Lords Sitting of 4 July 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 Chester.

A Levels
Lord Judd Lord Judd asked Her Majesty's Government:
Following their recent pronouncements on post-16 year-old education, what are their current plans for the future of A levels.
The Minister of State, Department for Education (Baroness Blatch): My Lords, the Government are committed to maintaining GCE A levels and A level standards, and to retaining the fundamental features of the GCE system. GCE A levels are tried, tested and popular. They serve well those for whom they were designed and provide an essential underpinning for higher education. They have a central role to play in the new post-16 qualifications framework, alongside AS qualifications, GNVQs and NVQs.
Lord Judd: My Lords, I thank the Minister for that very helpful reply. However, will she agree that in any relevant system of education, education in depth in understanding and the humanities is every bit as important for a strong economy as is functional education, and that we need a balance? Can she indicate how the learning credits would interact with the existing funding mechanisms for schools, sixth form colleges and further education; how and from which budgets they would be funded; which agency or agencies would administer them; and how the value of the credit would be fixed and maintained? Can the Minister also indicate the implications for small sixth forms, to which I know she attaches great importance?
Baroness Blatch: My Lords, the answer to the first part of the noble Lord's question is yes. The second part does not seem to have a great deal to do with the reform of A levels. As the noble Lord knows, local education authorities fund school-based sixth form education, and the Further Education Funding Council funds further education-based 16-plus learning. We have no plans to change that.
Lord Boyd-Carpenter: My Lords, is it not very difficult for my noble friend to deal with this enormously important and complex matter within the permitted time of a Starred Question? Is it not a matter for full debate?
Baroness Blatch: My Lords, it is certainly a subject for a longer debate. But the answer as to whether we intend to retain them is unequivocal. The answer is very definitely yes.
Baroness Young: My Lords, will my noble friend agree that the high standards that are achieved by those taking the current A level examinations enable the
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university system to offer a three-year undergraduate course; and that any lowering of the standards might mean that we would require a four-year university course ultimately to reach the same standard?
Baroness Blatch: My Lords, I can give my noble friend a positive answer. She is absolutely right. This is one baby that we must not throw out with the bath water. It is essential that we sustain the standards of A levels. It is also essential that, alongside those, we develop high quality vocational qualifications in order that the abilities, aptitudes and skills of young people may be developed.
Lord Judd: My Lords, will the Minister accept that on these Benches we agree that these far-reaching proposals certainly deserve a full debate; and that we believe that they are of such significance that that debate should certainly be in government time? Will the Minister agree that one of the points that we must make clear to the whole world of education is that we are not going to drift into an either/or polarised situation and that we see an essential interrelationship in the whole education system between functional learning and the humanities?
Baroness Blatch: My Lords, whether there should be a debate and when it should take place is of course a matter for people other than the noble Lord and myself. I believe that this Government have done more than any other to make sure that young people are well served through the academic: route and the vocational route, and to help those young people who wish to straddle both and have a mix of both. We aim to make sure that the framework is in place for all young people to pursue wherever their talents take them.
Lord Beloff: My Lords, will my noble friend agree that, despite the reference of the noble Lord, Lord Judd, to the humanities, A levels are of equal importance in relation to the natural sciences; and that to maintain the standard of A levels in the separate scientific subjects is a key factor in enabling universities to provide courses in engineering and related subjects?
Baroness Blatch: My Lords, I absolutely agree with my noble friend. Indeed, his point is linked to the one that was made by my noble friend Lady Young.
Baroness David: My Lords, can the Minister say why we have had so many reports, like the Higginson Report and the National Commission report, which think that A levels do not give the person taking them a nearly wide enough knowledge?
Baroness Blatch: My Lords, I profoundly disagree with what the noble Baroness said. A single framework would be a melting-pot and would not sustain high standards. We have in place distinct but equally accessible routes from school into further and higher education and the world of work. We have no intention whatever of having a single system of qualifications, and we have every intention of retaining A levels and their standards.

Dementia: Community Care
2.43 p.m.
Lord Stallard Lord Stallard asked Her Majesty's Government:
What representations they have received from the Alzheimer's Disease Society concerning community care services for people with dementia.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, my honourable friend the Parliamentary Under-Secretary of State for Health has received a number of representations from the Alzheimer's Disease Society to which he has responded.
Lord Stallard: My Lords, I had hoped that the response would be more positive. Is the noble Baroness aware that this is the beginning of national Alzheimer's Awareness Week, which highlights the problems of people suffering from dementia who live alone in the community? Some 154,000 people with dementia live alone in our community. They will need continuing care sooner rather than later. Can the Minister give any indication of the Government's intentions regarding how they will provide that continuing care, given the growing number of people who will need it?
Baroness Cumberlege: My Lords, it is provided through district health authorities and social services departments assessing the health needs of their population, setting contracts as to quality and quantity of service with trusts, mostly, mental health trusts, and other agencies and ensuring that monitoring systems are in place to see that those services are delivered.
Lord Cledwyn of Penrhos: My Lords, can the noble Baroness confirm whether or not the excellent Alzheimer's disease research unit in London has been closed and part of the staff transferred to the United States? In those circumstances can she say where research into this terrible disease is now being undertaken in this country?
Baroness Cumberlege: My Lords, I understand that the Alzheimer's Research Trust —if that is the unit referred to by the noble Lord—has recently launched an appeal to establish a multi-disciplinary research centre in Cambridge dedicated to finding a way to ameliorate the effect of the disease. There is also a lot of national research going on, principally under Professor Anthony Mann, who is looking at the quality of homes for people with Alzheimer's disease. The Medical Research Council is also conducting a large multi-centre study into the needs of elderly people.
Baroness Faithfull: My Lords, can the Minister say what is the position when a serious case of Alzheimer's disease reaches the stage when residential care is necessary but relations who cannot manage in the home are unable to pay the costs of an Alzheimer's hostel?
Baroness Cumberlege: My Lords, first there is an assessment made jointly with the social services and National Health Service professionals involved. If the requirement is that the person should go into residential
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care not under the auspices of the National Health Service, an assessment is made of the family's means and whether it can support that person in the home. Assessment of means and ability to pay are a requirement on the social services department before it levies a charge.
Lord Rea: My Lords, does the Minister agree mat her answer to that question reveals that the crux of the matter—as shown in last Thursday's debate on this very topic—is that those cases of very severe dementia who receive care through the National Health Service will receive a better and more appropriate service without any penalty at all to their families and without having to go through the assessment process? Will she accept that I can testify to how amazingly relieved those relatives are when what is in fact a subtle form of torture is lifted from them, whereas those who receive care in the community, however good that may be, will often be penalised financially? Will she further accept that that is happening at a time when National Health Service provision is not keeping pace with the increase in demand? Is it not an example of what was criticised by the Bishop of Birmingham as being uncharitable and unchristian National Health Service reforms?
Baroness Cumberlege: My Lords, I do not want to go into what the Bishop of Birmingham said except to say mat I think he misunderstood the purpose of the reforms and what they are achieving. With regard to the charges that the social services make for residential care, if the assessment reveals that a person needs health care under the National Health Service that person receives it, whether it is in a nursing home or hospital facility. Also, if the person lives in the community and needs community psychiatric nursing help or NHS support, that clearly is free. But the general principle of local authorities charging for residential care has been established since 1948. We have not in any way altered that as a result of the community care changes. It is reasonable that people should pay for the provision of services in accordance with their means. Otherwise, people with assets would be unnecessarily maintained at the expense of the taxpayer.
Lord Monson: My Lords, is the noble Baroness aware that recent research in the United Kingdom, the United States and the Netherlands indicates that nicotine has an ameliorating effect on Alzheimer's disease and that smokers are 50 per cent. less likely than non-smokers to develop symptoms of the disease? In the light of that finding, will the Government consider easing up on their anti-tobacco campaign, certainly so far as concerns the over-60s?
Baroness Cumberlege: My Lords, there may be an element of wishful thinking in what the noble Lord says. There is also an element of research. But that is for debate on another day, a day which I believe will be upon us quite shortly.
Baroness Fisher of Rednal: My Lords, is the noble Baroness aware that the fifth report of the Mental Health Act Commission asks for a serious review of the early discharge of patients and calls for urgent action as

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regards in-patient beds in urban areas? Will she accept that one of the comments made by the Bishop of Birmingham, which may relate to that issue, has been wildly applauded in the city?
Baroness Cumberlege: My Lords, every year we put more and more resources into community care. The figure stands at £1.2 billion this year; it will rise to £1.8 billion next year. Of course we look at the residential provision. But many new schemes enable people with dementia, who are very dependent, to be kept at home with enough support from social services and the NHS. Some schemes are extremely imaginative. We must get away from judging the National Health Service and the social services by the number of residential places available. We know that many alternatives are being produced by which people benefit enormously.
Lord Annan: My Lords, have the Government any plans for reviewing priorities in medical research? Enormous quantities of money are spent on research into heart disease and cancer. Well, we all have to die. But there are people who, from the age of 40, live in agony due to arthritis and related diseases. Should not more money be put into orthopaedic research rather than into research of diseases which in the end are bound to be mortal?
Baroness Cumberlege: My Lords, the director of research and development of the NHS Executive agrees with the noble Lord and is trying to ensure that more research goes into mental illness—in the past, we believe, a neglected area—and also research generally into conditions that affect elderly people.

Opencast Mining: Planning Permission
2.51 p.m.
Baroness Nicol Baroness Nicol asked Her Majesty's Government:
Whether any of the reserves at the prospective opencast sites included in the portfolios for the proposed regional coal companies have previously been the subject of unsuccessful planning applications for opencast coal mining.
The Minister of State, Department of Trade and Industry (Lord Strathclyde): My Lords, there are some sites where planning applications have been unsuccessful and that has been made clear to potential bidders. Planning permission will remain a matter for the planning authorities.
Baroness Nicol: My Lords, I thank the Minister for his Answer. Are those sites being sold on the understanding that in the future a different approach may be taken to environmental standards on the sites? Can the Minister reassure us that environmental standards are not in any way to be weakened in order to achieve a better price when the sites go on the market?
Lord Strathclyde: My Lords, I hope that I can reassure the noble Baroness by confirming that there is no intention or desire to reduce the amount of environmental protection. In my Answer I said that planning permission is a responsibility of the planning
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authorities and it is up to them to make decisions. It will still be possible to devise acceptable proposals for mining even though in the past planning permission was rejected. It will be up to the bidders to decide on the basis of the information provided.
Lord Mason of Barnsley: My Lords, is the Minister aware that the coalfield communities will once again suffer because of the planning expansion of opencast coal mining? It is the worst polluter in the land with noise, dust and the blighting of property. I wish to ask two specific questions. First, what is the extent of the opencast reserves offered for sale in the five regional portfolios under privatisation? Secondly, what is the total annual tonnage allowed by government legislation?
Lord Strathclyde: My Lords, I shall not follow the noble Lord into a debate on whether or not the opencast industry is the worst polluter of all time. I understand his anxiety, which is why we make sure that planning authorities have the final say. They can impose all sorts of conditions on the expansion of opencast mining. There are 110 opencast sites across the five regions. I cannot tell the noble Lord what the tonnage may be. The amount extracted will depend either on planning permission or on the free market.
Lord Dean of Beswick: My Lords, if, through the lack of the prospect of a good financial return, some of the sites are not wanted, and bearing in mind the scarring of large areas of the country by slagheaps from earlier coalmines, will the Minister undertake to ensure that, if the sites need to be landscaped to remove the eyesores, the cost will not fall on the communities in which they are situated? It cost the people of Lancashire, Yorkshire, North Wales and the Midlands an enormous amount to remove some of the scars left by previous private mine owners.
Lord Strathclyde: My Lords, I can assure the noble Lord that in the privatisation process there is a statutory duty on the Secretary of State to make sure that those taking part in the privatised coal industry are financially viable, and therefore the anxieties mentioned by the noble Lord will not arise.
Baroness David: My Lords, can the Minister say why the memorandum issued by the Government was compiled by Rothschild without any consultation with the mineral planning authorities? They are still unaware of the extent of what is on offer.
Lord Strathclyde: My Lords, any mineral planning authority with a specific problem can write to the Department of Trade and Industry, which no doubt will be extremely helpful.
Lord Morris of Castle Morris: My Lords, is the Minister aware that the mineral planning authorities are extremely puzzled about where the opencast reserves may be? Instead of asking them to write to him, can he say on behalf of the Government when and how he will let them know?
Lord Strathclyde: My Lords, perhaps I can reconfirm that there is no question of pre-empting the planning process. It is a difficult question to answer— where will planning permission be requested?—when we have not yet decided to whom we shall sell the rights to the coal. That is a question which must be decided by the private buyers.
Baroness Fisher of Rednal: My Lords, perhaps the Minister can give me an answer. I must be a very simple person. I thought we were closing down the coal mines —the pits—because we did not need the coal. If we do not need the mine coal, why do we need opencast coal?
Lord Strathclyde: My Lords, the noble Baroness is not a simple person and has shown her wisdom on several occasions. We believe that the best future for the coal industry is in private sector hands. We accept that there is substantial potential for opencast mining; but it must be for the private buyers, the shareholders and the market to decide from where the coal should come.

Anglo-Swiss Discussions
2.57 p.m.
Lord Finsberg Lord Finsberg asked Her Majesty's Government:
What discussions they have had recently with the Government of Switzerland.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, since the beginning of this year we have had high-level bilateral discussions with the Swiss Government on issues relating to transport, European Union and Swiss relations, defence and security policy and trade and commercial matters.
Lord Finsberg: My Lords, I thank my noble friend for that reply. Has she recently had an opportunity of conveying to the Government of Switzerland the anger and disappointment of many people at the decision of the Swiss in a referendum not to supply troops to the United Nations for humanitarian purposes? Will she suggest to the United Nations, when next she is in touch with them, that they might remove some of their institutions from Switzerland and thus deprive the Swiss of the income?
Baroness Chalker of Wallasey: My Lords, I know that the Swiss Government share the anger and disappointment of my noble friend in this matter. We must realise that the referendum was demanded by 50,000 signatories. There was only a 45 per cent. turnout and the result of a 14 per cent. majority rejecting the request is not thought to be what would have happened with a larger turnout. However, given that the Swiss are still sending civilians and keep a great deal of effort going into the international organisations, his suggestion that UN offices should disappear from Geneva is inappropriate. Some of them originate in Geneva since before the founding of the United Nations. They have a good working relationship with the Swiss authorities, who have a most accessible and efficient local administration. One must realise also that it would
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be hugely expensive and disruptive to move UN agencies out of Geneva because of one referendum. Other referenda which change the situation may occur in Switzerland. We must remember that Switzerland is the fifth largest per capita contributor to the UN programmes.
Baroness Blackstone: My Lords, following on from the question of the noble Lord, Lord Finsberg, can the Minister give the House an indication of what prospects there are for a reconsideration of this matter by the Swiss Government? The decision clearly has given rise to disappointment among other European countries. Can she also tell the House what part the UK Government will be playing in encouraging the Swiss Government to see whether they can find another way of making a contribution towards UN peace-keeping?
Baroness Chalker of Wallasey: My Lords, it must be for the Swiss Government and certainly not for us to see whether there would be an appropriate time to reconsider this matter. But, given the record of other Swiss referenda, the Swiss Government might feel it wise to leave things well alone at the present time. When it comes to Swiss policy, I understand that Switzerland will continue to provide medical staff, observers, civilian policemen and many people in other fields to the UN peace-keeping, humanitarian and observer missions. Certainly, the Swiss Government, who give invaluable support across the world, are not about to run away from their UN contributions in any way whatsoever.
Lord Simon of Glaisdale: My Lords, would it not be an advantage to extend the dialogue in order to find out from the Swiss Government more about the working of their constitution? Is it not a stringently decentralised federation firmly based on the principle of subsidiarity,, which the Prime Minister so valuably inscribed in the Maastricht Treaty?
Baroness Chalker of Wallasey: My Lords, I am very tempted to follow the noble and learned Lord down that path but it runs quite wide of the specific Question on the Order Paper. The important point about Switzerland is that, rather than just having a system of subsidiarity which works extremely well for the people of the cantons, the whole of the government process can sometimes be thrown out by this demand for 50,000 or more signatories for a referendum. While we will continue to support the concept of subsidiarity, particularly in relation to the European Union, I do not think any of us would be in favour of referenda demanded by 50,000 or more signatories.
Lord Wright of Richmond: My Lords, does the Minister agree that one Swiss organisation—namely, the International Committee of the Red Cross, which is a Swiss and not an international organisation—deserves considerable congratulations on the fact that it was until recently the only organisation which maintained its humanitarian efforts in Rwanda?
Baroness Chalker of Wallasey: My Lords, the noble Lord is correct in saying that the ICRC has played an invaluable role in Rwanda. It has had members of the

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British Red Cross working alongside it and Action Aid, another British NGO, working with it, although perhaps more on the fringes and not in central Rwanda. The whole House knows that I am always in admiration of the very brave and thoroughly effective work done by the ICRC.
Lord Avebury: My Lords, in the discussions with the Swiss on security policy which the noble Baroness mentioned, was anything said by them about the French decision not to extradite to stand trial in Switzerland two alleged Iranian terrorists who are wanted for the murder of Dr. Kazem Rajavi in Switzerland? Does she not agree that if we are to counter Iranian Government terrorism effectively there has to be a common stand by all the countries of Europe, including the whole of the European Union, against the use of this technique by the Iranians and that we should insist on the extradition of these two wanted terrorists to Switzerland as a condition of any normalisation of our relations with Iran?
Baroness Chalker of Wallasey: My Lords, the answer to the noble Lord's first question is no. I agree with him about a common stand against terrorism from wherever it may come—whether or not it be perpetrated by the Iranians. When it comes to extraditing people, one would hope that all nations would stand together in the sense of justice which is demanded in these circumstances.
Lord Stoddart of Swindon: My Lords, I hope the noble Baroness will not tell me that the question I am going to ask is wide of the Question on the Order Paper because it asks what discussions the Government have recently had with the government of Switzerland. I wonder whether during those discussions the Government discussed the economic performance of Switzerland as compared with our own. Did they ask the Swiss Government how they achieved an unemployment rate of only 2.5 per cent., the evasion of a slump, a continuing rise in their productivity and a national income per head twice as great as that in Britain? Did they congratulate the Swiss on their grand decision not to join the European Union?
Baroness Chalker of Wallasey: My Lords, it hurts me to give the noble Lord the following answer because one of the reasons why unemployment in Switzerland is so low is that women have not traditionally had the opportunities that they have in Britain to take up professions. Though the younger ones are now doing so, far fewer of the older generation of women are in paid employment. That makes a very big difference. Switzerland has always had a vibrant economy but Switzerland also has its own bank accounts. It gets the benefit of that even if we may not always approve of the way that is done. On the noble Lord's final point, Switzerland still very much hopes to join the European Union. It will be a changed European Union when it joins because by then there will be other members who joined earlier and who have widened the European Union. Perhaps then it will be more acceptable to the Swiss people.
Lord Hailsham of Saint Marylebone: My Lords, as a life member of the Swiss Alpine Club, perhaps I may ask my noble friend to explain to the noble Lord, Lord Stoddart of Swindon, that one of the features of the Swiss situation is that they took part in neither of the two world wars which have taken place in my lifetime.
Baroness Chalker of Wallasey: My Lords, my noble and learned friend always manages to give excellent answers hidden within his own question—but not so hidden. That of course is one of the reasons but it is also that Switzerland has never been tied in quite the same way as others are to the national economic performance of some of the weaker countries of the world.
The Earl of Perth: My Lords, while it may be true that in this one instance the democratic system of Switzerland has not pleased the noble Lord, Lord Finsberg, I think on the other hand that the general feeling of the House is in favour of the Swiss. When I look back at the position prior to the setting up of the United Nations at the time of the League of Nations —of which my father was the first Secretary General —the International Labour Office and the World Health Organisation, I believe that the record of Switzerland for international co-operation is almost unequalled.
Baroness Chalker of Wallasey: My Lords, the noble Earl, Lord Perth, is absolutely right. We are all very much in favour of the great support Switzerland gives to all her neighbours and particularly, as the noble Lord, Lord Wright of Richmond, said, through the ICRC in so many ways. I hope that Switzerland will continue to give that valuable support, throughout our lifetime and far beyond.

Drug Trafficking Bill [H.L.]
3.8 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee (on recommitment) on this Bill.
Moved. That the House do now resolve itself into Committee (on recommitment).—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee (on recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clauses 1 and 2 agreed to
Clause 3 [Postponed determinations]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Page 5, line 14, at end insert:
("( ) Where the court has sentenced the defendant under subsection (7) above during the specified period it may, after the end of that period, vary the sentence by imposing a fine or making any such order as is mentioned in section 2(5) (b) (ii) or (iii) of this Act, so long as it does so within a period corresponding to that allowed by section 47(2) or (3) of the Supreme Court Act 1981 (time allowed for varying a sentence) but beginning with the end of the specified period.").
The noble and learned Lord said: This amendment and Amendment No. 2 are necessary to bring into the consolidation an amendment made to the Criminal Justice and Public Order Bill during its Committee stage in your Lordships' House. That amends Section 1A of the Drug Trafficking Offences Act 1986, to remove a practical difficulty which may prevent the court from passing certain kinds of sentences on a defendant after it has decided to exercise its power under Section 1A to postpone making a determination under Section 1 as to whether a defendant has benefited from drug trafficking or as to the amount to be recovered from him, so that further information can be obtained. The Joint Committee on Consolidation Bills was informed that the Government would move amendments in the same terms to this consolidation Bill.
The second amendment to the third schedule is, as I have said, a consequential amendment to repeal the amending provision in the Criminal Justice and Public Order Bill which will be spent when the consolidation comes into force. I beg to move.
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Clauses 4 to 69 agreed to.
Schedules 1 and 2 agreed to.
Schedule 3 [Repeals]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 61, line 13, at end insert:

("1994 c.00.

The Criminal and Public Order Act1994.

Justice In Schedule 9, para- graph 26.")

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
House resumed: Bill reported with amendments.

Coal Industry Bill
3.12 p.m.
Lord Strathclyde: My Lords, I beg to move that the Commons amendments and reason be now considered.
Moved, That the Commons amendments and reason be now considered.—(Lord Strathclyde.)
On Question, Motion agreed to.
COMMONS REASON FOR DISAGREEING TO ONE OF
THE LORDS AMENDMENTS, AND COMMONS
AMENDMENTS IN LIEU OF SOME OF THE LORDS
AMENDMENTS, AND A COMMONS AMENDMENT TO
ONE OF THE LORDS AMENDMENTS
[The page and line refer to Bill 42 as first printed by the Lords.]

LORDS AMENDMENT
1 Clause 12, page 12, line 46. leave out from first ("that") to end of line 47 and insert:
("(i) that person consented to the provisions of the Scheme so far as they relate to him;
(ii) no persons to whom obligations are owed, whether in respect of contamination or other liabilities arising out of the occupation of any property used in connection with coal-mining operations by the Corporation or its predecessors, is likely to sustain loss as a consequence of the Scheme.")
The Commons disagreed to this amendment but proposed the following amendment in lieu thereof—
1A Page 13, line 7, at end insert:
"(5A) It shall be the duty of the Secretary of State, in exercising his powers under this section to make a restructuring scheme in accordance with which any person other than—

(a) a person mentioned in subsection (4) (a) to (d) above, or

(b) a body of whom all the members are appointed by a Minister of the Crown,

is to become subject to any liabilities, to have regard to the fact that it would not be appropriate for the scheme to provide for the transfer of any of those liabilities to any person except where it is reasonable to believe that that person is a person who will be able to finance their discharge.'.
Lord Strathclyde: My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 1A in lieu thereof.
As I made clear when we discussed the matter of British Coal's obligations and liabilities at the Third Reading of this Bill, the Government are sympathetic to the concerns which lay behind the amendment to Clause 12 which was passed by this House. We have given a clear assurance that we could not consider using the restructuring powers to make a transfer to a body we considered was not likely to be able to meet its obligations.
Where the transfers include mining licences, the Secretary of State will clearly be obliged to take into account the duties of the Coal Authority set out in Clause 2. Those duties include a test of financial security of mining companies. However, the drafting of the amendment which was passed by this House could have given rise to serious problems. The obligation it imposed on the Secretary of State was very wide and it would have been difficult in practice to be sure that it had been properly discharged. There would therefore have been great scope for judicial review and this would have created great uncertainty for all concerned.
As I said, the Government fully recognise the need to exercise the powers in this Bill responsibly and to protect the interests of third parties. An amendment was therefore brought forward in the other place. Like the noble Lords' amendment, this applies to transfers to bodies outside the Crown. It places a clear obligation on the Secretary of State, before he makes a restructuring scheme, to have regard to the fact that it would not be appropriate to transfer liabilities to a body which cannot reasonably be expected to be able to pay for their discharge. The Secretary of State will have to satisfy himself that the transferee would, on the basis of all the information available at that time, be in a sufficiently robust financial position to meet its obligations in the future.

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I very much hope that the House will agree with the other place on this matter. I commend Amendment No. 1A to your Lordships' House.
Moved, That the House do not insist on their Amendment No. 1 to which the Commons have disagreed but do agree with the Commons in their Amendment No. 1A in lieu thereof.—(Lord Strathclyde.)
Lord Renton: My Lords, the noble Lord, Lord Northbourne, is unable to be here this afternoon. He has asked me to apologise to your Lordships for his absence and to express his appreciation—to which I would like to add mine—to my noble friend Lord Strathclyde for the trouble which he has taken to consider this matter. We were very anxious that, when under the restructuring scheme the transferee was given the opportunities which the scheme would afford, he should also accept the liabilities. The amendment was not drafted by the noble Lord, Lord Northbourne, or by me. However, I accept the explanation which my noble friend has given. I believe that your Lordships will readily accept the alternative which he has now put forward.
Lord Morris of Castle Morris: My Lords, even to the very last gasp of this benighted Bill, the Opposition, in both Houses, and of all parties and of none, has attempted to persuade the Government to place somewhere, anywhere, on the face of the Bill, some clear statement about liabilities. But all to no avail. I yield to no one in my admiration for the skill with which the noble Lord the Minister has ducked, weaved, slipped, evaded or countered every effort we have made, every chance that we have offered, to come to some accommodation with us on this issue.
I now read, with deepening gloom but rising understanding, the final words of his right honourable friend who described the debate in another place as,
"a re-run of a re-run of a re-run of a re-run of previous debates". — [Official Report, Commons, 28/6/94; col. 699]
The fact is that nothing that anyone, anywhere, ever, could or might have said was going to alter his invincible opinion that on the question of liabilities he had, from the very beginning, got it right. This nation has had many rulers, through many centuries, and some few have achieved the immortality of a cognomen. We have had Edward the Confessor, Aethelred the Unready, and to these we may now add Eggar the Intransigent.
To the very end, in col. 700 of the Official Report, he was reiterating that the situation was so translucent, so simple that an unweaned child could comprehend it. Yet he still refused to include any statement whatever on this central issue on the face of the Bill, and sought refuge in the generality of Clause 7(3), which, by the way, appears in the Official Report as Clause 73, and which gave me a momentary pause—I nearly said "a heart attack"—because I thought that I knew my way round this Bill by now. It seemed to me to end round about Clause 65.
We have given the Government every chance to get the question of liability right. They have declined to do so. We believe in the ultimate supremacy of the elected Chamber over the Chamber, which is not elected and
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which is, as yet, unreformed. Therefore we shall not continue to oppose the position which the Government have refused to desert. Liabilities must continue to be a matter of vague promises and ministerial statements and! guidelines; they will be written not in tablets of stone but, like John Keats's epitaph, in water, and the successor companies will have to sort it out as best they can. So be it.
On Question, Motion agreed to.

LORDS AMENDMENT
2 After Clause 22, insert the following' new clause:
Designated mining museums
(". The Secretary of State shall lay before each House of Parliament a report on the administration of the financial assistance provided by him for coal mining museums during the period of three years following the restructuring date, within six months of the end of that period.")
The Commons disagreed to this amendment but proposed the following amendment in lieu thereof—
2A After Clause 22, insert the following Clause after Clause 59—
Report on financial assistance for coal-mining museums
'.As soon as reasonably practicable after the end of the period of three years beginning with the restructuring date, the Secretary of State shall prepare and lay before Parliament a report setting out particulars of

(a) the financial assistance provided during that period to coal-mining museums, so far as it has involved the making of payments for that purpose to any person by the Secretary of State;

(b) the manner in which the provision of that financial assistance has been administered; and

(c) the use to which that financial assistance has been put by the coal-mining museums which have received it.'.

Lord Strathclyde: My Lords, I beg to move that the House do not insist on their Amendment No. 2 to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 2A in lieu thereof.
Noble Lords will recall that when we last debated the Bill the Government accepted the substance of an amendment moved by the noble Baroness, Lady Lockwood, on the subject of mining museums. At that time we entered a proviso that the drafting may have to be altered. That has now happened, and I hope that the House will accept the new clause which reflects the substance of that moved by the noble Baroness. I commend Amendment No. 2A to your Lordships' House.
Moved, That the House do not insist on their Amendment No. 2, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 2A in lieu thereof.—(Lord Strathclyde.)
Lord Morris of Castle Morris: My Lords, I have examined the Commons amendment to your Lordships' amendment, Amendment No. 5.I have collated the two versions as if they were separate witnesses to a common hyparchetype in the manuscript tradition of a classical text. Indeed, it has been said of classical Greek that it is a language so subtle that it is capable grammatically of

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creating a distinction where in meaning and function there is no difference. So it is with this proposed amendment to your Lordships' amendment.
The only possible change which might be inferred or induced by preferring Amendment No. 2A above Amendment No. 2 is that the process of report might begin a few months later by virtue of the one rather than the other—that is, a few months before the three-year period ends. Given that the three-year period is widely believed in the museum profession to be too short anyway, and given that in three years' time from the point at which the Bill becomes an Act we shall have a Labour Government, the legal maxim de minimis non curat lex—the law does not concern itself with tiny things—is well applied in this case. In three years' time we shall see that these museums—which have fought so valiantly for their future under the tireless and intelligent leadership of Dr. Margaret Faull—will be appropriately supported and properly funded, as they so richly deserve.
It is unfortunately typical of the Government's attitude to the social and cultural aspects of this unnecessary Bill that they could not be bothered to ascertain and rule upon the differences in the income needs and possibilities of these three museums. Two have expensive and extensive underground workings; the other does not. It needs no ghost come from the grave to tell us that museums with large underground activities need a higher annual income than those which do not. It does not need Price Waterhouse or KPMG to conduct an expensive survey for the Government to learn that each of these museums is likely to raise about the same percentage of its income from other than government sources. It is obvious to anyone. Thus it is careless and feckless and ludicrous to award them equal shares of the Government's last-minute bounty.
Above all, there is a certain pathos in watching Her Majesty's Government rush for cover when asked why they did not, from the beginning, seek the advice of the Museums and Galleries Commission and bleating that the commission is not a statutory body. It needed only some such phrase as, "After consulting the Museums and Galleries Commission", or, "Upon the advice of the Museums and Galleries Commission", to allow the Government to act in this matter of distribution on the best advice that they could possibly get, which they are now paying quite expensively to ignore.
So it will cost Her Majesty's Government £1 million to climb out of a hole that they stumbled into by their original ignorance and subsequent inadvertence. I feel perfectly justified in looking this gift horse in the mouth, and pronouncing that its teeth are not good, and that preventive dentistry would have saved us all a lot of trouble.
Lord Ezra: My Lords, when Amendment No. 2 was passed by your Lordships, it was made clear by the Government that they might want to amend it for technical reasons. We have the amendment before us and I can see nothing wrong with it. However, I should like to read into it rather more than it says. It states that at the end of a three-year period there will be a report
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telling us how the museums have fared. I hope that that means that the whole issue will be kept under review for the whole of that period and that the Government are well aware of strong feelings that were exhibited by noble Lords on all sides of the House about the importance of the museums and of their achieving the necessary funding to allow them to continue with their very valuable work.
Baroness White: My Lords, what irritates me about the new clause that we are now asked to accept is the phrase,
"As soon as reasonably practicable".
Those of us who have suffered from the Government's ideas of what is "reasonably practicable" in their handling of, for example, the national parks, feel very doubtful about how long it will really take the Government—should they by any chance still be in office—to produce the report in what they consider to be a "reasonably practicable" time, which to most of us will mean an intolerable delay.
Lord Strathclyde: My Lords, with the leave of the House, I sense an interesting confusion among the Opposition. They say either that the Conservative Party will still be the party of government, in which case they believe that we shall not come forward smartly with our proposals, or that we shall not be the party of government, in which case the party opposite will deal with all these problems with great munificence.
I thank the noble Lord, Lord Ezra, for declaring his support for the Bill. The noble Baroness, Lady White, says that she has been stung in the past by the phrase,
"As soon as reasonably practicable",
particularly on the matter of the national parks. I must advise the noble Baroness that the national parks issue needed primary legislation and I venture to suggest that nothing here will require primary legislation. I sensed that the noble Lord, Lord Morris, was enjoying himself. His language has certainly been colourful—and I mean "colourful" in the purest sense of that word.
I hope that I can leave the House in no doubt as to the Government's great concern and commitment towards the museums, not least because of the fact that we have made available a substantial amount of money. We shall discuss with the museums exactly how the money is to be spent.
On Question, Motion agreed to.

LORDS AMENDMENT
23 Schedule 5, page 102, line 50, leave out sub-paragraph (4) and insert:
("(3A) The modifications of an existing scheme that may be made by regulations under this paragraph shall include modifications making such provision as the Secretary of State considers appropriate for cases where either—

(a) there are assets of the scheme representing a relevant surplus, or

(b) the assets of the scheme are insufficient for meeting pension obligations under the scheme.

(3B) The modifications mentioned in sub-paragraph (3A) above may contain—

(a) provision for a relevant surplus, and the assets representing it, to be apportioned between—

(i) the part (if any) of the surplus which is to be retained in a reserve ("an investment reserve") as an asset of the scheme, and

999

(ii) the remainder ("the distributable part") of the surplus;

(b) provision for the management of assets representing an investment reserve and for the manner in which any such assets are to be applied;

(c) provision for income accruing in respect of assets representing an investment reserve to be added to the reserve;

(d) provision for the manner in which assets representing the distributable part of a relevant surplus are to be applied; and

(e) provision, for the purposes of any provision under paragraphs (a) to (d) above, for modifying any decisions as to the way in which relevant surpluses determined as at times before the restructuring date, and the assets representing any such surpluses, are to be treated.

(3C) The provision as to the apportionment of any surplus or assets to an investment reserve that may be contained in modifications made by virtue of sub-paragraph (3A) above shall not include any provision authorising the allocation to such a reserve of any part of a surplus determined as at a time after 31st March 1994, or of any assets representing any part of such a surplus, except where the allocation is made for making good amounts that would have been comprised in the value of the reserve if assets representing any part of it had not been applied from the reserve in meeting a deficiency that arose as at any time by reason of the other assets of the scheme having been insufficient as at that time for meeting pension obligations under the scheme.
(3D) The provision as to the application of assets representing an investment reserve that may be contained in modifications made by virtue of sub-paragraph (3A) above shall include provision for the Secretary of State to become entitled where—

(a) any such arrangements as are mentioned in sub-paragraph (5) below have been entered into in relation to pension obligations under the scheme in question, and

(b) the value of the assets representing the reserve exceeds the aggregate amount required for the purposes for which the reserve has been retained,

to assets of the scheme representing the amount of the excess or, where those purposes have ceased, the value of the reserve.

(3E) The provision as to the application of assets representing the distributable part of a relevant surplus that may be contained in modifications made by virtue of sub-paragraph (3A) above shall include provision for the Secretary of State to become entitled where—

(a) the surplus is one determined as at a time on or after 31st March 1994, and

(b) any such arrangements as are mentioned in sub-paragraph (5) below have been entered into in relation to pension obligations under the scheme in question,

to assets of the scheme representing no more than one half of the distributable part of that surplus.")

The Commons agreed to this amendment and proposed the following amendment to it—
23A Schedule 5, line 33, leave out 'that' and insert 'which (apart from any entitlement for which provision is made by virtue of sub-paragraph (3D) below)'.
Lord Strathclyde: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 23A to Lords Amendment No. 23. Amendment No. 23A clarifies the operation of the investment reserve under the guarantee arrangements for the coal pension schemes. The amendment is consistent with policies agreed with the trustees and has their support. It provides that any payments from fund surpluses into the investment reserve to make good previous deficiency payments made out of the reserve should be set equal to those deficiency payments plus or minus any gains or
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losses which would have accrued to the reserve if (he deficiency payments had not been made. I commend the amendment to the House.
Moved, That the House do agree with the Commons in their Amendment No. 23A to Lords Amendment No. 23.—(Lord Strathclyde.)
Lord Morris of Castle Morris: My Lords, those noble Lords, and those right honourable and honourable ladies and gentlemen in another place who worked so tirelessly and vigilantly for the protection of pensioners when the rail transport Bill recently endured such a rough ride through the Houses of Parliament, have placed the miners considerably in their debt. For I have heard it said in private, and from a wide variety of sources, that after the prolonged and savage mauling the Government took on the question of pension provision for railway workers, the word went out that this must never be endured again, especially on the matter of coal privatisation. The note was, "We cannot go through that again, so, whatever they want, give it to them''.
Nevertheless, even supposing that such behind-the-scenes orders were ever issued, it has taken the trustees of the two main pension funds in the mining industry a long time and a great deal of effort to ensure that just and proper provisions are enshrined in law for all workers in the mining industry. The Government's negotiators did not give in easily or soon.
When this Bill left your Lordships' House we thought the clauses relating to pensions were sufficient, agreed and watertight. It seems that in this one particular we were wrong, and the Government have come back to your Lordships with a correction in the drafting. None of us picked it up last time; we are all equally to blame; this amendment to your Lordships' amendment puts things right. We support it.
Lord Ezra: My Lords, I too support the amendment. I should like to add that I think that the way in which the pensions issue has been dealt with in the case of the coal industry has been a model for such discussions. I hope that it will be followed in the future, should such similar circumstances arise, as opposed to the unfortunate altercations that we had over the railway pension scheme, in which the noble Lord, Lord Peyton, played such a part. I should like to feel that one aspect at any rate of this privatisation measure which will fill people with satisfaction will be the way with which the pensioners have been dealt.
3.30 p.m.
Lord Peyton of Yeovil: My Lords, those words of the noble Lord, Lord Ezra, must be music in the ears of my noble friend. My noble friend deserves more credit than he was given by the noble Lord, Lord Morris of Castle Morris. I feel sure that my noble friend played a major role—perhaps enlightened self-interest had some part to play—having listened to protracted and what should have been unnecessary debates on railway pensions, in saying that such a thing would not recur. We owe him a debt of gratitude.
On Question, Motion agreed to.

LORDS AMENDMENT
37 Schedule 8, page 117, line 29, at end insert:
("Terms on which orders to be exercised

.—(1) The owner of the interest against whom the compulsory rights order (in this paragraph referred to as "the owner") has been made shall be entitled to—

(a) payment on the basis of either—

(i) the open market value of the rights granted as would have been fair and reasonable if the agreement had been made between a willing grantor and a willing grantee, or

(ii) the compensation for the losses caused to him assessed in accordance with sections 17 to 23 of this Act,

whichever is the higher, and

(b) secure such terms, guarantees and other security from the person entitled to occupy the land in respect of which the compulsory rights order is conferred (in this paragraph referred to as "the operator") as are necessary to protect the owner from any loss, damage, claims or other costs related to the exercise of the compulsory rights order.

(2) For the purposes of sub-paragraph (a) (i) of this paragraph, the assessment of the open market value shall take into account—

(a) the basis on which the operator has entered into agreements with the owners of other interests to permit the working of the same coal deposit, and

(b) the basis on which the owners of other interests have entered into agreements with the operator or other mining companies for the extraction of coal on comparable sites.

(3) For the purposes of sub-paragraph (a) (i) of this paragraph, the fact that the operator is in or to be in, a special position by reason of his having secured the licence under Part II of this Act to the exclusion of others shall be ignored.")

The Commons disagreed to this amendment but proposed the following amendments in lieu there of—
37A Schedule 8,page 126, line 16, after 'section' insert:

'(a) at the beginning there shall be inserted the words 'Subject to subsection (3A) of this section,"; and

(b)".

37B Page 126, line 17, at end insert:
'(5) After that subsection there shall be inserted the following subsections—
"(3A) Where—

(a) any compensation is payable for any year by virtue of this section in respect of any holding, and

(b) the amount of that compensation falls to be calculated in accordance with section 18 of this Act by reference to the market value of rights which, if the compulsory rights order were not in force, could not be conferred for that year or any part of it except by or with the consent of one or more persons who are included in the persons directly concerned but do not fall within subsection (3) of this section,

the entitlement to that compensation shall be apportioned, according to the extent to which those rights could not be conferred for that year or part of a year without their participation or consent, between those persons and any person falling within that subsection.

(3B) Subject to subsection (3C) of this section, the persons entitled under subsection (3A) of this section to a share of any compensation shall include persons whose participation in or consent to the conferring of any right would be required if the right were conferred at some time after the beginning of the year or part of a year in question; and any apportionment under subsection (3A) of this section shall take account of the length of the period for which any person is, during that year or part of a year, a person without whose participation or consent any right could not be conferred.
(3C) No person shall be entitled under subsection (3A) of this section to any share of any compensation in respect of any such easement or right as might give rise to an entitlement to compensation under section 31 of this Act."
(6) Subsection (4) of that section shall cease to have effect.
(7) Sub-paragraphs (5) and (6) above shall not apply in relation to any compulsory rights order confirmed before the restructuring date.
Calculation of compensation
15A. In relation to any compulsory rights order confirmed on or after the restructuring date the following section shall be substituted for section 18, that is to say—
"Calculation of compensation under section 17.
18 .—(1) The compensation payable for any year in respect of a holding to which section 17 of this Act applies shall be a sum equal to the annual borrowing cost for that year of the market value of the rights conferred by the compulsory rights order in relation to the holding.
(2) For the purposes of this section the market value of any rights conferred by a compulsory rights order shall be equal to the amount which, as at the date of entry, would (apart from the order) represent the fair market price, as between willing and independent parties, for the grant of those rights by a person entitled to grant them and for the period for which the order is to have effect.
(3) In calculating for the purposes of this section the fair market price for the grant of any rights, due allowance shall be made for any entitlement to compensation which may arise, otherwise than by virtue of section 17, under any of the provisions of this Act.
(4) For the purposes of this section the annual borrowing cost for any year of any amount ('the market price') is the aggregate sum which would fall to be paid in that year by way of payments of interest and re-payments of capital if the market price had been borrowed on the date of entry on terms which—

(a) required interest to be paid and capital to be repaid by way of the relevant number of equal annual instalments; and

(b) provided for interest on outstanding capital to become due immediately before the time for the payment of each instalment, at an annual rate equal, as at the entry date, to the rate prescribed under section 35(8) of this Act;

and in this subsection 'the relevant number' means the number of years for which, when it was confirmed, the compulsory rights order was to have effect.

