an American state or a Canadian province. Whether or not the economic arguments—and perhaps to some extent the defence arguments—for making that choice were inescapable at the time will be

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for future historians to decide. Like many people, I thought we were right; I am now coming round gradually to the view that we were probably wrong.
I believe that the increasing interest in the Commonwealth, of which this debate is an example, is not only because it has been relieved—as we were reminded constantly in the course of the debate—of the burden which the South African issue introduced into Commonwealth affairs over some 20 years, but also because of the growing questioning regarding the way in which "Europe" is now going. So there are new possibilities before us. We may not be able fully to find a solution. But it is indicative that when the Commonwealth countries last met in Cyprus, among other things they declared their determination that the GATT agreement should be ratified—that is to say, they expressed themselves collectively in favour of a world trading system and to some extent by implication repudiated the view that regional blocs would now come to dominate everything. It is because the Commonwealth is a world system of ideas in education and in law as well as in trade that those like myself, who are on record as having despaired of the Commonwealth a quarter of a century ago, now find a debate like today's of great interest and importance.
6.3 p.m.
Lord Craig of Radley: My Lords, it is always fascinating to listen to the noble Lord, Lord Beloff, and I should like to join with others in thanking my noble friend Lord Waverley for bringing forward this subject for debate. Also, I associate myself with those others who congratulated the two maiden speakers who contributed so well this afternoon.
Forty years ago—I noted that it is fashionable today in your Lordships' House to turn to the past—when I was preparing for a promotion examination the Royal Air Force sent me to Birmingham University for a week, where I and fellow officers were given a crash course to help prepare us for the current international affairs paper of the exam. I am afraid the details of the week are now lodged only in my subconscious, well beyond recall. But our excellent professor gave us one most useful tip. He said that when answering or discussing questions about foreign policy and international affairs we would do well to marshal our arguments under three separate headings: political, economic and military. I passed my exam, so I assume that it was good advice. Today I thought that I would make just one point about the Commonwealth under each of my professor's three headings.
With such talent and experience in your Lordships' House I have heard and confidently expect to hear more interesting political issues raised. The point that I wish to comment on may even lie beyond, and certainly lies above, the normal run of political comment. I refer to the position of the Monarch as Head of the Commonwealth. It is a remarkable feat, as my noble friend Lord Charteris so cogently pointed out with such unique authority, that that arrangement has continued
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over many years when so much else in the world has been changing, not least the political make-up of the nations of the Commonwealth.
It is certainly debatable whether we could still have the Commonwealth if we did not have the Monarchy. Can anyone conceive that the Head of the Commonwealth might become some sort of rotating or even elected position? Like so many of our historic institutions, it is easier and probably better to leave matters as they are than to try to find a new arrangement. All who value the Commonwealth ideal have much to thank Her Majesty for in her leadership and commitment over the years. Were some future Monarch ever to lose the sureness of touch or the respect of the citizens of the Commonwealth, or worse, were we ever to become a republic, I fear that the binding mortar of the Head of the Commonwealth would soon crumble and the Commonwealth itself could fall away. It could fall away because so much else has happened since the days of empire and old dominions beyond the seas to weaken the original ties. Let me choose just one economic and one military point to illustrate that.
Commonwealth preference going back to the old empire days, but kept alive for some years thereafter, is now relegated to the history books. We have cast our lot with Europe and GATT, too, has its influence on our trading patterns. Surely, the pessimists were forecasting, such a betrayal of old trading patterns, such a selfish and narrow perception of our national economic self-interest, would deal a death blow to the Commonwealth. But it has not killed it off. Perhaps the outcome of such profound economic change has yet to emerge. So far it has not and the omens are not all bad.
But if economic self-interest is acceptable, what of our security needs? Twice this century Commonwealth countries sent their finest men and women to fight to save this country from invasion and defeat. Many lost their lives or were gravely wounded in those wars. Would the Commonwealth turn out again with such a demonstration of support and loyalty if we were ever to find ourselves in mortal danger once more? We seem to have judged the answer to that in no uncertain way. No longer do we look to our old dominion and other Commonwealth nations to strengthen our resources. We have cast our lot with NATO, with the WEU and with our European neighbours. Sound arguments abound for making allowances for such economic and military co-operation with former European enemies, so that it is inconceivable for any of those former adversaries, and now allies, to turn against us.
We have made sure that our concentration in Europe is not misunderstood or overlooked around the Commonwealth. Virtually all our military presence—our garrisons and overseas bases—have been given up. What confidence has any Commonwealth country that the United Kingdom would come to its aid if threatened? They too have drawn their conclusions.
Of course, some will argue that the world security situation has changed so much that the idea of such mortal threats to this country or to any other Commonwealth country is inconceivable. To such ostriches all I would say is look at the former Yugoslavia. Man is still a fighting animal with the

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veneer of civilised behaviour. We hope and pray that the veneer will not peel off. I doubt that we have or will ever reach such a happy state of security. But of course we must all keep trying to reach that heaven on earth.
What, then, is left to bind our Commonwealth together? One idea which is neither new nor untried is the interchange of training exercises that our Armed Forces and those of Commonwealth countries have enjoyed for many years. Some of that has been eroded by shrinking defence budgets; some have been affected by attitudes like New Zealand's to nuclear matters. But the scope for high grade training with our all professional forces is still extensive. I was delighted that South Africa is reportedly turning to us for help with its restructured services. Perhaps that will prove to be one of the first steps towards a return of that beautiful country to the Commonwealth. What a boost that would be for the Commonwealth. What a putdown for the Jonah s who say that the days of the Commonwealth are numbered. I for one hope that they are not.
6.10 p.m.
Lord Elibank: My Lords, I too should like to begin by thanking the noble Viscount, Lord Waverley, for giving us a chance to have a look at this often low profile but often very effective institution. When I was trying to clear my mind before the debate on my views of the Commonwealth it seemed to me that one's approach depends very much on one's age. I can remember being a schoolboy before the war, as many of your Lordships must have been, and looking on the old British Empire with the greatest pride, covering as it did, or so we were told, a fifth of the world's surface and a quarter of the world's population. Most families had fathers, brothers or uncles in either the Indian Army or the Colonial Service. The general feeling among us boys was that we were unquestionably top nation. This was the source of greatest pride to us as we looked back through some 200 years of our history and looked forward with great confidence.
Of course in 1939 came the Second World War and within weeks most of our dominions and our colonies had rallied to our cause. At that point it was no more than a European conflict, the apotheosis, one might think, of the Empire, and the dawn perhaps of the Commonwealth. At the end of the war there was a quite remarkable change. Within about two decades the old dominions had become noticeably more independent in their foreign policy and outlook on world affairs and the colonies had become for the most part independent. Someone of my age cannot but look back with a certain nostalgia to that past which I suppose will remain with me as long as I am alive.
So much for what I might loosely call the older generation. But what of the young? By "young" in this context I would take those born after the end of the Second World War. What do they think? I have no extensive survey on this matter to rely on but I have consulted a limited number of the young and the early middle-aged on the subject. I think it is fair to say that to most of them the old British Empire is a historical fact like the Roman Empire but of course much more recent; but nonetheless a part of history. They look forward
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either with enthusiasm, or with diminished enthusiasm, to our approach to Europe. To them there is a certain inevitability about the call of Europe which will take us into that continent in closer and closer alliance.
On this point I agree with my noble friend Lord Beloff that there is a latent conflict between the old Commonwealth and our involvement with. Europe. It is very difficult to see the two marching hand in hand together. When we launched ourselves into our European commitment we took the decision that Europe was the way for this island to go in the future and that contacts with the old Commonwealth would be of a sentimental and perhaps utilitarian nature. It is an obvious cliché that the future belongs to the young and the prospects for our remaining as a united association for any great length of time are rather limited.
But we are looking at the position in 1994. What should we do now? What bonds do we have with the Commonwealth that we should strengthen and acclaim as far as possible? One point that weighs quite heavily with me is the moral obligation that we have towards our old colonies, and I suppose to a lesser extent towards our old dominions. For up to 200 years they produced men to fight our wars and materials to feed our factories. We in turn gave them what we think of as benign government. But we owe a moral debt to them which will continue into the future for quite some time.
There is no doubt that being also members of the Commonwealth and being the mother country—I suppose primus inter pares—we are able to exert an influence around the world out of all proportion to our economic and military strength. The Commonwealth's influence goes into all corners of the world. We can exchange ideas and bring pressure to bear whenever we think that is advantageous to world peace or world prosperity. The other members of the Commonwealth seem to appreciate this institution. As was pointed out earlier in the debate, they even wish to return to it when for political reasons they have in the past departed. As long as there is that degree of enthusiasm on the part of the other members of the Commonwealth there seems to be a considerable burden of responsibility upon us to keep it going.
I have one caveat which relates to power. Power resides in very few places in the world—in the United States; in the United Nations perhaps; maybe in due course in Europe. But it does not reside in the Commonwealth. It is an association which can exert influence. We should not seek to press it beyond that limitation. All in all it seems to me that for the immediate future, and perhaps for the medium-term future, the Commonwealth is a benign institution. It has been useful to us and we have made a useful contribution to it in the past. As long as we have the modest resources which we do to support it, we should bring those resources to bear as fully as possible.
6.18 p.m.
Lord St. John of Bletso: My Lords, as most noble Lords have already mentioned, it is opportune that today's debate takes place on the occasion of the first non-racial elections in South Africa—a day which we all welcome. The South African debate, perhaps more

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than any other, has been a central, and yet extremely divisive, issue within the Commonwealth for almost three decades. Following the demise of apartheid—and anticipating South Africa's imminent application to rejoin the Commonwealth which it left in 1961—it is to be hoped that that wealthy and diverse country will again become an active contributor to constructive development within the organisation, particularly within Africa.
In my brief nine-minute contribution to today's debate I intend to focus on South Africa's application and to discuss the general role of the Commonwealth. I heard the noble Lord, Lord Beloff, refer to the birth of the Commonwealth before the First World War. To my understanding, the earliest recorded us of the phrase "Commonwealth" was in your Lordships' House by the Earl of Rosebery, who in 1884 declared:
"the British Empire is a commonwealth of nations".
The concept of consultation and co-operation between equals was later formalised by the Statute of Westminster in 1931. Noble Lords last called attention to the future of the Commonwealth in the debate which my noble friend Lord Greenhill of Harrow initiated in November 1990. I am delighted that my noble friend Lord Waverley has again raised this issue before your Lordships today.
There is a growing perception—and one which I hope is mistaken—that Britain's commitment to the Commonwealth is waning and that we are less concerned with our Commonwealth links than with our European ties and our ties with the United States. It has been argued that the Government's decision to cut their grant-in-aid to the Commonwealth Institute from March 1996 is an indication of their decreasing esteem for the entire organisation. I hasten to stress that I do not believe that this is the case, particularly in view of the fact that Britain has always contributed well in excess of 30 per cent. of the secretariat's running costs, quite apart from the support which it continues to provide to a broad variety of Commonwealth initiatives and programmes.
However, while the basic concept of the Commonwealth is sound, I believe that there is scope for sharpening its agendas and goals. If it is to realise its full potential, the Commonwealth must be more than merely a talking shop laden with fine language and good intentions. It must act; but, more importantly, it must be seen to act. As both maiden speakers have already mentioned in their most commanding speeches today, for much of the past decade successive heads of government meetings have been occupied —I should rather say "preoccupied"—with the issue of applying pressure through sanctions on the minority government in South Africa. The discussion was certainly lively—and in many respects those sanctions did produce the desired effect of what we are seeing today—but the organisation often seemed more ready to condemn the system rather than to constructively assist in redeveloping South Africa. The dawn of a new, fully democratic South Africa now, as I mentioned at the start of my address, offers the Commonwealth an opportunity to address a more positive agenda towards
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the more global issues such as the recurring famine in most parts of Africa, civil wars, trading relationships and, of course, what my noble friend has already mentioned, the whole awareness of the global environment.
My own belief is that the Commonwealth can and shall always play an important role in the broader dissemination of information on subjects such as recent technological advances, education and farming. Here I should like to refer to one of the developing countries, Zimbabwe, which suffered last year from a catastrophic famine. I certainly feel that Zimbabwe would derive significantly greater long-term benefit from, for example, a Commonwealth group of advisers on the latest agricultural methods than it would from just another cash hand-out, which often has found its way into the wrong hands. There is, in fact, a well-worn African saying that if you give a man a fish you will feed him for a day whereas if you teach him how to fish, you will feed him for life.
I believe that the Secretary-General of the Commonwealth, Chief Ameka Anyaoku, has played a pivotal role in re-focusing the aims of the Commonwealth, in unifying its members and, specifically, in expanding the Commonwealth's role in the monitoring of elections around the world. This crucial role is one which has been undertaken, as we all know and as we speak now, at the polling stations in and around South Africa. The Commonwealth observer mission has been active throughout the country for more than a year, assisting local officials in the nervous transition to democracy. The Commonwealth has also provided invaluable assistance in the training of mediators and marshals specialising in crowd control.
Many noble Lords may be aware that Nelson Mandela told the Secretary-General in November last year that one of his new government's first policy decisions would be to apply to rejoin the Commonwealth. There are a number of reasons for that. In the first place, the ANC is acutely aware that the political and economic world is increasingly made up of powerful blocs. They realise that if a country wants economic growth, it should join a bloc; and that political reform should encompass a free market.
One of the ANC's fears is that, in this fast-changing world, attention appears to be drifting away from the continent of Africa. Its recent foreign policy document discussed the urgent need to reinsert South Africa into the regional and world economy. They believe that the country should be up front and a major and visible player in international forums, signing treaties, affirming conventions and relearning the global liturgy and litany.
Here I agree with the point made by the noble Lord, Lord Pitt of Hampstead. The Commonwealth has often been vulnerable to the charge that while it has advocated democratic freedoms globally, it has often condoned their absence among its own members. It is to be hoped that South Africa, once it has rejoined the Commonwealth, will assist in upholding the moral high ground.
In practical terms, renewed membership of the Commonwealth will give South Africa access to a wide

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range of specialist services, such as training and advice. It will also, possibly, result in a number of bilateral trade deals. South Africans are aware that the Commonwealth recently interceded on behalf of its members over the GATT talks. A joint Commonwealth-UN donors' conference on management and skill training is scheduled to be held in the aftermath of the elections. South Africa will also welcome the opportunity to compete shortly in the Commonwealth Games in Victoria, Canada, in August this year.
Thabo Mbeki, the likely Minister of Foreign Affairs in the new ANC Government, attended the heads of government meeting in Cyprus last year and was eager to stress the importance of improving economic and political links with Asian Commonwealth members as well as with Australia and Canada. He added that South Africa's reacceptance by the Commonwealth should send a signal to the IMF, the World Bank and international investors, that South Africa once again is keeping respectable company and can be trusted to play by the rules, one of which is to remain a multi-party democracy. Here I conclude by saying that "respectable company" is the key. The Commonwealth may rarely scream and shout these days, but I believe that it goes about its business calmly and efficiently. That is surely to be encouraged.
6.27 p.m.
Lord Desai: My Lords, as many speakers have said, today is a special day for the Commonwealth. The holding of multi-racial elections in South Africa as far as the Commonwealth is concerned is equal to the fall of the Berlin Wall for the world at large. If there was one issue which divided the Commonwealth it was the issue of South Africa. That is out of the way and the Commonwealth can go back to what it was intended to be; namely, a Commonwealth of nations which can live together in harmony.
I wish to return to the analogy of the Commonwealth and the United Nations, but before doing so perhaps I may make one or two historical allusions. The origin of the Commonwealth has been traced back to at least 1884. There is one thing which I wish to say in addition which is not quite about the word "Commonwealth" being used. India was taken over from the East India Company by the British Government in 1858. As far as I know, it is in Queen Victoria's declaration that for the first time the words "protection of rights regardless of creed, colour or religion" are used. Those words of 1858 anticipated the Harare Commonwealth Declaration. I do not mean that facetiously. If one reads the life of Mahatma Gandhi, who visited South Africa, one discovers that he decided that he had to intervene on the side of the British in the Boer War because he was a staunch Empire loyalist and believed in Queen Victoria's declaration. He was disappointed in practice, but that is what started him off. He believed that the rights of the Indians in South Africa were guaranteed by that declaration and he insisted on those rights. These matters have a long history and, although things have mutated and changed and we are clearly far from those
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days, it has always been the case that membership of the Commonwealth is independent of religion, race or colour.
I should also add that the history that was taught in India was that the post-war new Commonwealth was possible because Mr. Nehru, a Harrow and Trinity graduate, invented the formula whereby India could stay in the Commonwealth and Her Majesty could be redefined as Head of the Commonwealth rather than as Empress of the British Empire. In the discussions that were held in 1947–48, that was a crucial breakthrough in creating the Commonwealth.
One dimension that has been missing from the debate is that we still tend to regard the Commonwealth from the British point of view and to ask, "What is in it for us?", rather than, "What is in it for all of us, mutually coming together?" The reality of the Commonwealth is not merely Britain's exports to and imports from the Commonwealth. We must remember that Commonwealth countries export to each other. It is not an asymmetric system whereby the UK helps everybody else and nobody helps the UK. Various countries, such as Canada, Australia, the UK and New Zealand, play lead roles in various matters. It is an achievement of the Commonwealth that a number of countries that were formerly dependent territories now play major and leading roles in a variety of matters such as human rights, the monitoring of elections or development aid. One should see the Commonwealth not just as a family of nations headed by the mother country, but more as a genuine free association of countries.
One of the most remarkable things about the Commonwealth is that its total expenditure on all bodies such as the Secretariat is only £35 million per year. That is an extremely small sum of money. One of the reasons why people tend to ignore the Commonwealth is that it is terribly cost-effective. If it spent anything like the amount of money that the United Nations spends, or even its proportionate share thereof, it would be spending several billions of pounds and perhaps people would take more notice of it; perhaps we would complain more about it because we would see our money being wasted. It is because money is not being wasted that we ignore it. The Commonwealth Secretariat spends £9 million per year. I dare say that more money is stolen from the Mogadishu office of the United Nations in a day than is spent by the Commonwealth Secretariat. We have to say proudly and positively that the Commonwealth is an extremely cost-effective international system. I would call it a "global sub-system" because, as many noble Lords have pointed out, its reach is global. It has a membership in many different countries, north and south, developed and less developed. The Commonwealth is in every continent.
The Commonwealth almost parallels the United Nations, but on a smaller scale. It is not a regional treaty. It is not a trading area. It is not a rich man's club, or anything like it. However, in a very quiet and effective way, the Commonwealth performs certain of the tasks that the United Nations tries to do—be they in the areas of human rights, aid or intervention in quarrels between member nations. It would be a very good thing for us on

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another occasion to concentrate on asking whether the Commonwealth is not a very good model for the United Nations to follow. If the United Nations could behave like the Commonwealth, the world could be much better off.
Finally, many noble Lords have mentioned the importance of South Africa. I think that the Commonwealth could perform a major task if many countries showed some willingness about enabling it to do so. The last frontier of poverty and underdevelopment happens to be sub-Saharan Africa. In the mid-1960s we used to worry about India and China being able to feed themselves. We do not worry about that now. South Asia has gone off the agenda of urgent development problems. The urgent development problem today is in sub-Saharan Africa and it is in exactly that region that the Commonwealth has a major presence. The Commonwealth could do something tremendous there, starting from the Trinidad Conditions and other things. We should urge and enable the Commonwealth, through the Secretariat and the joint action of many nations, perhaps at the next Commonwealth heads of government meeting, to tackle the urgent problem of relieving African poverty. Now that South Africa could become part of the Commonwealth, there is an even greater need to do so and to do so urgently.
6.36 p.m.
Lord Alport: My Lords, I join other speakers in congratulating the noble Viscount, Lord Waverley, on the timing and subject of his Motion.
For many years past, the importance of the Commonwealth has been obscured by the controversies surrounding our membership of the European Union. I was a very late convert to the ideal of a united Europe because I believed that it would eventually damage Great Britain's relations with the Commonwealth, which to me was the greatest achievement in our history. Now our commitment to the European ideal has been undermined by what is known in the media as "Euro-scepticism" which is really a brand of narrow, bloody-minded Anglo-Saxon nationalism, the like of which has never been afoot in this country since King Harold's Anglo-Saxon army was defeated in 1066 and all that.
Yet the Commonwealth still exists. It may well be, as other noble Lords have said, that before the end of 1994, South Africa (under a new name) may wish to rejoin, just as Pakistan wished to do a year or two back.
The significance of all this is that despite Britain's membership of Europe, she is still the founder member of a world organisation covering every continent and comprising 50 members of all races, cultures, and religions—great and small—which believe that that membership is of benefit to them. The design and effectiveness of other international organisations has been brought into disrepute in recent years, yet systems of international co-operation and mutual help are more important today than ever before. Surely it is time that Great Britain, with its special relationship with fellow members of the Commonwealth everywhere, should
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consult them on how the Commonwealth can play a more effective and constructive role in world affairs. Should there be a Commonwealth bank? Should there be a Commonwealth conciliation commission to help to resolve disagreements between Commonwealth members? How should the present system of Commonwealth consultation through periodic Commonwealth conferences be reorganised? And how should Commonwealth countries get help to resolve the internal problems which so many of them from time to time have to face?
What those of us who have believed in the Commonwealth over recent years have been concerned about is the obvious failure of several Commonwealth conferences, for instance, Singapore in the 'seventies and Cyprus last year. That has been partly due to the personalities of the British Prime Ministers of the day, but more because areas of controversy have obscured the many problems with which the Commonwealth could help to deal. In spite of the end of the Cold War, this is not a safe world for any country, and to be the member of an effective group of nations is important to everyone, but it must be effective within the inevitable limitations of geography and national interest.
In considering how the Commonwealth can become politically more effective, I suggest that consultation between members should be based on regional interests and that observers from all members of the other regions should be entitled to attend each regional conference. The regions should be: first, Asia and Australasia; secondly, the Americas; and, thirdly, Africa south of the Sahara. Those regional conferences should take place in successive years, and there should be a full Commonwealth conference every fourth year. There should also be agreement to call a regional conference if members feel that a matter of great urgency has arisen.
I am thinking now particularly of Africa. If as I hope —and I think everyone in the House hopes—South Africa again becomes a member of the Commonwealth, its influence and problems will dominate the continent and require the understanding and support of the Commonwealth to a far greater extent than any other issue Commonwealth statesmanship has had to face during recent years. Help there cannot come from other international organisations such as the United Nations or NATO or the OAU. Whatever may be the outcome of the election and the events of subsequent months in South Africa, I hope that the Government of Great Britain and other members of the Commonwealth will be ready to provide the effective help that South Africa will need, after years of isolation, to become a stable, multiracial, prosperous and democratic country for the future.
What is now most important is that there should be a thorough review of the role and organisation of the Commonwealth as a result of the immense changes that have taken place in world affairs during the past few years. I urge the Government, in consultation with other members of the Commonwealth, to set in motion a wide-ranging review, designed to make the Commonwealth a more effective organisation of international co-operation in a dangerous world. I

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believe that taking such an initiative is our duty, and that that would be very much in the interests of all members, not least those of Great Britain itself.
6.41 p.m.
Lord Braine of Wheatley: My Lords, it is good to be having this debate on the Commonwealth and to be reminded of its unique character and significance in a still divided and troubled world. For that we should all be grateful to the noble Viscount, Lord Waverley. The Commonwealth is neither an empire nor a confederation; it possesses no centralised government, no common currency, no common defence system. It comprises kingdoms and republics, sovereign states and dependencies. To some it may seem illogical and unwieldy, but the point is, of course, that it works.
Despite all the pressures of this terrifying century, the Commonwealth continues to hold together. Each successive challenge to its existence finds it as resilient as ever. One reason for that may be that the Commonwealth is dedicated to the service of ideas greater than itself. But, whatever the reason, it provides all its members with an example of how free peoples can live and work together for the common good. It consists, as we know, of two parts. On the one hand stands a loose association of independent sovereign states, of which the United Kingdom is but one, equal in status, in no way subordinate to one another, staunch comrades in war, reliable friends in peace—an association which might be defined as an experiment in co-operation among sovereign peoples.
Here the United Kingdom may generally rely upon a common sympathy and understanding, but in no circumstances can it command adherence to its policies. There are then the remaining colonial territories—dependencies still, but moving at varying paces away from dependence upon the mother country towards partnership with her within the Commonwealth.
Opportunity beckons hopefully to us as we prepare to enter the 21st century, not just in the fully self-governing Commonwealth countries but in the remaining dependencies where there are still untapped resources and great potential markets. Nowhere will British capacity for leadership, example and understanding be tested more severely in the years ahead than in this remarkable evolving system, for here we are engaged in one of the most exciting and inspiring ventures ever undertaken by a single nation—that of helping millions of relatively poor people to stand on their own feet and to take their place among the free, self-governing nations of the world. It should be a matter of immense pride that the crucial election now taking place in South Africa is being monitored by a team from both Houses of our Parliament.
Let us make no mistake. Ours is a Herculean task, for no two dependencies are truly alike. Their peoples are at almost every conceivable stage of social, political and economic development. Some are now well advanced along the road to full self-government; others are not. Some are relatively well endowed with natural resources and are now capable of fairly rapid economic
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development; others are faced with the dark prospect of an increasing population outstripping the means of subsistence.
I speak as one who for many years was chairman of the UK branch of the Commonwealth Parliamentary Association. My predecessor was the noble Lord, Lord Bottomley, who spoke earlier with his usual wisdom, and with whom for many years I was always proud to work in a noble cause. I hope that it follows from what I have said that awareness of the Commonwealth and its potential in a still greatly troubled world is vital to our people.
That brings me to draw your Lordships' attention to a matter which should be of great concern to Parliament, and now appears to be of growing concern outside; namely, the announcement last September—I hope that it will not matter that in this context I sound a little critical—that the Government would 'withdraw their funding of the Commonwealth Institute in London in March 1996. That was despite the recommendation in the Government's own review last year, led by the noble Lord, Lord Armstrong, who spoke with such distinction earlier, that the institute has an important role to play as,
"a significant demonstration of the Government's commitment to the idea of the Commonwealth".
The noble Lord recommended that it should remain open.
There is every possible objection to the Government's proposal, and, rightly, it has provoked considerable opposition. I shall not go into detail about the institute's contribution to teaching young people about the Commonwealth, both at the institute and in the schools, save to say that it is formidable. It has been highly praised by educationists all over the country. Last year the institute was the winner of the prestigious Gulbenkian Award for the most imaginative contribution to education work.
There is no need for any of us here to speak of the work of the CPA, which maintains close links, as we all know, with parliamentarians from all over the Commonwealth, as the noble Viscount, Lord Waverley, reminded us at the outset of his excellent opening speech.
I feel strongly about the Government's decision to withdraw funding from the Commonwealth Institute, and I hope that my noble friend will take note and that there will be second thoughts.
6.50 p.m.
Lord Acton: My Lords, I too wish to congratulate the maiden speakers on their splendid contributions. I am especially indebted to my noble friend Lord Waverley for introducing the debate for I am a child of the Commonwealth. I was brought up in what was Southern Rhodesia and later lived for some years in independent Zimbabwe. I have reason to have great gratitude to the Commonwealth because of the part that it played by ending the terrible civil war in that country and by bringing it to independence.
During the interim period in early 1980, when the late Lord Soames was Governor of Rhodesia, had some dealings concerning that country with Chief Anyaoku

