Lords Sitting of 25 January 1995

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

Charities in Scotland
Lord Campbell of Croyasked Her Majesty's Government:
Whether they are preparing further legislation to clarify and regulate the situation of charities operating in Scotland.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, we do not consider that there is a need for further legislation at present. The existing structure was put in place relatively recently after full consultation and consideration. The early results have been most encouraging and clearly show that the present regulatory system is working well. Both the Scottish Office and the Scottish Charities Office are monitoring the operation of the existing arrangements and we will keep the matter under review.
Lord Campbell of Croy: My Lords, I am grateful to my noble and learned friend for that reassuring reply. While I applaud recent government action in investigating certain cases which received publicity and therefore some notoriety, is it not better to provide clear guidance to guard against dubious practices rather than having to act later, especially since the Charity Commission does not operate in Scotland?
Lord Fraser of Carmyllie: My Lords, my noble friend is correct. A number of recent investigations by the Scottish Charities Office revealed that there were improprieties, which have been satisfactorily dealt with. That is an important part of its work. I want to make clear also to my noble friend that a significant proportion of the work of the Scottish Charities Office is related to the provision of advice to trustees. I hope that that results in a more efficient and effective charities management in Scotland. Furthermore, the Scottish Charities Office is considering, with the Charities Commission—which, as my noble friend said, extends only to parts of England and Wales—the provision of advice in areas which are of mutual interest. Examples include guidance on the student unions and on campaigning and political activities by charities.
Lord Taylor of Gryfe: My Lords, does not the Minister agree that it would be wise for him to meet the people who briefed his noble friend Lord Campbell of Croy and myself on this subject? There appears to be a misunderstanding. The National Council for Voluntary Organisations is concerned about the inadequacy of the existing provisions. If the noble and learned Lord met its members, perhaps the difficulties could be resolved.
Lord Fraser of Carmyllie: My Lords, I regularly meet members of the Scottish Council for Voluntary
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Organisations and have had a fairly extended correspondence with them on this matter. I hope that they now appreciate that some of the anxieties they expressed are not necessarily well founded. One of their concerns was that there should be a better set of regulations on accounting requirements. When the new statement of recommended practice for charities accounting on this side of the Border has been produced, we certainly anticipate revising the regulations for Scotland in the light of that.
Lord Ewing of Kirkford: My Lords, as most people who join the Conservative Party in Scotland now join out of sympathy rather than conviction, is there any truth in the widespread rumour that the Scottish Conservative Party is thinking of applying for charitable status?
Lord Fraser of Carmyllie: My Lords, the Scottish Conservative Party is anticipating some extremely successful fundraising over the next few weeks. But we are certainly not proud; if people want to join us as a charity, we shall be happy to receive them.
Lord Carmichael of Kelvingrove: My Lords, this is an interesting Question. Although it has been on the Order Paper for over a week, I have so far received no representations from charities and normally they are not slow to come forward with information. The points made by the Minister clearly illustrate the need for some clarity in our knowledge of the administration of charities in Scotland. I am therefore grateful to the noble Lord, Lord Campbell of Croy, for raising this Question today.
Lord Fraser of Carmyllie: My Lords, I too am grateful to my noble friend. I believe that the Scottish Charities Office is settling in extremely well. If there are any particularly outstanding points, clearly we want to address them. We will take forward the way we offer advice and manage charities in Scotland, appreciating that there have been important changes on this side of the Border from which we can learn.
Lord Campbell of Croy: My Lords, is my noble and learned friend aware that the Scottish Council for Voluntary Organisations—I am glad to hear my noble and learned friend is in touch with it—is extremely concerned that unwelcome people may be tempted to start up activities in Scotland in the expectation that they will not be monitored or investigated in the way that they would be south of the Border?
Lord Fraser of Carmyllie: My Lords, any fraudsters who believe that they can run a charity in Scotland and get away without being properly monitored or supervised had better appreciate how well the Scottish Charities Office has settled down. As my noble friend indicates, in two widely publicised cases where the charity got off on the wrong lines, swift action was taken and appropriate steps implemented.
Lord Allen of Abbeydale: My Lords, I am a little surprised by this Question. The Scottish legislation about charities which preceded the legislation applying

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to England and Wales included a number of provisions which we were only too happy to copy when our turn came.
Lord Fraser of Carmyllie: My Lords, I am grateful if that was indeed the case. There are a number of matters where clearly we wish to march in step because although there will be charities here in England which will be under the supervision of the Charities Commission, the larger ones in particular will often extend their operations north of the Border.

British Rail: Through-ticketing Facilities
2.44 p.m.
Lord Taylor of Gryfeasked Her Majesty's Government:
Whether the regulator or Ministers will exercise their powers to prevent any reduction of through-ticketing facilities at British Rail stations.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, the Secretary of State for Transport and the Rail Regulator both have a statutory duty under the Railways Act 1993 to promote measures to protect through-ticketing. The regulator is consulting on the requirements for retailing through-tickets which he might impose on operators as a licence condition.
Lord Taylor of Gryfe: My Lords, I thank the Minister for that reply. Where exactly does authority lie in this matter? Is he aware that when the Rail Regulator announced the proposed reduction of core stations to 294 his right honourable friend the Secretary of State for Transport said:
"If the regulator is proposing that the number of stations offering through-ticketing should be fewer than now, that is unacceptable"?
Can the Minister tell me where authority lies in this matter? Is it with the Secretary of State, who declares the through-ticketing arrangements to be unacceptable, or the regulator, who insists that that is what he proposes to do? It raises an important constitutional question. Since the recommendation on through-ticketing there has been a further announcement from the regulator that the price for using Railtrack should be substantially reduced—reduced by £1.5 billion. Will the Minister tell me what the effect on the flotation price of Railtrack will be if revenues are cut to that extent?
Viscount Goschen: My Lords, the noble Lord's final question is very different from that concerned with through-ticketing. If I may correct the noble Lord, first, the regulator did not announce that there would be 294 core stations. The regulator is engaged in a consultation exercise which has yet to be completed. The noble Lord asked about the division of authority. The position is that the Rail Regulator is under a statutory duty to facilitate through journeys involving services of more than one operator. He is not authorised to grant passenger train operating licences except with the Secretary of State's approval, without an obligation on operators to comply with approved arrangements for the
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sale and honouring of through tickets. My right honourable friend the Secretary of State for Transport has powers to give guidance to the regulator and, under the Railways Act, the regulator is obliged to take account of it.
Lord Boyd-Carpenter: My Lords, will my noble friend and his Minister take account of the fact that, if through-ticketing is in any substantial degree reduced, it will have a very adverse effect on the public reaction to privatisation of the railways?
Viscount Goschen: My Lords, I agree with my noble friend that through-ticketing and other network benefits have a substantial effect on the desirability of the railway. That is why the Government have always been committed to seeing improvements in the service.
Lord Stoddart of Swindon: My Lords, is the noble Viscount aware that many people are extremely puzzled as to the difficulties which appear to be being realised in relation to through-ticketing? Is he further aware that before the war, when we had several railway companies, there was a system called the railway clearing house which managed to provide through-ticketing for very many more stations than we have at the present time and without the assistance of computers? That being so, why on earth is it proving so difficult for through-ticketing to be arranged after privatisation?
Viscount Goschen: My Lords, I do not believe that there are difficulties with the issue of through-ticketing. The regulator will be setting a minimum standard. We do not expect it to be the norm. The noble Lord described what happened many years ago with the clearing house system. We believe that private sector operators will take full advantage of the innovations in technology and computer booking and retailing systems in delivering a service which the customer wants.
Lord De Freyne: My Lords, is my noble friend aware that some years ago one could get a ticket on the Great West Clare Railway from Kilkee to Paddington? Possibly that could still be done.
Viscount Goschen: My Lords, I am grateful to my noble friend for that information.
Lord Ezra: My Lords, as regards the availability of timetables, particularly InterCity ones, I understand that these are now being restricted. I also understand that at one time there was even the possibility that they would no longer be produced. Can the noble Viscount give an assurance that this very important service, alongside through-ticketing, will be taken into account so that the availability of this service can be generally known to the travelling public?
Viscount Goschen: My Lords, the objective of this privatisation exercise is substantially to improve the service which the railway network gives consumers in order to provide more choice. I am sure that timetabling and the availability of timetables are an essential part of that.
Lord Skelmersdale: My Lords, can my noble friend explain why it is necessary to buy tickets at railway

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stations which, after all, are for boarding and dismounting from trains rather than for the sale of tickets?
Viscount Goschen: My Lords, my noble friend asks a very important question. Of course, retailing from other outlets—such as travel agents—the use of railway warrants, telesales and the purchase of tickets on the train itself will be an important part of the way in which tickets are sold in future.
Lord Jenkins of Putney: My Lords, can the noble Viscount give an assurance that the reduced fares which are available to those of advanced years will continue to be available under the new regime, if and when it comes into effect?
Viscount Goschen: My Lords, I believe that assurances have already been given on the issue of discount-type fares.
Lord Jenkins of Hillhead: My Lords, is the noble Viscount aware that just under 150 years ago, Mr. Gladstone, who was not unassociated with the noble Viscount's great grandfather, I would guess, made a slightly sad journey from King's Cross to a station between Dundee and Aberdeen and complained that, contrary to assurances which he had been firmly given, he was forced to pay five times in five separate instalments? Is the noble Viscount further aware that that had the effect of turning the mind of as notable an individualist as Gladstone to the benefits of rail nationalisation?
Viscount Goschen: My Lords, I am very grateful, as I am sure the whole House is, for the history lesson on this particular subject. We believe that the privatised rail network will deliver all the benefits for which Mr. Gladstone would have been grateful.
Lord Clinton-Davis: My Lords, will the Minister give an undertaking to the House that rural areas in particular will not be prejudiced as a result of any new arrangements in connection with through-ticketing? How does the Minister reconcile his answer to one of my noble friends, that the Minister has real powers in this matter if the regulator decides, while taking account of what the Minister has to say, to go his own way? Furthermore, how does it make any sense for the Minister in another place to say that the concept of reducing the number of core stations to 294 is unacceptable?
Viscount Goschen: My Lords, the regulator has a duty to protect passengers and to make sure that the service is improved and up to the standards which we all demand. As I mentioned, the Secretary of State has the power to give guidance to the regulator. But ultimately there are clear advantages from having an independent regulator. For the first time it will mean that the railways will have a guarantee of the minimum service available.
Lord Lyell: My Lords, can my noble friend take a look at the 20th century and one system which works? It would be delighted to give the regulator or the
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Minister free advice—that is to say, one address, one telephone number and one person in Berne with Swiss Railways.
Viscount Goschen: My Lords, I am very grateful for the offer.
Lord Richard: My Lords, can the Minister clear up this situation once and for all? On behalf of the Government, can he give an undertaking that, under privatisation, rail through-ticketing will in fact be secured to the same level as it is at the moment?
Viscount Goschen: My Lords, I believe that I have made the situation absolutely clear. The regulator has a duty which I have fully explained. For the first time the railways and the passengers using them will have the protection of a minimum standard. That does not exist at the moment.

Scottish Constituencies
2.55 p.m.
Lord Ellenboroughasked Her Majesty's Government:
Why, when the average number of electors required to return a Member of Parliament in England is approximately 69,500, the equivalent number in Scotland is only 55,000.
Lord Fraser of Carmyllie: My Lords, successive governments have endorsed the provision currently contained in Schedule 2 to the Parliamentary Constituencies Act 1986 that Scotland should be divided into not less than 71 constituencies. There has never been an equivalent provision for England.
Lord Ellenborough: My Lords, in thanking my noble and learned friend for that answer, may I reassure him that as an ardent United Kingdom Unionist I would have no cause to wish for there to be any change under the existing arrangements. But does he agree that, if there were a separate Scottish Parliament with wide powers, that would be a very different matter and would almost certainly necessitate a drastic reduction in the number of Scottish MPs in the House of Commons, with dire implications for the unity of the United Kingdom as a whole? Furthermore, is my noble and learned friend aware that the current devolutionary proposals of the Labour Party are even more irresponsible and worse than they were back in the late 1970s when they last plunged into the devolutionary quagmire? Does he further agree that the situation is worse now because the Labour Party wants to institute a motley collection of assemblies, regions and parliaments, all with different powers, which is a blue-print for disaster?
Lord Fraser of Carmyllie: My Lords, I entirely agree with what the noble Lord has said. There are clearly distinctive circumstances applying in Scotland. For example, if Orkney and Shetland and Caithness and Sutherland combined into one constituency, the electorate would still be significantly below the English average. As my noble friend will appreciate, I certainly do not advocate the establishment of a Scottish