(5) Nothing in section 17 of this Act or this section shall confer any entitlement to compensation in respect of the annual borrowing cost of—

(a) any amount representing the value of any person's interest in coal, or

(b) any amount representing the value of any opportunity arising by virtue of an interest or right in or in relation to any land to obtain or make use of any rights to win, work or get any coal.

(6) Where the period for which a compulsory rights order is to have effect is extended under this Act, section 17 of this Act and this section shall have effect in relation to the additional period as if the rights conferred for that period had been conferred by a new compulsory rights order."
15B. Sections 19 and 20 (additional annual compensation and special compensation for cost of removal) shall not have effect in relation to any compulsory rights order confirmed on or after the restructuring date.'.
37C Page 126, line 24, leave out 'In section 23A(4)' and insert:
'(1) In section 23A'.
37D Page 126, line 25, after 'agriculture)' insert:

'(a) for the words "sections 18 and 19", wherever they occur, there shall be substituted "section 17"; and

(b) in subsection (4)'.

37E Page 126, line 27, at end insert:
'(2) Sub-paragraph (1) (a) above does not apply in relation to any compulsory rights order confirmed before the restructuring date.'.
37F Page 127, line 28, leave out sub-paragraph (2) and insert:
'(2) In subsection (2) of that section, for "(3) and (4) of section seventeen of this Act, the provisions of sections eighteen to twenty of this Act" there shall be substituted "(lA)and(3) to (3B) of section 17 of this Act and the provisions of section 18 of this Act".'.
37G Page 128, line 6, leave out second 'subsection' and insert 'subsections'
37H Page 128, line 11, after 'order' insert:
'(2B) For the purposes of subsection (2) of this section the annual value of any land for any year shall be taken to be an amount equal to the annual rent at which, immediately before the beginning of that year, that land, in the appropriate circumstances, might reasonably have been expected to be let from year to year under a contract of tenancy whereby the tenant undertook—

(a) to pay all usual tenant's rates and taxes and to bear the cost of the repairs and insurance and the other expenses, if any, necessary to maintain the land in a state to command that rent, and

(b) not to carry out any operations on the land, or to make any change in the use thereof, for which permission would be required under Part III of the Act of 1990 or Part III of the Town and Country Planning (Scotland) Act 1972, except any operations for which such permission has been granted and is in force immediately before the beginning of that year.'

371 Page 128, line 12, leave out from 'section,' to end of line 13 and insert for the words before paragraph (a) there shall be substituted—
"(3) For the purposes of subsection (2B) of this section, the appropriate circumstances—".'.
37J Page 134, line 10, leave out 'In paragraph 31 of Schedule 6' and insert:

'(l)In paragraph 1 (2) of Schedule 6 (changes in right of occupation), for "seventeen to nineteen" there shall be substituted "17 and 18".

(2) In paragraph 2 of that Schedule (new tenancies), for "seventeen to twenty" there shall be substituted "17 and 18".

(3) Paragraphs 8 and 9 of that Schedule (which relate to compensation under section 19 but are applied in relation to compensation under Schedule 5) shall cease to have effect except so far as applied by paragraph 10 of that Schedule.

(4) In paragraph 26 of that Schedule (apportionment in respect of parts of a year) after sub-paragraph (4) there shall be inserted the following sub-paragraph—

"(5) This paragraph shall not apply in relation to any compensation the entitlement to which is apportioned in accordance with section 17(3A) of this Act."

(5) In paragraph 31 of that Schedule'.

37K Page 134, line 13, at end insert:
'(6) Sub-paragraphs (1) to (4) above shall not apply in relation to any compulsory rights order confirmed ' before the restructuring date.'.
37L Page 156, line 51, at end insert:

'6 &7 Eliz. 2.C.69.

The Opencast Coal Act 1958.

Section 17(4). Sections 19 and 20. In Schedule 6, para-graphs 3, 7, 12 and 22.'

37M Page 158, line 11, at end insert:

'1986 c. 63.

The Housing and Planning Act 1986.

In Schedule 8, paragraph 8.'

Lord Strathclyde: My Lords, I beg to move that the House do not insist on their Amendment No. 37 to which the Commons have disagreed but do do agree with the Commons in their Amendments Nos. 37A to 37M in lieu thereof.
Amendment No. 37 seeks to provide that compensa-tion for compulsory rights orders made under the provisions of the Opencast Coal Act 1958, as amended by this Bill, should be based on market values. In view of the strong support for that amendment, the Government have accepted the principle. But the specific amendment approved by this House would have been very difficult to put into practice within the framework of the Opencast Coal Act, and the amendments in lieu which have been agreed by another place in our view provide a practical and effective replacement. I hope that that meets with the approval of the House. I commend to the House Amendments Nos. 37A to 37M.
Moved, That the House do not insist on their Amendment No. 37, to which the Commons have disagreed, but agree with the Commons in their Amendments Nos. 37A to 37M in lieu thereof.—(Lord Strathclyde.)
Lord Morris of Castle Morris: My Lords, when we debated the amendments proposed by the noble Lord, Lord Stanley, at Third Reading and I saw the Government Benches steadily filling as the day wore on with noble Lords, not all of whom were immediately recognisable to me either by face or name, I felt, as did Richard III at the Battle of Bosworth, when, in Act V, scene in of Shakespeare's play, he says:
"What says Lord Stanley? will he bring his power?"
For he did, and they came. And they won a famous victory by 83 votes to 72 and gave us an agreeable climax to what had been a moderately satisfying day.
So we hoped it might be when your Lordships' amendments were discussed in another place on 28th June. Alas, it was not to be: as I read the account of the debate in the official record I found myself steadily relapsing into my usual gloom about the Bill, and, in particular, about the prospects for our countryside, threatened by opencast mining as it is now visually despoiled by acres of oilseed rape.
In speaking to Amendments Nos. 37 and 37A to 37M, I should like, with the permission of the House, to include what few things I have to say about Amendments Nos. 38 and 38A and get them out of the way. I note that the Minister in another place, in tones which suggested that he was giving us the crown jewels, announced the few sad compromises he was mindful to make. "This afternoon", he cried,
"my honourable friend the Minister for Local Government and Planning announced his intention—in the light of the response that he has received"—
we waited with breath that could not have been more bated—
"of removing the reference to the national interest in MPG3".

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The official record does not record any spontaneous outburst of applause, Order Papers were not waved. Honourable Members were not assisted from the Chamber in a state of shock. So much is clear from the Minister's next sentence:
"I am sure that that announcement will be widely welcomed"—
an obvious feed line to his own supporters, which seems to have been ignored, for he went on with increasing desperation:
"and I consider it a useful clarification".—[Official Report, Commons, 28/6/94; cols. 712–3].
Well, he had to say something, I suppose. But it is thin, and weak, and watery. The amendment moved by the noble Lord, Lord Stanley, provided for compensation based on market values and made clear and simple arrangements for it. The Minister was not having any of that. At col. 713 he stated,
"We have accepted the principle that lies behind that amendment, but we have sought to table a practical and effective replacement for it".
Brisk and bracing words, my Lords, are they not? But the Minister omitted to show us in what ways the amendments moved by the noble Lord, Lord Stanley, were impractical or effective. He assured us that the coal in the ground belongs not to the landowner but to the nation. That part of his amendment is consistent with the principles established by the decision of BP v. Ryder in 1988. He ignored the obvious facts that in the future opencasting will be a continuing and growing problem in this country, that he was offering a few concessions to landowners but none at all to the public who will have to suffer the dirt, the dust, the noise, the destruction and the inconvenience, and none at all either to the local authorities which will have to pick up the bill for the road repairs.
Your Lordships' House will not be surprised that I find that view less than totally agreeable. But soon after that the Minister sat down; and so shall I.
On Question, Motion agreed to.

LORDS AMENDMENT
38 Schedule 8, Page 117, line 29, at end insert:
("Conditions to be satisfied before a compulsory
rights order is made
. A compulsory rights order shall not be made or confirmed unless it is shown that it has not proved practicable to obtain the right by private arrangement because the owner has acted unreasonably and that —
(a)(i) the coal in the relevant land is required to supply a market which cannot adequately be met from other sources which are currently being worked or capable of being worked where a coal-mining company has secured all the relevant planning consents and has acquired the necessary interests in land, and
(ii) the amount of marketable coal to be extracted as a result of the compulsory rights order being made exceeds 250,000 tonnes; or
(b) there is a present likelihood that the coal will remain unworked on account of other development proposed on the relevant land; or
(c) the persons with power to grant the right, or any of them, cannot be ascertained or cannot be found; or
(d) the persons from whom the right must be obtained or any of them, have not the necessary powers of disposition, whether by reason of defect on title, legal disability or otherwise.")
The Commons disagreed to this amendment for the following reason—
38A Because the Commons do not consider it appropriate that the circumstances in which a compulsory rights order may be made or confirmed should be confined to those set out in the said Amendment made by the Lords.
Lord Strathclyde: My Lords, I beg to move that the House do not insist on their Amendment No. 38 to which the Commons have disagreed for the reason numbered 38A. Amendment No. 38 would have the effect that no CRO could be made so long as other sources of supply were available, and as it does not distinguish properly between UK coal and imports it might well have the effect that no CRO could be made so long as imports were available. As there is a ready availability of all grades of coal on world markets, that is as much as to say that no CRO could ever be made.
The question is the circumstances in which compulsory rights orders might be made. The Government have provided strong safeguards to ensure that the interests of landowners will be properly taken into account, in each case, before that action can be taken. The intention is that CROs will not be made unless all reasonable efforts have been made to secure the rights by agreement. We have set out the framework which we think is appropriate to govern the availability of CROs in the transitional period, while we review the existing regime for compulsory rights. We think that provides adequate safeguards for the making of CROs. Together with the intention of the Secretaries of State not to confirm orders unless, in each case, it would be in the public interest for them to do so, we think that the Government have taken the right steps to ensure that the proper balance will be struck in the use of those powers between private and public interests.
The noble Lord, Lord Morris of Castle Morris, was reminded of King Richard. I must say that when the vote on the amendment moved by my noble friend Lord Stanley was lost, I felt more like King Lear:
"As flies to wanton boys, are we to the gods;
They kill us for their sport".
The gods in this case were our Back Benchers.
I hope that those who voted for the amendment are appeased; I hope that they are content with the safeguards. I therefore commend the Motion to your Lordships.
Moved, That the House do not insist on their Amendment No. 38, to which the Commons have disagreed for the reason numbered 38A.—(Lord Strathclyde.)
On Question, Motion agreed to.

Deregulation and Contracting Out Bill
3.40 p.m.
Lord Strathclyde: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Strathclyde.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair]
Clause 24 [Controls on London lorries: replacement of discretionary exceptions]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 176C:
Page 21, line 37, after ("applies") insert ("provided that the Secretary of State has consulted the London borough councils and the Common Council of the City of London").
The noble Baroness said: With Clause 24, we come to a debate on the London lorry ban. On Second Reading, the Minister, the noble Lord, Lord Mackay of Ardbrecknish, spoke some welcome words. He said:
"We propose to maintain the ban on lorries in the London area at night and during weekends".—[Official Report, 6/6/94; col. 1048.)
Those words were welcome to your Lordships and to those outside this Chamber who are affected by heavy lorries in London. They fear that, although the words on the face of the Bill do not provide for the abolition of the scheme, that will be the effect; or, if not its abolition, at least its severe emasculation. Unless the scheme is easily enforced, it is unlikely that the ban will be effective.
What is the problem with heavy lorries? In 1983, the report of the committee investigating heavy lorries in London, under the chairmanship of Derek Wood, asked:
"If lorries provide the service the public wants",
which refers to bringing goods into our shops and so forth,
"why should people dislike them so much?".
That is an interesting question. The report went on to state:
"The heavy lorry is regarded by many as an alien intruder … From what we saw and heard we are quite satisfied that there is a number of areas in London where the nuisance and disruption caused by heavy lorry traffic is such as to reduce living conditions to a level well below what most people would regard as acceptable. This observation is not confined to one or two notorious roads which are constantly referred to in debates on this subject. There are many similar roads, particularly in inner London, and the problem cannot be lightly dismissed".
The report further stated that there is an impression that complaints about lorries come from a handful of unrepresentative environmentalists and politicians—I am happy to be lumped with the environmentalists— and added:
"In this they are seriously and badly wrong".
Indeed. Only yesterday I was contacted by a councillor in a north London borough whose ward covers a major through-route. Her residents are deeply worried about the spread of lorries from the trunk road. Spontaneously —by which I mean without the instigation of a politician or, indeed, an environmentalist—several hundred signatures were put to a petition against a change to the ban; and that within a very short time. That is only one example of the public's anxiety about lorries in London.
Perhaps I may take a moment of the Committee's time to explain the scheme. A number of the amendments on today's Marshalled List relate to the
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ban, and I promise that I shall not speak at such length on others that stand in my name. However, I wish to set the context.
The London Boroughs Transport Scheme is operated and financed by 20 of the 32 London boroughs and by the City of London. Boroughs which are sandwiched between those that subscribe also benefit from the scheme. It administers a traffic order made in 1985—the: so-called "London lorry ban"—whose objective is to reduce nuisance, pollution and the hazards brought about by heavy goods vehicles which travel through London. The order restricts heavy goods vehicles without exemption permits from the excluded roads, which are mainly trunk roads, from 9 p.m. to 7 a.m. on weekdays and from 1 p.m. on Saturday for the rest of the weekend. The order allows; for fines of up to £1,000.
The scheme covers vehicles above 16½ tonnes, and exempted vehicles must have permits fixed in the cab and exemption plates fitted. The scheme issues permits to allow vehicles into the restricted areas. It currently covers 30,000 vehicles operated by 3,300 hauliers. The scheme has only five enforcement officers but, in co-operation with the Metropolitan and City police forces, it brings about 2,000 prosecutions per year. Boroughs which are not in the scheme administer the traffic order using their own system or they accept the LBTS permits. One of the requirements of the permit scheme is that vehicles, excluding vehicles plated at 17T, must be fitted with air brake silencers where practicable.
In January this year, the Department: of Transport announced that it intended to abolish the permit scheme but to retain the requirement that heavy vehicles which enter London at night must not use restricted streets unless they have necessary business there. The Government's stated policy is to reduce the burden on the haulage industry which is imposed by the permit system and to release those resources for better enforcement. If the permit scheme were abolished, enforcement of the traffic order would thus depend on the police stopping lorries for investigation by the LBTS enforcement staff. We shall discuss enforcement later.
The London Boroughs Transport Scheme commissioned a survey by Touche Ross. It found that most haulage firms disliked the bureaucracy of the scheme but did not object to the scheme per se because they appreciated the underlying reason for its existence. Rather than being negative, the hauliers made a number of suggestions to improve the scheme. They included, for instance, issuing permits lasting two or three years to operators who have a good compliance record and allowing more flexibility on routing, perhaps allowing non-approved routes away from the trunk roads and permitted roads by prior arrangements where special circumstances exist. That does not amount to the abolition of the permit scheme.
Furthermore, Touche Ross found that if the permit system were abolished the total sum that would be saved each year by the haulage industry would be some £437,000.I ask Members of the Committee to consider whether, across the whole industry, that sum is of such concern when set against the benefits of the scheme.
Having explained briefly how the permit scheme operates, perhaps I may refer to Amendment No. 176C. It requires the Secretary of State to consult with the London borough councils and with the City of London. I hope that, of all the amendments tabled today, this is one which the Minister can readily accept.
Earlier this year, I tabled a number of Questions for Written Answer. On 15th March I was informed that:
"full consultation … will take place in due course".—[Official Report, 15/3/94; col. WA6]
In another Answer I was also informed that:
"Formal consultation with the police and other interested parties … will take place in due course".—[Official Report, 15/3/94; col. WA6.]
On 10th February I was informed that:
"If the Secretary of State for Transport were to propose to use the powers contained in Clause 24 … he would do so only after full consultation with all interested parties".—[Official Report, 10/2/94; col. WA135.]
I do not for one moment doubt the integrity of the Minister who gave that Answer and I hope that we shall be given similar assurances today. However, I believe that the matter should be contained on the face of the Bill. As was said previously, consultation means listening and perhaps changing one's mind in the light of representations. It is not a mere cosmetic exercise.
I hope that the Minister will tell the Committee that the Government will accept the amendment and the fact that the ban is an environmental success. I hope that they will not look to the police, whose scarce resources need to be used in fighting crime, but will allow the boroughs cost-effectively to continue their efforts to protect their own residents and to seek the balance between the interests of the freight industry and the peace and quiet of Londoners. I beg to move.
Lord Clinton-Davis: I rise to support the amendment moved by the noble Baroness. I speak also to Amendment No. 177M which stands in my name.
I believe that it is essential to have very specific provisions relating to consultation on the face of the Bill for a number of reasons, partly connected with the Government's history of opposition to that scheme back in 1986; partly because of the way in which they have gone about the business of producing the provisions that are now before the Committee; and partly because I do not accept that this Government have an immaculate record with regard to the desirability of full consultation.
Of course, I accept the basic proposition advanced by the noble Baroness. The Committee will be indebted to her for her explanation of the scheme which means that the rest of us do not have to go into that specific detail. I believe that she was absolutely right to give that explanation as the backcloth to this debate and, indeed, to the others which are to follow.
The Minister will have to explain why the Government opposed the ban in 1986. That is absolutely crucial, because the Minister will be asking us to accept the Government's bona fides at this stage. But in fact it took a judicial review, in which the Secretary of State was found to have acted outside his powers in trying to stop the ban, before the scheme could come into effect on 31st January 1986. Therefore, we want to know why
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the Government, acting complicitly of course, in those days as now, with the road haulage industry wanted to oppose the ban.
That ban was the result of an outstanding piece of work on the part of a committee chaired by Mr. Derek Wood, QC, the report of which was published in 1983. Unlike the way in which the Government have gone about consultations in this case—if one can deign to call them that—the committee received written representations from more than 2,500 people, mainly individual householders or members of residential or environmental groups. Before the committee published its report, it sat in public for 39 days and received evidence from 153 witnesses. That was the way in which the night and weekend lorry ban was perceived and eventually acted upon.
That ban has been acclaimed widely because it has met the requirements of Londoners. They are unlikely to be moved by the considerations which have moved the heavily biased task force. That task force was dominated overwhelmingly by the road haulage industry, the Freight Transport Association and building and roadbuilding construction people. Did the Minister expect them to say that they are now in favour of a ban which they have opposed vigorously over the years; that they now wish to see it become a great success; and that they wish to improve it? That is not at all consistent with what has happened. The Minister well knows that.
The agenda was set very clearly by the task force because mat is what the Government wanted. As I have already indicated, the Government did not favour that ban. I part company from the noble Baroness in one respect; namely, that she seemed to accept the Government's bona fides in that regard, while, frankly, I do not. It is true that she went on to say that the effect of the Government's proposals would be to emasculate the scheme. That is precisely what they have in mind because it does not suit their paymasters. Many of the people who sat on the task force are representative of organisations which donated very heavily to the Conservative Party and which are biased in favour of doing away with the scheme.
Secondly, why did the Government not think it appropriate to consult the London boroughs? Why were those issues, with their manifestly important considerations which are wider than the burden on industry— concerning safety, the environment and a whole host of matters which are highly germane to residents in London—not addressed before the Government decided to put this clause before Parliament? They did not consult the London boroughs; and they did not consult anybody else. Now they are prepared to consult, but they have made up their minds.
I should have thought that those employed in the industry are entitled to some passing recognition; but not at all. Environmental groups have not been considered. For that reason it is extremely important that the question of consultation should be addressed specifically on the face of the Bill.
I do not trust the Government. I believe that if this Bill were to pass through Parliament, the Government would go through some process of consultation. But their opinions will be immovable. It is extremely

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important indeed to be very specific about the nature of the consultations upon which we wish to embark. The noble Baroness is right to say that we shall later discuss issues affecting environmental matters and enforcement, but in many ways this issue goes to the heart of the Government's bona fides. I believe that they will be found wanting.
Lord Monson: I support this amendment moved so well by the noble Baroness, Lady Hamwee. I should perhaps say in passing that, from conversations that I have had with a wide range of people in my neighbourhood, I know that a considerable number of the people who normally vote Conservative are unlikely to do so at the next general election if they believe their peace and quiet, their health and safety and the health and safety of their children stand to be menaced once again by heavy lorries. Of course the Government are free to disregard those sentiments; that is entirely up to them.
Lord Peyton of Yeovil: This amendment was moved beguilingly by the noble Baroness. There was almost nothing in what she said with which I felt it possible to disagree. The heavy lorry has long been detested. It has few champions outside the industry. That is only half the story. Of course the other half of the story is that what we are pleased to call civilised life can hardly continue without the heavy lorry. The noble Baroness made it quite clear that she is aware of that. In the cities more than in the countryside the heavy lorry is essential if sophisticated populations living in densely populated areas are to have the necessary supplies. It is also true to say that the vehicles tend to become bigger and bigger and the streets, for very obvious reasons, do not.
I have always felt disappointed that during the days when I had something to do with such problems such matters were handled, in London at any rate, by a committee of the GLC. I do not believe that it was particularly effective. However, what I do regret is the fact that there has been no long-term effort to deal with the problem. Indeed, planning on the whole has not been used as it might have been where new premises are being erected or old ones modified to insist that proper facilities for loading and unloading are provided. No major effort has been made, as has been the case in other countries, to have limited times for delivery of goods. I do not believe that it is a party issue. It indicates a certain sloppiness of mind on the part of all of us who very much wish to have our cake and eat it and not become involved in a rather difficult situation.
I am somewhat worried about the provision in the Bill. The replacement of one exception with another, or perhaps with none at all—even if by doing so we would remove or reduce the burden—seems to me to be giving Ministers very considerable powers. Such an amendment to Clause 24 can be dealt with by negative proceedings and that in this Chamber means very little, if anything. I hope that the Government will take the matter away and give it some further thought, especially in view of the way that the noble Baroness moved the
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amendment. As I saw it, there was no desire on her part to make party points or to put any undue blame upon the Government.
Quite rightly, the noble Baroness drew attention to a very real problem which has been growing at an intolerable rate for a long time. She expressed concern —and I am sure she is not alone in that feeling—that if Ministers are given powers that are too wide to do away with inconvenient rules which have become incon-venient to a particular section, they will come under very heavy pressure to use them. I believe that that could result in considerable injury to the environment. It would also provide an excuse for not taking the long-term policy decisions which are required.
4 p.m.
Lord Jenkin of Roding: Perhaps I may add just a few words on the matter. There are a good number of amendments to the Bill tabled in the name of the noble Baroness, Lady Hamwee, with which we shall no doubt deal. However, it seems to me to be sensible for us to have a more general debate on the amendment about consultation. I should like to endorse the points just made by my noble friend Lord Peyton. It is not really a party issue. I am president of the London Boroughs Association and, I am happy and grateful to say, I still am despite the change in control of that body.
However, the association has been divided on the merits of the so-called lorry ban—that is, the night and weekend lorry ban—but certainly not on party grounds. If I had a complaint about the speech made by the noble Lord, Lord Clinton-Davis, I would say that he seemed to elevate the matter into a party battle. It is not. Different representatives of the boroughs in London have, for good and valid reasons, different points of view. For example, the London borough of Kensington and Chelsea has been in touch with me on the matter. The borough is unhappy with the suggestion that the permit system should be abolished because it is regarded as the most effective way to enforce the ban. It has expressed the anxiety that perhaps the savings and costs to the hauliers have been somewhat exaggerated and has called in aid the report by Touche Ross referred to by the noble Baroness.
The London Boroughs Association has drawn my attention to new estimates prepared by Oscar Faber plc, which is a firm of transport engineering consultants, on the costs of enforcement. Neither the association nor I has yet had a sight of the findings. However, I have been told that, after taking into account savings arising from the abolition of permits, the enforcement: measures proposed by my noble friend would increase the haulage industry's costs by over £300,000 a year. I see that the noble Lord wishes to intervene. I give way.
Lord Clinton-Davis: I am much obliged. The noble Lord said that I made a partisan speech. It was indeed a partisan speech against the Government. However, what the noble Lord is now saying —namely, that: the views of borough councils in the LBA before the local council elections were of great significance—is something of which the Government failed to take notice. That was; one of the major points that I made in my speech.
Lord Jenkin of Roding: The noble Lord has now made his speech twice. I believe that we now understand what he said. However, as I was saying, there is a variety of opinions on the merits of the issue and on the merits of the permit scheme as a means of enforcing the rule. As I already mentioned, the Royal London Borough of Kensington and Chelsea, which on the whole does not have a majority that supports the noble Lord opposite, has especially drawn my attention to that fact.
I return to the Oscar Faber study, which found that the costs of the haulage industry might increase by over £300,000 a year and that police and local authority enforcement costs would rise by an estimated £160,000 a year. The supporters of the scheme point out that the alleged burden of minimal administrative costs would be replaced by a larger burden on the unwieldy enforcement system.
I should stress to my noble friend that I believe that the latter enhances the case for consultation. It would have to be consultation with the individual boroughs. I am advised that it is not possible, even under the new disposition, to expect a single view to come from the representative bodies, and certainly not from the London Boroughs Association. It is quite clear to me that there is now a good deal of support for the ban and a good deal of anxiety about the suggestion that the permit scheme should be abolished. I do not believe that such opinions are merely confined to the other side of the Committee. I hope that my noble friend the Minister will be able to take note of that fact.
Lord Finsberg: I am disturbed by the remarks just made by my noble friend Lord Jenkin. I was involved with the fight against the ban in the 1980s when it was the brain child of a weird man called Dave Wetzel who lived across the road from here in County Hall. On that occasion, he was motivated by a bias against the road haulage industry. I declare no interest in the latter. I tried to reason on behalf of the Multiple Shops Federation, on whose council I sat in those days. One of the difficulties about the large lorry ban is that, if you ban the large lorry, you then split the load into three smaller lorries. No one has yet found an answer to that problem. Moreover, if you go too far, you will increase the cost of transportation and the customer pays more.
I can see that there is a case for consultation. However, my noble friend Lord Jenkin will remember that we once had one voice speaking for London local authorities; namely, the London Boroughs Association. It decided, like an amoeba, to become a spin-off, second body and one basically controlled by the Labour Party. That meant that the Government had to consult two organisations. When I was a Minister in the Department of the Environment, I tried to persuade London authorities that their voices would be heard rather more strongly if they came from one body.
However, now my noble friend has said that our noble friend the Minister would probably have to consult all the London boroughs. That, I suggest, is an impossibility. I would hope that if there is to be any consultation, it will take place with the organisations that represent local authorities in London. I still express
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the hope that those organisations might decide that they would have a more powerful voice if they were to join together.
Lord Lucas of Chilworth: It seems to me that there is some danger in confusing the two issues: that of the lorry ban and that of the permit system. The Government propose to abolish the permit system which has proved to be not effective. In fact, my understanding is that at the outset only 20 of the London boroughs took part in that permit scheme. The first two amendments that are before us this afternoon are designed to create a bigger talking shop with regard to a matter which has proved to be ineffective.
Lord Clinton-Davis: Why?
Lord Lucas of Chilworth: Why is it ineffective? My noble friend Lord Peyton gave one reason; my noble friend Lord Jenkin of Roding gave another. It is quite impossible to ban lorries 24 hours a day for the reasons just given; namely, that if one splits up the load of one large lorry, one will encourage people to replace it with four smaller lorries. By and large, one is as aggravating as another, particularly late at night. Surely in a deregulation Bill, we do not wish to add more discussion with other bodies. I have a letter which was addressed to the Freight Transport Association from the headquarters traffic superintendent of the Metropolitan Police. The letter is dated 9th March. I shall quote one paragraph in which the superintendent writes:
"As I said, we do not regard the proposal to abolish the permit system as presenting any particular difficulties for Police. We shall continue to respond to requests for assistance from the Lorry Control Unit of the London Transport Boroughs Scheme".
He writes in his final paragraph:
"We agreed that deregulation is likely to result in more vehicles being stopped than at present. Because it is often during such stops that other, unrelated, offences tend to come to light…"
Therefore it will be in the interests of the police to make those further checks. To discuss this matter with a great many other bodies seems to be totally and absolutely counter-productive. I hope that my noble friend the Minister will resist that.
4.15 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Mackay of Ardbrecknish): We have had an interesting little debate on this part. I shall refrain from answering all of the points because I rather suspect that some of them are more related to other amendments and I do not wish to be accused of repeating myself, although I suspect that I am in danger of doing so this afternoon. For example, I will leave the question of the costs to the road haulage industry of the permit system until we reach the appropriate amendment, where I believe that will be the subject of the discussion.
My noble friend Lord Lucas of Chilworth, like my noble friend Lord Finsberg, laid bare the dilemma we all have in the kind of modern society in which we live, whether that arises from the pollution or the noise caused by vehicles, and whether the vehicles concerned be lorries, cars, or—dare I even mention it?— aeroplanes. The simple fact of the matter is that they are all important parts of modern living and without them

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our lives and our standard of living would be significantly the poorer. But we must try to make sure, as far as we possibly can, that we gain the advantages of these transport systems and at the same time that we lessen the disadvantages in environmental terms and in other respects. One of the problems is the need to try to reduce the impact of lorries, whether they be large or small—some of my noble friends have referred to this —in residential areas. Some people might suggest that we should ban those lorries. However, as my noble friend Lord Peyton of Yeovil pointed out, if one bans those lorries, the shops and supermarkets, for example, in central London, would not have the supplies the customer wants when the customer enters the shop at nine o'clock in the morning. Therefore I think everyone is agreed that some heavy lorries need to enter areas such as central London.
I believe everyone is also agreed—although the listener might be forgiven for thinking otherwise—that the ban, as it is currently constituted should stay; namely, that during the hours of darkness and at the weekends lorries should not enter London when they do not need to be there. The Government have no proposals at all—nor would this clause give them such a power —to do anything to alter that ban. It is not the ban that we are discussing: we are all at one on the need to have the ban with, of course, the proviso that those people who need to make deliveries may do so but they must use the shortest possible route when they drive on non-exempt roads.
In this clause we are discussing whether the bureaucratic system which has been devised in London is in the best interests of both the ban, and businesses and local authorities themselves. Therefore this discussion should not be a tirade—as I thought it was going to become—against the usual shibboleths of the freight transport industry, road builders, hauliers and all the other evil ghosts raised from the past that the party opposite used to love to hate. However, as I understand it, as modernisers, they are no longer supposed to hate those ghosts.
We also heard about the Touche Ross report from the noble Baroness, Lady Hamwee. I have not had a chance to study that report, as it came into the hands of staff in my department about half an hour ago. However, I listened with interest to her point that the road haulage industry disliked the bureaucracy but not the ban. That is my position entirely. I dislike the bureaucracy: I do not dislike the ban.
Clause 24 will give the Secretary of State for Transport the power, exercisable by order, to amend local authority traffic orders in Greater London which impose a prohibition or restriction on the use of a road by heavy lorries unless a permit is granted. It is just the permit system in London at which this clause is aimed. We believe—and I believe —that this will allow the removal of the red tape and bureaucracy involved in the present permit scheme operated in relation to the London wide night-time and weekend lorry ban. I should again make it absolutely clear to prevent any doubt that we are in no way attempting to change the ban itself. It is the permit system which we consider to
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be highly bureaucratic. The clause would enable us to retain the ban while reducing the bureaucracy. Under subsection (9) of the clause—
Lord Peston: I hope I may interrupt the noble Lord. I have listened attentively to what he has had to say to try to understand the Government's pasition. The Minister's noble friend Lord Peyton put the point clearly; that we want to find goods in our shops but we do not like the lorries that put them there. I have listened as carefully as I can to the Minister, but when the Minister said that the Government do not want to change the ban, I took him to mean also that we do not want any more lorries in central London causing congestion and pollution. Therefore I am not clear what the effect of the clause is. If it leads to no more lorries and if it does not lead to any changes whatever, what does it actually do? That seems to me to be the central question. At no point does the Minister tell us what the clause actually does. What makes me fearful—I speak entirely as a layman—is that if one makes it easier and if one gets rid of what is called the bureaucracy, one will end up with more lorries. I am afraid that that is what troubles some of us. Will the Minister at least explain that?
Lord Mackay of Ardbrecknish: It is not bureaucracy which stops lorries coming into London; it is the ban. The ban means that one can only enter London within the M.25 at night or at the weekend if one has to deliver or load within that area. If one is going from north to south or east to west, the M.25—which some people did not like either—allows one to go round London. One does not have to go into central London.
The ban stays. It minimises the number of vehicles which come into central London. It bans those which are simply transiting central London. We are not attacking that ban at all. We believe that it strikes a perfectly reasonable balance between the needs of transport to enter central London to deliver and the needs of people in London not to be disturbed at night or at weekends.
Lord Peyton of Yeovil: I am grateful to my noble friend for giving way. It may be that I have not understood the matter correctly. However, in the notes on Clause 24 in the Explanatory and Financial Memorandum the words used are:
"The orders affected are those which impose prohibitions or restrictions on the use of heavy commercial vehicles in London".
Does that tell only half the story?:
Lord Mackay of Ardbrecknish: I shall obviously not have time to read the note that my noble friend quoted. Clause 24 empowers the Secretary of State for Transport, after he has consulted, to remove the permit system. Under the present system, if one has to deliver in London one does not merely say to oneself, "I must go down these routes so that I minimise the amount of time that I am on the roads that I am not supposed to be on but am allowed to be on only if I am delivering". In addition to thinking about the route and being conscious of the ban, one has to approach the bureaucracy for a permit. The permit does not specify the route to be taken in respect of the application actually made. To the outsider, the permit looks the same for every lorry. It is

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displayed on the windscreen and then the lorry can go into central London. It is that system of permits which the Government consider an unnecessary bureaucracy. The purpose of the clause is to give the Secretary of State powers to remove it.
Lord Peston: I know that the noble Lord wants to move on to the question of consultation. However, those of us who do not know much about this matter are simple people. We want to know whether there will be more or fewer lorries in London as a result of going ahead with what the Government want. Will there be lorries in London at more or less attractive times? That is the kind of question that we are concerned about.
Will the Minister say categorically that, in his judgment, all that will happen as a result of the clause is that there will be no more lorries in London, no lorries at worse times, and no more congestion—in other words, all of the things that we hate? Can he tell us that that is the outcome, and that whatever else happens there will be no deterioration in the environment? Can he say that in terms?
Lord Mackay of Ardbrecknish: I can say that this clause in the Bill will not have any of the impacts which the noble Lord mentioned. Indeed, it might just have a positive impact. If the money saved by the London boroughs is used for enforcement, then some lorries which are cheating the system or which do not have permits may be caught and the certainty of being caught may increase. Therefore, if anything, there may be a reduction in the number of lorries in London. There will be elimination of the need to obtain a form.
I come now to consultation, which the amendments are concerned with. Under subsection (9) of the clause the Secretary of State is obliged to consult representative organisations before making an order. That provision—which is set out in the second line of the subsection—was inserted in the Bill in another place after concern had been expressed that such consultation should be required. Indeed, I understand that it was welcomed by the Opposition.
Everybody who has been involved in legislation knows that, whenever one sees the word "consultation", one puts down amendments with a few names in order to get a debate going. One says that if these names are not included there will not be proper consultation. In fact, most legislation is framed roughly on the lines of this provision, which states that the Secretary of State:
"shall consult with such representative organisations as he thinks fit".
We all know that one could not possibly encompass all the organisations which may need to be consulted. Therefore, a wider power ensures that the Secretary of State consults those he thinks ought to be consulted. Of course that will include bodies such as the Association of London Authorities and the London Boroughs Association, both of which represent local authorities in London. In addition, the Metropolitan Police and the City of London Police would also be consulted.
Therefore, as Ministers of both parties have said time without number, we do not need to list specific bodies
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which ought to be consulted or to draw up a list which embraces all the people and organisations which should be consulted.
Lord Clinton-Davis: If we are to believe what the Government say on this subject, why did they make no effort to obtain the views of those organisations before they decided to go into print with this particular provision?
Lord Mackay of Ardbrecknish: We have been discussing for some time the various aspects of the way in which the London lorry ban works rather than the ban itself. We came to the conclusion that we should take this particular power. When we have a power which requires consultation we shall then consult. I think that that is the right way to go about it.
I was just about to turn to the amendments in the name of the noble Lord, Lord Clinton-Davis, which go rather further than those of the noble Baroness. They encompass residents' associations and the like. That would draw consultation so wide that the consultation would never end. Once one had consulted one group of residents' associations, they could simply re-form or a new one could spring up wanting to be consulted. I believe that one has to undertake one's consultation with the local authority associations. After all, they are supposed to represent the collective view of the various communities they represent, as the Association of London Authorities represents the collective view of the local authorities. I have little doubt that when consultation takes place, if the Association of London Authorities and the London Boroughs Association put in a collective view which some boroughs do not agree with, then those boroughs will not be slow to send letters to my right honourable friends saying that they do not agree and giving their view.
As Ministers have probably said from this Dispatch Box and from the Dispatch Box in the other place time without number, I believe that it is not necessary to list either in full or in part the organisations which ought to be consulted. I believe that the phrase inserted in the other place properly meets the concerns of the noble Baroness and the noble Lord, Lord Clinton-Davis, that the representative organisations most involved in this issue will be consulted by the Secretary of State for Transport.
I hope that after this interesting debate and having listened to what I have said the noble Baroness and the noble Lord will feel able to withdraw their amendments and rest confident in the amendment made to subsection (9) in the other place.
Baroness Hamwee: I cannot say that at the end of this debate I have any more confidence, as the Minister suggested that I might. However, I shall try to confine my remarks to the particular amendment rather than range too widely.
To suggest that the democratically elected representatives of local government should not be consulted, as if they had no status, is a very odd state of affairs. To resist an amendment requiring consultation of individual directly-elected local authorities, which are grouped in the associations, on the grounds that that

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would mean that everybody would have to be consulted is extremely odd. Indeed, it will become the Government to accept that consultation on such a matter should be wide and should encompass environmental groups, residents groups and so on.
Perhaps I may answer a few points. The noble Lord, Lord Peyton, correctly analysed the situation. Although it is becoming harder as the moments go by, I do not approach the issue as a party political matter. I accept that lorries are necessary. I do not accept the Minister's stance that roads and lorries are either a very good thing or a very bad thing. I seek a balance. A permit scheme, because it is enforceable, provides a ban which, although not applying to all lorries for 24 hours a day seven days a week, seeks to maintain the ban on heavy lorries at night and at weekends. This and subsequent amendments are directed to that issue.
I agree with the noble Lord, Lord Finsberg, to this extent. In the absence of a strategic authority, a single association would be a good system and would make everyone's life easier. We have heard a variety of views. Despite what I said about the Minister's comments, I shall not push the matter to a vote today, although consultation is a matter to which we may return. The Minister has been somewhat dismissive on that. On reflection, perhaps we may all consider—I am happy to do so—how consultation can best be carried out. The Government have committed themselves to consultation. Perhaps in the future we may consider some mechanisms for its implementation. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.30 p.m.
Baroness Hamwee Baroness Hamwee moved Amendment No. 176D:
Page 22, line 15, leave out ("a") and insert ("an undue").
The noble Baroness said: The amendment seeks to relate the provisions of Clause 24 to the thrust of the Bill by providing that any burden which the Government seek to "derestrict" (if I may so put it) is an undue burden. In moving the amendment, I put forward a similar argument on Amendment No. 177F.
When the Department of Transport announced its proposal to alter the permit scheme, it stated that powers under the section could be used only where an undue burden on business was imposed. The press release issued at that time used the same term, stating that such powers could only be used where an undue burden on business was imposed. That is not provided by the wording in the Bill. The Bill refers to "a burden". Filling in a form of three lines could be regarded as a burden. It is in order to describe the evil to which the Government address themselves that I move the amendment.
Subsections (4) and (7) of Clause 24 give the Secretary of State very wide powers. Despite what the Minister said earlier, the provisions give the Secretary of State power to destroy the lorry ban if he is so minded. In moving the amendment, I seek to limit the exercise of the Minister's discretion so that the burden is in commonsense language a real burden.
I am concerned at the burden falling the other way. I refer to the amount of enforcement, the need for
1020
enforcement and the difficulties of enforcement if there is no permit scheme. One must balance the efficiency of the scheme against what has to be done by operators who apply for permits. Enforcement staff would need powers equivalent to those under the traffic order relating to vehicles which justifiably use restricted streets. The enforcement staff would have to write to the operators requiring the production of journey records. Operators whose vehicles are currently exempt would have to justify the necessity for their journeys. I suggest that such requirements would impose an additional burden if the current scheme were radically altered. Detection of unjustified journeys would be impaired; and detection would be a good deal more costly. The: London Boroughs Transport Scheme would have to increase the number of requests to the licensing authorities. Inquiries would have to be made of vehicle rental companies which are registered as the keepers as well as the operators. At present, failure to have a permit is an absolute offence. Prosecuting for offending journeys—which requires proof of journeys on restricted streets during controlled hours—is quite clearly a more complex matter.
The operation of the permit scheme overlooks the benefits to those who have permits. Ending the scheme would increase the relatively minor administrative work of filling in extremely short forms which the operators have to undertake in renewing permits. Each time the vehicle was stopped, these operators would be required to go through the same rigmaroles as those who were quite blatantly flouting the scheme.
If the clause is to follow the thrust of the Bill, it is entirely appropriate that the term "undue" should be attached to the reference to "a burden". I beg to move.
Lord Clinton-Davis: I support the amendment moved by the noble Baroness. There is a clear logic to the matter. Simply to insert "a burden" into the Bill is obviously completely and utterly unsatisfactory. Anything can be a burden, as the noble Baroness said. Simply writing out a form is a burden. But we are referring to burdens which are absolutely unnecessary —undue burdens—implying that there is also an interest which has to be encompassed elsewhere. When we talk about "a burden", how does one relate it to safer)' issues, environmental issues and the rest? That is why the word "undue" is of great importance.
Moreover, the burden of proof—I use the word "burden" in another sense—in establishing that industry is greatly prejudiced by reason of the scheme must rest on the industry itself. Industry must establish that there are huge and wasteful administrative costs which have a major deleterious effect on the way in which it can operate. But that argument must be considered against the backcloth of other prices which have to be paid. I do not have any sense of that consideration in the provisions in the Bill.
Perhaps I may put the matter into some context. I understand that Sainsbury's has argued in favour of doing away with the permit scheme because it says that it is unduly burdensome. Even if one were to accept the figures Sainsbury's has put forward in relation to this issue as being accurate—they may or may not be—one