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who was then Commonwealth Deputy Secretary-General and is now, of course, Commonwealth Secretary-General. I am delighted to have this opportunity to pay tribute to Chief Anyaoku's courtesy, kindness and wisdom.
Since South Africa left the Commonwealth 33 years ago, my noble kinsman Lord Cranborne and I have not always seen eye to eye about every single development in southern Africa. However, today I am confident that, along with other noble Lords, we are united in rejoicing at the prospect of South Africa returning to the Commonwealth.
The new era in South African history will bring new problems. A permanent constitution has yet to be negotiated and it may well be that the Commonwealth will be able to help in resolving the amount of power which the provinces should have in future. Externally, an important priority for South Africa will be its relations with other countries in the region. Undoubtedly, it will join the Southern African Development Community—SADC—which the Commonwealth played a major part in founding. Indeed, the Commonwealth continues to provide considerable assistance to the SADC secretariat.
The 10 countries of SADC—eight from the Commonwealth together with Angola and Mozambique —will welcome South Africa's partnership. Doubtless the Commonwealth can help diplomatically to ensure that that partnership does not become domination.
As many other noble Lords have said, for many years white minority rule in southern Africa has been a major preoccupation. The dawn of majority rule in South Africa makes this a good time at which to take stock of the Commonwealth and look to its future. As the noble Lord, Lord Armstrong, said, to some extent the Commonwealth glues together a large number of countries across the globe. In the dangerous world which has developed since the breakup of the Soviet Union, such glue is an invaluable commodity.
The report of the Secretary-General in 1993 shows the astonishingly heavy and wide burden that Ministers impose on the secretariat. I wish to pick out three areas which I suggest should form the nucleus of the future endeavours of the Commonwealth.
The first area is political. In the spirit of the Harare Declaration of 1991, the Commonwealth has sent observers to monitor multi-party elections in Zambia, the Seychelles, Guyana, Ghana, Kenya, Lesotho, Pakistan and now South Africa. In addition, the Secretary-General has sent missions in advance of elections to provide advice and expertise in various areas of law and electoral procedures. After elections, the Commonwealth is well aware of the danger of one-day democracy. Therefore, it follows up elections with technical assistance in constitutional and electoral reform and the strengthening of electoral commissions. That vital democratic work will continue as more countries move to democracy. For example, the Commonwealth should soon be monitoring elections in Malawi.
The second area is economic management. I stress the example of the Commonwealth Secretariat's
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debt-recording and management system. This is a computerised system developed in response to the debt crisis during the 1980s. It has proved a brilliant success. This month Swaziland and Lesotho have become the two most recent of no less than 36 Commonwealth countries to be trained in and use the system. Fiji, Laos, Mozambique, Thailand, and Bulgaria have also installed this brain-child of the Commonwealth, and several eastern European and French West African countries are likely to do so soon.
The third area lies with trade and following up the Uruguay Round of GATT. The Commonwealth worked hard to get the Uruguay Round accepted. Now that it has been, small Commonwealth countries without the necessary legal expertise will need Commonwealth assistance in modifying their laws to conform with the changes in GATT. The Commonwealth can also help them in identifying new markets for their products as a result of the Uruguay Round.
Those who think the Commonwealth is a fading organisation should think again. Cameroon has applied to join and South Africa is expected to apply. Fiji appears to want to return and Mozambique has indicated it may seek to join. Countries do not join dying clubs. This one is thriving.
Some people think the Commonwealth should be a sort of competitor to the United Nations, operating on a very wide basis and adopting the old Avis commercial slogan, "We're smaller, so we have to try harder."
I believe that the Commonwealth should identify narrower goals, including the political, economic management, and trade areas that I have outlined. Thus, I believe that the Commonwealth slogan should become, "We're smaller, so in those things we select to do, we are even more successful."
6.56 p.m.
Lord Shaughnessy: My Lords, I join other noble Lords in thanking my noble friend Lord Waverley for providing us with this opportunity to discuss what to many of us is a most important subject, particularly in view of recent developments and the prospect of future opportunities.
I have said before in a previous debate that we have devoted little time in the deliberations of this House to the affairs of the Commonwealth in recent years. Happily, that condition was put right two-and-a-half years ago when my noble friend Lord Greenhill of Harrow moved a Motion on the future of the Commonwealth. But prior to that debate, there had not been a general discussion of Commonwealth affairs in this House since 1975, when my noble friend, the late Lord Garner, who spent a considerable part of his life serving the Commonwealth, initiated a debate on the value of the Commonwealth, shortly after the referendum reaffirming Britain's decision to join the European Community.
It is perhaps worthy of note that at that time the Commonwealth comprised 34 member states. Perhaps, also, it has been the natural preoccupation with European affairs that has inhibited more discussion of

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Commonwealth affairs in the interim. But that condition has certainly been corrected today and we have had a splendid number of excellent speeches on the subject.
In the debate nearly 10 years ago, Lord Garner postulated the view that despite Britain's entry into Europe, there was no reason that it should stand in the way of our Commonwealth relationship. He was supported by the noble Lord, Lord Home of the Hirsel, who said that he saw nothing incompatible between British membership of the European Community and British partnership in the Commonwealth. I believe that those predictions of those far-sighted statesmen have been amply justified, as the noble Lord, Lord Craig, pointed out.
Despite the optimism of those of us who are champions of the Commonwealth, it would be idle to deny that it has had its problems. The departure of South Africa in March 1961 was a regrettable but inevitable event in view of the abhorrence of the apartheid regime by the large majority of member countries. But, as the noble Viscount, Lord Waverley, said, in the intervening years, both individually and collectively, significant efforts were made at heads of government meetings, and otherwise, to bring about the abolition of apartheid. Much of that activity was more or less "off stage" and received no general public attention; but I think it is fair to say, as indeed other speakers have, that the influence of the Commonwealth exerted by individual members and through the Commonwealth Secretariat has had a clearly beneficial effect in bringing about the marvellous event that we are celebrating today as South Africans go to the polls in their first all-race election.
The work of the Commonwealth Parliamentary Association has been mentioned by many speakers. Of course, the association is, indeed, the trade association of parliamentarians throughout the Commonwealth. Apart from its role in monitoring elections, it provides an important focus in all 50 member countries for legislators to exchange information by means of parliamentary seminars and annual conferences which are invaluable to the improvement, extension and preservation of our democratic parliamentary system —not only at the national level but also at state and provincial level. In that connection, perhaps it is worth noting that the concept of a scrutiny committee on delegated legislation, which now exists in your Lordships' House, had its origin in a brief presented by members of the Australian Senate at the Commonwealth Conference on Delegated Legislation held in London in 1989.
I refer to those specific matters because, although members of that international organisation do not have —nor, indeed, was it ever intended that they should have—a distinct political cohesion, its members have demonstrated over the years that they share an amorphous and often totally pragmatic sort of democratic confraternity, at least enough to bring their leaders together every two years to exchange ideas and promote causes. On occasions, they differ. But whatever differences of opinion may develop, they all return in two years' time to go at it again. To me, that indicates a certain commitment to the continuation of the organisation.
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However, as beautifully described by my noble friend Lord Charteris, the greatest commitment of all has been that of Her Majesty the Queen, whether in her capacity as head of state or head of the Commonwealth. Her dedication to the preservation of the ideal of an international family of nations and the support of other members of the Royal Family have been a pre-eminent factor in keeping the whole thing together. One only need read the reports of the recent visit of Her Majesty and the Duke of Edinburgh to the Caribbean to be smitten with the affection and respect that she enjoys in that region.
For those reasons, I believe it is fair to conclude, as the Motion begs, that the 'Commonwealth is alive and well and ready to meet new challenges.
7.4 p.m.
Lord Harlech: My Lords, I am most grateful to my noble friend Lord Waverley for the invitation to contribute to this most interesting and, in my view, very important debate. The countries of the Commonwealth cover just under a quarter of the world's land mass and have just over a quarter of the world's population. Perhaps I may put that into perspective. The population of Commonwealth countries is about the same as the population of all non-Commonwealth countries in Africa, the United States, Europe, the former USSR and., indeed, in Europe and in Asia combined. It includes some of the largest and some of the smallest, some of the richest and some of the poorest and some of the most developed and some of the least developed countries on earth.
Despite that extraordinary diversity, the member states of the Commonwealth are bound together of their own free will and, as we have heard, are pledged under the Harare Commonwealth Declaration to democracy, the rule of law, good government and human rights; the promotion of equality for women; the provision of universal access to education; the promotion of sustainable development and the alleviation of poverty; action against disease and illegal drugs (which have all been mentioned by my noble friends); help for Commonwealth states; and support of the United Nations in the quest for international consensus on key issues of global importance, which is vital to the whole fabric of that voluntary arrangement. Those goals as set out in the Harare Commonwealth Declaration are important and a great force for good. I believe that they form a sound and civilised base upon which the further development and modernisation of the Commonwealth for its own benefit and that of all its members can be built.
Until now Britain, as a former imperialist power, has quite naturally been in a difficult position. Too much enthusiasm to be among the leaders and moulders of the Commonwealth could have been interpreted by other members as as a desire to return to its imperialist past; but too hesitant a support for the Commonwealth could be read as a rejection of old friends in favour of the European Community. I believe that the time is now right for us to put aside that shyness —guilt almost—and grasp the nettle.

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I should like to touch very briefly on just two aspects of the Commonwealth—trade and the alleviation of poverty. Trade, by way of education and skills, is the life blood of this country and it was in the interests of trade, as well as for other political and security reasons, that many of us felt that our ties with Europe should become closer. Two world wars, with 60 million people dead in less than 30 years is not a good record. I have never believed that we should see trade in terms of either Europe or the Commonwealth; or, indeed, the rest of the world. We must make the most of our opportunity. Trade depends on contacts and links with other nations. In the Commonwealth all member states, including Britain, can take advantage of the unique links that history has provided.
In one sense, it is the infinite variety of the Commonwealth, as I mentioned in my opening remarks, that is of particular benefit to all its members, for it is the nature of successful trade that unlike deals with unlike. For example, if I produce eggs and my neighbour produces eggs, together we may well have a surplus. On the other hand, if I produce eggs and my neighbour produces sugar, with a little ingenuity we may indeed have meringues.
If I were to list the main exports of Commonwealth countries, excluding Britain, it would probably take me a week to do so. However, a list of some of the purely agricultural products of Commonwealth countries is impressive. I ask noble Lords to bear with me for a moment while I read an impressive list which will not take me a week. It includes arrowroot, avocado pears, barley, bananas, beef cattle, breadfruit, cabbages, canola, carrots, cassava, cashew nuts, cauliflowers, clove oil, cloves, cocoa, coconuts, coffee, copra, cotton, flax, flowers, fruit, goats, grapes, groundnuts, jute, lemons, lime juice, lime oil, maize, mangoes, marrows, millet, nutmeg, nuts, oats, oil palm, oil seeds, onions, oranges, peanuts, pineapples, potatoes, pulses, rice, rubber, sorghum, sea island cotton, sheep, sisal, spices, sugar cane, tarrow, tea, tobacco, tomatoes, tropical fruit, vanilla, wheat, wine and yams. That was precised by the way. All these things we need and they touch all of us every day. We can provide few of them ourselves. We must trade but trade must be fair if it is to create wealth in the interests of all. It must not be exploitative.
Fairness between the developed and the developing nations is essential if the world is to survive successfully some of the pressures that the next few decades will bring. Already 780 million people in the world have insufficient food. Three million children—by UNESCO's January 1994 figures —die each year of starvation and of diseases which would be survivable but for malnutrition. The world population doubles every 50 years.
Meanwhile the countries of Europe and North America, where 70 per cent. of the most productive farmland lies, pay their farmers not to grow food. By what right can we criticise those governments that allow tropical rain forests to be commercially exploited—we have every right to criticise them—when in the developed world we artificially, and some would say
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cynically, manipulate the world's food supply? Is that fair? Is it right? Can we not do better? Have I not explained the outputs of the Commonwealth countries?
The Commonwealth, like any other institution of course, must be prepared to adapt, change and redefine its role in a rapidly changing world. I believe it is in Britain's interests and that of the Commonwealth as a whole that we take an active and enthusiastic part in that process. However, the Commonwealth is unique. It provides an opportunity for problems such as those that I have touched upon to begin to be tackled. Their solution does not lie wholly within the Commonwealth itself, but what other organisation is better able to give a lead?
I believe that in the coming years dialogue and understanding between nations over the fundamental human issues of our globe and how we are to survive on this planet and make it work for us, as well as preserve it, will become more important than ever before. The Commonwealth is a central force for those issues. The chairman of the Commonwealth Foundation, Sir Richard Luce, made an interesting statement in The Times on 29th October 1993. He wrote:
"no one should underestimate what all this contact can do for greater understanding in a sorely troubled world. This is truly a people's Commonwealth—the value is unquantifiable and unsung but it is priceless".
In conclusion, they say that if a job is worth doing it is worth doing properly. I believe that helping to define the role of the Commonwealth and our contribution to it is a job very well worth doing.
7.15 p.m.
Lord Butterfield: My Lords, I am delighted to follow the noble Lord, Lord Harlech, and I am very much of his persuasion that the job is worth doing and that we must try to help the Commonwealth take its rightful place in the future deliberations in the world. I begin by saying that I wish to join with all other speakers who have thanked the noble Viscount, Lord Waverley, for introducing this discussion. I also wish to thank the two maiden speakers for their splendid contributions today. Like everyone else I, too, look forward to hearing from them many times in the future.
I am afraid I cannot see the noble Lord, Lord Beloff, in the Chamber. I worry whenever I cross swords with the noble Lord, as when we have lunch together I always lose the argument. The same is true of the noble Lord, Lord Elibank. The people that I come into contact with at Cambridge are all absolutely delighted with the idea of preventing wars by uniting Europe so that the people from the Commonwealth will not have to bleed to death on the battlefield to defend us. I believe the first thing we must do is to get the war situation under control in Europe as far as we can, as Europe has been a cesspit for wars. That is when the spirit of the Commonwealth can break out and, I hope, win hearts and minds everywhere.
I warn noble Lords that I wish to spend a few moments discussing three topics. The first is frankly concerned with nostalgia. The second concerns the success story of the Association of Commonwealth Universities. We have been hearing about education and I believe that it should be placed on record in Hansard

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what the Association of Commonwealth Universities has achieved. If I have time to reach my third point, I shall discuss a personal failure. I am sorry that I cannot see the noble Lord, Lord Armstrong, at the moment but my personal failure was inspired by a speech which he gave to the Cross Benchers.
I wish to start by saying what a marvellous concept the Commonwealth was for so many of us at Oxford. Cecil Rhodes made his money and started his wonderful scholarship scheme. Incredibly mature young men came from all parts of the world, including, in my time, Germany and many came from America. Those young men were role models for leadership and role models for a part of the university's development which is, perhaps sadly, now less influential in forming the lives and attitudes of the young people who pass through our institutions of higher education.
I acknowledge that when I was an undergraduate at Oxford I was one in 2.000 young people of my age who received a university education. Now there are more university places. By contrast, a young man who gained a Rhodes scholarship constituted one person in 2 million. Of course those young men were remarkable people. I can think of—without bringing myself close to tears—the remarkable young men who influenced me through their examples of leadership when I was an undergraduate. I am not talking just of their leadership qualities on the rugby or cricket field. I was impressed by their orderly manner of conducting themselves. One such young man was a remarkable half blue ice hockey player at Exeter College named Robertson who became secretary to the Canadian Government. Another was a wonderful American called John Palmer who became the doyen of Yale University. He was a remarkable scholar of the English language.
When we are thinking of the Association of Commonwealth Universities, we must not forget the important impact of the Commonwealth and of Cecil Rhodes's great vision. That vision had an impact on many of us who were studying at university. The Rhodes Trust began in 1883. Thirty years later a group of people who were concerned with the Empire met in London. Over the years that group developed into the Association of Commonwealth Universities.
I asked the secretariat of the association to provide some facts and figures. It is a remarkable organisation. It covers 427 universities in 32 Commonwealth countries. They meet in the same spirit as the politicians meet. The organisation finds scholars both to come here and to go from here to the Commonwealth. It finds medical researchers. It finds ways and means of encouraging women in education across the Commonwealth. It is a rather sad reflection that we have only one lady speaker—the noble Baroness, Lady Wharton—in today's debate. There needs to be a greater role for women in the debate about how the Commonwealth can help in the future.
One of the most important functions of the association is its meetings. These are held every two-and-a-half years for vice-chancellors and executive heads and every five years for the universities generally. I have attended three quinquennial meetings. I attended one in Edinburgh, which was somewhat marred because
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apartheid was just beginning and the people from India, for example, were very cross with the British university staff for not taking off their academic gowns—and perhaps even their shoes—and marching through the streets of Edinburgh shouting "Down with apartheid". The British wanted a quieter approach to the subject. Now, years later, one can see that the quiet approach has produced an impressive victory in South Africa.
There was a great meeting in Perth, Western Australia. The theme of that meeting was the contribution of the universities to national development. That was very important to the universities in the developing countries. Last summer in Swansea the noble Lord, Lord Cledwyn—who is sorry not to be here today—gave a splendid welcoming speech. The theme that we went at hammer and tongs was preserving the environment.
The universities touch upon many topics. One which I should like to mention in particular is the development of distance education. One of the problems in the developing countries is cost. Distance education provides a means of bringing the best lectures to everybody. I am sorry that the noble Lord, Lord Perry, is not in his place because he is part of the world movement on this.
Perhaps I may finish with my failure. The noble Lord, Lord Armstrong, from the Cross-Benches told us about the most recent Commonwealth Conference in Cyprus. I was very much struck by the contribution that Her Majesty makes to the cohesion of the Commonwealth. I am jealous of the noble Lord, Lord Charteris, for having been involved in that at such close range.
I talked to my friends in the Association of Commonwealth Universities and asked whether each of the 427 universities could send a contribution—a piece of wood or metal—which we could put in an urn and send to Her Majesty as part of her 40th jubilee celebrations. Unfortunately, we were not able to do that. I still regret that the universities did not add some tangible sign of their appreciation of Her Majesty's remarkable service to the idea of the Commonwealth to show that the young people feel that way.
7.24 p.m.
Lord Slynn of Hadley: My Lords, a long-standing engagement of a committee of your Lordships' House which I chair to hear evidence from witnesses from abroad made it impossible for me to be here during the whole of the debate. I regret particularly that I was not present for the speeches of the noble Lord, Lord Wright of Richmond, and the noble Earl, Lord Courtown. Nevertheless, I feel that it is not inappropriate that a member of the Judicial Committee of the Privy Council should say something in a debate about the Commonwealth.
The debate has already shown that the Commonwealth has many strengths. Not the least of those strengths, indeed, apart from the personal role and dedication of Her Majesty the Queen as Head of the Commonwealth, perhaps one of the greatest and most enduring strengths of the Commonwealth, has been the fact that so many of its members share the common law. Those of us who believe that one of Britain's most

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important actions in the past was the introduction of the common law into many areas of the world do not exaggerate. I am still moved by an inscription in a book given to me by an Indian Supreme Court judge who wrote after my name:
"whose country has given India its most precious possession, the rule of law".
The noble Viscount, Lord Waverley, who introduced this excellent debate, and the noble Lord, Lord Beloff, referred to the importance of the common law as a feature of the Commonwealth. I seek to stress the reality of the Commonwealth from the point of view of the lawyer.
Initially this was largely a one-way traffic, decisions of the courts of this country being followed by courts in other Commonwealth countries and the legislation here being modified but followed in those countries. That position has now radically changed. The change constitutes one of the strengths of the Commonwealth. There is now a remarkable cross-fertilisation of ideas between judges of the higher courts of all of the Commonwealth countries. Today decisions of the courts of Australia, New Zealand and India —and, in view of the hopes expressed today by your Lordships, I add South Africa—are frequently cited to the Judicial Committee of your Lordships' House and the Court of Appeal. We do not follow each other blindly, but we have learnt a great deal from each other and we have much to learn.
It is not only judicial decisions, the decisions of the courts which have contributed to this factor. In recent years there have been extensive exchanges between lawyers of the Commonwealth countries, through lectures and through writing. Occasionally British judges go out to Commonwealth countries and, increasingly, their judges come here. In recent months the Chief Justice of the High Court of Australia, the Presidents of the Courts of Appeal of New Zealand and New South Wales and a Justice of the Supreme Court of Canada have participated in lecture programmes in this country. Again, it is not only the judges, but practising lawyers and academic lawyers are also actively engaged across the Commonwealth in the development of the common law as applied throughout the Commonwealth.
I recall a minute of a meeting of the law faculty at Cambridge last week. That minute records the names of five professors of law. It struck me this morning that two were Australian, one was a New Zealander and the other two were from South Africa.
The Institute of Advanced Legal Studies in London runs courses for young Commonwealth lawyers and government legal advisers to strengthen links between the legal professions and legal services of the Commonwealth. The Nuffield Fund for Commonwealth Fellows at that institute and the Nehru scholarships from India at Cambridge do much to strengthen and spread the ideas and development of the common law.
All of these lawyers come together in the Commonwealth Law Conference, which is a splendid forum in which that process may develop. At a law
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conference of the Commonwealth in Jamaica I remember the remarkable vitality of the discussion and the warmth of comradeship which existed.
However, at the pinnacle comes the Judicial Committee of the Privy Council. At one time its jurisdiction was very extensive. In 1930 Norman Bentwich could write that,
"the sphere of jurisdiction in the Privy Council now encloses more than one quarter of the world".
The extent quantitatively has diminished and many of the major countries have abolished appeals; but appeals still come to the Judicial Committee of the Privy Council from a significant number of the Commonwealth countries. The opinions of the Judicial Committee—they are in the form of advice to Her Majesty in Council—have particular relevance to the developing jurisprudence even of those countries which do not allow appeals to the Judicial Committee. In some 60 appeals a year, a wide range of subjects, ranging from important constitutional matters down to issues involving landlords and tenants of modest property are considered by the Judicial Committee.
One may ask oneself the question. Does the Judicial Committee of the Privy Council have a real role and a real future? One development indicates in part the answer. Some of the Commonwealth countries which after independence became republics could not continue to appeal to Her Majesty in Council. They decided to retain the Judicial Committee of the Privy Council as a final court of appeal whether as of right or by leave. During the Recess I spoke at a conference on constitutional changes in islands in the Indian Ocean. I was very surprised by the interest of people who came from countries not in the Commonwealth in the role and function of the Privy Council. Certainly lawyers, judges, the chief justice and his colleagues who were there from Mauritius gave every indication that they found its existence useful and valuable.
The Judicial Committee provides a Supreme Court which is detached from the detail of local issues in which sometimes feelings may run high. It is a court with wide experience of the common law both here and in other Commonwealth countries. Its decision gives a cohesion, a uniformity, in matters of law which are common to the whole of the Commonwealth. It is a valuable feature of that committee that Privy Counsellors from other Commonwealth countries from time to time sit on the committee.
Finally, there is a new development which it is right to mention. Many of the Commonwealth countries have adopted written constitutions which include parts of the European Convention on Human Rights. The Judicial Committee has been much exercised with the interpretation and application of those written constitutions. I believe that its decisions have had a far reaching and important effect. It is only necessary to refer to our recent advice to Her Majesty in Council that it was inhuman punishment and treatment to keep persons on death row for long years and then to hang them. I believe that that advice will be looked at in states even outside the Commonwealth where executions are long delayed.

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I believe that the role of the Commonwealth so far as concerns the law is today of great importance. Its future is inevitably subject to change but it is capable of being important in the future. I see the common law as the cement of the structure of the Commonwealth. The common law is enriched and developed by the contact which now exists between all kinds and conditions of lawyers. Long may it flourish.
7.34 p.m.
Lord Cheshanit: My Lords, at this stage of the debate it is difficult to come up with anything new so I do not plan to talk for long. I, too, congratulate and thank the noble Viscount, Lord Waverley, for braving the channels of your Lordships' House and moving the Motion before us today.
Having spent many years in the far reaches of the Commonwealth, I make no apology for my comments having a somewhat antipodean flavour. It is appropriate that the debate should be occurring two days after Anzac Day—the day of commemoration of the participation of Australian and New Zealand troops at Gallipoli (on the side of what was to become the Commonwealth) and of the service of the men and women of those two countries in subsequent confrontations, large and small, in support of the ideals of the Commonwealth; a day of reminiscence and thanksgiving.
It is important in the debate that we look at the Commonwealth not only from the British point of view but from the purview of how the Commonwealth is seen from other Commonwealth countries.
I should like to clarify that I have absolutely no intention of addressing the republican issue in Australia, and now in New Zealand, which has been used as a politically expedient trick to divert minds away from real issues in those countries and which are in any case for those countries to determine individually. In Australia, which has a written constitution only capable of amendment by referendum, Her Majesty is Queen of Australia. This, therefore, has little relevance to the Commonwealth issue. In any case a number of members of the Commonwealth are republics, as has been frequently mentioned, and they are all happy that Her Majesty should be head, in which role she does such a wonderful job.
The extent of self-congratulation that we have heard in your Lordships' House today about the achievements of the Commonwealth glosses over the necessity for revitalisation of the institution in the public mind both in this country and in other Commonwealth countries. There are indeed misconceptions as to what are the role and activities of the Commonwealth. Steps must be taken for people to learn about the activities of the Commonwealth and what it means if it is to continue.
Other than the Commonwealth Games (which I am amazed have not been mentioned yet today but which give sports-mad Australians their best chance of seeing their athletes winning more medals than in the Olympics or world events, as also applies to other Commonwealth countries) I believe that most Australians today consider the Commonwealth anachronistic and of little value. I know that Australians are renowned for having chips on their shoulders, and at times it is difficult to understand
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their attitudes. However, who decided to call Commonwealth passport holders aliens? Who decided to align its trade with near neighbours to the detriment of its traditional trading partners? Who restricted the free movement of Commonwealth citizens within its borders and then gave rights of free admission and residence to some 200 million non-Commonwealth citizens? It is totally wrong to dismiss the effect of Britain joining Europe.
The demise of the Commonwealth in its traditional role of trade and immigration—again, that has not been referred to today—is clearly placed at Britain's door 'via the European treaties. I am actively pro-Europe and do not believe that we had arty option other than to join Europe. But, equally, I believe that we should understand our responsibility for the diminution in the perceived value of the Commonwealth in other Commonwealth countries. If there is to be any of the traditional role of the Commonwealth in trade or immigration I do not see how there can be a role for Britain in the Commonwealth, bearing in mind its obligations elsewhere.
I see a role for a revamped Commonwealth. I believe it important for all members that that role should continue. We must enable the average person to understand what the Commonwealth stands for. Perhaps we should look for a new name for the Commonwealth and relaunch it, as it was launched years ago.
7.39 p.m.
Baroness Wharton: My Lords, I too would like to thank the noble Viscount, Lord Waverley, for introducing this debate on the role of the Commonwealth today. I also agree with the noble Lord, Lord Chesham, that as one of the last speakers in the debate I find it extremely difficult to come up with something new, so I shall be brief. I apologise for being slightly repetitious at times.
Many of us in this country find it difficult to describe exactly what the Commonwealth stands for, yet its membership keeps growing. In 1944 when the Commonwealth was founded, it had five members. Now it has up to 50 member countries, the most recent being Namibia. Soon South Africa will be making its application to rejoin. The Cameroon is on hold until the next Commonwealth heads of government meeting in 1995. Former Portuguese colonies Mozambique and Angola and also Eritrea are knocking at the door. As the noble Viscount, Lord Waverley, and others have already said, more than a quarter of the world's population live in the Commonwealth, amounting to in excess of 1½ billion people. Twenty-four members have a population of less than 1 million each, while India, the largest member, has 832 million people. In its nearly 50-year history, only three countries have left; namely, South Africa in 1961, Pakistan in 1972, and Fiji in 1987. Pakistan has returned to the fold and I very much hope that South Africa will do so shortly.
One of the Commonwealth's strengths is its capacity to understand and grapple with the issue of diversity. That is a point made by the noble Lord, Lord Beloff. This is a paradox in a post-Cold War world, where many countries have been split on ethnic issues while other