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Parliament, and neither do I advocate the establishment of regional assemblies in England. I doubt whether there are any people in England who would want to have such assemblies established. However, if they were, I believe that one necessary consequence of a Scottish assembly would be a significant reduction in the number of Members of Parliament. Just to achieve an equivalence it would probably be necessary to bring the number down to 56. If they were to have less to do within a Westminster Parliament, one can see that there would be a compelling case for reducing the number even more.
Lord Ewing of Kirkford: My Lords, when the noble and learned Lord says that he is not in favour of the establishment of a Scottish Parliament, why does he not just add the word "now"? His present attitude was not always the position. When we started out on the course of devolution the noble and learned Lord was one of our strongest supporters, along with many of his colleagues in the Conservative Party. He should have the courage to say that he has changed his mind.
Will the noble and learned Lord accept that now that I am a Member of your Lordships' House the number of Scottish MPs does not seem to be of the same concern to me as it once was? But when we talk about electoral representation in Scotland, why does he not explain to his noble friend that, because of the reorganisation of local government in Scotland, at that level Scotland will become the most under-represented country in Europe? In Scotland we shall have fewer councillors representing the people than any other country in Europe. Is the Minister aware that it is that diminution of democracy in Scotland, which was inflicted on us by the Tory Party, which poses a threat to the Union?
Lord Fraser of Carmyllie: My Lords, it is curious that the noble Lord should seek to pray me into an alliance with him on matters relating to a Scottish assembly. If there had ever been a proposal which I thought was at least worth considering, it was the one put forward by the noble Lord, Lord Home, years ago, which was a very different proposal to the one which the noble Lord now puts forward. I am grateful to the noble Lord for his honesty because in an earlier debate in your Lordships' House it will be recollected that he pointed out that, if the West Lothian question is to be answered, it will mean that regional assemblies in England will have to be given exactly the same powers as are to be given to a Scottish assembly—in other words, the gutting of England and the end of the Westminster Parliament.
Baroness Carnegy of Lour: My Lords, to return to the more immediate Question on the Order Paper, does not my noble and learned friend agree that travelling through the Highland areas of Scotland and the Border country it is very easy to understand why each Member of Parliament represents a smaller number of constituents than the average in England because the population is sparse? It is across the central belt of
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Scotland where the comparison can be made much more closely with the highly populated areas of England. That is where the trouble is.
Lord Fraser of Carmyllie: My Lords, my noble friend is correct. Circumstances are very different in the remote rural parts of Scotland and, given its geography, one understands why the Western Isles constituency has an electorate of only some 22,000. Perhaps I may reassure my noble friend that some years ago the central Glasgow constituencies had very small electorates. However, I am glad to say that that position has been corrected and the three smallest Scottish constituencies are now remote rural constituencies. A further boundary review is under way, and I believe that in the west central belt the figures will more or less come up to the Scottish average.
Baroness Seear: My Lords, given the strength of the Lander in Germany and the undoubted power of the Federal German Government, why does the Minister think that regional devolution in Great Britain would lead to the demise of the Westminster Parliament?
Lord Mottistone: Because we are not Germans!
Lord Fraser of Carmyllie: My Lords, that question seems to have been answered for me. My concern is that, while I regard Scotland within the Union as a nation, I also regard England within the Union as a nation and I do not believe that it does anyone in England any good to have what has been the unity of England for some 800 years broken up.
Lord Carmichael of Kelvingrove: My Lords, the Minister mentioned the noble Lord, Lord Home of the Hirsel. We should get this straight. When the referendum was held in, I think, 1979 he made a clear statement that he would introduce a proper devolution Bill and that we should not therefore vote on the Bill that was then put forward by the Government. That caused distortion and a great deal of feeling against devolution among Conservatives. Fortunately, there are now even fewer Conservatives in Scotland than there were then. He also suggested that there was some support for devolution at one time. May I quote—
Noble Lords: No. Question!
Lord Carmichael of Kelvingrove: My Lords, a very distinguished Member of the other House, who is reckoned to be possibly the next Foreign Secretary, made it clear that he was totally in favour of devolution for Scotland. I am referring to the present Secretary of State for Defence, Malcolm Rifkind, as well as which—
Noble Lords: Order!
Lord Carmichael of Kelvingrove: My Lords, if Scotland had had proper representation on geographic terms, I understand that there would be something like 90 Members for Scotland. Whatever the Government expect to do now, I believe that Conservative

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representation in Scotland is now running at about the same percentage as that for Gerry Adams in Northern Ireland.
Lord Fraser of Carmyllie: My Lords, the important thing that the noble Lord, Lord Home, revealed at the time of the referendum was that the proposals that were being put before the Scottish people were fundamentally flawed. In the 15 years that have elapsed since then, no significant effort has been made to eliminate those flaws. To return to the Question, I want Scottish constituencies to remain as they are. In particular, I hope that the West Lothian constituency will continue to vex us for a considerable time!

Public Utilities: Managerial Salaries
3.3 p.m.
Lord Dean of Beswickasked Her Majesty's Government:
Whether the present financial rewards being received by chairmen, directors and senior management in the privatised public utilities are in accordance with the Government's original privatisation objectives.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, privatisation has proceeded fully in accordance with the original objectives. In line with those objectives, management issues, including remuneration, are matters for the companies themselves and their shareholders.
Lord Dean of Beswick: My Lords, unfortunately the Minister is disagreeing with what the Prime Minister said yesterday at Question Time when he said that he did not support such astronomical salary increases. Is it not the case that the people who are now running the privatised, former public sector industries are disgorging labour rapidly in order to buttress their own salaries? Is it not disgraceful that most of the people who are being sacked were doing reasonable jobs within the community? Is not that an outstanding example of avarice on the part of those who are acting simply for personal gain?
Lord Mackay of Ardbrecknish: My Lords, I do not think that I will take a lesson on avarice and envy from the Labour Party. My right honourable friend the Prime Minister has made two things abundantly clear. The first is that he does not agree with excessive and unjustified wage increases; and the second is the point that I made in my Answer, which is that the companies concerned are in the private sector and remuneration is a matter for them and their shareholders.
Lord Marlesford: My Lords, does my noble friend agree that under the capitalist system there is no problem over paying people highly, but those who receive that high pay may well have a problem earning it?
Lord Mackay of Ardbrecknish: My Lords, my noble friend is absolutely right. Indeed, that point encompasses a much wider field than merely the
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chairmen and chief executives of companies that were previously in the public sector. It encompasses all other companies, as well as people like footballers who seem extraordinarily well paid, and television and media personalities among others. Indeed, if I dare say so in your Lordships' House, it might even include some lawyers who earn what most of us would consider to be fairly astronomical fees. My question is whether the Labour Party is going to set up a body to regulate all those incomes.
Lord Strabolgi: My Lords, the Minister said that this is a matter for the shareholders. The Government say that frequently, but is the Minister aware that the power of the shareholders is much exaggerated? The big institutional shareholders do not want to get involved, and many of the smaller shareholders are retired people who do not have the resources to organise any opposition to such enormous and disgraceful pay rises.
Lord Mackay of Ardbrecknish: My Lords, the Government appreciate the important role which institutional shareholders have to play in this and other regards. On a number of occasions when this issue has arisen my right honourable friend the Prime Minister has made it quite clear that we wish to encourage institutional shareholders to play an active part in such companies, most of which they own.
Lord Campbell of Croy: My Lords—
Lord Peston: My Lords, the noble Lord has already spoken this afternoon.
Lord Hailsham of Saint Marylebone: Campbell!
The Lord Privy Seal (Viscount Cranborne): My Lords, we have one minute left for Questions. I know that the Opposition Front Bench spokesman has wanted to get in, but if the noble Lord is quick, I imagine that there may be time for another question.
Lord Peston: My Lords, I am always extremely brief. The Minister referred to "avarice and envy". I am not sure that I am avaricious, but I am certainly envious of such salaries and I would not beat about the bush on that point. I only wish that I had the chance of them! Is the Minister really saying what he appears to be saying, which is that the privatisations have occurred exactly as the Government predicted and that these salaries are therefore what the Government predicted? If the Minister is saying that, how can his right honourable friend the Prime Minister possibly complain about them? If it has gone according to plan, what is the argument about on the Government's side?
Lord Mackay of Ardbrecknish: My Lords, there are two issues. I have made it perfectly clear that the companies are in the private sector and that we accept that these are matters for those private companies. On the noble Lord's point about privatisation, electricity consumers have seen an 8 per cent. price reduction in real terms in the past two years; the price of gas has fallen by 23 per cent. in real terms; and British Telecom's prices have come down by 38 per cent. in real terms since privatisation. I should have thought that those are things to be welcomed.

Business of the House: Debates this Day
Viscount Cranborne: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debates on the Motions in the names of the Lord Rodgers of Quarry Bank and the Lord Perry of Walton set down for this day shall each be limited to2½ hours.—(Viscount Cranborne.)
On Question, Motion agreed to.

The Prison Service
3.8 p.m.
Lord Rodgers of Quarry Bankrose to call attention, in the light of recent escapes and disturbances, to the arrangements for policy-making, management and accountability as they affect the Prison Service in England and Wales; and to move for Papers.
The noble Lord said: My Lords, on 19th December last year, the Home Secretary, Michael Howard, made a Statement in another place about Sir John Woodcock's report on the escape of six category A prisoners from Whitemoor Prison the previous September. He said that the report revealed,
"a dreadful state of affairs".—[Official Report, Commons, 19/12/94; col. 1397.],
and he accepted 64 recommendations for change.
On 10th January, a fortnight ago, the Home Secretary made a further Statement to the Commons, this time mainly about the escape of two category A and one category B prisoner from Parkhurst Prison. He said that the preliminary inquiry showed,
"serious failures at local level … specific lapses on the night in question".—[Official Report, Commons, 10/1/95; col. 32.]
The Governor of Parkhurst was removed.
Two other events occurred between 19th December and 10th January. On New Year's Day, Frederick West, awaiting trial at Winson Green Prison, was found hanging in his cell. On the evening of the following day, there were serious disturbances at Everthorpe Prison on Humberside.
Each of those events was bad enough in itself, but taken together they caused a public outcry. There is now genuine apprehension about what may happen next. Some press comment has been mischievous and shown no understanding of the problems of managing prisons, but one question is entirely legitimate and has inevitably been asked: who is to blame and who allowed it to happen? Anyone reading Sir John Woodcock's report must be profoundly shocked, and the manner of the escape from Parkhurst too is shocking.
To the question who is to blame, the Home Secretary's reply has been simple and consistent, "Not me". His justification for that answer has also been consistent, if sometimes convoluted: that he is responsible to Parliament for policy not operations, and that all those appalling events were due to operational failures. But what is so clear to Mr. Howard is not so clear to everyone.
The question of resignation is for the Home Secretary and the Prime Minister. Thirteen years ago the noble Lord, Lord Carrington, resigned as Foreign Secretary
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because he believed he had made an error of judgment. It was an honourable gesture by a brave, widely respected, and honourable man. It is for Mr. Howard to decide where his duty lies. I say this with regret and reluctance, but no gesture would do more to restore public confidence and raise morale in the Prison Service than his resignation.
As many noble Lords will be aware, the Home Office is one of the great offices of state and it is held by the incumbent in trust for his successors. It is not a property to be used lightly for personal or narrow party political purposes.
I do not intend today to discuss the Parkhurst escape in detail, but the governor's fate is central to the question of the arrangements for policy making, management and accountability in the Prison Service. On the day of the Home Secretary's Statement (10th January) came the news of what had happened to Mr. Marriott. First, it appeared that he had been sacked. Then it was said that he had been suspended. Next we heard that he had been transferred. In his Statement to the other place, the Home Secretary said that Mr. Marriott had been removed from his duties, and, in a circular letter to governors, the director general said that he was not sacked or suspended but was taking on other duties.
Those possibilities are not all mutually exclusive, but they left in the public mind much confusion about what had happened to Mr. Marriott. He seems at least to have been decisively sacked from Parkhurst, unless the Minister can today promise, without qualification, that returning there as governor is one of the options open to him. Failing that, it is fair to say that he has been sacked, and on the basis of an internal inquiry conducted by Mr. Richard Tilt, the prison director of security, who reports to Mr. Derek Lewis, the director general, who reports to the Home Secretary.
A week ago, Mr. Lewis appeared before a Select Committee of the other place. He agreed that he had seen the Home Secretary on the day that Mr. Marriott was removed from his post, but rejected any suggestion that the Home Secretary had interfered with an operational decision. Of course we must accept the director general's carefully chosen words. But what would a transcript of the conversation show? Surely not that the Home Secretary had no views of his own about the matter. Might not he have said, "You have read the papers, and I have a Statement to make in the House. You are appointed to make tough decisions. For God's sake I hope that you have made them".
I do not want to put words into the Home Secretary's mouth, but, given public and parliamentary concern, he could hardly have said anything else. Whether that represents interference, noble Lords are free to judge. I understand that the Minister may herself have been present at that meeting.
The Minister of State, Home Office (Baroness Blatch): My Lords, I am grateful to the noble Lord for giving way at this time. He is making very, very serious statements. He is impugning the honesty of my right honourable friend the Home Secretary. I was present at every meeting between the director general and my right