1021
has to measure them against the group profits of the company which in 1992–93 were of the order of £732 million before tax. The company's estimate of the operating cost of the scheme is £1,000 a week, about 0.005 per cent. of the totality of its profits. That is hardly a huge burden when looked at in context.
Why is it that Sainsbury's finds the whole matter so unsavoury and so burdensome whereas Tesco does not? Tesco, I understand, has found nothing to complain about regarding the permit scheme. I should have thought that the two companies pursue rather similar businesses and similar operations. I stand to be corrected, as this is anecdotal evidence; perhaps the Minister is in a position to confute what I say. But if I am right and there is an evident conflict of view between Sainsbury's and Tesco, carrying on very similar businesses, it seems strange that one should argue that there is an alarming burden upon it and that therefore the permit scheme ought to be scrapped. I wholly support what the noble Baroness said.
Lord Boyd-Carpenter: To add the words "an undue", as the amendment proposes, will simply make the Bill rather more difficult to interpret. What is "an undue" burden? What indeed is a "due" burden? To insert the phrase "an undue" will simply produce an area of confusion. It is difficult enough to assess the effect of particular burdens in this type of administration; to add the complication that one can add a "due" burden but not an "undue" burden really does seem to add confusion. I hope very much that my noble friend will not accept the amendment.
Lord Harmar-Nicholls: I tend to support my noble friend on that point. Is there any legal interpretation of "undue"? We know that in law generally the words that are used normally mean certain things in normal exchanges. In law, does "undue" mean anything? If it means that, as the subsection says,
"The Secretary of State shall only exercise the power conferred by subsection (3) … if he is satisfied that its exercise will have the effect of removing or reducing a burden"—
then, if the Secretary of State is to interfere at all, he will have to think that the matter is worthy of being dealt with and will therefore say that the burden was undue and that that is why he has reached that conclusion. Why does the phrase have to include another word which, as my noble friend said, leaves room for further argument when the matter is being interpreted? The point is not sound. If someone can tell me that in law "undue" has a meaning that extends the area that one has to take into account when one is dealing with a matter—
Lord Clinton-Davis: Will the noble Lord give way? The word "unreasonable" is not unknown to the law. It has similar connotations, I would have thought, to the word "undue". My worry is: what does the word "burden" mean?
Lord Harmar-Nicholls: I do not believe that that intervention has altered my point. I do not care whether "undue" is in or out. From my reading, I do not think it makes any difference—unless it is that "undue" has a legal meaning that I know nothing about and gives
1022
ammunition to someone who may wish to question a decision. For those reasons I would have thought that it is an unnecessary addition.
4.45 p.m.
Lord Simon of Glaisdale: I have listened to the debate with a view to trying to learn about this problem while waiting for what seems to me an extremely important amendment to be discussed later; namely, that relating to the degree of parliamentary control over the actions of the Secretary of State under this clause. I intervene to presume to say that I find myself in agreement with the noble Lord, Lord Clinton-Davis. I do not believe that in law there would be the smallest difficulty in putting a meaning on "undue". As the noble Lord said, English and Scottish law are full of the words "reasonable" and "unreasonable". By the use of those words a standard is set, and the tribunal is not just to say: is X and Y proved? And the result follows. Rather, it is to say: have facts been proved? That brings about a certain degree which is the one drawn by the law. If the word "undue" is not in the provision, I would take it to mean that any burden is sufficient. Thinking rapidly, as one has to on one's feet, I would have thought an "undue" burden is one whose benefit is incommensurate with any other benefit that is countervailed by it. So far as this amendment is concerned, I personally would like to see the word "undue" put in. The noble Lord, Lord Harmar-Nicholls, does not think that it makes any difference. I hope that he will defer to me when I say that it does make a difference to me.
Lord Lucas of Chilworth: I was surprised to hear the noble Baroness, Lady Hamwee, say that applying for a permit was only a minor inconvenience. I do not know whether the noble Baroness has made an application for a permit. The form happens to be a 10-page document—hardly a minor inconvenience. Not only does a commercial company, or indeed a local authority which operates vehicles of the "16.5 tonne and above" class, have to apply. A permit is required for each and every vehicle which it is intended should run into London during the hours of the ban. Either that means a designated fleet of lorries (which in its turn provides for inflexibility) or, alternatively, an emergency permit, which normally takes 48 hours to acquire. The permit office works normal office hours whereas industry operates 24 hours round the clock to make deliveries to its customers. It seems to me that that is a burden; indeed, a significant burden.
The noble Lord, Lord Clinton-Davis, for some extraordinary reason, picked out the firm of Sainsbury's. He described that company's profits, compared that with the cost of the permit applications and put his argument in graphic percentage terms. That really is not the point. The point is a £3 million burden on industry as a whole. It is totally invidious to pick out one firm as against any other.
Lord Monson: I support the noble Lord, Lord Clinton-Davis, and my noble and learned friend Lord Simon of Glaisdale. Unless the Committee qualifies the word "burden" with the word "undue", or something very like it, a haulier could legitimately argue that a

1023
restriction that added, say, 0.01 per cent. to his costs constituted a burden and ought to be removed. I suggest that that is not what the Committee wants.
Lord Mackay of Ardbrecknish: We seem to have managed to stimulate a very interesting debate about the word "undue". The noble Baroness would like to attach it to the burden and also to the bureaucracy. My problem with the word "undue" is that I do not know what the qualification does to the burden. An "undue burden" depends just as much on one's view of the burden as does the simple, straightforward word, "burden". If the burden is unnecessary, the size of the burden does not much matter. It is quite a different matter if the burden is necessary.
Some burdens in this particular case are necessary. I have already made perfectly clear that the Government consider that the burden of living with a London lorry ban is one which the industry should accept. We believe that it should also accept the burden of having to carry around delivery notes or other evidence of where the lorry is going on a journey undertaken during the banned period in the restricted area. We accept that as a burden which is necessary. But whatever the unnecessary burdens are, and whatever size they are, they are burdens which should be removed.
Lord Simon of Glaisdale: Perhaps the noble Lord will allow me to intervene. Surely he has argued that the word "undue" is necessary. He has enumerated certain burdens which he says are necessary. They are due burdens. It is the other ones he wants to sweep away; I sympathise with him in that. They are the undue burdens.
Lord Mackay of Ardbrecknish: This is becoming a debate on semantics. If we consider the burden to be unnecessary, it is by definition undue. The problem with the word "undue", as the noble Baroness would attach it in the amendment, is that it somehow qualifies the size of the burden. That is where I take leave of her. I do not think that the size of the burden much matters. I believe —though other Members of the Committee may not do so—that if it is a burden, it is right and proper that it should be removed.
As the amendment stands, I have to ask whether there is some kind of trigger level. Does it not matter if it costs the industry £400,000, the figure the noble Baroness gave as that in the Touche Ross report whereas it does matter if it costs £3 million, as my noble friend Lord Lucas of Chilworth suggested? Do we then get into an argument about the level of cost and about a trigger point? While that is probably an argument all the time, what is much more important is whether the burden is necessary or unnecessary. I believe that the word "undue" does not add anything of importance other than to make the interpretation of the words more difficult. Perhaps that is the real motivation behind the proposed addition of this nice little innocent word: it will perhaps make everything more argumentative and more difficult. I believe that the wording, as it is, with "burden" unqualified, is understood by most people. They understand what a burden is and whether or not that burden is worth undertaking.
Lord Clinton-Davis: Will the Minister ponder on what he has just said? After all, the Minister has to decide whether or not something is a burden. He said that there are necessary and unnecessary burdens. Surely, in the light of what the noble and learned Lord, Lord Simon of Glaisdale, said, which I support, the amendment would be helpful to the Minister. Certainly, it would be helpful in terms of parliamentary accountability. The Minister then would have to consider very carefully the meaning of "undue" in this context. That is absolutely critical and can be picked up from what the Minister himself said.
Lord Mackay of Ardbrecknish: I do not believe that it can be picked up from what I said. The point is that one has to argue about the burden. It is the burden that is important. Whether or not the word "undue" is added, it is still the burden that is considered. As I pointed out, everybody knows—or perhaps I am the only suspicious person in the Chamber—that a simple argument can be put forward about the burden itself and whether it is necessary or not necessary. As I explained, to add the word "undue" is simply a qualification which is not necessary. I do not believe that it will be a helpful addition to the clause or add to the need of the Secretary of State to carry out the consultation to which we agreed and come to a sensible conclusion. I believe that it is unnecessary and I hope that the noble Baroness will withdraw the amendment.
Baroness Hamwee: The Minister is not the only suspicious Member of this Chamber. That is precisely why I should like to provide in the Bill an objective test in place of the Government's assessment of whether the burden is an appropriate one. Perhaps I may introduce a term that has not yet been used. The Minister has given many assurances. The word "undue" may not be the right word but if a word such as that were written into the Bill there would be an objectivity which I believe the courts would have no trouble in assessing.
I did not use the word "undue" because I thought it was necessarily the right word—indeed, I like the term "commensurate" used by the noble and learned Lord, Lord Simon of Glaisdale, which precisely describes what I mean. I used it because it was the word used by the Minister for Transport in London when he introduced the proposal in January. It is the word in his press release and the word used in his letter to the London Boroughs Transport Scheme. It was out of courtesy, if one likes to call it that, that I used the same word. I hoped that there would be no difficulty in the Government accepting that if they used the word in one place they should use it in the Bill. Otherwise, it might suggest that it was used very casually.
The noble Lord, Lord Lucas, referred to the 10-page document. To answer his point, I do not believe that the Committee is in a position to assess whether that 10-page document is inappropriate, burden or not. I suggest that the filling out of a form has to be set against the benefits to be obtained by the application of the permit scheme. That is the first of the application forms and renewal is a very simple matter. Touche Ross,

1025
whose report has been mentioned, estimates that as regards the permit scheme we are talking of a sum in the order of £14 per lorry.
I fear that I have not been persuaded by the Minister. I am grateful to those Members who have joined in the debate. It is a matter on which I shall seek the opinion of the Committee.
4.58 p.m.
On Question, Whether the said amendment (No. 176D) shall be agreed to?
Their Lordships divided: Contents, 72; Not-Contents, 130.

Division No.1

CONTENTS

Addington, L.

Jeger, B.

Airedale, L.

Jenkins of Putney, L.

Ardwick, L.

Kilbracken, L.

Bancroft, L.

Kirkhill, L.

Beaumont of Whitley, L.

Lester of Herne Hill, L.

Bonbam-Carter, L.

Longford, E.

Boston of Faversham, L.

McCarthy, L.

Bruce of Donington, L.

McIntosh of Haringey, L.

Carmichael of Kelvingrove, L.

Merlyn-Rees, L.

Chichester, Bp.

Monkswell, L.

Cledwyn of Penrhos, L.

Monson, L.

Clinton-Davis, L.

Morris of Castle Morris, L.

Cocks of Hartcliffe, L.

Murray of Epping Forest, L.

David, B.

Nicol, B.

Dean of Beswick, L.

Peston, L.

Dean of Thomton-le-Fylde, B.

Pitt of Hampstead, L.

Donaldson of Kingsbridge, L.

Prys-Davies, L.

Dormand of Easington, L.

Rea, L.

Eatwell, L.

Redesdale, L.

Elis-Thomas, L.

Richard, L.

Falkland, V.

Rochester, L.

Fisher of Rednal, B.

Rodgers of Quarry Bank, L.

Foot, L.

Saltoun of Abernethy, Ly.

Gallacher, L.

Seear, B.

Gladwyn, L.

Shannon, E.

Gould of Pottemewton, B.

Shepherd, L.

Graham of Edmonton, L.

Simon of Glaisdale, L.

Hamwee, B.

Stedman, B.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Haskel, L. [Teller.]

Strabolgi, L.

Hollis of Heigham, B.

Tordoff, L. [Teller.]

Holme of Cheltenham, L.

Turner of Camden, B.

Howell, L.

Wedderburn of Charlton, L.

Howie of Troon, L.

White, B.

Hughes, L.

Williams of Elvel, L.

Jay of Paddington, B.

Williams of Mostyn, L.

NOT-CONTENTS

Aberdare, L.

Cadman, L.

Addison, V.

Campbell of Alloway, L.

Ailsa, M.

Campbell of Croy, L.

Aldington, L.

Carnock, L.

Allenby of Megiddo, V.

Cawley, L.

Annaly, L.

Chalker of Wallasey, B.

Arran, E.

Charteris of Amisfield, L.

Ashbourne, L.

Chelmsford, V.

Astor, V.

Chesham, L.

Attlee, E.

Clanwilliam, E.

Balfour, E.

Clark of Kempston, L.

Belhaven and Stenton, L.

Coleraine, L.

Blatch, B.

Constantine of Stanmore, L.

Blyth, L.

Courtown, E.

Boardman, L.

Craigavon, V.

Borthwick, L.

Cranborne, V.

Boyd-Carpenter, L.

Cullen of Ashbourne, L.

Brabazon of Tara, L.

Cumberlege, B.

Brookeborough, V.

Davidson, V.

Brougham and Vaux, L.

Dean of Harptree, L.

Bruntisfield, L.

Denham, L.

Burnham, L.

Dilhorne, V.

1026

Dixon-Smith, L.

Mowbray and Stourton, L.

Eden of Winton, L.

Moyne, L.

Ellenborough, L.

Munster, E.

Elles, B.

Mutton of Lindisfarne, L.

Elliott of Morpeth, L.

Nelson, E.

Elphinstone, L.

Newall, L.

Elton, L.

Norfolk, D.

Faithfull, B.

Norrie, L.

Ferrers, E.

Northesk, E.

Finsberg, L.

O'Cathain, B.

Fraser of Carmyllie, L.

Orkney, E.

Fraser of Kilmorack, L.

Orr-Ewing, L.

Gainsborough, E.

Oxfuird, V.

Gardner of Parkes, B.

Park of Monmouth, B.

Geddes, L.

Pearson of Rannoch, L.

Goschen, V.

Pender, L.

Gray of Contin, L.

Peyton of Yeovil, L.

Hailsham of Saint Marylebone, L.

Rankeillour, L.

Harraar-Nicholls, L.

Rawlinson of Ewell, L.

Henley, L.

Renton, L.

Hesketh, L.

Renwick, L.

Howe, E.

Rodger of Earisferry, L.

Huntly, M.

Seccombe, B.

Hylton-Foster, B.

Skelmersdale, L.

Jenkin of Roding, L.

St. Davids, V.

Johnston of Rockport, L.

Stewartby, L.

Kenyon, L.

Strathcarron, L.

Kimball, L.

Strathclyde, L.

Kintore, E.

Strathmore and Kinghorne, E.

Lane of Horsell, L.

[Teller.]

Layton, L.

Sudeley, L.

Lindsey and Abingdon, E.

Swinfen, L.

Liverpool, E.

Teviot, L.

Long, V.

Thomas of Gwydir, L.

Lucas of Chilworth, L.

Trumpington, B.

Mackay of Aidbrecknish, L.

Ullswater, V. [Teller.]

Mackay of Clashfern, L. [Lord

Vaux of Harrowden, L.

Chancellor.]

Vivian, L.

Mancroft, L.

Wakeham, L. [Lord Privy Seal.]

Merrivale, L.

Waverley, V.

Mersey, V.

Weatherill, L.

Miller of Hendon, B.

Wedgwood, L.

Milverton, L.

Wynford, L.

Mottistone, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.5 p.m.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 177:
Page 22, line 15, at end insert ("and will not result in placing upon the police and the local authorities concerned an increase in the costs of enforcement of the order.").
The noble Lord said: In moving Amendment No. 177, for the convenience of the Committee I shall speak also to Amendments Nos. 177A, 177B, 177D, 177G, 177H and 177K. The amendment deals with the issue of enforcement, which is highly critical. In another place —and indeed here—the Minister said that the Government are seeking a strengthening of traffic controls and better enforcement within the resources released by reason of the discontinuation of the permit system. I believe that that is what the Minister said earlier. The question we are now considering is whether the Government's proposals will have that effect; and whether the permit system had the disastrous effect asserted, not simply inferred, by the noble Lord, Lord Lucas. It is perhaps as well to start from the proposition that the permit system worked.
The permit system was not widely welcomed by the industry. It appears that the Government were a late convert to the idea. They did not welcome it and did their best to frustrate it—a point the Minister totally averted when I mentioned the matter earlier—but I am

1027
glad that they are now converted to the scheme. In effect they are saying that it did not work. With the greatest respect, that is not accurate. Something like 2,000 prosecutions a year have taken place in recent years and well over 90 per cent. of them resulted in conviction. The reason for that is that the test is a simple one; that is, whether or not the permit was breached.
It is for the Minister to determine why it is necessary to change a system which, contrary to what the noble Lord, Lord Lucas, said, worked effectively. The maximum fines are £1,000. It had a deterrent effect. There is no suggestion of an upsurge of opinion among the public against the system. If there is, perhaps the Minister could elucidate upon that point. From where does the pressure come? It comes from the road haulage industry—people who set their face against the scheme in the first place and have sought to undermine it ever since. This is the most effective way in which they can undermine it. At the end of the day I suggest that what the Government are proposing to do will render it pretty well impossible effectively to enforce the scheme.
The Government's proposals rely almost entirely on the provision of additional support from the police for enforcement. What happened previously is that the London Boroughs Transport Scheme, with a very small bureaucracy—five people were actually supervising the matter—had this considerable success. The success has to be measured not only in terms of the number of prosecutions but the way in which lorries which would have offended the purpose of the lorry ban have been deterred from entering within these prohibited periods and from entering these prohibited places. That has been done with some, but relatively little, input from the police. That is an important consideration. If the police are now supposed to provide this additional effort in order to supervise the scheme, where should it rank in their priorities in policing London? If the police wanted this duty they would have said so unequivocally to the Minister.
The contrary is the case. The police do not want to assume this duty, and with good cause. On any sensible understanding of the position, who would place this anywhere near the top of their priorities, particularly when the scheme has been supervised effectively in the past; and the police know that just as well as anyone else? The corollary to this is that, if the burden is to be passed to the police to carry out virtually the entire responsibility, have the Government any plans to ensure that additional police resources will be available? What the Minister has implied today is, "Oh no, it is nothing to do with us. It is the local authorities which will have to assume that burden". One must also take into account the whole question of proportionality. The local authorities have some high priorities as well. If they are to embark on a system which is very uncertain indeed in its efficacy, as I shall seek to demonstrate, it is a little unfair to expect them to accept these responsibilities.
The noble Lord, Lord Jenkin, referred to the Oscar Faber Report and to the Touche Ross Report. It is suggested in the reports that there would be a net increase of £160,000 per annum in police and local authority enforcement costs as a result of the Government's scheme. Why do the Government dispute

1028
that? The Committee is entitled to an answer from the Minister because it goes to the very heart of what is being asserted in the advice being received by the London Boroughs Transport Scheme. What would happen regarding the administration of the scheme is that the police would have to stop lorries. In the absence of the plating requirements —as I understand it, they would go as well—a far higher number of lorries would have to be stopped, with concomitant delays in journey and essential business time. I wonder how the Government calculated that expenditure. What is the estimated number of police stops compared with the present system? What police resources would have to be provided? What about weekends, when the resources of the police are at their lowest ebb? When it comes to night-time activities on the part of the police, I hardly think that they would very much welcome this additional work.
The Government say that they would apply these spot checks and that they would be targeted on areas of high sensitivity and lorry intrusion. That would not provide the same level of protection as is afforded by the present scheme. The Government also assert that the multi-agency checks—the checks carried out by the police, the London Boroughs Transport Scheme, the Department of Transport, local authorities and so on —would be most effective. But most of those checks take place outside the prohibited hours of the ban. It is for the Minister to indicate to the Committee why he asserts that that proposition is accurate.
I come to the question of evidential difficulties in bringing prosecutions under the Government's scheme. First, as I understand it, delivery notes would be the most substantial part of the evidence against defendants in circumstances of this kind. Delivery notes, as the Minister should know, are not in any standardised form. There is a considerable variation of information in them. There is no requirement by law for drivers to produce their delivery notes and no penalties if they do not. Do the Government intend, as a result of that lacuna, to introduce such requirements into the law? What would happen is that an investigating officer would have to be satisfied that a lorry journey was legitimate. In all probability he would have to follow up, or others would have to follow up, the investigations that he had started. That does not have to be undertaken at the moment. The present system is all very simple by comparison. The burden on the police will be immensely heavier. To establish a case the prosecution would need to show that the journey of the vehicle was unnecessary on a particular street during the prohibited hours. Currently, all the prosecution is required to establish is a failure to display the permit. If we are talking about burdens, it seems to me, against the background of that situation, that the Government have got their thinking in a rather parlous state.
My conclusion is that it will be easier for the operators to evade prosecution under the Government's scheme and to avoid conviction. There will be considerably less success in the enforcement procedures that will be undertaken than is provided in the current system. Therefore, the protection that is afforded to the

1029
people of London by reason of the efficacy of the present permit system will be obviated by reason of the Government's alternative scheme. I beg to move.
5.15 p.m.
Lord Jenkin of Roding: I referred earlier to the fact that some local authorities in London are apprehensive that the maintenance of the ban without the maintenance of the permit system will lead both to an increase in the cost of enforcement and, more importantly, to a reduction in the effectiveness of the ban. I am told that in ordinary circumstances compliance with the ban on lorries at certain times of the day from certain streets can well be less than 50 per cent. In London under the permit system compliance has been more than 70 per cent. That represents a considerable reduction in the nuisance by noise, vibration and so on during the silent hours for the people of London.
I say again that boroughs such as the Royal Borough of Kensington and Chelsea are genuinely concerned about this. The borough makes the point that it has supported the scheme since its inception. There have been 554 prosecutions by the borough in the past few years. The ban has without doubt achieved a substantial reduction in the number of heavy vehicles using the borough's streets. Residents' associations have stressed the need for a high level of enforcement. The ban and its enforcement are seen as a critical tool in securing a suitable environment for borough residents to live in. That is a point of view of which my noble friend should take great cognisance in considering whether to maintain the ban. On the first amendment this afternoon, my noble friend made it perfectly clear that he was in favour of continuing the ban, and so am I. Like him, I am a late convert to the scheme. I was very suspicious of it, not least because of its provenance which was referred to earlier by my noble friend Lord Finsberg in regard to the notorious Mr. Dave Wetzel of the GLC. The fact is that it is a scheme which has worked and has produced undoubted benefits. I suspect that without the permit scheme the ban will become much less effective.
The amendment refers to the cost of enforcement without the permit scheme, and that goes to the nub of the case. I hope that my noble friend will be able to consult more widely on this before deciding to go down the road of ending the permit scheme. I have considerable doubts as to whether the cost savings as a result of ending the permit scheme will bring sufficient advantage to offset the undoubted loss of effectiveness of a ban.
Lord Lucas of Chilworth: Sadly, I find myself opposed to my noble friend Lord Jenkin of Roding and against the amendment. The ban scheme, together with the permit scheme, came into effect before the M.25 was completed. The general position has changed immensely. Without a permit scheme the same number of lorries will require access to London for that essential business which the permit would afford them. I suggest that the remainder will continue, as they do now, to use the
1030
M.25. There is no advantage to a haulier to come through a congested city when there is the M.25 to get around it.
I suggest that the figures which the noble Lord, Lord Clinton-Davis, quoted are somewhat misleading. He said that about 2,000 prosecutions have taken place. I am advised that in many instances the "no permit" prosecution figures relate to technical, "no permit" offences and not particularly to vehicles without any business in London at that time. Companies which have permits for those vehicles in their fleets and likely to have business, have been prosecuted when substituting a non-permit vehicle. Equally, permits do not relate to individual journeys. There is no guarantee that a lorry with a permit is engaged on an exempt journey. Therefore, in some respects there is a contradiction in terms.
In any event enforcement would require clarification that a vehicle with or without a permit is in fact on exempt business. That can only be carried out by the enforcement officers making inquiries as to what exactly the lorry is doing at that particular time and place. If one released the resources currently used in this rather bureaucratic permit system, which many local authorities accept is not very effective, one could bring to bear a greater amount of enforcement power.
I do not agree with the noble Lord, Lord Clinton-Davis, that there is any suggestion in the Bill, or from any other quarter, that the police themselves will be charged with an additional duty. I cannot remember exactly how much I quoted earlier from the letter. Perhaps Members of the Committee will forgive me if there is a little repetition. The superintendent of the Headquarters Traffic Unit of the Metropolitan Police Service says:
"We agreed that deregulation is likely to result in more vehicles being stopped than at present. Because it is often during such stops that other, unrelated, offences tend to come to light, it will, of course, be in our interests to co-operate as fully as possible with the LBTS, commensurate with our other operational commitments".
It has always been the case that the responsibilities placed on the police authorities should be commensurate with their operational responsibilities. I cannot understand where the noble Lord opposite sees an additional responsibility being placed on the police.
Lord Clinton-Davis: If the noble Lord's arguments are right, why have not the police voluntarily assumed a greater role on the issue of enforcement in order to achieve the ends to which he referred earlier—namely, the disclosure of possible other offences? There is nothing to stop them doing that.
Lord Lucas of Chilworth: I do not know very much about police operational duties or responsibilities. I believe that this is an element of priority—that is to say, the abandonment of a permit system does not alter in any shape or form that order of priority.
Lord Tordoff: But it makes it more difficult to spot people who are offending. Therefore, in order to catch the offenders, you have to stop more people rather than just the people who are not carrying a licence. Surely that is where the extra cost comes in.
Lord Lucas of Chilworth: The noble Lord, Lord Tordoff, ought to be fairly reasonable about this. We are talking about a permit stuck on a windscreen; we are not talking about a whacking great number plate. Surely the evidence is self-evident. For example, if a 16.5 tonne lorry is standing in a street at a certain time where there is a ban, that is all the evidence that is needed; it is not for somebody to walk up to the vehicle to see what certification or badges are stuck inside the windscreen. In any event, there is no difficulty with local authorities imposing and enforcing bans on a 7.5 tonne vehicle. Very similar restrictions could be placed on the larger lorry by traffic management schemes.
Baroness Hamwee: One might think that the noble Lord, Lord Lucas, was in support of a total ban across London. In fact, the scheme as it now operates provides lorry operators, who have acceptable reasons within the scheme, with permits to use particular roads during hours when otherwise they would be banned. To suggest that the ban is being infringed simply because a lorry of a certain size is parked in a street, is a more stringent position for the operators than the ban we are currently discussing.
The noble Lord said that many boroughs claim that the scheme is not effective. There is no requirement on the boroughs to join the scheme, but the fact is that the majority of them have. It is accepted both tacitly and explicitly by other boroughs which are sandwiched between those areas which operate the scheme, that they themselves benefit. If you cannot go on either side of an area, then you are unable to go through the middle of it. The noble Lord also said that with the M.25 there is no need for the permit scheme. For those operators who use the M.25 the scheme should be no problem.
By these proposals, we seem almost to be reducing the whole of London to one big lorry ban area. I cannot imagine anything more difficult to enforce. Indeed, the Department of Transport's guidance manual states that area lorry bans are particularly difficult to enforce.
In supporting this amendment, which is grouped with a number of others to which I have put my name also, I shall not repeat the arguments that have already been made, which is not to say that I do not agree with them, but I am aware that there are many other important matters to be discussed before the day is out. However, I should say that if the deterrent effect of the scheme is reduced, it is likely that there will be more opportunistic journeys across London, an increasing level of ignorance of the controls, the enforcement teams will have to cope with a much higher level of infringement than currently, and the scheme will be in danger of coming into disrepute.
5.30 p.m.
Lord Mackay of Ardbrecknish: As I have explained in my previous interventions in the debate, we believe that the abolition of the permit system, with its incumbent bureaucracy, will generate substantial savings—not just for the industry, but also for the London boroughs—which could then be used by the boroughs to enhance the enforcement effort.
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As the system works at present, permits are issued and lorries display plates when driving in London. But, as my noble friend Lord Lucas said, the plate does nor. guarantee that the vehicle is complying with the relevant conditions of the ban. Thus at present to enforce the: scheme even lorries with permits have to be stopped to check that they are complying with the requirements of the ban. Once the permit system has been removed, the ban, as I have explained, will continue to operate. Checks on vehicles will establish whether they are on a journey that is allowed under the exemptions. The existing roadside checks which are carried out by the London Boroughs Transport Scheme, with the support of the police, will continue.
We estimate that removing the bureaucracy of the permit system will save the London Boroughs Transport Scheme in the region of £400,000 based on the costs in this financial year. This is equivalent to the cost of an additional eight full-time police officers. Enforcement could thus be substantially increased at no extra cost above that already incurred by the scheme.
On the question of roadside checks, it has been suggested that documentation would not be available on the lorry for scrutiny by the authorities when they stop vehicles. However, the simple fact is that most lorry drivers carry delivery notes. Indeed, I suggest that they all carry delivery notes and consignment notes otherwise they would be driving around in circles until somebody stopped them saying, "I think what you're carrying is bound for me". Of course they carry delivery notes. The operators of the vehicles are not in the least concerned about the need to carry documentation. As I have said, some documentation is already carried. Furthermore, as part of the consultation that we discussed earlier, there will be consultation on the form of the documentation that will be needed by each lorry.
If one accepts—as I and my noble friend Lord Lucas accept —that many lorries can be on what one might term "illegal journeys", even if they have a permit, one realises that the carrying and checking of documentation will enforce the ban not only on those people who currently "take a flyer", if I may so describe it, and drive in without a permit, but on those who currently, under the cover of having a permit, make other journeys which might not be consistent with the ban.
The noble Lord, Lord Clinton-Davis, was sceptical about various schemes such as the multi-agency checks. I advise the noble Lord that most multi-agency checks begin at 6 a.m. Lorries that are pulled in between 6 a.m. and 7 a.m. from restricted streets would be subject to the ban and would have to explain why they were there. Checks could be started earlier, but there is little doubt that there will be a time in the early morning—between, say, 6 a.m. and 7 a.m.—when a great many vehicles will be moving about in a restricted area to make the deliveries that we discussed earlier.
As I have said, we believe that the savings that the London Boroughs Transport Scheme would gain from the removal of the bureaucracy could be used to enhance the enforcement effort. It is, of course, for LETS to determine what it would do to increase the level of enforcement and what level of enforcement would be appropriate in the circumstances. We believe that an

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improvement in enforcement could lead to a better situation for the residents of London than the London lorry ban.
The amendments would prevent the Secretary of State using the order-making power where it would increase enforcement costs even if they were offset by administrative savings of some £400,000 from the abolition of the permit scheme. I do not believe that that would be a sensible way to go. I hope that I have managed to persuade the noble Baroness and the noble Lord on at least that issue.
My noble friend Lord Jenkin of Roding raised his concerns lest the removal of the permit scheme means that the ban will be less effective. I have tried to explain that increased enforcement of lorries—both those with permits and those which currently take a flyer without a permit—must help the ban. If people who might be prepared to take a chance knew that enforcement had been increased and that the chance of being caught and fined had increased, I suggest that they might be discouraged from taking that chance.
A number of the issues that have been raised will clearly arise in consultation and will then be considered by the Secretary of State when he comes to decide whether or not to make the order. I suggest that the amendments in this group would not do what they are intended to do, which is to improve the situation with regard to the ban by increasing enforcement. As I have said, enforcement can be increased by LBTS if it decides to use the money saved for that purpose. For all those reasons, I hope that the noble Lord will see fit to withdraw his amendment.
Lord Tordoff: Before the noble Lord, Lord Clinton-Davis, responds to that, I should say that the Minister seems to be living in a fantasy land. He talked about eight extra policemen. That is one per five boroughs yet he says that that will provide a huge deterrent to those people who might want to take a flyer and come in when the permit has been removed. The whole point about the permit is that it is a coarse filter. It is not perfect, but somebody spotting a lorry in the wrong place and without a permit knows that it should not be there. A lorry in a certain place with a permit may or not have the right to be there, and clearly will have to be checked. The provision of an additional eight policemen throughout the whole of Greater London seems less of a deterrent than the Minister suggests.
Baroness Hamwee: As I do not think that the Minister is seeking to respond to my noble friend, perhaps I may ask him a question about the consultation that the department is to have with various authorities. I refer to a problem that arises when lorries are stopped for multi-agency checks. I agree that that prospect must be a great deterrent as it involves the Department of Transport, the police and Customs. However, are not those multi-agency stops easily avoided or even evaded by the use of CB radio messages, to which many of the lorries have access and by which they may be able to warn their friends? I simply ask the Minister whether he will bring that point into his consultations.
Lord Mackay of Ardbrecknish: I had not thought about CB radios, but clearly that is a way round any legislation. If the spotters were there and the CB radio operators were on the ball, they could warn their friends. That is one of the problems about the advent of CB radios. Speed traps also encounter that problem with heavy vehicles.
However, perhaps I may advise the noble Baroness that the enforcement teams pick up a great many lorries when carrying out such stops. I have a note of one exercise recently in east London where the LBTC declined the invitation to attend. Many faults and irregularities were detected on the vehicles that were stopped. Some 17 vehicles were prohibited from the roads immediately, 273 warnings were issued and 140 offences prosecuted subsequently. That suggests that they do not use CB radios or that they did not have them. I do not know which.
Lord Clinton-Davis: I have some reservations on one matter which is in a way fundamental to the amendment: whether we have drafted the amendment correctly. To deal with the principle, which is the all important matter here, the Minister has made a number of assertions but has not coupled them with any evidence. He has said that there will be substantial savings for local authorities, among others. He has said that over and over again. What are the substantial savings? What amount does he have in mind? To what extent therefore can additional resources be ploughed back into enforcement? He did not say a word about that.
Lord Mackay of Ardbrecknish: I thought that I did mention that. I thought I mentioned the figure of £400,000 which will be saved by the LBTC in bureaucracy costs alone. That is the figure to which I was referring.
Lord Clinton-Davis: I of course accept what the Minister is asserting, although I challenge what he is saying, because I challenge the fundamental assertion that the cost to the industry is anything like that which the Minister has asserted, wholly on the basis of course of anecdotal information which has been provided for him by the industry itself. They are issues which are challenged strongly, as the noble Lord, Lord Jenkin, said, by the Touche Ross and Oscar Faber reports and so on. The Minster said that he has not had an opportunity to consider those reports but that they have arrived on his desk. One of the reasons why I shall not press the matter to a Division tonight is to enable the Minister to consider carefully what is in those reports so that there might be—I am not terribly optimistic that anything will change the Government's mind on the matter—an outside chance that what has been reported could commend itself to the Minister.
I take it from what the Minister has said that he will consider those reports before we debate the issues on Report. I see that he is nodding in approbation.
Lord Mackay of Ardbrecknish: I should have happily considered them before the Committee stage had they been sent, as I said, more than just half-an-hour before we started this afternoon's proceedings.
Lord Clinton-Davis: As I think the Minister will concede, that is not my responsibility. I did not commission the reports. I am not responsible for the reports, but I accept that it may have been better, from the point of view of his consideration of the matter, had they arrived earlier. But that does not diminish the importance of what is said in them. I am glad that the Minister has said that he will consider those issues.
Dependence upon the police will rely heavily upon their assessments of the order of priorities. If it is eight extra police officers in London, that will not add much to the scheme's effectiveness. In fact, it cannot begin to compete with what we already have. A substantial increase in police resourcing would be needed for an effective system to be achieved.
I should like to hear much more from the Minister about police reaction to the proposal. It is not enough merely to provide a bit of anecdotal evidence as to what one police officer has said. We need to have some authoritative evidence as to how the police regard the issue, because my information, which could be wrong —again it is hearsay—is that the police do not welcome the increased powers which will fall to them. They do not accept that eight additional police officers can begin to carry out those requirements.
As to delivery notes, the Minister seems to think that delivery notes are the complete answer to everything. They are not. I beg him in the interim period to have a look at examples of different forms of delivery note. I hope that he will see from that that the evidence necessary for a successful prosecution will be difficult to procure on the basis of some of the delivery notes used currently. I ask him to reconsider what I said earlier —I shall not repeat it—about the efficacy of the evidence that would have to be procured in the courts.
On the question of enforcement strategy cost comparisons, that is a matter to which I shall not refer again. It is dealt with effectively in the Oscar Faber report. I thank those Members of the Committee who have participated in the debate. I should like to conclude with a comment that I noted made by the noble Lord, Lord Lucas. He and I have agreed and disagreed on transport matters frequently. I think that we have agreed on this, because what he said about the police—this was the nub of the argument—related to the element of priority. They are not willing to give to the policing and monitoring of this scheme the priority that will be required to render it enforceable and effective. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 177A and 177B not moved.]
5.45 p.m.
Baroness Hamwce Baroness Hamwce moved Amendment No. 177C:
Page 22, line 15, at end insert ("while being consistent with the principle that the polluter should pay.").
The noble Baroness said: I shall speak also to Amendments Nos. 177E, 177J and 177L which are grouped with Amendment No. 177C. I shall be brief, although the matter is important. This group of amendments deals directly with environmental issues. The subject of traffic on London streets is one which I am sure will be on the minds of many Members of the
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Committee. We have the advantage in the Chamber of, I hope, filtered air but certainly cool air. The atmospheric quality outside the building over the past weekend and today has been poor. I am sure that many Members of the Committee who have been in London over the weekend will have felt the effects.
This group of amendments seeks to add to the Bill the requirement that any alteration to the scheme made by the Secretary of State will protect the environment as effectively as is the current situation and will be consistent with the principle that the polluter should pay. The enforcement of the ban has assisted the environment in London in that it has reduced the number of heavy lorries which damage our roads and pavements; it has reduced noise and vibration at night; and it has reduced light pollution. That is no small matter. The intrusion of powerful headlights into residential properties is disturbing. The Minister has told us that there will be consultations. I hope that, consistent with the Government's own words generally about protecting the environment, those considerations will be taken into account. I should like to see them on the face of the Bill. I beg to move.
Lord Jenkinof Roding: The noble Baroness, Lady Hamwee, mentioned noise pollution and I was reminded of a study that was carried out in Paris. It related to a motorcycle, but a large lorry makes every bit as much noise. It was calculated that if, in the small hours of the morning, a motorcyclist drove from one side of Paris to the other, going straight through the middle, 400,000 people would be woken up in the course of him doing so. That impressed me mightily because it is a measure of the disturbance caused by vehicles using cities at night. Their populations are dense and people do not like sleeping with their windows shut, particularly in weather such as this.
I hope that my noble friend is right in saying that the new enforcement measures will be more economical and effective. I gave that example in order to reinforce my plea that the consultation that we must have with local authorities and others, which his right honourable friend has promised, will examine those points thoroughly before an order is made.
Lord Clinton-Davis: I support the amendment. Someone will have to pay a heavy price for what I believe will be the less rigorous enforcement of these rules, and it will be the London resident. I well remember that when I was a Member of the House of Commons representing Hackney, an area that was particularly prejudiced by reason of what was; happening, the problem was not one about which I received the most mail but there was always a regular flow of letters. People were being disturbed at night and during weekends and that was one of the reasons that the London lorry ban came into operation. I believe that we shall return to that situation and I am appalled by the prospect. If this scheme comes into effect, I hope that I shall be proved wrong.
The air-brake silencers have particular relevance to the environment and I believe that they should be fitted as standard equipment. However, the Minister is proposing that there is no need for their fitting because