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countries have committed themselves to setting enforceable international political standards. The international community's failure in Bosnia and Somalia should not obscure the fact that the world is moving inexorably towards a role as an international policeman, even if its present operational arm, the United Nations, is currently confused and erratic. Many believe that the Commonwealth could play a decisive role in the reform of the UN. A Commonwealth expert, Derek Ingram, was quoted recently as saying that major changes to the structure of the UN and the fundamental thinking about its response to conflict and the limits to sovereignty have to be faced sooner rather than later. He firmly believes that the Commonwealth could play this decisive role.
Although the Commonwealth suffers a poor image among many in Britain who consider it to be a relic of the empire, its popularity remains strong in Africa where poverty and isolation have led some countries to seek membership of a club which has influence. Some Commonwealth officials have said that a connection with the Crown is no longer a necessity, the only requirement being that the applicant member speaks English and that minimum standards of democracy are observed. As noble Lords have already mentioned, a central unifying issue over the past three decades has been a joint commitment to put pressure on South Africa to bring the country to non-racial democracy. I join the many who are delighted that today marks the day when at last free and fair elections are taking place in that country. Under the stewardship of the Secretary-General, the Commonwealth is continuing to play a vital role by providing observers to this election.
I have a particular interest in South Africa as I spent my youth there and still have many friends in the Cape. I hope that the Commonwealth will continue to play an important role in the new South Africa, where clearly the expectations of the majority for improved education, housing, health care and employment are extremely high. In 1976 education was made compulsory for white, coloured and Asian children from the ages of 7 to 16. However, for black children the ages ranged from seven to only 11. So it is not surprising that there is a high illiteracy rate among that group. There is a great deal of catching up to do in order to improve employment prospects for the future. I have to admit that I have some reservations as to whether, in the short term, these expectations can be met. But it is encouraging that a joint Commonwealth and United Nations conference will soon be held in South Africa on management and skills training.
With its sound and developed infrastructure, the success of South Africa, economically, politically and socially, will clearly play an important and vital role with regard to the prosperity and success for the recovery of the rest of Africa, which over the years has been savaged by civil war and famine. South Africa has much to gain by renewing her membership to our Commonwealth of Nations and by the same token she has much to offer the other 16 members of the African continent.
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There have been many speakers in the debate. I accept that much of what I have said has already been covered by other noble Lords. But I should like to conclude by saying that I believe that the Commonwealth is a force for good, and long may it remain so. I look forward to the Minister's assurance of our continued support.
7.45 p.m.
Lord Thurlow: My Lords, I am glad to have the privilege of following the only noble Baroness who has contributed to our debate. We are grateful to her. Perhaps I may add my thanks to the noble Viscount, Lord Waverley, for introducing this extremely useful debate after a long gap. As the noble Lord, Lord Shaughnessy, said, 1990 was the last occasion of such a debate and there was an even longer gap before that. It is extremely timely that the debate should take place on this historic day. I was much impressed by the clarity and comprehensiveness with which the noble Viscount, Lord Waverley, sketched the outline of what the Commonwealth is today and what it is not.
I also wish to add my tributes to our two maiden speakers, the noble Lord, Lord Wright and the noble Earl, Lord Courtown. The former struck a note which has been common to most of the contributions this evening: the critical change that is taking place today with the emergence of a pluralist democratic South Africa. To my mind, it holds out the potential of changing the character of the political consultations of the Commonwealth in the years ahead. It seems to me that this is a necessary and overdue change.
The noble Lord, Lord Wright, referred to the three misconceptions about the nature of the Commonwealth. Those have been fed to some extent by the negative nature of much of the proceedings at the top level of consultations. Those in turn have derived from the shadow of apartheid and the South African problem, with the UK quite wrongly being regarded as the Aunt Sally. That has poisoned the whole atmosphere. We have now emerged from that and we can achieve a new, freer kind of relationship with our partners without any of those misconceived stigmata.
Before turning to the possibilities for the future, I wish to add my congratulations to the Commonwealth secretariat, and in particular our distinguished Secretary-General, who has made a personal contribution of a quite exceptional kind. I took the precaution of going to Marlborough House a month ago, with this debate in view. After nearly 40 years at the coal face of the conduct of Commonwealth relations in every different continent, I was literally amazed by the extent of the network of projects that have grown up under the secretariat's auspices in the past 20 or 30 years.
I do not suppose that many noble Lords have had the advantage that I have had as a result of my visit, of seeing the last report of the Secretary-General. It is an amazing document. But beneath the scale of the whole thing there lies what is to me the great asset of its having been conducted with a very low profile. That is important. It is important that the secretariat should remain a low profile affair. When it was set up, we in the Commonwealth Office hoped that it would be a useful,

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practical, pragmatic, low profile organisation. Consequently, it has had very extraordinary practical results. But that does not mean to say that the Commonwealth should have a low profile. I endorse very strongly what the noble Lord, Lord Alport, and other noble Lords have said; namely, that the time has now come for a more active political profile for the Commonwealth. One of the reasons why there has been such denigration and running down of the Commonwealth in the media is, I believe, because certain problems have dogged the high level consultations, especially at the heads of government meetings.
For many years—partly of course because of the shadow of South Africa—the heads of government meetings have had relatively little practical political impact, except in authorising and baptising what the secretariat has prepared and asked for authority to carry out. There are structural reasons for the relative failure of the political impact of those meetings, and for (let us face it) the derision that they have tended to attract. That derives from the inflation of the number of members of the Commonwealth.
The noble Baroness took us back at the start of her speech to the days when there were only five members of the Commonwealth. I remember taking part as a humble assistant to the Cabinet Secretary in the secretariat at one such meeting. The essence of the occasion was free and frank discussion, the free exchange of views. You cannot have that sort of thing in an assembly of 50 heads of government, with 50 or more officials milling round in the background. That is a parliament; it is not an intimate, free exchange. How can we get back, how can we restore, something of that extremely valuable asset that those small meetings used to have? They were a reality.
In 1990, in a debate in this House, the noble Lord, Lord Greenhill, reminded us that there was reality in the discussions in those days; and there is an element of unreality in the recent discussions of heads of government. How do we get back to that? We need a restructuring. I suggest—and others will have their views—that we should set up a small inner group, a steering committee, which would meet for a day before all the other members arrived, consisting of the original older members and India, Pakistan, perhaps Nigeria, perhaps Malaysia, and perhaps one rotating member from the smaller countries. Let the substantial members of our group again have a small round table meeting where they can have a really frank discussion. Such a meeting would introduce and steer the proceedings of the subsequent meetings.
7.55 p.m.
Lord Clinton-Davis: My Lords, like all noble Lords, I offer my congratulations to the noble Viscount, Lord Waverley, on having opened this debate with power and eloquence. It has proved to be an extremely fascinating and wide-ranging debate, with various different insights into the value of the Commonwealth and a variety of different ideas as to how the present situation might be
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improved—although I do not go along with the last contribution that was made. That idea is replete with difficulty and danger. But that is another matter.
During the course of the debate we have heard two former Commonwealth secretaries, a former permanent under-secretary, a head of the Diplomatic Service, a high commissioner, a former Father of the House of Commons, three noble Lords who have lived and worked in southern Africa and others from various parts of the Commonwealth. Not least, we had the very distinguished contribution from a Law Lord. We have had two quite remarkable maiden speeches from the noble Lord, Lord Wright, and the noble Earl, Lord Courtown. Very rightly, during the course of all that tributes were paid to the present Secretary-General of the Commonwealth. But it is also right that we should pay tribute to his very distinguished predecessor Sir Shridath Ramphal, who held office for so long and with great distinction.
This debate has given us the opportunity to reflect on the present and future role of the Commonwealth. We do that most particularly against the background of the extraordinary events that have taken place in South Africa. If we are looking for revitalisation—to use the word that was used by the noble Lord, Lord Chesham —it lies perhaps in the potential that the situation in South Africa will give to a specific role on the part of the Commonwealth.
We have witnessed a very remarkable collapse in a very short period of time of what seemed for so long to be an invincible regime which had debased a whole people, had disfigured the law in pursuit of the warped ambitions of those who believed in apartheid and had robbed the vast majority of people of dignity and self-respect. In its place we hope we shall see emerging a united nation, under the leadership, almost inevitably, of President Mandela—a man who spent 27 years in jail and whose return to the political scene has been marked by a quite extraordinary generosity of spirit towards those whose victim he had been. He has shown a determination to lead a new South Africa towards a peaceful and democratic future. I believe that to be little short of a miracle, even in an age of convulsive and miraculous political change such as we have witnessed in Europe and elsewhere.
While one cannot deny the immensity of the problems that confront the new South Africa—encapsulated not least in the horrendous, bestial acts of violence that we have seen over the past few days—today surely (a point which I think has been reflected in the debate here) we must all share in the rejoicing of the overwhelming majority, black and white, who are determined in their resolve to see a government of national unity, led by Mr. Mandela but with (up to now, and still) President de Klerk standing by his side. It will be a government who seek to consign the malignity of apartheid to the dustbin of history where it appropriately belongs.
Inevitably, some of today's euphoria will pass. Regrettably, I fear that some violence will almost certainly continue at the cost of more lives and dreadful injury. Overcrowding, intolerable housing conditions, dreadful levels of unemployment, food shortages, child

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malnutrition and many other health problems will continue to scar life in the townships. Wholly inadequate health care, waste disposal and other environmental hazards will continue to blight those township dwellers. They will still have to walk miles to work and work unacceptable hours for low wages in poor conditions. That will go on today, tomorrow, the day afterwards and the following weeks—even perhaps for some years ahead. No doubt that may be accompanied by even more violence as part of the display of crude suspicions that still exist. Expectations of swift rescue from all those horrendous situations will not and cannot be fulfilled with ease. It is possible that some disillusion could follow. I fear that those are certain political realities.
But today there is a new quality and a new element in the lives of those who have suffered so much for so long. There is a new measure of hope. Hope existed before, often amid some disbelief, but it is now freshly and excitingly kindled. There is a belief that the problems, difficult though they may be, can be tackled if the spirit of today can linger on.
I believe that the Commonwealth is able to play a large part in enabling South Africa to achieve its potential for sustainable growth and pursue democratic values for the first time. I also believe, as the noble Lords, Lord St. John of Bletso and Lord Alport, said, that Britain has a pivotal role. But, in order to fulfil that role, we have the job of building up new relationships and new confidence. We have to display that we are capable of learning from the mistakes of the past.
Too easily too many in this country, in business and in politics, adopted the comfortable illusion that the evil system of apartheid would disappear if only economic growth somehow or other could be sustained, although it would perhaps take decades to effect such a radical change. So, under the government of Mrs. Thatcher, frequently the idea put forward by members of the Commonwealth and others that sanctions should be applied was resisted. Relatively minor concessions were applied, seeking to appease the force of world opinion.
Catastrophic misjudgments, compounded by deep prejudice, persuaded the British Government of that time to regard Chief Buthelezi as the answer to Mr. Mandela and the ANC. Indeed, there was even the vain hope, the ridiculous hope, that the ANC could be consigned to the sidelines. Let us remember the message given at the Commonwealth Conference in 1987 that the ANC was:
"a typical terrorist organisation … Anyone who thinks that the ANC is going to run the government in South Africa is living in Cloud-cuckoo-land".
That was the noble Baroness, Lady Thatcher, in those days.
As we now know, the sanctions that she imposed played a decisive part in securing the radical changes that are now taking place. The virulence of the diseased germ of racism was underestimated and even ignored, as was the deep rumbling of discontent which was the thunder of the discontented masses of South Africa. Who, then, was living in cloud-cuckoo-land?
I believe that there is a change. Yesterday, I heard the
738
Prime Minister, Mr. Major, in the other place asserting, with obvious pleasure, that South Africa was facing a new future—a real future of hope. I believe that he said that passionately and sincerely. I hope that it will be evidenced by a change of heart, which I think is true now, on the part of this country. But to help achieve change and open a new chapter in our relationship with the new South Africa, we have to recognise the failures of the past. We must now seek to play a prominent role in assembling positive support for South Africa, not least through the European Union and the Commonwealth.
Today, in the context of this debate, we must concentrate on the Commonwealth. I believe that it is a remarkable association. Together with all noble Lords, I hope that membership will soon be extended to and accepted by South Africa. But what aid programmes have been contemplated? What technical and technological help or economic and financial assistance are to be provided by the Government? I understand that the Government have plans in place in concert with other members of the Commonwealth. It would be as well to have that on record in the course of this debate. Are the Government satisfied with the adequacy of the funding of the Commonwealth Fund for Technical Cooperation? How will the Government go about seeking to encourage inward investment from the United Kingdom into South Africa and increase trade with that country?
I turn briefly to some other issues which affect the Commonwealth. I have given notice to the Minister of some of the points that I want to make. In my judgment, and judging from most of the speeches that we have heard tonight, it is quite clear that the Commonwealth has a continuing value. It has gone through a history of decolonisation based largely on democratic principles. That point was made very effectively by my noble friend Lord Pitt. The strength of the influence of the Commonwealth is in its 1.5 billion people and 25 per cent. of the seats at the United Nations General Assembly. It has unparallelled links with the third world. I believe that it can play and has already played a crucial role in agreeing to and implementing the Lomé agreements with the European Community.
The noble Lord, Lord Beloff, poured scorn on the relationship between this country and the European Union. He said that it was incompatible with our role as a member of the Commonwealth. That view was echoed by others. I do not believe that to be the case. Not only are the Lomé agreements a complete counterclaim to that point; more emphatically—this was a point made by the noble and learned Lord, Lord Slynn—the bonding that is provided by the law, by the cross-fertilization of judgments and the meetings that go on among lawyers in the Commonwealth, including judges, has been of extreme importance and will continue to be so.
Despite some warts, many countries see the Commonwealth as a source of real good. It enjoys real prestige, notably in Africa. Hence, there is a clear desire on the part of countries such as Angola, the Cameroons and Mozambique to follow the path of Namibia in

739
seeking membership, albeit that none of them in the past was part of the British Empire. I should like to know from the Minister the current state of those applications.
Let me make a different point about Cyprus. So far, the Commonwealth and nobody else has succeeded in asserting the rights of Cyprus for independent sovereignty, territorial integrity and unity. United Nations' resolutions have been ignored and Turkish forces remain there. What is this country and the Commonwealth proposing to do to help to assert the rights of the Cypriots?
At the last Commonwealth meeting in 1993, the question of money laundering was raised. That matter was mentioned by the noble Earl, Lord Courtown. It was seen to be a threat to international financial systems. It was agreed that the Secretary-General and the appropriate Commonwealth Ministers should examine how best the 40 recommendations which were provided could be advanced by the Financial Action Task Force. What is happening? Also, what is happening about the idea that was then raised of an international criminal court? I believe it was mentioned at paragraph 46 of the recommendations.
Another point made by the same noble Lord in his maiden speech related to improved poverty alleviation measures associated with rural policies and programmes. I should like to hear from the Minister something about that also. I gave him specific notice of that point and I shall not embroider upon it now.
Little was said—though the noble Earl can be acquitted of any charge of that kind because he did refer to it—about the environment. That was another matter raised at the Commonwealth conference. In the wake of the Rio Conference it would be as well to know what the Government have in mind not only on their behalf, but also on what the Commonwealth is doing in that regard to embrace the ideas set up at that conference.
The Commonwealth Fund for Technical Cooperation needs to be adequately resourced. There have been severe cuts in the budget. Is there any plan to restore those cuts ? Educational opportunities in Britain can win friends and lead to business opportunities in the future—a point made with force by the noble Lord, Lord Armstrong, during the course of his contribution.
Finally, I want to say a word about the Commonwealth Institute. I do not need to go into the argument again. We heard it put with great force by the noble Lord, Lord Braine. But it is as well to note that already 28 members of staff were made redundant this year and a further 16 recently received notice of redundancy. Three employees on fixed term contracts have not had them renewed. That is serious news. Surely this is a time when, above all, that institute is needed. I hope therefore that the Government will review the position in the light of what has happened in South Africa.
It was a privilege to participate in the debate and I congratulate once again the noble Viscount, Lord Waverley, on making it possible for us to debate these matters today.
8.12 p.m.
Viscount Cranborne: My Lords, like the noble Lord, Lord Clinton-Davis, I found this evening's proceedings exceedingly interesting and valuable. Before I endeavour to answer as many of the points raised by your Lordships as time and your Lordships' patience will allow, perhaps I too may congratulate our two notable maiden speakers. I know that the noble Lord, Lord Wright of Richmond, even by the high standards of that great department of state, was an ornament to his position as Permanent Under-Secretary —a post he filled with the greatest of distinction. One only had to listen, as your Lordships did with the keenest attention, to what he had to say this afternoon to realise that he will be an equal ornament to your Lordships' House and we greatly look forward to hearing him on many future occasions. The patience of my noble friend Lord Courtown in sitting and listening to your Lordships for 15 years was a patience which was rather overdone, particularly in view of the remarkable contribution he made to our debate today. I too greatly look forward to listening to him over the coming weeks and not waiting another 15 years before he addresses your Lordships again.
Her Majesty's Government greatly welcomes this debate. I too congratulate the noble Viscount, Lord Waverley, upon introducing it. I can only assume that his recent wedding has merely confirmed him in his attachment to the Commonwealth and I congratulate him on his good taste and political judgment.
I want to take this opportunity to reassure a number of noble Lords—the noble Lord, Lord St.John, the noble and gallant Lord, Lord Craig, and my noble friend Lord Gridley, in particular—of our unequivocal support for what the Commonwealth can and does do to contribute to comity between nations. The noble Viscount, Lord Waverley, spoke for the whole House when he acknowledged the important role that the Commonwealth played. I am glad to find that all your Lordships agreed. I am grateful too for the opportunity to amplify to this House the ways in which we in the Government believe that the Commonwealth can best continue to do so in the future.
At this point I want particularly to support the noble Viscount in what he said regarding the priority that the Commonwealth can give to the needs of the smaller nations. I need not add in any way to what he said or., indeed, to what was said by the noble Lord, Lord Bottomley, in that regard. They seemed to me to more than fully cover the point. I want to emphasise also the point made with his unique authority by the noble Lord, Lord Charteris, regarding the contribution of the Queen to the Commonwealth. It would clearly not be the institution it is today without her dedication. I know that that is appreciated by all other Commonwealth countries and I am delighted to find that from all parts of your Lordships' House appropriate tributes were paid to Her Majesty.
As a number of noble Lords observed, we last debated the Commonwealth in this House in 1990. As was observed also, the Prime Ministers' conferences in Harare in 1991 and in Limassol, Cyprus, last October

741
redressed the balance of Commonwealth activity from a disproportionate preoccupation with South Africa and sanctions towards assisting accountable government throughout the Commonwealth. Naturally we greatly welcome that change. It shows how the Commonwealth has adapted and can adapt. I was delighted that so many noble Lords stressed the importance of that ability to adapt as a characteristic fundamental to the continued existence of the Commonwealth. I suggest that it is a quality that has been one of the Commonwealth's hallmarks since 1947, when it adopted its modern form to allow India as a republic to join. Naturally, too, I agree wholly with what the noble Lord, Lord Desai, and my noble friend Lord Braine said: that to be effective and useful the Commonwealth needs first to live up to its own principles. There are exceptions but, by and large, that is what it is increasingly now doing.
I was particularly interested by the account given by the noble and learned Lord, Lord Slynn of Hadley, of the activities of the Judicial Committee and the important part it still plays, and the remarks of my noble friend Lord Beloff regarding legal traditions, which were entirely complementary to what the noble and learned Lord, Lord Slynn, said. Surely, too, the remarks of the noble Lord, Lord Shaughnessy, and others about the activities of the Commonwealth Parliamentary Association are also complementary in this regard, for the CPA is a vital part of the machinery for keeping those traditions in the order in which they deserve to be kept.
I took careful note of the observations made by noble Lords in their speeches and shall endeavour to come to them a little later. If I may, I should like to tell noble Lords a little of what we in Her Majesty's Government are contributing both to collective Commonwealth endeavours and to individual Commonwealth countries. I would say to the noble Lord, Lord Pitt, and to my noble friends Lord Courtown and Lord Selkirk that we are doing fully our fair share. I was particularly grateful in that regard to hear from the noble Lord, Lord Desai, that he considered that the Commonwealth expenditure is wholly cost effective. From such a distinguished economist that is a judgment on which we can surely rely.
We are the largest contributor to the Commonwealth Secretariat and provide 30 per cent. of its funding. We also provide 30 per cent. of the funding for the Commonwealth Fund for Technical Co-operation—of which more anon—and that amounts to nearly £7 million a year. In fact, about 65 per cent. of our bilateral aid goes to Commonwealth countries. We provide over £14 million a year for Commonwealth scholarships. I hope that the noble Lord, Lord Armstrong—who I know cannot be here this evening—will take note of that fact (as if he did not know it already). We contribute generously to the Commonwealth Foundation which funds Commonwealth professional and other nongovernmental organisations. We provide Marlborough House for the Commonwealth Secretariat, and noble Lords will have observed that it was recently renovated at considerable expense. We would like to do more, but it is right to point out that Commonwealth organisations
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and Commonwealth developing countries have a special place in our priorities. Nevertheless, I clearly hear the message from a number of noble Lords that the Commonwealth needs to evolve. And that, I am sure, it will do.
I should like to answer a number of the specific points put to me before I come to what perhaps has been the dominating theme of the debate today, and dominating for very understandable reasons. I refer to the question of South Africa. If I do not have time to cover all the matters raised, I hope noble Lords will forgive me and will allow me to write to them.
The noble Lord, Lord Clinton-Davis, asked me about new applicants. Cameroon has applied. The application is so far on hold. Mozambique and Angola have not applied. Their applications have been talked about. As your Lordships will know, whether to apply for membership of the Commonwealth is entirely a matter for the countries concerned. Equally, of course, it is for the Commonwealth collectively to decide whether they should be allowed to join.
The noble Lord, Lord Clinton-Davis, also asked about Cyprus. I could speak at some length on this tedious, I sometimes feel, but extremely important subject—tedious only because it has been going on for such a long time. The package of confidence-building measures proposed by the United Nations Secretary General which is currently the subject of talks in Cyprus would bring important benefits to both communities. Both sides have accepted the package in principle. The Greek Cypriot leader, President Clerides, has accepted the United Nations proposals for implementing the package. Unfortunately, the Turkish Cypriot leader, Mr. Denktash, continues to have objections to certain aspects of the United Nations plan. We have urged him to adopt a more constructive approach to the negotiations and indeed have urged the Turkish Government to press Mr. Denktash to the same effect. The Secretary General is due to report to the Security Council of the United Nations at the end of this month. At that stage the Council will have to decide how to proceed. If the Turkish Cypriot side has continued to object to the United Nations plan, the Security Council will have to consider alternative ways of ensuring the implementation of the United Nations resolutions on Cyprus. However, in the context of this debate, your Lordships will also remember that all Cypriots are members of the Commonwealth, on whichever side of the green line they happen to live. That may be of some help in the context of the negotiations to which I have referred.
The noble Lord, Lord Clinton-Davis, and my noble friend Lord Courtown asked me about money laundering. This important question was covered at the recent Commonwealth heads of government meeting. Indeed, my right honourable friend the Prime Minister launched a major initiative to encourage all Commonwealth members to take steps to criminalise money laundering and to protect their banking and financial sectors. We have been greatly encouraged by the response. Heads of government at the meeting agreed to work towards implementation of the 40 recommendations of the financial action task force,

743
which was set up by the G7 summit as long ago as 1989. I believe that the Commonwealth, particularly through the Secretariat's commercial crime unit, is ideally placed to advance this work and naturally we are working extremely closely with it.
The international criminal court was discussed at the Limassol meeting and, as the noble Lord, Lord Clinton-Davis, observed, was covered in paragraph 46 of the communiqué. We believe it is a good idea in principle. The United Nations is looking at what I am told is called in the trade the modalities of this. I think your Lordships will agree that we need to proceed by general agreement if it is to work. I am pleased to see that the noble Lord, Lord Clinton-Davis, agrees.
I should like to confirm Her Majesty's Government's continuing support for the Commonwealth Fund for Technical Co-operation. In the financial year 1994–95 we expect to make a similar contribution to that made in 1993–94, which amounted to some £6.2 million. At this stage we cannot make any commitments about future years but I have to say to the noble Lord, Lord Clinton-Davis, that there appears to be no question of additional funds at the moment. Perhaps I may emphasise to your Lordships that the Commonwealth Fund for Technical Co-operation should demonstrate that its programmes give value for money. I suspect that some redefinition of existing priorities may be needed. Nevertheless, we enormously value the work of the Commonwealth Youth Programme and we commend the new strategies for addressing youth problems in economic, political and cultural areas that they contain.
The noble Lords., Lord Clinton-Davis and Lord Pitt, mentioned the question of poverty alleviation. I should like to confirm that the reduction of poverty is central to the purpose of our overseas aid in low income countries. All our priority objectives are therefore concerned with poverty reduction. In 1992–93 some £58 million, or 10 per cent. of our bilateral aid, was targeted on direct poverty reduction. That figure rises to more than 25 per cent. if humanitarian assistance is included as well. If one includes the indirect effects of all our aid, much more than that figure is implicated in this area. It is important that governments should include poverty reduction measures in their planning. We have been helping with the development of social policies in a number of Commonwealth countries, including Ghana, Malawi and Tanzania, to give just three examples.
I was particularly pleased, if only in my capacity as the Ministry of Defence's green Minister, that my noble friend Lord Courtown and the noble Lord, Lord Clinton-Davis, mentioned the environment. The United Kingdom is committed to global environmental assistance. That has been evidenced by our contribution of £130 million to the global environment facility and of £27 million to the Montreal Protocol fund to help developing countries reduce CFCs. The United Kingdom is also working closely with other Commonwealth countries on environmental issues. Perhaps I may give two examples. First, we have the forest management agreement with Malaysia. Secondly, we have made a £60 million grant to India for energy efficiency and pollution control and there are some environmental forestry projects as well. Perhaps it is
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also worth mentioning, in view of the concern of the noble Lord, Lord Clinton-Davis, on this matter, that the United Kingdom is taking part in negotiations for a convention on desertification as well.
A number of noble Lords, including the noble Lord, Lord Clinton-Davis, the noble Viscount, Lord Waverley, my noble friend Lord Braine, the noble Lord, Lord St. John of Bletso, and, particularly in view of his involvement in the matter, the noble Lord, Lord Armstrong, mentioned the question of the Commonwealth Institute.I must emphasise that Her Majesty's Government emphatically do not want to see the institute close. The decision to withdraw our grant-in-aid after March 1996 was taken with great reluctance against a tight Foreign and Commonwealth Office budget. What we want to see is the institute using the fine building in Kensington High Street, which was provided by the Government, to continue to promote the Commonwealth, but drawing after 1996 on non-government funds to do it. I know that many of the institute's supporters feel that its facilities and programmes could still have a useful function. The Foreign Office is giving the institute a full grant for the next two financial years to enable the institute to develop its relaunch programme. I was grateful to the noble Lord, Lord Armstrong, for his description of the way it is responding to what is a difficult challenge and I am only sorry that my answer will disappoint so many of your Lordships who have lobbied so hard and so passionately for what I know is an important institution.
A number of noble Lords also mentioned the question of trade. My noble kinsmen Lord! Acton and Lord Harlech made extraordinarily interesting speeches in which they made powerful points on this subject. It is worth mentioning rather than boring your Lordships more than I usually do on what is a highly complex and difficult subject, that, as my noble kinsman Lord Harlech said in his inimitable way, many Commonwealth countries are net agricultural exporters so that they will benefit from the greater stability in world markets for food and agricultural products which will flow from the completion of the Uruguay Round. I underline the statement of the noble Lord, Lord St. John of Bletso, that the developing world earns three times as much from trade as from aid. Therefore developing countries in the Commonwealth will also benefit from the boost to world trade that the Uruguay Round will bring.
I was also extremely interested in the remarks of my noble friend Lord Alport and his suggestion for regional conferences. As I am sure he knows, such conferences have been tried in the past. They may be worth reviving. Perhaps the heads of government could discuss his suggestion at their meeting in Auckland in November 1995.As regards the interesting idea of the noble Lord, Lord Thurlow, for a steering committee, I am not sure how popular it would be with other members of the Commonwealth. I am sure that he does not need me to remind him that senior officials meet every off-year to propose an agenda for the following year' s meeting. That may give him some comfort. Such a meeting might be an opportunity to perform the sort of work that the noble Lord suggested.