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honourable friend the Home Secretary on that day. I therefore ask the noble Lord, in the traditions of this House, to give the basis upon which he is making serious allegations.
Lord Rodgers of Quarry Bank: My Lords, I have made a very serious statement; I have made no allegations. I gave way out of courtesy to the Minister. I said that I understood that she was present at that meeting. She confirms that she was present at that meeting. I look forward to hearing what she says about the words used. I did not claim that those were the actual words used. I said that I did not want to put words into the Home Secretary's mouth. If I do not have the spirit of that conversation, of course I shall apologise to the Home Secretary, but only if the Minister will tell the House today the words which were used and convey to us the spirit of the occasion.
The point I am making—the Minister's impatience prevented her from seeing this—is that the relationship between the Home Secretary and the head of the Prison Service is inevitably a close one. That is the burden of my message today. Although I say it now when I intended to reach it later, my message to the House, and the point to which I hope the Minister will turn her attention, is that it is impossible to separate policy from operations in the Prison Service, and that being so, it is false and a fiction to pretend that there can be an arm's length relationship between the Home Secretary and the head of the Prison Service.
It remains the case, and I challenge the Minister to say otherwise, that throughout that period—from his Statement of 19th December to his Statement of 20th January—the Home Secretary's reply to every suggestion of responsibility was, "I am not to blame. It is an operational matter, and therefore not a matter for the Home Secretary". Again, the Minister shakes her head. I ask her to read all the comments—I heard them on radio and television—and I read what the Home Secretary said in another place. At every stage he said, "This is an operational matter and not a policy one".
If the Minister doubts that there is an issue, perhaps she will look at paragraph 9.28 of Sir John Woodcock's report when he focused on that very question. He said:
"There exists at all levels within the Service some confusion as to the respective roles of Ministers, the Agency Headquarters and individual Prison Governors. In particular, the Enquiry has identified the difficulty of determining what is an operational matter and what is policy".
Sir John Woodcock's report was accepted by the Home Secretary in another place. He accepted that statement which, as I understand it, the Minister now seeks to dispute.
Noble Lords will know well that many of the decisions which are claimed to be policy decisions have serious operational consequences. How could one expect otherwise? The Home Secretary, in a debate on the Address, said a number of things which come into that category. He said:
"Prison will always part a vital part in the criminal justice system … I want it to be more effective still in the future, and that is why I am proposing far-reaching changes to our prison regime".
Announcing new arrangements for temporary prison leave, he went on to say that they will be:
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"likely to lead to a reduction of about 40 per cent. in the amount of leave granted".
Those are the operational consequences of a policy decision. He went on to commend austerity in prisons. Referring to reports of lax conditions and privileges handed out as a matter of course, he said:
"I shall soon announce a new system of privileges and sanctions. Under that new system, privileges will have to be earned by good behaviour and will be removed for bad behaviour".—[Official Report, Commons, 18/11/94; cols. 243–4.]
In his further remarks he referred to drug taking in prisons.
At this moment I am not discussing the merits of the proposals. But if the Home Secretary sees them as matters of policy appropriate to himself—I do not for the moment dispute that—he cannot then wash his hands of the consequences as operational matters. I said that I did not wish to discuss the merits of the Home Secretary's policy proposals. That is not our business today. But I should like to ask the Minister one policy question.
The report of the noble and learned Lord, Lord Justice Woolf, and Judge Stephen Tumim on the prison disturbances of 1990 was widely welcomed in all quarters for its scope and authority. It was, I believe, welcomed in this House. As a result, in autumn 1991 the Government published a White Paper called Custody, Care and Justice. The opening paragraph of the White Paper reads:
"This White Paper charts a course for the Prison Service in England and Wales for the rest of this century and beyond".
My question to the Minister is: would she confirm that the White Paper still represents the policy of Her Majesty's Government and that the recommendations of the Woolf Report, accepted by the then Home Secretary, continue to be implemented?
I turn to the origins and basis of the present arrangement for the Prison Service. There are four rather glossy documents which two years ago, in the words of the then Home Secretary, Kenneth Clarke, set a new direction for the Prison Service in the 1990s. There is a framework document, a corporate plan, a business plan and a citizen's charter. That is quite a lot of paper. The first three documents contain a statement on purpose, vision, goals and values. Those are supplemented by further statements on integrity, commitment, care, equality of opportunity, innovation and improvement.
What matters today is the framework document. In effect, it sets out the terms of reference of the Prison Service and contains a description of how it fits into the Home Office. There are short sections on planning, finance and personnel matters which seem to be unexceptionable. But there is also a section on accountability, which explains the role of the main players in the current drama. Again I quote:
"[The Home Secretary] will not normally become involved in the day to day management of the Prison Service, but will expect to be consulted by the Director General on the handling of operational matters which could give rise to grave public or parliamentary concern … [The permanent secretary] is responsible for advising the Home Secretary on the Prison Service's corporate and business plans, proposed key targets and performance".
The director general, in addition to responsibility for day to day management:

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"is also the Home Secretary's principal policy adviser on matters relating to the Prison Service".
I referred to the Home Secretary's role; I hope that I referred to the permanent secretary's role; and now I have referred to the director general's role. In terms of the framework document, as the Home Secretary's principal policy adviser, the director general is responsible for preparing the Prison Service's corporate and business plans, upon which the permanent secretary is responsible for advising the Home Secretary. That is not simply opaque language; it appears to be opaque thinking as well.
The document goes on to refer to Members of Parliament. It says that they should be encouraged to write to the director general, who has "delegated responsibility". Nowhere else in the framework document does the phrase "delegated responsibility" occur. There is no list of matters which the Home Secretary has delegated to the director general.
There is also one curious omission from the framework document. The ministerial strength of the Home Office has grown inexorably over the years, despite the loss of Northern Ireland to the Northern Ireland Office a quarter of a century ago. After the war, when Mr Shuter Ede was Home Secretary there was one parliamentary secretary. In 1952 there were two parliamentary secretaries. By 1964 there was one minister of state and two parliamentary secretaries. By 1974 there Were two ministers of state and one parliamentary secretary. Since 1987 there have been three ministers of state and one parliamentary secretary.
Noble Lords may wonder what three ministers of state find to do. But one of them, Mr. Michael Forsyth, according to the Cabinet Office list of ministerial responsibilities, "oversees policies relating to prisons". But there is no mention of a minister of state in the framework document. I do not know where the minister of state fits in. There is the Home Secretary, the permanent secretary and the director general. Where does the minister of state fit in? What are his responsibilities? How does his accountability fit?
There is a further development which makes this even more fascinating as an exercise in how government should not be conducted. In his Statement to the House on 19th December, the Home Secretary announced "a new unit"—as he called it —"outside the Prison Service". It was intended:
"to strengthen Ministers' ability to supervise the performance of the Prison Service".—[Official Report, Commons, 19/12/94; col. 1400.]
I hope that the Minister will tell the House how that will fit into the organisational structure of the framework document. Will the new unit be staffed by career civil servants or by personal and political appointees? What will be their level of seniority and to whom will they report? A month has passed since the Home Secretary's announcement. Given the urgency of these matters, all those points should be settled. I hope that the House can count on a very clear statement of the new organisational framework when the Minister replies to the debate today.
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If she has time, the Minister might also refer to the role of Sir John Learmont, who is conducting a review, and to the role of Sir David Yardly, who is conducting another review. Perhaps he will explain to the House where they fit in with the continuing role of Her Majesty's Inspector of Prisons, Judge Tumim.
Those are very serious matters indeed. They go far beyond the behaviour of the present Home Secretary. They raise questions about the structure of government. They raise questions about whether an executive agency is a suitable way of dealing with such highly sensitive matters. I do not believe that the Home Secretary - any Home Secretary—can divorce himself from matters of such parliamentary and public concern. But if he cannot divorce himself from them, the accountability set in the framework document may not make sense for the future of the Prison Service. Whatever decision the Home Secretary may make, or whatever the Minister may say today, there remain serious problems about policy-making, management and accountability. Those are matters for government and it is critically important that they are addressed by ministers without delay.
My Lords, I beg to move for Papers.
3.29 p.m.
Lord Woolf: My Lords, it was almost exactly four years ago that Judge Tumim and I delivered our report on the prisons, to which reference has been made by the noble Lord. We were more fortunate than others who have the task of writing such reports in that, as noble Lords heard, our recommendations were almost unanimously taken up by the Government in their White Paper, to which the noble Lord also referred.
The White Paper was entitled Custody, Care and Justice, the Way Ahead for the Prison Service in England and Wales. The title was, of course, not chosen at random. It was chosen because it reflected an immensely important theme of my report, which was that if the Prison Service was to emerge from what was then accepted to be a very unsatisfactory state, it was necessary for there to be a programme of change implemented over a period of years which would achieve a proper balance between custody, care and justice —the words which appear in the title of the White Paper. One of our recommendations was that it was essential that there should be what was described as a structured stand-off between Ministers and the Prison Service. There should be a head of the Prison Service who was in a position to give the visible leadership to that service which it craved and which it undoubtedly needed. The requirement for that divide between Ministers and the service remains today. It is because of that that I am extremely grateful to the noble Lord, Lord Rodgers, for raising this subject for debate before your Lordships. It goes to the very heart of the proper running of the Prison Service and therefore goes to the effectiveness of the whole criminal justice system.
The relationship between Ministers and the Prison Service is difficult and delicate. My report and the White Paper which followed said with regard to the management of the Prison Service that that was a matter of importance. It was followed by the report of Admiral Sir Raymond Lygo. He commented that the Prison

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Service was the most complex organisation that he had encountered and its problems some of the most intractable. He reiterated the need for greater managerial independence for the Prison Service from the Home Office. He recommended a clear division between continuing political—that is ministerial—accountability for the major policy and resource issues and managerial authority for day-to-day operations. He also recommended agency status, and that has been achieved.
Although when I finished producing my report my direct involvement with the prison system came to an end, I was fortunate to be able to keep in touch with what was occurring within it because of my position as chairman of the Butler Trust, a charity which is devoted to recognising and spreading excellence in the Prison Service. I was heartened by the progress which over the ensuing years the Prison Service was able to achieve. The three Home Secretaries who have been in office since that time and the three Ministers responsible for prisons who have been in post can rightly claim credit to the extent that their policies have contributed to what has occurred. However, the main credit must go to the two director generals who have been in office during the period of change—first, Mr. Joe Pilling and, secondly, Mr. Derek Lewis, the present Director General—and their staff. The two director generals, neither of whose backgrounds suggested that they were ideal choices to play this role, have provided the visible leadership which was necessary.
The director of the Butler Trust has told me how during the course of his many visits to prisons throughout the country, he has heard universal praise from the most junior staff upwards for what Mr. Lewis has shown to be his deep involvement in what is happening in all prison establishments. Together with his staff, he has achieved a change in ethos in the Prison Service. The Prison Service has also had to absorb a radical programme of change to which it would be difficult for any organisation to adjust. In my view the public has cause to be grateful to the Prison Service for the way in which it has coped with that. As to part of this change, I am, as a matter of principle, not comfortable with the introduction of market testing and the involvement of the private sector within a service which has the responsibility of keeping secure those whom courts sentence to imprisonment. But I have to accept that the involvement of the private sector has had its positive side. It has proved to be a catalyst for change and, incidentally, in relation to the escorting of prisoners by Group 4, has been responsible for some of the best cartoons and jokes about prisons over recent years.
While, therefore, there is much to approve of which has occurred since my report, over the past 12 months there have been events which have caused me real concern for the future of the Prison Service. I believe that what has happened could put at risk all that has been achieved and, what is more important, could be achieved.
My views of the mounting prison population are well known. They provide the background to what I am now going to say because an increasing population puts an insidious stress upon the prison system as a whole. What now causes me concern is that a series of
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sensational events have resulted in immediate policy statements which could result in interference with the day-to-day management of prisons which would undermine what the Prison Service is seeking to achieve.
In any prison system there will inevitably be worrying events from time to time. After all, in prisons there is a concentration of dangerous, evil prisoners as well as those of whom it is questionable whether they should be there at all. The prisoners, to differing degrees, have been deprived of their liberty and are subject to what is now referred to as austere conditions. Among the prisoners are those who are in Category A, some of whom remain in prison for an exceedingly long time—sometimes for life—because their return to the community could seriously endanger the public.
When in prison, that category of prisoner is subject to intense scrutiny. It is very difficult to achieve a balance between security and justice for such prisoners. But the Prison Service does its best. If those prisoners escape, there is understandable outrage. It could be possible to reduce to a minimum that danger by keeping them locked up 22 hours a day, but that would be intolerable, inhuman and unacceptable. Other prisoners return to the community relatively quickly. It is important that they are returned in circumstances when it is most likely that they will not offend again.
What worries me is that, for example, in recent times we have had a sensational offence committed by children and immediately resources are found and decisions made to provide new prisons especially designed to deal with children. No consideration is given to the alternatives which perhaps deserve resources of that kind to a greater degree. Relate has referred to the distressing repetition of children from broken homes repeating the pattern of conduct of their parents, which results in a life of crime. Again, there are cases of prisoners not returning from home leave which are, quite wrongly, reported in the media. Immediately, changes are made in the temporary release and home leave systems, which are an important part of the proper functioning of any prison system.
Now we have the problems to which the Home Secretary referred in his Statement on 10th January this year. In regard to the disturbances the noble Lord referred to the Statement that the Home Secretary made, they were, in part, attributed to the attempts by the governor to curb the misuse of drugs. That was in accord with the policy. However, the policy was introduced without the necessary back-up. There are a few full-time intensive addiction treatment providers in the English prison system. One is the Addictive Diseases Trust, of which I have the honour to be patron. The trust has considerable experience and success in the area but, as I understand it, no such treatment was available at Everthorpe. If it had been, it might have reduced the risk of the disturbance that occurred there.
The escapes from Whitemoor and Parkhurst should not have occurred. It is, however, essential that those incidents are kept in proportion. There should be a