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a new European standard will come into effect in 1996. That standard will not come into effect immediately. The Minister would say, "That does not matter because, for the most part, all new vehicles are fitted with the new air-brake silencers and therefore there is no need to impose that". It will be well into the next century before all lorries have air-brake silencers fitted as standard components. That is highly germane to environmental issues and I should like to hear what the Minister has to say about it.
Lord Peyton of Yeovil: I believe that the noble Baroness, Lady Hamwee, is overloaded with good intentions and I do not believe that it would be wise to insert them all on the statute book. I do not believe that the phrase "the polluter should pay" originated with the noble Baroness. It is a glib phrase with which some politicians are happy, but I do not believe that it will fit well on to the pages of our statute book. I have no great respect for the statute book as it is, but one does not want to mess it up with any more such glib phrases. I am reasonably confident that on this occasion my noble friend on the Front Bench will agree with me.
Lord Lucas of Chilworth: I believe that this is the wrong provision for the discussion of vehicle noise. Notwithstanding any EC directive on the matter, it would be wrong to suppose that the vehicle industry is not aware of its responsibilities in regard to pollution, whether it relates to a motorcycle or to a heavy goods vehicle, or to road damage, springing and suspension, chassis noise, engine noise or silencer noise. A good deal of effort, research and resources are being put into that problem. I suggest that it would be wrong to introduce a specific reference to that aspect of the lorry ban or to the absence of a permit. Therefore, I subscribe to the views put forward by my noble friend Lord Peyton of Yeovil.
Earl Attlee: The noble Lord, Lord Clinton-Davis, advocated the use of air-brake silencers, as does the London boroughs lorry ban scheme. Is he aware that it is most dangerous to retrofit anything to the air-braking system of commercial vehicles? Is he further aware that within the industry there is a great deal of concern that less sophisticated operators may be tempted to avoid the air-brake noise by not fitting suitable air-brakes?
Is the noble Baroness, Lady Hamwee, aware that the industry has gone to great expense to manufacture diesel engines to the new Euro 2 standards, which produce a great deal less pollution? As was mentioned by the noble Lord, Lord Lucas, a great deal of effort is paid to making lorries quiet. I believe that the noble Baroness must agree that the modern large lorry is very quiet indeed.
Lord Mackay of Ardbrecknish: Again, I am happy to reassure the Committee that we attach the greatest importance to the environmental protection offered by the London lorry ban. We have no intention of weakening its provisions. I reiterate that lorries with no business in London at the time of the ban will be liable to enforcement action. They will have to continue to make the maximum use of routes exempt from the ban
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and drivers will be expected to carry documentary evidence to justify their journeys on the restricted network. As regards carrying documentary evidence, the burden of proof will be on the defendant to establish that he had the benefit of an exemption from the ban because of the nature of the journey that he was undertaking on the restricted network. There will be no relaxation of the existing strict requirements.
Enhanced roadside enforcement of the ban can protect Londoners from those vehicles tempted to "rat run" or to make improper use of the restricted network. This protection will be fully maintained in the future under any revised order. As I have explained, there will be some savings on the LBTS, and I am not sure whether the Committee was disputing that £400,000. What appears to be disputed is the £400,000 which the LBTS consultants placed on the saving to industry and the figure of up to £3 million which, from our inquiries, we suspect is a better estimate of the saving to industry.
I do not believe that Amendment No. 177E is appropriate. Circumstances can change, meaning that the level of environmental disturbance caused by lorries will change. For instance, new roads, such as the M.25, can be built which considerably affect traffic route patterns. The completion of the M.25 has done much to relieve London of lorry traffic both during the daytime and at night. Therefore, it is inappropriate to have the test proposed in the amendment because it would mean that no account could be taken of improvements in environmental protection afforded by extraneous or unrelated developments.
Some of those developments have been mentioned. The technology with regard to lorries has improved; for example, vehicle suspensions have been improved, which reduces the amount of body rattle. Technology with regard to engines has improved, which not only reduces atmospheric pollution but also reduces the pollution caused by noise. The noble Lord, Lord Clinton-Davis, mentioned air-brake silencers. As he said, under the EC directive, they have to be fitted to all new vehicles in 1996. Clearly, as fleets are updated, all vehicles will eventually be fitted with such silencers. That will greatly improve the position. In changing what we expect from the design of motor vehicles, the improvements take time to work through as elderly vehicles that do not have the advanced technology move out of the fleet and the vehicles with advanced technology move in.
It is not clear what legal effect Amendments Nos. 177C and 177J would have. The principle that the polluter should pay is useful generally as a basis for considering policy and in particular, taxation policy. But I am not clear what it would achieve here. If the noble Baroness suggests that lorries driving through London should in some way compensate residents for the pollution caused, I should remind her that, apart from the complications involved in doing that, many of those vehicles are entering London legitimately to carry essential goods and to do important work for the ultimate benefit of local communities. Therefore, I believe that the amendments are unnecessary. I hope that the noble Baroness will not press the amendment.
6 p.m.
Baroness Hamwee: I accept that the term "the polluter should pay" is slightly glib and perhaps more useful in general speeches than as a matter for legislation. Nevertheless, an acceptance of the need to protect the environment is important. In his response, the Minister has more or less drafted for me the amendment which I may table at the next stage; namely, to allow account to be taken of technical and other developments. I accept that point. In the circumstances, I do not seek to press the matter and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. J77D to 177M not moved.]
Lord Tordoff Lord Tordoff moved Amendment No. 178:
Page 22, leave out from beginning of line 42 to end of line 44 and insert ("no such order shall be made unless a draft of the order has been laid before, and approved by a Resolution of, each House of Parliament.").
The noble Lord said: I move this amendment on behalf of my noble friend Lady Hamwee. The noble and learned Lord, Lord Simon of Glaisdale, has already given notice to the Committee that he intends to join our discussions on this matter and he will be welcome so to do.
The amendment takes us back to the report of the Delegated Powers Scrutiny Committee. Paragraph 7 on page 2 of the report sets out the argument. To put the matter simply—and I do not believe that I need go beyond that—there was discussion with the department as to whether it was appropriate to use the negative instrument procedure. The department said that it was appropriate because orders will provide for changes to existing subordinate legislation which itself is not subject to parliamentary procedure. The Select Committee's reply to that was:
'The Committee urges the House to consider whether this is a sufficient justification for the negative procedure in this case, given the potentially wide extent of the powers, or whether the affirmative procedure would be more appropriate for orders made under Clause 24".
No one can pretend that the clause is not wide ranging. We have already spent two and a half hours debating various aspects of it. It seems to me that orders made under this clause should receive the positive scrutiny of your Lordships. I know about the problems that we have with any orders and I do not wish to become involved this evening in an argument about that. It is hoped that the procedure with regard to those may improve in the future. But at present we have a better opportunity to debate these matters if they come before us by way of the affirmative rather than the negative procedure.
I remind the Committee that these matters are not subject to the safeguards provided under Clause 1 and subsequent clauses of the Bill. Orders made under Clause 1 will be subject to the procedural safeguards which we have discussed already. But orders made under this clause will not be subject to those procedures because this is a piece of primary legislation.
I am arguing that this matter is sufficiently serious for it to be dealt with by the affirmative procedure. It should not be left to the negative procedure. I beg to move.
Lord Simon of Glaisdale: I support the amendment as strongly as I can. It concerns parliamentary control over a very important provision that has been debated now for two hours and more.
When I first saw the clause, I was filled with apprehension. I thought that it fitted in with the supply side concepts of the rest of the Bill, which are none the worse for being supply side concepts. I thought that it proposed to remove, in the interests of business, the ban on lorries in London. That particular apprehension has been dispelled totally but, in its dispelling, a number of very puzzling matters have emerged. The Minister, who has been so clear and forceful and in such command of his brief, has made it absolutely clear that the ban remains. So far as I can see, the only difference is that the permit system is to be obviated and something that is not very clear is to be put in its place.
The noble Lord repeatedly used the word "bureaucracy". He said that the Government are sweeping away bureaucracy. But with all his abilities, he failed to explain why obtaining and showing a permit is more bureaucratic than carrying the documentation which is apparently now required. Of course, they are both bureaucratic provisions and the first question is whether they are necessary. Obviously they are necessary because if there is to be a ban, it must be policed in some way.
Secondly, it is quite clear that a power that is at present vested in the local authorities is to be transferred to the department. Again, I do not see why Whitehall is less bureaucratic than town hall. Nor do I see that the centralising feature can be justified in any way. As I understand the scheme, the ban is to remain. The present ban is, in its incidence, considered by local authorities. They know the needs for provisioning of their shops, on the one hand; on the other hand, they know the needs of their constituents to have freedom from pollution and noise. They are in a very good position to weigh that balance, which lies at the heart of the Bill.
The ministry is in nothing like such a good position. As the noble Lord, Lord Cockfield, said In his memorable speech on Second Reading, every department has its own agenda. I venture to put it rather more unfavourably: a department necessarily has something of a tunnel vision. The Department of Trade and Industry is concerned with the supply side. It is concerned with businessmen and enabling them to fulfil their functions as efficiently as possible to satisfy the wants of the consumer. That is its concern. The department is nothing like so concerned with the various matters which the noble Baroness mentioned during the debate on the last amendment and which were certainly endorsed by the Minister.
That is how the Bill stands at present. However, it gives the Minister those powers which are to be taken away from local authorities and states that they are subject only to the negative resolution procedure. If there was ever a case where parliamentary control is required, it is where a department with its agenda, its tunnel vision, sees only one side primarily of the balance. Parliament is needed to restore the balance— or, if not Parliament, some other institution. But in this case it is only Parliament.

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What is offered is the negative resolution procedure, the defects of which are well known. So far as concerns the other place, more often than not the negative resolution is never reached at all because time has run out. However, as for this place, there is the additional disadvantage that the Government recently invented a completely spurious parliamentary convention; namely, that Members of this Chamber do not vote against a subordinate resolution a fortiori, of course, when it is a negative procedure which may not come before this place.
In this case, it is of the first importance that the affirmative resolution procedure should apply. Members of the Committee should make it abundantly plain that there is no such spurious convention precluding Members of this Chamber from performing their proper parliamentary role. In its memorandum to the scrutiny committee, the department said that the Minister's draft orders would be concerned with secondary legislation, meaning the present scheme. Indeed, so it would. But the Minister is assuming very wide powers under the Bill and the proper way to scrutinise them is by the affirmative resolution procedure.
The scrutiny committee has signalled that in its accustomed way with the utmost clarity. Quite clearly, members of that committee believe that this is a case which calls for the affirmative procedure. The scrutiny committee has been an enormous success, partly because it has been so moderate in its recommendations. In many cases, it has accepted the negative resolution procedure, even in respect of Henry VIII provisions. However, when members of that committee signal as clearly as they have in the passage cited by the noble Lord, Lord Tordoff, we are virtually abandoning them and that machinery if we disregard what they clearly think.
As I said, the scrutiny committee has been an enormous success. It has abundantly justified the recommendation of the Jellicoe Committee and that of the procedure committee which brushed aside the understandable reservations of the Government. The Government are now engaged in trying to downgrade those recommendations and in downgrading parliamentary control. If parliamentary control is negative in this case, it is largely in the hands of Members of this Chamber. However, what is desired is to vindicate the right of Parliament as a whole—that is, both places—to scrutinise the legislation now before us. It cannot be amended; but it can be debated, disapproved in debate, withdrawn and then perhaps relaid. Members of the Committee have the opportunity to maintain the role of Parliament at a time when Parliament is coming under some criticism. Therefore, I hope that the Minister will avoid any embarrassment by saying that he accepts the amendment.
6.15 p.m.
Lord Peyton of Yeovil: I am much relieved to find that the noble and learned Lord, Lord Simon of Glaisdale, has, as indeed I have, misunderstood the meaning of the clause. Like the noble and learned Lord, I misunderstood it because I had obviously misread the
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relevant section in the Explanatory and Financial Memorandum. The latter gave me the impression that Ministers would subsequently be able to remove not only the permit system but also the ban on heavy lorries in London. However, I have learnt with some relief from my noble friend the Minister that there is no power in the Bill to enable Ministers so to do.
My second point has already been referred to, and I do not wish to repeat everything just said by the noble and learned Lord. However, for myself, I can recall Ministers constantly objecting to amendments on the grounds that they would be meaningless and that they would add nothing to the legislation. There is no point whatever in saying that this Chamber should have the right to use the negative resolution procedure because that is never used here. Therefore, what is the point of having it? We must have an affirmative resolution procedure because the negative one is absolutely meaningless and of no value to this place; indeed, it adds nothing to parliamentary control. I agree with the remarks made by the noble and learned Lord.
Lord Harmar-Nicholls: I hope that the Government will look again at the matter. If we are to have any faith at all in the parliamentary system for scrutinising legislation when we have given powers to a Minister, the evidence of the past two hours has proved that, on this clause, the affirmative resolution procedure is the only one that would meet the requirements of the Bill. That is especially so if we accept the convention that in this Chamber we do not proceed on the negative resolution.
The noble and learned Lord said that Members of another place usually put such matters at the end of their agenda and that, therefore, they are dealt with rather cursorily. But in this Chamber we hardly ever deal at all with the negative procedure. In the circumstances, and in view of the arguments that have been put on the record this afternoon, I hope that this is an occasion when either we can alter our convention and be as active on the negative procedure as we could if we did not have that convention in our mind, or, better still, have the affirmative resolution where, when a measure is beginning, Parliament can give its views on it.
Lord Mackay of Ardbrecknish: We come to an amendment which is, of course, not directly involved with the detail of the permit system and the London lorry ban, but rather about the parliamentary scrutiny of any order which my right honourable friend the Secretary of State for Transport might bring forward. As a founder member of the Delegated Powers Scrutiny Committee— I was plucked out of it by an invitation to join the Government—I fully recognise the arguments which have been made, and in particular the, as usual, powerful argument of the noble and learned Lord, Lord Simon of Glaisdale. I am not sure whether I do my case any good by admitting to him—he mentioned that every department had tunnel vision—that tomorrow morning I am to address a conference entitled "Tunnelling '94". I am not sure whether that will enhance his suspicions.
I suggest that there are two aspects of the particular order referred to in this clause which perhaps the Committee ought to consider before pressing on me the

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need to use the affirmative procedure. The first is that the Secretary of State's power under this clause is deliberately restricted. As my noble friend Lord Peyton of Yeovil pointed out, he is empowered only to amend the permit-based lorry restrictions in London where an undue burden on business is imposed. Only the London-wide ban operating—
Baroness Hamwee: I think I heard that aright—an undue burden? We will return to that on Report.
Lord Mackay of Ardbrecknish: Obviously the words of the noble Baroness are ringing in my mind with regard to burden. The moment that slipped out from the previous debate I realised that the noble Baroness would be on her feet. This shows of course —I was testing to make sure of this—that she was not asleep.
I turn to the main point of this serious argument. The London-wide ban on vehicles remains in place. This clause deals only with the permit system. Some Members of the Committee would not agree with my use of the word "only" with regard to the permit system because they clearly think it is a key part of the system. However, I shall use the word "only". It is only the London-wide ban operated by the London Boroughs Transport Scheme and a similar restriction in the City of Westminster which would fall under this clause. It is very narrowly drawn and it does not include other prohibitions or restrictions on the movement of lorries either in London or in other parts of the country. I suggest to the Committee that one of the reasons the negative procedure is, in my view, sufficient is that the clause itself is tightly drawn. The other—
Lord Simon of Glaisdale: The noble Lord is always most courteous in giving way and I am extremely grateful. He has recommended the negative procedure as appropriate. Will he accept that your Lordships' House has an untrammelled freedom to vote when a resolution is put forward that is liable to be annulled?
Lord Mackay of Ardbrecknish: I was going to deal with that point in a second or two. Perhaps I can move into it by referring to the second part of my argument. The first part of my argument in favour of the negative proceedings is the one I have made. The second part of my argument is that on any definition—no one has suggested these are so defined—this is not a Henry VIII provision. It does not give the Executive power by secondary legislation to amend primary legislation. What it does do is give the Secretary of State power to amend traffic orders made by local authorities, which are of course themselves subordinate legislation and not subject to any parliamentary scrutiny.
Under the negative resolution procedure it is of course possible for a noble Lord, or noble Lords, to pray against a particular order if they consider it justified, although I fully recognise the arguments put forward so forcefully on this occasion, both in the intervention a moment or two ago, and in his speech, and on other occasions, by the noble and learned Lord, Lord Simon of Glaisdale, about the way the procedures of the House, or the conventions of the House, interact with these matters.
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I am not hugely convinced about the need to change from a negative to an affirmative resolution and I am certainly not convinced that this particular amendment is the one we ought even to consider because of course if the Committee looks at the Bill itself, it will see that the very words "statutory instrument" would be removed. There would be no provision that the order should be made by statutory instrument. Clearly, even to attain the objectives we are discussing, the amendment before the Committee is defective.
However, I recognise the strength of the argument and, as I said, I am not unmindful of the fact that I was on the Delegated Powers Scrutiny Committee when it commenced its role of considering legislation from the point of view of delegated powers. If the noble Baroness would like to consider what I have said in response, I shall certainly consider what she and other Members of the Committee have said in this debate, and I have no doubt we can return to it at Report stage.
Lord Tordoff: Having moved the amendment on behalf of the noble Baroness, obviously in disguise—
Noble Lords: Oh!
Lord Tordoff: —or that sort of thing, I should say that I am grateful to the Minister for what appears to be an undertaking to have another look at the measure. One accepts that the drafting is not necessarily all it might be, but I think that the speech of the noble and learned Lord, Lord Simon of Glaisdale, cannot be overlooked. Also, the support which was given to this amendment from the Benches behind the Minister is something that he should certainly weigh in the balance.
The fact that this is a narrowly drawn clause might be disputed but, even if it were, I believe that there is sufficient matter of importance here for Parliament to have the opportunity of scrutinising properly orders which are made under this clause. To go merely down the negative procedure does not seem to me—and obviously does not appear to a number of other Members of the Committee—sufficient scrutiny lor the seriousness of the case. Having said that, and in hoping that the Minister will be prepared to discuss these matters between now and the next stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 agreed to.
Clause 25 [Employment agencies etc.: replacement of licensing]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 178A:
Page 23, line 30, at end insert:
("(2) Nothing in Schedule 9 or in Chapter I of Part I of this Act shall be taken to allow any amendment or repeal, in whole or in part, of the Nursing Agencies Act 1954.").
The noble Baroness said: With Clause 25 we now come to an entirely different issue because it seeks to remove the necessity for employment agencies to go through a licensing procedure. I hope that the Minister will feel that he can accept my amendment. I believe it has long been accepted that nursing agencies require separate regulation. Under the Nurses Agencies Act 1957, a number of requirements set them apart from the

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general run. Agencies providing qualified nurses must hold a licence under the Act and pay an annual fee. Those providing non-qualified staff must also hold a licence under the Employment Agencies Act 1973 and pay a different annual fee.
The role of the agency is to ensure that the level of competence of staff matches the competence requirements of the client. Recruitment to the agency must be carried out by a qualified nurse who must assess clinical competence and check the work record and personal health record of applicants. To maintain the licence the agency must undergo regular inspections to demonstrate that it is working to acceptable levels of health care.
I cannot emphasise too strongly that health services are not the same as other employment services. The public expects that those who provide health services will have reached a level of competence that they can trust. This is becoming increasingly important with the development of care in the community which means that people will be choosing care assistants and carers from a variety of sources to care for the sick or the elderly disabled, sometimes in their own homes. The regulation of employment agencies providing staff to give that service is therefore a necessary measure of consumer protection and one about which the Royal College of Nursing feels very strongly. Indeed, I am indebted to the RCN for my briefing this evening. I therefore hope that whatever happens to this clause in the Bill, which I do not like and to which I shall return in a moment, the Government will at least accept that health services are different and regulation is a necessary element of public protection.
Of course, sometimes public protection in this area is found to be defective, but not often. However, when there is a breakdown, as there was recently in the Beverly Allitt case, there is an enormous public outcry, and quite rightly so. We have to ensure in so far as we can that cases of that kind do not recur. The existence of the Nurses Agencies Act and the requirement to license under it is a part of that protection. I beg to move.
6.30 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Henley): We can deal with the amendment fairly quickly. We shall deal with the clause itself later. We shall be dealing with the question of theatres. At the moment we are dealing with operating theatres. I apologise for the feebleness of that joke.
Perhaps I may give an assurance to the noble Baroness that agencies subject to the Nurses Agencies Act 1957 are not subject to the 1973 Act or the 1981 order and therefore the present law on nursing agencies in the 1957 Act will remain unaffected by Schedule 9.
With this amendment the noble Baroness seeks to exclude from the ambit of the deregulation order-making power legislation which serves an important purpose in the employment of nursing staff. But, as was made clear during the Committee stage debate on Chapter I, the Government have no intention of removing necessary protection for any group in society or protection of other kinds such as for public health or
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the environment. The way we have drawn the provisions in Chapter I means that the deregulation order-making power could not be used to remove any necessary protection. In our previous debates the strong consultation and special scrutiny procedures for the use of the Chapter I power were fully explained. I do not think that the noble Baroness would wish me to go into that in detail.
I suspect that the noble Baroness wants to know whether we have any future plans to include the regulation relating to nursing agencies. The first and most important point to make clear is that we do not wish at the moment to exclude any specific categories of legislation, or indeed, any specific Acts, from the operation of Chapter I but to leave the powers in Chapter I, which include the necessary safeguards to deal with these matters should that be necessary.
However, I should say to the noble Baroness that as part of a wide-ranging review of regulations across government my ministerial colleagues in the Department of Health reviewed the Nurses Agencies Act and its 1961 regulations. They considered that the Act continued to serve a useful purpose in protecting the public and decided against total repeal at this stage.
However, the legislation has been in place for a very long time. Ministers decided to invite views on the desirability of simplifying the legislation by removing elements which are out of date or impose needless burdens on agencies. A consultation paper was issued in August 1993 to interested organisations, including the agencies, the professions, patients and the service itself. My colleagues in the Department of Health are still considering the results of that consultation exercise. It may be that my right honourable friend the Secretary of State may wish to consult further if she decides in the light of the responses to change the legislation.
I therefore feel that it would be premature for the noble Baroness to press ahead with her amendment to exclude the possibility of making further amendments to that legislation by means of the powers available in Chapter I. I hope, therefore, that she will consider withdrawing her amendment, whatever she feels about the rest of the clause, which we shall debate in due course.
Baroness Turner of Camden: I am grateful to the Minister for what he said. Obviously I shall not press the amendment this evening. He said that consideration was being given to the Act to which the amendment refers. Can he give an undertaking that before any alterations are made to the present provisions the RCN will be consulted? The RCN is very concerned about the matter and has provided the briefing for this evening.
Lord Henley: The noble Baroness will know that, as I made clear, my right honourable friend the Secretary of State is considering further consultation. Obviously, before we proceeded with any proposals under Chapter I consultation would be necessary. That is why my noble friend Lord Strathclyde made it quite clear when we debated Chapter I some days ago exactly what the procedures were. I said that I did not think that it was necessary for me to go through the whole of the Chapter I debate again, but there are procedures and they must

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include consultation with the relevant bodies. I can give a fairly categoric assurance that the RCN, as the noble Baroness mentioned, would be such a relevant body.
Lord McCarthy: The noble Lord is a mine of information. He now tells us about the 1957 Act, which affects nurses. So we now have three categories: nurses, seamen and everybody else. Can he tell us why it is that we are going to change the procedure for seamen and for everybody else but at this moment the Government do not come forward with changes in respect of nurses? Presumably the people who run nursing agencies have to have licences. What is the system which will remain in place for nurses but has been done away with for seamen and everybody else? Why are the Government making this distinction?
Lord Henley: Nurses have a different licensing regime, as I made quite clear. I also made it quite clear that these matters had been considered in relation to whether there was appropriate protection under the Nurses Agencies Act and the 1961 regulations. My colleagues in the Department of Health consider that at the moment the provisions serve a useful purpose. However, as I said, because the regulations are fairly dated they will continue to review the matter to see whether any amendments are necessary. They will consult further as appropriate.
As regards the other parts of the clause, it would be better if we dealt with those issues when we debate the Motion that the clause shall stand part of the Bill. At the moment we are dealing simply with the question of nurses, which we see as a slightly different case.
Baroness Turner of Camden: I thank the Minister for his explanation and for his assurance that the RCN would certainly be one of the organisations to be consulted should it be decided to make any alteration to the Nurses Agencies Act 1957 and the relevant legislation. In the circumstances I do not intend to press the amendment this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 25 shall stand part of the Bill?
Lord Jenkins of Putney: On behalf of my noble friends and myself I rise to oppose the Motion that Clause 25 shall stand part of the Bill. In that I include the schedule to the clause because the clause merely enacts the schedule.
I speak mainly to urge the retention of the licensing of employment agents in the field of entertainment. My noble friend Lady Turner will speak on other aspects and point out other undesirable consequences of the clause and its schedule.
I am concerned primarily with the performance arts, with employment agents in the field of entertainment, the employers in that industry or art, the actors, dancers, musicians, writers and others, those who present and perform plays, who appear in television drama, serials, soaps and in the cinema, and who provide the music, singing and dancing in opera, ballet, musicals and so on. Employment in entertainment is normally irregular and often non-existent. Professional performers seldom
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work for a single employer. Their life is often one of auditions and unemployment. The performers are almost always represented by an agent; they have to be.
The role of the agent varies from the personal manager at the highest monetary artistic level— although the two factors are not always synonymous —to the agent who specialises in certain types of performer with specific skills and qualities or the agent who finds newcomers their first job. They are all necessary to the proper conduct of the business whether one refers to the provinces, the West End, the BBC, ITV or any other of the multi-faces of the entertainment business.
The duties of the agents vary and have become more complex in recent years as performance is no longer a performer to audience affair but increasingly has become a recorded product—a video recorded by someone. The sale and the remuneration for current and future use of that product must be negotiated by people who know what they are talking about, by experts on both sides. The product must be safeguarded and terms must be agreed on precisely what is allowed to happen to the product, its limitation or extension. That is a new issue. The present complexity did not exist even in 1979 when the licensed agent was created. The issue is becoming more complex all the time; and that is likely to continue. The licensed agent is an accepted part of the business—I believe an essential part.
The negotiations are normally carried out by the licensed agent on behalf of his client. Moneys arising are paid through the agent, who at any one time, like a solicitor, may hold in trust a large sum for his client. The agent has become a key figure. He must be: knowledgeable, skilled and a person of absolute integrity.
Malpractice cannot be dealt with after the event, as the Government propose in the, I believe, impracticable schedule linked to the clause. The licence requirement precedes trading and must continue to do so, for that is still an area of work which attracts the most vulnerable and exploitable people in the world. Not only that—it also attracts those who believe that they can make easy money by exploiting that attraction. They believe that they may enjoy a glamorous and even luxurious life in the process. I would not go so far as to refer to the government proposal as a "thieves' and perverts' charter", as the leaflet that I hold suggests. However, the fears expressed in the leaflet —I refer to it because a number of other noble Lords may have received it—are not mistaken. The fear exists, and rightly so. The casting couch is now a theatrical joke. Once it was even less funny; and that concept could return with the abolition of licensing. The damage which would follow the removal of the licensing system would be catastrophic; and licensing would have to be reinstated after a period of chaos.
Before 1973 brought agency licensing, the entertainment economy was a jungle in which the crook, the con man and the lecher roamed free, undeterred by the occasional prosecution. Licensing arrived out of necessity. That necessity is not less but greater today. Without licensing, bad practice—never entirely eradi-cated—would return in force.

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That is why the employers support licensing. They are negotiating with agents not chosen and paid by them but by those they employ. The commission is paid by the performer, not by the theatrical manager. But the theatrical manager needs to know that contracts will be honoured and that money paid to the agent will reach the performer. That is why pre-licensing is necessary. Malpractice is not a matter which can be tackled after the event, as the Government propose.
Some Members of the Committee will have received a letter from Equity. I shall not quote it in full but perhaps I may refer to it in a moment. However, without licensing, the present increasingly complex system will collapse and the damage done in the absence of licensing might be irreparable. The damage certainly could not be repaired by dealing with individual cases after the event, as is now proposed.
Some Members of the Committee who received the letter written on Equity paper may ask, "Does it come just from the performers' side?". Not at all. Ian McGarry, the General Secretary, is a highly respected man. He signs the letter and states that he represents ITV, Channel 4, the Producers' Alliance for Cinema and Television, which covers the whole range of employers, the Theatrical Management Association, the Society of London Theatre, the Institute of Practitioners in Advertising, the Personal Management Association, the Association of Model Agents, the Musicians' Union, the Writers' Guild of Great Britain and the Film Artistes' Association. Are all those people off their heads? They are not. They know the business. They know the dependency on licensing and that they cannot do without licensing.
The letter states four reasons why licensing should remain. First, performers exist in a very competitive environment and are vulnerable to exploitation at the hands of disreputable and dishonest practitioners. Star-struck, youngsters, desperate for the so-called glamorous life of an actor or model, are particularly at risk. Secondly, the current licensing requirements were hard won in the early 1970s and seen as a necessary deterrent to bad practice in a labour market which has been described as a jungle. If anything, performers are even more vulnerable now. Thirdly, unlike any other workers, performers, not employers, pay commission to the agent on a fixed percentage. That is an additional area of vulnerability. Fourthly, there was no consultation on the proposal with any relevant industry bodies prior to its inclusion in the Bill. The Committee may consider those powerful reasons.
I hope that my noble friend Lord Rix will shortly add some colour to this somewhat bald statement. However, I am absolutely convinced that if the Government had conducted the usual consultation, or even if the measure had been referred to a task force, the clause would not be in the Bill. It would have been seen to be crazy to remove a protection for integrity which everyone in the business seeks to retain.
Why did the Government uniquely avoid consultation in this area? Not only do they recommend consultation in their copious literature, but with their task forces they have actually practised it to a degree as
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regards other parts of the Bill. Was it because they knew that the survival of their intent was dependent upon depriving themselves of knowledge?
There was no White Paper (white or coloured) and there was no task force. Did the Government simply want to be rid of the chore of licensing? If so, in London they could have devolved the matter to the Greater London Council—if, of course, they had not abolished the Greater London Council. Did they know that if they consulted almost everyone in the business—the BBC, ITV, all the independent television companies and all the others, together with performers, they would say with one voice: "No, for God's sake don't do it. Don't send us back to the jungle. If you do, you'll ruin the business".
Employment agents in entertainment before 1973 had a poor reputation, as the Government would have been reminded had they bothered to ask. Even the good ones carried around with them the stigma of the casting couch, of the runaways who took with them money that was entrusted for clients, of the show girls exported into prostitution.
The unlicensed agent was a menace before 1973. In 1994, he would be a disaster, bringing down with him the better standards that have gradually been established since licensing, not without effort and not without some failures, but with determination and perhaps some sacrifice. Those standards must not be taken for granted. They have helped to make this country celebrated in the performance arts and in entertainment. Here we have one of our greatest assets in a world in which we have lost our lead in many ways. The Government could have done more to help but until now they have not actually gone out of their way to hinder, obstruct and destroy.
During to the proceedings on this Bill in another place, the Government replied to the points made here by saying that misdemeanours had taken place since licensing and on the part of licensed agents. Of course that must sometimes happen. The cure is to enforce licensing fully and eject the offender from the business. It is certainly not to abandon licensing. This clause does just that, and that is why it must come out of the Bill.
The Act of 1973 was introduced by a Conservative Private Member, Mr. Lewis, now Sir Kenneth Lewis, who has retired from the fray. He paid generous tribute to my own previous failed attempt and to the support that I was able to bring in another place to his successful measure, which was piloted skilfully and without opposition in this House by the noble Lord, Lord Mottistone, whom I am very happy to see in his place. I do not know whether the noble Lord may also have certain points to make. He will, however, agree with me that he received every support from his Government at the time when he introduced the measure and that it met with no opposition from any part of the House. I believe I am right in saying that his Government at the time was under the premiership of Sir Edward Heath. It is that measure that I am talking about now, which that government's mistaken successor now seek to emasculate by abolishing the licensing of employment agents.
The Act of 1973 removed the casting couch from the agent's escutcheon and allowed his rehabilitation and

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establishment as an essential, private and honoured link in an operation of increasing complexity. I have received a mild suggestion that it would be welcome if I were to draw matters to a conclusion. I shall do just that. I hope that perhaps on reflection the Committee and even the Government will agree that they are about to do harm—perhaps even to themselves. If the Government cannot withdraw the clause I urge Peers on all sides to vote in the Lobbies to rectify this prodigious error. If there are government supporters who cannot vote against the Motion, I ask them at least to abstain and not to give their support to a clause containing a mistake which would wreak havoc and lower standards over a wider area than may now be fully apparent.
Lord Moyne: The noble Lord, Lord Jenkins, has spoken very, very persuasively. But he has not spoken quite persuasively enough. I am sure that the organisations that the noble Lord quoted were not off their heads. But I suggest that perhaps they were accustomed to the nanny state. It is a good thing that as far as possible the Government should withdraw from the regulation of everything that they can withdraw from and encourage the industries concerned to regulate themselves. I should have thought that this was a case where that could apply. It is also not quite true to say that actors are the only people who pay fixed percentages to their agents. So of course do writers, whose industry, so far as I know, operates perfectly well without any government interference.
Lord Harmar-Nicholls: A few days ago I discussed this clause outside the House with the noble Lord, Lord Jenkins. As a consequence of that discussion I thought that this was to be one of the rare occasions when the noble Lord and I would be in the same Lobby. But, as he has done so often in the past, the noble Lord has overdone it. He has blown the whole thing by extreme exaggeration. This is a good clause, covering most of the areas that it intends to cover. The noble Lord argued on the one section where he knows something about the matter, and on that part of it I have a lot of sympathy. That was the purpose of our conversation. But to remove the whole clause—which is what the noble Lord now wants to do —on those grounds is an absolute nonsense. I tried to deal with the matter by putting down two minor amendments to the clause which achieve a part of it that would be beneficial without ruining the whole of the Bill.
I believe that this clause forms a very important segment of the Bill. The Minister, Neil Hamilton, who has worked so hard on this and has carried out so much research, deserves our support and congratulation. The problem certainly does not call for the whole thing to be ruined by the removal of a clause which is one of the most important in the Bill. I hope that later on, when we come to my amendment, I can persuade the Committee to say that there is an exemption that could be given and that to give it would be the right thing to do. But at this stage to contemplate removing the whole of the clause is a nonsense. It is unnecessarily damaging, and it would undermine the whole purpose underlying the Bill.
Baroness Turner of Camden: I rise to support my noble friend Lord Jenkins in his opposition to this clause standing part of the Bill. I disagree profoundly with what the noble Lord, Lord Harmar-Nicholls, has just said. I do not know why the Government are pursuing this idea. Why is it necessary to do away with licensing for employment agencies? So far as I am aware the whole thing has worked quite successfully in the past, and since as long ago as 1973. I am not aware of any pressure from anywhere to persuade the Government to take this course—quite the contrary. These agencies exist to provide an employment service and, as we have heard, many operate in specialised areas. There are about 14,500 licensed firms at the present time. It must be to the advantage of employers and prospective employers to know that the people operating a service of this kind are individuals of probity and with some professional expertise. This is not a field that we want to open up to a lot of cowboy operators who are anxious to turn a quick buck by claiming to offer a better and cheaper service. Let us make no mistake. Those people are already out there waiting to utilise whatever opportunity the Government give them with the Bill.
A recent newspaper article attempted to show that even now a growing number of bogus employment agencies are deceiving unemployed people by promising access to well paid jobs overseas in return for a registration fee. We are told that victims—many of them in the building industry—have their cheques cashed and their hopes raised by offers of job interviews which do not materialise. The legitimate agencies, which currently have to be licensed, are not allowed to charge potential employees a signing-on fee. There are people out there simply waiting to prey on the vulnerable—the unemployed who want a job no matter what —whose money is taken from them on entirely false premises.
If the Government succeed in getting this Bill through unamended, such individuals will be able to go on making false promises. The only remedy which will be open—and not to individuals who have been defrauded—is to the Secretary of State who may then utilise the intensely complex procedures in the schedule to try to persuade an industrial tribunal to prohibit the individual agency from trading again.
It seems quite absurd to involve industrial tribunals, which already have very heavy and even unacceptably heavy workloads. As for the employment arbitration tribunals, I understand that it can take as long as two years to have the case heard anyway. How many cases of complaint will the Secretary of State's department have to receive before an application is made to an industrial tribunal? How long will it all take? Will such an outfit be able to continue trading in the meantime?
I am advised that there was no consultation before this part of the Bill was written. That point has already been made by my noble friend Lord Jenkins. It is a very important issue in the Bill. A great many people could be adversely affected and they are not just in the entertainment industry. There are entertainment unions —the Musicians' Union, Equity and others—whose members are threatened by the Government's proposals. But clerical and secretarial workers, who are mostly

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women, for a long time have relied on employment agencies to obtain work opportunities for them. The Transport and General Workers' Union tells me that it now has problems in agriculture following the abolition of a licensing requirement as a result of the operation of gangmasters. There has been widespread exploitation of agricultural workers as a result of the growth of the gangmaster system which has grown up since licensing has not been necessary. It is an example of what can happen across the board when licensing controls are no longer there.
Therefore this evening I hope that the Committee will tell the Government that they should not proceed with this inappropriate clause of the Bill.
7 p.m.
Lord Rochester: Having had long experience of the frustrating effects of restrictive regulations on industry, I start from the position of feeling considerable sympathy with the Government's aim in introducing deregulatory legislation. But, like the noble Lord, Lord Jenkins of Putney, and the noble Baroness, Lady Turner of Camden, I am at a loss to understand why this particular clause has been included in the Bill. From his experience, the noble Lord, Lord Jenkins, voiced the misgivings of Equity and other organisations about the likely effects of the clause. Clearly, no one in the relevant task force asked for it and, as has been pointed out, there has been no consultation at all about it.
It has been suggested that the Government stand to achieve savings of some £300,000 from eliminating licensing employment agencies. I have no objection to such savings. But I am concerned about the effects of the proposed change, under which employment agencies may be prohibited by an industrial tribunal from operating only after abuses have been uncovered and complaints made.
The Government may say that in recent years the number of licences refused or revoked has been small and therefore there is no need for the present system to be retained. On the contrary, that fact may be regarded as evidence of the effective way in which the present system has succeeded in weeding out malpractice before it could do excessive damage.
However, I am mainly concerned about the effect of the proposed arrangements on the administration of justice in this area. As the noble Baroness, Lady Turner, pointed out, there is widespread concern about the delays that now occur in the hearing of cases before industrial tribunals. In the year to March 1993—I have been unable to find more up-to-date figures—no more than 56 per cent. of cases in England and Wales came to a hearing within 26 weeks. The effect of Schedule 9 will be to add to those delays. The Government have given no indication that they are thinking of increasing the resources to be made available to tribunals in compensation.
The Minister will need to produce much better reasons than any of which I am aware to convince me that Clause 25 and Schedule 9 should stand part of the Bill.
Lord McCarthy: One must defend the noble Lord, Lord Jenkins of Putney, because he is a victim of a procedural mix-up. He tabled notice of an intention to oppose Clause 25, which it was thought would take place after all the amendments had been considered. Somehow it seems that the debate on Clause 25 is taking place before the amendments.
Lord Henley: Perhaps I may correct the noble Lord. The debate is on whether Clause 25 should stand part of the Bill. We have already dealt with the one amendment on Clause 25. That is the way in which we normally proceed.
Lord McCarthy: Are we not going to deal with Schedule 9?
Lord Henley: Perhaps the noble Lord will give way. He knows full well that we have a list of groupings of amendments. The groupings are purely advisory to the Committee. If the noble Lord wishes to take Schedule 9 later, he is perfectly entitled to do so. At the moment we are debating Clause 25 and it has been found convenient to group it with Schedule 9.
Lord McCarthy: It is inconvenient, but it has been done now. It is perfectly reasonable for people on the other side, like the noble Lord, Lord Harmar-Nicholls, to say that we are debating the whole issue before we have considered certain minor amendments, including his own, which deal with part of the issue. That is not the noble Lord's fault.
I should like to say very quickly that, since it is in front of us, even at this unfortunate point we should undertake the general debate. For example, it is not enough to say, as was said by the other side, that if we do what the Government want to do, the industries concerned, and in particular the entertainment industry, could return to self-regulation. The fact is that they tried self-regulation for years and in the end statutory regulation was needed. That statutory regulation has worked extremely well. It worked for seamen who also tried self-regulation and did not succeed. For all I know, nurses tried self-regulation and needed statutory regulation.
Here we have dogma. It is a dogma which says that irrespective of what happened in the past, we will abolish every piece of statutory regulation that we can find. It is very recent dogma. In this case, as people who read the debates in the other place will know, as recently as March 1992, in answer to questions, Ministers said that this general provision was necessary. They defended it and spoke as though they had absolutely no desire to introduce deregulation in this area. Yet they have done so, and done it without any consultation at all. There was no demand from the task force or from any of the employers. As for the broad scope of the clause, there has never been any demand from the shipping employers. There has never been any demand from the professional associations or the unions —though we do not expect the Government to take any notice of that. In fact, there has been no demand from anybody.
It is absolutely clear—I challenge the Government to deny it—that their proposals are not a substitute for what we have. As the noble Lord said, there will be no

1055
regulation and no prevention until the case has become so bad that a number of people have written to the Secretary of State, he has found one or two inspectors (if he has any left) who have investigated and enough stuff has been built up. There may then be a case for an industrial tribunal.
Let me make one last point about industrial tribunals. We all know that industrial tribunals survive and become acceptable in a modest way only because of the conciliation process. Nine out of 10 cases which come forward on unfair dismissal, or on most other aspects dealt with by industrial tribunals, go into conciliation. They go to ACAS and nine out of 10 cases do not reach the tribunals because they are settled by ACAS.
In this case there cannot be conciliation. Every case will have to go to a tribunal and the effect on the case-load will be disastrous in that regard. We are saying that for pure dogma we shall abolish the regulations; people will have to wait until the situation becomes so bad that the Secretary of State takes action. Nobody wants this except the Government and they want it only because of dogma.
Lord Rix: I rise to support the amendment. There seems to be some confusion. First, I am not sure whether we are past the dinner hour; and, secondly, I am not sure which part of the amendment I am supporting. I am speaking to support the part of the amendment which will ensure that employment agencies for actors and artists continue to be registered.
Lord Henley: I can assure the noble Lord that the amendment has only one part; that is, to take out the entire clause, whether it relates to actors or whoever.
Lord Harmar-Nicholls: Perhaps I may say to the noble Lord that my two amendments are designed to achieve exactly what he says he wants.
Lord Rix: Perhaps it would be more suitable for me to speak to the amendments of the noble Lord, Lord Harmar-Nicholls, after the dinner break rather than at present on the current amendment.
Lord Wedderburn of Charlton: I submit that it is not right that carnal appetites should govern the proceedings of this so-called legislative Chamber. This is one of the most important clauses, and one of the most important schedules, in the Bill for ordinary working people. It is right that points should be placed on record. If they fail to register tonight, at least they can be taken up on Report.
I shall make two points briefly. Were there sufficient time I should try to seduce the coy Ministers who put the Bill forward, but I am told that there is not time. First, I support my noble friend Lord Jenkins. With his enormous experience of industry and human affairs his case is overwhelming. But in saying that, I must perhaps disclose my interest. I have a little experience of industry, employers, trade unions and employees. For 19 years I was independent chairman of the joint councils of the London Theatre Council and the Provincial Theatre Council. Everything that I saw confirmed what my noble friend has said. If nothing else, the clause and the schedule must not destroy the
1056
arrangements which are in the interests of both employers and employees because, as my noble friend said, both sides will register.
I make a specific plea and if it means supporting the amendments of the noble Lord, Lord Harmar-Nicholls, then so be it. But I would prefer to take out the whole schedule, for this reason. The enforcement mechanism of the industrial tribunals is complete nonsense. Those: less charitable than I may say that it was included in the Bill to be a nonsense because it will not protect ordinary people. First, if it were a suitable mechanism it would be wrong for the Secretary of State to be the only possible applicant. Secondly, on the judgments that are supposed to be made by tribunals on the unsuitability of directors and managers, the schedule was drawn up with no reference to and experience of the difficulties in which the High Court found itself in relation to the unsuitability of directors under the Companies Act as amended in 1989. Many people with a wealth of experience would not draft the schedule in anything like this crude form.
Thirdly, the problems of the tribunals are compounded by the fact that in this unusual and rare case their judgments will be the foundation, if there is not suitable performance and acquiescence in place of it, of a criminal offence. The industrial tribunals are not at their best when associated with criminal sanctions. It is a flaw which goes to the core of the schedule.
Fourthly, among a list of objections that could be much longer—the general case-load problem, the problem of delay spoken of by the noble Lord, Lord Rochester, and my noble friend Lord McCarthy—the absence of conciliation, leading to delays, will l be quite unacceptable as a normal method of enforcement. The Government should go away and consult, especially with those who know of the High Court problems in relation to unsuitability of company directors under the Companies Acts; they should look at the procedures of industrial tribunals and come back with something different that does not use them as the central part of an enforcement mechanism, if they must have one.
7.15 p.m.
Lord Henley: I can assure the noble Lord, Lord Wedderburn, that it was not my carnal desires that led me to intervene. Rather it was the look on the face of his noble friend, the Opposition Chief Whip, that encouraged me to try to bring the debate to a head.
The licensing of employment agencies is a typical example of unnecessary regulation. It does little to protect people who use agency services. It is a very bureaucratic exercise and imposes on the industry— many members of which are small concerns—both licence fees and administrative costs.
The main purpose of Clause 25 and Schedule 9 is to relieve the industry of those burdens while ensuring that controls exist which offer agency users protection from malpractice and abuse. We believe that the repeal will save the industry over £2 million per year. Licensing no longer plays a significant role in maintaining standards in the modern recruitment industry. This sector makes an important contribution to the labour market, and its conduct is generally good. Cases of serious misconduct