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After a period when Rhodesia and South Africa distorted priorities, as many noble Lords have mentioned this evening, we see the Commonwealth as having reverted to its earlier and more rewarding character. My right honourable friend the Foreign and Commonwealth Secretary put it extraordinarily well in his speech, "The Commonwealth and a Changing World", to the English Speaking Union last October. He said:
"It would be exceptionally stupid now to let the Commonwealth gather dust in a museum when there is a new task staring it in the face".
I detect that a number of your Lordships probably agree pretty fully with those sentiments. My right honourable friend went on to say:
"good governance and democracy cannot be imposed by imperial means".
No doubt he had in mind the noble Lord, Lord Pitt, when my right honourable friend said,
"Democracy must be home grown. But if we cannot impose democracy by imperial powers, we do need ways of persuading countries to live by democracy".
I believe that the sentiments expressed by my right honourable friend are all characteristics of the Commonwealth and that is perhaps where its tasks for the 1990s could usefully lie.
I was particularly pleased by the tributes which a number of your Lordships made. I refer to my noble kinsman Lord Acton, the noble Lord, Lord Bottomley, and the noble Lord, Lord Thurlow, in particular as regards the tributes which they paid to the Secretary-General of the Commonwealth, whose diplomatic skills and strong sense of the value of the Commonwealth have been used to the benefit of a great many Commonwealth countries over the past four years. He has played a major part in putting the Commonwealth on to a new track. I am delighted that the noble Lord, Lord Armstrong, and the noble Viscount, Lord Waverley, also acknowledged his contributions in that respect.
Nowhere can the Commonwealth make a greater impact than in Africa. Very understandably, a large number of your Lordships who have spoken this evening referred to the dramatic events which have been occurring over the past few days and which continue to occur in South Africa. They paid tribute to the contribution from your Lordships' House and the other place of observers of the election as part of the very large team of observers. There are over 100 official observers from the United Kingdom, including five Commonwealth and 20 parliamentary taking part in the international observation exercise. Naturally we hope that they and others will give the necessary support to the election process.
I was particularly struck by the remarks made by a number of your Lordships, particularly from the noble Lords, Lord Desai, Lord Thomson and Lord St. John of Bletso, about the capacity of South Africa to influence the development of sub-Saharan Africa to become the "economic motor" of the continent. That is a view to which I emphatically subscribe. It is for that reason that we have tried to target our aid so carefully. Here I come to the question which I was asked a little earlier by the
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noble Lord, Lord Clinton-Davis. Our aid to South Africa is substantial and increasing. We spent £11.7 million last year and this could rise to £15 million this year. The United Kingdom share of EC aid under the positive measures programme amounts to about £11 million. This point was made by a number of noble Lords; namely, the projects were planned and implemented directly with community groups and non-government organisations.
I say to the noble Baroness, Lady Wharton, that some 55 per cent. of our aid programme to South Africa is spent on education. We fund about 1,000 black South Africans on courses in the United Kingdom and in South Africa. We have projects as well in the fields of health, agriculture and small business development. Poverty reduction is a priority. I was particularly interested in the point made by the noble Lord, Lord Butterfield, about distance learning. We acknowledge that there is an increasingly important role for that, particularly in increasing education opportunities within the Commonwealth developing countries. We are considering future support, but we are not in a position to decide yet. I am sure that your Lordships' interest will have stimulated interest in what we have done.
Perhaps I may add a couple of points about South Africa. A number of your Lordships have emphasised the importance which they attach to South Africa rejoining the Commonwealth. I have no doubt whatever that an application from the new government to rejoin would be met with a willing and warm welcome. I hope that that application will not be long in coming. We greatly look forward to voting for the readmission of the new South Africa into the Commonwealth.
The noble and gallant Lord, Lord Craig of Radley, mentioned military assistance. At the moment we have seven military personnel, including a military coordinator and two policemen, with the Commonwealth peacekeeping advisory group. They are helping in training the national peacekeeping force. I hope that the best traditions and the fine achievements of the British Armed Forces will make a distinguished contribution to the introduction of new methods of government and management of armed forces in that country.
At the risk of appearing unduly in a sucking-up mode to my right honourable friend the Foreign Secretary, perhaps I may end by referring again to what he said in his speech last October. In particular I hope that the noble Lord, Lord St. John, and the noble Viscount, Lord Waverley, will agree with what my right honourable friend observed. He said that there are some who would dismiss the Commonwealth as a legacy of the past. He went on:
"I do not disagree with the description. But legacies from the past can often be strengths in the present. Britain—its people, its government, its companies—would not have a global view without that legacy. Nor would the Commonwealth have the potential to play its part in consolidating democracy in the world without its legacy of post-colonial friendship between nations who happen, by chance, to have shared histories".
I believe that the warm approval which your Lordships have given this evening to the future health, prosperity and success of the Commonwealth in the developing and rapidly changing world in which we live, will give a great boost to all of us who are keen that

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the Commonwealth should not be consigned to the dustbin of history. For that reason I thank your Lordships very kindly for the contributions which you have made during the course of today's debate.
8.39 p.m.
Viscount Waverley: My Lords, this has been a most informative debate and many interesting points have been raised. I should like to thank all noble Lords who have contributed and my colleagues on the Cross Benches, without whose support today's debate could not have taken place.
I should like to excuse myself for not summarising individual contributions, first because that has been admirably done by the noble Viscount, Lord Cranborne, and the noble Lord, Lord Clinton-Davis, for which I thank them, but also in part because of the late hour. However, I should like to single out for praise the two excellent maiden speeches.
It was fitting that we in this House should have considered this important matter in such depth. It is without surprise that we have heard a broad consensus of support for the Commonwealth. It cannot be overlooked that much needs to be done, however. I trust that our friends around the world will consider what has been said here today and realise that we in Great Britain do care.
Her Majesty the Queen, as Head of the Commonwealth and symbol of free nations, whose guiding influence has matured the Commonwealth, identified in her Commonwealth Day message the essence of the matter:
"Our lives are a race we have to run. Sometimes the track is rough and, if we are running on our own, it can look like an impossible obstacle course, but by helping each other along we can make it an easier and fairer race … We can combine our resources and abilities to make life better for everyone. That is indeed a prize worth winning".
I beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.

Treasure Bill [H.L.]
8.41 p.m.
Baroness Trumpington: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Treasure Bill, have consented to place their prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Clause 2 [Meaning of "treasure"]:
The Earl of Perth The Earl of Perth moved Amendment No. 1:
Page 2, line 18, leave out ("200") and insert ("300").
The noble Earl said: My Lords, I said on Report that it probably seemed wise to have the age of coins and the age of objects in parallel in the Bill. At that time, the Bill stated that coins 300 years old should have to be reported, but the provision was only 200 years for other objects. I even went to far as to say that it looked as
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though 200 years was almost within our memory, but I now move an amendment that 300 years should be the requirement.
Some noble Lords may have noticed that in Clause 2(1) (c) the provision remains 200 years. That is because the Secretary of State, who has those powers, may want to change the requirement to a later date in the light of experience. I should add that I think that that is most unlikely. I say that lest your Lordships think that that provision of 200 years remains in the Bill by mistake. I beg to move
On Question, amendment: agreed to.
Clause 3 [Jurisdiction of coroners]:
Lord Renton Lord Renton moved Amendment No. 2:
Page 3, line 18, leave out ("trove").
The noble Lord said: My Lords, the word "trove", which I seek to leave out of the provisions, is, I believe, unnecessary and misleading. It does not appear in the Coroners Act 1988, except in a side note which is not part of the law. Indeed, the word "trove" is not mentioned in that context anywhere in the Coroners Act 1988. As I have said, as it would be not only unnecessary but misleading to include it in the Bill, I accordingly beg to move.
Lord Stewartby: My Lords, I should like to raise a matter relating to the difference between "treasure trove" and "treasure". I hope that if I put a modest query to my noble friend the Minister, she will be able to put my mind at rest. As I read the Bill, Clause3 refers to the jurisdiction of coroners ceasing in relation to treasure trove. Clause 1(6) refers to the Crown's right to,
"any treasure trove found after the commencement",
of the legislation, implying that the concept of "treasure, trove" continues. I should be grateful if my noble friend could first assure me—and place it on the record—that, in fact, the practical effect of the Bill is to put an end to the law of treasure trove as it currently applies.
My second point, which is closely related, is that Clause 2(1) (d) states that,
"any object…which would have been treated as treasure trove if found before the commencement of",
this legislation should be treated as "treasure". That means that all existing "treasure trove" definition would be subsumed within the new definition of "treasure". However, Clause 2(1) (d) also refers to,
"any object not within paragraphs (a) to (c)".
Paragraph (a) refers to a "coin" and paragraph (b) refers to,
"any object (not being coin)".
That is drawing a distinction between an object and a coin. Furthermore, Clause 2(8) states:
"'artefact' includes a coin and any part of an artefact",
but "object" is not stated to include a "coin".
Unless it is absolutely clear that an object in Clause 2(1) (d) includes coins, it is conceivable that certain discoveries which would currently be defined as "treasure trove" would still be "treasure trove" or at least would not be redefined as "treasure". I hope that my noble friend might be able to comment on that point. She has an encyclopedic knowledge of the details of the Bill and may be able to help me immediately. If not, I shall be content if she will write to me about it.
Baroness Trumpington: My Lords, if I may deal first with my noble friend Lord Renton, in whose name Amendment No. 2 stands, I am grateful to him for his explanation of it. As he knows, I have reservations about his approach on this point, but I do not want to introduce an element of discord into our harmonious proceedings at this late hour and, at this late hour, if it is the wish of your Lordships that this amendment be accepted, I shall not seek to stand in your Lordships' way.
I turn now to the point raised by my noble friend Lord Stewartby. I am happy to confirm to him that the effect of Clause 1(6) is to abolish "treasure trove". The effect of the Bill is to replace treasure trove with a new statutory concept of treasure. The purpose of Clause 2(1) (d) is not to continue treasure trove in any form but to ensure that from now on any object which would have been treasure trove but for the Bill will now be treasure. Secondly, my noble friend Lord Stewartby questioned whether there was any significance in the fact that "artefact" is defined as including a coin whereas there is no corresponding definition of "an object". I am happy to confirm that the word "object" is wide enough to include coin without the need for further definition. Where it is intended that coins should not be treated as any other object, the Bill makes express provision, as in Clause 2(1) (b). I am conscious that I am surrounded by legal eagles. I will write to the whole lot of you if anyone wishes for further information on those points.
Lord Renton: My Lords, perhaps I may in reply —I have a right of reply as I moved the amendment —say how grateful I am to my noble friend Lady Trumpington. Quite frankly, my amendment is a simple drafting one. It is wonderfully simple, and I hope that your Lordships will accept it.
On Question, amendment agreed to.
Clause 4 [Duty of finder of treasure to notify coroner.]:
[Amendment No. 3 not moved.]
An amendment (Privilege) made.
The Earl of Perth: My Lords, I beg to move that this Bill do now pass.
I shall say just a brief word on the Bill's history. It has had a long period of gestation. I wish again to thank all those who played their part in its birth. I have not mentioned before Lady Hanworth of the Surrey Archaeological Society. She has been involved from the very start. She was present at innumerable meetings and consultations when we were putting the Bill into shape. I know that she rejoices in its passing, but by a curious coincidence she has today another cause for rejoicing: it is her 54th wedding anniversary. I say to her and to the noble Viscount, Lord Hanworth: on to the diamond!
What else should I say about the Bill? It started as a weakly child, but suddenly it flourished when the welcome support of the Department of National Heritage was announced by the noble Baroness, Lady Trumpington, on Second Reading. She said that the Bill's paramount objective was to encourage the reporting of finds and to discourage wrong behaviour. In this, archaeologists and metal detectorists both have
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their part to play. I met Mr. Wells, chairman of the National Council for Metal Detecting, a little while ago. After our meeting, I received a letter which said:
"We are particularly appreciative of your concern that responsible metal detection is not adversely affected by the Bill".
I confirm that again most strongly. Also, of course, landlords have a place in this Bill for the first time. I beg to move.
Moved, That the Bill do now pass.—(The Earl of Perth.)
Lord Renton: My Lords, perhaps I may say briefly how much your Lordships and the whole of England and Wales owe to my noble friend Lord Perth. Tonight is the climax of several years of endeavour on his part to protect our heritage, and to prevent the disappearance of masses of valuable and fascinating evidence going back even earlier than the bronze age.
I shall say a quick word about people with metal detectors. They have unearthed a good deal of such evidence and have, as my noble friend said, mostly been responsible and helpful in ensuring that their finds go to museums. But the Bill would have been necessary even if the metal detector had never been invented.
Finally, I wish to join in thanking my noble friend Lady Trumpington and her advisers for the rapid way in which they have made improvements to the Bill. Despite what my noble friend Lord Stewartby said, I am convinced that the Bill is workable. Any Bill can be drafted in several different ways. This way is as good as any.
Lord Graham of Edmonton: My Lords, my noble friend Lord Donoughue, who is unavoidably absent, has asked me to tell the House, first, that he regrets not being here and, secondly, that he wishes the Bill well. He also wants me to congratulate the Minister and her colleagues on accepting the good sense of what the House was trying to do. If what the noble Earl, Lord Perth, has been doing is to bring in more control, then we are in favour of "Perth control" of this kind. I wish the Bill well.
Lord Stewartby: My Lords, before my noble friend the Minister rises, in case the words of my noble friend Lord Renton conveyed sentiments that I did not mean to express, I should say that I felt that it would be helpful if my noble friend the Minister could clarify the rather arcane point about the future status of treasure trove and assure us that the Bill not only discontinued treasure trove but that in a technical sense it was, indeed, workable. I was not intending to cast aspersions on it. Perhaps I may also pay tribute to her for the way in which she has conducted the Bill, and, of course, to the noble Earl, Lord Perth, for his enormous achievement in bringing the Bill to such a successful conclusion in your Lordships' House after many years.
Baroness Trumpington: My Lords, at this stage I feel rather like a midwife, called in by the noble Earl, Lord Perth, for the birth of his baby. There has been the most remarkable degree of support for the Bill in all parts of the House. I am delighted that the Government have been able to offer support and that the debates at each stage have been so constructive. That is a great

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tribute to the way in which the Bill has been handled by the noble Earl and to the support that he has received from his colleagues, particularly my noble friends Lord Renton and Lord Renfrew, who have both made extremely valuable contributions to our debate. I know that your Lordships will join with me in wishing the Bill a safe passage through the other place.
The Earl of Perth: My Lords, I am told that I have the right to reply to what has just been said by your Lordships and by the Minister. I want to say just two things. I wish to thank noble Lords on all sides of the House who have supported the Bill at various times during its history. It shows how much we all care about the past and, in particular, about the tangible past which is what we have been dealing with. We should say thank you also to the media. They have given the whole issue prominence. That makes people realise how important treasure can be to our history.
Finally, I, and I am sure all of your Lordships, hope that the Bill will go smoothly through another place. There it will be in good hands. I ask that the Bill do now pass.
On Question, Bill passed and sent to the Commons.

The Judiiciary: Independence
9 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg rose to ask Her Majesty's Government whether, given the documents placed by the Lord Chancellor in the Library of the House concerning the differences arising during the period 1991 to 1993 between him and the then President of the Employment Appeal Tribunal, Mr. Justice Wood, on the proper procedures for dealing with notices of appeal to that Tribunal, they are satisfied that the independence of the judiciary has been upheld.
The noble Lord said: My Lords, this debate is not of narrow interest to lawyers and judges alone. It is about the fundamental principle, vital for all, that the courts are wholly independent of the Executive. Our constitution, largely unwritten, is firmly based on the separation of powers. Parliament makes laws; the judiciary interprets and applies them. Thus, the fundamental principle is that the courts must be wholly independent of the Executive. I am confident that the noble and learned Lord would be the firm to affirm that fundamental principal.
For too long there have been murmurings, and much more, that the noble and learned Lord transgressed that principle between late 1991 and 1993, in his dealings with Mr. Justice Wood, a High Court judge and president of the Employment Appeal Tribunal—the EAT. Sir John Wood was president from March 1988 until 30th September 1993. The allegation—I em-phasise allegation—is that the Lord Chancellor put Sir John under pressure by threatening loss of the presidency if he did not depart from the EAT's judicial practice in certain cases of having preliminary oral hearings before deciding whether those cases could go forward to a full appeal.
Perhaps I may give the short background. The EAT was established in 1976. It hears appeals from industrial
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tribunals only on questions of law, not on questions of fact; for example, whether the tribunal applied statute or case law correctly. However, a contention that the tribunal below arrived at a perverse decision on the facts, one at which no reasonable tribunal could have arrived, is a question of law so the EAT has jurisdiction.
The EAT deals with appeals in cases of unfair dismissal, redundancy, race and sex discrimination and equal pay. Complex questions of statute and case law, as well as European law, often arise.
The EAT is governed by statutory' rules. Rule 3 provides that,
"where it appears to the Registrar that the grounds of appeal stated in the notice of appeal do not give the EAT jurisdiction"
the Registrar is to inform the appellant: that the appeal cannot proceed. The appellant can have a second bite of the cherry with a new notice. If the registrar remains of the same view, the appellant can insist on the papers going before the president or judge for his direction.
The real problem arises with doubtful notices where it is unclear whether they do or do not state a point of law. In practice, there are many doubtful notices, not least because many appeals to the EAT are by appellants who do not qualify for legal aid, particularly after the recent eligibility cuts and, therefore, are unrepresented.
Successive eminent presidents of the Employment Appeal Tribunal took the view that there were three categories of notice of appeal: first, those which clearly state a point of law and therefore went forward automatically to a full hearing; secondly, those where the grounds stated were clear and also clearly did not raise a point of law, so that the appeal was stopped dead in its tracks without any preliminary hearing; and, thirdly, the doubtful case in which it was not possible to tell one way or another from the document and a preliminary oral hearing was needed to decide. That was reflected by practice directions of successive presidents over the years prescribing a preliminary oral hearing to decide whether those doubtful cases did or did not disclose a point of law so that the appeal could go forward to a full appeal.
I return to the allegation. On Monday 21st March there was a Starred Question on the subject in your Lordships' House in the name of the noble Lord, Lord Lester of Herne Hill. The relevant correspondence between Sir John and the Lord Chancellor was hot available to the House. Thus, many of your Lordships must have found it difficult, if not impossible, to follow the exchanges.
Plainly, on 3rd April the Observer was not under that disadvantage. On that Sunday it published, on a main news page, a long article quoting extensively from the correspondence covering the period 18th December 1992 until 23rd April 1993. The headline was:
"Revealed: How Lord Mackay misled Parliament."
The allegation was that that correspondence showed that his answers to the Question asked by the noble Lord, Lord Lester, were misleading.
That correspondence was then in the public domain. No denial or rebuttal was made. The Observer did not revert to the allegations on the next Sunday, 10th April, and so, on 12th April, I wrote at length to the noble and learned Lord suggesting that the appropriate course was

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to put the whole of the correspondence in the Library so that thereafter, the matter could be fully ventilated with knowledge of the correspondence, and hopefully then laid to rest.
He readily agreed, but on the basis that this was a special case. The whole of the relevant documentation, from 13th December 1991 to 5th July 1993, was put in the Library of both Houses and it was the wish of the noble and learned Lord and myself that this debate take place with the least delay so that the air would be cleared.
It is as well that this debate takes place tonight. There appeared in last Friday's New Law Journal a lengthy attack on the noble and learned Lord the Lord Chancellor by Sir Francis Purchas, a retired Lord Justice of the Court of Appeal. The allegation was, as far I am aware, unprecedented against any Lord Chancellor, certainly from such a source. It was that the noble and learned Lord had failed in his attempt to persuade Mr. Justice Wood,
"to follow a legal course which to the Lord Chancellor's knowledge was contrary to his judicial oath";
with his persuasion backed up by an unconstitutional threat that, if he did not yield, he had to "consider his position", meaning at least as President of the EAT; and with the Lord Chancellor's action said to be inspired by,
"a Treasury driven policy to achieve savings at any cost."
I repeat that it is as well that this debate takes place tonight.
I now turn to the documents placed in the Library. Included with them is documentation between 13th December 1991 and 9th July 1992, of which I had no knowledge when writing to the Lord Chancellor. He appears to have drawn from that material the conclusion that either Rule 3(2) was not being implemented at all or not being fully implemented. I refer to the letters of 11th March and 18th December 1992 with which no doubt the noble and learned Lord will deal.
In my letter I gave the noble and learned Lord full notice of the questions which in my opinion arose from the correspondence commencing with his letter of 18th December 1992. In that letter the noble and learned Lord urged Sir John,
"to make more use of the filter provided by Rule 3 of your procedural rules;"
and continued:
"I wish to ensure that public money is not wasted on preliminary hearings in cases where there is no point of law shown in the notice of appeal. I am disappointed to note that you are still making little use of the power which Rule 3 gives you to reject notices which in your opinion show no point of law to give the tribunal jurisdiction to register the appeal".
There was then a meeting between them on Monday, 1st February 1993, followed by a letter from Sir John of 3rd February 1993 recording that the noble and learned Lord the Lord Chancellor was of the opinion that the EAT's "preliminary hearing procedures" were probably ultra vires the Rules. I ask: was that the noble and learned Lord's view at the time?
In his letter of 5th February 1993 the noble and learned Lord said that he did not accept that preliminary hearings should be used as a process to discover whether there was a point of law at issue not disclosed in the notice of appeal. However, that is precisely what
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preliminary hearings in doubtful cases were and are designed to ascertain. I invite the noble and learned Lord to say whether he accepted at the time, and accepts now, the appropriateness of preliminary hearings in such doubtful cases. Was he saying that a decision had always to be made on paper—yes or no to the question of whether the appeal could go forward—so that there should never be a preliminary hearing? That letter concluded:
"There is an urgent need to address the growing backlog of cases and I would be grateful if you would write to me with your assurance that you intend implementing Rule 3 in full before the end of this Term".
On 5th March 1993 Sir John wrote a detailed letter setting out his view of the correct legal position under Rule 3, after consultation with some senior judicial colleagues who endorsed his view. In his letter, Sir John distinguished three situations. The first is where the grounds stated in the notice of appeal do disclose a point of law; secondly, where the grounds of appeal stated in the notice of appeal do not give the EAT jurisdiction to entertain the appeal, in which case Sir John confirmed that the Registrar applied Rule 3 in accordance with its terms; and, thirdly, where the grounds of appeal are stated in a way which leaves the Registrar uncertain whether they raise grounds of law or not. That analysis corresponds with the practice directions of successive presidents of the EAT over the years.
Sir John explained that the preliminary procedure had been applied by Mr. Justice Phillips, the first president of the EAT, from 1977 to these ambiguous cases (category 3) and that, thereafter, the procedure had been so applied by successive presidents, two of whom are now Law Lords—the noble and learned Lords, Lord Slynn and Lord Browne-Wilkinson. Thus, Sir John was setting out the reasons why he and other presidents were of the view that the EAT was empowered to apply the preliminary procedure as the only fair means of determining whether an ambiguous notice of appeal did or did not disclose an arguable point of law.
The key letter is the reply of the noble and learned Lord of 19th March 1993. It did not challenge Sir John's assurance that the EAT was applying Rule 3, and was rejecting, without preliminary hearing, notices of appeal which were not in the doubtful category because they clearly did not state grounds of law giving the EAT jurisdiction. In other words, the EAT was rejecting, without preliminary hearing, such notices. The letter from the noble and learned Lord said:
"I was, frankly, disappointed by your reply to my letter of 5th February following our meeting on the first. I did not seek further discussion of Rule 3"—
I emphasise those words
"but had sought to make it clear to you that I was not prepared to accept preliminary hearings being held where Rule 3 provides a cheap and expeditious procedure for final disposal of a purported appeal.
I ask you again for your immediate assurance that Rule 3 is henceforth to be applied in full and that preliminary hearings are not being used where no jurisdiction is shown in a notice of appeal".
The letter ended with the words:
"If you do not feel that you can give me that assurance, I must ask you to consider your position".
I emphasise that sentence.
The third and fourth paragraphs of that letter have been read by many as a rejection of the opinion of Sir John Wood and other presidents of the EAT, made in their judicial capacities, that the EAT is entitled to consider at a preliminary hearing whether an ambiguous notice of appeal discloses a ground of law.
It is at that point that the independence of the judiciary arises. For myself, I would be disposed to accept—others may disagree—that a Lord Chancellor is entitled to satisfy himself that any court is having regard to all its powers and duties for the efficient disposal of its business and is applying and fulfilling them in accordance with its own judicial interpretation of them. However, what a Lord Chancellor is not entitled to do is to demand that a judge or court substitute for its own judicial view of the extent of its powers and duties the extra-judicial views of the Lord Chancellor. I invite the noble and learned Lord the Lord Chancellor to say whether he agrees with those propositions; and to make clear the powers he conceives that he has—and had, in relation to Sir John Wood—and how those powers arise.
The noble and learned Lord made it plain in this key letter that he was disappointed by Sir John's reasoned letter of 5th March 1993 and that he had not been seeking further discussion of Rule 3. He concluded, as I said, that if he felt unable to give the assurance that he, the Lord Chancellor, was requiring he, the Lord Chancellor, must ask him to consider his position. What is being said of this letter is that since he had rejected Sir John's letter of 5th March, on the basis that he had not been seeking further discussion of Rule 3, he could not have been inviting just such a discussion by asking him "to consider his position". Yet the explanation the noble and learned Lord gave in the House on 21st March 1994 of that passage in his letter was that he,
"wished to ascertain on what basis a procedure not applying that rule in full might properly rest".—[Official Report, 21/3/94; col. 498.]
The difficulty that the Observer and others experience with that answer is that the noble and learned Lord already had Sir John's full reasons, explaining the EAT's interpretation of Rule 3 and that it was being fully applied, in his letter of 5th March 1993, of which the Lord Chancellor had written in his reply of 19th March, that he was not seeking further discussion of Rule 3. Thus, the point is made that the key letter reads not as an invitation for further discussion or explanation of his views but rather as a demand that the President of the EAT comply with the Lord Chancellor's interpretation of Rule 3 contrary to his own view, and that of successive presidents of the EAT, in relation to the EAT's powers.
It is clear how seriously Sir John took that insistence that he "consider his position" because in his interim reply of 7th April he wrote:
"your letter raises a constitutional issue in such stark form that I wish to take time before replying".
When he did reply in full, on 23rd April 1993, he wrote:
"It is essential to accept the background to our work—we are exercising a difficult and delicate jurisdiction on the fringe of politics. There is a mixed lay and legal input. It is so important that we should at all times seek to achieve the balance between judicial formalism—so easily perceived as arbitrary and arrogant —and the need to allow a degree of flexibility in dealing with the members of the public, who are not familiar with the law or its
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processes; who are not able to express themselves on paper; who are deeply and emotionally involved in their cases; and whose cases merit investigation. In many cases the appellants are acting in person because they do not fall within the scope of Legal Aid".
Sir John concluded:
"I have, of course, given the most serious consideration to my position as you required of me. You have demanded that I exercise my judicial function in a way which you regard as best suited to your Executive purposes, but I have to say that in all the circumstances that present themselves to me and in the light of the existing law, I cannot regard compliance with your demand as conducive to justice".
The question that is being asked is whether, by requiring him to "consider his position" if he did not give the assurance required, what was being said was that he should consider his position as president of the EAT.
The private secretary of the noble and Darned Lord acknowledged that letter by a letter of 5th May 1993 stating that the noble and learned Lord was currently considering the issues he had raised and hoped to reply shortly. In the event, no such reply was ever given.
Lastly, there is the issue of fairness to Sir John Wood himself. The noble and learned Lord said in the House on 21st March that he,
"understood Mr. Justice Wood's position to be that it was undesirable to apply the Rule 3 procedure fully"—[Official Report, 21/3/94; col. 498.]
that is, that he was not applying fully one of the statutory rules binding on the EAT, of which he was president, because he thought it undesirable to do so. I am bound to ask in what precise respects did the noble and learned Lord think that Sir John Wood was not applying Rule 3? If the noble and learned Lord was accepting, and accepts, the judicial practice of preliminary hearings in doubtful cases, how could he say that Rule 3 was not being fully applied by Sir John? Sir John had assured him in his letter of 5th March that where the grounds of appeal clearly do not give the EAT jurisdiction to entertain the appeal—that is to say non-doubtful or clear cases—Rule 3 was being applied in accordance with its terms; that is, they were being rejected under Rule 3 without any preliminary oral hearing.
This debate can give pleasure to no one, but it is critical that this issue be fully ventilated and, one hopes, laid to rest.
9.19 p.m.
Lord Lester of Herne Hill: My Lords, the House will be grateful to the noble Lord, Lord Irvine of Lairg, for having initiated this debate which, as he said, is not of narrow interest to lawyers and judges alone. The House will also be grateful to the noble and learned Lord the Lord Chancellor for having placed the relevant correspondence in the Library before this debate. The noble and learned Lord enjoys well-deserved popularity in all parts of the House. As the noble Lord, Lord Irvine, has just said, this debate will give pleasure to no one. But, like the noble Lord, Lord Irvine, I believe that it is in the public interest for the issue to be fully ventilated and, one hopes, laid to rest.
I do not believe that the controversial "consider your position" key letter of 19th March 1993 would generally be understood as written by the noble and learned Lord the Lord Chancellor in his capacity as the most senior judge rather than as a member of the Executive. Nor, with great respect, do I believe that it would be