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measured response to rectify any lack of balance which has occurred between the requirements of security, care and justice. Problems of that nature must be kept in proportion. I appreciate the difficulties created for Ministers, but I deeply regret the response, the tone of which gave a misleading impression, to which reference has already been made. For example, I am told on good authority about another governor walking around his establishment afterwards who was confronted by prisoner after prisoner asking, "Guv'—is it your turn next?" What does that do for the stability and proper running of a prison?
Having regard to the seriousness of the events which took place, I do not criticise the fact that the Woodcock Inquiry is now to be followed by the Learmont Inquiry. However, I am concerned that, once more, we have a situation where the reports are restricted to prison security. That can produce the unbalanced result which I think would be a danger to the prison system.
What is needed is not more ministerial interference but less. Where the prison service is bringing about a process of change, it and its Director General needs support. It needs stability. I hope that it will be allowed to continue upon its path of progress in the measured way that the service requires.
3.42 p.m.
The Earl of Longford: My Lords, it is a privilege to follow two speakers who have such an honoured place in my regard. I was a lifelong friend—having shared rooms with him at Oxford—of the late Hugh Gaitskell. When his career faced total destruction, it was the noble Lord, Lord Rodgers, who saved him by undertaking a campaign which eventually reinstated him and gave him back control of the Labour Party. The noble Lord, Lord Rodgers, has moved since then, but we all move about as time goes on. However, that achievement will never be forgotten, especially not by me.
The noble and learned Lord, Lord Woolf, paid tribute to the valuable assistance that he received from one of my most esteemed public figures, Judge Tumim. That will probably be the most famous report in the history of penal reform. So, there again, one pays him tribute.
I cannot pretend that I agree with the noble and learned Lord's cheery view of the way that the ethos in prisons is improving. I know that it is about four years since the report was produced and that he is a very busy man. However, I visit a prison every week. I should like to persuade the noble and learned Lord to accompany me on such visits. He would be very lucky to find anyone at the governor, officer or prisoner level who would say a good word for Mr. Michael Howard. He would indeed be very lucky. Therefore, I am afraid that I do not go along with the idea that there is some improvement in the prison ethos.
We must all submit to the iron discipline of the House. Therefore, my contribution may be no more than a sound bite. However, I have asked one of my
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close friends to warn me when I am in danger of running out of time. I shall just continue until that moment arrives. There are so many topics that one could mention under the heading of today's debate. I am so glad to know that my noble friend Lady Gould is speaking on behalf of prison officers. They need someone to champion them. I know that my noble friend will do so most effectively.
There are two topics to which I should have liked to refer, one of which I have mentioned before—the first is the question of the recall of life prisoners—but, again, time does not permit me to do so. The second is a new topic which has come to me lately from those closest to women's prisons; namely, the need for a new secure unit for long-term women prisoners. Nevertheless, I shall not deal with that aspect either.
I shall come to the point and express, yet again, in the clearest possible way my detestation of the penal philosophy of Mr. Michael Howard. I am bound to say that that detestation is widely shared among those who know most about prisons at any level. The Daily Mail—still, I gather, in some reactionary kind of way—supports Mr. Howard's general principles. However, even that newspaper admits that he has made a mistake in antagonising prison governors, prison officers and prisoners all at the same time. The Daily Mail might have added to that list the judiciary. After all, the judiciary convicted him of gross illegality. Incidentally, there is also the police, the Probation Service and the Civil Service to be considered. A representative of the latter has written to The Times to call Mr. Howard to order. Indeed, he has done about as much as one can do to antagonise everyone who is relevant in that world.
What is Mr. Howard's policy? Well, he has made it pretty plain: he wants to make prisons more unpleasant. He has said that prison works. That means that he sends more people to prison. But we do not have time to discuss that aspect of the matter. While people are in prison, Mr. Howard wants them to have a more unpleasant time than they had previously. Let us not be personal about it. I am aware that the noble Viscount the Leader of the House does not like us to mention personalities. However, the grandfather of the present Leader of the House, the former Marquess of Salisbury, on one occasion accused a noble Lord of oleaginous hypocrisy. But he hastened to add with a disarming smile, "I am not saying anything personal about the noble Lord". Well, in the same spirit, I am not saying anything personal about Mr. Michael Howard's private life. That is understood to be beyond reproach. I am merely talking about his policies, which seem to me to be rather evil, or worse, if that is possible.
What does Mr. Howard stand for? He has the idea of making prisons more unpleasant. Previous Home Secretaries have not adopted that tone. Indeed, we have had half a dozen of them since 1979 and, on the whole, with one possible exception—and I shall not dwell on that—they have tried to make life a little more civilised, humane and more in accordance with Christian principles for prisoners. Of course, some of

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the Ministers of State have been outstanding. I have in mind the noble Lord, Lord Windlesham, who has written two classic books on the history of penal reform since the war.
However, Mr. Howard comes along and strikes a new note: indeed, life has to be made worse and more unpleasant for prisoners. Although we must not mince our words, we must try to be fair to Mr. Howard. That is a task which I find peculiarly difficult; but I keep on trying. We must remember that he did not appoint himself. Moreover, he did not retain himself in office during these disastrous years. Indeed, the Prime Minister appointed him.
What did the Prime Minister say at that Conservative Conference which in the eyes of many of us was one of the most appalling events in the history—I was going to say of the world; but that is overdoing it—of penal reform? The Prime Minister said that we must condemn more and understand less. I do not suppose that the noble Baroness, or, indeed, anyone else in the House, will defend the last part; but, as regards "understand less", perhaps it will be said that it was misreported. In regard to condemning more, well, as St. Augustine would have said, we must:
"Love the sinner but [condemn] the sin".
No one can doubt the fact that the policy introduced in the Conservative Party Conference of 1993 was a new policy, but no one can say that it was in accord with the ideas of the Woolf Report, which had been accepted not so long before.
What does that policy amount to? Well, it means many more people in prison and things like saying that some people should go to prison for life—that is quite new—or, for example, that a few people should rot and die in prison. That is also quite new. I hope that that will never come to pass in reality. Mr. Michael Howard cannot ensure that it does. He will not live for ever; indeed, nor will I. Therefore, I do not suppose that it will ever happen. But, nevertheless, that was the iniquitous thing. I would call it obscene, although there may be worse words that some noble Lords with a wider command of vocabulary would use.
I should like to mention one topic referred to by the noble Lord, Lord Rodgers; namely, the cutting of home leave by 40 per cent. No one can say that that was the kind of thing that Mr. Lewis would welcome. I have met him once and he is a charming man. I blame him for nothing; I praise him for nothing. I believe that he has been placed in an impossible position and he is doing his best in a position in which he should never have been placed. That is how I view Mr. Lewis. As regards cutting home leave, that is another aspect of making life more unpleasant for prisoners.
I visit prisons every week. Recently I was going to visit one or two prisoners, one of whom had agreed the day before to see me. However, when I arrived he did not wish to see me. Noble Lords may sympathise with him and think that that is understandable. It has happened before now but not all that often. I therefore accepted that. However, the
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prisoner's friend wrote to me offering his apologies for the incident. I want noble Lords to understand what making life more unpleasant for prisoners in lots of little ways amounts to. The prisoner who refused to see me had been told, just before my visit, that the day out shopping under supervision which he had been promised had been cancelled. He was so depressed that he did not feel like receiving any visitors.
Perhaps that is just a small thing but that sort of thing is happening over the whole front of prison activities. It is happening in all prisons, and I visit all these prisons. What does that mean for the prison officers who have to tell the prisoners—some of whom are there for many years—"Sorry, it has been decided that life will be a bit harder in future"? The prisoners ask, "Who has decided that?" The prison officers will then say, "It is not the fault of Mr. Lewis. It has been decided by Mr. Michael Howard". The prisoners then ask, "What does he know about it?" In fact he knows nothing about it. He visited Brixton once before he became Home Secretary. That is all the prisoners know about the position but, as far as they are concerned, the Howard policy poisons the whole atmosphere in prisons. That is why I cannot agree with the eminent noble and learned Lord who spoke before me that life in prisons is better. I believe it is worse. I do not wish to stir up any trouble as regards talking about the chance of riots but I think it will be an awkward year in that respect. What are we really talking about here? We are talking about life being made more unpleasant for prisoners.
We must regard this as a fundamental issue. Are we going to reverse the policy that has been carried on over past years? One of the top Home Office officials explained that Mr. Howard was introducing a dramatic change. However, today if one is at all interested in these matters one has either to be in favour of the policy of Michael Howard, supported by the Prime Minister and his colleagues, or against it. I am against it.
I have seen great changes in this House. We are told that public opinion is in favour of Mr. Michael Howard. I wonder whether that is the case. It is hard to know what public opinion amounts to. People write nasty letters to me, but they also write nice ones. Curiously enough, I receive more nice letters in old age than I received when I was younger. At any rate one receives many letters from which to adduce the state of public opinion. I believe that a Home Secretary who just tries to pick up the latest news from the street corner is to be despised. I am afraid I have to use that word as regards the policy of Mr. Howard. I think it is a contemptible policy. As someone who has visited prisons for many years, I must make that plain.
However, I hope and pray that all that will pass away. Party politics aside, it is a pity that the noble Lord, Lord Windlesham, cannot become Home Secretary, but that would be too much to hope for. At any rate some Conservative, or possibly a Labour person, will take up office after Mr. Howard, and Mr.

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Howard's policy will seem like a bad dream. I hope and pray that the whole age of Howard will seem like a bad dream.
3.54 p.m.
Lord Donaldson of Kingsbridge: My Lords, over the past 25 years I have had to follow my noble friend Lord Longford often and I have always found that difficult because he gets the House into a good temper and leaves me to bring it back to normal. Therefore it is with some hesitation that I speak today.
I want to begin by saying that I am proud and pleased to have heard the speech of the noble and learned Lord, Lord Woolf. I shall not mention at least half a dozen matters I should have liked to discuss because the noble and learned Lord has already done so. I refer, for example, to Category A prisoners, children, home leave, drugs, and one thing he did not remark on but something that his report remarks on in great detail, and that is remand. These are all important matters. I shall not talk about them and I shall not even talk about my noble friend's opening speech, which is about the past. I shall consider the present and the future, and I hope I shall do so briefly.
I am grateful to my noble friend for opening this debate not in the usual way, which consists of asking what is wrong with the Prison Service, but for asking, if there is something wrong,—as I think he would be the first to admit—whose business is it to put it right? I will give him a short but irritating answer: it is the Treasury's business. We all know many things which ought to be put right, but year after year they are not put right, and that is, simply, because there are no votes in prisons and it is considered better to spend the quite large sums needed on other less uninteresting but more vote-winning projects. That applies, I am afraid, to all governments.
But at least we have the Woolf Report. This was regarded by more or less everybody with any experience as an illuminating and a brilliant report, and we all hoped the Home Secretary would accept its 12 major and 200 minor recommendations and get along with acting on them. At least after this no one could justify inaction. After due consideration, the new Home Secretary said he would accept, in principle, 11 of the 12 major recommendations, and would begin at once to work on some of them, and indeed did so. But, alas, Recommendation No. 7, which he had refused, was the recommendation about limiting overcrowding, and it is hardly an exaggeration to say that without some vigorous action on overcrowding many of the other recommendations could not be made to work effectively.
Overcrowding has a disastrous effect on staff morale, and a disastrous effect on all the improvements which have been gradually introduced to make imprisonment more tolerable and more constructive for those confined. The result is a dissatisfied staff and resentful prisoners, which is not a good background for a happy life. The growing mood of harshness is leading to the imprisonment of increasing numbers of non-violent and minor offenders for whom community sentences would
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be a better option with a much greater chance of preventing reoffending. The pressure of excessive numbers also prevents the Prison Service from providing full and positive regimes for all prisoners which can equip them to lead law-abiding lives on release.
In 1969, which is quite a long time ago, I opened a debate on the subject of prison reform saying,
"There is a prerequisite to any prison reform, that is to get rid of overcrowding".
Eighteen years later I repeated myself and now, after another six years, that situation is as bad as it ever was and getting worse. The number of prisoners on 31st December 1994 was 48,304—a 19 per cent. rise in two years. It is expected to reach 51,000 this year. This rise, as has already been said by my noble predecessor in the debate, the noble Earl, Lord Longford, is the direct result of penal policy, summarised in the Home Secretary's slogan "prison works". He encouraged the courts to send more people to prison, and he encouraged them to give longer sentences, and they have responded.
One cannot correct overcrowding by increasing the number shut up. In the overcrowded local prisons the pressure is such that the prison officer can hardly do his proper job, which is keeping order. He can hardly touch the more interesting part of his work, which is correcting bullying and helping his prisoners with their home and private problems, which every prison officer regards as a proper part of his duty.
On 20th January last, there were still 111 people held in police cells because no prison had room for them. Overcrowding in local prisons ranged from a high of 81 per cent. in Leicester to 44 per cent. in other prisons. That is an impossible situation. It is not a situation for which anyone has made any effort to find a solution. I made a suggestion some time ago which consisted of letting people out of prison before letting others in, but nobody took any notice of it, so I shall not go into it again, although I believe that it is the right answer.
An overstretched system is also forced into transferring many prisoners to prisons far from their home areas, reducing contact with their families and increasing dissatisfaction and tension among prisoners. On 9th March, Brendan O'Friel, chairman of the Prison Governors' Association, said:
"We are building up a significant number of prisoners with a justifiable grudge against the Prison Service for moving them so far away from home … Steps must be taken to bring this to an end or it will bring trouble within our prisons".
The present difficult state of overcrowding is the direct result of penal policy. There has to be a solution. Only a Home Secretary, by his own actions, can do anything to change the situation for the better. It is clearly his responsibility, and we want to know what he proposes to do to ease the situation, which will soon again become explosive. The situation is very depressing, but at least we can agree where the responsibility lies.
4.1 p.m.
Lord Allen of Abbeydale: My Lords, I shall keep well within my time, but I should like to make one or