1057
affecting users of agency services are rare. It does not need licensing. Few licences are refused or revoked each year and there can no longer be any justification for this onerous regime. It is therefore right that it should be removed.
One should perhaps make the point which was made by my honourable friends in another place but which the noble Lord, Lord Jenkins, did not accept—that even with the licensing system cases have arisen of people charging fees to potential actors, models, film extras and so forth with no intention of finding them a job. Some of the cases involved people without licences and some arose through licensed agencies. However, none of the cases was deterred by the existence of a licensing system. Generally speaking, those cases are simply fraud and are therefore liable to be dealt with by the police under the Theft Act or common law. But obviously with employment agency law a large majority of the breaches discovered were committed by licensed agencies. Out of nine prosecutions which arose from breaches over the past two years, only three involved unlicensed agencies and in those cases the offences were solely of operating an agency without a licence.
If the licensing system is so effective at preventing wrongdoers from entering the business, how can examples of wrongdoing, whether of licensed or unlicensed agencies, be cited? The fact is that the licensing system is not an effective means of controlling this risk. That does not mean that we are removing standards of conduct for agencies. We are committed to the maintenance of minimum standards of conduct in the Employment Agencies Act 1973 and its regulations and the similar requirements in the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981. Experience has shown that it is those requirements, rather than the licensing system, which are effective in securing good behaviour.
It is of course right that users of agency services should be protected from the harmful activities of a very small minority of unscrupulous agencies or unsuitable people who run them. We must still be able to deal with them. Clause 25 and Schedule 9 enable us to do that by replacing the current powers in the 1973 Act and 1981 order to refuse or revoke licences with new powers to prohibit people from operating agencies when necessary. That will provide a strong deterrent and effective means to deal with abuse. These powers will complement the continuing enforcement activities of the Employment Department's inspectors. The repeal of licensing will enable them to concentrate their efforts on investigating complaints and other indications of possible breaches of the statutory standards of conduct.
The noble Lord, Lord Jenkins, principally desires this case not for the generality but for the particular position of employment agencies in the entertainments world. We shall probably deal with that in somewhat greater detail after the adjournment. Although users may be at some risk from some agencies of this kind, just as users of agencies in other sectors may be, we do not believe that the licensing system has proved that effective a
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means of controlling those risks. We are not persuaded that licensing should be retained purely for entertainment agencies.
We believe that the present legislation distinguishes the entertainment agencies from other agencies in one respect only: the regulations allowing them to charge fees to artists. The sole purpose of those regulations was to recognise the very traditional fee-charging practices in the entertainments industry. The repeal of licensing will not affect the statutory requirements under the 1973 Act and there will still be those same safeguards. I am confident that those same safeguards, with the continuing enforcement activity of inspectors and the new prohibition power, will offer continued protection from malpractice and abuse to users of those services.
Perhaps I may also make it clear that, although there has been criticism of the lack of consultation, the Government made no secret of their concern to reduce the number of licences involved in business activities wherever possible or to keep the operation of the employment agency licensing system under review. My honourable friend the Parliamentary Under-Secretary of State for Employment said as much in answer to a Written Question in another place in November 1992. Despite the impression we got from the noble Lord, Lord Jenkins, and others, there has been strong support for the Government's position on licensing. It has recently come from the industry's main representative body, the Federation of Recruitment and Employment Services. Although the noble Lord may have tried to give the impression that the entire entertainments industry is against us on this, I can also say that there has been a report recently from the Agents Association, one of the representative bodies of entertainment agencies.
We believe that the provisions currently in the Bill provide the best of both worlds. Burdens will be removed from industry. Protection for agency users will still be in place. It is a move that has been welcomed by those particular bodies. I believe that it should be welcomed by others in this Chamber. I invite the Committee to allow Clause 25 to stand part of the Bill.
The Earl of Dudley: Before my noble friend sits down, I apologise that I missed this point and failed to pick it up in the course of his explanation. Who will enforce the minimum standards under the Government's proposals?
Lord Henley: I can give an assurance to my noble friend that it will be the inspectors employed by my department—the Department of Employment. But it will then be a matter for my right honourable friend the Secretary of State to seek the appropriate permission. Schedule 9 states:
"On application … an industrial tribunal may by order prohibit a person from carrying on, or being concerned with the carrying on of,
any employment agency or employment business.
Lord Jenkins of Putney: The agents' body to which the noble Lord referred is the least important of a number of agents' associations in this business. All of them and the employers and the unions firmly take the view which I have expressed.

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I wish I had been more impressed with the noble Lord's response. In fact, I was not impressed at all. I think that that was because he was landed with an impossible brief. Noble Lords with knowledge of the business will agree with me, when we go into the Lobbies in a moment as we must, that it would be right for all those who have at heart the interests of the entertainments world and the arts, which rank very highly in the world, to say, "No, we cannot get rid of employment agency licensing. If we do, it will be a disaster". I hope that we shall be followed into the Lobby and, as an inducement, we shall not then have to go over the same ground after the break. Let us vote that we have an easier time after we have had our break.
7.25 p.m.
On Question, Whether Clause 25 shall stand part of the Bill?
Their Lordships divided: Contents, 91; Not-Contents, 48.

Division No.2

CONTENTS

Addition, V.

Jeffreys, L.

Aldington, L.

Jenkin of Roding, L.

Annaly, L.

Kenilworth, L.

Arran, E.

Kenyon, L.

Astor, V.

Kimball, L.

Balfour, E.

Lindsay, E.

Blatch, B.

Long, V.

Boardman, L.

Lucas of Chilworth, L.

Borthwick, L.

Lyell, L.

Boyd-Carpenter, L.

Mackay of Ardbrecknish, L.

Brabazon of Tara, L.

Mackay of Clashfern, L.[Lord

Brentford, V.

Chancellor.]

Brigstocke, B.

Marlesford, L.

Brougham and Vaux, L.

McColl of Dulwich, L.

Bruntisfield, L.

Mersey, V.

Bumham, L.

Monson, L.

Cadman, L.

Mottistone, L.

Carnock, L.

Mountevans, L.

Chalker of Wallasey, B.

Moyne, L.

Chesham, L.

Murton of Lindisfarne, L.

Clanwilliam, E.

Norrie, L.

Clark of Kempston, L.

Northesk, E.

Colwyn, L.

Orkney, E.

Courtown, E.

Orr-Ewing, L.

Craigavon, V.

Pearson of Rannoch, L.

Craigmyle, L.

Peyton of Yeovil, L.

Cranbome, V.

Rodger of Earlsferry, L.

Cumberlege, B.

Rodney, L.

Dean of Harptree, L.

Seccombe, B.

Denharn, L.

Simon of Glaisdale, L.

Demon of Wakefield, B.

Skelmersdale, L.

Dixon-Smith, L.

St. Davids, V.

Dudley, E.

Stewartby, L.

Elles, B.

Strathclyde, L.

Elliott of Morpeth, L.

Strathmore and Kinghome, E.

Elton, L.

[Teller.]

Faithful1, B.

Thomas of Gwydir, L.

Finsberg, L.

Trumpington, B.

Fraser of Carmyllie, L.

Tugendhat, L.

Goschen, V.

Ullswater, V. [Teller.]

Greenway, L.

Vivian, L.

Halsbury, E.

Wade of Chorlton, L.

Henley, L.

Wakeham, L.[Lord Privy Seal.]

Hesketh, L.

Wynford, L.

Howe, E.

Young, B.

Hylton-Foster, B.

NOT-CONTENTS

Addington, L.

Ashley of Stoke, L.

Airedale, L.

Barnett, L.

Allenby of Megiddo, V.

Beaumont of Whitley, L.

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Bonham-Carter, L.

McCarthy, L.

Cledwyn of Penrhos, L.

McNair, L.

Clinton-Davis, L.

Monks well, L.

Darcy (de Knayth), B.

Morris of Castle Morris, L.

Dean of Beswick, L.

Nelson, E.

Dean of Thornton-le-Fylde, B.

Nicol, B.

Dormand of Easington, L.

Peston, L.

Eatwell, L.

Pitt of Hampstead, L.

Elis-Thomas, L.

Ponsonby of Shulbrede, L.

Geraint, L.

Prys-Davies, L.

Graham of Edmonton, L.

Rix, L.

[Teller.]

Rochester, L.

Grey, E.

Seear, B.

Hamwee, B. [Teller.]

Stedman, B.

Harris of Greenwich, L.

Stoddart of Swmdon, L.

Haskel, L.

Tordoff, L.

Hollis of Heigham, B.

Turner of Camden, B.

Jeger, B.

Wedderburn of Charlton. L.

Jenkins of Putney, L.

White, B.

Judd, L.

Williams of Elvel, L.

Kilbracken, L.

Winchilsea and Nottingham, E.

Mackie of Benshie, L.

Resolved in the affirmative, and Clause 25 agreed to accordingly.
7.33 p.m.
Viscount Goschen: I beg to move that the House do now resume. In moving this Motion, may I suggest that we return to Committee stage not before half-past eight.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Land Drainage Bill [H.L.]
7.34 p.m.
The Earl of Lindsay: My Lords, I beg to move that the Bill be now read a third time. I am pleased to bring the Bill before your Lordships for its Third Reading. The Bill aims to reinforce the current trend towards more environmentally friendly flood defence and land drainage policies and practices. The measures it contains have attracted support from the drainage authorities and conservation bodies alike and, I believe, from all sides of your Lordships' House as well.
There is now a greater spirit of co-operation and consensus in the countryside on environmental matters. As a fanner and landowner, I am keen to see that trend continue, especially as a large part of it is based on common sense and sound practice. The debates we have had have demonstrated that farmers and landowners have nothing to fear from the Bill. I firmly believe that the three modest and simple proposals it contains will further foster that constructive co-operation, by helping to ensure that flood defence operations take due account of both conservation interests and economic interests.
I thank all noble Lords who have spoken in support of the Bill and those who at Second Reading, Committee and Report stages helped me to explain the principles behind it. I am particularly grateful to the noble Baroness, Lady Nicol, the noble Earl, Lord Lytton, the noble Lord, Lord Gallacher, the noble Lord, Lord Beaumont, and my noble friend Lord Addison. Noble Lords have been assiduous in searching for the principles which lie behind the Bill. My noble friend Lord Howe has also been most helpful in providing assurances of the Government's intention with regard to

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the Bill, particularly in connection with the proposed ministerial power of direction over internal drainage boards. I am grateful to him and to the Government for their active support.
With the support of the Government and, I hope, of the other parties, and with backing from a wide range of outside organisations, having both economic and conservation interests in the countryside, I very much hope that the Bill will be successful both in this House and in another place. In that spirit, I commend it to the House. I beg to move.
Moved, That the Bill be now read a third time.—(The Earl of Lindsay.)
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, I congratulate my noble friend Lord Lindsay on the way he has handled the passage of this Bill through your Lordships' House. He has taken great pains to ensure that there is the widest possible consensus behind the Bill and to see that the issues it raises have been aired thoroughly and openly. The very useful debates we have had at Committee and Report stages have, I believe, clarified the Bill's purpose and effect most usefully. The Bill has had full scrutiny in your Lordships' House.
As I said at an earlier stage, the measures in the Bill have the whole-hearted support of the Government. The Bill strengthens the role played by internal drainage boards and local authorities in maintaining and enhancing conservation while carrying out their flood defence and land drainage activities and so is fully in line with the Government's flood and coastal defence strategy. It builds on the tremendous progress made in recent years by IDBs and local councils in balancing the requirements of flood defence, economic activity and conservation. And it complements other initiatives such as the negotiation of water level management plans locally in areas of special drainage need.
I have been heartened by the welcome that the Bill has received from all sides of the House and from many outside organisations. I know that anxieties have been expressed by noble Lords as regards the future of the Bill in another place. I can assure the House that the Government will do all that they can to assist its progress there.
Lord Beaumont of Whitley: My Lords, I too congratulate the noble Earl on piloting the Bill through this House and assure him and the Government that we on these Benches are thoroughly behind it. Our only regret is that although the Government intend to give it all the support they can in another place it is not a government Bill and therefore not necessarily assured of a safe passage immediately.
As I have said before and doubtless will say again, if, instead of some of the Bills which are sponsored by the Government, we got from them Bills which have universal support in the House we would all be a lot happier and the country might be much better off. Having said that, we very much welcome the Bill and the way in which it has passed through your Lordships' House with full scrutiny and assurances given.
The Earl of Lindsay: My Lords, I thank the noble Lord, Lord Beaumont and my noble friend the Minister for their support. I thank also noble Lords who spoke at earlier stages of the Bill. I am sure that the measures the Bill contains will be of benefit to local communities and to the public interest generally. I welcome what my noble friend the Minister said about the Government's continued support for the measure in another place. I hope very much that it will soon reach the statute book. I commend the Bill to the House and ask that it be given a Third Reading.
On Question, Bill read a third time.
The Earl of Lindsay: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Earl of Lindsay.)
On Question, Bill passed, and sent to the Commons.

Education (National Curriculum) (Foundation Subjects at Key Stage 4) Order 1994
7.40 p.m.
Baroness Blatch Baroness Blatch rose to move, That the draft order laid before the House on 9th May be approved [18th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move, that the draft Education (National Curriculum) (Foundation Subjects at Key Stage 4) Order 1994, which was laid before this House on 9th May, be approved. This order has already been approved in Standing Committee in another place on 18th May.
The order currently before your Lordships for debate affects the curriculum for 14 to 16 year-olds (that is, Key Stage 4). In England, it will remove history and geography as compulsory subjects for this age group; suspend technology for pupils entering Key Stage 4 in 1994 and 1995; and suspend modern foreign languages for pupils entering Key Stage 4 in 1995.
For pupils in Wales, the order will remove history, geography, technology and modern foreign languages from the statutory curriculum for this age group.
This order follows on from the Government's acceptance of the recommendations made by Sir Ron Dearing and the Curriculum Council for Wales in their final reports on the review of the national curriculum. My right honourable friend the Secretary of State accepted Sir Ron Dearing's advice that the mandatory curriculum for five to 14 year-olds should be significantly streamlined, especially outside the core subjects of English, mathematics, and science. Furthermore, it has been accepted that there should be greater flexibility in the options which schools can choose to offer to 14–16 year-olds.
The order which we are debating today takes the first steps towards addressing these points. This process will continue with the proposed revisions to the national curriculum upon which the School Curriculum and Assessment Authority and the Curriculum and Assessment Authority for Wales (the successor body to

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the Curriculum Council) are currently consulting. Those proposals bearing on the curriculum for 14–16 year-olds are for implementation in 1996. But, to bring the benefits of these recommendations to schools as soon as possible, this order now before your Lordships for debate takes effect on 1st August this year.
The order itself was the subject of a consultation exercise. It puts into effect the Government's objective, already announced and well known to schools and others involved in education, to increase the flexibility available to schools for 14–16 year-olds. There will be greater scope for schools to respond to the particular skills and interests of their pupils through a wider range of academic or vocational courses. The School Curriculum and Assessment Authority and the National Council for Vocational Qualifications are advising the Government on the scope for a new Part One GNVQ qualification, designed specifically for Key Stage 4. We are looking carefully at their proposals with a view to piloting these courses in 1995 as announced in the "Competitiveness" White Paper.
We must be sure that any vocational qualifications offered at this stage in schools are high quality, accessible courses. They must open up pathways to progression for pupils, not close them off. They must be rigorously assessed, clearly structured and effectively supported. And they must be qualifications that are comparable in intellectual rigour with academic school subjects—not a refuge for lower achievers.
Vocational qualifications at Key Stage 4 have the potential to raise our nation's skills base and to motivate young people.
The order is a joint order between England and Wales. It removes history and geography from the list of mandatory subjects for 14–16 year-olds in both countries. Sir Ron Dearing, in his final report, observed that these are of course absorbing and valuable subjects. But there is no obvious reason why history and geography, as a matter of law, should be given priority for pupils nearing the end of their compulsory schooling over other subjects which pupils might find equally compelling—over, for example, classics, creative arts, business studies, other vocational options or even further languages.
When we consulted on this proposal a majority of respondents expressed support, as a way of increasing flexibility, reducing curriculum overload, and enabling schools to meet pupils' needs, including special needs. There was some concern that there would be a diminution of breadth and balance in the curriculum for 14 to 16 year-olds. But that misses the point—this very reduction in the mandatory curriculum allows schools to respond to the particular abilities of individual pupils through differing combinations of subjects and studies. The Government expect that history and geography will continue to be among the subjects on offer to all 14–16 year-olds. Moreover, it should not be forgotten that pupils will have acquired a solid foundation of historical and geographical knowledge through earlier experience of the national curriculum, on which to build further study if they so wish.
In England, in the interregnum before the introduction of the revised overall curriculum for this
1064
age group in 1996, the order also suspends the requirement to study technology for those 14 year-olds entering Key Stage 4 in 1994 and 1995. Again, consultation showed broad support for this proposal, which is intended to give schools time to plan for the introduction of the revised curriculum in 1996. We know that there are schools which have made substantial advances in implementing the technology curriculum for this age group. We would not want to impede developments in these schools. They will still benefit from the development work which they have carried out. We hope that schools such as these will continue to offer technology to their 14 to 16 year-olds. All the signs are that they will continue to do so. To ensure that pupils do not suffer unnecessary disruption to courses already under way, we have provided in the order for 14 year-olds who started Key Stage 4 technology in 1993 not to be affected by these provisions. They will complete their studies.
In England the order suspends the introduction of the requirement for 14 to 16 year-olds to study a modern foreign language until 1996, when the revised modern foreign language curriculum will be introduced. Equipping our children for proficiency in foreign languages is a priority. But it would not have been sensible to force schools to teach different versions of a modern foreign language curriculum. That would have been the effect if schools had been obliged to introduce the existing national curriculum in modern foreign languages in 1995, and then the revised national curriculum in 1996. It is of course still open to schools to offer modern foreign languages for 14 to 16 year-olds before 1996 if they wish.
In Wales the Curriculum Council for Wales made different recommendations on technology and modern foreign languages. In the light of the views expressed in consultation, it recommended the mandatory requirement for pupils aged 14 to 16 should be reduced to the subjects of English, mathematics, science, physical education and, of course, Welsh—the subject which is distinctive to Wales. It also supported further work in technology and modern foreign languages but recommended against making them mandatory. This will allow scope to include vocational qualifications as well as for pupil choice. The order therefore lifts permanently the requirement that all pupils in Wales must take technology and modern foreign languages.
Before concluding, I should like to add a short word on the other, equally important, aspect to the national curriculum —the assessment and testing of pupils. Alongside the slimming of the subject curricula, the Government have streamlined the assessment arrangements. Statutory assessment for seven and 14 year-olds has been restricted to the core subjects in 1994. The time taken to administer these arrangements has been reduced by roughly half since 1993. My right honourable friend the Secretary of State has recently announced his proposals for further streamlining of the assessment arrangements for seven, 11 and 14 year-olds in 1995 and associated reductions in teacher workload.
To conclude, overall, the Government believe that, by freeing up the curriculum for 14 to 16 year-olds in this way, we are giving schools greater scope to match

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the particular skills and interests of their pupils through academic and/or vocational courses. These proposals have been widely welcomed by those consulted. I therefore commend the order to your Lordships.
Moved, That the draft order laid before the House on 9th May be approved [18th Report from the Joint Committee].—(Baroness Blatch.)
Lord Judd: My Lords, the Minister will no doubt have studied the proceedings of the second Standing Committee in another place and will realise that we do not intend to oppose the order. Despite all its characteristics of, I suggest, improvisation, we are not opposing it because we recognise that it brings greater flexibility and that, in the curriculum for 14 to 16 year-olds, it will give schools an opportunity to bring in more of what they see to be important. But in saying that we do not intend to oppose the order—to some extent we welcome it—we must qualify our welcome. We qualify it because of several anxieties.
First, just how much consultation was there before the order was compiled? For example, were the conclusions of the regional conferences for secondary head teachers run by the NCC, taken fully into account? If they were not, why not? After all the disruptive, impetuous, trial and error of recent years, would not it have perhaps been better to have had a full open debate on the future of Key Stage 4 in order to build a healthy, positive consensus? That would obviously have been particularly valuable, because of the Government's favoured "academic", "vocational" and "occupational" pathways at Key Stage 4, and the implications for secondary school organisation.
I must take the opportunity to say that I despair at the Government's failure to see that in education, of all the areas of our national life where success depends so much upon the goodwill of all involved, it should always be at a premium to build positive consensus in favour of what is being done. In the event, I am afraid that it seems that Sir Ron Dealing's final report is based on pretty limited consultation and observation. I find it a matter of some regret that it does not take the opportunity to give more rigorous justification for any of its proposals.
On technology, there appear to be differing reactions to the proposal. However, what is clear is that there is genuine, fairly widespread concern about the loss of momentum which may result from suspending the requirement to teach technology for those entering Key Stage 4 in 1994 and 1995. Schools have already made substantial changes to their timetabling, staffing, accommodation and resources in order to teach technology, and the removal of the requirement could involve significant changes to school planning and the potential loss of a broad and balanced curriculum for two years. Of course, the likelihood is that many schools will continue to teach technology, even without the statutory basis of a curriculum order, provided—this is an important proviso—that appropriate syllabuses are available. I urge the Minister to ensure that the Secretary of State uses the influence he has in his role of approving syllabuses to ensure that that happens.
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On the proposal to suspend the introduction of the modern foreign languages curriculum, I am sure that the Minister will understand that there is again fairly widespread anxiety about any loss of continuity for schools and any apparent downgrading of the discipline as a result of its temporary suspension. That would indeed be a paradoxical effect when foreign language ability is crucially important to strengthening Britain's performance in the international economy—the stated objective of so many of the Government's reforms. However, having said that, on balance I recognise that the suspension is probably justifiable, given that a new MFL curriculum will be introduced by 1996.
For Wales—not for the first time—there is an intriguing contrast with England. The proposal there is to suspend indefinitely technology and modern foreign languages for Key Stage 4. But why is Wales different from England in that respect? Again, what exactly is the rationale? And on the MFL, if the teaching of Welsh and English, which we on these Benches see as imperative, is given as the reason for there being no MFL in future, that seems to me to be unconvincing, because Wales, like England, has to be able and ready to participate in the international economy. It seems to me that that is depriving the Welsh of something that will be available to the English.
I come now to the proposals on history and geography. I realise that we cannot slim down the curriculum without in fact slimming it down, but we must consider very carefully the possible dangerous effects of what we are doing if we fail to see the pitfalls and do not take steps to avoid them. Perhaps I may quote what I see as one wise response which came from the London Borough of Harrow:
"The emphasis on basic skills training at Key Stage 4 and the proposal to offer a variety of routes through the 14–16 curriculum undermines the principles informing a broad and balanced learning experience. History and geography make a significant, possibly unique, contribution to the development of critical and analytical thinking. Both subjects are also central to supporting cross-curricular themes and dimensions, in particular, those of citizenship, environmental education and economic and industrial understanding. In any curriculum which is intended to equip young people to contribute to the society of the future, the omission of these aspects of learning represents a considerable flaw".
Indeed, my wife teaches history, and we often reflect together upon the insecurity and instability of an age in which there is so little perspective—so little understanding of humanity on an evolutionary road, learning from the past, or, in Britain, of our total interdependence with the world as a whole, which is so central to the modern teaching of geography. Without such perspective, shared by the widest possible social cross-section of people in this country, what are the prospects for a healthy democracy? If, in those respects, our children leave school unprepared for the demands of the challenging decades ahead, we shall all have failed.
The argument in Sir Ron Dealing's report has a superficially seductive ring to it; namely, why should history and geography be more important than the creative arts, a second foreign language, home economics, the classics, and so forth? But those changes mean that we shall no longer have a prescribed, broad and balanced national curriculum for 14 to 16 year-olds,

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and we must face that. Any downgrading of the qualitative humanities as compared with the undeniably important quantitive subjects that are assumed to relate directly to future employment must inevitably have adverse implications for the health of our education system. There is a serious risk that all the pressures of league tables, as currently applied, could mean that history and geography will not be taught if they are not seen to be contributing equally with other subjects to a school's measured performance.
Obviously, the LEA will be able to encourage LEA-maintained schools through its curricular policies, as required by the 1986 Act, to ensure that young people in the 14–16 age group continue to enjoy a broad and balanced curriculum. It would be immensely reassuring if the Minister could tell noble Lords tonight that her department will emphasise that point in its publicity on the new national curriculum.
Before I conclude I must underline that with the removal of music and art in 1992, and the present proposal to remove history and geography, the original intention of a broad and balanced national curriculum could be jeopardised for Key Stage 4. Already, the national curriculum is under some attack for being too insular and national in its limitations and for failing totally to grasp the reality of international interdependence. We must therefore all combine our efforts to ensure that the dangers are avoided. If we do not, far from the classless society about which the Prime Minister likes to talk, we could be rapidly on a road to an educated and understanding elite and a functionally trained, subservient underclass, ill-equipped to understand the world by which they will be buffeted, and destined seldom to reason why, let alone play a positive part in democracy: an underclass prepared as functionaries rather than to be living, creative, analytical individuals in a healthy democracy. Education is about understanding. It is not just about instruction.
As Tony. Lloyd said in the other place, the structure that the Minister is bringing before the House— although we shall not oppose it tonight for the reasons I gave—on the back of these changes to the national curriculum is still not adequate for a modern society. We need to take a calmer and longer look and to consult more widely with interested parties in industry, commerce, the professions and education. We can then bring forward a proper 14 to 18 curriculum in order to establish a relevant education system for a modern society that will raise the standards of all our young people rather than fail the majority, as does still, I fear, the present system.
8 p.m.
Baroness Seear: My Lords, as the Education Reform Bill went through your Lordships' House I was one of a number of Members who was worried that the requirements were too rigid. They left too little flexibility and judgment for schools to decide what would be most appropriate to teach. I had a strong feeling that studying fewer subjects well was more educational than studying a larger number superficially. It is the experience of studying in depth and thoroughly which is most educative.
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I started in history school. While I sympathise with what was said by the noble Lord, Lord Judd, about the danger of reducing the number of subjects, I cannot combine that attitude with the attitude that I expressed when the Education Bill was going through this House. I believe that flexibility and ability to choose subjects are more suitable and can lead to better educational results than the requirement for everyone to study a range of subjects.
I understand the proposals to mean that, within a given school, it is possible for all the subjects to be taught but that individual pupils, under the guidance of their teachers, will choose which subjects to take. That appears to me to be defensible. It is better that some youngsters take an additional science subject and that others take an additional modern language. I was never happy that everyone should be pushed through the same grid, regardless of their interests and abilities. By the time that children reach the 14 to 16 level those interests and abilities should be obvious. Pupils should be encouraged to go down the path in which they are showing an interest and a potential for deeper study. Deeper study is the educational experience that youngsters need to have. It gives teachers the opportunity to help students to choose what they can do most effectively and to encourage them along that path.
I should be the first to say that it would be a great pity for a pupil to have to drop history, and for all the reasons outlined by the noble Lord, Lord Judd. However, one cannot at the same time say, "You must not drop everything and you must study some subjects more thoroughly". It is undesirable to have a rigid programme for every youngster in every school.
I wish to raise two further issues with the Minister. I welcome the idea that vocational subjects will be included together with traditional academic subjects. It will be possible for all pupils to mix their choice of subjects so that all do not fall into a vocational or academic stream, and that is a desirable objective. Students will have a choice of subjects from the academic and the vocational, which will be extremely good for them. It also means that the old divide, which most Members of your Lordships' House deplore, will be eliminated. There is no better way of getting rid of it than that the academic high flyers should choose some vocational subjects and vice versa.
However, while I welcome the inclusion of the vocational subjects, I wish to make the following point. I needed to look into the requirements of the syllabuses of the GNVQ subjects, which will be the. subjects included in the schools' curriculum. As I looked in detail at the requirements I was struck by the fact that they were strong on what should be done and how it should be done. However, they were very weak on why it should be done. That will not do. A subject may have a strong applied bias and there is nothing uneducational about that in itself. If one wants the study of them to rank with the study of the humanities and pure science, for example, it is of the greatest importance that students understand the "why" that lies behind what they are required to do and how they are required to do it.

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Otherwise, there will be the acquisition of a mechanical skill and no real understanding of why that skill must be used.
I was not aware that I should have the opportunity to raise the matter with the Minister because I have only recently looked at the GNVQ requirements. I ask her to make a special point of ensuring that they are not passed and accepted unless they necessitate the underlying understanding of what is needed, not merely the application. Without that underlying understanding, the whole idea of trying to meld the two together will be missing. People will not accept those subjects as they now appear to be taught.
I realise that the second point that I wish to raise with the Minister is perhaps a King Charles's head of mine. I am concerned that few schools are providing for the international baccalaureate. Surely in the kind of world we are moving into more schools should be doing so. Will the Minister tell the House whether the greater flexibility that we are now being offered will make it easier for schools to move towards the international baccalaureate? I remember raising the question when the Education Bill was going through this House. The national curriculum was not drawn up with a movement towards the international baccalaureate in mind. The requirements of the national curriculum did not appropriately line up with the requirements of that qualification. Under the new arrangements, will schools which are alert to the advantages of the IBA be able easily to move in that direction? Many people would welcome that.
Lord Ponsonby of Shulbrede: My Lords, I wish to comment briefly on some of the proposals that we are discussing tonight. At Key Stage 4 the statutory curriculum will be reduced to some 60 per cent. of the timetable. There appears to be a consensus tonight that this is a good thing and that teachers should have a greater degree of flexibility in deciding what they teach and how they teach it. However, it means that, with the removal of music and art in 1992 and the present proposal to remove history and geography, the original intention of the broad-based national curriculum will no longer apply to Key Stage 4.
Obviously, the local education authorities will be able to encourage LEA-maintained schools to ensure that young people in this age group continue to be provided with a broad-based and balanced curriculum. The department should make that point in its publicity on the new national curriculum.
I agree with Sir Ron Dearing that one must be prescriptive about what is to come out of the national curriculum if one is to reduce its size. That is a difficult problem. However, I would like to make a special plea and express my regret about the reduction of compulsory technology for students commencing Key Stage 4 in 1994–95.
Today, science, technology and design are perhaps the key—and I use that word deliberately—subjects that will contribute towards our country's future economic success. It is not an exaggeration to say that in almost every office and workplace in the country people are

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learning new technological skills as they grapple with the new software packages that are coming onto the market almost every day. I say that as an office worker and technologist, although I am fearful to admit that in case my noble friend describes me as a member of the functionally trained underclass. It is true that in my experience, people who have some exposure to dealing with technology from an early age pick up the new technologies far quicker. To expose them in a systematic way to the new technologies and software can only do us good economically, and of course individuals will not be tearing their hair out as much as some of them are at present.
I hope that the Minister will reflect on some of the comments made this evening and that she will not regard this consultation exercise as merely fulfilling the requirements of the 1993 Act.
Baroness Blatch: My Lords, I am grateful for the welcome that the order has received, albeit with the qualifications of the noble Lord, Lord Judd.
Perhaps I may respond to one or two of the points raised in this short but important debate. First, the removal of history and geography will not restrict the national curriculum. It will open up and give way to a very rich menu of options for young people. Therefore, I am not sure that I take the point made by the noble Lord, Lord Judd. He spoke so passionately about the removal of history and geography that I thought that he was going to oppose the order and suggest that they should be made compulsory. That would be restrictive.
We have already been reminded of the original debate in 1988 when many of those points were made. In fact, I believe that many noble Lords opposite used the word "straitjacket". They said that flexibility in the curriculum was needed. Some flexibility has been introduced. It has already been mentioned that art and music have been removed from the curriculum. That has not meant at all the disappearance of art and music in schools. Indeed, many young people are doing art and music and the performing arts in our schools. Therefore, I do not believe that there are any grounds to believe that the disappearance of history and geography as compulsory subjects will lead to the deficit about which noble Lords opposite are concerned. Accordingly, it is my view that, far from limiting breadth and balance, a much better range of options will be open to young people.
The noble Baroness, Lady Seear, quite rightly reminded us of what she said in 1988. But she also posed what I believe was a rhetorical question as to whether all pupils would be free to mix subjects. Not only will they be free to do so, we want to see them do just that. I see the vocational subjects coming into the curriculum and the opening up of choices for young people rather as pure and applied learning. It may be better for young people going to university to read engineering to take practical science and vocational technology while for others it may be better for students to do pure science or pure academic subjects. There is no reason why they should not mix the two and as I have said, I hope that they will do just that.

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It is right for the noble Baroness to emphasise the importance of the underlying understanding in the GNVQs. We regard that as crucial. More work must be done on the GNVQs. They are not so rigorous as they should be and the quality is not quite right. A great deal is said about parity of esteem; and that must be an aim. But esteem and parity of esteem do not come from government fiat. They will develop when the qualifications are recognised to be quality qualifications and when young people know that a real impact on their understanding, knowledge and skills will be achieved by working towards those qualifications.
The noble Baroness asked about the international baccalaureate. The answer is that the most recent changes will free up time for schools to regard that as an option, and some schools are already beginning to do so. Alongside the international baccalaureate the technological baccalaureate is also being undertaken by one or two schools. Schools are also linking with and talking to the higher education institutions, in particular admissions tutors, about making sure that they are open minded when considering young people for higher education.
The noble Lord, Lord Judd, was concerned about how much consultation there had been. There has been an enormous amount of consultation. If Sir Ron Dearing is known for anything in the enormous amount of work that he has done in the past year, it is for going to great lengths to make sure that everybody has an opportunity to feed into the consultative process. The conferences referred to by the noble Lord, Lord Judd, have been taken into account and Sir Ron has drawn up the advice to my right honourable friend on the basis of all that input from the professions, from the teaching associations and from anybody who has wanted to write to him, contact him or meet him through the conferences. Therefore, I can give an absolutely unequivocal assurance in that regard.
The noble Lord, Lord Judd, proffered a definition of education. I believe that he perceived that to be my definition and he felt that that was rather limiting. My view and definition of education is that it is about liberating talents in all their guises. Those talents will be different for different young people. Some people will have strength in the vocational areas and some will have strength in academic areas. We hope that there will be a good intermixing of the two which will result in the development of the vocational and intellectual abilities and skills of young people. We need a system which responds to their aptitudes as well as to their intellectual abilities.
The noble Lord, Lord Judd, referred to Wales. Again following extensive consultation, the Curriculum Council for Wales recommended against the inclusion of a half course minimum in technology and modern foreign languages as part of the statutory core. It took the view—and we have accepted it—that to include any more compulsory subjects would significantly restrict pupil choice at that age and it would also make it more difficult to take full advantage of the opportunities to introduce the new vocational courses for that age group. That approach has won substantial support in responses
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to consultations on the draft order. Given the extra subject of Welsh, there is a difference between the number of compulsory subjects at Key Stage 4 in Wales.
The noble Lord, Lord Ponsonby, is concerned about disruption that may occur as a result of technology being suspended for two years. First, that was done as a result of the anxieties expressed by teachers. There will be no disruption in those schools which wish to continue and courses will remain available in the schools which choose to provide them. But some schools need more time to adjust their resources and the skills of their teachers. They need more time to prepare. Other schools wish to study in accordance with the new revised order rather than the original order. Therefore, although the noble Lord, Lord Ponsonby, regrets the removal of technology, I believe that he will find that there is a great deal of support for that among teachers.
The noble Baroness, Lady Seear, referred to the "why" in relation to GNVQs. I have alluded to that in part. I agree that general national vocational qualifications must be academically rigorous and should entail an underlying understanding of what is needed. My honourable friend Mr. Boswell, the junior Minister in another place, announced recently a six-point plan which should ensure that GNVQs are high quality relevant qualifications. They must be meaningful and must be a proper educational experience for young people studying for them. We shall be vigilant in making sure that those six points are taken very seriously.
If I have omitted to deal with any points raised, I shall deal with them in writing. The order will help to streamline the national curriculum and will give schools greater freedom to offer 14 to 16 year-olds a range of academic and vocational options. I commend the order to the House.
On Question, Motion agreed to.
Viscount St. Davids: My Lords, I beg to move that the House do now adjourn during pleasure until half past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended front 8.19 to 8.30 p.m.]