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understood by most people, when read in context, merely as a request for Mr. Justice Wood to reconsider his interpretation and application of the relevant procedural rule. Speaking for myself, if I had received such a letter when I sat as a recorder I would have interpreted it as an official and formal invitation for me to consider whether I could properly continue in that office.
That is how, as Mr. Justice Wood explained in his reply of 23rd April 1993, he and senior judicial colleagues interpreted the letter. The letter of the noble and learned Lord the Lord Chancellor was interpreted not as a threat of dismissal from office as a High Court judge, for that could only be done for gross misconduct or inability to perform, and only by resolution of both Houses of Parliament. It was interpreted as the exerting of ministerial pressure upon him as a judge to change his mind or to cease to be President of the Employment Appeal Tribunal, or else to resign. The fact that Sir John did not resign because of that pressure from the highest level is immaterial. It so happened that he was apparently already considering taking early retirement.
I very much hope that the noble and learned Lord the Lord Chancellor will feel able in his reply to this debate to acknowledge that, and to acknowledge that his choice of words was unfortunate. That would be positive and very helpful in clearing the air.
This affair must be as miserable to the noble and learned Lord the Lord Chancellor and his advisers as it must be to Sir John Wood and the judiciary. It painfully illustrates a problem which has recently become much worse. The basic problem was discussed by the noble and learned Lord, Lord Hailsham of Saint Marylebone, in a prophetic lecture given 17 years ago. It is the problem, in the words of the noble and learned Lord, Lord Hailsham, of how to reconcile the divergent, and to some extent inconsistent, requirements of public accountability, judicial independence and efficiency in the administration of justice.
The office of Lord Chancellor carries with it a degree of respect, authority and distinction which transcends the personality of any individual, however distinguished, who may at any time hold it. It is also a constitutionally anomalous office. By uniting in one and the same individual judicial, administrative and legislative responsibility the Lord Chancellor is a standing violation of the pure constitutional doctrine of separation of public powers. The British constitution and the office can only survive in good health, and the system can only operate satisfactorily, if the Lord Chancellor commands the confidence of his judicial colleagues that he will protect the judges' independence from any improper interference, for in the exercise of the judicial function there is obviously no room for pressure by or fear of the Executive or Parliament or any outside body.
But the Lord Chancellor must also enjoy the confidence of his political colleagues that he will loyally give effect to the Government's political programme while remaining democratically responsible to Parliament, administratively as well as financially, for the proper functioning of the courts and the proper
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performance by the judges of their duties. The demands of the office therefore are formidable because they involve reconciling what are inherently conflicting principles with the Lord Chancellor acting, in the phrase of Lord Birkenhead, both as the buffer and the link between the judiciary and the other two branches of government.
That role of acting as buffer and link could be performed relatively easily in the days when the judicial and legal role was predominant. But especially since the noble and learned Lord took office, it is the political and the administrative functions of the Lord Chancellor and his officials which have become dominant. In another powerful lecture on the independence of the judiciary, the noble and learned Lord, Lord Browne-Wilkinson, said, some six years ago, that he had not heard of a judge who had come under pressure to decide a case in a particular way, but that there is a more insidious threat to the independence of the legal system as opposed to the independence of the judges who operate it. The threat arises by reason of the Executive's control of finance and administration. He drew attention to the very substantial shift in the control of the administration of the courts from judges to civil servants in the Lord Chancellor's Department and to the way in which that process has given rise to stresses between the judiciary and the administrators as to their different functions.
There are many who share the concerns of the noble and learned Lord, Lord Browne-Wilkinson, and his view that justice is not capable of being measured out by an accountant's computer. Like him, we regret the fact that the Lord Chancellor's Department is required to formulate policy and to make determinations as to value for money according to financial yardsticks without for the most part even consulting the judges. The Lord Chancellor's Department is being encouraged by the Government's ever more centralising tendencies and it is being forced by the demands of financial economy to move more and more into areas which the judges have considered their exclusive concern. The Lord Chancellor is now a strongly political Minister. His executive responsibilities have come to dominate his office.
In seeking quite properly to reduce the wholly unacceptable delays in disposing of appeals in the Employment Appeal Tribunal, but without being able or willing to appoint more judges or to introduce amending legislation, I fear that the Lord Chancellor and his department may have in this instance slipped into exerting direct pressure about the exercise of judicial powers by the Employment Appeal Tribunal.
I recognise that the Lord Chancellor has a duty to ensure that the legal system is efficiently administered and that it is financially accountable. I share the view of the noble Lord, Lord Irvine of Lairg, about that. Judicial independence does not mean that judges should be immune from being disciplined when they fail to perform their duties properly; or that the budget for the legal system is to be determined by the judges rather than by Parliament. But what it does mean, I suggest, is that the old system has become, in the office of Lord Chancellor, too institutionally schizophrenic to be able to reconcile the divergent, and to some extent

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inconsistent, requirements of public accountability, judicial independence and efficiency in the administration of justice. We surely need some new institution, some kind of judicial and legal services commission to protect the independence of the judges and of the legal profession from the pressures which the Lord Chancellor, as a politically active and administratively vigorous Minister of Justice, and his officials are driven to exert.
I believe that there is a real need, for the sake of his great office and of the vital independence of the judiciary, to create a new bulwark between his department and the independence of the judges and legal profession. Whatever the machinery, there is a pressing need to secure confidence between the Lord Chancellor and the judiciary. It cannot be done by the Lord Chancellor alone. If I may respectfully say so, it requires new thinking and greater sensitivity on the part of judges as well as the Lord Chancellor and his officials.
As regards the Wood affair itself, there are three basic questions which I suggest arise. First, why did the Lord Chancellor use the phrase "consider your position" in the context of the previous correspondence? Secondly, since he knew that Mr. Justice Wood interpreted that phrase as an attempt to interfere with his judicial function, contrary to his judicial oath, why did the noble and learned Lord not write to correct that interpretation, if he thought that it was a mistaken one? Thirdly, would the noble and learned Lord the Lord Chancellor accept that his choice of words was regrettable?
I very much hope that the noble and learned Lord will feel able to resolve the great anxieties which the matter has raised.
9.31 p.m.
Lord Donaldson of Lymington: My Lords, as I see it, three separate issues emerge from the correspondence which has been placed in the Library. Together, they seem to have produced an explosive mixture.
The first issue concerns the contrast between the procedures of the Employment Appeal Tribunal sitting in England and its procedures when sitting in Scotland. The EAT, like its predecessor, the National Industrial Relations Court, is unique in being a British court, as contrasted with an English court or a Scottish court. In those circumstances, I find it astonishing that this divergence in procedures was allowed to emerge. I find it even more astonishing that Lord Mayfield, the Scottish judge, does not appear to have been invited to attend the court's annual general meeting in March 1992 or even to have been shown the agenda. He was, after all, as much a judge of the court as was Sir John Wood.
For Sir John to describe the English approach as being "fairer" was deeply offensive to any Scottish judge, including the noble and learned Lord the Lord Chancellor. Furthermore, if the English procedure, the English application of Rule 3 was fairer—and I do not personally think it was—then it was surely Sir John Wood's duty as president to ensure that the English procedure was adopted throughout the court's jurisdiction.
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The second issue concerns the tn.te nature of the Employment Appeal Tribunal. Sir John Wood describes it in the correspondence as a "people's court" and clearly takes the view that, save in the clearest cases, disappointed litigants should be entitled to their "day in (that) court". That is why, as I understand it, Rule 3 was used very much more sparingly in England than it was in Scotland.
The alternative view is that the industrial tribunals were intended by Parliament to be the final arbiters in employment disputes and: other matters which are referred to them and that the role of the EAT was and is confined to deciding genuine, as contrasted with contrived, questions of law arising in the course of proceedings before the industrial tribunal.
Unlike Sir John, I believe that the latter is the correct view, and that the EAT is concerned with pure questions of law and should, on the whole, be restricted in its ingenuity in deciding questions of law. That difference of opinion is symptomatic of a difference in philosophy which extends throughout the English judiciary. Both groups are dedicated to achieving justice; but they differ on the price, in terms of delay, which can properly be paid in convincing litigants that they have in fact received justice. That difference of opinion—that difference of philosophy—is something that all heads of divisions simply have to learn to live with.
The third issue concerns the perception of the noble and learned Lord the Lord Chancellor of his dual role as a judge and as a Minister. When in 1971 the NIRC was established, the noble Lord., Lord Carr of Hadley, was the Secretary of State for Employment. I well remember his asking me on a social occasion whether, as president, I was responsible to the Lord Chancellor or to the Lord Chief Justice. I replied that I was responsible to neither. I was responsible solely to the law and to my own conscience. I have no doubt that I was right. That is what the independence of the judiciary is all about. The judiciary as a whole is independent of the Executive. But it must never be forgotten that every judge is independent of every other judge.
The position was, in some ways to my regret, no different 11 years later when I was appointed Master of the Rolls. I could invite; I could advise; I could seek to persuade; I could, if you will, exercise leadership. But I could never require a Lord Justice to do or to refrain from doing anything, and I never sought to do so.
The Lord Chancellor in his capacity as head of the judiciary is in no different a position. He could and did seek to persuade Sir John Wood that Sir John was not making full and proper use of the Rule 3 procedure as required by the law. But if that failed—as it did—there was nothing further that he could do in his judicial capacity. No judge can ask another judge for an undertaking—still less an undertaking in writing which casts doubt upon the validity of an oral undertaking given by the judge—that he will act contrary to the law as that judge sees it. Still less can he be asked to "consider his position" if he refuses.
In his capacity as a Minister, the Lord Chancellor is responsible to Parliament for the administration of justice. That responsibility is not, however, unlimited. It extends only to the extent that Parliament has given him

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authority to supply or withhold resources or to give directions. If Sir John Wood's view of the true scope of the Rule 3 procedure was unacceptable to the Lord Chancellor in his capacity as a Minister, his only remedy was to secure an amendment of Rule 3 putting his interpretation beyond doubt. Had he done so, I am absolutely certain that Sir John would have given effect to the rule as amended.
This apparent lack of accountability on the part of the judiciary may well seem an odd situation, particularly in this day and age when we hear so much about accountability. Our freedom under the law depends upon it, and I have to say that it has stood the test of time. That it can produce what has been described as constructive friction between the judiciary on the one hand and the Lord Chancellor and his department on the other is not open to doubt. However, given the necessary degree of sensitivity on both sides, the emphasis is usually upon the word "constructive" rather than upon the word "friction".
I for my part would much prefer that this issue had never been raised in a public forum. It is not only in this House that it has been raised. It has been raised outside this House. Therefore it has to be considered; and perhaps at this juncture it is better that it should be considered. In considering it and in conclusion, I have to say that I regard the terms of the letters of 5th February and 19th March 1993 of the noble and learned Lord the Lord Chancellor, particularly the letter of 19th March 1993, as wholly inappropriate, whatever the provocation that he felt about the way in which the EAT was being run.
9.40 p.m.
Lord Campbell of Alloway: My Lords, it is a privilege to follow the noble and learned Lord, Lord Donaldson. I conducted the first case before him in the NIRC and indeed the last case. Perhaps I may say with the greatest respect that his analysis of the three issues is totally sound. Where I disagree with the noble and learned Lord is in his interpretation of the request to Sir John Wood that he in fact consider his position.
The noble Lord, Lord Irvine of Lairg, delivered a trite exposition of the position as regards judicial independence, with which we are all familiar, which we all respect and upon which there is common ground. He then referred to "murmurings" that the Lord Chancellor had put Sir John Wood under pressure—murmurings which were wholly misconceived. Then the noble Lord got on his high horse, so to speak. Like Don Quixote he started tilting at the windmills of those murmurings, none of which can be substantiated in this debate. The fact of the matter, which is simple to see and state on a fair appreciation of the correspondence, is that Sir John, who I may say at once not only was a colleague of mine but is a friend, insisted upon operating a regime which was contrary to the rules (Rule 3) as regards appellate procedure which were observed in Scotland—a departure on the part of Sir John Wood which was deeply resented by the Scottish judiciary.
With regard to the speech of the noble Lord, Lord Lester of Herne Hill, I agree that the letter was read
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entirely out of context and away from the circumstances, one of which being that it was known to my noble and learned friend the Lord Chancellor at the time that the letter was written that Sir John intended to retire from the judiciary. It is also apparent in that correspondence that that retirement is acknowledged as having nothing to do with the disagreement that appears in the correspondence between Sir John Wood and my noble and learned friend the Lord Chancellor.
It is said by the noble Lord that the Lord Chancellor was acting in an executive capacity (whatever that may be). But on analysis can we test it in one way? The noble and learned Lord the Lord Chief Justice told us on the last occasion when this distressing matter was considered by your Lordships, that he read and approved the letter. Is the Lord Chancellor part of the Executive? Was he acting as part of the Executive? What does the noble Lord mean? The precise words of the noble and learned Lord the Lord Chief Justice, if I remember correctly, were, "I was privy to it".
Like the noble Lord, I deeply regret and resent the activities of many government departments. But I cannot see how that resentment can serve justifiably as a springboard for setting up a Ministry of Justice, a commission for new thinking and so forth, to which the noble Lord referred.
There are few points I wish to make beyond the points I have sought to make in reply. But we must face the fact that this House is concerned with what amounts to a Motion of censure on the conduct of my noble and learned friend the Lord Chancellor in the discharge of his duties, wrapped up in the form of a Question from Her Majesty's Opposition to Her Majesty's Government. Even if there were cause for censure—I do not accept for one moment that there is when one reads "consider your position" in the context of the whole correspondence and the resignation position—and though the Question must be in order because it was accepted by the Table, is your Lordships' House a proper forum for the expression of such censure? It is contrary to the traditions of your Lordships' House to attribute any improper motive to any noble Lord, and assuredly I do not do so. But whatever the motive for tabling the Motion, in the light of this debate it will be assuredly established that the motive was not well conceived.
My noble and learned friend the Lord Chancellor has now, so to speak, been put in the position of being forced into the dock to Answer, and so he shall. Although relations between my noble and learned friend the Lord Chancellor and the judiciary and the legal profession—of which I am still a somewhat active member—have been less than satisfactory (let us face it, that is the position) this situation is not novel. It arose before. I see that my noble and learned friend Lord Hailsham is not in his place. I am sure that he would not object to my saying that it arose as recently as in his day and the relationship between himself and the profession had to be referred to the courts. So, my Lords, whatever the position may be, the one thing that may not be called in question is the integrity of my noble and learned

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friend the Lord Chancellor; apart from the fact that the documents placed in the Library, read as a whole, speak for themselves.
In conclusion, my personal hope—I speak for myself as usual in this place; I speak for no one else ever—is that the indignity of this unfortunate occasion may not serve as any form of precedent. I have known for many years Sir John Wood, Sir Francis Purchas, the noble and learned Lord, Lord Ackner, and all noble Lords who have spoken and are to speak in this debate. They are all men of the highest integrity. They are all honourable men, some are my personal friends. The same may be said of my noble and learned friend the Lord Chancellor.
9.51 p.m.
Lord Mishcon: My Lords, if I speak a little longer than I usually do in your Lordships' House I pray for your Lordships' forgiveness because the matter we are debating tonight is of a very serious nature. Perhaps I may at once be allowed to differ from the noble Lord, Lord Campbell of Alloway. I was going to thank, as I will do in a moment, my noble friend Lord Irvine of Lairg for doing something which I think is very necessary; namely, attempting to clear the air and to stop what I regard as the completely inaccurate statements and headlines that have appeared in the press. I am deeply grateful to my noble friend, who, certainly as I heard his speech, did not appear to me to be moving a vote of censure or indeed uttering words of censure. I understood him to make a moderate speech in which there were questions raised and not statements made.
Having said that, I know my noble friend will forgive me if I take a line quite different from his. It is because I have stood in your Lordships' House over the years demanding, if you like, from the Lord Chancellor more money for judges, more money for county courts where the staff appear to be underpaid in certain respects, and more money for legal aid, that I cannot be dishonest enough, having made those demands from these Benches, to then say, "But please, if you find that there is wastage; if you find that there are economies that ought to be made, Lord Chancellor, turn your eye away. Don't look, don't worry, it is not within your province to do it".
I am going to take your Lordships, who I know will be patient with me, through correspondence that has not been referred to at all in the debate so far. I start off by referring to the headlines that I mentioned at the outset. "Exclusive" from the Observer on 6th March:
"Judges outraged by Mackay".
From the Observer of 3rd April:
"Revealed—how Mackay misled Parliament".
There is at the very commencement of the documents placed before your Lordships and before the Members of another place a report that was given to Lord Justice Watkins, Deputy Chief Justice, by Sir John. The date of the document is 13th December 1991. The report was on the present problems of the Employment Appeal Tribunal. Page 1 refers to the principles enunciated in the Citizen's Charter:
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"The present delays would be a matter of the gravest concern at any time, but are quite unacceptable in the context of the Citizens' Charter initiative".
Page 3 states:
"Present position. On the 3Ist November"—
I did not know that there was a 31st November 1991, but according to Sir John there was—
"1991 (eight months into the present Financial Year) there [are] 685 outstanding appeals. This constitutes about two years' work. The projections to 31st March 1992 give a total annual registration of about 750 appeals and the backlog to stand at nearer 800".
I move on to Page 5. Not all of your Lordships may have these documents.
"In 1985 Preliminary Hearings were introduced. A Preliminary Hearing is one at which the Appellant appears ex parte before the full Court, which has before it a complete file of the relevant documents. We allow one hour".
That means that on the timetable one hour at least is allowed for a matter which may be completely and absolutely hopeless and where the court has no jurisdiction at all because it is a matter of law. One hour is allowed in the programme for a full court.
I continue:
"There are remarkably few cases which are clearly frivolous on the face of the documentation. This is really a case of 'de minimis'. In Scotland an HEO (unqualified) sends an appeal back to the appellant as disclosing no point of law if he so thinks. There is an appeal from him to the Judge".
At the moment I am going into the orders, why they were made and what they say, and with your Lordships having the patience to allow me to do so. The report continues:
"Having considered this rather different procedure I do not consider it desirable, here in England and Wales nor do I like it particularly".
I now turn to Page 7:
"In approximate terms some 30% of cases registered before Industrial Tribunals are in fact heard and of those heard approximately 6% become registered appeals".
Then,
"It will be seen from a perusal of the figures for preliminary hearings that a fairly regular proportion of one third are sent to a full hearing".
In other words, for a full court at least one hour is allowed for each case, however hopeless on the face of it that appeal may be. I shall go into that. Then we have the result of these preliminary hearings, where only about one-third go forward to a full appeal. I move on to Page 9.
"The EAT is a politically sensitive Court and the backlog has been unacceptable for a very substantial length of time".
There is a summary on page 13:
"The present backlog at the EAT is unacceptable by any standards and in the light of the Citizens' Charter is proving most embarrassing. The volume of work is certain to increase substantially in the very near future and to reach levels which have been unknown in the past".
He then goes on to say that three courts are available with the staff to administer them and that he would rather like an increase in the courts.
The conclusion is:
"Looked at only from along the 'judicial route' there is an immediate need for two more Courts. I would hope that with two more Courts we could within 2 years, diminish the backlog to a reasonable period of waiting time, which I would assess at six months. I would also hope that we would be able to cope with the anticipated influx".
I emphasise the last sentence:
"The latter I cannot possibly promise but without at least two further Courts calamity faces us".

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I pause for a moment before continuing with the document to consider, in the light of the debate, what is the constitutional position of the Lord Chancellor. I shall quote the noble and learned Lord himself in a lecture that he gave to London University about three years ago. I do not intend to mention the circumstances except that I was there. The noble and learned Lord said:
"The Lord Chancellor is responsible to Parliament for the delivery of a fair effective and efficient overall system for the administration of justice within the constraints of the monies voted to him for these purposes by the House of Commons. I am not answerable for the determination by the Judges of individual cases within the system. This is the sole responsibility of the independent judiciary: no Judge can be directed to decide a case in a particular way. I have particular responsibilities in relation to the jurisdiction and procedure of the civil and higher criminal courts in England and Wales. When necessary it falls to me to promote legislation to make improvements in the constitution, jurisdiction, procedures and so on of those courts".
I do not think that anybody participating in this debate —nor, I believe, any judge outside your Lordships' House—would quarrel with one word of that definition of the Lord Chancellor's duties in regard to the administration of justice and of courts.
I turn now to what a Lord Chancellor has to look at by way of procedure—not by way of decision in a court and not by way of indicating to a judge how he should decide. I shall give your Lordships the history—very briefly, I promise —and the history starts off in 1976 in the terms of the rules of the Employment Appeal Tribunal. The famous paragraph (3) occurs in that order. It is very clear. Parliament provided it and it is the duty, I submit, of judges to obey the orders of Parliament when the orders are in regard to the procedures which those judges ought to carry out in order that they can reach justice at the end of any particular case or hearing.
The following (in 1976) stated what the procedure was to be. A registrar would have a look at an appeal notice. He would make a decision and would have to give his reasons. There would be an opportunity for the appellant to put in another notice. But in 1980 your Lordships reconsidered the position and thought that that possibly was not good enough. So your Lordships allowed to be passed the Employment Appeal Tribunal Rules 1980, which added something to Rule 3 under "Institution of appeal". What it says—this has not yet been quoted—is:
"Where an appellant expresses dissatisfaction in writing with the reasons given by the Registrar, under paragraph (2) of this rule, for his opinion that the grounds of appeal stated in a notice of appeal do not give the Appeal Tribunal jurisdiction to entertain the appeal, the Registrar shall place the papers before the President or a judge for his direction as to whether any further action should be taken on the appeal".
Your Lordships may think that that is a good and just procedure. It is not just for the registrar to decide, but, if the appellant is dissatisfied, the matter has to go before the President or a judge to decide whether there is a point of law.
What did the noble and learned Lord the Lord Chancellor find? He does not need me to defend him, but I am trying to see what anyone trying to look at the matter would find. First, there is the question of the huge delays which had occurred—a terrible amount of delay. Secondly, the noble and learned Lord is asked for money all over the place by people like me and my
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noble friends Lord Irvine of Lairg and Lord Williams, because we have so much at heart that which is needed in the judicial system, and for which every penny is needed. What would any one of your Lordships do but look at the backlog, look at the waste of money, and look to see whether there is a procedure which is not being carried out? Preliminary judicial hearings are taking place before a full court for an absolutely hopeless case, and one hour is allotted to find that out.
One thing has been said here—I have looked at the documents—which I must make clear. I have found nothing in the documents other than that the noble and learned Lord the Lord Chancellor and his department have said, "Where there is no merit shown in the application, then Rule 3 must apply, but if there is a good case, or a doubtful case, then by all means have your preliminary hearings". It is especially helpful if directions can be given at the preliminary hearings which allow the case to go through more speedily.
I could go on taking your Lordships through the correspondence. Will those of your Lordships who do not have the documents accept from me that letters are sent patiently to the learned judge? I pay tribute to his learning and to the years during which he sat on the Bench. But there are, and I say this frankly, delays in the correspondence. Weeks and weeks go by without a reply. And the whole time the arrears are building up. There is no straight answer to this: "There is something laid down by Parliament for the expeditious arrange-ment of your tribunal, please accept it". In the end there is no acceptance and a whole year goes by. I believe that the letter which has been read out had a couple of words in it to which reference has been made which are possibly capable of a different meaning. They are, "Consider your position". All I can say in answer to that is that the judge (the President of the tribunal) in answering that letter did not say, "Does this mean that you are asking for my resignation?" He does not take that attitude at all. He says—and I paraphrase—"I have considered my position and I still take the same view, that you put me in a very great difficulty constitutionally".
The difficulty was not justice in his tribunal. The difficulty was the accumulated delays and the accumulated expenditure, which, quite honestly, was not an economic use of money. I can only say that I wish that this debate had never taken place except, as I say, in order to stop newspapers from printing things which are not accurate about the noble and learned Lord's conduct and what happened.
I can only say in honesty that if I had been in that position—and I hope that your Lordships will not think this a pompous remark—save for an ambiguous phrase, I should have lost my temper by the end of last year, and I should certainly have hoped that somehow or other that backlog and wastage would cease.
10.11 p.m.
Lord Ackner: My Lords, during the past three or four years, at the instance of the British Council or the Council of Europe, I have addressed judges in Hungary, Poland, the Czech Republic, the Slovak Republic, Estonia, Lithuania, Moscow and Slovenia. On some of

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those occasions I was among other senior judges from Western Europe who spoke, but on behalf of the United Kingdom I was always asked to speak on the subject of the independence of the judiciary. No doubt that was because it was thought that the common law system particularly protected that fundamental feature of justice.
The leitmotiv of my speeches was that a strong and independent judiciary is one of the central supports upon which our liberties are based and upon which the rule of law depends. That statement of that vital constitutional principle is not derived from my own words. Those words are to be found in the Lord Chancellor's Green Paper in 1989 on the work and organisation of the legal profession.
I find that it is deeply depressing that last month almost 100 of your Lordships sought unsuccessfully, losing by some 17 votes, radically to strengthen Clause 70 of the Police andMagistrates' Courts Bill in order to achieve the stated purpose of that clause; namely, to safeguard the independence of the legal advisers of the lay judges—the justices—something which the Government, in their wording, were so signally failing to do.
Here we are, a month later, debating at the instance of the Shadow Lord Chancellor the serious questions: first, whether the noble and learned Lord the Lord Chancellor acted unconstitutionally by pressuring the president of the Employment Appeal Tribunal, a High Court judge, to follow a legal course which the judge considered contrary to his judicial oath; and, secondly, whether the Lord Chancellor's defence to that accusation as provided by him to the House on 21st November was factually inaccurate.
Perhaps l may respectfully submit that we are not concerned with what was so much at the centre of the speech made by the noble Lord, Lord Mishcon, as to who was right—the Scots or the English—as regards the preliminary inquiry. What we know is that Mr. Justice Wood, in writing the detailed letter in March setting out his basis for following that procedure, did so after consulting his senior brethren and said in terms in that
letter:
"I am following a course which Mr. Justice Phillips"—
a greatly respected judge—
"commenced in I977'".
The usefulness of that procedure is attested by the fact that Gordon Slynn (now a Lord of Appeal in Ordinary), Nicholas Browne-Wilkinson (again, now a Lord of Appeal in Ordinary), Lord Justice Waite and Mr. Justice Oliver Popplewell also followed it.
Just to bring the matter up to date, I recently had the privilege of meeting Mr. Justice Mummery at a dinner in his Inn, a matter of some weeks ago. He is now the president of the Employment Appeal Tribunal and following exactly the same procedure which was so critically mentioned by the noble Lord, Lord Mishcon. He said in terms:
"I have not altered and do not intend to alter the present well-established procedure of preliminary hearings. They are a fair and reasonable way of sifting appeals and protecting respondents to hopeless appeals from having to attend a full hearing and incur irrecoverable costs. The present procedure for
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establishing whether an appeal raises a point of law or not is legally sound and, I understand, good practice from the point of view of industrial relations".
He told me that the backlog is about as bad as it was in the time of Mr. Justice Wood; namely, a wait of two years. The reason for that is, essentially, a shortage of judge power. As a result of the judiciary being somewhat diluted on that score by the provision of circuit judges sitting as High Court Judges rather than High Court Judges doing so, he hopes to be provided with four tribunals. He says that, if he is, he hopes to be able to bring the two-year period down to one year by the end of the year.
I submit that all of that is a total irrelevance. What Mr. Justice Wood did was to set out in detail how he justified his position. He did so after taking further advice and quoted his predecessors, and have quoted his successors, as considering the system to be quite sound. My noble and learned friend the Lord Chancellor would have been at liberty to alter the rule if he was so minded by now, but it has remained unaltered.
Lord Mishcon: My Lords, how does the noble and learned Lord think that it should be altered? Further, how does it alter the circumstances with which we are dealing?
Lord Ackner: My Lords, I am not suggesting for a moment that it should be altered. I am submitting, first, that it is not a matter that we need to go into. The strongest possible prima facie case was made out by Mr. Justice Wood that, in order to deal with ambiguous cases emanating from litigants in person, one should have a preliminary enquiry in order to discover whether or not there was a good point. Moreover, 30 per cent. of the cases which were ambiguous went forward to a hearing and Mr. Justice Mummery has confirmed that the same thing occurs at present and that it takes about half an hour for the tribunal, having read the papers, to deal with the appeal.
Up to a point, I have sympathy with my noble and learned friend the Lord Chancellor. He is required to wear too many hats—the hat of a Member of the Cabinet, that of the Speaker of the House of Lords and that of the head of the judiciary. If one wears too many hats at once one runs the risk of at least one of them falling over one's eyes so that one is not able to see straight. With respect, I submit that that is what. happened in this case.
Secondly, the expeditious hearings required by the Government's Citizen's Charter could not be achieved without more judicial manpower. At that period—and, indeed, for some years previously—the Lord Chancellor. had been pressed by the former Lord Chief Justice, my noble and learned friend Lord Lane and by the current Lord Chief Justice, my noble and learned friend Lord Taylor, for more judges. The pressure had been such that the system had not operated so speeches were made at judges' banquets in the City saying that the situation had been reached where it was becoming, a national disgrace and justice was imperilled. The noble Lord, Lord Mishcon, was sufficiently anxious about it that he may remember that in July 1992 he raised a Starred Question on that very subject, on which my noble and