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two points in a debate which touches on some of what we shall discuss next week on the Motion about the Civil Service.
As an ordinary newspaper reader, I thought it a little odd that, at a time when the Home Secretary was saying that prison conditions should be made more austere, it turned out that some of those for whom he was responsible were in the habit of sending out prison officers to buy their wines and lobsters. I could not help thinking that in those distant days when I was deputy chairman of the Prison Commission, a body which in its time stood a little aloof from the Home Office, we might have known that we were not carrying out the Minister's wishes. Also, although obviously we were lacking in management skills in those days, I like to think that we would have had the nous not to put into effect a decision to transfer prisoners to Northern Ireland at a time calculated to cause the maximum possible political embarrassment to the Government.
There is a much more serious point. When I joined the Home Office, the chairman of the Prison Commission was Harold Scott, who went on to hold two Permanent Secretary posts and ended a spectacular career by being made commissioner of police for the metropolis. His predecessor, Alexander Maxwell, another career civil servant, went on to become one of the great Permanent Secretaries at the Home Office and masterminded the work leading to the very important Criminal Justice Act 1948.
With their wide experience of other parts of the Home Office and their background knowledge of government, civil servants of that calibre were able, during the time they ran the prisons, to make a special contribution to discussions with Ministers on penal policy in general, whereas someone brought in from outside for his management expertise can hardly be expected to be equipped to make any such contribution. I do not imply any criticism of the highly paid Mr. Lewis, who, as my noble and learned friend Lord Woolf explained, has achieved a good deal, even if rather too many things seem to have gone wrong recently. I am also glad that the noble and learned Lord paid a special tribute to Mr. Pilling, the previous head of the Prison Department.
Of course I recognise that since those days long ago matters have greatly changed and there have been the various developments of which we have heard. The problems have become more complicated, with the increased number of prisoners, problems of drugs, ethnic minorities and so forth. However, I am still concerned about the operation of a more or less independent special agency and its possible impact on the fragmentation of the Civil Service, given that one of the fundamental principles of Northcote Trevelyan was the unity of the service. That is something that we shall give up at our peril.
Looking at the sequence of recent events, I think that Mr. Howard has been unlucky. That tends to happen to Home Secretaries from time to time. However, I cannot accept that there is a sharp distinction between policy and operations and between policy and its implementation, notwithstanding the precedent set by the noble Lord, Lord Prior, in Northern Ireland and by Mr. Kenneth Baker when he was Home Secretary.
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My thoughts naturally turned to events in 1966, when there was an abundance of prison escapes, in particular that of George Blake. I have reread the debate on the motion of censure moved against the noble Lord, Lord Jenkins of Hillhead, at that time (although he was not then Lord Jenkins). The debate was a little unreal, in that it turned merely on the form of the inquiry that the Home Secretary had set up. But deep passions were aroused and it was a memorable parliamentary occasion. It is of interest that nevertheless there was no demand for the Home Secretary's resignation and also that the Home Secretary unequivocally accepted full responsibility for what had gone wrong.
The noble Lord, Lord Rodgers, in opening the debate, referred to the escapes from Parkhurst and the comments by Sir John Woodcock about confusion in the Prison Service as to where responsibility rests. I do not propose to pursue that issue in any detail. However, we shall all be interested to learn when the Minister winds up the debate whether the decision to move Mr. Marriott was taken solely by Mr. Lewis and simply reported to the Home Secretary as an operational decision. I notice that when the Home Secretary announced that move in the other place he simply referred to it in the passive tense without answering that particular question.
I should like to refer to one other recent incident. On 1st December (col. 699 of Hansard refers), I asked a Question about the regrettable number of assaults on prison officers. In reply the noble Baroness gave a helpful list of what was being done. However, I wondered whether that material was simply supplied direct by the Prison Service or whether it was filtered through the Home Office. The Minister explained that a reduction in the level of violence was a strategic priority. The Prison Service itself put that rather differently in its own statistical return, in what I regard as one of the most delightfully ambiguous sentences I have ever encountered in an official publication. The sentence reads:
"The number of assaults on staff, prisoners and others, which account for about five per cent of all offences is now one of the key performance indicators of the Prison Service".
It sounds exactly like a classic formula for increased productivity.
More seriously, I believe that it is the Minister who settles the key targets for the year. I wonder how that is done. Is it basically an estimate of what the Prison Service thinks that it can achieve? Any enlightenment that the Minister can give us on these matters and the process which is gone through will be received with great interest.
Finally, perhaps the Minister will either later today or by correspondence clear up one small mystery. In the Next Steps review published by the Government last month, the section on the Prison Service states that by March 1994, the target for the year 1993–94—that no prisoners should be held three to a cell designed for one person—had been achieved. I had always thought that targets were hit rather than achieved, but we shall let that pass. The review also states that a key target for 1994–95, the current year, is,

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"to ensure that … the average number of prisoners held 3 to a cell in accommodation which is intended for one prisoner is fewer than in 1993–94".
As we are told that the final figure for the previous figure was nought, at first sight it is not clear how that figure could be reduced, but I realise that it is my own lack of management training which makes me unfitted to answer for that conundrum.
4.13 p.m.
Baroness Gould of Potternewton: My Lords, before intervening in the debate, I must again declare my interest in that I am acting as an adviser to the Prison Officers' Association. First, I thank the noble Lord, Lord Rodgers of Quarry Bank, for initiating this timely debate. It is made even more timely by the figures produced yesterday which indicated that prison riots had risen in 10 years from 38 to 146 at an estimated cost to the taxpayer of £39 million.
The serious erosion of accountability with regard to prison matters has developed since the Prison Service became an executive agency in May 1993. That has been typical of the pattern of agency status since the Next Steps initiative was announced in 1988. The disaster at Whitemoor, the escape from Parkhurst and the rioting at Everthorpe have resulted in no one accepting the blame or responsibility. Perhaps the phrase, "Success has many fathers but failure an orphan is", is appropriate in this instance. Such a series of major errors, of which there had been warning in advance at Parkhurst and Everthorpe, is no coincidence. Either policy or operation must be at fault. Yet the two people responsible, as has been said, both deny that it had anything to do with them.
The continued devolution of powers and responsibilities within the Prison Service has resulted in less and less parliamentary accountability. Everyone can deny responsibility. Yet the inescapable fact is that it is to be the Secretary of State and his Ministers who have to be ultimately responsible. At the end of the day they have to be responsible for both policy and operation of the agency. The reality is that one cannot divorce policy from operation.
The document, Questions of Procedure for Ministers, published in 1992 on the Prime Minister's authority, well after agencies were established, states:
"Each Minister is responsible to Parliament for the conduct of his or her department, and for the actions carried out by the department in pursuit of Government policies or in the discharge of responsibilities laid upon him or her as a Minister".
That must contradict the Home Secretary's claim on 10th January that,
"With regard to operational responsibility, there has always been a division between policy matters and operational matters".— [Official Report, Commons, 10/1/95; col. 40.]
As a result nobody is accountable for the operation in terms of Parliament. A 90-minute cross-examination of the director general every two years by the Home Affairs Select Committee in another place hardly constitutes accountability.
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The issue of blurred responsibility is enhanced, as the noble Lord, Lord Rodgers, said, by the Director General of the Prison Service having a key policy role as outlined in the framework document. The removal of information from the public sphere is hardly consistent with the statement of purpose, vision, goals and values in the business plan of 1994–95 which states:
"Integrity is fundamental to everything we do. We will meet our legal obligations and act with honesty and openness".
Those are fine words in a glossy brochure. But openness is hardly the byword, particularly in respect of the private prisons, when information is denied on the ground of commercial confidentiality. That failure to address the problems of accountability and responsibility and the lack of leadership, has had a serious effect on the morale of all those who work in the service.
The policy leadership in the Prison Service is in a complete muddle. New and ill-considered changes are announced with little consultation or thought as to the effects in real terms, not least the effects on staff. A recent survey by the Prison Governors' Association reveals staggeringly high numbers who say that they cannot think, sleep or concentrate. David Roddan, the PGA general secretary said that the main culprit was the burden caused by the month to month policy changes of the Government, and the ultimate consequences for the administration. Those changes have ranged from the Criminal Justice Act 1991, to market testing and the introduction of privatisation and, now, the austere regimes of the current Home Secretary.
When the Woolf Report was published in 1991, prison officers, other penal interest groups and the Government accepted it as the definitive future for the Prison Service. We have seen its virtual abandonment by the Government. That lack of consistency and gradual erosion of the conditions in which officers work on a day to day basis is at the root of the loss of morale. I hesitate to disagree with the noble and learned Lord, Lord Woolf. But in a Prison Service staff attitude survey, published last year, 60 per cent. of prison officers had worried about their physical safety at some time in the previous six months. A staggering 91 per cent. agreed or strongly agreed that,
"the people who run the prison service don't care enough about the people who have to deal with prisoners face to face",
while only 19 per cent. felt that they worked for a well managed service. That is hardly a vote of confidence for either the Government or the Director General of the Prison Service.
In his report the noble and learned Lord, Lord Woolf, referred to prison overcrowding as the most corrosive influence on the prison system and to the fact that an overcrowded prison is an unstable prison. The prison governors have called on the Home Secretary to introduce a legal limit on gaol overcrowding to avert the risk of riots. But overcrowding is still a problem.
However, even prisons which are undercrowded can experience problems from prisoners who should be in more secure conditions but are placed in lower security conditions. Speaking to the Select Committee in the House of Commons last week, Mr. Lewis believed that the prison population is becoming more violent and

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more volatile, and that there is a serious problem now in respect of secure accommodation. Combined with longer times out of cell, that can make inmate population difficult to manage; and the staff certainly feel less secure.
That was a contributory factor in the disturbance at Everthorpe when it was estimated that a number of prisoners were disruptive and would have been better placed in more secure conditions. But those conditions were not available. The Chief Inspector of Prisons, Judge Tumim, in his annual report in 1994, said:
"If regular major disturbances are to be avoided, the Prison Service needs to develop a coherent policy towards the control of Prisoners in Category C prisons, making better use of the secure accommodation".
The pressure on space has also meant too many prisoners being accommodated a long way from their homes, creating a sense of isolation and causing more control problems.
Many prison staff feel that the amount of time that prisoners spend out of their cells has become unmanageable, not because they disagree in principle, but unless it is backed up with activities and staff to occupy the prisoners, control problems can quickly build up. With up to 60 prisoners out of their cells and as few as two staff to manage them, gang cultures, bullying, no-go areas and the passing of drugs can happen almost unchecked. What is needed is an understanding of this problem by the policy makers. Only by having more staff on duty and having more educational and constructive activity for the prisoners, coupled with full management support, can this be overcome.
This also relates to the question of training. The noble and learned Lord, Lord Woolf, and Judge Tumim have both called for more officer training, yet in the new private sector prisons, which we are told are to be the models of the future, the officers receive only seven weeks' training—half that of officers in other prisons, even though the 13 weeks they receive is grossly inadequate.
A further concern is the new business ethos of the Prison Service. Of course prisons must be run efficiently; but key performance indicators should not represent the absolute judgment of a prison. Often the indicators conflict, or in many situations they may not represent what is best for the management, for that prison at that particular time. We have seen this at Everthorpe, one of the 12 prisons that might be subject to market testing, where the governor—under severe pressure to increase the time out of cell (a key performance indicator) allowed all the prisoners out of their cells the night after the first riot. That was a major factor in the second night of rioting.
Finally, I wish to refer to under-resourcing and under-staffing. Since the 1987 Fresh Start agreement, it is estimated that there has been an equivalent of 4,000 fewer officers on duty arising from hours, including overtime, being reduced from an average of a 57-hour week to a 39-hour week.
We shall no doubt hear from the Minister that there has been an increase in the number of officers employed. That is true, an increase of approximately 4 per cent. in the past two years—mainly in private
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prisons—to cope with an increase in the prison population of 17 per cent. The resulting increase in pressure on officers' time has meant that many tasks which are important to the security of the prisons are not being done. Cell searching in many institutions is virtually non-existent and constructive regime activities and education programmes have been reduced. Although there are now more officers than 25 years ago, no provision has been made to take account, for instance, of the reduction of home leave, of the increased time out of cell or for visits. As a consequence, understaffing is still a problem.
What is needed is for the basic job of security to be prioritised and the return to a stable regime and also the return to the core policy of the Woolf agenda. That needs money and resources, but the Government have to accept that responsibility. Not to do so will allow the present feelings of concern and anxiety about the prison system in this country to continue.
4.23 p.m.
The Earl of Mar and Kellie: My Lords, I welcome the opportunity of adding to the discussion of the management of prisons and to thank my noble friend Lord Rodgers of Quarry Bank for calling this debate. It is aimed at the seemingly parlous state of the Prison Service in England and Wales. I should say that I speak today as the one-time prison social worker of Scotland's most northerly prison, Porterfield, in Inverness. I speak also as a member of the visiting committee of the Young Offenders Institution at Glenochil in Clackmannanshire.
While I acknowledge that the Scottish Prison Service has its problems, I have the distinct feeling that the English Prison Service is faring even less well. Perhaps the most vital indicator of this has been the poor state of industrial relations within the Prison Service. The effect of all this is that in many a prison we may well have not just the usual "us" and "them" divisions between the staff and prisoners, but we may also have deep divisions between management—that is the governors—and the uniformed staff. My first point is that this three-way division needs to be attended to as a priority because it has such a chronic effect on the life of the prison.
My second point relates to one of the fundamentals of imprisonment. On my first day as a social work student on placement at the former Borstal institution at Polmont in Stirlingshire, the point was made to me by several prison officers that the prison staff had to be in control at every moment of the day and that nothing should be done which jeopardised that control. The British prison services have traditionally rejected the worst of the American model in which the staff secure the perimeter and the prisoners run the prison. This, of course, leads to a complete failure of the responsibility of care for individual prisoners and especially vulnerable prisoners. On a day-to-day basis, this retention of control has to be the central core of the prison officers' work. All the highly desirable medical, recreational, industrial and social work activities of the prison hinge on the retention of control.