Deregulation and Contracting Out Bill
House again in Committee.
Schedule 9 [Employment Agencies etc.: Replacement of Licensing]:
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 178B:
Page 93, line 35, at beginning insert ("Subject to section 3AA below").
The noble Lord said: As Members of the Committee will appreciate, the above is a paving amendment for Amendment No. 178E. I suggest that the amendments be debated together. I supported the Government in the Division just before the dinner break because, as was said by several of my noble friends, we are discussing a most valuable clause and schedule. In any act of deregulation it seems to me to be entirely right that such provisions which have been in force for many years should be challenged.
I believe that I should perhaps declare an interest. I am not a member of the trade union of which the noble Lord, Lord Jenkins, was a distinguished luminary for a number of years. However, one of my daughters who is a professional singer is a member and she is chairman of her branch of Equity. I have a second daughter who is also a professional singer. Therefore, the Committee will understand my interest in the schedule.
I do not believe that I need to repeat all the arguments put forward by the noble Lord, Lord Jenkins of Putney, when he spoke in the clause stand part debate as to why the entertainment industry is different. However, perhaps I may sum it up in the following words. The relationship of an actor or a singer with his or her agent is very different from that of almost every other employment agency client. Actors and singers depend on their agents to find them work and they pay them commission. Very often the money is paid by the theatre, the concert promoter or whoever it may be to the agent. The agent then deducts his commission from the amount and passes the remainder on to the client. If there is remuneration to come from, shall we say, royalties or from abroad for such work, that money will frequently be sent to the agent.
A great deal of money passes through the hands of entertainment agencies. It is one of the reasons that makes their clients particularly vulnerable. My amendment is aimed to achieve protection for such clients. The noble Lord, Lord Jenkins of Putney, made the fair point that many theatrical and entertainment agencies do a fantastic job for their clients; indeed, there is no questioning that fact. They act as intermediaries, as protectors, as advisers, as negotiators, and they ensure that the performer is working on a proper contractual basis. Moreover, so far as they are able—and bearing in mind the very competitive nature of the profession— they ensure that their clients work under decent conditions.
However, it must be remembered that people who enter such professions are in a most vulnerable and exposed position. They often depend entirely on what in other professions and occupations would be called "casual work"; that is, the one-off, the small tour. In particular, if it is an actor, it may be a matter of touring for a few weeks in the provinces. In the case of a singer, it may be a single performance for which he or she is hired. The client is hired, he or she gives the performance and that is it. Alternatively, it may be a tour of work on several occasions at three or four different centres around Europe and then that will be finished.
A performer may be able to establish a link with a particular conductor or group which can give him or her greater assurance. However, for many of the people involved, their livelihood depends on a constant flow of new, fresh work, most of which will come via their agent. Moreover, a great many more people seek such work than is actually available. Indeed, I have been given a figure in that respect which shows that, of 45,000 professional performers who are members of Equity, perhaps 80 per cent. are unemployed at any one time. There are long periods when an actor is said to be "resting" or when a singer is said to be "rehearsing".
There are also many other would-be performers outside the business who are not yet established and who are desperate to get into the profession. They are often very young and enormously ambitious. Many of them are stage-struck young girls; indeed, there is no shortage of stage-struck youngsters. That is why I believe that the profession is different.
There is a further unique point, as mentioned by the noble Lord, Lord Jenkins, regarding entertainment agents and it is one that has long been recognised by all governments. I refer to the fact that, unlike any other kind of employment agency where the agent is paid by the employer, entertainment agents are paid by the artist, the actor or the singer. That factor introduces yet a further vulnerability into the performer's situation.
The Committee has already decided that the clause and the schedule will stand. I must say that that has my support. We shall have an opportunity in a few moments to consider the amendment tabled in the name of my noble friend Lord Harmar-Nicholls as to whether in some way entertainment agencies might be taken out of the Bill. My amendment is a simple one. The point has already been made—indeed, I believe that it was made either by the noble Lord, Lord Wedderburn, or the noble Lord, Lord McCarthy—that it is only the Secretary of State who can refer a complaint to the industrial tribunal. I happen to believe that that is right. If we left every aggrieved client with the right to rush off to the industrial tribunal, the system would become gummed up. It is not at all unreasonable that such a case should go through the filter, bearing in mind that the penalty will be the removal of the livelihood of the offending agent.
However, I believe that there is something that people in such vulnerable professions might reasonably expect. If a performer has made a complaint to the Secretary of State about the oppressive or unfair behaviour of a particular agent and the Secretary of State then declines to make a reference to the industrial tribunal, I believe that the least that can be expected is that the complainant shall be entitled to a written explanation of the basis upon which that decision was made. According to my advice, I understand that that would then be justiciable under the procedure, the name of which escapes me, whereby the complainant could take the matter to court—
Lord Henley: I believe that my noble friend is referring to a judicial review.
Lord Jenkin of Roding: I am most grateful to my noble friend on the Front Bench. As always, he is a source of infinite wisdom.
However, without a reason being given in the letter of notification, I am told that it would be much more difficult to get such a decision reviewed. My amendment would give those often young but always vulnerable professional people some additional protec-tion in that they would ultimately have the safeguard of a court of law. That is the purpose of the amendment. It is quite a simple one. It simply states that if the Secretary of State:

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"declines to exercise his power to refer the complaint to an industrial tribunal under section 3A(1), above, the Secretary of State shall furnish the complainant with a written statement of the reason for his decision".
I think this is a very reasonable amendment and I hope that my noble friend will smile upon it. I beg to move.
Baroness Turner of Camden: The amendment is an improvement but only, I fear, a slight one. Amendment No. 178E, as the noble Lord, Lord Jenkin, has explained, gives some status to a complainant, which does not appear in the Government's version. However, it is only very slight and the individual who complains then has no access, so far as I can see, to any means of redress except when the Secretary of State sends him a statement of the reason for his not proceeding with a complaint.
Then there is the complicated and expensive provision, as the noble Lord has indicated, of judicial review. My objection to it is that I think that the whole system of industrial tribunals is not appropriate for this particular set of conditions. I really do not see why an individual should have to go through these procedures, particularly if at the end of it the only way of proceeding is by means of judicial review. It seems to me to be very complicated.
It would be very much better if an entirely different system were provided than the one proposed in Schedule 9. However, I accept that the noble Lord has attempted to make some sort of provision to give protection to very vulnerable people. Everyone who has spoken in this debate has accepted that a number of the people we are attempting to protect are exceptionally vulnerable, and that is particularly true of the entertainment industry. I would therefore be interested to hear what the Minister has to say in response, although I must say that I would much prefer an entire rewriting of Schedule 9, which perhaps we shall have the opportunity to do when we reach Report stage.
Lord Jenkins of Putney: I was interested to hear the amendment of the noble Lord, Lord Jenkin. Unfortunately I am bound to say—I say this with some reluctance because I think in itself it was a good amendment and extremely well moved—that it is the famous case of the attendant shifting the chairs on the 'Titanic". The ship will sink without the licensing system and therefore I prefer the amendment which we shall discuss shortly in the name of the noble Lord, Lord Harmar-Nicholls, which attempts to preserve, as regards the entertainment and theatre business, the licensing system itself. That seems to me to be an amendment which goes to the heart of things. The other amendment would still have resulted in Noel Coward saying to the noble Lord,
"Don't put your daughter on the stage Mrs. Worthington",
—or rather Lord Worthington—without the licensing system.
Baroness Hamwee: I, too, am a little reluctant, particularly given the support from the noble Lord opposite to debates which I introduced earlier this afternoon, to introduce a note of questioning to this matter. I accept, as do other Members of the Committee, that there are problems in the entertainment industry. I
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do not quite have an interest to declare, but I work professionally as a solicitor on entertainment matters with a number of reputable agents. I had better say mat in case any of my clients get to know that I have spoken on this matter.
However, I am aware that it is a business where there are far too many people out for very fast and very easy bucks. It is not merely the innocent young girls who are star struck and attracted into the theatrical profession who are affected. Certainly in the music industry many people give no real thought to the finance or business side of their careers. They just want to get on with making music. They may enter the profession at the age of 18 and they see those in the profession as very grown up and authoritative. They expect those people to take care of them. It is because I see the vital need in the industry for a climate of trust to be fostered and to be maintained that I will support the noble Lord, Lord Harmar-Nicholls. I have risen to speak on this amendment to ask the noble Lord, Lord Jenkin, a question. As I read his amendment, it is about a cure of a particular problem rather than general prevention. I wonder whether he has received advice from the industry bodies as to the effectiveness of a cure, and indeed as regards how widespread the problem is.
Lord Jenkin of Roding: Perhaps I might respond immediately to the question of the noble Baroness. I was lobbied very close to home just before the weekend. I consulted Equity. I rang up that body and asked it what it thought of this measure. Equity thought it was rather a good idea. Since then I have received some briefing from that body. But I have to say that I have not attempted to go outside the entertainment industry.
Lord Wedderburn of Charlton: I wish to raise a brief point and to put on record a point about the amendment of the noble Lord, Lord Jenkin, to which one's heart easily responds. However, there is a problem as regards the head in one respect. As he rightly recognised, the ultimate sanction would be judicial review. It would be on that High Court procedure that this amendment would really rely. Of course judicial review can nullify the decision of the Secretary of State. It is questionable whether it can force him to take action in an industrial tribunal and the results of judicial review should always be remembered in the context of the coal mines. We nullified the Secretary of State's decision to close them down but I would not like the theatrical profession to face the same consequences as that particular judicial review proceeding.
8.45 p.m.
Lord Henley: Perhaps I may intervene. My noble friend asked whether I would smile upon his amendment. I am afraid that noble Lords opposite do not seem to have smiled quite as much as my noble friend was hoping. I wonder whether I can give a sort of weakish smile and say that I see what my noble friend is getting at but for reasons that I will go on to explain, I do not think that I can actually accept his amendment. As my noble friend explained, the amendment seeks to place the Secretary of State under a duty, in any case where he has received a written complaint from a person

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who believes he or she has been unfairly treated through improper conduct by an agency in the entertainment industry, to give detailed reasons to the complainant if he decides not to apply for a prohibition order to an industrial tribunal.
It may help if I explain briefly the department's policy. It is to investigate as a matter of priority any complaint against an employment agency or employment business operating in any sector of the agency industry. The department's objective in these cases is to establish whether there is evidence to substantiate the matters complained of. If there is such evidence, then there are obviously a number of options for action which are available to the department according to the circumstances of the case. Obviously in the case of minor or very isolated cases which are unlikely to be repeated, the department may simply warn the agency against further misbehaviour and subsequently keep a close eye on that agency's activities to ensure all is well. That is true whether one is talking about a licence, as in the old system, or about the new powers that we are proposing.
Obviously in more serious cases of breaches of employment agency law, the department may prosecute the agency in a magistrates' court. Anyone who is found guilty of an offence under the Employment Agencies Act 1973, or regulations made under it, would be liable to a fine, which in most cases can be up to £5,000. In cases where there is evidence to show that a person is unsuitable to carry on, or be concerned with the carrying on of an agency, whether because of misconduct or some other relevant reason, a proposal to refuse or revoke a licence may be made. Under the new arrangements set out in this Bill, the option of refusing or revoking a licence will obviously be replaced by an application for a prohibition order to an industrial tribunal.
As part of its service standards under the Citizen's Charter initiative, the department promises to keep complainants in touch with developments and to provide a written explanation of the result of the investigation. It therefore seems to me that in those circumstances my noble friend's amendments are unnecessary. I believe that if they were accepted, they would be unnecessarily onerous, given that the results of the investigation of a complaint may properly be enforcement actions other than making application to an industrial tribunal for a prohibition order.
The department intends to continue with its complaint investigation policy after the powers of prohibition in the Bill replace the current powers to refuse or revoke licences. It also intends to continue to fulfil its promise to provide complainants with written explanation of the results of its investigations.
The last point my noble friend made, with a little support from me, concerned the question of judicial review. It is my recollection—and I look opposite at those much more learned in the law than myself—that any decision made by the Secretary of State would be open to judicial review whether or not it was in writing in the manner suggested by my noble friend. It is a question of whether a decision has been made. I do not
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know whether that is sufficient to satisfy my noble friend. It is a matter on which I would prefer to take more expert advice before pronouncing on it with any authority. I hope that with that assurance my noble friend will accept that it is not necessary to put his amendment on the face of the Bill.
Lord Jenkin of Roding: I am grateful to my noble friend. He has given a valuable explanation of how he envisages his department will operate the provisions of Schedule 9. That was certainly part of my intention in moving the amendment. He also said that reasons will be given to complainants. In that case I can accept entirely his suggestion that the amendment is unnecessary.
I am grateful to my noble friend. I shall want to examine his words with care, perhaps with the advisers who consulted me. If necessary we can return to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Harmar-Nicholls Lord Harmar-Nicholls moved Amendment No. 178C:
Page 93, line 40, at end insert ("provided that no such order shall be made to prohibit the carrying of the business of a theatrical or entertainment agency.").
The noble Lord said: In moving Amendment No. 178C, I shall speak also to Amendment No. 178F. Several times, in resisting amendments which have been well argued, my noble friend has said that if people do not meet the standards that we require and desire, then we shall deal with the matter in other ways. I note that in the explanatory notes it is stated that agencies would still have to comply with the statutory requirements setting out standards of conduct and that they could be visited by inspectors. Licence requirements for those agencies would be vetted and would have to be maintained. However, that is after the damage we have in mind may have been done.
The purpose of my amendments—it appears from the comments that have been made that they have support on all sides of the Chamber—is to retain parts of the present system. The proposals would bring about the standards that the Bill seeks rather better than the alterations that are envisaged by removing licensing.
I do not want to sound pompous, but as I see it the purpose of a Committee stage is not to maintain every word and comma of an original draft Bill. If the experience of Members of either House shows there to be a weakness in the Bill it is not weakness on the part of the Government to recognise that and to amend the Bill.
I am sorry that the noble Lord, Lord Jenkins of Putney, wasted his excellent ammunition on the wrong amendment. He is always doing that. That does not alter the fact that in this case his evidence is sound. What makes it particularly worth listening to is the fact that it is based on practical experience of the item under discussion. In the case of the noble Lord, Lord Rix—I hope that he will join in the debate on these amendments —we are listening to someone with experience who knows what he is talking about. The Government should

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listen; they should not be so wedded to their own words and their own approach that under no circumstances will they deviate from them.
Lord Henley: Perhaps in order to save time my noble friend will give way. I was going to tell him that his amendments are not satisfactory and do not achieve what he intends. But I was certainly not going to base my arguments on that. I was going to argue against the amendments on the merits of my noble friend's intention. Therefore, at this stage there is no need for us to go into arguments about whether the amendments do what my noble friend intends. We all have some ideas as to what is intended. If my noble friend feels that they are not satisfactory he can come forward with more satisfactory amendments at a later stage.
Lord Harmar-Nicholls: I was not going to refer to the point my noble friend has just made. That was a private conversation. I was merely speaking in general terms about how we should do our job as parliamentarians. On that issue there is enough evidence to show that this Government are no more perfect than the 11 other governments I have supported in one House or another in terms of being certain that their own point of view is the right one. On too many occasions they are reluctant to deviate, even in the face of evidence which should cause them to do so. I argue that if there is a case for deviating from the wording in the Bill in this instance it should be done. There are good reasons why it should be done.
I have mentioned the noble Lord, Lord Jenkins of Putney, and the noble Lord, Lord Rix. We have heard from my noble friend Lord Jenkin of Roding. I believe that I can talk reasonably authoritatively. Here is a case where there is a possibility of licences being removed from people who had previously been judged worthy of having a licence. I have businesses which involve many licences. In the case of pubs, hotels and other companies with which I have been connected, the licence has been a very valuable tool. If one deviates from the standards which the licence is intended to uphold one goes to court and if one is found guilty of deviating from those standards one is fined.
On the basis of considerable experience, I wanted to impress upon my noble friend that if one wants to ensure that people uphold the standard, the one way to achieve that is if they think that there is a risk of losing their licence. People are not frightened of being fined. They may be very well defended, perhaps by the noble Baroness, and may get away with a lesser fine than would otherwise be the case. That is no deterrent. But the thought that they are likely to lose their licence is one way of ensuring that they maintain the standards laid down in statute.
The same applies to driving. As a magistrate I have found that if one wants people to recognise the dangers of exceeding the speed limit or deviating from driving standards, the risk of losing their licence is the deterrent which brings about the results we all want. A fine— although nobody enjoys paying fines—will not achieve that.
I suggest to my noble friend that in this category— the entertainment and theatrical industry—there is a real

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need to retain the licensed agents. Their great power has already been explained. I have no doubt that other speakers will produce more detailed evidence. However, those agents are proud to obtain the licence; indeed it is the very basis of their business. To remove the possibility of achieving the standards that we all want by removing the deterrent would be a grievous mistake.
I have a daughter who has been in the entertainment industry for a number of years, I believe with some considerable success according to all that one reads or hears. We know that many others have not had that good fortune. Many are attracted by the glamour—to use that word, although it often does not exist. We know that very often vulnerable young people are convinced that they can sing or dance or have a dramatic talent that ought to be taken into account. They are easy meat for the sleazy agent.
In 1973 licensing provisions were tightened up. We have had many examples of advantage being taken of those vulnerable young people. They have entered that glamorous, attractive profession but not to their advantage. In recent cases in the courts we have seen how differences arise with accredited agents who are beyond any suspicion. Such difficulties are not in anyone's best interests.
I believe that it is a good Bill. I believe that its main aim can only help those of us who seek to run small and medium-sized businesses. It will be easier to bring prosperity to the country if some of the brakes are removed. That is what the Bill does. My noble friend has already stated that he wishes to support the Bill because he has views similar to mine. I should like to believe that other noble Lards in other parts of the Chamber felt the same. However, on this specific item —it is only a small item—we recognise that the provisions in any Bill produced by any government are capable of improvement if the experiences of those in Parliament who have knowledge on the subject are shared.
The noble Lord repeated what I had looked on as a private conversation. If my amendment is defective in some way and cuts across an important part of the Bill, of which I was not aware, that is fair enough. Under those circumstances perhaps the noble Lord will indicate that he will give further thought to the matter in the light of evidence that he will receive. The noble Lord, Lord Jenkins, the noble Lord, Lord Rix, and my noble friend have already put their qualifications on record. Whether we consider the matter as parliamentarians or as the Government, nothing but good can come if the Government listen to the evidence that Parliament brings and are prepared to amend to some minor degree. That will avoid removing a deterrent and will make the standards that we wish to attain more certain.
I hope that my noble friend will consider the matter in that light. Perhaps we can avoid a vote on this occasion. If my noble friend gives us hope, we can produce an amendment at a later stage of the Bill which will not cut across any purity in the wording of the statute. If he can do so, he will help a Bill that we wish overwhelmingly to support. In doing so, he will

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recognise that even with the most carefully thought out ideas, there are occasions when one little segment is worthy of different treatment. I hope that my noble friend will accept that view. I beg to move.
9 p.m.
Lord Rix: At long last I can rise to support an amendment. Even though the amendment may well be defective in the Minister's eyes, I trust that an amendment with a similar effect—that is, the non-deregulation of employment agency licences for performing art performers—will be put forward at Report stage.
I am in perhaps a unique position in this Chamber since I am probably the only life member of Equity present. I have been a member of Equity for 52 years, since 1942. The number that I was given in those days was 9,800. I am afraid that the sands of time now indicate that well over 250,000 have entered the profession, and many have left. By a strange irony, those who suffered most from regulations over the centuries—actors, proscribed by parliaments and patents, censored by chamberlains and councillors, rejected as rogues and vagabonds—are as one in their opposition to the deregulation and abolition of the entertainment agents' licences. In that firm conviction they are supported by the employers and by the agents themselves who do not wish to see their licences cease to have effect. Only one body—it has already been mentioned by the noble Lord, Lord Henley —is in favour of deregulation; that is the Agents Association, which I believe is a quite small association. Its support is based on its fear of registration fees rising, nothing more, although the idea that an application to the Secretary of State, an industrial tribunal, a judicial review, and so on, is a cheap option stretches credulity to beyond reasonable limits; and the job would still not be available at the end of that time in this never-never land.
Put simply, all the performers' and employers' organisations, with the one exception that I have mentioned, plus others that I know not of, are very concerned that the abolition of licence requirements will, as we have heard, lead to the influx of a further number of cowboy agencies whose sole purpose is to set up bogus businesses, exploit youngsters and, if I may say so, actors as a whole. It has to be remembered that there are 45,000 members of Equity at this precise moment, 82 per cent. of whom are always out of work. I know Members of the Committee may say that that is their own silly fault for entering that particular profession. Unfortunately, it happens to be the profession that they have entered and that happens to be the unemployment level that they have to face.
Actors would probably be happier under Schedule 8 of this Bill. At least the slaughterhouses and knackers' yards enforcement functions ensure humane conditions of slaughter. Those for whom Equity and others are concerned would be fleeced and then slaughtered by cowboys, with humane conditions a last consideration.
Does the current licence system work? Well, clearly, as has already been indicated, there are problems. There
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will always be those who offend against regulations and the law, and the Department of Employment has never made available sufficient resources to track down all the offenders. There are about 2,500 licensed agents but only a handful of inspectors, and no spot checks are ever carried out. Nevertheless, the licensing system does at the very least allow some regulation for actors and is a deterrent to unscrupulous operators. It is a simple and effective method of control. After all, we have accepted the bans of marriage since the 11th canon of the synod of Westminster in 1200 A.D. We have only had to put up with the Employment Agencies Act and the notice of application for a licence since the year of our Lord 1973.
The Government's argument that the obligation to apply for and maintain a licence places a great burden on small businesses is so much hogwash—if Members of the Committee will forgive this further indirect reference to cowboys—for the fee is currently £114 and has not been increased for the past 12 years.
The Committee has already heard that, unlike in any other kind of employment, the agent is paid commission directly by the client: the actor, not the employer. Often too, payment is sent directly to an agent, who will deduct commission and then pass on the money to the client. I hate to detain the Committee with a personal story, but when I first became an actor-manager way back in 1950, I employed a booking agent (who is long out of the business and long dead, I hasten to add) who operated under those conditions. He and I lasted the first week, for I discovered that he and the manager had agreed terms 10 per cent. higher than those on my copy of the contract. The ill-gotten money would have been paid to the agent with no questions asked and the lower amount, less agent's commission, would have been sent on to me. Fortunately, because I was broke I had to go forward and ask for some money in advance. I had sight of the manager's contract and saw the fraud that had taken place. Even though I blackened the agent's name as much as possible, I did not have the financial resources to resort to litigation. If the agent concerned had been licensed though at that time—which of course he was not—that licence could easily have been revoked. To appeal to an industrial tribunal would have been expensive, cumbersome, ludicrously complicated and totally outdated by the time the decision had been reached.
Many other abuses will also be possible under the new system. At present it is illegal for agents to charge fees in advance of work unless they are licensed. Even now the law is often broken, but it will be flouted to excess once registration is no more. Crooked agents will be able to travel from town to town, offer so-called glamorous work to gullible "hopefuls", take the agency fee up front, and then scarper. Employers of actors will once again be able to become their agents too.
Again, I have a story for the Committee. Years ago, my predecessor at the Whitehall, a Mr. H.J. Barlow, who was in reality a nuts and bolts manufacturer in Wolverhampton, put up the money for and presented the play which preceded "Reluctant Heroes" called "Worm's Eye View". He also happened to back an artists' agency at the same time, and the majority of the actors then working at the Whitehall in "Worm's Eye

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View" were employed through that agency, which meant that the manager and the agent negotiated terms that were acceptable to them and not to the actor. It brings new meaning to that old feed-line addressed by an actor to a landlady: "What are your lowest terms for actors?". I will not repeat the response in this Chamber, but certainly Equity became involved in a monumental battle with Mr. Barlow and the agent concerned when all had doubts cast upon their parentage.
I have the following questions to put to the Minister. I hope that he will answer them in his response to this amendment. How many more inspectors will there be to investigate misconduct once the licence requirements have been repealed? What new powers will they have? Paragraph 12(2) of the 1973 Employment Agencies Act specifies that before repeal the Secretary of State is required to consult with the representative bodies of the industry. Why has no such consultation taken place? What guarantees will the Government give that the new system will be at least as effective as the old one? If the department does not have the resources to police the industry at present, why remove the only deterrent that there is? Will the Government accept that very specialised conditions pertain in the entertainment industry and in traditional arrangements between actors and their agents which require different considerations from those which pertain in other types of employment agencies?
Earlier this afternoon we debated an amendment on nurses. Perhaps I may suggest that a similar amendment for actors and artists generally might well fit the bill. At the turn of the century acts used to walk up and down the Waterloo Road passing managers and agents who were sitting in the windows of cafes working in collusion and discussing the artist's merits. If they wanted to engage him or her, the agent would hold up two fingers or three fingers, indicating £2 or £3 as the agreed sum for a week's engagement. The artist would turn up on Monday morning, play his week and at the weekend receive his pittance, less the agent's commission.
I hope that, even if this foolish Schedule 9 so far as the theatrical profession is concerned is finally accepted, it will not mean a return to those bad old days. However, it seems likely that cowboy agents may well hold up two fingers then to actors, industrial tribunals and the Secretary of State alike, only this time the gesture might well have a very different connotation.
9.15 p.m.
Lord McCarthy: No one who has spoken so far has disagreed with the intentions of the amendment of the noble Lord, Lord Harmar-Nicholls. The problem is that not only is the amendment defective, but it does something entirely different. First, it adds that no such prohibition shall be applied in the case of a theatrical agency. So there cannot be prohibitions, according to the noble Lord, Lord Harmar-Nicholls. But also we cannot have licences, because he does not do anything about the earlier part of the schedule which states that:
"Sections 1 to 3 (licences) shall cease to have effect".

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So in the context of the schedule the effect of the amendment would be to abolish licences and abolish prohibitions. There would be no regulation of the entertainment profession at all.
Surely it is critical, if there is to be an amendment on Report, as I hope there will be, to face the fact that licences must be retained. There are only two ways forward so far as we can see: prohibitions, which are of no use, and licences, which are of very considerable use. I hope that the Minister, even now, will agree with us.
Lord Henley: I am most grateful to the noble Lord, Lord McCarthy, for explaining to the Committee so coherently how inadequately drafted the amendments were. As I made quite clear in my comments to my noble friend, I have no intention of arguing against them purely on drafting grounds. I am sure that the Committee is well aware of the intention behind my noble friend's amendments—though when I looked at them this morning, I did not have the first idea as to whether, in opposing the suggestions of the noble Lord, Lord Jenkins of Putney, he was to some extent supporting me or whether he was trying to do what the noble Lord, Lord Jenkins, wanted to do with regard to theatrical agents.
It may help to repeat what I said before; namely, that we do not believe that the licensing system has proved as effective a means of controlling risks as it might have done. It is worth reminding the Committee that licensing itself does not establish the licence holder's honesty or reliability and it is not a guarantee of future good behaviour. The great majority of serious breaches of law—there are relatively few and we must be grateful for that—are committed by licensed agencies.
Furthermore, I believe that the minimum standards in the Employment Agencies Act 1973 and its regulations have been far more effective than the licensing system in protecting the agencies' users. Certainly we are retaining those standards with the new prohibition controls which will continue to offer continued protection from malpractice and abuse.
My noble friend Lord Harmar-Nicholls argued that we propose to act after the damage has been done, whereas in the case of licensing he suggests—I dispute it—that what happens does so before any damage has been done. As I made clear, there have been many cases where licensed bodies have committed such damage. So my noble friend's point does not stand up. The situation is not quite so simple at the moment. The position at the moment is such that if a noble Lord, say, as such an agency, breaks the rules, that noble Lord as an agency would be subject to the various remedies that I repeated earlier when I responded to the amendments of my noble friend Lord Jenkin of Roding: there would be the possibility of losing the licence.
At the moment we cannot deny a licence because the licensing authority—the department—happens to think that the person seeking the licence is a bad lot. There must be evidence. That is not so very different from the position we are proposing; that is, that the Secretary of State shall have power to go to the tribunal. I should point out to the noble Lord, Lord Rix, that it is not a question of a poor, impoverished and possibly

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unemployed actor or actress going to the tribunal; it is my right honourable friend the Secretary of State, who has the resources of the Government behind him, who will go to the industrial tribunal. If there are complaints about the use of the industrial tribunal we can discuss that on a later amendment.
My right honourable friend goes to the industrial tribunal to seek powers for a prohibition; to take away the licence from the person who has either behaved badly or who is unsuitable,
"on account of his misconduct or for any other sufficient reason, to do what the order prohibits".
In other words, he has the same powers to seek a prohibition as my right honourable friend would have at the moment to deny a licence. All we are doing is saying that for the vast majority of worthy, reputable and honest agencies there is no need to go through the burden of seeking a licence.
The noble Lord, Lord Rix, also asked, quite rightly, about the number of inspectors and their new powers. With all due respect to the noble Lord, that is slightly beyond the question we are discussing at the moment. Even at the moment whether or not the number of inspectors is adequate is a matter for argument. Merely changing the procedure whereby we seek a prohibition rather than deny a licence does not affect the question. The noble Lord may have a perfectly valid point that there are insufficient inspectors. There may be a case for increasing the number of inspectors. But that is not the issue at the moment. I do not believe that the position is so different under our new procedures and it is not necessary to retain licensing just for one specific class of people. I hope therefore that my noble friend will feel able to withdraw his amendment.
Lord Rix: Before the noble Lord sits down perhaps I may make one point clear. At the moment when applying for a licence putative agents must advertise before they cause anyone to be employed or taken into the agency. In other words, that is "pre"-employing people through the agency, not "post". Objections to them as agents can be immediately reacted to by Equity —Equity has an endless blacklist—possibly before too much damage is done.
Lord Henley: I appreciate the noble Lord's anxiety. My point is that we cannot refuse a licence merely on suspicion that an agency is a bad lot. We would be in the same position if the noble Lord heard that one of his noble friends was setting up an employment agency. There is no reason he could not come to us to seek prohibition if he had appropriate evidence.
Lord Wedderburn of Charlton: Before the Minister resumes his seat perhaps I may put to him a specific point in the schedule in relation to the argument on which he rests his case. He says that the prohibition procedures are equivalent to the licence, without the licence, and will be as effective. Will he then turn his attention to the schedule?
It is not possible in the industrial tribunal, if one ever reaches that point, to make a prohibition order for longer than 10 years. The tribunal appears to have a discretion as to how long the prohibition shall last. The period of

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10 years puts one on inquiry immediately about the parallel provisions in the Companies Act. It is almost impossible to read the schedule without seeing that the draftsman has obviously taken certain ideas from the Companies Act in relation to the disqualification of directors, as I mentioned earlier.
The noble Lord must say that either that has no application and tell us why, or he must agree that the procedure and discretion will be similar. Vast numbers of discretionary prohibition orders for company directors are for periods less than 10 years. It is obvious that tribunals will usually apply their discretion for imposing less than the maximum.
Once those factors are placed in the balance, can the Minister really say that this limited jurisdiction to the tribunal, even when one obtains a final decision—if the Secretary of State decides to bring any case at all—is the equivalent of a licensing section? As so many noble Lords have made clear, including the noble Lord, Lord Harmar-Nicholls, the fear is of losing one's licence; for example, if one drives a car one does not want to lose one's licence. Is he really saying that these are parallel procedures in the light of the specifics of the schedule?
Lord Henley: If you drive a car, you do not want to lose your licence. Similarly if you drive a car, you do not want to be prohibited from driving. I honestly do not see the distinction. My noble friend talked about the likelihood of fines not working and people not minding paying fines. We are not talking about fines. We are talking about prohibition. I really do not see that an analogy between this and the Companies Act, or whatever the noble Lord cited, is relevant. We have given the tribunal a maximum of 10 years. It is then up to the tribunal to decide what is the appropriate amount. Obviously in the most severe case it can be 10 years. But one can seek further prohibition later on if necessary. Similarly, under the current licensing system, one can come back and reapply for a licence in the following year.
Lord McCarthy: If the noble Lord says that it is as much like the existing system as possible, and bearing in mind what the noble Lord, Lord Rix, has said, will he accept an amendment on Report to put into the Bill a parallel to the advertising procedure whereby any new person who wanted a licence or wanted to go into this profession would have to have a public advertisement to which Equity could object?
Lord Henley: I shall not give an assurance of that kind. It is certainly something I would be prepared to take away and consider, but no more than that. One has to be very careful about bringing in the kind of regulatory process that the noble Lord is suggesting— the vast process of advertising—without considering the consequences. I shall, however, give an assurance that I will at least look at that but with, dare I say it, not the strongest hope of coming back to the noble Lord at Report stage with a satisfactory response.
Lord Rix: As I said in my speech, the department has not apparently had consultations with employers, employees and the agencies, as was laid down in the 1973 Act. Would it be appropriate if Equity, the TMA,

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the Society of West End Theatre and so on wrote to the Minister with some form of evidence so that he could consider an amendment at Report stage which would be acceptable in this area?
Lord Henley: We shall take note of any representations that we receive between now and Report stage, which is obviously some time off. I have to repeat, however, that I do not see any evidence that publication of the licence application as we have at the moment is the effective method of control which the noble Lord suggests. Perhaps I may give him some figures. Last year 4,513 new licence applications were received. Three hundred and one representations were made against those licence applications. None of those representations resulted in the refusal of a licence. That is quite a procedure to go through when I am suggesting an alternative procedure which will have the same effect and which will remove the burdens of the licensing procedure.
Baroness Hamwee: Perhaps I may make one small point which may be important if the matter comes back at a later stage. I have indicated that I support the thrust of the amendment of the noble Lord, Lord Harmar-Nicholls, but it refers to,
"the carrying of the business of a theatrical or entertainment agency".
I wonder whether the noble Lord might consider the terms "theatrical" and "entertainment". As I read "entertainment" it encompasses "theatrical". Perhaps if one uses both terms it may suggest that areas such as music, film and so on are excluded. Will the noble Lord have that in mind if he does bring the matter back at a later stage?
Lord Harmar-Nicholls: Having listened to my noble friend I had it in mind to withdraw the amendment. In doing so I had it in mind to suggest something similar to what was suggested by the noble Lords, Lord McCarthy and Lord Rix. If my noble friend will allow me to say so, the real thrust of his answer was that the licensing system itself does not do what we say it should do. If that is the weakness, that means that we should strengthen the system for the issuing of the licence. If we can state in the Bill that the licence can be issued only when people have passed some test to show that they are worthy of holding it, perhaps that would get us out of the difficulty. However, in the light of all that has been said, and as there is plenty for us to get on with—
9.30 p.m.
Lord Henley: Before my noble friend withdraws his amendment, I had better put on record that the suggestions which he makes fill me with even greater horror.
Lord Harmar-Nicholls: That means that we will not have much of a chance if my noble friend is answering at Report stage. We had better get a new "answerer". In order to get this matter over and move on to the next business, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 178D:
Page 94, line 32, at end insert:
("(6A) An industrial tribunal shall reach a decision on an application by the Secretary of State under subsection (1) above within the period of 60 days beginning with the date on which the application is received by the tribunal.
(6B) An industrial tribunal reaches a decision for the purposes of subsection (7A) above when—

(a) it makes a prohibition order under subsection (1) above, or

(b) it decides to refrain from making such an order.").

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 178G with which it is grouped. In deciding that they want to do away with the licensing of employment agencies, the Government have produced a very strange schedule designed to allow the Secretary of State to prohibit an agency from operating after a cumbersome procedure, including reference to an industrial tribunal and onward to an EAT. I find that quite an incredible suggestion. We already have a system of licensing and to the best of my knowledge there has been no campaign or pressure from any quarter to depart from it. We are to have deregulation, but the Government seem reluctant to leave everything to the untrammelled market so we have this cumbersome schedule.
There are many reasons that I believe industrial tribunals are not the most appropriate bodies to handle this new function. Perhaps the most compelling and the one to which many Members of the Committee have already made reference in debate this afternoon and which I hope will cause the Government to think again, is that industrial tribunals are currently overwhelmed with work. I can well remember when industrial tribunals were first established. They were to provide a quick and easy remedy for employees; the proceedings were to be as informal as possible and employees should be able to represent themselves so that legal costs would not be incurred.
But we all know that things have changed since then: proceedings are now much more formal and legalistic since the volume of legislation in the employment field has grown, and the individual who goes along unrepresented by either a union official or a lawyer is at a disadvantage. In the meantime the system itself is under incredible strain with the number of cases before it growing each year. Nor is there an indication that the much-awaited end of the recession will bring about a reduction in the case load. There will still be redundancies and people who feel that they have been unfairly "sorted out". Moreover, individuals seem much more ready to assert their rights on the ground that there is now so much unemployment that they have little to lose by attempting to take on the employers through the industrial tribunal system.
As it is, 80 per cent. of the cases take up to 26 weeks to be heard and, if there is an appeal to the EAT, the case may not be heard for two years. Clearly, to put more onto an already overloaded system is simply not sensible. I am surprised that the Government should even try to do so. The president of the EAT has already complained strongly to the Government about the system, claiming that industrial tribunals are grossly overburdened and that the EAT itself is being swamped.
If the Government persist with this idea and we are unable to stop them doing that, at least they should put some time limit in the Bill. That will mean that the Government will have to put in more resources if they want the schedule to work. I beg to move.
Lord Rochester: In opposing the Motion that Clause 25 shall stand part of the Bill, I said that I was mainly concerned about the effect of the proposed arrangements on the administration of justice. I shall not repeat all that I said then. I believe that it is enough to reiterate that, unless the resources available to industrial tribunals are increased—the noble Lord, Lord Henley, gave no indication at an earlier stage that they would be— implementation of Schedule 9 is bound to add considerably to the delays already being experienced in the hearing of cases. It follows that I am sympathetic to the aim of this amendment in seeking to limit those delays.
Lord Henley: I do not believe that the need for the time limit for which the noble Baroness asks has been demonstrated by experience of the provisions. The industrial tribunals are independent bodies and it is for them to decide the appropriate time period for dealing with the proceedings before them.
The statutory procedural rules for industrial tribunals allow for respondents in proceedings to be given adequate time to notify whether or not they wish to contest a case and for all parties to be given notice of hearings. We believe that the tribunals must be permitted discretion to determine how much time should be allowed for these matters in particular circumstances.
We accept that it may be desirable for an industrial tribunal to hear an application for a prohibition order under these new provisions particularly speedily. I understand that the tribunals are well aware of the need for speedy hearings in such cases and I am confident that they will ensure that prohibition cases are dealt with as promptly as is consistent with fairness.
The noble Lord, Lord Rochester, is right to say that he raised the matter in earlier amendments. I did not respond then because I thought that it could be better dealt with on this amendment. In a sense, the noble Lord was asking how long it can take industrial tribunals to hear particular cases and what we are doing—I regret to have to say that I shall give the noble Lord figures—to reduce the delays inherent in the system at the moment. I can tell the noble Lord that for the period from 1st April 1993 to the end of March 1994, 54 per cent. of cases came to a hearing within 26 weeks in England and Wales. The figure for Scotland was 80 per cent. We accept that it is a disappointing percentage in England and Wales. That is due to the rapid increase in tribunal caseloads in recent years. Last year there were a record 72,000 applications nationally, a 145 per cent. increase on the 1988–89 figure.
What are we doing to reduce delays? We have increased the number of chairmen and administrative staff. We have expanded premises. We are enabling chairmen to sit alone in some cases. We have amended tribunal rules to encourage a more investigative

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approach. There have also been a number of efficiency improvements, including substantial investment in new technology. Tribunals are now able to start earlier and to sit for longer in the day. The chairmen are now sitting more days in the year than previously. We are also streamlining the administration. In addition, another seven full-time chairmen are being recruited for those regions where the delays are most severe. At our request, the Lord Chancellor has agreed to raise, for a limited period, the number of days for which part-time chairmen may sit—from 50 days to 70 days for those in practice and from 70 to 100 days for those retired from practice.
Perhaps I may also point out that expenditure on industrial tribunals has gone up from £12 million in 1988–89 to £25 million last year. The noble Baroness, Lady Turner, asked for an increase in resources. In addition, extra money is being made available for the recruitment of the seven extra chairmen mentioned earlier. We are confident that these measures will soon lead to a considerable improvement in the time taken for cases to come to hearing. Obviously, we shall keep matters under review.
Lastly, I believe that there is no precedent for limiting the time in which a tribunal must come to a decision on applications of this type. We see no good reason for creating one here. I hope, therefore, that the noble Baroness will not feel it necessary to press her amendment.
Baroness Turner of Camden: What the Minister said simply confirms me in my view that the industrial tribunal system is not the appropriate system for proceeding to deal with prohibitions under the proposed legislation. I am glad that further resources are being made available, but I have to point out that industrial tribunals were not originally intended to deal with such work. It seems to me that imposing a time limit for cases that are quite different from the normal type of industrial tribunal case would have been appropriate in the circumstances.
I do not intend to press the amendment now, but since the Government, although accepting that speedy decisions are necessary, are apparently unwilling to put in time limits, accept the amendment, or even say that they will take it away and think about it, we have no alternative but to look closely on Report at the schedule to see whether we can come up with some amendments which will provide a different means of enforcement from the industrial tribunal system, because that is inappropriate in the circumstances. However, having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 178E to 178G not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 178H:
Page 97, leave out lines 14 to 21.
The noble Baroness said: I move the amendment in the absence of my noble friend Lord Clinton-Davis. The amendment is designed to remove from the Bill the provision that would repeal the licensing requirements for seamen's employment agencies. I gather that the Department of Trade and Industry says that the aim is to

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remove financial and administrative burdens from agencies while retaining protection from malpractice and abuse. I have a briefing from NUMAST, the union representing seamen, which states that it has not been aware that the section of the 1894 Merchant Shipping Act relating to seafarers' agencies has caused any unacceptable burdens to be placed on such enterprises. Indeed, it indicates that there seem to be more agencies than ever before. It is aware of some one-person agencies which are operated from private residential homes.
Clearly such agencies may not be inherently poor or any more likely than larger agencies to commit abuses. Nevertheless, they can be considered to indicate a sector which needs basic safeguards and a fair regulatory regime in place. Any deregulatory proposals affecting seafarers' employment agencies must ensure that any changes do not foster a climate in which abuses become more "prevalent and where—again we have this word —more cowboys are attracted into the sector. The union says, and I agree, that it goes without saying that supplying seafarers is different from supplying employees for shore-based work. The need to supply quality seafarers to vessels cannot be over-emphasised. It is important to note that the world shipping industry already suffers from low standards of employment and employment agencies.
In certain parts of the world some agencies still continue the practice of charging seafarers a fee to find work. In such instances, that can include taking a cut directly from seafarers' earnings. Such practices were outlawed by the UK in the Act to which I have referred. I gather that the union would strongly oppose any changes to the regulatory regime for agencies which could in any way enable less scrupulous agencies to use such practices. I am also informed that such practices are outlawed by ILO conventions to which the UK Government are a party. For those reasons, I beg to move the amendment standing in the name of my noble friend Lord Clinton-Davis.
Lord McCarthy: While supporting the amendment, I want to ask the Minister for some information. I cannot find out, so I ask the Government because they know everything, what is the position in relation to merchant seamen and whether it is lawful for them to be supplied from an agency which then charges them a fee. That point is important, because the Government are not going to abolish Section 6 of the 1973 Act, which of course does not cover merchant seamen. Section 6 of the 1973 Act states that agencies shall not be able to charge except in such cases or classes as the Secretary of State may prescribe.
I do not know, and I shall be interested to hear from the Minister, what are the cases under Section 6 of the 1973 Act where the Secretary of State allows charges to be made and how they relate to the existing position under the Merchant Shipping Act, where Section 111, as I understand it, provides that there should be no charges at all.
Unless that provision has been subsequently amended, we could get into a situation in which outside the merchant service it will still be the case that there is

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some control over the charges that are made, whereas if Section 111 has been abolished there will be no limitation on charges within the merchant service. Will the Minister clarify the position?
9.45 p.m.
Lord Henley: The noble Lord, Lord McCarthy, has made an important and interesting point. He will not be at all surprised if I seek advice on the matter, and I hope that that materialises before I finish speaking.
The amendment tabled by the noble Lord, Lord Clinton-Davis, which was moved so ably by the noble Baroness, Lady Turner, seeks to continue the: special licensing requirements for employment agencies which supply seafarers for merchant ships in the United Kingdom. The noble Lord appears to believe that these agencies are a special case and that without licensing their standards will drop.
We can see no justification for retaining separate legislation for seafarers' agencies. We do not accept that the licensing arrangements act as a deterrent to cowboy operators, either in the seafaring sector or, as I made clear earlier, elsewhere. Users of agencies may be at risk from some people in any sector of the agency industry, but we do not believe that licensing is not an effective means of protection.
The treatment of seafarers' agencies separately from the requirements of the Employment Agencies Act has long been regarded as an anomaly. Over half the 80 or so agencies licensed under the Merchant Shipping Act are also licensed under the Employment Agencies Act because of their agency activities other than for seafarers. We think it is right that they should need to comply with only one set of agency legislation.
The mere possession of a licence is not a guarantee of good behaviour or reliable conduct. We believe that the minimum standards of conduct in the Employment Agencies Act and its regulations, together with the enforcement activities of the Department of Employment's agency inspectors and the availability of the new prohibition power, will be far more effective than either of the present licensing systems in protecting the users of agencies.
The provisions in the Bill will not affect the training or manning of vessels. Shipowners are required by the Merchant Shipping (Safe Manning Document) Regulations 1992 to employ seafarers with sufficient training, qualifications and experience to ensure safe manning. Various Department of Transport recommendations take that further.
The repeal of licensing will also not affect current welfare arrangements. The existing merchant shipping legislation, which covers aspects of safety involving both ships and seafarers, is an effective means of protecting the welfare of seafarers.
Curiously, the noble Lord's amendment does not extend to the provision in the Bill which brings seafarers' agencies in Northern Ireland within the general provisions governing employment agencies in the Province. Why the noble Lord has excluded Northern Ireland is not for me to answer. However, it is