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learned friend Lord Oliver spoke and ventured to suggest that the noble and learned Lord the Lord Chancellor was abusing his powers under Section 9(4) of the Supreme Court Act 1981 by the overuse of deputies. It therefore was a question of manpower which was causing all this difficulty.
I do not spend any time on the letters but I do spend a little time on the explanation for the letters. We have learnt—those of us who have read it—from the lengthy article in the most recent publication of the New Law Journal that in January 1994 the home affairs correspondent, Mr. Rose, asked the Lord Chancellor's Department about the correspondence of which he had heard. He was told, according to the quotation in the article:
"There was no question of changing the rules or ending or limiting the ex parte hearings. They were merely discussing the existing rules. The Lord Chancellor was acting in his capacity as the most senior judge not as a member of the Executive".
The reference to his capacity as the most senior judge has no longer been persisted in, and rightly so, because as recently as 22nd February of this year, on the fourth day of the Committee stage of the Police and Magistrates' Courts Bill, in dealing with the position of a chief justice, my noble and learned friend said,
"The fact that somebody is chief does not necessarily mean that that person has a right in all matters to overrule his brethren. I am sure that in the judicial field all understand well that the chief justice is not entitled to give directions in judicial matters to his brethren except in so far as he may from time to time sit in a court which is superior to them, and by virtue of whose decisions they may be bound".—[Official Report, 22/2/94; col. 574.]
It is difficult to know quite in what capacity my noble and learned friend required—demanded indeed—that Mr. Justice Wood should consider his position.
I come now to the Answer which my noble and learned friend gave to the House in answering the Starred Question on 21st March. In dealing with whether the Government were satisfied that he had acted constitutionally, he said,
"the short Answer is yes".—[Official Report, 21/3/94; col. 498.]
Then he read out a fairly detailed statement dealing with the matter. In the course of that he dealt with the words "consider your position". He also said:
"That meant that I wished to ascertain on what basis a procedure not applying that rule in full might properly rest".
That elicited the immediate reaction from the noble Lord, Lord Lester of Herne Hill, in these terms:
"Am I not right in saying that the letter from the noble and learned Lord the Lord Chancellor was written only after he had received a full and carefully considered letter from Mr. Justice Wood, written after he had consulted senior legal colleagues, explaining why Mr. Justice Wood, and his predecessors, regarded the long-standing practice of the Employment Appeal Tribunal as expeditious, economical and conducive to the interests of justice, and why he could not see any alternative way of fairly resolving the problem in the manner demanded by the noble and learned Lord the Lord Chancellor? Did not the noble and learned Lord the Lord Chancellor in his letter say in terms that he wished no further discussion of the rule, despite Mr. Justice Wood's full and reasoned earlier letter?"
To that there came an answer which contained at least one strange sentence. My noble and learned friend said:
"I was not disputing his interpretation of the rule; I was asking that the rule should be applied".—[Col. 498.]
He went on to say:
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"If Mr. Justice Wood was not prepared to give that assurance I wished him to state the basis upon which a procedure, which was not fully applying the rule, could properly rest".—[Col. 499.]
That is the sequence, which is exactly the wrong way around.
The point was then taken up immediately by my noble and learned friend Lord Oliver, who asked this question:
"Is it the fact that an assurance was demanded of the judge that he exercise his judicial discretion by adopting a procedure that he had already indicated on carefully reasoned grounds he regarded as inappropriate and contrary to the established practice of the Employment Appeal Tribunal ?"—[Col. 499.]
That question was not answered at all.
Finally, on the question of the error, three days later, during the Third Reading of the Police and Magistrates' Courts Bill on 24th March, on the Motion that the Bill do now pass, I addressed to the House observations about the failure in that Bill properly to protect the independence of the justices' clerks. I went on to make a passing reference, carefully saying that I was not dealing with the merits of the question, to the allegation that had been made in the Observer. I said:
"I have checked against a copy of the correspondence the validity of the correction which the noble and learned Lord, Lord Lester, unsuccessfully invited the noble and learned Lord the Lord Chancellor to make to his detailed answer as to the sequence of events—which came first, the judge's detailed justification of the procedure he was adopting or the letter from the noble and learned Lord the Lord Chancellor telling the judge, as is accepted, 'to consider his position' ? Having made that check, it is quite clear that the sequence suggested by the noble and learned Lord, Lord Lester, was correct. Out of fairness to Sir John, I am sure that my noble and learned friend the Lord Chancellor will take the earliest opportunity to correct the error". —[Official Report, 24/3/94; Col. 805.]
I am sorry to say that that correction has still to be made.
The important point in all of this is that in answer to a Starred Question the noble and learned Lord the Lord Chancellor sought to give his justification of the use of the words "consider your position", and the only justification he gave—and therefore I assume that it is the only justification made—was that that was in a letter in which he was seeking to elicit from the learned judge the basis for his applying the rule in a different manner from that which he wished.
But the judge had given that reason fully in a two page letter. He had cited other judges who had followed the same procedure. There is no question of any lengthy delay of the kind referred to by the noble Lord, Lord Mishcon. On page 2 of the letter he gave a very detailed reference to the sections, the powers of the tribunal and the extent to which he was perfectly entitled to apply that rule.
I shall not take up any more of your Lordships' time. I respectfully submit that however unwitting the noble and learned Lord the Lord Chancellor may have been in the expression which he used, this clearly was, in the circumstances, an unconstitutional way of applying pressure to a judge. I hope that the sequence of events as indicated by my noble and learned friend the Lord Chancellor, which redounds to the discredit of the learned judge who is not here to defend himself, will at least be corrected today.
10.30 p.m.
Baroness Elles: My Lords, it might seem that the replies to the Question tabled by the noble Lord, Lord Irvine of Lairg, are to be found on the face of the correspondence deposited in the Library. Indeed, my noble and learned friend the Lord Chancellor should be thanked for having deposited those papers in the Library, making them available not only to those who are taking part in the debate today but to anyone who has had an interest in the matter.
As noble Lords heard, when the matter was first raised in this House on 21st March as a result of a Starred Question tabled by the noble Lord, Lord Lester of Herne Hill, the letter which then aroused criticism, and more specifically certain wording, had been seen by the noble and learned Lord, the Lord Chief Justice. I wish to quote this passage since the noble and learned Lord is not taking part in the debate. In the Official Report of 21st March, at col. 499, the noble and learned Lord, Lord Taylor of Gosforth, said:
''My Lords, is the noble and learned Lord the Lord Chancellor aware that I was privy to this matter at the time, that I did not consider there to be any question of suggesting to the judge that he ought to resign his judicial office and that if I had felt any anxiety about any encroachment on judicial independence I would have raised the matter with him?"
That is clearly put by the Lord Chief Justice.
Having regard to those two comments, in the circumstances one might have thought that the debate was misconceived. But, due to media interest—unlike the noble Lord, Lord Lester, I do not equate that with public interest—that does not allow the matter to remain without solution. Like the noble Lord Lord Mishcon, I am grateful to the noble Lord, Lord Irvine of Lairg, for having raised the matter tonight. I hope, too, that the debate will clear the air, that it will terminate the question, and that there will be no further mention of this case. I do not think that the issue redounds to the credit either of this House or indeed of many of the personalities who have been involved in the publicity which has been given to this affair. Indeed, if I may say so as an outside observer, I should have thought that the judiciary could have handled its affairs rather better between its members than dragging all this into the open.
However, issues arise from this matter which can also be of general interest and concern and are in no way attached to the person of the Lord Chancellor, whose personal integrity is without doubt. There are bound to be increasing tensions between the Executive and the judiciary as indeed was evident in dealing with the Police and Magistrates' Courts Bill. That was touched upon by the noble and learned Lord, Lord Ackner. If more tribunals—such as a tribunal dealing with immigrants—are established, there will be a further increase in tension as the Executive seeks to restrain open ended expense while ensuring at the same time fair, speedy and efficient service to the citizen. At the same time, understandably, in accordance with the traditions of this country, the members of the judiciary, be they High Court judges, magistrates, or at whatever level of the judicial system, will insist on their independence.
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As has been mentioned by other noble Lords, the conflict becomes more acute under the. British constitution, where the Executive, legislature and head of the judiciary are encapsulated in the one person of the Lord Chancellor. As the growth of legislation increases and more and more people are involved in laws they cannot and certainly do not understand, it might be worth reconsidering the often mentioned proposal of establishing a Ministry of Justice. But, of course, as so often, the solution of one problem leads to more problems and all one would see would be a proliferation of civil servants. I believe that many of us would not wish to see that.
In studying the correspondence before the House, three overriding duties face the Lord Chancellor. I do not state them in order of priority. The first is to protect the taxpayer from excessive and unnecessary expenditure; the second is to ensure that the laws and rules adopted by Parliament or by statute are observed; and the third ensures that the rights of the citizen are protected by a fair, efficient and, in so far as is concomitant with that, speedy procedural system.
The issues are broadly two. First, there is the right of the president of the EAT to be free to interpret the Acts and rules and to continue the practice of allowing preliminary hearings for appellants even where there is no obvious question of law on the face of the appeal, which is not set out in the EAT rules of 1980. Understandably, the President's comment in his paper to the AGM of the Employment Appeal Tribunal in March last year, as stated in the letter to Sir John Wood from Lord Mayfield, was not conducive to good relations with other parts of the United Kingdom. In document 4, which has been referred to, Sir John Wood stated that the non-use of preliminary hearings in Scotland:
"means that the members of the public in England/Wales have what is seen to be a 'fairer system' under the same Act than their counterparts who … live in Scotland".
Surely that was an injudicious remark, to say the least. It was vigorously denied by Lord Mayfield in his letter of 6th March, document 5, in which he comments that he regards the English system "as wasteful of time". He does not recollect any criticism of the procedure followed in Scotland in relation to potential appeals.
Sir John Wood apologised to Lord Mayfielcl for his comment, but to the outside observer it must be regretted that, with a system that works well in Scotland under rules which were meant to apply to the whole of Great Britain, a more lengthy system introduced into England and Wales does not speed the course of justice.
Certainly, recent statistics show a great difference in the number of cases and a discrepancy in the backlog of cases building up. I received statistics this morning from the Employment Appeal Tribunal. The noble Lord, Lord Mishcon rightly referred to the correspondence and a report of Sir John Wood in which he referred to the possibility of a backlog of 800 cases projected for 1992. In the Employment Appeals Tribunal statistics for the year ending 1993, which include appeals set down and disposed of, just for England and Wales, outstanding at

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the end of the year are 1,068 cases. That is well over 200 more than the figure which was quoted in the projected view.
In the Employment Appeal Tribunal statistics for the month ending March 1994, 74 cases were set down; 44 were disposed of. These are preliminary hearings and there are still 283 preliminary hearings outstanding for the month ending March 1994. So I find it difficult when certain noble and learned Lords say that the holding of preliminary hearings has no effect on the length and speed at which tribunals are working. It is quite clear that the preliminary hearings are one of the great drawbacks to getting on with such cases. In England and Wales, the backlog is increasing every year, as opposed to Scotland where there is always a minus figure. The waiting time now in England and Wales is anything between 18 and 24 months.
As an ordinary citizen, I believe that in view of the kind of cases involved—and it has been said that there are people who are not able to understand the law, who need assistance with their cases—it is surely intolerable and certainly not in the interests of citizens who, with appeals which may fall within the jurisdiction of the tribunal, have to wait because of what appears to be a cumbersome process. Nor does it help those who have no justification for carrying on with their appeal.
The rules were drawn up by the late Lord Elwyn Jones—a compassionate man, if ever there was one—and people were satisfied that the rules would operate in a fair as well as speedy manner. It is regrettable that they should have been questioned more recently. Not only is it necessary that justice should be seen to be done, but most importantly, one of the oldest principles in English law—
Earl Russell: My Lords, I am grateful to the noble Baroness. Can she tell me whether anyone has questioned the rules, or do people disagree about their interpretation?
Baroness Elks: My Lords, no one has questioned the rules, but what is questioned is whether a judge in the case has the right to introduce different procedures which are not within the rules. Rules 3(2) and Rule 3(5) are laid down and they deal with appeals which may be considered hopeless. A person can put in an appeal under Rule 3(2) and, if the applicant is not satisfied after a certain number of days, he can apply again under Rule 3(5).
What is not within the rules is the method of preliminary hearings, where, even in an appeal which is clearly on the face of it not raising a question of law, there is an hour which is given to an appellant in case a question of law might emanate from the preliminary hearing. There is no mention of a preliminary hearing in the rules of the EAT, nor is there in the employment protection consolidated measure from which the rules stem. I am sure that the noble and learned Lord the Lord Chancellor will be able to give a fuller reply if I do not have my facts right, but I believe that I have. I think that that gives the answer to the noble Earl.
The oldest principle in English law, which I was just coming to, and which as a historian I know the noble
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Earl will appreciate, is that "justice delayed is justice denied". That point has not been mentioned and must surely be taken into consideration in this particular situation. It is surely right to expect the judiciary to seek to observe such a first principle when so many people suffer as a result of its not being observed.
The second question which arose in relation to interpretation is the use by my noble and learned friend the Lord Chancellor in his letter of 19th March 1993, of the words which were the subject of a Question in this House on 21st March—and many noble and learned Lords have referred to this
"I must ask you to consider your position".
The noble and learned Lord has already spoken on this matter; he spoke at the time and has given his answer. I have already quoted what the noble and learned Lord the Lord Chief Justice said in relation to that particular sentence. But those words could in no way have been construed as meaning a possible request for resignation.
In his letter of 23rd April Sir John Wood makes it quite clear that he regards the interpretation of those words—so far as I can see, correctly—as relating to his view of the exercise of his judicial function. He also makes it quite clear in his letter of 21st June 1993 that he had made known his desire to retire to heads of division, and in one case to a head of division, at the beginning of the year. So there is no question that he could have assumed that this was an implication by my noble and learned friend that he should consider his position in relation to resignation. In my view, that simply does not hold up. And indeed, in submitting his resignation to my noble and learned friend on the same date, 21st June, Sir John Wood in his letter very correctly says:
"as you will see, [this] is unconnected with our recent correspondence".
In conclusion, noble and learned Lords will analyse much more acutely than I can, the correspondence in relation to protection of the independence of the judiciary. As in law, different interpretations can be placed on its contents. But I maintain that my noble and learned friend the Lord Chancellor, in seeking to protect the rights of the citizens against a proceeding which results in long delays could, with respect, look for better co-operation among the judiciary with his role, which we on these Benches believe he fulfils with integrity and distinction.
Noble Lords: Hear, hear.
10.42 p.m.
Lord Glenamara: My Lords, first, perhaps I may agree with the noble Lord, Lord Lester, when he said that this was a debate which gave nobody any pleasure —I might add, because of the high regard and indeed affection that we all have for the noble and learned Lord the Lord Chancellor.
Secondly, in reply to the noble Lord, Lord Campbell of Alloway, perhaps I may make is absolutely clear that this is not in any sense a Motion of censure. We disagree with the noble and learned Lord the Lord Chancellor about something that he has done. But we disagree with Ministers every day of the week without it being a Motion of censure.

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I intervene briefly because I believe that legal matters, especially those that involve the rights of the citizen, ought not to be left entirely to lawyers. I believe that I am the first layman to speak in the debate. I speak as a layman, and not as a lawyer.
I believe, and many of us believe, that the core of the matter that is being debated is quite fundamental to individual liberty, which to a considerable extent depends upon a judiciary which is free to function without any interference from the Executive, as the noble and learned Lord, Lord Ackner, said.
My noble and learned friend Lord Irvine referred to the separation of powers. In this country we do not have a proper separation of powers in the rigid sense in which a country like America does. There are a number of deviations from a proper separation of powers. For example, we have three law officers who all sit in the legislature and all sit in the executive. But they also have functions within the legal system. The Lord Chancellor is a Conservative Minister, who speaks and votes for his party in this House in Parliament. I do not object to that. He is perfectly entitled to do so. But also, in the words of his own press office, he is "the most senior judge" in the judicial system.
That odd feature of our constitution—there are many odd features of our constitution—works reasonably well because law officers have always leaned over backwards to keep their two functions, the political and the legal functions, separate from each other and not let one interfere with the other.
But in the matter under discussion, as I see it the two side; of the office of Lord Chancellor have at any rate converged, if not coalesced, in this matter. The nub of that aspect of the matter is the letter, which has been quoted by many speakers, from the Lord Chancellor to Mr. Justice Wood dated 19th March last year. There was a statement from the Lord Chancellor's press office on 27th January this year which said that, in his correspondence with Mr Justice Wood, the Lord Chancellor was acting in his capacity as:
"the most senior judge and not as a member of the Cabinet".
I find that extremely difficult and indeed almost impossible to accept. I am unable to accept it for two reasons.
The first reason is the Lord Chancellor's frequent references to money. I do not object to them, but throughout the whole correspondence he refers to wasting money and saving money. Indeed, in the letter of 19th March he referred to:
"a cheap and expeditious procedure".
I have been a Minister and I fully understand the pressures to which Ministers are subjected by the Treasury. I can well imagine what those pressures are like at present with the over-ambitious Chief Secretary that we have at the moment. But when those pressures are transmitted by the Minister to a judge in the performance of his judicial functions, surely it is the Minister who transmits them and not the senior judge.
The second reason why I find those words difficult to accept is the refusal of the Lord Chancellor to set up more courts —even one additional judge in one
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additional court. There is a considerable backlog. I checked it with a practitioner in the tribunals today. It is up to and sometimes over two years.
I believe that there are two causes of that backlog, rather than the cause given by the Lord Chancellor. The first cause is the Government's industrial policy of complete non-intervention when large scale industrial redundancies occur. Unemployment and unfair dismis-sal are the biggest source of cases to the tribunals. Secondly, there has been a great increase in the number of appellants who conduct their own cases. I believe —and it has been said by others—that that is because of the cut in legal aid. Unemployed men cannot afford to employ lawyers and are doing the job themselves. I believe that those are the two causes of the backlog. They both flow from government policy and not so much from Mr Justice Wood's insistence on giving a fair deal to appellants whose appeals may not be worded in a way which makes the ground of appeal as clear as it should be.
We should also bear in mind the sensitivity of the appeal tribunal, and indeed the whole system, in dealing as it does with such evocative subjects as employment, unemployment, racial discrimination, sexual discrimi-nation and so on. As Sir Francis Purchas said in the article in the New Law Journal, and indeed as the judge said, "It operates on the fringe of politics". Therefore, I would add, it should be handled with the utmost sensitivity.
The letter of the noble and learned Lord the Lord Chancellor dated 19th March fills me with alarm. I read the noble and learned Lord's explanation of it in your Lordships' House on 21st March this year. Surely the important point is not so much the actual word; in the letter and not so much what the noble and learned Lord intended, but what meaning a reasonable reader—and that includes Mr. Justice Wood—would give to it? I, as a layman, would paraphrase its meaning quite simply, and say that it means, "Do exactly what], a Member of the Cabinet, want you to do in carrying out your judicial functions, or else". That is how I would paraphrase the letter. The "or else", of course, is contained in the words,
"If you do not feel you can give me that assurance, I must ask you to consider your position".
Perhaps I can mention something which nobody else has pointed out. Had that phrase meant, "Consider the position you have taken on the matter at issue between us", it would be more appropriate to say, "reconsider your position". Clearly Mr. Justice Wood had considered the matter meticulously for many months previously. Surely it would have said, "reconsider". It did not say that. It said he should "consider" his position —that is, consider something he had not considered before. I think any reasonable person, including Mr. Justice Wood, would assume that those words meant that he should consider his presidency of the EAT or, alternatively, consider voluntarily resigning from the High Court Bench.
It is a matter of some disappointment to me, indeed of some anxiety, that neither the noble and learned Lord the Lord Chancellor nor the noble and learned Lord the Lord Chief Justice—I am sorry he is not in his place but

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he did intervene in your Lordships' House on this matter —accepted that the words used in the letter are at least capable of that construction. But whatever the words mean or do not mean, it was overall a sharp letter. Indeed, it was a harsh letter, and it had an overtone of menace. It is a letter which I believe a political Minister ought not to have written to a High Court Judge about the way in which he was exercising his judicial function. It was therefore, in my view, wholly unconstitutional.
10.53 p.m.
Lord Oliver of Aylmerton: My Lords, I confess to a very great dislike for dissension and confrontation. I speak tonight—I want to make it quite clear—not for the purpose of heaping further coals of fire upon the already overheated head of the noble and learned Lord the Lord Chancellor, but because, for good or ill, the Question raised in this debate involves an important point of principle in which it would be clearly embarrassing for any member of the serving judiciary to become involved.
The circumstances out of which the Question arises must be a matter of great regret to us all. They disclose a deep and fundamental difference of opinion between our respected and popular Lord Chancellor, on the one hand, and a popular, respected and experienced judge, on the other, as to the way in which that judge should perform his judicial duties.
Four questions come out of all this. First, what is all this about, because I think a layman looking at this correspondence would be bewildered? Secondly, what is the constitutional position? Thirdly, did what occurred here overstep the limits of permissible Executive action? Fourthly, since all this happened a fairly long time ago, does it really now matter? On one view, you might, reading through all this correspondence, come to the conclusion that this was a storm in a not very significant teacup. Indeed, I think the position is probably a good deal simpler than might appear when one sweeps aside all the obfuscation that has taken place by contentions raised here and there.
With very great respect to him, I do not find the position nearly so clear as does the noble Lord, Lord Mishcon. Paragraph 16 of Schedule 11 to the Act requires an appeal to be heard by a tribunal. That is a tribunal consisting of a judge and two members. Rule 3, about which we have heard so much, is expressed in somewhat Delphic terms. It provides in effect that if a notice of appeal appears to be defective, then ultimately, and after going through various hoops, the registrar may place the matter before the judge for his directions whether any further action shall be taken in the appeal. What it does not do in terms is to empower the judge to hear and dismiss an appeal on paper—I refer back to paragraph 16 of Schedule 11—but what Mr. Justice Wood and the registrar had done was to devise and have up and running a perfectly sensible procedure for dealing with the obvious and frivolous and hopeless case. That simply involved giving the appellant a limited time either to get his notice in order or to ask for the matter to be referred to the judge under sub-rule (3) of Rule 3. If he did not do that, the appeal was deemed
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to have been withdrawn. So one had got out of the difficulty of having to put the matter before a tribunal to have it dismissed.
What that did not do, of course, was to deal with the case, for instance, of the monoglot Welshman who would not know the difference between a point of law and a mountain goat but had served an ambiguous notice of appeal indicating, for instance, that he considered the industrial tribunal's verdict to be perverse, which might on investigation be a real point of law or it might mean simply that the industrial tribunal had not believed his evidence.
Lord Mishcon: My Lords, I wonder whether the noble and learned Lord would allow me to intervene. Does he realise that he is in danger of coming before this tribunal for a remark of grave racial discrimination against the Welsh?
Lord Oliver of Aylmerton: My Lords, I am much obliged to the noble Lord for that intervention.
So what the EAT had evolved over the years was a system of preliminary hearings for ambiguous notices to determine at the outset whether or not the appellant had a justiciable point. If he did not, the appeal could be dismissed out of hand because it was before the tribunal. If he did, it could be set down and come on for hearing in the ordinary way.
But it then seems to have occurred to someone in the Lord Chancellor's Department what a lot of tribunal man-time could be saved if one did not give the litigant the chance to explain himself. If he has not the wit, the education or the good luck to show clearly and on the face of his notice that he has an arguable point of law, let the notice be referred to the judge under Rule 3 and let the judge dismiss it under his power under Rule 3(5), presuming he has that power, to direct what further action shall be taken on the appeal. That way, the argument runs, and it may well be right, you can stifle a number of pending appeals in limine without troubling the tribunal, however briefly, and thus reduce the backlog.
That is where the battle lines were drawn. The learned judge thought that what he was being urged to do was not only less than fair to litigants but was not open to him on the terms of the statute; and, as the correspondence shows, he urged that there be proposed a small amendment to the Employment Bill then before Parliament to confer upon him the power to dismiss appeals on his own. But for some reason or another that was not done.
The noble and learned Lord the Lord Chancellor took a different view and was insistent that his view must prevail. The pity of it all, it seems to me, is that if the affair ever has to be looked at in statistical terms, it will be found that there was not, and is not, anything like as much involved in all this as those in the noble and learned Lord's department may have supposed and that there really was not any need for this storm in the proverbial teacup to blow up into a tempest. But there it is.
This is not the occasion on which it would be appropriate to debate whose view was right in law and whose view was wrong, although I point out in passing

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that the learned judge's view had the support of his predecessors in office with practical experience of the EAT over a number of years and also the support of senior members of the judiciary.
The important point is the constitutional one of whether it was proper that the noble and learned Lord the Lord Chancellor, whether in his capacity as a senior judge or as an Executive officer, or in any other capacity, should seek to compel the judge to exercise his judicial function in a manner which, on reasoned grounds, he conscientiously thought to be wrong and contrary to the interests of justice —if, that is, the correspondence which we have seen amounts to such an attempt.
So it is to that constitutional question that I now turn. We have no written constitution, but the concept of judicial independence, which goes back to the Act of Settlement, is one with which we have all grown up. It is a concept of no very certain content and there is concern both in the judiciary and in the legal profession now that in recent years, under pressure from government, from civil servants and particularly from the Treasury, it is being more and more narrowly construed with an eye more to what is boasted to be "value for money" than to fairness and impartiality in our system of justice.
In his presidential address to the Holdsworth Club in 1950, Lord Justice Denning, as he then was, said this:
"No member of the Government, no Member of Parliament and no official of any government department has any right whatever to direct or influence or to interfere with the decisions of any of the judges. It is the sure knowledge of this that gives the people their confidence in judges … The critical test which they must pass if they are to receive the confidence of the people is that they must be independent of the executive".
I draw attention to the words,
"direct or influence or to interfere".
I would have hoped that what my noble and learned friend Lord Denning said was so well entrenched in our constitution that it could not be challenged. Recent pronouncements in this House have seemed to indicate that the noble and learned Lord the Lord Chancellor and his department interpret the principle of judicial independence in a very much more restricted sense and as meaning simply this: that judicial independence is infringed only if an attempt is made to dictate or influence the decision in a particular individual case. I hope very much that I am wrong about that because one has only to think about it to see where the logical train then. leads. On that analysis, a direction in the 1930s by the German Ministry of Justice that judges were not to decide disputes in favour of members of the Jewish faith or against party members would have been no infringement of their judicial independence - and that, of course, is palpably absurd.
I turn to my third question. Was the constitutional principle of judicial independence infringed by what occurred in this case? The noble and learned Lord the Lord Chancellor did not, I feel quite sure, have any intention whatever to overstep the bounds of his constitutional authority, but I am bound to say that it seems to me that on any analysis at all the pressure which was applied in this case, for whatever reason, constituted an attempt by the Executive - no doubt in the
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praiseworthy interests of economy and expedition - to overbear the conscience of a judge in the way in which he was to exercise his judicial duty and his judicial discretion - not, it is true, in an individual case but in the case generally of those individuals who are not sufficiently articulate to make it clear beyond any doubt that they are within the jurisdiction which they seek to invoke. And in the case of a court many of whose clientele are without legal aid, without legal assistance, some of them ill-educated perhaps and some perhaps belonging to ethnic minorities without a full command of the English language, that is a matter of very grave public concern.
I recognise that there are a lot of people - I dare say that there are perhaps some noble Lords among them who regard Her Majesty's judges as unduly sensitive about their independence from Executive interference, equiperating that with a claim to be immune from control and from any criticism. I do not, for my part. think that that is true or fair - but then I would say that, wouldn't I? But we are not talking about criticism. We are talking about interference with the judicial function —about dictation. I would remind the House that whatever failings there may be perceived to be in the judiciary, it is the judge and the judge alone who stands between the power of the state and the freedom of the individual under the law.
I also recognise - indeed, we must all recognise - the very real difficulties which confront the noble and learned Lord the Lord Chancellor in fulfilling his responsibilities for overseeing the administration of justice and in steering a course dictated by the multiplicity of hats which his office compels him to wear. Judges are, after all, human beings and they are susceptible to ordinary human frailty. If the noble and learned Lord forms the opinion that a judge is not doing his job properly - if, for instance, he spends more time on the golf course than in court, or if he does The Times crossword on the Bench, or brings discredit on his office by his private life - then it is, of course, his duty to take him to task, even, if necessary, to the extent of urging him to resign his office.
So we must all recognise the noble and learned Lord's difficulties and accept that he is right to be concerned with the proper deployment of judicial resources. It is he who has to answer for the perceived shortcomings in the administration of the courts and it is his right and his duty to counsel, to persuade and, if necessary, to criticise. But the question, as always, is: Where do you draw the line ?
Advice, counsel, persuasion, criticism and, if need be, yes, protest fall on one side of the line. But Parliament has established an appellate hierarchy to correct judicial errors of law; and direct Executive interference or attempted interference in the way in which a judge conscientiously seeks to comply with his judicial oath is a different matter altogether. I have to say—and I say it with regret and with the utmost deference to the noble and learned Lord—that it is, I think, very difficult for anyone who has read this correspondence to accept that it did not fall on the wrong side of the line. It cannot be construed otherwise —and I know that the learned judge did so construe it