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I am concerned about the design of some recent prisons in which the cells have been arranged in cul-de-sacs. Experience has shown that this can lead to these areas becoming no-go areas for staff. Ironically, the traditional and much maligned galleried prisons—the so-called Victorian prisons—do not suffer this problem as the gallery is continuous and always leads to somewhere else. So my second point is about the need for well thought out plans for new prison wings and halls and the avoidance of staff no-go areas.
My final point is about the regime for longer sentence prisoners. I believe that the state has a duty to keep the longer term prisoner alive and alert to the ever-changing society outside to which she or he will return one day. This means that the conditions and regimes of longer term prisons will appear to have more liberal regimes and better facilities than short-term or local prisons. I accept that this is open to abuse by those prisoners who can never settle to get on with their sentence. For those prisoners, more controlled regimes must be available.
Striking the right balance in the design of the regime will be essential. The tabloid description of Parkhurst as being "Marriott's Hotel" reflects how the Government may have got it right in respect of keeping the prisoners alive and alert, but may have failed to retain control while doing so. It is easy to create a regime, but more difficult to secure the acceptance of its privileged status by some of the prisoners. So my final point is that the development of regimes for longer term prisoners needs further and urgent attention.
4.28 p.m.
Viscount Tenby: My Lords, it often seems to me that debates in this House can be divided between those of a historic and constitutional nature—set occasions of some drama at which this House excels—and those no less important on matters of considerable topical interest. Such a debate is before us today, thanks to the initiative of the noble Lord, Lord Rodgers of Quarry Bank. He led off with a cogent and powerful speech.
My only regret is the attenuated list of speakers. In fact, I cannot recall when I was last so high in the batting order as a tail-ender. One of the troubles of being a tail-ender is that many of one's best birds have already been shot, notably by the noble Lord, Lord Donaldson of Kingsbridge. But I comfort myself that some tunes bear repetition.
In a debate enriched by authoritative speakers from both the law and the administration of the law, I feel a pygmy indeed. My only excuse for dipping a toe into these swirling and muddied waters is that as a magistrate I have, on occasion and only after the greatest care and with ultimate regret, had to send men and women to prison. As a magistrate, too, I very properly have to visit prisons from time to time. It is clearly undesirable to commit people to detention without any idea of what awaits them there. Accordingly, the way in which prisons are run and their success rate in both protecting the community from those inside them and at the same time ensuring that the lives of the inmates themselves
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are structured and productive, is a matter of considerable interest and indeed anxiety to me and, I believe, to many of my colleagues as well.
This is not the time to go into the oft-raised and debated claim that we send too many offenders to prison—or, to be more precise, that we send too many to prison who ought not in any circumstances to be going there. We are concerned today with the current running of the Prison Service—or rather with the state of disrepair and uncertainty in which it finds itself.
However, sending more people than we should to prison in one respect creates what is perhaps the most fundamental problem of all confronting the service today—it has been mentioned before—namely, overcrowding. Overcrowding increases tension among prisoners and prison officers alike. It brings with it the dangers of placing high-risk prisoners in inappropriate prisons. It lowers the morale of prison officers. But, most important of all, it prevents proper control in prison and invites the sort of nightmare events that have recently taken place in Whitemoor, Everthorpe and Parkhurst.
Just as we seem unable to make up our minds about what sort of criminal justice system we want—the current state of play being that we have replaced the carrot with the stick —so, inevitably, has that uncertainty paralysed the Prison Service. How do we overcome that paralysis? We do it not by knee-jerk reactions to every incident, nor by cobbling together nostrums to please the matrons at Conservative Party conferences, but by a reasoned approach, such as my noble and learned friend's, or a measured response, making use of all who are engaged in the Prison Service. In the event, there is no shortage of constructive advice—particularly from my noble and learned friend Lord Woolf, who succeeded in his report, quite remarkably, in uniting all participants in the service in its praise, and who has today rightly paid tribute to the progress made in recent years as a result of that report and in particular paid tribute to the immediate past director-general and the current one.
What first needs to be defined unambiguously—and it is at the heart of this debate—is the chain of command. Coming, as I do, from an older and more settled generation, I find it difficult to accept the concept of the separation of policy making from operational control. But even if, for the sake of argument, it may be possible to achieve this—and even a former commander of the 8th Army might have had his problems in coming to grips with this proposition—the one who holds operational responsibility must in the long term bear responsibility for all shortcomings in the service. And in turn, the one holding policy responsibility must surely see that that is the case and that that is done. That seems to me to be elementary.
Some of the relevant factors that contribute to this state of affairs have been or will be mentioned. There is the difficulty for prison staff of performing a complete about-turn. We know all about that in the magistracy: substituting the stick for the carrot while dealing with what is at the best of times an extremely volatile population. There was the lack, which is now being remedied one gathers, of a geophone detector system at

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Parkhurst, which is a Category A prison and has requested its installation for years, when the immediately adjoining Category B prison, Albany, had one. There was the disquiet of both HM Inspector of Prisons and the chairman of the Board of Visitors over security at Parkhurst weeks before the recent incident. One wonders at times why one has people in these sorts of positions if their reports are pigeon-holed. The handling of that same situation famously succeeded in alienating both the Prison Governors' Association, ineptly described at the time as a trade union, and the Prison Officers' Association. The discoveries at Whitemoor, the rioting at Everthorpe—all these and more are the symptoms of a service that is unsure of itself and of its role.
Some initiatives surely hold out promise for the future: in particular the "points for prizes" system that is being tried at Deerbolt. Instead of privileges being automatically available on arrival, prisoners must earn them by their attitude and achievements during their sentence, thereby increasing their self-respect. On the down side, I confess to having reservations about the plans for drug testing through compulsory urine tests. The distasteful truth is that drugs, particularly soft ones, are freely available in prisons. It may be that in their milder form —for example, marijuana—a blind eye is turned to their use: a relatively contented prison is preferable to one that seethes with discontent. But if prisoners receive a sentence for the use of drugs where cautions or small fines are coming to be the normal disposals in the outside world, a sense of grievance, however irrational, can quickly build up.
Let me make it quite clear that I am extremely worried about the drug culture in our prisons. But until we can devise some effective method of controlling the supplies that are being smuggled in, such testing will do nothing but tell us what we already know, and in doing so stir up a hornets' nest.
Very few Members of this House, and very few people outside it, query the need for strict but fair regimes in our prisons. Let us forget prison officers shopping for luxury foods in local supermarkets, unlimited phone calls, and attempts to make prisons as much like home as possible—they are not, and they never will be. Let us be more careful about the appropriateness and frequency of home visits generally. On the reverse side however, let us give prisoners a full and varied life of education and work. We should not disperse them to prisons where visiting becomes difficult for relatives and friends. Above all, make them feel that they are being treated firmly but fairly.
All this will cost money. That is not because throwing money at problems makes them go away—it does not automatically sort them out—but because creating these kinds of conditions will inevitably require increased staffing levels. I ask the noble Baroness the Minister, with her customary efficiency and courtesy, to provide assurances that the Government will not give way to Treasury pressure by skimping on staffing in our prisons. In the final analysis, it is not a question of who has the best business plan, important thought that may be in increasing efficiency, or indeed even of whether the private sector is tackling the problems more
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effectively. Whoever the players may be, the facts of prison life remain the same. Two facts, however, stand out above the rest. The first is that cutbacks and under-staffing are creating most of the problems that face us today. The second is that indecisiveness and uncertainty at the top are contributing to, rather than solving, those problems.
I have to say with some regret that there appears to be little evidence that those who are in charge of the Prison Service today, whoever they may be, have a coherent and workable strategy for its future. Without such a strategy, we shall run many risks in the months to come. I fear that we may now be sowing the seeds of what will be a bitter harvest.
4.39 p.m.
Lord Harris of Greenwich: My Lords, I think it will be generally agreed by all who have listened to the discussions we have had today that this has been a valuable debate. Not least, we have had the opportunity of listening to notable speeches from the noble and learned Lord, Lord Woolf, and from my noble friend Lord Rodgers.
The matters before us today have been of high public importance. They relate to the management and the current state of morale of the Prison Service at a time when the number of inmates is rising remorselessly—a process which, of course, is being actively encouraged by Ministers. We were reminded today of the conference speech of Mr. Howard, in which he announced that prison worked. That was exactly the opposite of what Mr. Douglas Hurd said when he was Home Secretary. Mr. Howard also indicated that prison conditions were to be made more austere. He made that statement on the basis of a single visit to a prison; namely, Brixton. I do not know how one could make conditions at Brixton more austere than they are at the moment.
Over the years I suppose I have had the opportunity of visiting between 70 and 80 prison department establishments. The idea that offenders are living in conditions of opulent splendour may be believed by a handful of tabloid journalists; but it is hard to believe that any serious-minded person accepts such nonsense for a moment. Quite apart from that, the purpose of custody—we must remember that our prisons are full of thousands of people who have not been convicted of any criminal offence; they are remand prisoners—is not to create thoroughly unpleasant conditions for inmates; it is to deprive them for the time being of their liberty. That is punishment enough. One only needs to read the report of the noble and learned Lord, Lord Woolf, to be reminded once again of the squalor of much of our prison estate and the grievous effects on a prisoner's spouse and children of their imprisonment, often in an establishment hundreds of miles away from home. That is why the report and its recommendations were so warmly welcomed by many people, both inside and outside the Prison Service.
I am sure that the noble Baroness will tell us in a few moments that the recommendations of the noble and learned Lord will still be implemented. However, there are many in the Prison Service who doubt the