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worth bringing that to the attention of the Committee, and the noble Lord and noble Baroness can consider whether they wish to come back to the matter.
A licensing system which does not itself protect agency users can no longer be justified. I believe it is right that all the licensing requirements should be removed, but it is equally right that agency users should continue to be protected from harm. The provisions in the Bill, together with the existing standards for agencies and the continuation of enforcement, will provide a strong deterrent and an effective means to deal with any abuse across the agency industry as a whole.
Perhaps I may respond briefly to the point made by the noble Lord, Lord McCarthy. Under the new regime, Section 6 of 1973 Act will prevent charging in all cases except in the entertainment industry. Obviously that will now apply to seamen, and there are no plans to exempt seamen from Section 6 of the 1973 Act by regulation. I hope that that—
Lord McCarthy: Do I understand the Minister to say that under Section 6 of the 1973 Act the only classes for which one is allowed to charge are those in the entertainment industry, and that that will be main-tained? Therefore, after the abolition of the necessary sections in the 1984 Act, merchant seamen will be covered by Section 6 and any charges that are made will continue to be illegal. Is that correct?
Lord Henley: That is my understanding. I believe that there is one other group—namely au pairs—in respect of which (I believe but I speak off the record) a charge of £40 may be made. But it will not be legal to make a charge in respect of seamen. I hope that, with that explanation, the noble Baroness will feel able to withdraw the amendment.
Baroness Turner of Camden: I thank the Minister for that explanation. In particular, I thank him for the response that he made to the point raised by my noble friend Lord McCarthy. Quite clearly, the union organising seamen is concerned about that because it raised the issue of charging quite specifically with me. We are very glad to have the assurance that merchant seamen will not be subject to charges by employment agencies operating on their behalf in the future.
I should like to study carefully what the Minister said about the enhanced protection that he believes will still be available. Quite clearly, very special conditions apply to this section of the workforce. There is a need for a high level of quality and expertise because it is a fairly dangerous occupation. The need for people to be properly trained and competent in the exercise of their craft is extremely important.
Having said that, I thank the Minister for the assurances that he gave, particularly in relation to charging, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 9 agreed to.
Clause 26 [Unfair dismissal: selection for redundancy]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 178J:
Page 23, line 35, leave out ("omitted") and insert ("amended by inserting at the beginning the words "in the case of an undertaking in receivership'"').
The noble Baroness said: Clause 6 relates to employee rights in redundancy. I do not like this clause and I may well say so in more detail when we discuss the Motion, That the clause stand part.
Nevertheless, I have tabled Amendment No. 178J because I am anxious to highlight a particular situation which can arise in the case of insolvency. The rights of employees in insolvencies are meant to be protected under Section 122 of the Employment Protection (Consolidation) Act 1978. That provides that the Secretary of State will meet the following debts to employees upon insolvency: arrears of pay up to eight weeks; notice pay; holiday pay up to six weeks; and any basic award of compensation for unfair dismissal. Section 106 of the Act also permits the Secretary of State to make a redundancy payment to the employees where the employer is insolvent.
But—and this is really surprising—the law does not, apparently, protect individual employees so that their basic employment rights are respected in the event of a receivership. As I understand it, the insolvency of an employer automatically terminates an employee's contract of employment where there is the appointment of a receiver. It is then up to the receiver who shall be dismissed and who retained. The receiver has no obligation to consult anyone, including the unions, or to abide by an existing agreement.
I gather that there have been some bad examples of what can happen in such cases. For example, at Leyland Daf several hundred employees were made redundant at very short notice and no explanation was given as to how individuals were selected. No respect was given to the agreement which provided for enhanced redundancy terms. Individuals were simply told to contact the Department of Employment so that their minimum redundancy rights would be respected.
The amendment ensures that, following the appointment of a receiver, the receiver is bound to respect existing rights of employees. Therefore, I hope that the Minister will be willing to agree to the amendment. I beg to move.
Lord Henley: The amendment would amend Section 59(1) (b) of the Employment Protection (Consolidation) Act 1978 so that it did not apply generally, but would still apply to redundancy dismissals effected by receivers of an insolvent business; that is to say, redundancies effected by a receiver in contravention of any customary agreement or agreed procedure would be automatically unfair.
I believe that the amendment would create an unneccessary distinction between the rights of employees made redundant by insolvent businesses and those made redundant by solvent businesses. I do not believe that it is right, in principle, that such a distinction should exist; nor is it necessary. The law on unfair dismissal applies equally to businesses in receivership as it does to other businesses. Why then should it be automatically unfair for a business in

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receivership to dismiss in contravention of a customary arrangement or agreed procedure, but not for other businesses to do so? I do not believe that there are any reasons why it should.
Moreover, I would suggest that the position of insolvent businesses is a prime illustration of a situation where Section 59(1) (b) of the 1978 Act is outmoded and unduly rigid and why it is right that we should repeal it. Receivers of a business need to assess quickly the strengths and weaknesses of the company, including its workforce. They may need to reduce costs very quickly if the business is to continue to trade at all. That may and often will, sadly, mean redundancies. But it will be essential for the company and its remaining employees that the business has the best possible chance of recovery. To that end, I believe that the receiver needs the maximum flexibility to restructure the business, subject to him acting fairly in all the circumstances.
To constrain the receiver to make redundancies in accordance with an agreement or customary practice which may be outdated or totally unsuited to the insolvent business's immediate and future needs, would be folly. I do not believe that it would benefit anyone if, as a result, the business were to fail.
I would not want it to be thought that the Government believe that receivers should be free to act in an arbitrary or unfair manner. Of course, that is not the case. As I have already made clear, the law on unfair dismissal applies to insolvent businesses just as it does to others. Receivers will, therefore, continue to be under a duty to act fairly in all the circumstances. I believe that that is the right approach. Therefore, I hope that the noble Baroness will recognise that her amendment is undesirable and that she will consider withdrawing it.
Baroness Turner of Camden: Members of the Committee will not be surprised to learn that I do not find the Minister's response very acceptable. He said that the receiver is expected to act in a fair but not arbitrary manner. Of course, the receiver takes over from the employer in the event of insolvency and fills in, so to speak, for the employer in those circumstances. I fail to see why, in such instances, the receiver should not be equally bound by whatever agreement the employer has entered into. That is really all that we are asking for by way of the amendment. However, I suppose that that is really a little too much to ask, as the Bill seeks to remove agreement rights in another context. I also find that unacceptable as, indeed, I indicated in my opening remarks.
However, at this point in the evening there is little point in pressing the amendment. Therefore, I do not intend to do so. I shall, nevertheless, read most carefully the Minister's response to my amendment because it arises from certain situations which have been perceived to be unfair in the past. Indeed, I made specific reference to the Leyland Daf situation. I happen to know that the workers involved in that affair were very badly treated and that they felt most strongly about what happened to them. But, in the circumstances, it simply remains for me to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 178K:
Page 23, line 35, at end insert ("where it can be shown that the customary arrangement or agreed procedure is no longer appropriate to economic circumstances or business needs.").
The noble Lord said: In moving Amendment No. 178K I wish to speak also to Amendment No. 178L. These two amendments are, in a way, probing amendments or perhaps revealing amendments. Their aim is to reveal the slender nature of the Government's case. They seek to replace the, as it were, total abolition of the protection provided by Section 59(1) (b) of the Employment Protection (Consolidation) Act 1978 with a kind of waiver. The waiver of the present protection depends upon establishing before a tribunal that an agreed procedure or custom,
"is no longer appropriate to economic circumstances or business needs".
I obtained that phrase from the Government's Notes on Clauses which constitute by far the clearest defence —the Committee will note how thin the document is —that the Government have put up for what they wish to do in the Bill. The Notes on Clauses state:
"Section 59(1) (b) makes it difficult for employers to change outdated redundancy selection procedures without consultation and agreement"—
one might ask why they should want to do that without consultation and agreement; nevertheless it makes it difficult—
"even when no redundancies are in prospect. Even though they may withdraw from an agreement it may nevertheless he unclear whether they have succeeded in changing a customary arrangement".
The Committee will note that there is no further explanation as to how it becomes unclear or why it should be unclear if in fact it has been done. Never mind that! The Notes on Clauses state:
"whether they have succeeded in changing a customary arrangement. Accordingly they cannot with confidence"—
of course, they must have confidence—
"select employees under the new arrangements they have instituted rather than old arrangements"—
here it comes—
"which may no longer be appropriate to their economic circumstances or business needs".
It therefore seems reasonable to suggest that if the Government had stated on the face of the Bill that employers could welsh on agreements or ignore established arrangements which they could establish before a tribunal were no longer appropriate, "to their economic circumstances or business needs" then they, presumably, would regard that as much more advantageous from their point of view than the special circumstances which they have to argue now. I cannot see any reason why the Government should not accept the amendment. If the Government cannot accept either of the amendments—one is a general one and the other applies to Northern Ireland—we have to come to the reluctant conclusion that they have certain other reasons for acting as they have. I beg to move.
Lord Henley: I am most grateful to the noble Lord for assuring the Committee that his amendments are merely probing amendments. My view when I saw the amendments was that they would undo all the good that the clause aims to bring about. They are undesirable and unnecessary.

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There remains a misconstruction of the objectives —quite obviously—and effect of Clause 26. The noble Lord, Lord McCarthy, appears to believe that it will enable employers to ride roughshod over agreements they have made with their employees about redundancy selection procedures. He seems to think that employers will be able to ignore traditional selection methods at whim for no apparent reason. That is very far from the truth and very far from the Government's intention as any employer who attempted to act in such a way would find out to his cost.
The general unfair dismissal provisions provide strong protection for employees who are dismissed in such a cavalier fashion. They require an employer to act fairly and reasonably in all the circumstances. Where there are agreed or customary ways of going about dismissals, the industrial tribunal will look very carefully at why those have been ignored. In practice, employers will have to show that if they followed different procedures they had good reasons for doing so.
Section 59(1) (b) of the Employment Protection (Consolidation) Act 1978, which Clause 26 repeals, already contains an exemption where there are special reasons justifying a departure from the agreed or customary procedures. The noble Lord's amendments would effectively reiterate the present position. Nor, as I indicated, is the position the clause aims to introduce so very different. However, there is one difference which individual employees are likely to find of great importance. It is that the new regime will protect them as individuals on their own merits whereas the old regime protected the system. It meant that a hard-working, skilful and effective employee could be dismissed in preference to his or her less able colleague who had worked a little longer for the employer.
The employee who is dismissed in those circumstances would find no comfort in the protection of the present remedies. Nor would the employer, who could be inhibited by out-of-date procedures from ensuring a proper skills balance in the workforce and might find himself in the position of making redundant those very workers he most needed to ensure the success of his struggling business. I hope that the noble Lord will agree that that would be an undesirable state of affairs suited to the old days of trade union intervention, which no doubt the noble Lord hankers after, but not to the present day, when individuals should be free to be judged and rewarded on their own merits. I hope, therefore, that the noble Lord will see fit to withdraw his probing amendment.
Lord McCarthy: The noble Lord gets worse. I asked him a very simple question: what is wrong with my amendment? He said that the trouble with the amendment, like the trouble with not having an amendment and with not having this clause, is that it would make it possible for poor individuals to be sacked when they are working very hard and the skills balance would be upset.
I asked what is the problem if an employer wants legitimately to stop a first-in-last-out agreement. The Government have always tried to tell us that there is a

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mystery and that it cannot be done. They say that there is this terrible first-in-last-out understanding which penalises individuals and it cannot be removed. It appears to be like a swamp. It sticks. Even if you consult and give people notice it seems that the damn thing is still there, hanging round your neck. The Government never tell us why that is the case. They never cite examples of cases where the employer went through all the procedures, gave notice and negotiated in an attempt to do away with this terrible first-in-last-out procedure, but somehow the swamp got him in the end. It is a phantom.
The fact is that the overwhelming majority of first-in-last-out agreements have escape clauses. It is possible to say that, in special circumstances very similar to the present circumstances in the employment Act, you can break out of this wicked, vicious first-in-last-out system. It is only in the concept of the swamp, which is never specified and which looms everywhere, that the Government give any plausibility at all to this ridiculous clause.
Since it is so late at night I shall seek leave to withdraw the amendment.
Lord Wedderburn of Charlton: Before the noble Lord responds, perhaps I may put to him a parallel point. There is an escape clause not only in virtually all collective agreements, but there is an escape clause in the section, to which the Government made scarcely any reference in the debates in another place—namely, that the agreement does not apply if there are special reasons justifying a departure.
My noble friend's amendment seems to meet not only the Government's point but also the requirements of the section as it stands. The latest precedent in the employment appeals tribunal held that where a last-in-first-out agreement could well defeat the objective of carrying forward the company's business there was a special reason for it not to apply. Do the Government want to go beyond that? In rejecting my noble friend's amendments, do they want to go to a point where the agreement to which the employer has given his word does not defeat the objective of carrying on the business but is merely something that the employer does not want to observe? If that is so, the clause takes on a new light. That seemed to be the case in debates in another place. I wonder whether the noble Lord will maintain the Government's position on that point.
Baroness Seear: Will the noble Lord quote to us any known agreement of any responsible company that did not have an escape clause? I have never heard of a negotiated redundancy programme which merely accepted the last-in-first-out principle with no qualification whatsoever. Does the noble Lord know of any such agreement?
Lord Henley: Without notice, I cannot satisfy the noble Baroness.
Baroness Seear: I should be grateful if the noble Lord could do so.
Lord Henley: Perhaps we may leave that matter aside for one moment. With their references to swamps and other such matters, the two noble Lords seek to cloud the issue. Quite frankly, by means of his amendment the noble Lord more or less seeks to put us back into the position that we were in with the 1978 Act. As I made clear, the new regime proposes to protect, and will protect, those individuals as individuals on their own merits; whereas the old regime merely protected the system. I do not believe that I can take the noble Lord any further than that.
Lord McCarthy: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 178L not moved.]
[Amendment No. 179 had been withdrawn from the Marshalled List.]
On Question, Whether Clause 26 shall stand part of the Bill?
Baroness Turner of Camden: I oppose the Motion that Clause 26 stand part of the Bill. In my view, we have had enough legislation designed to remove rights from employees. We must now have, I would imagine, the least protected workforce in Europe. Section 59(1) of the Employment Protection (Consolidation) Act makes a dismissal unfair if an employer chooses employees for redundancy outside the terms of an agreement or of custom and practice. Presumably the Government argue that the need to behave in accordance with a freely negotiated agreement imposes restrictions on employers which prevent them from acting in a sufficiently flexible manner. But in other connections, of course, the Government are very willing to talk about the sanctity of freely entered into agreements. Now we are to have legislation which specifically gives the right to ignore such agreements.
What that does to industrial relations in practice one can imagine, although of course the Government are not in favour of any measure, no matter how slight, which appears to give some protection to employees against unfair practices by employers. They are interested only in protecting employees against the unions which they themselves have chosen to join. The Trade Union and Labour Relations (Consolidation) Act 1992 was intended to give effect to an EC directive on the need for consultation in order to reach agreement with unions on how to avoid or reduce the number of dismissals and to mitigate their consequences. The Government will no doubt argue that this specific provision in the Bill does not interfere with that since it is simply about selection for redundancy. But it is difficult to envisage how one can operate one without the other. I predict that if the Bill leaves both Houses unamended in this respect, there will be a number of cases before the courts; and those may even end up at the European Court of Justice.
However, that is the legal argument against the provision. There are other arguments which I should like to advance. Redundancy is for most people an unmitigated disaster. Gone are the days when people would willingly opt for redundancy, take their compensation and cheerfully go off to another job. That flexibility, so important for workers and even, I think,

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for many employers has now disappeared. The flexibility now talked of simply envisages that yet more people will find their way on to the dole queue. So everything must be done to mitigate the effects of redundancy for individuals. Consultation must take place with the relevant unions. Redeployment must be seriously considered as an alternative. If redundancy has to happen, the criteria must be seen to be fair and reasonable. At present an individual who feels that he or she has been unfairly selected for redundancy may go to an industrial tribunal with that plea and may even win the case and some compensation. The removal of the clause in the 1978 Act to which this clause of the Bill refers will very much reduce the opportunity for individuals to do that since whatever agreement over criteria existed will have been automatically expunged. I cannot see that the provision is at all reasonable. Again, I am not aware of any agitation for that to happen.
I suppose that the Government will advance their usual argument. We have already heard it advanced that the existence of the provision in the 1978 Act constitutes a burden on business, and that it prevents an employer from doing what he wants to do in the flexible way in which he wants to operate. But that does not ring with much sincerity to me, coming from a Government who have continued to pile social costs upon employers despite strong objections. Earlier this year we saw the Statutory Sick Pay Act; 8 per cent. of statutory maternity pay has now been made the responsibility of the employer; and earlier this year we had the decision about insurance premium tax, which every employer will have to pay on his employers' liability insurance. That is a tax on employment if ever there was one. So I do not believe this cry about anything that involves employee protection being a burden on business.
This particular clause gives a little bit of protection and some opportunity for unions to intervene in line with negotiated agreements. I hope that the Minister will not talk, as his honourable friend did in the other place, about having to do this because of "last in, first out" union agreements, particularly in view of the discussion that we have just had on the amendments of my noble friend Lord McCarthy. As has already been said, there are escape clauses in "last in, first out" union agreements. Agreements tend to be a great deal more flexible anyway than they used to be, since it is in everyone's interest to keep operations as cost-effective as possible. No, this is another anti-union, anti-employee proposition that has been slipped into this Bill —which has aptly been described as a total Henry VIII clause made into a Bill. I really do not think that we should let the Government get away with slipping this clause into the Bill in this way. I therefore oppose the Motion that this clause should stand part of the Bill.
10.15 p.m.
Lord Rochester: I, too, am seriously concerned about this clause. On a number of occasions in the past I have gone out of my way to speak in favour of the extended use of procedure agreements as a means of making industrial action a weapon only of last resort. If henceforth methods of selecting people for dismissal as

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redundant are to be disregarded even though they form part of agreed procedures, that seems to me to be a retrograde step in terms of the need to maintain good industrial relations.
The effect of this clause is that where redundancy selection procedures form part of an individual's contract of employment, they will remain legally binding. The noble Lord, Lord Henley, has already in effect confirmed that. It is only where the procedures are not part of the contract that they may be overturned by the clause. The Government's intention is apparently to do away with collective agreements requiring selection on the basis of formulas such as "last in, first out" which hamper employers in selecting employees for redundancy according to the needs of the business unless there are special reasons to the contrary.
But surely in those circumstances a right course is for employers to seek in good time to enter into new agreements with employee representatives that accord with their needs. After all, employers possess very strong bargaining counters in this matter if they are confronted with recalcitrant trade unions, including the ultimate sanction of withdrawing union recognition—a policy that can be readily adopted under current legislation.
That brings me to a related point. The European Court of Justice recently criticised the United Kingdom for its failure to require consultation, not with trade unions but with employee representatives when collective redundancies are contemplated. The court said that the UK had failed to implement fully the acquired rights directive of 1977 and the collective redundancies directive of 1975.I had quite a lot to say on that matter when we debated what is now the Trade Union Reform and Employment Rights Act 1993. Current UK legislation enacting those directives guarantees consultation only where there are recognised trade unions. As I see it, that legislation will now have to be amended. Employers will have to consult with employee representatives with a view to seeking agreement where multiple redundancies (probably more than 10) are envisaged.
In the face of that situation, what on earth do the Government hope to gain from insisting on the retention of Clause 26 when they will shortly have to introduce legislation of a completely different kind? The Committee will see that so far from supporting a clause which invites employers to renege on jointly agreed procedures, in my view there are compelling reasons why this clause should not form part of the Bill.
Lord Ashley of Stoke: I have come to expect penetrating and logical speeches from noble Lords and I have not been disappointed tonight. I also oppose the clause. I believe that it is a dangerous clause which sends the wrong signals to indifferent or bad employers and discourages them from acting in an intelligent way.
At Second Reading I declared my trade union interest in the Bill. I should now like to declare my personal interest in this clause. Many years ago I was a chief shop steward in a very tough company. I learned then what a free-for-all means. That is precisely what this clause

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creates: a free-for-all in which workers will suffer very badly. In consequence employers will suffer because industrial relations will be seriously damaged.
Today most companies strive to be efficient. That is welcomed. But if they do it by leaning on vulnerable employees, the efficiency of the organisation will suffer as a result of the ill will that is created. Unfortunately, redundancy is commonplace today but how it is handled can either preserve or destroy good industrial relations. I believe that the problem with this clause is that the impression that it creates is that it is permissible to slash the workforce at the whim of employers. Not all employers would interpret the clause that way. There are some very good employers. But the bad and indifferent employers will take advantage of the licence that this clause gives them.
Some employers are hostile to trade union activists; some of them always have been. Those trade union activists would be the first to go; older workers would stand very little chance of retaining their jobs; and disabled workers would be vulnerable. Those are three very important groups, trade union activists, older people and disabled workers. They will all suffer if this clause remains. I hope that the Government will be able to think again on the matter.
The Minister will remember that in the other place Members spoke eloquently about the personal tragedies of redundancy. Most noble Lords in this Chamber are more familiar with the management side of industry. Some may sympathise with their friends who have suffered financial disaster through Lloyd's. But we should be equally concerned about the tragedies suffered by the millions of ordinary workers who have lost their livelihoods and treat them with consideration. Ignoring arguments and refusing to consult with the unions will be not only deplorable; it will be an industrial relations disaster.
Good businessmen are already aware of the need for consultation and co-operation with the trade unions. They are sensitive to the fact that good industrial relations are crucial today, especially when other developed countries are developing their own. For the Government to dive backwards to the Victorian age of deference and touching forelocks is a disastrous move. If changes and agreements for redundancy are necessary, they can and should be made in consultation with the interests of both the firm and the workers. If agreements are broken and redundancies are bulldozed through, there will be tears all round and ultimately the employers will shed more tears than anyone.
Lord Wedderburn of Charlton: In support of my noble friend Lord Ashley, I must say that on this occasion the Minister's suggestion that the clause is one which promotes the individual against the collective is little more than a merry prank. First, Section 59(1) (b) of the 1978 Act is not concerned only with collective agreements; it is concerned with any arrangements or custom on which the employer is expected to make his selection for redundancy. It is in that respect that the Government's legislation would now give the employer

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the right not to behave reasonably, but in relation to the matter of selection to behave in any way that he sees fit, even if it means breaking his word.
This is another step back to master and servant law as anyone will understand who has looked at the way that other jurisdictions not so many miles away arrange these matters. They are not necessarily to be copied. But it is in marked contrast to almost every continental system that develops the flexibility of its labour law and does so by virtue of agreement with trade unions and employers or through tripartite institutions. This Administration is alone in western Europe in insisting that the only route to competitiveness is a repeated attack upon the rights of workers and their representatives at work. That is why they recently came to such a difficult pass in Luxembourg. Today the Government's motto has moved one step further: pacta suntexceptis dominis servanda; the master is to be given the freedom of his house.
I have two main objections to the clause and the arguments used in favour of it. The first in brief is this: in another place, in Committee on 24th March at columns 791 and 756, the Minister for Corporate Affairs —a somewhat odd title in this Government—said that we must get rid of the section and agreements such as LIFO (though LIFO is by no means the only arrangement caught) in order to keep the business going.
In relation to my noble friend's amendment, I put to the Minister the fact that the present Section 59(1) (b) does not operate if there are special reasons justifying a departure from the arrangement or procedure in the case of the employee in question. The individual employee is protected unless there are special reasons, because it is he who was chosen in breach of the selection procedure. If ever a section was about individuals unfairly and improperly selected, it is this section.
But the proviso in the section was recently upheld in the case of Rolls Royce v Price in the Employment Appeal Tribunal, 1993, where the court said that "special reasons" meant reasons which would,
"defeat the object of carrying forward the business in difficult times".
One may think that if the present section did not allow for that, there may be something to be said for amending it. But it already covers that. All that Ministers have said so far, except for this evening which we will read with interest because the Minister has been going even further, is that such an agreement,
"may have been right for the time when it was negotiated but may be entirely inappropriate for current circumstances".—[Official Report, Commons, Standing Committee F, 24/3/94; col. 719.]
Perhaps the Committee can imagine a Bill which allowed the purchaser of goods to escape from his obligations because the price at which he contracted to purchase the goods had become inappropriate to his current circumstances. That would not be acceptable. Why is this situation different? Because it is about the sale of labour power. To the Government labour power rests on different principles. We must always give the master the control of labour power whereas in other contracts normal principles would be upheld.
That is the first line of attack on this notion in Clause 26. The second, like Gaul, can be divided into three parts. The Government claimed, and the Minister

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claimed again tonight, that the rest of the law will be unaffected. That is a serious point. If the Government can make that statement, they will have a trench in which to retreat. But this is the case only in the most formal sense. Section 59(1) (b) has been a most important buttress of workers' rights where other sanctions are less effective.
I give three examples. First, where the procedure agreement on redundancy is incorporated into tide employee's contract of employment—the individual contract of employment—there are some remedies for breach of that contract but they are markedly inferior to the remedies which exist where at the same moment that employee is chosen, in breach of the procedure agreement, as the person to be made redundant and to be sent home to say, "I've lost my job". The Government Front Bench seems to regard the clause as something of a pleasant surprise that it can be happy with. If someone came to the Minister (who knows what will happen in the next few months?) and said to him, "I'm sorry, but in breach of all the promises I made to you, you have lost your job", I think he would feel a little aggrieved. Of course, we all know that it will not happen. But do the Government intend to restore any equivalent protection in these cases?
The second example is one to which the Rolls Royce case adverts as well. The application of special reasons in that case exempting the employer from his breach of agreement nevertheless left the employee—the Minister is quite right—able to show that the employer had acted unreasonably overall and was therefore liable for an unfair dismissal. I quote the principle from the noble and learned Lord, Lord Bridge, in the Judicial Committee of this House in the Polkey case in 1987:
"In the case of redundancy the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation".
Those principles will still stand, but a message will go to the courts that it is not necessarily unreasonable for an employer to go back on his word without any reason That must be the message that will be put to the tribunals, to the EAT and to the Court of Appeal. It is part of the legislative development, and the courts today will look at Hansard as well. If the Minister is going to say that that will not be the effect for the tribunals and the Court of Appeal, let him put it on record tonight and we shall see whether they accept that rather illogical position. Once Section 59(1) (b) is repealed the courts will be told that an employer can go back on his word yet still act reasonably. The Minister says that it all depends on what is fair and reasonable under Section 57(3), and, of course, that is right.
The problem of consultation also involves the European directive to which the noble Lord, Lord Rochester, adverted. On 8th June the Government lost a major piece of litigation in regard to workers' representatives, but I do not wish to address that aspect of the case tonight. I make that quite clear. I merely point out that under the directive and now under our own law, because the Government amended the Trade Union and Labour Relations (Consolidation) Act before

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the case was adjudicated, it is necessary for the employer not merely to consult about the reasons for the redundancy, the numbers, the methods and so on, but he must, and I quote from the directive,
"begin consultations with the workers' representatives in good time with a view to reaching an agreement".
The Government's amendment to the Act says,
"with a view to reaching agreement",
which is not quite the same.
Nevertheless, let us assume that they are the same. What is the position if Clause 26 is passed? First, the domestic law on unfair dismissal will require consultation, although an employer may go back on his word and still be reasonable. Secondly, the central obligation of the European directive goes further. The employer must act,
"in good time with a view to reaching an agreement".
Yet his lawyers will be saying, "Don't worry too much about that. Any agreement you make you can go back on as far as concerns selection of workers for redundancy". I ask the Minister to take this point centrally on board because it is very serious for the Government if they get it wrong. How is that compatible with a genuine implementation of the directive? Such a state of law renders the phrase that you must,
"consult with a view to reaching an agreement",
devoid of serious meaning. It is only Section 59(1) (b) which stands behind the provision through the special circumstances of our industrial relations system, where the collective agreement is normally not binding between the employer and the trade union. It is therefore only this section and paragraph which stand behind the arrangement and which can give some assurance of certainty where an agreement has been made. To urge an employer to consult with a view to agreement and yet to repeal one of the major protections not for the trade union but for the individual worker is to assure the employer that he has little to fear if he decides to break the agreement if it is concluded. That flies in the face of the directive, which does not mean an agreement which the employer can put aside. I here advert to the decision on 8th June. There is a parallel that the Luxembourg court will not have an implementation, which in practice means that you may refuse to carry out the directive if you so feel fit.
This is a most serious section. For those Members of the Committee who are litigious, my interim view is that someone might well get an injunction to stop this breach of Community law. As the noble Lord, Lord Ashley, has said, most good employers will abide by their agreements. Why give the macho-management an easy evasion of consultation with a view to real agreement? That is what the Government are doing. I hope that they will think again.
Lord McCarthy: I merely want to ask the noble Lord a question. If he cannot answer it tonight, I want him to write to me or answer it on Report. I have read very carefully through all the statements of the Government and I can find only two cases, namely, Copeland v. Bennet in 1984 and International v. Reed in 1985, in which this Government allege that there has

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been any difficulty or problem about establishing, in effect, a special reason. Those cases do not prove the case.
I want the Government now or later, or to write later, to say what is the evidence in terms of specific cases in front of tribunals —because it must be there —where they have found employers who have been unable to use the special reasons excuse?
Lord Henley: I shall respond to that in due course. I was more than amused at the long speech from the noble Lord, Lord Wedderburn, where he touched on the acquired rights directive. The noble Lord was probably here the other day when I responded to a question from his noble friend Lady Castle on the directive. I made it quite clear that we would consider what action was necessary and that we would respond in due course.
What amused me was that the noble Lord made absolutely no mention of the proposals that came from the last Labour Government —I appreciate that that was many, many years ago —when they proposed in their draft TUPE regulations to implement the 1977 directive excluding the entire public sector. Does the noble Lord deny that?
Lord Wedderburn of Charlton: I shall not deny anything which the Minister says at this time of night. I was not referring to the acquired rights directive. I was referring to Judgment 383/92 which refers to Directive 75/129, 1975 which deals with consultation on redundancy, which is what this matter is about. I was not referring to acquired rights and transfer of undertakings at all.
Lord Henley: We shall be getting to that in due course. I believe that the noble Lord was referring to acquired rights—certainly, the noble Lord, Lord Rochester, did. I thought that out of interest Members of the Committee might like to be reminded yet again that it was the noble Lord's party—I believe that the noble Lord, Lord McCarthy, can confirm this, and I can probably quote him—which was going to implement that directive excluding the entire public sector.
Lord McCarthy: Is the noble Lord saying that what we did once the Government can do 35 times?
Lord Henley: I am not saying that. I am pointing out a tiny piece of hypocrisy in the party of the noble Lord opposite. They accuse us of implementating the acquired rights directive 1977, yet they were proposing to do so excluding the entire public sector. The noble Lord cannot deny that. I can refer him to a speech he made to that effect in 1981.
Lord McCarthy: Is the noble Lord referring to a speech that I made?
Lord Henley: Yes, in Hansard in 1981.
Lord McCarthy: I should like to check that out. I do not happen to have that report with me and I doubt it very much.
Lord Wedderburn of Charlton: And anyway, it is irrelevant.
Lord Henley: Well, we have to have our fun!
Lord Wedderburn of Charlton: At this time of the night?
Lord Henley: If I may, my Lords, let me turn to the provision before us. The provision will in fact help employers by removing uncertainty. I shall refer to some examples in due course. It was the deregulation task force which drew our attention to this outdated piece of legislation because at the moment employers are not clear where they stand in relation to the outdated procedures, even if they have withdrawn from them or changed them long before redundancies were in prospect. Some industrial tribunals have found cases one way; others have found the other way. Because of differing circumstances, employers cannot be confident that they can judge which way a tribunal would rule. The noble Lord, Lord McCarthy, quoted earlier the example of an industrial tribunal complaint in which the economic circumstances justified departure from customary agreements, but other cases have gone the other way.
Perhaps I may quote an example of which the noble Lord may be aware. I refer to the tribunal case of Cross International v. Reed where the loss of an order constituting some 75 per cent. of the employer's anticipated turnover did not qualify as such a reason. The company had set aside LIFO so as to retain the best employees, but the tribunal had been entitled to find that the situation was not so catastrophic or special. Despite the fact that there was the possibility of losing an order constituting 75 per cent. of the employer's turnover, that was held to be not so special as to justify that breach of procedure.
Lord Wedderburn of Charlton: I am glad that the Minister has quoted that case, but does he not accept that in the case of Rolls Royce v. Price in 1993 the law was developed in such a way that one can look at the special circumstances of the Cross case and see that the test is now whether the business will be prevented from keeping going? That case was in 1993.
Lord HenleyThe noble Lord rightly quotes a later case. What I am trying to make clear is that there is still uncertainty in the case of the employers. The clause will remove that uncertainty and will mean that the employers will be clear that they can act in the interests of the business provided that they act reasonably. I emphasise that they will still be open to a employee's claim of unfair dismissal if he or she believes that the dismissal was unfair.
Where the measure allows employers to make better business decisions, I believe that it will help to improve performance and ensure the job security of those who are retained. The employers would be able to keep their best employees rather than be obliged to dismiss those workers who are most valuable to their businesses while having to continue to employ others who did not possess the qualifications, experience and levels of competence needed to restore business success.
I believe that the clause will reduce worries and uncertainties which may distract employers going through difficult times. It will also reduce the time that

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employers have to spend defending the decision before an industrial tribunal. All those effects will improve the employer's ability to act in the interests of the business, which will be in the long-term interests of the economy as a whole. As a result, I commend the clause to the Committee.
Baroness Turner of Camden: I really do find what the Minister has said quite unacceptable. I shall not follow him down the path of the acquired rights directive because, frankly, it is irrelevant to the point that we are discussing in relation to this clause.
The Minister referred to the need to end uncertainty for employers, but what about the employees? Surely the employees will face a great deal more uncertainty if they are not aware of whether or not the agreements or the custom and practice that have operated in their place of work will be followed. It is all very well to talk about the uncertainties faced by employers in such situations, but as I and a number of my noble friends have already indicated, redundancy is often a total and absolute disaster for employees. They have a right to have some knowledge that agreements entered into on their behalf either by their unions or as a result of the custom and practice applying in their place of work will be followed where redundancy may unfortunately threaten them and that attempts will be made to find them alternative employment and perhaps to redeploy them within the enterprise. Of course, they are also faced with increasing uncertainty as to what may be their fate if they go to an industrial tribunal, because industrial tribunals may in future, once the legislation is on the statute book, be less inclined to find for employees when they claim to be sorted out unfairly, if there are no procedures against which those decisions can be judged.
My noble friend Lord Wedderburn is right when he points out that such situations could well result in cases coming before the courts, and, as I said in my opening remarks, I should not be at all surprised if in due course cases were not heard before the ECJ in which the decision may eventually turn out to be in favour of the employee. At this time of the evening, I am afraid that there is not much point in pressing this matter to a vote, but it is totally unsatisfactory. We shall have to come back on Report to see whether there is anything that we can do in this area of the Bill, which I find unfair and another attempt to remove from employees a decreasing number of employment rights.
Clause 26 agreed to.
10.45 p.m.
Clause 27 [Power to repeal certain health and safety provisions]:
Baroness Dean of Thomton-le-Fylde Baroness Dean of Thomton-le-Fylde moved Amendment No. 180:
Page 24, line 11, at end insert:
("(1A) Regulations made under subsection (1) above shall in no way derogate from or revoke any provision maintaining or improving standards of health, safety and welfare of employees and the public").
The noble Baroness said: The amendment deals with the Health and Safety at Work etc. Act and the part of the Bill that seeks to give power to the Minister to deregulate. I hope that the long debate that we have had,

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which appears to have evoked a negative response from the Government Benches, will not be reflected in a similar result for this amendment. I say that because there is not a matter of great principle between us. It is a matter of government responsibility in an area which covers about 16 million employees and self-employed people.
It is said that the clause is in the Bill because there was a need to repeal out-of-date health and safety laws and regulations. In doing that, the wording of the Bill gives sweeping powers to the Minister, if he so chooses, to eliminate the effects of Section 1(2) of the Health and Safety at Work Act etc. 1974. Last year the Minister responsible asked the HSC to conduct a review. He drew its attention to that section in particular. That section places a legal requirement on the HSC to maintain and improve health and safety standards for people at work.
Having conducted its review, the commission returned to the Minister and said that it could recommend no changes to that section of the Act. In response the Minister accepted the recommendations, and said that the Government would not do anything which would undermine necessary—I put a question mark after necessary, because that is subject to discussion about what is and is not necessary— standards of health and safety.
I said that I did not feel that this was a matter of great principle, because the Government are on record as saying—indeed the Minister said it in this Chamber this evening—that it is not the Government's intention to interfere with health and safety provisions. Indeed it is true that due to the 1974 Act people at work in Britain have a better standard of health and safety than those of a number of our partners in the European Union. Of course, the provisions of the Act, and that legal requirement to ensure that good health and safety provision is not just maintained but is improved, are essential. We cannot be complacent about this matter. Last year, 1.6 million accidents occurred at work in the UK; there were 2 million health-related cases; and 143,000 serious accidents were reported to the HSE in the 1992–93 period. Even with that number reported, the HSE itself estimates that as many as two thirds of all non-fatal accidents go unreported.
It is against that background that I move this amendment. In the next three years the Government's health and safety budget will reduce by about 17.5 per cent. That alone is the cause of great anxiety. In addition, Sir John Bourn of the National Audit Office told Parliament about the concerns of the office in respect of the work that it carries out. Its report shows that approximately 1,500 inspectors are responsible for the enforcement of health and safety legislation in 650,000 workplaces. Last year in Britain 430 people lost their lives at work.
Against that background we cannot afford to be complacent, nor can we afford to rely on the assurances or statements of Ministers. We need to have provisions in the Bill so that workers in Britain—be they directly employed or self-employed—know that there is a legal

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requirement that cannot be to be overridden or eliminated which ensures the maintenance of good health and safety and an improvement in standards.
The Minister is on record as saying that the Government will do nothing to undermine necessary standards. In a letter dated 24th June to my colleagues in the TUC, the President of the Board of Trade stated something similar. The Health and Safety Commission, which is made up of employers and trade unionists, stated that it wants to see the full effect of Section 1(2) maintained.
Unless there is a hidden agenda, and unless the Government in using the phrase "necessary standards" really mean that the present protections are too stringent, there should be no problem about their accepting the amendment tonight. The hour is late and I have made my case; it has been debated in this Chamber many times. I hope that the Minister gives us some good news—better news than we had earlier tonight. I beg to move.
Baroness Turner of Camden: I support the amendment moved by my noble friend. This clause is very important. It gives the Government power to repeal provisions in the area of health and safety at work which have already been established in legislation; notably the Health and Safety at Work etc. Act 1974. Like other industrial countries, the UK aims to regulate health and safety at work within a legal framework. In recent years a series of European directives has been designed to strengthen employee protection in this area. There has also been a series of ILO conventions, which also provide for inspection. The body responsible in the UK is the Health and Safety Commission, a tripartite body which has earned great respect throughout industry and commerce.
Of course, things could be better and it is that which the Government should be addressing rather than seeking wholesale deregulation. As my noble friend pointed out, in 1992–93 there were 485 deaths resulting from industrial injuries. More than 27,000 major injuries and 138,000 minor injuries were sustained at work. As we know—because it keeps coming up before this House one way or another—the Government have substantially eroded the industrial injuries scheme. Public interest is aroused by disasters such as the "Piper Alpha" catastrophe, which led to a report by the noble Lord, Lord Cullen, and further tightening up in legislation. Nevertheless, who doubts that things would be a great deal worse without a framework and without enforcement?
I do not believe that the Government have made out an adequate case for the wholesale deregulation proposed in the clause. They state—and of course in this respect they are right—that there is a great deal of outdated legislation and that it should go. We do not quarrel with that. Presumably that is what the Government had in mind when in December 1992 they invited the Health and Safety Commission to review workplace health and safety legislation. The commis-sion was urged to pay special attention to the needs of small business, about which we often hear in this Chamber, and for which,

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"unnecessary red tape is especially damaging".
The commission undertook a review and, unsurprising-ly, its findings were that the current system of regulation has widespread support. Given the toll of death, illness and injury at work, few argue that it imposes inappropriate burdens on business. The document issued by the commission accepts that many regulations may be outdated, but it is firmly of the view, contrary to the ideas of the then Minister, that there is no particular burden on small firms. The document goes on to express the view that it would be neither right nor practicable to apply different health and safety standards to small firms, many of which would create high levels of risk for workers and the public.
Moreover, briefing that I have received from organisations representing inspectors—those who work at the sharp end —suggests that small-scale operations are often not low-risk areas. Indeed, small manufacturing firms have been found to have significantly higher major injury/accident rates than their larger counter-parts, even before their higher level of under-reporting is taken into account.
This amendment would enable the Government to deal with those aspects of legislation felt to be out of date. But it stipulates that the repeal of regulations should not have the effect of diminishing standards. Without such a requirement, the clause simply gives a blank cheque to the Secretary of State to do away with regulations which have been designed to protect employees.
It is true that it will be argued that there will need to be consultation with the Health and Safety Commission, but consultation does not imply agreement. The final word will still rest with the Secretary of State who may proceed to remove primary legislation from the statute book and then simply proceed or not by way of regulation. That is unsatisfactory and it is not surprising that it has aroused a great deal of suspicion and hostility among unions and those representative of professionals working in that area.
Hitherto, the Government have been anxious to assure everyone that they support absolutely measures designed to protect and improve health and safety at work. A few years ago they were prepared to facilitate the passage through this House of a Private Member's Bill, sponsored by myself and supported by my noble friends Lord Wedderburn and Lord McCarthy, to protect against unfair dismissal or discrimination those engaged off shore who blew the whistle on unsafe practices. That has now been subsumed in more comprehensive legislation. Therefore, on that occasion the Government were very anxious to demonstrate their support for improved health and safety at work.
Therefore, I hope that the Government will be prepared to accept the amendment this evening. I took the liberty of writing to the Minister in advance of this debate to indicate to him what we had in mind. I hope that he is prepared to accept what we are saying this evening.
Lord Rochester: On the face of it, this seems to me to be a reasonable amendment which the Government should accept.