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—than as an attempt to coerce a judge to carry out his judicial function and exercise his judicial discretion in a manner contrary to the reasoned dictates of his own conscience.
The peremptory rejection of further discussion, the demand for an "immediate assurance", hardly leave any room for doubt. The significance of the expression,
"I must ask you to consider your position",
has a well-known conventional meaning, and I cannot believe that it has any different meaning north of the Tweed. What it emphatically cannot mean is, "Please let me have your reasons". It means, "Do as I demand, or else".
I have to say that my first reaction when I saw the letter —and I believe that it was a reaction that I shared with a number of others—was to say, "My goodness, we haven't seen anything like this since the reign of King James I". If there were any doubt about that, what further confirmation can be needed beyond the judge's agonised response in which he spoke of the constitutional issue being raised in such a stark form —which remained unanswered and uncontested—and the fact that his final, reasoned letter of protest remained inexplicably unanswered apart from a bare secretarial acknowledgement.
If the learned judge's construction of the letter of 19th March as a threat was wrong, the least that one would have expected was a reply saying, in effect, "What constitutional issue? What on earth are you talking about?" But the matter was simply left. The judge retired, and I would be the first to confirm from my personal knowledge—I have known the judge for many years—that that was a decision that he had made before any of this blew up—and exactly the same procedure for preliminary hearings in doubtful cases still continues, I am told, to this day under his successor in office, and is, I understand, regarded by that successor as essential to the proper working of the tribunal.
Well, now, that all occurred over a year ago and on one view of the matter might be thought to be something of a stale bun. Does it really matter now? It may be said that no great harm has been done. After all, the judge resisted the pressure under which he was put, and the preliminary hearings are continuing just as they were before. But I am bound to say that I believe that harm was done, and in three respects.
In the first place, Executive interference of that sort necessarily saps public confidence in the integrity and impartiality of our judicial system. The litigant expects, and is entitled to expect, that his rights will be decided by a properly constituted court, not by the diktat of some civil servant in the department of the noble and learned Lord the Lord Chancellor or any other department.
Secondly, and particularly in the context of a court which is designed to be, to used the judge's phrase, a "people's court", it leads to a public perception that the interests of the citizen—the little man, if you like—are being overborne in the endless quest for what is called "value for money".
Thirdly—and I believe that this is most important —one of the many measures introduced—and I am sure rightly introduced—by the noble and learned Lord the
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Lord Chancellor for refashioning the administration of justice is the appointment of younger, and, by definition, less experienced judges who may not all have the same fortitude as Sir John Wood. The correspondence which we have seen must necessarily sap their confidence that they will not be subjected to similar departmental pressure in other directions.
For my part, I commend the noble Lord, Lord Irvine of Lairg, for having brought this matter to the House for debate. Judicial independence is one of the essential pillars of the rule of law. I hope very much that if this debate has done nothing else, it will have made it clear that that must be preserved for, if we once allow it to be lost or eroded, we lose also with it the freedom of us all under the law.
11.15 p.m.
Lord Cocks of Hartcliffe: My Lords, in their introductory remarks, my noble friend Lord Irvine of Lairg and the noble Lord, Lord Lester, mentioned that there was a wider interest in this matter. I must confess that that wider interest had eluded me when I first saw this item on the Order Paper last week. But thanks to our campaigning press, I was alerted on Sunday, 24th April, when I read the Observer, and I saw an article headed:
"Parliament to grill Lord Chancellor over law cutbacks".
I then realised that that was something which was of some interest to me. Indeed, the article in the New Law Journal, which I must confess to your Lordships is not my normal reading, mentions Sir Francis Purchas saying that this
"demonstrated all the attributes of a Treasury-driven policy to achieve savings at any cost".
The noble Lord, Lord Lester, mentioned the need for economy. The noble and learned Lord, Lord Donaldson, raised the question of resources. The noble Baroness, Lady Elles, mentioned the question of expenses. And, indeed, the noble and learned Lord, Lord Oliver, who has just spoken, also mentioned financial aspects. My noble friend Lord Mishcon was extremely frank with the House in detailing the various occasions on which he had been among those pressing for more money for various legal purposes.
A number of your Lordships who are legally qualified have appreciated that problem of resources, but I have yet to hear anybody say that one of the cardinal reasons why the noble and learned Lord the Lord Chancellor is under such great financial pressure is the fault of the legal profession itself.
Because of the lateness of the hour, I shall confine my examples to those drawn from the proceedings of an Appeal Committee in your Lordships' House on Wednesday, 1st September, 1993 before the noble and learned Lords, Lord Goff of Chieveley, Lord Keith of Kinkel and Lord Templeman. That concerned two cases where counsel were appealing and both the appeals were rejected.
In one case, Regina v. Reid, the fees claimed by counsel and a junior were £107,355 for four days in court on appeal in the House of Lords. That was reduced by the Lords' taxing officer to £32,400 for the four days' work. That was the subject of the appeal.

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In the course of the proceedings the noble and learned Lord, Lord Templeman, said:
"The amount of fees you and your leader were claiming for a four day case would have hired three very competent headmasters for a year".
He goes on to mention the question of public interest and says further:
"These fees would have been unheard of even three or four years ago. The whole thing has come across from America and it has just gone up and up and up. On an annual basis this must run into millions".
I am prepared to give way to anyone who can tell me that those two counsel in the case of Regina v. Reid were quite exceptional; but, failing that, I must assume that that sort of thing is now not uncommon in the proceedings of the law in this country.
When consideration of what could actually be done about such inflated fees became a matter of discussion, the noble and learned Lord, Lord Templeman, (at page 18 of the proceedings) said:
"This is a matter for the Bar Council at the end of the day, whether they are going to let the profession get out of hand like this or whether there will be some guidance on proportionality".
One would like to think that, here, the Bar Council would be a bastion of the public interest, trying to maintain a balance between a fair reward for work carried out and the need for the public interest and that of the taxpayer to be protected. How, in fact, do we find that the Bar Council has shaped up? One of the other appellants in the other case was asked (at page 34 of the proceedings) whether he felt that he had a grievance. The answer was yes. His claim had actually been for £25,000 and that had finally been settled by the taxing officer at £9,000, so a certain amount of pruning was involved. He went on to say:
"We did consult with the Bar Council, the appropriate committees and the chairman and deputy chairman of the appropriate committee on the Bar Council, giving them the details, and received their opinions that we should go forward".
I hope that the Bar Council will take a little notice of such matters and that it will try to get itself into some sort of shape. It should realise that a balance must be stnick between the legitimate earnings of lawyers and the needs of the general public and the taxpayer. As a very quick aside, I thought that one of the choicest parts of the proceedings occurred at the end of the hearing when one of the appellants said:
"My Lords, I have been asked by those instructing me … that if it is appropriate … for us to have our costs for today, whether we win or lose, then I would ask for them".
The noble and learned Lord, Lord Keith of Kinkel, asked, "Against whom?" to which the reply was:
'Well, my Lord, they must come out of the Legal Aid Fund".
It really is pretty choice—is it not?—that even such an appeal has to be funded by the taxpayer. It is time that the legal profession put its own house in order. It is not easy for people who are laymen in such matters to follow the arguments, although I would say to the noble and learned Lord, Lord Oliver, that I have read the correspondence which has been placed in the Library. Difficult though I found it, I do not quite see the indictment which other speakers have seen.
However, there is a serious point here. Lay people must have some sort of protection from the growing greed of the legal profession. As I said, it must put its house in order. I fear that my experience in another place led me to observe from time to time that, when
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legally qualified people were sat on the opposite sides of the House, especially in Committee, their mutual interest in the law very often seemed to override their party political differences. That was not to the general advantage of either the House or the public outside. I hope that what, I suppose, has been called the strongest closed shop left in the country will think very seriously about the matter. It is no good pasting the Lord Chancellor time after time because he has a limited budget and the taxpayer, as well as the legal profession, has rights. Something should be done to put the whole thing in order.
11.23 p.m.
Lord Colnbrook: My Lords, I agree with the noble Lord who has just spoken and with the noble Lord, Lord Lester. Both of them said that tonight's discussion covers wider interests than simply those concerned with the law. I am yet another layman joining in the debate; but I have a point to make. I believe it to be a valid point and it has not been made yet. I am happy to be able to tell your Lordships that it will not take me very long to make it.
This discussion tonight is ostensibly a Question—in fact that is how it appears on the Order Paper—although I think it is a slightly odd Question, if I may say so, when there are no fewer than two speakers from the Opposition Front Bench, but let us leave that aside. In reality, however one dresses it up, it is an attack upon my noble and learned friend the Lord Chancellor and it has been here and in other places for some weeks now, That is perfectly reasonable. The noble Lord, Lord Glenamara, said, quite rightly, that Ministers are. attacked regularly. Yes they are; but this is not an attack on government policy. That is something that Oppositions do all the time, and quite rightly. I did it myself when I sat on the Opposition Benches in another place. That is wholly understandable and it is, in my view, entirely proper, indeed it is necessary for the proper conduct of democracy in this country.
But this is of a totally different order. This is a personal attack upon an individual Minister. It is not suggested that he is incompetent, or lazy or that what he is doing seems to the attacker to be against the public interest. But, it is suggested, as the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Glenamara, said, that he is doing something; that is wholly unconstitutional; namely, seeking to undermine the independence of a High Court judge by a thinly veiled threat to remove him from the office which he holds. Let us leave aside for a moment the question of whether any Minister has a power to remove any judge from any office without consulting Parliament, and concentrate, if we may, for a moment upon the likelihood that this Lord Chancellor of all people should seek to do something that he knows he cannot do, and that by dubious means.
Members of another place are called honourable Members. Some (of whom I was privileged and fortunate enough to be one) are called right honourable Members, and that prefix of course can attain to every Member of your Lordships' House. The fact that I believe we have to take into account, when considering

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the validity of the allegations made against my noble and learned friend is simply this—can anyone here tonight think of anyone less likely to do anything dubious or underhand or in excess of his powers than my noble and learned friend the Lord Chancellor? Many of your Lordships, I am sure, know him better than I do; and certainly many know far more than I about the details of, for example, Rule 3, of which I freely confess I had never heard until a few days ago. But I must tell your Lordships that I for one have yet to meet anyone more honourable, more upright, more scrupulous and more meticulous in the performance of his duties according to law than my noble and learned friend.
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I know, of course, that some of the things that my noble and learned friend has done in pursuance of government policy have not been wholly acceptable to the legal profession; but I am a layman wholly outside what I must call the closed circle of the legal profession and I think that many of those things have been to the benefit of ordinary people. Furthermore, to me the idea that he of all people could seek improperly to interfere with the course of justice and undermine the independence of the judiciary is quite ludicrous and should not be entertained for a single moment.
11.29 p.m.
Baroness Seear: My Lords, I also am a layman and rise with a good deal of diffidence following so many extremely distinguished lawyers. I should like to say, however, to the layman who has just spoken before me that I think it is a very great pity to personalise this debate which, although it is about a particular incident and a particular event, also raises issues of much wider importance. That has been brought out repeatedly during the debate.
Although the debate was launched by a Front Bench Labour spokesman, surely it has been obvious that this has not been in any sense a party debate. Nor have any partisan issues been raised. That is something of which we must all be extremely glad. Most of us would wish that this debate had not happened. But, given the circumstances, it is inevitable that it has arisen. It will be useful that it has been conducted this evening in the manner in which it has.
If the 20th century has taught us anything surely it is that the independence of the judiciary is the absolute foundation of individual freedom and that if that is undermined in any way then we are indeed on a slippery slope. For my part., if my party in a moment of madness —which I am quite certain will never arise, at least on this subject—were to abandon the principle of the independent judiciary, I would promptly abandon my party. It is of fundamental importance and has to be protected at all times. That is, primarily, what this debate is about and why the issue has arisen.
It must surely be obvious to a layman, as it is to me, that the unfortunate sentence in the letter calling upon Mr. Justice Wood to consider his position has only one meaning. In common parlance it is used to mean "You had better get out". I find it very difficult to understand how that phrase could have been written and that letter signed by the noble and learned Lord the Lord Chancellor without seeing that implication. I accept, as has been pointed out, that Mr. Justice Wood had made up his mind that he was going to leave in any case, but surely there were so many other ways in which the point could have been made: "Would Mr. Justice Wood not reconsider the way in which he was interpreting Rule 3 ?" or "Would he not consider his attitude?" rather than his position. It is the phrase "consider his position" that surely means only one thing to the ordinary member of the public. It is that which has drawn so much attention to this unfortunate incident.
f was most impressed by the speech of the noble and learned Lord, Lord Oliver, in which he pointed out that the pressure to conduct his affairs in the Employment Appeal Tribunal in a rather different way from the way in which Mr. Justice Wood wished to conduct them was also a form of pressure.
That said, and that is undoubtedly the most unsatisfactory aspect of the case, the whole issue raises other points that require consideration. Of course it is right that the noble and learned Lord the Lord Chancellor should have been concerned and should continue to be concerned by the backlog of cases in the EAT. A delay of two years is totally unacceptable, and it is right that the Lord Chancellor should be deeply
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concerned. The people who go to an employment appeal tribunal are largely involved in cases of unfair dismissal or redundancy. A two-year delay is intolerable. It is right that that should be changed.
However, listening to this evening's debate, it is clear that the accusation against the noble and learned Lord the Lord Chancellor is that he is influenced by the Treasury, and we all know that the Treasury is "enemy number one" of all of us. But earlier this week we were talking about spending £30 million to lock up youngsters between the age of 12 and 16. I suggest to the noble and learned Lord the Lord Chancellor that £30 million would be very useful indeed to the Employment Appeal Tribunal to obtain those extra judges and courts, which could then take the cases which need to be taken and deal with this backlog. We cannot accept that that backlog should continue and the Lord Chancellor was obviously right to be deeply concerned that the delay was so long and damaging.
The second point of public interest goes even wider. It is true that there is a conflict of interest built into the very nature of the Lord Chancellor's job. We do not have a written constitution in this country. We pay lip service to the idea of the separation of the powers. But the position of the Lord Chancellor, imposed on him not of his choosing, is a denial of the separation of the powers, as other speakers have said. He is a political Member of the Cabinet, he has administrative and executive duties in the running of the judicial system, and he is head of the judicial system.
Those duties can conflict and have conflicted. My noble friend Lord Lester is right to say that we have to look at some way of altering the situation. Whatever may have been right in the past, it is no longer satisfactory that one person should carry those conflicting responsibilities. It may be—my party has put this forward, although I do not wish to put party points forward this evening—that a Ministry of Justice is what is required. But if not, some other body is needed which can deal with the administrative duties that are involved and which can reduce the conflict that inevitably arises from the position of the Lord Chancellor as it is defined today.
The noble Baroness, Lady Elles, said that there might be something to be said for a Ministry of Justice but that. it would mean too many more civil servants. I am no great enthusiast for an increase in the number of civil servants. However, I would regard even that as a rather small price to pay if we could get rid of the inconsistency and the conflict which are, inevitably built into the present position of the Lord Chancellor. The situation may have been all right in the past; it is no longer all right today. If serious consideration of how we deal with that issue comes out of today's debate, as I hope it will, along with a more serious attack on the delay in the Employment Appeal Tribunal., then this in many ways unhappy debate will nonetheless have been worthwhile.
11.37 p.m.
Lord Williams of Mosityn: My Lords, this is a gloomy day and I take no pleasure in it. If I had not read the correspondence placed n the Library, in particular

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the letter of 19th March stating "consider your position", I would not have been prepared to believe that it had been written. This is not a Motion of censure on the noble and learned Lord the Lord Chancellor dressed up as a Question, as the noble Lord, Lord Glenamara, rightly observed.
Mr. David Rose of the Observer has done a notable public service, even if it is an unpopular one. He has brought out into the open what is very widely believed to have been illegitimate pressure on a serving High Court judge. The tone of the noble and learned Lord, Lord Oliver, was gentle as always. But the phrase that he used was that there had been an attempt to overbear the conscience of a judge. If the circumstances in which our discussion proceeds are as serious as that, it would have been derelict for my noble friend Lord Irvine of Lairg, as Shadow Chancellor, not to have raised this Question in this form and so promptly, in particular bearing in mind that the noble Lord, Lord Lester of Herne Hill, had, rightly in my view, quite recently raised the issue as a Question, upon which there was limited opportunity for discussion, as a matter of relative urgency.
Perhaps I may put what I want to say in context. The noble and learned Lord the Lord Chancellor knows that he and I had close dealings in 1992 when I was Chairman of the Bar. To me and to others, he was always the soul of courtesy and consideration. We disagreed quite often, sometimes quite fundamentally, but he knows, I believe, that on every public occasion when we disagreed, I stressed my personal regard for him and his qualities. So it is tonight.
Sometimes criticism on these occasions comes from spite or spleen or a desire to settle old scores. That is not my case. What drives me tonight is, I am sorry to say, a sense of disappointment and a sense of having been let down. May I say why just for a moment? I have lived my entire adult life as a Member of the Bar of England and Wales. I was taught when I started to revere judicial standards and judicial independence and I believe I learnt and remembered that lesson. Tonight and in particular on reading the correspondence, I regret to say that my feeling was of trust misplaced.
If one simply looks and listens to the speeches of the noble and learned Lords, Lord Donaldson, Lord Ackner and Lord Oliver—a rollcall of honour in judicial service, if I may say so—one realises the deep concern which has nothing to do with selfish partisan advantage. None of them has a selfish interest in these matters. I do not know whether those three noble and learned Lords share any views in common with me. I rather doubt it, apart from one. That one is the one that matters to us all. It is the fierce certainty that will never go away that the independent judge is central to our nation and the quality of its life. If that stands, there is hope for us; if it withers, we are done for. That is the importance of this occasion, which no one on our side will demean.
The noble and learned Lord, Lord Hailsham, is not speaking this evening, but I shall quote his well-known words:
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"I always regarded my prime duty as Lord Chancellor [as being] to safeguard and maintain the independence of the Judiciary".
On a fair review of this correspondence and the lack of it, has that been done in this case? I regret to say that it has not. What those words mean, I believe, as a matter of fundamental importance, is that we can never tolerate any interference with judicial discretion, judicial view or judicial conclusion except by judicial means which have been referred to particularly in the speech of the noble and learned Lord, Lord Donaldson of Lymington. Nor should there be any appearance of an attempt to interfere with judicial independence.
I shall not deal with a particular speech which, although of interest, I dare say, was not of relevance, about whether lawyers charge too much. What Mr. Justice Wood was doing here was not attending to those who had expensive or even moderately priced lawyers. He was attending to those who had no lawyers at all.
So, if for a moment I may concentrate on what is relevant, Mr. Justice Wood may have been right in his interpretation, or he may have been wrong. That is not the point. What he was right about—and this is the point that will inure—was his refusal to succumb. Those letters of 19th March 1993, 7th April 1993, and the last paragraph (document 18 for the reference, should anyone want it) of the letter of 23rd April 1993 will deserve and receive rather more than a footnote's attention in the history of the judiciary in this country in the late 20th century.
I shall pause for a moment, if I may, as I am not sure that the full citation has been given, on the response of Mr. Justice Wood to the Lord Chancellor, in a fully considered letter:
"You have demanded that I exercise my judicial function in a way which you regard as best suited to your Executive purposes, but I have to say that in all the circumstances that present themselves to me and in the light of the existing law, I cannot regard compliance with your demand as conducive to justice".
I never thought to hear those words,
"You have demanded that I exercise my judicial function in a way which you regard as best suited to your Executive purpose",
from a serving judge in this country. I have heard them in totalitarian regimes elsewhere, some of which were mentioned by the noble and learned Lord, Lord Ackner.
Perhaps I may cite again the last paragraph of that letter, because it rounds off the correspondence rather surprisingly:
"You express disappointment. I express profound regret that it has ever been the uncomfortable duty of a judge in this country, in compliance with his Judicial Oath, to write to a Lord Chancellor refusing a demand such as the one you have made of me".
No reply came, or ever saw the light of day. There was a civil servant's acknowledgment of 5th May:
"The Lord Chancellor is … considering the issues you raise and hopes to reply shortly".
There never was such a reply. The next letter in sequence (document 20) is a letter from a civil servant, saying to Mr. Justice Wood that he (the civil servant) understood that Mr. Justice Wood was intending to retire.
I repeat that this is not a question of personal attack. It is not a question of partisan recrimination. It is bigger, greater and wider than all of us. I would suggest, if I may, as earnestly and solemnly as I can, that the Lord

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Chancellor should reflect; that he should conclude and acknowledge that the language of that letter of 19th March, with hindsight, was mischosen and mistaken, and that it will never again recur; that even at this late stage a graceful word of apology and regret would be appropriate. For our part, that would end the matter and redeem what we all recognise has been a very gloomy occasion for us all.
11.47 p.m.
The Lord Chancellor (Lord Mackay of Ciashfern): My Lords, I begin by registering my thanks to the noble Lord, Lord Irvine of Lairg, for initiating this debate in the form of the Question which he set down, and also for giving me the opportunity of placing the whole of the correspondence in this matter in the Library, with the approval of Mr. Justice Wood. I have said before that it would be quite wrong of me normally to place correspondence with the judiciary in the public domain, and I have not done so on any previous occasion except with the consent of the particular person with whom I was corresponding. I believe that it is vitally important that members of the judiciary should be able to correspond with the Lord Chancellor in full confidence that the confidentiality of their correspondence will be respected.
I personally believe very strongly and fundamentally in the independence of the judiciary. I also believe that it is vitally important for the Lord Chancellor to do all that he can to preserve the independence of the judiciary.
Judicial independence does not mean that judges are above the law. The rule of law applies to them and to their work. When Parliament in a statute provides rules to which a tribunal is subject, the judges who are members of that tribunal are, in my view, bound to apply those rules. My noble and learned friend the Lord Chief Justice, in a letter to The Times of 8th May, put that in a way which I should like to refer to. It was in connection with a sentence that had been before the court. The letter is dated 8th May 1993. The Lord Chief Justice is the writer.
"Sir, You print today an account of a case in the Court of Appeal yesterday in which the Attorney General's application to have an unduly lenient sentence reviewed was granted and the sentence was increased. The headline read, 'LORD TAYLOR ignores act to increase jail sentence'. The report went on to say:
'The Lord Chief Justice over-ruled the sentencing provisions of the Criminal Justice Act yesterday when he increased a jail term on a motor cyclist …' Those assertions were wholly wrong. The judgment of the court, as anyone who listened to it would readily have realised, explained how and why it was possible and appropriate for the court, within the terms of section 29 (2) of that act, to take into account the circumstances of previous offences because they showed an aggravating factor in the instant case. I do not ignore acts of Parliament. To suggest the contrary is not only wrong but a gross libel. I am therefore glad that you have agreed to publish forthwith a retraction and apology as well as this letter. It is true that I have made it clear I consider the 1991 act to be flawed in a number of respects. I support the broad philosophy which inspired it that a custodial sentence should be imposed only where the seriousness of the offending merits it or the protection of the public demands it. But a number of provisions in the act place arbitrary and unworkable restrictions on the discretion of the judge to deal with each case on its merits. I hope that these defects can he cured in the very near future".
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But this is the quotation which I wish to emphasise, and with which the noble and learned Lord the Lord Chief Justice concludes the letter:
"However, until they are, it is my duty and that of all the judges to apply the law as Parliament has enacted it. That duty we will fulfil".
What I asked Mr Justice Wood, then president of the EAT, in my letter of 19th March 1993, to do was to assure me that he would apply one of these rules as laid down for the EAT. This rule had been made, as the noble Lord, Lord Mishcon, said, as long ago as 1976, was modified in 1980 and was still in force in the form then modified in 1991, 1992 and 1993 - that is, in the whole period to which the correspondence referred to in the question of the noble Lord, Lord Irvine of Lairg, relates. I did not ask Mr Justice Wood to adopt my reading of the rule. Contrary to what has been suggested, I had no quarrel with his reading of the rule, as given in his lengthy letter, which preceded the letter of 19th March.
In this case the Lord Chancellor, after consultation with the Lord President of the Court of Session in Scotland, is the rule-making authority under the Act of Parliament. I considered, in view of that fact, that I was entitled to ask Mr. Justice Wood for the assurance I sought. I had already asked for it once in the earlier letter. It was not forthcoming. I asked for it again, and I asked that if he was not prepared to give me this assurance, he should consider his position. That position I had set out in the very first letter I wrote in the correspondence—Letter 7.
At the end of that letter there was a question about Rule 3 —I will come back to this in a moment—and what I was saying in the letter dated 11th March 1992 was this:
"When I met the Deputy Chief Justice on 11 February we agreed that Rule 3(2) should be implemented as soon as possible in order to remove those appeals which clearly have no merit and which do not require a preliminary hearing—a procedure, incidentally, which is not provided for in the statutory provisions. I know you recognise the quality and talents of your Registrar and implementation of Rule 3(2) would, it seems to me, provide an excellent opportunity to utilise her abilities. Of course I value the views of your membership on matters on which they have particular expertise but, in this instance, what is required is that you should implement Rule 3(2) as soon as possible, in accordance with the statutory rules under which you operate".
That is what I was asking at the very beginning of this correspondence. Your Lordships may ask why I should ask that. I think I can answer. The noble Lord, Lord Mishcon, has already read a part of the first memorandum with which this correspondence begins. In that excerpt Mr. Justice Wood is considering whether that rule is appropriate for England and Wales, and considers that it is not appropriate for reasons which he gives—that is the rule which was introduced under the authority of Parliament as long ago as 1976.
I pass now to the next document in the history. It is the one that Mr. Justice Wood sent out as Paper 5 for the agenda of the meeting of 11th March 1992, to which my noble and learned friend Lord Donaldson of Lymington and others referred. He said:
"When the EAT was set up in 1976 many Notices of Appeal raised no arguable question of law and many such cases were rejected by the Registrar under Rule 3 of the Employment Appeal

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Tribunal Rules 1976. However this power was exercised very carefully and at the outset only in the plainest case was an Appeal rejected".
So there were many such cases, but plain cases, where the appeal was rejected. The history continues and I will refer your Lordships to it in detail. I do not want to take up your Lordships' time reading it in full, but it is important that your Lordships should have it in mind because I do not accept the fundamental premise on which the speeches of my noble and learned friends Lord Ackner and Lord Oliver of Aylmerton are based, for reasons which I shall indicate as I proceed. This document, History of Preliminary Hearings System, goes on to say:
"It was felt by the majority of members in both countries"—
that is, Scotland and England; Wales must be included with England for this purpose—
"that the introduction of preliminary hearings for all appeals which either contained no question of law or where it was doubtful, would ensure that justice was seen to be done by allowing each man to 'have his day in court', a good thing—providing that it would not prove to be too time consuming. This was not a view shared by Lord McDonald".
He was the Scottish judge at that time on the Employment Appeal Tribunal.
It is an interesting fact, if I may pause to make an aside, that Mr. Justice Wood, the President of the Employment Appeal Tribunal in England, and the two Scottish judges who figure in this correspondence, Lord McDonald and Lord Mayfield, the Scottish members of the Employment Appeal Tribunal, were all holders of the Military Cross.
What happened?
"Refusals by the Registrar fell away with the introduction of doubtful appeals, on 1 October 1985".
In some of the earlier speeches to which your Lordships have been privileged to listen the suggestion was made that the whole procedure of the Employment Appeal Tribunal has been pretty well the same for quite a long period. This is an indication that a very considerable change was made in that procedure on 1st October 1985. What happened was that preliminary hearings—I am going according to what Mr. Justice Wood said—were introduced for all cases. Perhaps I should read the sentence after the one I stopped at so that your Lordships may have a complete view, as this is fundamentally important to my approach to the whole problem. He said:
"Initially both parties were required to attend but time proved that the Respondent was so rarely called to answer that the hearings were made 'ex parte' in 1987".
So it was not a long established procedure.
"The system was introduced in England/Wales for an experimental period with the full intention that if the experiment should succeed it would be considered for Scotland"—
an experiment against a background of statutory rules which required the registrar to consider these matters.
"The experiment did succeed and was shown not only to be faster than the Special Procedure"—
I have not bothered your Lordships with that. It was an intermediate experimental procedure—
"but also to be 'problem free'. It is unfortunate that at the end of the experimental period the many changes in staff at that time meant that the introduction of the PH system into Scotland did not take place. This means that members of the public in England/Wales have what is seen to be 'a fairer system' under the same Act than their counterparts who happen to live in Scotland".
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The reason it was fairer was that everyone who applied to the Employment Appeal Tribunal in England and Wales got a preliminary hearing, whether or not they had a case in law, whereas in Scotland Rule 3 was being observed and that did not happen. Your Lordships have to ask yourselves the question: if Parliament has set up a statutory system of statutory rules, is it right that in one part of the Employment Appeal Tribunal's jurisdiction that rule should be observed and in the rest of the jurisdiction it should not? The result of that is undoubtedly differences in public perception of the treatment they are getting in the same tribunal. We all know that different judges deal with matters differently. But this is much more fundamental. This is a fundamental difference in procedure between the two parts of the same tribunal, of which Mr. Justice Wood was the president of the whole tribunal. He was the president for Scotland as well as England and Wales.
It seems to be remarkable to suggest that it was so contrary to the conscience of a judge and his judicial oath that as president of a tribunal he was prepared to allow an unjust procedure to operate within his tribunal, of which he was president in Scotland, if he could not tolerate it in England. This matter is narrated at some length. I do not think that I need to refer your Lordships to the rest of that document. But, not surprisingly, it arrived in Scotland. I refer to the letter No. 5, the letter from Lord Mayfield to Mr. Justice Wood dated 6th March 1992, which says:
"One of our Members who intends to be present at the Annual General Meeting on Wednesday, 11th March, has passed to me the Agenda for that Meeting.
I was surprised, putting it mildly, to read the terms of Item 5 of the Agenda which deals, as you know, with the procedure for Preliminary Hearings. Furthermore, I am not able to accept some of the statements and conclusions referred to in the paper headed, History of Preliminary Hearings System.
I have basically two objections to that document. Firstly, as far as Scotland is concerned it does not accurately set out the position and, secondly, I certainly do not agree with the conclusions you have reached, including the sentence about a fairer system in England".
The letter goes on:
"As you know, we have never operated the Preliminary Hearing procedure in Scotland. The procedure in Scotland is (and always has been, under the two judges appointed as the Scottish Judge—Lord McDonald and myself) to follow the Employment Appeal Tribunal Rules 1980".
Those rules are set out and the letter explains that they have always done that. It is an interesting fact that on the second page of the letter he says:
"Up to 1988 the system was that the Registrar in England/Wales dealt with those applications to appeal in Scotland which were being considered for rejection under Rule 3(2)".
Therefore, according to Lord Mayfield, up to 1988 the Registrar was considering under Rule 3(2) whether or not to reject appeals. He did it not only for England and Wales but also for Scotland. In 1988 there had to be a separate provision for Scotland, the reason being that it was taking so long to get an answer from England and they needed to get on. He said:
"I have always been concerned that there should be no backlog of cases awaiting hearing. The system we employ in Scotland has worked very well, and I do not intend to change it. It seems to me that both Lord McDonald and I have been acting under the Rules, and certainly there have been no complaints in Scotland".