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Government's resolve. There are many, including some of the most senior governors in the service, who believe that policy is increasingly being made not by the prison department, but by the editors of the Sun and the Daily Mail newspapers. Of course, politicians must have a decent regard for the concerns of a public which has become increasingly alarmed by the rising level of serious crime. But that does not mean that one surrenders in the face of every gust from tabloid newspapers. Sometimes it is necessary to be resolute and explain one's case firmly and calmly. That is what the noble Viscount, Lord Whitelaw, did when he was Home Secretary, and so did Mr. Douglas Hurd.
My noble friend Lord Rodgers referred to the case of Mr. John Marriott, the governor of Parkhurst. In a letter to governors published in the press, Mr. Lewis, the Director General of the Prison Service, said that he was,
"rightly noted and appreciated for his dedication, humanity, courage and innovation".
I am sure we all agree that that was a warm endorsement. However, it was delivered just after Mr. Marriott had been removed from his position as governor of Parkhurst. The television cameras focused lovingly on this man of courage and dedication as the car carrying him left Parkhurst. It must have been a moment of intense grief for Mr. Marriott and his family. And, of course, it was done without any form of due process. Mr. Marriott was given no opportunity of putting his case at a disciplinary inquiry. In contrast, that opportunity was given by the noble Viscount, Lord Whitelaw, when he was Home Secretary, to the then governor of Brixton, after the escape of Mr. Tuite, an alleged IRA offender. It was denied to Mr. Marriott.
Is there any wonder therefore that there is now such bitterness in the Prison Service? Indeed, there is now the possibility that the Prison Governors' Association will take the department to court on this issue. It is a sad day when the leaders of the Prison Service are compelled to consider such action in order to secure justice for one of their number. And this is taking place at a time when there is an almost unprecedented escalation in the number of inmates. As my noble friend Lord Donaldson said a few moments ago, their number has risen by nearly 20 per cent. in the past 24 months. It is extraordinary that at such a time the Government are prepared to continue with the follies of their market-testing policy in the prisons.
I indicated at the time that I had no objection to the original proposal of a carefully monitored experiment at a new private sector remand establishment at The Wolds in Humberside. Instead, the Government have indulged their more doctrinaire supporters by producing a list of existing establishments which may be privatised. Many men and women in the Prison Service therefore, confronting this explosion of inmate numbers, are also facing the prospect that their establishments may be handed over to the private sector. The consequences have been inevitable. The report produced by the Home
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Office inquiry into the serious disturbances at Everthorpe which occurred on 2nd and 3rd January this year, said,
"A substantial proportion of management time had, in the months prior to the incidents, been directed towards a response to the establishment's inclusion in the market testing bid procedure. This caused uncertainty amongst staff and prisoners about the future of the establishment and adversely affected staff morale. This process remains unresolved".
That is the position not of the Government's critics, but it is contained within a Home Office inquiry report. It is not only the problems of Everthorpe which concern us. The prison department has disclosed one of the consequences of overcrowding and the deteriorating atmosphere in many prisons. As the noble Baroness, Lady Gould, said a few moments ago, it was admitted that the number of disturbances in prisons had risen from 38 in 1985–86 to 146 last year—an increase of nearly 400 per cent. In the past five years the number of assaults on staff increased from 1,750 to 3,204—a rise of around 80 per cent. I accept at once that there are other reasons for those increases as well as overcrowding. Drugs is certainly one of the factors. But one cannot possibly ignore the relevance of gross overcrowding.
As many of us recognise, the prison population is volatile and the majority of prisoners are young. Many inmates are inadequates and others are mentally ill. Many of them should not be in prison in the first place; they should be out in the community or, in the case of the mentally ill, in mental hospitals. Others have been convicted of offences of violence and can be potentially dangerous. They require significant security arrangements both to keep them in custody and to ensure, as far as possible, that they do not disrupt life in the prisons which hold them.
We must accept that, given the situation I described, it is possible that there may be more disturbances in our prisons in the future. The people who will have to deal with those disturbances are members of the Prison Service. The overwhelming majority are decent and responsible public servants doing a difficult job on behalf of the whole community. Yet the Government have chosen to exhibit total indifference to rising prison numbers, a disposition to scapegoat members of the service when things go wrong, and to continue with their doctrinaire programme of privatisation thus making staff working in an increasingly violent environment believe that their jobs are now at risk.
The House should recognise that there is now real anger in the Prison Service about the way in which it is being treated. The standing ovation accorded to Mr. Marriott by the Parkhurst staff on his departure is just one indication of that. I hope that Ministers will realise the perilous situation which has now arisen. If they do not, the consequences could be extremely serious.
4.50 p.m.
Lord McIntosh of Haringey: My Lords, the House will be grateful to the noble Lord, Lord Rodgers of Quarry Bank, for initiating this important and timely debate. The Motion which he moved so ably is worded largely as a topical debate, but I am sure that he will be

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as glad as I am that the debate we have actually heard, although it has covered topical issues, has also covered many of the more fundamental problems which underly the crisis in the Prison Service. When I say "crisis in the Prison Service" I am not speaking for myself. Judge Tumim, the Chief Inspector of Prisons, on 4th January last, described the Prison Service as having "a crisis of confidence". From the debate that has taken place—incidentally, without any intervention from the massed ranks of the Conservative Benches—we can all confirm that the House has been unanimously of the view that we have a crisis and that there are major problems which have to be resolved.
I wish to refer first to the topical issues. The noble Lord, Lord Rodgers, rightly drew attention in the first instance to the extraordinary position in which we find the Home Secretary. He answers, as do all Ministers, to Parliament for his actions. Ultimately, he answers to Parliament for the actions not only of his own department but of the agencies which are set up under his department. He certainly has had some answering to do in the past few months. The noble Lord, Lord Allen of Abbeydale, described him as having bad luck. I think he did so in the knowledge of having worked with and seen the actions of very many Home Secretaries over recent years. Certainly, the present Home Secretary in the past few months has seen an unprecedented increase in the breakdown of communications, in the breakdown of security and in the breakdown of morale within the Prison Service.
I am not suggesting—indeed, no one is suggesting—that the Home Secretary is responsible for operational matters. No one has been heard from the Opposition Benches, either here or in the House of Commons, demanding the resignation of the Home Secretary. However, it has to be said that the Home Secretary has been consistently denying the ultimate responsibility which must be his not only for operational matters but even for the policies which underlie the operational problems.
It cannot be said that he has not been warned. He was warned of the problems four years ago by the noble and learned Lord, Lord Woolf, after the riots in Strangeways. We have had a most welcome reminder of that during our debate. More recently, he was warned by Mrs. Seligman, then the chair of the prison visitors of Whitemoor, about the problems which would arise there. He was warned by Judge Tumim about almost all of the problems which have since become evident. As far as I can understand—perhaps the Minister will tell me if I am wrong—many of those warnings were marked for his personal attention and the personal attention of the Director General of the Prison Service. If indeed they were marked for his personal attention, someone must have made the decision either to show them to the Home Secretary or not. If they were shown to the Home Secretary, surely it is incumbent on him to say to Parliament that he saw the warnings and that he chose, for whatever reasons he may give to the House, not to take action on them; or if he was not shown them, we ought to know why he was not shown them, because Judge Tumim in particular has, as part of his terms of reference, direct access to the Home Secretary, and that
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ought not to be denied under any circumstances. Most recently we had the report of Sir John Woodcock on Whitemoor Prison. The report, confirming the warnings which had been given before, calls directly on the Home Secretary for action. We have no indication that that action is being taken.
Indeed, when we look at the reactions of the Home Secretary to some of the crises that have arisen in recent months, it can only be said that his policy reactions have been ill-considered and probably even dangerous. A number of noble Lords, including my noble friend Lord Longford, referred to the problem of home leave and the almost instinctive knee-jerk reaction of the Home Secretary to a very few cases of serious over-staying by those on home leave by an overall reduction in home leave of 40 per cent. In any tolerable and constructive prison regime, if I may use the words of the noble Lord, Lord Allen of Abbeydale, home leave is surely an essential. It is essential for prisoners who are going to be released to be prepared for that release in a civilised way. For home leave to be denied as a reaction to a very few offences committed on home leave is not rational and is not worthy of anyone who holds the position of Secretary of State in Her Majesty's Government.
A number of noble Lords referred to the distinction between operations and policy and to the desirable relationship between the Home Secretary, the Prison Service and the Home Office. The noble and learned Lord, Lord Woolf, called it a structural stand-off, which I thought was very nicely put. But what has the Home Secretary's reaction been? In the three words of Jack Straw, his reaction to particular complaints has been "Not me, guv"; in other words, it has nothing to do with him. But in terms of an objective examination of the relationship—it is the relationship between the Prison Service, the Home Office and the Home Secretary which has been the subject of explicit criticism by, among others, Sir John Woodcock—all the Home Secretary does is to muddy the waters even more.
What on earth did he mean on 19th December when he said in the House of Commons that he was going to,
"set up a new unit outside the Prison Service to strengthen Ministers' ability to supervise the performance of the Prison Service"?— [Official Report, Commons, 19/12/94; col. 1400.]
What can that mean? We have operations carried out by the Prison Service, we have policy carried out by the Home Office under the Home Secretary, and now we have a new unit to mediate between the two. If the Minister can enlighten us on what that means, we shall be very much better off than was the House of Commons when it received that extraordinary statement.
However important—and they are important—the present crises have been, behind them lie failures of policy. It is failures of policy for which we must blame the Government and the Home Secretary. First, there is the failure of policy which is inherent in the ideas of privatisation and market testing. The noble Lord, Lord Harris of Greenwich, has very properly referred to that. We may, as the noble Lord, Lord Allen, said, have fun with Group 4, but we must also look at the amount of disruption which has been caused in the Prison Service not just by the privatisation of new prisons but by the proposal that 12 existing prisons are to be privatised. All

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this is happening without any real evidence that privatisation works. Where, after all, is the report on Blakenhurst?
Judge Tumim's reports are usually published within four months of the completion of the inspection. This particular report should have been published in September last year. We understand—but only from leaks, of course—that there are serious criticisms of the regime in Blakenhurst in that report. Judge Tumim's report should now be published as urgently as possible and we should know whether there is any evidence about the privatised prisons—we must remember that this is a real prison and not a remand prison —a reasonable time after their establishment.
The second problem referred to so well by my noble friend Lady Gould is morale in the Prison Service. The Home Secretary appears to have forfeited the respect and confidence not just of the prison officers, who may be expected on occasion to disagree with what he does, but of the prison governors themselves.
Thirdly, and most important of all, there is the issue of this Home Secretary's view of penal policy which has resulted in the extraordinary level of overcrowding which we now have. Its effects are well known and have been referred to by a number of noble Lords during the course of the afternoon. We know about Strangeways, Whitemoor, Everthorpe and Parkhurst. Do not let me be told that that is not relevant to Whitemoor and Everthorpe because they are themselves not overcrowded. The reports on the incidents have made it clear that what has been wrong with Whitemoor and Everthorpe, although they are not overcrowded themselves, is that the wrong category prisoners have been in those prisons because of overcrowding elsewhere. I suspect that the same will be true of Parkhurst when the report appears where the accommodation and security procedures for one category of prisoner are appropriate only for a lower category.
On the surface we have many damaging effects of overcrowding. But below the surface we have what the noble and learned Lord, Lord Woolf, calls "insidious stress" and what my noble friend Lady Gould referred to as the pressure on prison officers. The one recommendation which the noble and learned Lord made in his report which was not accepted by the Home Secretary was that on overcrowding. I suggest to your Lordships that it is the deliberate policy of this Government, expressed most clearly in the Home Secretary's speech to the Conservative Party conference in 1993, to make prison more austere and to encourage the magistrates and higher courts to award longer sentences. That has given rise to an increase of nearly 20 per cent. in the prison population in a period of only two years.
At this rate overcrowding can never be resolved. It will not be resolved by building more prisons, which is a long-term policy and which is in doubt in itself. What is required is a more enlightened penal policy which takes account of the need for a tolerable and constructive regime in prison itself. Instead of saying, "Prison works", it should acknowledge what all
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progressive prison regimes throughout Western Europe—but not in the United Kingdom —acknowledge that prison is the last resort. We have too many people in prison and they continue to be treated badly. While that happens, boils will erupt on the surface as they have in the past few months. But it is the underlying failures of the penal policy of this Government which are ultimately responsible for it.
5.4 p.m.
Baroness Match: My Lords, this has been and is indeed a very important debate. I understand the many concerns expressed in the debate this afternoon in the light of recent incidents in the Prison Service.
In opening the debate the noble Lord, Lord Rodgers, dealt substantially in innuendo and speculation as to what was said at meetings which he did not attend and speculation about who did what in situations where he was not present. Posing questions is one thing, and that is entirely understandable and proper in the circumstances following these events. However, to make statements such as "It is fair to say that Mr. Marriott was sacked", as the noble Lord did, was irresponsible.
My right honourable friend the Home Secretary reported to another place:
"The present governor is today being removed from his duties at Parkhurst. Pending the outcome of the disciplinary investigation and any subsequent proceedings, he will not be running any other prison in the Prison Service. When he has completed any assistance that he needs to give to the various inquiries now in hand, he will take up non-operational duties elsewhere. Six members of staff, including one of governor grade, will also be temporarily transferred to duties at other prisons. Both these actions are without prejudice to the outcome of the disciplinary investigation".—[Official Report, Commons, 10/1/95; col. 33.]
When the media, in the form of press, sound and television, reported that Mr. Marriott had been sacked, the director general and my right honourable friend the Home Secretary made it absolutely clear that that was not correct. The director general made it clear again before the Select Committee in another place. My right honourable friend the Prime Minister accounted publicly before the House. My right honourable friend the Home Secretary has answered for his part in this matter before Parliament. The director general has accounted for his performance and his responsibilities to the Select Committee. As I stand here before the House, my right honourable friend is appearing before a Select Committee, too.
I find it distasteful in the extreme that the noble Lord, Lord Rodgers of Quarry Bank, who is aware of the numerous public assurances, including the assurance that there is to be the Sir John Learmont review and disciplinary reviews, should insist that it will only be after assurances from me that he will accept these explanations.
So I am left with no alternative understanding of what the noble Lord is implying other than that the words of my right honourable friend the Prime Minister, the words of my right honourable friend the Home Secretary and the words of the Director General of the Prison Service are to be treated with great suspicion with the consequent slur on their characters and that I, a mere