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However, in Standing Committee in another place, for reasons which I do not fully understand, it was claimed by the Minister that the effect of an amendment couched in somewhat similar terms would be to negate the clause. That is clearly not the intention of the noble Baroness, Lady Dean of Thornton-le-Fylde, in moving it. I hope that the Minister will not oppose the amendment on the ground that it too is technically deficient. If he does, I hope that he will at least agree to look again at the question between now and Report stage and if necessary, bring forward a government amendment which accords with the principle underlying Amendment No. 180 so that we can achieve the consensus which is clearly desirable in matters affecting health and safety.
Lord Ashley of Stoke: Perhaps I may say a few words in support of the amendment moved so ably by my noble friend. It is not a laughing matter; it is a very important matter.
It seems centuries since the insensitive and selfish employers advanced their businesses with a complete disregard for the health and safety of their workers. In fact, it is not all that long ago since health and safety legislation was introduced. As we have appreciated the risks more in industry, so employers and the community have accepted the trust of health and safety legislation; indeed, we have worked along with it and it has become an integral part of management. What we need now is for that process to be strengthened rather than weakened.
Legislation is necessary because it is individual workers who are vulnerable if new processes are introduced without caution or if employers start impulsive cost cutting to help profits. It is not the bosses' limbs, their lives or their health which is at risk; it is always that of the workers.
Clauses 1 to 4 of the Bill are a potential threat to health and safety legislation. Clause 27 adds to that threat. The Government claim that they need the clause to remove the dead wood of legislation, as my noble friend said a moment ago. Like all other legislation, health and safety legislation needs modernising and improving and no one would object to any changes, provided—and this is crucial—that they maintain and improve existing standards as is required by Section 1(2) of the 1974 Act and by my noble friend's amendment.
Frankly, it is very hard to take seriously the Government's claim that the clause only has limited powers of repeal because the detail of out-dated requirements has to be replaced by fresh detail. Indeed, that is a most remarkable claim. I say that because it does not seem to be borne out by current practice. There are suspicions that that is but an excuse to weaken health and safety legislation. However, the need for continued strong legislation is beyond dispute in view of the fact outlined by my noble friend regarding the number of accidents. The UK's record is very far from outstanding. I shall not go into the figures again at this late hour, but they are most disturbing. Moreover, the cost of accidents is estimated at some £10 billion to £15 billion a year. That is the burden on the country as a whole.

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It is simply not good enough for the Government to be obsessed with "burdens" on employers. The burden is on workers with severe injury or illness, or on the widows of those who are killed—and many of us know those widows—and simply must be taken into account by any responsible government.
I hope that the Government will remember the lesson from the Chichester Sainsbury fire, and especially their role in that incident. In that case, local building regulations called for sprinklers and other safety devices on the roof of the new building. The company's appeal against that was upheld by the Department of the Environment. As a result, the fire burned down the building. The Government's role in that fire is typical of their attitude to the whole of industry. I believe that there will be similar consequences unless Ministers think again about this and other clauses in the Bill.
The Minister has tried to be helpful. I hope that he will also try to be helpful on Clause 27.I know that the noble Lord does not make the decisions, but I believe that the Government should reconsider the matter. This Chamber cannot initiate a change in attitude by employers with no improvements in monitoring, which are badly needed. However, it can ensure that legislation contains the essential requirement that there should be no change unless it maintains or improves standards of health, safety and welfare. That is crucial and it is the purpose of my noble friend's amendment. I hope that the Minister will feel able to accept it.
11 p.m.
Lord Monson: The noble Baroness, Lady Turner of Camden, spoke of the importance of employee protection. That is certainly something with which one would not wish to quarrel. However, the 1974 legislation extends somewhat paternalistically to the self-employed. Can we not assume that self-employed adults are perfectly capable of looking after themselves? Perhaps it was excessive restrictions upon the self-employed that the Government had in mind when they framed the clause.
Earl Attlee: Is the noble Lord aware that if the self-employed become successful, they then start to employ other people, even if it is only a matter of one or two employees?
Lord Strathclyde: I join with the noble Baroness, Lady Dean, when she says there is no great matter of principle between us. Of course there is not; we are both interested in providing for good quality health and safety legislation to help people in business. That is why both Ministers and the Health and Safety Commission have already made it abundantly clear that the power we are introducing in this clause is about removing outdated law, not about reducing necessary safety standards. It is designed simply to give Ministers the same powers with respect to pre-1974 legislation that they have already for post-1974 legislation.
In the Health and Safety Commission's recent Review of Regulation, carried out after extensive consultation with both sides of industry, about 50 regulations which predate the 1974 Act, were identified

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as being outdated and unnecessary. However, even though in many cases those provisions seek to regulate working practices which have long since been abandoned they cannot currently be repealed because of a technical deficiency in the Health and Safety at Work etc. Act. While the Act allows the repeal without replacement of post-1974 legislation, it does not allow repeal of pre-1974 legislation. The Health and Safety Commission alerted us to the deficiency and we are proposing Clause 27 to remedy that technical fault. I should remind the Committee that the majority of health and safety legislation can already be replaced or removed by secondary legislation under the Health and Safety at Work etc. Act.
The amendment proposes that any use of the power should not derogate from, or revoke, any provision maintaining or improving standards of health, safety and welfare of employees and the public. If a particular provision could be said to contribute in any way— however small and however outdated—to health and safety, then in practice, the power could not be used to repeal it. That is the effect of the amendment of the noble Baroness. I should remind the Committee that this would be the case even where the HSC itself advised that the provision should be repealed. Perhaps I can give an example. One of the provisions which has been proposed is the Cotton Cloth Factories Regulations of 1929. Most of the requirements of those prescriptive regulations, which now apply to a mere 20 factories in the United Kingdom, have already been replaced by modern legislation. The Health and Safety Commission has recommended that the remaining provisions would be better subsumed in the goal-setting requirements of the Workplace (Health, Safety and Welfare) Regulations which cover all aspects of the physical working environment. It has therefore proposed the regulations for repeal under the new power. If the amendment was carried, I am advised that we could not use the power to repeal the regulations because they require specific standards to be maintained.
It must be true that cluttering up the statute book and employers' shelves with such legislation does nothing to reduce the human and financial toll of accidents and occupational ill-health. Indeed, the confusion that extra redundant legislation can create among employers can hinder compliance with measures essential to safety which both sides of this Chamber entirely agree we should maintain. A simpler legislative framework aids compliance and enforcement and has to result in better standards of health and safety for employees and the public.
Use of the new power is subject to consultation with the Health and Safety Commission and any others Ministers consider appropriate. This is in line with what is provided by the Health and Safety at Work etc. Act for repeal of post-1974 requirements. The clause in addition provides for the affirmative resolution procedure. These safeguards are important and substantial. I felt that in the speeches by the noble Baroness, Lady Dean, and the noble Lord, Lord Ashley, there was more about how the Health and Safety Commission works in practice. I am advised that the latest HSE annual report shows an expected overall fatal

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injury rate which has dropped to the lowest levels ever reported. If we are genuinely interested in health and safety—and I take the noble Baroness and the noble Baroness, Lady Turner, at their word—we should be interested in minimising the amount of legislation and maximising knowledge, information and the implementation of legislation which genuinely improves safety.
I have to tell the noble Baroness that her amendment would not promote successful health and safety legislation. On that basis I very much hope that she will withdraw it.
Baroness Dean of Thornton-le-Fylde: I am obliged to the Minister for the detail of his answer but dissatisfied with the content. We are talking about legislation which covers 16 million people. That is a lot of people. The fact is that the health and safety legislation that we have had on the statute book since 1974 has helped to reduce the number of fatal injuries to which the Minister rightly referred. Even if the figures have been reduced, everyone goes to work in the morning expecting to go home that evening. When even a handful of people in Britain do not go home from work there is a need for legislation.
The Minister conceded that there was no difference in principle and that both sides of the Chamber are interested in good quality health and safety. The difference between us is that we on these Benches want to do something to maintain the legislative guarantees that people at work have.
I am encouraged by the fact that the Minister is now on record as saying at the Dispatch Box that it is the Government's intention to improve and maintain standards. However, while I do not intend to press the amendment this evening, I intend to return to it at the Report stage. I hope that the points that the Minister made about the technicalities and the difficulties that the amendment may present—which I do not necessarily accept—will be overcome at the Report stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 180A to 181 not moved.]
On Question, Whether Clause 27 shall stand part of the Bill?
Lord McCarthy: One good thing has come out of the debate at this stage. At least we know which side we are on. For years, ever since this Government began to introduce legislation about labour law, they have always sought to make an exception for health and safety. They have always tried to argue that health and safety was different and that on health and safety we were together. We have always said that unfortunately that is not the case, because everything in the Government's philosophy relating to cost, price and efficiency affects health and safety. Health and safety is one of the most expensive issues that you can ask an employer to take care of.
Lord Strathclyde: Perhaps the noble Lord will allow me to interrupt. I think that he is wrong. That is certainly not the Government's position. The Government believe that good and effective legislation

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on health and safety saves. It produces more efficient and productive companies. Investment in the health and safety of employees is positively beneficial. That is why we have supported the HSE in the way that we have.
Lord McCarthy: When the noble Lord says such things I wonder whether he can actually believe them. I suppose that he can.
The fact is that every time a union or an interest group proposes that a particular disease should be scheduled, all the employers oppose it because they know that it will be very expensive. You have to fight for every improvement in health and safety because it is extremely costly. It is as costly as wages, and sometimes more so. The employer has a case because it is sometimes difficult to substantiate that this highly expensive protection—a health guard, a safety precaution, or a fire protection; perhaps I may refer to the Torrey Canyon case—will protect. Health and safety is a highly controversial, extremely expensive factor. In that sense, it is good that the Government have at last got round to telling us honestly that they want to cut back existing health and safety standards because they cost too much. This very clause is the best example of that attitude.
What does the Health and Safety Commission say? ft did not ask what the Government are doing. The Government have made a great deal of fuss about the fact that they are only doing what the Health and Safety Commission ask them to do. The Health and Safety Commission pointed out that there was a technical difficulty which made it difficult to repeal what it regarded as outdated legislation without replacement. It did not ask the Government to take it away and to cut the Health and Safety Commission out altogether; but that is what the Government have done. The Government have taken the matter on themselves. Instead of the fountain-head of health and safety legislation coming from the commission or from the agency, it comes from the Government. The Health and Safety Commission has the residual role of being consulted.
The Government were asked on 24th March in Committee in another place whether they would say that the health and safety regulations which they proposed to repeal would be only those agreed by the Health and Safety Commission. The Government would not agree. They were asked whether they would repeal regulations if the Health and Safety Commission objected, and they would not agree. They said that if there were a burden on business those regulations would have to go.
The reason why we oppose the Motion, That the clause stand part is that the Government have come out from cover. They have accepted, as the task force said, that professional business-based costs must be taken into consideration. They must minimise the principle of extreme caution. They must have regard for the insubstantial benefit. In other words, health and safety can be too expensive. It can be a burden on business and if it is they do not want anything to do with it. As a result, we oppose the Motion.
11.15 p.m.
Baroness Turner of Camden: I did not originally put my name down to oppose the Motion, That the clause stand part of the Bill. I did not do so because I thought that the first amendment moved by my noble friend Lady Dean was so reasonable that it was highly likely that the Minister would accept it. In fact, I wrote to him thinking that he might well be prepared to do so. After all, what are our main concerns? We absolutely agree that out-of-date legislation should go. We are afraid that in the process good protective legislation will also disappear. Therefore the first amendment, while allowing for deregulation, simply made it clear that deregulation could not diminish the degree of protection already existing. But, if the Government refuse to accept that very reasonable proposition, we have no alternative but to oppose the Motion, That the clause stand part of the Bill.
I have already spoken at length about the need for legislation and the level of industrial injuries and deaths, which clearly represent a problem that the Government should be addressing. As the Minister said, of course there have been improvements; and I think that that is very much due to the legislation and the fact that the Health and Safety Commission has operated since 1974. But, quite frankly, total deregulation as proposed in the Bill, even with some rather nebulous safeguards, does not seem to me to be the answer to the problem of outdated legislation. Surely the issue could be dealt with in some other more reasonable way which did not have the effect of arousing the suspicions of many people working in the health and safety area who fear very much that the government proposals will mean a diminution of the standards that have already been established. I therefore support my noble friend.
Lord Wedderburn of Charlton: While on balance supporting my noble friends in their position on this clause, I do so rather more in relation to what the Minister said in another place than what the noble Lord the Minister said tonight. I am not prone to find elements of flexibility in the Government, but what he said —and we shall read his remarks very carefully— seemed to suggest that the need to put health and safety into this compass of new powers to deregulate by regulation was born of a passionate zeal for the archaeology of the law and jurisprudence on safety. What we heard about was a large number of regulations that were very old and had been missed out. The noble Lord nods his head. I am glad that I have thus far got it right. There are regulations on textiles which apply to only a few factories. In 1989, when there was deregulation all over the place in regard to this kind of law (regulations that had aspects of safety in them) those were missed out. The legislation failed to catch them. If we are merely giving the Minister new powers to pursue his zeal for archaeology, then my noble friend Lady Dean is right in thinking that he has agreed that these new powers will be used to remove outdated regulations and will continue to improve or maintain safety standards. I take it that tonight we have an element of

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the Government saying yes, that is just what we mean. If that is right, it is just a question of finding a form of words at Report.
Lord Strathclyde: I am deeply distressed by the debate we have had on Clause stand part, apart perhaps from the speech of the noble Lord, Lord Wedderburn, who, I believe, has grasped the truth of the Government's intention. I was particularly disappointed that the noble Lord, Lord McCarthy, should say that the matter is controversial. It is only controversial because the noble Lord makes it so. I have no desire to make the matter controversial; in fact, I think that it should be non-partisan. We should go together and decide that health and safety matters are important. So it is in Clause 27. We ask for a very simple power, designed to enable Ministers to repeal pre-1974 legislation. Similar powers already exist for post-1974 legislation under the Health and Safety at Work etc. Act. As the noble Lord, Lord McCarthy, correctly recognised, this was as a result of a request from the HSE.
The power is narrowly drawn. It is subject to extensive consultation; it is subject to approval by Parliament; and it will enable the removal of outdated and unnecessary health and safety legislation. At present those provisions cannot be repealed unless they are replaced, even if the risks that they seek to regulate no longer exist.
In providing for repeals without replacement the clause will enable further judicious pruning—the noble Lord, Lord Wedderburn, called it archaeology; I call it judicious pruning—of the legislation while not undermining the standards of health and safety. There is clear evidence from the HSE's review of regulation and the DTI's deregulation task force that the volume and complexity of legislation in health and safety and other fields is a legitimate concern of employers and workers alike.
Pruning legislation not only reduces the burdens on business. If people find it easier to understand their legal obligations they will be better able to comply, because they can focus more clearly on those requirements that are essential. Simpler legislation will also be easier to enforce. All this has to result in improved health and safety standards for workers, and I very much commend the clause.
I hope that following this debate we shall not be returning to the matter at Report. I believe that there should be no distance between us. The clause is based on common sense and on sound health and safety procedure.
Lord McCarthy: The Minister says that the measure is not controversial. Yet he will not accept a single one of our amendments. We have put down amendment after amendment after amendment. The noble Lord stands pat and will not accept any of them. He does not even suggest that perhaps he will come back at a subsequent stage, having moved a little. No. The Minister stands exactly where he is and says, "I am the reasonable man. Anybody who disagrees with me by an inch is unreasonable. There should not be disagreement because we are all on the same side".

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Ever since the Plimsoll line, and ever since the very beginning of working hours legislation, there has been a debate about the cost of health and safety. Of course there are areas of common interest - there are in wage bargaining —but there are also areas of disagreement. More and more we know where the Government stand. They are on the side of the employers, as my noble friend said. The Government are against any extension. They stand pat where they are and because of their policy of burdens on business, they introduce legislation such as this to try to chip away at the existing standards of health and safety.
We do not accept that we do not have a disagreement. But we shall not divide the Committee tonight. We merely say that we do not believe that this clause is fair and equitable and that we disagree.
Clause 27 agreed to.
Lord Wade of Chorlton Lord Wade of Chorlton moved Amendment No. 181A:
After Clause 27, insert the following new clause:
("Uncompetitive practices

.—(1) No local authority shall act in a manner having the effect or intended or likely to have the effect of restricting, preventing or distorting competition between local authorities, approved inspectors and persons approved for the purposes of section 16(9) of the 1984 Act in the exercise of functions conferred by or under that Act.

(2) The Secretary of State may issue guidance as to how conduct restricting, preventing or distorting competition in the exercise of functions conferred by or under the 1984 Act is to be avoided in the doing of anything relating to building or building control.").

The noble Lord said: The explanation for the amendment is that, following the Building Act 1984, building control has been conducted by local authorities and one approved inspector, which is the National House Building Council. The purpose of there being those two bodies was that they should act in equal competition over the development of building control activities.
In practice, it has turned out that in many instances local authorities take advantage of their position by preventing competition between the two organisations. They take advantage through the regulations concerning other building activities, by being difficult on occasion with the builders and drawing attention to the other powers that they may have to control activities. That takes away the competitive option which should apply within the 1984 Act. The purpose of the amendment is to deal with those matters by making sure that no local authority shall act in a manner:
"having the effect or intended or likely to have the effect of restricting, preventing or distorting competition".
It also draws attention to the fact that the Secretary of State may issue guidance to make it clear that anything "restricting, preventing or distorting competition" would be an offence. I beg to move.
Lord Strathclyde: Let me say at the outset how much I agree with my noble friend Lord Wade that local authorities or indeed approved inspectors should not indulge in uncompetitive practices. The question is whether the inclusion of a provision such as this one in primary legislation is the best way to tackle any problems that might exist.

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The clause has arisen from complaints that local authorities have sought to put pressure on builders to use their building control services in preference to those of the competition, the NHBC. That complaint is not new. The Hansard report of 17th December 1987 records a written Parliamentary Question in another place and the response of the Minister concerning just such issues.
The Government do indeed deplore the concept that pressure might be brought to bear to distort competition. However, I am advised that no challenge to such practices has been brought to the courts and I cannot see that we have sufficient evidence to support the rather bureaucratic requirements of the new clause.
However, I should like to be helpful to my noble friend. The Department of the Environment already has discretion to issue guidance in matters relating to local authorities. If clear evidence of uncompetitive practices were forthcoming, guidance, possibly in the form of a departmental circular, would be issued without the necessity of additional legislation such as that proposed.
Therefore, I agree with my noble friend that local authorities should not indulge in uncompetitive practices. In view of those assurances and my request to my noble friend that he and his advisers should perhaps furnish us with further evidence, I ask him to withdraw his amendment.
Lord Wade of Chorlton: I am most grateful to my noble friend the Minister for being so helpful and understanding of this proposal. I should be grateful if I could take advantage of his suggestion that we should talk further about it. With that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wade of Chorlton Lord Wade of Chorlton moved Amendment No. 181B:
After Clause 27, insert the following new clause:
("Prosecution of offences under the Building Act 1984.
.At the end of section 113 of the Building Act 1984 (prosecution of offences) there shall be inserted the following:-
"(2) A local authority shall not take proceedings in respect of an offence under section 57 above except with the consent of the Secretary of State." ").
The noble Lord said: This amendment follows from the previous amendment. It is possible for the local authority to prosecute or bring proceedings against an approved inspector and it is noted that on occasions that can be used to cause the approved inspector to think again or feel under pressure from the suggestions of the local authority.
The purpose of the clause is to disallow a local authority from taking proceedings unless it has the consent of the Secretary of State, the purpose being that it would make such an authority think again before taking action. I beg to move.
11.30 p.m.
Lord Strathclyde: The purpose of the building regulations is to ensure the health and safety of people in and around buildings. I am sure that the Committee will agree that, where an approved inspector knowingly and falsely claims that the building regulations have

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been complied with when they have not, it is right that he should be prosecuted in this way and prevented from practising for a substantial period.
Amendment No. 181B provides a filter before any such prosecution can be brought by a local authority. It is the Government's view that such a filter is not an appropriate response to alleged biased prosecution practices. Further, I am given to understand that there has been but one prosecution under Section 57 of the Building Act and so I cannot see that the problem of prosecutions is a significant one. Again, if my noble friend has some specific worries to erase, I shall be delighted to hear them.
It may be that this kind of provision would fit in with the appeals procedure mentioned by my noble friend Lord Vinson at an earlier stage of the Bill. However, I hope that my noble friend will not press the amendment.
Lord Wade of Chorlton: I am grateful to my noble friend for his helpful and careful reply. I beg leave to withdraw the amendment.
Baroness Young Baroness Young moved Amendment No. 181C:
After Clause 27, insert the following new clause:
("Limitation of inspection functions: independent schools

.—(1) The Children Act 1989 shall be amended as follows.

(2) In section 87 (welfare of children accommodated in independent schools), after subsection (2) there shall be inserted the following subsection—

"(2A) Subsections (3) to (8) below have effect subject to section 87A."

(3) After section 87 there shall be inserted the following section—

"Limitation of functions under section 87.
87A..—(1) The following functions, namely—

(a) the duties imposed by section 87 on a local authority, and

(b) the powers conferred and duties imposed by that section and regulations made under it on a person authorised by such an authority,

shall not apply in relation to a school if the school falls within subsection (2) below.

(2) A school falls within this subsection if—

(a) the school is one as regards which the Secretary of State is satisfied that there is (apart from section 87) a procedure for inspection which is sufficient to determine whether the welfare of children at the school is adequately safeguarded and promoted, and

(b) the Secretary of State has notified the local authority concerned that he is so satisfied." ").

The noble Baroness said: The purpose of Amendment No. 181C is to remove the requirement under Section 87 of the Children Act for the annual inspection of independent schools by social service departments of local authorities. Perhaps I may explain at the beginning that it only applies to schools that fall under the umbrella of the Independent Schools Joint Council. The Independent Schools Joint Council is made up of schools belonging to the Headmasters' Conference, the Girls' School Association, the Independent Association of Preparatory Schools, the Independent Schools Associated Incorporated, the Society of Headmasters and Headmistresses of Independent Schools and the Association of Governing Bodies. Subsection (2) of the amendment I hope makes clear the distinction which I draw between those schools and other independent schools. Under the amendment,

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all other independent schools outside the Independent Schools Joint Council will continue to be subject to inspection.
The Committee may well ask how the clause came to be included in the Children Act. The reason was that it was included in the Children Act at a late stage in its progress through Parliament because of a very serious case of abuse at a school called Crookham Court. No one defends what happened at that school. But it was an over-reaction by Parliament to suggest that because there was malpractice in an untypical school all other independent schools should be covered by this blanket legislation. Incidentally, Crookham Court School is outside the Independent Schools Joint Council and therefore would not be subject to my amendment.
Perhaps I may say at the outset how grateful I have been for the constructive discussions that I have had with my right honourable friend the Secretary of State, Mrs. Bottomley, my honourable friend Mr. Bowis and my noble friend Lady Cumberlege. The principal reason for the amendment is that I believe social service inspections are unnecessary. As this is a deregulation Bill it was appropriate to table the amendment at this time.
When I say that I believe the inspections to be unnecessary, let me tell the Committee to what inspections independent schools are currently subject. First, all independent schools must be registered with the Department for Education. They are subject to inspection by Ofsted and expect that to happen every 10 years. All ISJC schools are inspected every 10 years by ISJC itself, so every independent school covered by the amendment is inspected every five years.
The ISJC inspection teams are always led by a former member of HMI. Within the school itself all teachers are checked against list 99, all non-teaching staff are checked against the Department of Health list, and checks are made on peripatetic teachers. But, most important, if parents are not satisfied, they can always remove their children; and some of course do. It is important to remember that boarding is a private contract between parents and the school. Interestingly, these social service inspections do not happen in Scotland. Not for the first time, and no doubt not for the last, the Scots are wiser than we are in other parts of the United Kingdom.
There are other checks. There is hardly an independent school now without a telephone line where children can make private telephone calls home. I am quite certain that within a measured length of time many children will have their own hand-held telephones. Many schools also employ counsellors who are there to help over children's problems. But what makes a good school, whether independent or maintained, is the absolute commitment of the head and the staff—all the staff—to the highest professional standards. That is what schools strive for. Unless there is that real commitment, legislation, no matter of what kind, will not be as effective as it should be. I believe very strongly in individual and personal responsibility in the high standards of self-regulation and discipline within the area of education.
I would go further and say that independent schools today are not the remote and cloistered places of the past. They have to supply what parents want. And what working mothers above all want is flexibility. So most boarding schools offer full boarding—and usually the pupils can go out most weekends—weekly boarding for those who want it, and flexible arrangements for boarding lasting two or three weeks or even just for one night. Today's parents, who take great care over their children's future education, almost invariably inspect the boarding arrangements of their chosen school. When they conduct those inspections they are armed with a list of 20 questions supplied by ISIS so that you can make quite sure you are asking the right questions. Most schools will ask a senior pupil to show prospective parents around the school. Anyone who has had this experience knows that children can be extremely frank about the circumstances of their school. The whole boarding sector has altered over the past 20 years to meet the needs of today's children and their parents. Openness in all aspects of school life is a major consideration.
Noble Lords may well ask what happens when a case of abuse comes to light. Under the Children Act this must be reported to social service departments. The procedure to be adopted has been agreed jointly by the ISJC and officials in the Department of Health. That would continue under my amendment. I understand that the Social Service Inspectorate is to publish its findings as a result of some 200 inspections of independent schools. As far as the ISJC is concerned, there has not been a single case of a school reporting an allegation of abuse as a result of social service inspection. To the best of my knowledge, a number of suggestions for the improvement of the fabric of the buildings have been made, and those have been carried out.
I understand that social service departments have had a positive feedback from the schools and that is what I would have expected. Independent schools will keep the law and professional teachers would wish to work constructively with other professionals. No one can be complacent about abuse. In 1991 the ISJC was sufficiently concerned to fund jointly with the Department for Education the boarding school line experiment. This project, for which there was immense publicity in the media, enabled children to telephone Childline in complete confidence and speak to a trained counsellor. An independent study of the experiment revealed scarcely any cause for alarm in ISJC schools; fewer than 1 per cent. of all boarding pupils asked for counselling of any kind and not a single case of sexual abuse came to light.
No one would dispute that all sensible measures should be taken to combat child abuse. All schools should be subject to scrutiny, but, let us face it, not even social service departments can abolish sin. The amendment is designed simply to bring a sense of proportion to this inspection, recognising that where appropriate procedures are already in place, as we believe they are, there is absolutely no reason to add to them. To do so is simply expensive duplication, which this amendment is designed to remove.
I find it difficult to believe that, with all the problems which social service departments have to face and which we so frequently hear about in your Lordships' House —whether it is the complications of people coining out of long-stay mental homes and being helped back into the community; whether it is young people aged 16 leaving the care of social service departments and possibly finding themselves sleeping out under the arches of Waterloo—inspections of independent schools can rank as a high priority in all the problems that they have to face.
I hope very much that my noble friend, having listened to what I have to say, will be able to accept this amendment which I believe is based on common sense and a practical arrangement for dealing with independent schools in particular. I beg to move.
Baroness Hamwee: At this late hour perhaps I may say a word against this amendment which worries me more than a little. As the noble Baroness said, the provision is very new. The Children Act is not so old and the system has been in effect only since about 1991. I understand that the Department of Health has produced draft guidance on the inspection process and it is either now finishing or is about to finish a consultation process. Perhaps the Minister can explain the position to the Committee when responding to the amendment. If the position is that there is a consultation process either coming to an end or shortly to do so, I suggest that, among other matters, it would be sensible to await the outcome of that process.
The noble Baroness talked of what she described as an "over-reaction". Although the reaction of applying an inspection process may appear to be extreme, the problems to which it is addressed are, one hopes, very rare but where they occur they are extreme. I do not suggest that everything which may be uncovered may be abuse of the most extreme kind, but while there can be any suspicion that it may occur —I do not believe that the independent sector is any more or less liable to this sort of problem than the maintained sector —we should be certain that the inspection process is a good one.
I am not a normal reader of the News of the World, but I mention to the Committee that there is a report in fairly typically extreme language in that newspaper of 19th June of what it calls a "Probe at toffs' school". I do not know that the language is particularly helpful. The paper refers to the school in question as being described in the Daily Telegraph's Schools Guide as "the best in boarding education". I understand that the head is a member of the ISJC accreditation unit. If the article is a "probe", it is matter that is not yet determined and I am in no position to allege that what is suggested in the News of the World is entirely a matter of fact. Nevertheless, there is clearly some cause for concern.
The noble Baroness referred to inspections by Ofsted and the ISJC on a 10-yearly basis—in other words, between them, every five years. That does not seem to me to be terribly frequent. A child will pretty well pass through a sector of the system in that period. The noble Baroness also said that parents can remove a child if they are not satisfied.

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My concern is that problems may not come to light or may take time in coming to light. Children who are at school away from their family may not, despite the provision of telephones and so on, quickly express or explain problems. There can be many reasons why a child would fail to report abuse: recrimination; guilt; fear that adults will not believe what is said; and perhaps not immediately knowing whether what is going on is normal and is a matter of right or wrong.
I have been contacted by the NSPCC—I do not know whether other noble Lords have been similarly contacted. I have also spoken to the National Children's Bureau which is concerned about the amendment and which told me that the NSPCC was also concerned. Both organisations have expressed their anxiety that the consultation process, to which I have referred, is concluded. They have also expressed their concern that the ISJC would probably be able to carry out an inspection on average only about every 10 years or so. I spoke to the head of the inspection unit in my own authority at the end of last week to get his view. He told me—it did not surprise me—that he felt that inspections should be as frequent as every year and perhaps even more frequent —not in order to disrupt the school (or whatever the establishment) but in order to build a relationship with those working in the school who would have the same interest as the inspectors in making sure that all was in order.
It is late but this is an important matter. I hope that the noble Baroness will not press the amendment and that she will accept that in making these comments I am suggesting that an inspection is not an intrusion. I agree with her that one cannot abolish sin, but I think that there is an obligation on society to seek it out.
11.45 p.m.
Lord Aldington: After what my noble friend said in moving this valuable, useful and excellent amendment, I do not think that there is much that needs to be added by anyone on this side of the Committee or even by myself whose name is on the amendment.
I should like to refer to some of the points made by the noble Baroness, Lady Hamwee, who said that it was important that the inspection process should be a proven process. That is what the amendment provides for. The noble Baroness cannot have grasped the importance of subsection (2). The noble Baroness spoke about the need to have inspections very frequently, but seemed to overlook altogether what my noble friend told the Committee about the way in which independent schools are run, and about the responsibility of the head and of all those who work under the head for pastoral care.
The system of inspection is only part of the process of ensuring the welfare of the children who are the responsibility of the head and the governing body. It is a good idea to have some system of inspection for each school. How frequent the inspection should be is best judged by experience. The NSPCC was quoted by the noble Baroness. It has drawn the attention of those who read that remarkable document, which I found lacking in common sense, to a 10-year period. My noble friend

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dealt with 10 years, and, alternatively, five years, but that is not the period of control and vigilance needed for these important matters.
There was a reference to the story reported in the News of the World, with which I am not well acquainted. I make the obvious point that that story has arisen under a system of inspection by a social services department. So I hope that my noble friend the Minister will feel inclined to accept the amendment tonight, or say that action along the lines suggested will follow. It is entirely in accord with the spirit of the Bill to remove burdens from those who run the schools, and to remove the burdens and unnecessary effort and cost from local authorities. That is what the Bill is about. If the proposal had been discussed properly instead of in the middle of the night on Report in the other place —it was never discussed here—it would not have been enacted in the form that it has been. I hope that my noble friend will accept this amendment, or something like it, which will get rid of the requirement.
Lord Beloff: Perhaps I may join in hoping for the same thing from my noble friend. We have here something at which a government should jump. Here is a proposal to reduce public expenditure without reducing an important service. It is clear that the service which is provided for independent schools by inspections by people with serious educational experience, enabling them to judge the schools, is likely to be as good as, or better than anything else that could be provided. It would cost the taxpayer nothing, and, as my noble friend Lord Aldington said, it would reduce the heavy burdens which at present lie upon social services departments.
Listening to the noble Baroness, Lady Hamwee, I gained the impression that two things were hopelessly confused. The purpose of inspection of an institution —a school in this case—is to see whether it, as a whole, is working properly, whether the people running it are qualified, doing their job, and devoted to the purposes of the institution. It has nothing to do, and could not in fact deal, with the occasional abuse or misfortune that may happen, even in a well run institution. If a child is unhappy for any reason, that has to be dealt with immediately. That child will not wait. It is not a question of five years. It is much too long if it has to wait for just one year.
What is needed, as my noble friend Lady Young said, is the provision, which is now increasingly available, for children to communicate immediately with their parents if something goes wrong, and for them to have someone in the school to whom they can turn. The idea of waiting, that some sort of fairy godmother from the social services department will turn up, and that all the children with problems will rush and cling to her skirts is a wild fantasy.
The business of inspection is to keep the schools running properly. It is to ensure that their heads regard themselves as in loco parentis. It has nothing whatever to do with the occasional abuse or misfortune which the best run institution may well experience.
Lord Boardman: At this time of night I shall not detain the Committee by repeating the argument in

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favour of the amendment, which I strongly support. The argument was clearly put by my noble friend Lady Young. However, I wish to make two points. First, the objective of the Bill is precisely that which is contained in the amendment; to remove from our system an expensive and bureaucratic form of resolution which is unnecessary and costly.
The noble Baroness, Lady Hamwee, referred to inspections taking place annually. I understand that the current inspections, which take place at five or 10 years, bear an annual cost in excess of £100 million. Annual inspections would cost £1 billion. There would be a vast expenditure of £100 million—let alone £1,000 million —on doing something which is already adequately and well covered by the system to which my noble friend referred. It is highly desirable that that should be cancelled out.
The noble Baroness, Lady Hamwee, said that the inspection of independent schools should be the same as that for maintained schools. She missed the whole point of the argument. My noble friend Lady Young made clear that the inspections which take place under the existing system of independent schools do not apply to maintained schools. It would be wrong to say that because maintained schools have a system of inspection that must be duplicated for independent schools and added to their system.
The amendment achieves the objective of the Bill to reduce unnecessary public expenditure—at least £100 million per year—and to remove a bureaucratic nonsense which slipped in in another place late at night. I strongly support the amendment.
Lord Strathclyde: I am immensely grateful to my noble friend Lady Young for moving her amendment and for the way she did so. The Government recognise that there has been considerable concern among independent boarding schools about inspections by social services departments under the Children Act. To fulfil a commitment made at the time of implementation of the Children Act, the Departments of Health and Education issued a consultation paper in April this year. That took into account the views expressed by the various interests in the light of their experiences of the early operation of Section 87 inspections.
The main changes proposed in the consultation paper were less frequent inspections and further clarification of what was required in relation to inspection duties. In particular, social services departments were advised to conduct their inspections in a more targeted and focused way. I know that these were welcomed by many of the leading schools in the country. But we have been asked to go further.
The Government accept the need for change and are very sympathetic to some of the objectives of my noble friend's amendment, particularly in relation to the role of other bodies in the inspection process and to the frequency of their inspections. I recognise the enormous amount of good practice that exists in independent schools. I have to say, however, that there has been evidence providing grounds for welfare concerns in

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relation to a few schools and it is important that suitable systems are in place to ensure that children are properly protected.
However, I suggest to my noble friend Lady Young that we would like to consider further the proposals and consult urgently with the welfare and educational interests. I hope that that gives my noble friend the necessary reassurance so that she will not press her amendment further. I hope that we will have reached a conclusion on the subject by the next stage of the Bill.
Midnight
Baroness Young: I thank my noble friends Lord Aldington, Lord Beloff and Lord Boardman for their support for the amendment. I should say to the Minister that, but for the lateness of the hour —I see that midnight is about to chime—many other noble. Lords would have been only too happy to support it. It commands a large measure of support both in this Chamber and outside it.
I was very disappointed that it did not have the support of the noble Baroness, Lady Hamwee. I am very surprised if that is the considered view of the Liberal Democrat Party on this matter. I too received a copy of the brief sent by the NSPCC. It was sent to me by a friend. As somebody who has supported the NSPCC both nationally and locally, I was absolutely astonished by its content and tone.
If that is the considered view of anybody working in a social services department, I hope that this will be borne in mind. The brief implied two things: first, that child abuse is rife in independent schools. That is an outrageous allegation, with the implication that everybody is guilty until proved to be innocent. Secondly, it implied that abuse goes undetected because children fail to report it for fear of not being believed.
As I have indicated, the ISJC, with the Department for Education, conducted that piece of research through Childline to demonstrate that there is no truth at all in that. Evidence has emerged both from Sweden and America which demonstrates that through persistent questioning children sometimes come to believe in events that have not happened at all. Swedish research suggests that, as a consequence, the burden of proof often becomes reversed, with the accused having to prove his innocence rather than the prosecution having to prove guilt. It is quite mistaken to suppose that routine inspections at intervals make any kind of significant contribution to the uncovering of abuse.
I shall not accept allegations that come from the News of the World. This is a very serious subject. I do not suggest that the noble Baroness, Lady Hamwee, based her argument on that, but we must not be led astray by newspaper allegations. One of the most dangerous aspects of this whole matter is that allegations are bandied about by various people. I have been astonished by the quite unsubstantiated allegations that I have heard. No school is named but allegations are made. That is extremely damaging and unprofessional.
The noble Baroness said that she thought and hoped very much —and forgive me if I misunderstood her— that people in the schools would have the same interests in the welfare of children as social services departments.

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Again, I am astonished that there should be any doubt about that. Independent schools and, indeed, maintained schools—all schools—have a vested interest in providing the highest standards of behaviour among the staff, in whichever part of the school they are employed. The suggestion that somehow independent schools regard that as being less important than do social services departments would be quite incorrect. Even if they were minded so to do, which of course they are not, parents would object. The market with regard to independent schools operates very quickly if there is trouble in the school. We should get that straight.
Baroness Hamwee: I must make it clear that I was not suggesting that those who run or teach in independent schools have any less concern for the welfare of their pupils than people in maintained schools. I was referring to the relationship between those who operate the school and the inspection unit. I believe that those interests would coincide and need to be developed. There is also a relationship in that respect.
Baroness Young: I take the noble Baroness's point. However, what is very important to remember within independent schools is the value that is attached to the pastoral care arrangements. Indeed, great care is taken in that particular matter.
However, to conclude the argument about social service inspections, I must say that one of the most unhappy features involved has been the repetition of the now politically correct thought that no teacher should ever touch a child. That is now taught to all teachers in training thanks to the modern view that came from the Children Act and other social service practices. It is regarded as dangerous.
When the social service department repeated the latter to the head of one girls' school known to me personally, she said that under no circumstances would she obey that injunction. She asked, "What if one of my young boarders comes to me with a real tragedy—for example, the death of her mother or father—am I not going to comfort that child?". If we are not very careful we shall be going down the path of having one-to-one questioning with children involving questions which often set parents against children and children against teachers. Indeed, that is a very doubtful path. In consideration of all such matters, I hope that such practices will be looked at and reconsidered as a matter applying not just to independent schools but also to anyone else. They are also happening in the maintained system and I believe that people will be just as worried about them as we are in the independent sector.
My noble friend the Minister asked whether I am prepared to withdraw the amendment. Quite frankly, I must tell him that I had intended to press it to a Division. I regard it as a very serious matter. Perhaps I may just reiterate the point made by my noble friends: it is a classic case of deregulation and something which we regard as being a quite unnecessary burden on schools and involving an enormous cost to public expenditure.
My noble friend the Minister raised various points. I am aware of the consultation paper and the suggestion that social services departments should inspect every

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four years. I should like to make it quite clear that we do not believe that that would serve a very useful exercise. In the course of a 10-year cycle, it would mean that there would be four inspections of schools—say, one every three years. Again, it does not seem to me to be a very sensible exercise. Moreover, it would be extremely disrupting to the school.
Further, under the consultation paper the prep schools—that is, the IAPS schools—would be subject to inspection every year. For all the arguments that I have given, I do not believe that that is necessary. However, my noble friend has said that both he and his colleagues would be prepared to look again at the matter. For my part, I would be prepared to tell him and his colleagues that, in the training sessions for the ISJC inspection teams, we would be happy to have a session from social workers talking about their work and giving additional information to the team if that was considered to be helpful.
However, having said that, I would not want my noble friend the Minister to be under the impression that I would be likely to settle for more than that. For all the reasons that I have advanced, I believe that my amendment makes quite clear the fact that such inspections are unnecessary. But with my noble friend's assurance that he will look again very carefully at the matter, I am prepared at this late hour to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 28 agreed to.
Schedule 10 [Miscellaneous Deregulatory Provisions: Consequential Amendments]:
Viscount Goschen Viscount Goschen moved Amendment No. 182:
Page 99, line 36, at end insert:
("Charities Act 1993 (c. 10)
12. In section 47(3) of the Charities Act 1993—

(a) paragraph (a) shall be omitted, and

(b) in paragraph (b), for the words from "such" to "46(3) above" there shall be substituted "a charity other than one falling within paragraph (c) or (d) below".").

On Question, amendment agreed to.
Schedule 10, as amended, agreed to.
Clause 29 [Extent of Chapter II]:
Viscount Goschen Viscount Goschen moved Amendments Nos. 183 to 191:
Page 24, line 44, after ("16,") insert ("(Sporting events and activities on Sundays),").
Page 24, line 44, after ("16,") insert ("17(3),").
Page 24, line 44, after ("20,") insert ("(Offences under section 63 of the Charities Act 1992: creation of statutory defence),").
Page 24, line 44, after ("20,") insert ("(Applications for permits to conduct public charitable collections: time-limits),").
Page 24, line 44, after ("20,") insert ("(Annual audit or examination of charity accounts),").
Page 24, line 44, after ("20,") insert ("(Annual reports of charities),").
Page 24, line 44, after ("20,") insert ("(Annual returns by charities),").
Page 25, line 1, leave out ("Schedule") and insert ("Schedules").
Page 25, line 1, after ("6") insert ("and 7").
The noble Viscount said: These amendments have all already been spoken to. I beg to move Amendments Nos. 183 to 191 en bloc.
On Question, amendments agreed to.
Clause 29, as amended, agreed to.
Viscount Goschen: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at eleven minutes past midnight.