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It is quite clear that Lord McDonald never agreed that it should be instituted in Scotland. The letter from Lord Mayfield was acknowledged in document No. 6 and a handsome apology given by Mr. Justice Wood for what had taken place.
I want to cite one paragraph from that letter. Mr. Justice Wood said:
"As far as I am aware there is no intention whatsoever to suggest any changes in your procedures in Scotland".
These are the procedures under Rule 3(2) to which I have referred. I find it extremely difficult to see how the judge who wrote that, being the president of the tribunal, could consider that the procedures were inconsistent with his judicial oath, having regard to the fact that he was president of that tribunal.
I have already mentioned my letter of 11th March 1992, which is my entry into this correspondence. I mentioned the point that what was wanted was to return to the procedures provided by Parliament; namely, to apply Rule 3(2). A whole year before that I said:
"What is required is that you should implement Rule 3(2) as soon as possible in accordance with the statutory rules under which you operate".
My situation is that all through this correspondence I was concerned to ensure that the rules laid down by Parliament were being operated by Mr. Justice Wood and the Employment Appeal Tribunal as a whole. I was not substituting my reading of the rules for his reading or anything of that kind. I was anxious that he should apply the rules as he understood them.
Earl Russell: My Lords, I am grateful to the noble and learned Lord for giving way, but could he say whether Mr. Justice Wood ever failed to observe the rules as he, Mr. Justice Wood, understood them?
The Lord Chancellor: My Lords, it is as clear as a pikestaff. I thought that I had made it clear; but obviously I have failed. I shall try to make it clear now. Mr. Justice Wood was not applying the rule at all at the beginning of this correspondence. He made it perfectly plain, as I understand it, that he did not think that that rule was suitable for use in England and Wales. That is the passage that I read from the very first document. I do not know whether the noble Earl has the document. I regard this as extremely important because it is fundamental to my whole approach to the situation, and I should not like the noble Earl to be in any difficulty about it. On page 5 of the first document he states:
"There are remarkably few cases which are clearly frivolous on the face of the documentation. This is really a case of de minimis. In Scotland an HEO (unqualified) sends an appeal back to the appellant as disclosing no point of law if he so thinks. There is an appeal from him to the Judge. Having considered this rather different procedure I do not consider it desirable here in England and Wales nor do I like it particularly".
The procedure to which he refers is Rule 3 of the employment appeal rules—
Earl Russell: My Lords, I am sorry to intervene again, but can the noble and learned Lord show us that Mr. Justice Wood was contravening Rule 3(2) as he understood it?
The Lord
Chancellor: My Lords, he was not applying it at all. There is no question of a difficulty of
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interpretation: he was just not applying the rule at all. He thought it was unsuitable. He did not consider the procedure under the rule,
"desirable here in England and Wales nor do I like it particularly".
He was declining to apply it altogether. It was not a question of the rule as he understood it; he was not applying it at all. That is a much more fundamental point. I hope that I have made it clear now.
That was the position that I encountered. It has been said more than once that I was seeking to rule out the use of the procedures of preliminary hearings in cases that were doubtful. That is not my position and never has. been. What I asked from Mr. Justice Wood in the ultimate letter was, as I said, an assurance that he was. fully applying the rule. If he was not prepared to give me that assurance, he should consider his position.
Your Lordships can read this correspondence from end to end and you will not find any justification offered by Mr. Justice Wood, before I wrote to him on 19th March 1993, for not applying the rules laid down by Parliament that takes any account of his position in relation to the rule.
The waiting time in the EAT had by this time reached up to two years. The effect of failure to apply Rule 3 was that preliminary hearings involving the judge and two lay members were being used where the notice of application disclosed no jurisdiction in the tribunal to entertain the appeal, while people who had undoubted grounds of appeal were kept waiting for the attention of the judge and those members for an unacceptably long time. The rules approved by Parliament had provided a mechanism to hasten matters that was not, so far as I could tell, being fully used.
On 21st March I answered a Starred Question from the noble Lord, Lord Lester of Herne Hill, on an alleged instruction that I had issued to the then President of the Employment Appeal Tribunal. I was also asked to place the documentation in the Library. This I have done. As I have said, the Employment Appeal Tribunal, originally established under Section 87 of the Employment Protection Act 1975, is a tribunal set up to deal with appeals on questions of law arising from any decision of, or in any proceedings before, an industrial tribunal under a number of statutes.
The judges of the tribunal from England and Wales are nominated from time to time by the Lord Chancellor, and the judges from Scotland are appointed by the Lord President of the Court of Session. If I had wished to remove Mr. justice Wood from the presidency of the EAT, I could have done so simply by nominating others than he to be judges of the EAT. I had no intention of doing anything of the kind. In addition, non-judicial members are appointed by Her Majesty on the joint recommendation of the Lord Chancellor and the Secretary of State for Employment. The Lord Chancellor, after consultation with the Lord President of the Court of Session, appoints one of the judges as President of the Appeal Tribunal. I had appointed Mr. Justice Wood in 1988, and in fact he had served all that time as the President.
The Lord Chancellor again consults the Lord President of the Court Session—the Lord President of

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the Court of Session is undoubtedly a judicial officer; he is a full-time judge —so far as concerns Scotland when the Lord Chancellor makes rules with respect to proceedings before the appeal tribunal. My function as Lord Chancellor in approving those rules is the fundamental position which entitles me to inquire and seek an assurance, if I have any doubt about it, that the rules are being applied.
Subject to those rules—this is also important—the tribunal has power to regulate its own procedures. The tribunal is subject to the rules. It is not a question of the tribunal being able to dispense with the rules. The tribunal has power to regulate its own procedures, but only subject to those rules. The statutory provisions—the primary legislation and the rules—apply in England, Wales and Scotland.
As has been already said, the rules were made in 1976 by Lord Elwyn-Jones. I think that your Lordships will agree that there could be no fairer person or person more concerned with the rights of the uninitiated, unre-presented litigant than he. The rules were modified by my noble and learned friend Lord Hailsham in the way that the noble Lord, Lord Mishcon, described. Those rules were re-enacted by me in November 1993 in consolidated form. On each of those occasions, the rules were laid before Parliament and were made without objection.
The effect of the rules has been expressed, but as it is important for me that your Lordships understand them, perhaps I should say that Rule 3 provides that, where it appears to the registrar that a notice of appeal does not give the appeal tribunal jurisdiction to entertain the appeal, then, subject to the opportunity for the appellant to revise the notice and to express dissatisfaction with the reasons given by the registrar, no further action should be taken on the appeal. The rules are plain on that: no further action should be taken on the appeal. Where the appellant expresses his dissatisfaction in writing, the rules further provide that the papers should be placed before the President or a judge for his direction as to whether any further action should be taken on the appeal.
I have already mentioned the beginning of the correspondence by me. I go on to mention a letter of 24th January 1992 from Raymond Potter, the head of the court service in my department, which he wrote to Sir John on my behalf pointing to the clear intention in the rules that Rule 3 should be operated as a mechanism for filtering out notices of appeal which failed to establish the EAT's jurisdiction. That letter also makes quite clear the view that preliminary hearings can serve a useful purpose. It said:
"This is not meant to imply that preliminary hearings serve no useful purpose. It is clear from your [Mr. Justice Wood's] paper that, when an appeal is to go forward, the preliminary hearing provides an ideal forum for giving directions for the progress of the appeal and identifying 'fast lane' cases. Such hearings would also be useful where the Registrar was in some doubt as to the merits of a case".
I have never suggested that it is not appropriate to use preliminary hearings in a doubtful case. What I have suggested, and what I think Mr. Justice Wood agreed,
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was that it was not appropriate for preliminary hearings to be used in a case in which it was clear that there was no jurisdiction in the tribunal.
The paragraph concludes:
"Use of Rule 3 in conjunction with Preliminary Hearings might result in the best of both worlds".
In my view, that is a perfectly reasonable procedure, although it is not the procedure in Scotland where they do not have preliminary hearings at all. But in England and Wales, in my view, that was a perfectly proper suggestion.
Sir John replied on 27th January saying that he intended to raise the issue at the forthcoming annual general meeting. Your Lordships have the paper to which I have referred.
As I have already explained, the Lord Chancellor has a responsibility for making those procedural rules. I found it difficult, therefore, to accept that a single tribunal controlled by a single president should adopt such widely different attitudes to the practical implementation of the same rules as matters of practice of the tribunal.
There followed an exchange of correspondence and a series of meetings between Sir John Wood and me. Some changes in practice were made in England and Wales in May 1992, but in reviewing the statistics of the EAT at the end of 1992, I remained doubtful that the rule was being fully applied. There is no doubt that on 1st May 1992, new systems were introduced by Sir John Wood, the precise detail of which he did not describe to me but they were closer to the Rule 3 procedure than he was operating at the beginning of this correspondence, when he was not using it at all.
The fact that I remained doubtful that the rule was being fully applied led to my letter of 19th March 1993 to Sir John. In that letter, as I said, I asked Sir John, once again, to give me his assurance that he would implement Rule 3 as required by Parliament.
As I believe this is important, I should like to refer your Lordships to the precise context. The letter from Sir John Wood, to which the noble Lord, Lord Irvine of Lairg, referred, is document No. 15 of 5th March 1993. Before I deal with that document in any detail, I should refer to my letter of 5th February in which I conclude by saying:
"There is an urgent need to address the growing backlog of cases and I would be grateful if you would write to me with your assurance that you intend implementing Rule 3 in full before the end of this term".
There is no question of interpretation or anything of that sort in that paragraph. I am asking him to implement Rule 3, not as I understand it but as it is set down under the authority of Parliament.
In response to that, I received what the noble Lord, Lord Lester, described as the long and careful letter of 5th March 1993. Mr. Justice Wood says:
"I have given the legal issues which you discussed on 1 February very careful consideration, and have taken the opportunity to discuss them with some of my senior colleagues. I will set out the legal position as I (and, as I understand, they) see it"
Then follows a description of three possible outcomes:
"'The first is that the grounds stated in the notice of appeal disclose a point of law. Then, clearly, the appeal proceeds under the Rules.

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The second is that the grounds of appeal stated in the notice of appeal do not give the EAT jurisdiction to entertain the appeal. The Registrar then takes the action prescribed by Rule 3(2), which may result in no further action being taken on the appeal. But the appellant may try again. If he then shows grounds giving the EAT jurisdiction, the appeal will go ahead. If the Registrar maintains the view originally held, the appellant will be so informed and if the appellant expresses dissatisfaction in writing, the Registrar is to place the papers before the President or a judge for directions whether any further action should be taken.
If the President or judge shares the Registrar's judgment of the notice of appeal, the order can be made that no further action will be taken on the appeal. The Rules do not empower the President or judge to dismiss the appeal, and the language of the Rules shows that there is an appeal in existence even though defective".
I do not think it matters whether or not that is so.
"But that is not a problem. The appeal can either remain on the file in limbo or steps can be taken to dispose of it by dismissal before the Appeal Tribunal. This latter seems to me to be the tidier course, and will not take up time"—
that is to say, a straightforward dismissal by the tribunal on the papers. However, your Lordships will notice that Mr. Justice Wood gives me no undertaking in that respect that preliminary hearings are not used on the second outcome.
"The third possible outcome is that the grounds of appeal are stated in a way which leaves the Registrar (and if consulted, the President or a judge) uncertain whether the appellant's grounds are grounds of law or not".
Mr. Justice Wood then goes on to explain that in some detail.
"For example, a complaint that the Industrial Tribunal should not have made a certain finding may relate to the weight of the evidence … or to the existence of any evidence",
and so on.
"It was in this class of case (numerically very much larger than the second class … which led Raymond Phillips in 1977 to introduce the preliminary procedure to decide whether in one of these ambiguous cases an appellant had grounds which gave the EAT jurisdiction or not".
I accept that that is an entirely appropriate thing to do; indeed, I have never doubted its appropriateness. Your Lordships will read the letter from end to end without finding any assurance that Mr. Justice Wood intends fully to apply the nile. My response (on 19th March) was to say that I was disappointed by his reply. I said:
"I did not seek further discussion of Rule 3"—
in other words, I was not asking, and never did ask, for further description of the effect of Rule 3—
"but had sought to make it clear to you that I was not prepared to accept preliminary hearings being held where Rule 3 provides a cheap and expeditious procedure for final disposal of a purported appeal"—
and only in that case. I continued:
"I ask you again for your immediate assurance that Rule 3 is henceforth to be applied in full and that preliminary hearings are not being used where no jurisdiction is shown in a notice of appeal".
That is the phrase used in Rule 3(2). It is also the test used for the second outcome in the letter from Mr. Justice Wood of 5th March 1993. I was asking Mr. Justice Wood not to apply the rule as I had understood it. I was asking him to give me the assurance that he was applying the rule which Parliament had laid down to regulate the affairs of the Employment Appeal Tribunal. I see that my noble and learned friend wishes to intervene. I give way.
Lord Ackner: My Lords, I am much obliged. Can my noble and learned friend tell the House exactly what are his criticisms of the letter from Mr. Justice Wood of 5th March 1993?
The Lord Chancellor: My Lords, I have no particular criticism of the letter. I am saying that the letter sets out Mr. Justice Wood's understanding of the rule. I have no quarrel with that. However, what I did find absent from the letter was an undertaking by Mr. Justice Wood that he would apply the rule. That is an important difference—that he would apply the rule. Your Lordships may think that that distinction is not important, but I believe that I will be able to show the House that it is.
Lord Callaghan of Cardiff: My Lords, I am struggling to try to get to the truth of the matter. I just do not understand—and I apologise to all the other distinguished Members here who do—the status of such rules of Parliament. Is the Lord Chancellor the final arbiter of their meaning? Alternatively. is there some other body which is able to determine how the rules should be applied if there is a difference between a judge and the Lord Chancellor? For example, is there any appeal available?
The Lord Chancellor: My Lords, if there is a question of the meaning of the rule between myself and somebody else, I could have that determined in the court, if it were necessary. But this was not a question of the meaning of the rule. He was setting out the meaning of the rule at great length but I had not asked for that. What I had asked him for was an assurance that he was applying the rule, because your Lordships will remember that this correspondence started with an analysis by Mr. Justice Wood in which he said this rule was not appropriate for England and Wales for reasons which he gave.
Parliament, or at least the Lord Chancellor under the authority of Parliament, had enacted the rule for England and Wales and had done so, in its form then in operation, in 1980. Therefore the opinion of Mr. Justice Wood as to whether or not it was a good rule was of absolutely no consequence. So far as I was concerned, there was no dispute whatever between me and Mr. Justice Wood about the meaning of the rule. What I wanted to know was whether he was applying the rule, and if he was applying the rule there was no problem about him saying so. He could give me that undertaking perfectly well. But if he was not applying the rule, why not—not or else. Why not? "What is your position? You are a statutory tribunal operating statutory rules. If you are not able to give me an assurance that you are applying the rules applicable to the tribunal, what is your explanation? What is your position? Consider it very carefully", because it must be quite wrong for a judge, subject to rules laid down by Parliament, not to apply them. That is the crux of this matter.
The response from Mr. Justice Wood to my letter makes no reference whatever to terminating his position either as the President of the Employment Appeal Tribunal or as a judge. None whatever. I am not directing this correspondence to anyone except Mr. Justice Wood; and he certainly did not in this letter of reply make any reference whatsoever to his entitlement to office as a judge, or as the President of the Appeal Tribunal. What he says, in effect, is "I am not giving this undertaking because it is contrary to my judicial oath".

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I summarise as your Lordships have heard the whole letter. The point I make about that is that the judicial oath is that, "I would write to all manner of persons according to the laws and usages of this realm". So far as this is concerned, one of these laws was Rule 3 of the Employment Appeal Tribunal rules. I still do not understand why that undertaking was not given, but there was hope in his letter of 23rd April 1993 which states at the foot of page 1:
"In May 1992, in anticipation of the vast increase in the number of appeals, we introduced a new system under Rule 3".
That is when he began to move from his original position as stated at the beginning of the document to the operation of Rule 3. The letter continues:
"We would not claim that it is perfect, and with experience it is being refined".
So Mr. Justice Wood was telling me that procedures in his EAT were moving, and I was delighted with that and anxious to see that that would happen. That is the reason I gave no further response to Mr. Justice Wood, because I had seen before that he reacted quite strongly in his paper that went round the EAT to pressure being put on him to apply the rules as Parliament had enacted them. But then after a while, in May 1992, he did in fact make a move. I had hoped that the corresponding thing would happen after April 1993 and that he would fully apply the rule.
He states further in his letter:
"The Preliminary Hearing Procedures are not ultra vires".
I have never said that they were, and it is quite clear from my letter that I was only objecting to their use, or asking that they be not used, in the case where no jurisdiction was revealed on the face of the notice, which was the second outcome in Mr. Justice Wood's particular enunciation. That was the second outcome in Mr. Justice Wood's enunciation.
As has been said, shortly afterwards Mr. Justice Wood intimated his formal resignation, for reasons unconnected with this matter.
In my submission, what I was doing was well within the branch that the noble Lord, Lord Irvine of Lairg, set out in opening this debate: namely, that there were statutory rules applying to the Employment Appeal Tribunal and that the Lord Chancellor was the authority to make those rules. I believed that I was entitled to have an assurance from Mr. Justice Wood that he was applying those rules.
The noble Lord, Lord Irvine of Lairg, said in his exposition of the long letter that Mr. Justice Wood had written that in that letter he had said that he was applying the rules. But your Lordships will recall that in his article in the New Law Journal Sir Francis Purchas tells us that there was a full and useful discussion at the AGM as a result of which a new form of procedure was introduced in London as from 1st May 1992.
Therefore, the idea that this was an established system of procedure that had been working in the EAT for years is certainly not in accordance with that statement. He continued that this was in use during the summer and autumn of 1992 without, so far as Mr. Justice Wood was concerned, any apparently adverse reaction from the Lord Chancellor.
Earl Russell: My Lords, while I was looking for something, I found in Mr. Justice Wood's letter of 30th June 1992 these words:
"In order to eliminate the present differences of view about the proper understanding of Rule 3 which undoubtedly exist".
I find it hard to reconcile those words with the view that Mr. Justice Wood was refusing to apply the rule as he understood it.
The Lord Chancellor: My Lords, all I can tell your Lordships is that I was perfectly content with the rule as he understood it. The meaning of the rule as he understood it is set out in great detail in that long letter which preceded mine. The differences of view about the rule to which Mr. Justice Wood referred in the letter to which the noble Earl has just referred are differences of view which were being considered at the time he was initiating his new procedure on 1st May 1992. Once he had set that up, so far as I was concerned, there was no question about the meaning of the rule. I was not arguing about the meaning of the rule. I was arguing that the rule should be applied and asking him for an assurance that the rule would be applied.
I had been setting out the new procedure set up in May 1992, namely:
"On receipt the notice of appeal was examined by the Registrar. If a clear point of law was raised by the notice the appeal would be set down in the full hearing list. If the notice was not clear or was otherwise unsatisfactory the Registrar sent a proforma letter asking the appellant to reconsider and, if necessary, to amend his notice. It was also made clear that if no reply was received within 28 days the appeal would be deemed to have been withdrawn. If the notice of appeal, whether amended or not, was re-served, the Registrar could help an appellant in person to rephrase some aspects, but usually the file was submitted to the judge directly".
These are the important parts:
"The judge had three options: first, he could send the appeal forward to a full hearing".
There is no difficulty about that.
"Secondly, if he considered that justice required some further investigation in the presence of the appellant he could direct that it was to be listed for a preliminary hearing".
That was the third option in his long letter. The third option in this catalogue is the second option in the letter.
"Thirdly, if he took the view that the proposed appeal was hopeless the appeal would be dismissed by the tribunal on the papers without a hearing".
That accords exactly with Rule 3(2).
"However any order made in this way expressly provided that application could be made within 28 days for an oral hearing ex parte. This procedure was adopted in London from 1st May 1992".
If that is correct—and I have no reason to suppose that it is incorrect—then in cases where the appeal had been decided by the judge to be clearly hopeless, raising no jurisdiction point, and where the rule then required that no further steps would be taken, the tribunal in London was always adding that an application could be made for an oral hearing within 28 days.
I can understand in the light of that why Mr Justice Wood was reluctant to give me the undertaking that I sought because in fact he was allowing for oral preliminary hearings to take place in a case which he regarded as plainly hopeless on the papers. In my submission, Rule 3 required that no further steps should be taken in that case in the way of any kind of oral hearing.

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That is the situation so far as I am concerned. I consider that in the exercise of my office as Lord Chancellor I was entitled to seek an assurance from Mr. Justice Wood that he apply the rules which Parliament had provided; and that if he were not to give me such assurance, the position that he took up should be explained. Of course if I wished to take the matter further, I would need to resort to judicial proceedings by way of a judicial review.
Lord Donaldson of Lymington: My Lords, is the noble and learned Lord the Lord Chancellor aware that the EAT is a superior court of record and not susceptible to judicial review?
The Lord Chancellor: My Lords, I understand that it is a superior court of record. However, I believe that the question of judicial review in respect of it would have been a matter for consideration in relation to the procedure that was adopted. I did not, of course, take this further. I said that I would have to consider what else I could do about it. But I believe that if I wished to take the matter further, I would have had to consider further procedure.
I, of course, know that the Employment Appeal Tribunal is a superior court of record. That is made plain in the statutory provisions. But obviously I was anxious that the matter would be resolved. I said, and I adhere to the view, that there was hope for me in the fact that Mr. Justice Wood said in his letter that the procedures were being refined. I hoped—and hoped most fervently—that the result would be that he would be able to give me the undertaking which I sought: that the rules enacted by Parliament affecting his tribunal would be fully applied by him.
Many noble Lords have said that this has been a most unhappy debate. Your Lordships will understand that it has been a most unhappy matter for me ever since this matter arose. I certainly very greatly regret that this arose between me and Mr. Justice Wood; and certainly looking back on it now with hindsight I wish that I had expressed myself more plainly. But I am absolutely satisfied that the basic matter that I was seeking is a matter to which I was well entitled under the law of this land and was in no way prejudicial to the proper judicial independence of the judge. I am a strong believer in the independence of the judiciary individually and as a whole; and so long as I have the privilege of holding the office which I do, I shall do everything in my power to uphold that. But it is part of the principle that that independence is exercised according to and under the rule of law and I have responsibility for that also.
Some wider matters have been raised in the debate, going beyond what was mentioned in the Question. The
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office of the Lord Chancellor is a difficult one: I can attest to that. However, I do not think that it is easy to work out, against the background of our system, a good alternative that would protect, as this office does, the independence of the judiciary. I believe that it is important that in this country the Supply for the Crown is voted by the House of Commons. Therefore it is necessary that there be some person accountable to Parliament who has responsibility for the courts. I believe that the arrangement under which the Lord Chancellor, as head of the judiciary, is also responsible to Parliament for the administration of the courts is probably as good an arrangement as we can achieve. I am open to detailed suggestions as to how this might be done. I know that some of my noble and learned friends in previous incarnations have been asked to provide me with some detail of their thoughts on these matters. However, I know that it is so difficult that the thoughts in writing are still awaited.
As I said at the outset, I am extremely grateful to the noble Lord, Lord Irvine of Lairg, for raising the matter, and also for the manner in which he raised it. It was put forward in a fair manner, giving me an opportunity to explain the matter fully. I greatly regret that I have taken much longer in doing so than I should normally have liked to, but I regard the matter as of fundamental importance, as your Lordships have done. It is important that your Lordships should understand that I was not telling this judge how to do his work. All I was telling him was that I wished him to give me the assurance that he was applying the rules which had been enacted under the authority of Parliament by my predecessors as Lord Chancellor.
I utterly repudiate any suggestion that I have wrongfully interfered with the independence of the judiciary or that I have in any way misled your Lordships at any time in the answers that I have given. I thoroughly believe that my answer was as truthful and as full as I could possibly give in the circumstances of an oral Question.
I also take the view that these are matters of importance about which we need continually to be on our guard. I am extremely sorry if I have caused any offence whatever to Mr Justice Wood. If I could have thought of better language, with hindsight I would have used it. But I was thinking entirely of the position which he had as a judge in a statutory tribunal with statutory rules. That is what I had in mind, nothing else. The letter was directed to him and not to anyone else.
I am grateful to your Lordships for your patience in listening to this, I do not wish to trespass on that patience any longer.
House adjourned at twelve minutes before one o'clock.