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Minister of State at the Home Office, should be the only person whose word is to be accepted by the noble Lord. I believe that that is not in the honourable traditions of this House.
The noble Lord finds it amusing. He also made light, in the course of his speech, of the under-employment of Ministers in the Home Office. I want very quickly—and it will be very quickly, and will not be inclusive—to give a list of my own duties at the Home Office: the fire service, the probation service, race relations, charities, the Charity Commission, animals, dangerous dogs, pornography, obscenity, identity cards, data protection, animal research, constitutional matters including Euro-matters, race discrimination policy, religious discrimination policy, women's issues, coroners, by-laws, the Channel Islands, the Isle of Man, boundaries and electoral matters, civil defence and emergency planning. If that is being under-employed, I would invite the noble Lord not just to come and inspect my portfolio, but to inspect those of all the Ministers in the Home Office. I hope that we too will get the apology which he promised he would give if he were proved wrong.
In direct response to the Motion, perhaps I may make it clear—
Lord Jenkins of Hillhead: My Lords, perhaps the noble Baroness will forgive me for a moment. Why was it possible a few decades ago to run the Home Office, on the whole so much more efficiently, with fewer junior Ministers?
Baroness Blatch: My Lords, I am dealing with what the noble Lord, Lord Rodgers, said. He implied that because there are five of us —the Home Secretary plus four at the Home Office—somehow or other we did not have enough work to keep us employed.
Lord Rodgers of Quarry Bank: My Lords, I am very sorry indeed if I have misled the House in any way. That is certainly not what I said. I said very plainly that there has been a very substantial growth in the number of Ministers despite there being fewer responsibilities for the department. I juxtaposed that with the existence of the agency. With respect to the noble Baroness, she is getting unreasonably upset about perfectly legitimate criticisms of the Government of this country, just as it is unreasonable for her to say that I should ask her to answer all these questions when the Prime Minister appears in another place and cannot be asked questions here by noble Lords.
Baroness Blatch: My Lords, I think that I am doing my duty in defending the honour of my right honourable friends the Prime Minister and the Home Secretary. I base my information on facts, not press reports.
In direct response to the Motion, let me make it clear that the arrangements for policy-making, management and accountability in the Prison Service are clear. My right honourable friend the Home Secretary is accountable for the Prison Service. The director general is responsible for the day-to-day management of the Prison Service. The director general is directly accountable to my right honourable friend for the Prison Service's performance and operations and is also his
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principal adviser on prisons policy matters. Governors are accountable to the director general through area managers who report to him through two operational directors.
The noble Lord, Lord Rodgers, asked about the position of Ministers of State. I have already referred to them, but perhaps I should add specifically that the Minister of State who is responsible for prisons assists the Home Secretary with his responsibilities for the Prison Service under the framework document in the same way as he assists the Home Secretary with other responsibilities.
The distinction that I have set out between accountability and responsibility is fully consistent with the general position on ministerial accountability most recently expressed in the evidence by Sir Robin Butler to the Scott Inquiry. Ministers are accountable to Parliament for all the activities of their department, but that does not mean that a Minister is directly responsible for all the actions and decisions taken in his department. It has been accepted for many years that, while a Minister is accountable for all the actions of his department, he cannot be held personally responsible for all those actions.
The noble Lord, Lord Allen of Abbeydale, was concerned about the acceptance of responsibility. My right honourable friend the Home Secretary has made it clear that if his policies were found to be responsible for an event like the attempted escapes from Whitemoor or if he failed to implement anything that he should have implemented, he would resign. That is entirely consistent with the line taken by previous Ministers, such as my noble friend Lord Prior.
Baroness Seear: My Lords, I am afraid that I am deeply confused by the noble Baroness. She said that the Minister is responsible but that he is not personally responsible. What does that distinction mean?
Baroness Blatch: My Lords, I am saying that Ministers are responsible for the activities of any subject under their command, but they cannot be responsible for the individual actions of a prison officer, a prison governor or even—dare I say?—the director general. It would be for the Home Secretary or a Minister to be accountable. The chain is that I am accountable to the Home Secretary. The Home Secretary accounts to Parliament for the whole department and for all subjects within his remit. The noble Lord, Lord Jenkins, will know that no Home Secretary can be held personally responsible for the activities of a single individual who may be working in any one area of policy.
In the light of recent events, my right honourable friend has considered whether any change was necessary in the arrangements for the supervision of the Prison Service. A new unit has been set up in the Home Office to support Ministers in carrying out their duties in respect of the Prison Service in accordance with the agency's framework document. It is not intended as a substitute for the policy advice which is provided by the Prison Service to Ministers. It is a further step in the development of work which has been done since the Prison Service became an agency. The unit will be staffed by civil servants. The numbers will be entirely

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in line with the programme of work that is now being developed. The unit will report to Ministers and, of course, to the Permanent Secretary.
Let me turn now to the points which have been raised in the debate on the Prison Service generally. This debate clearly comes at a time when the Prison Service is under great pressure. There is no question but that recent events at Whitemoor and Parkhurst involved very serious breaches of security. They have damaged the credibility of the Prison Service in performing its basic task, that of serving the public by keeping in secure custody those committed by the courts. The Government and Prison Service are determined to learn from what went wrong and to put it right quickly and effectively.
Noble Lords have made it clear they are concerned about the Prison Service, and I understand their concern. Having said that, I believe that it is wrong and unhelpful to talk ourselves into thinking the Prison Service is in crisis. We should not ignore the progress the service has made in recent years. I should like to put recent events in perspective by saying something about the achievements of the Prison Service since 1979.
Physical conditions in our prisons have been transformed as a result of the most ambitious prison building and refurbishment programme since Victorian times. Twenty-one new prisons have been built since 1980, providing 11,285 new places at a cost of £1.2 billion; 13 of them have opened since 1991. Redevelopment of the existing estate has provided a further 7,500 places, mostly in new houseblocks. Another six new prisons are to be built with private sector finance. The first two, at Fazakerley on Merseyside and Bridgend in South Wales, are expected to open in 1997–98.
As a result of this sustained commitment to our prisons, over 95 per cent. of prisoners now have access to sanitation in their cell, compared to 46 per cent. in 1981. The service is on course to provide all prisoners with access to sanitation at all times by February 1996, the target recommended by the noble and learned Lord, Lord Woolf. That will mean an end to the much criticised practice of slopping out.
As recently as 1987, over 5,000 prisoners were sharing three to a cell designed for one prisoner. The practice of "trebling" was eliminated in 1994, and no prisoners have been held three to a cell since then. Furthermore, on 31st December 1994, 7,754 prisoners—that is, 16 per cent.—were held two to a cell designed for one. That is a far lower proportion than only a few years ago. All that has been achieved despite the very substantial rise in the prison population in the past two years, to which noble Lords have referred, and is due to the major building programme which has been, and is being, carried out.
The noble Lord, Lord Allen of Abbeydale, queried the point about trebling—where three prisoners share a cell designed for one. The noble Lord was absolutely right to say that no prisoners have been held three to a cell designed for one since March 1994. The service's target for the current financial year, 1994–95, is to ensure that the average number of prisoners held three to a cell is fewer than the previous year. I have referred
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to three prisoners having to share a cell designed for one. There is no trebling at all now. In 1993–94, an average of 81 prisoners were held three to a cell. The service's target for 1994–95 was to do better than that. It has done so. No prisoners have been held three to a cell since then.
Lord Allen of Abbeydale: My Lords, I do not want to interrupt the noble Baroness, but I do not understand what she has said. I shall, however, be content to read it in Hansard.
Baroness Blatch: My Lords, the point that the noble Lord ought to remember is that no prisoners are being held three to a cell. We hope that that will remain the case.
The pace of change and improvement has continued since the service became an executive agency in April 1993. Since then, there has actually been a 40 per cent. reduction in escapes; a 43 per cent. reduction in temporary release failures, and a 23 per cent. reduction in prisoners absconding. Prisoners are spending more time in purposeful activity founded on work, education and training. Until recently, it was not unknown for prisoners to spend 23 hours a day locked in their cells. Now, about half our prisons are unlocking prisoners for 12 hours or more on weekdays, and on average prisoners are spending over 26 hours a week engaged in purposeful activity. Furthermore, the average cost per prisoner place was actually reduced by 3 per cent. in real terms last year.
From what I have said, it will be clear that the Government are not backtracking, as some, including the noble Lord, Lord Rodgers, have suggested, on the seminal report on prisons prepared by the noble and learned Lord, Lord Woolf, and the subsequent White Paper, Custody, Care and Justice. I am grateful to the noble and learned Lord for the way in which he has recognised the Prison Service's achievements since his report was published. The White Paper, published in 1991, welcomed the Woolf Report and accepted almost all of its recommendations. Most of them have since been implemented. Progress has been made in all of the 12 areas identified by that White Paper as priorities.
The noble and learned Lord, Lord Woolf, and the Government both recognised that a balance has to be struck between security and control on the one hand, and just and humane treatment of prisoners on the other. That philosophy is at the heart of the service's work, and is reflected in its statement of purpose. However, in the light of recent events—I stress those words—it is clear that the service's priority for the present must be to focus on basic security and security procedures. I make no apology for that.
To that end, the first task is to implement the recommendations of the report of Sir John Woodcock's inquiry into recent events at Whitemoor. The Home Secretary announced on 19th December that he had accepted all 64 recommendations in that report. A timetable for implementation will be published very shortly.

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In addition, the Home Secretary has appointed General Sir John Learmont to conduct a comprehensive review of security. The terms of reference for this review are:
"in the light of the report of the inquiry into the attempted escape from HM Prison Whitemoor on 9 September 1994, to review physical security and security procedures in the Prison Service in England and Wales, and to make recommendations".
The Home Secretary has asked Sir John Learmont to report by December 1995 on progress made on the implementation of Sir John Woodcock's report. He has also asked Sir John Learmont to carry out an independent assessment of events at Parkhurst, and the findings of his reports will be published. Other immediate measures include security audits at all closed establishments, which are being carried out now.
The Learmont inquiry will not cut across the work of the inspectorate. The Learmont inquiry is to focus on one major aspect of the Prison Service's activities; that is, security. The inspectorate looks at the regime and conditions, including security, at specific establishments.
The noble Viscount, Lord Tenby, was concerned about geophones. Parkhurst is undergoing a major programme of building work, including essential security work. The installation of a perimeter alarm system, including geophones, had to wait—that was on advice—until building work was complete. The Home Secretary was advised that the system would not have functioned effectively while that building work was under way. Work on installing a perimeter alarm system began on 5th December—as your Lordships know that was before the escape—and will be completed by March.
An independent disciplinary inquiry led by Sir David Yardley into events at Whitemoor is under way, and a separate disciplinary inquiry into the events at Parkhurst, led by the Deputy Chief Executive of the Scottish Prison Service, will start shortly.
Noble Lords have mentioned the circumstances surrounding the removal of the governor of Parkhurst. As a disciplinary inquiry will be taking place, it would be inappropriate for me to comment on that in any detail. I can confirm, however, that the decision to move the governor was taken by the Director General of the Prison Service, not the Home Secretary. I should also emphasise that that decision was taken for operational reasons, to ensure effective, undistracted management of one of our high security prisons. It does not in any way pre-judge the outcome of the forthcoming disciplinary inquiry.
The Earl of Longford: My Lords, it is generally understood that the director general took that step at the firm suggestion of the Home Secretary. Is that incorrect? It is only understood.
Baroness Blatch: My Lords, I am not sure what the noble Lord means by "firmly understood".
Lord Harris of Greenwich: My Lords, what the noble Earl, Lord Longford, put to the Minister was that it was generally understood that the Home Secretary had
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indicated firmly that it was his suggestion that the governor of Parkhurst should be removed. The noble Earl asked for the Minster's response to that suggestion.
Baroness Blatch: My Lords, the noble Earl said that it was firmly understood. He did not say what the noble Lord has just said. The noble Earl said that something was firmly understood. Will the noble Earl repeat what he believed was firmly understood?
The Earl of Longford: My Lords, to the best of my recollection I said that the director general took that step at the suggestion of the Home Secretary. Is that correct or incorrect? That puts it in a simple form. The Minister has a lot on her mind. She could not understand the simple way in which I put it previously. That should be simple enough. Was that step taken at the suggestion of the Home Secretary?
Baroness Blatch: My Lords, it was not that I did not understand, it was that I did not hear. But I have heard now. I find it deeply depressing. I repeat that my right honourable friend the Prime Minister, my right honourable friend the Home Secretary, and the Director General of the Prison Service have all put the matter firmly on record in the formal annals of this House and in another place. Noble Lords have been persuaded by the press and the media. There is a readiness to understand the press and the media and not my right honourable friends.
Lord Jenkins of Hillhead: My Lords, it is no good the Minister getting in a great state and telling us what does or does not depress her. Perhaps she will answer the perfectly simple question asked by the noble Earl, Lord Longford.
Baroness Blatch: My Lords, noble Lords will have to forgive me for sounding a little irritated on this. I have said—and I have repeated what my right honourable friends have said—that the decision was taken by the director general. It was not interfered with, pre-empted, or predetermined by my right honourable friend the Home Secretary. I do not know how many times I have to repeat that. It has been made clear on so many occasions that I can only believe that if any doubt arises, it arises from the popular press.
Mr Marriott's future will depend upon the outcome of the disciplinary investigation. Pending the outcome of that investigation, he will be carrying out other non-operational duties at Prison Service HQ. Any question of Mr Marriott's return to Parkhurst or any other prison is a matter for the director general at the appropriate time. No option is ruled out.
Let me now turn to other aspects of the Prison Service's work. In the coming year, in addition to security, the Prison Service will be implementing three key changes which have the common theme of meeting legitimate public expectations of what imprisonment should be like and improving protection of the public.
First, more rigorous criteria for the temporary release of prisoners were announced by the Home Secretary on 18th November. That will protect the public by setting tighter criteria for temporary release and ensuring that there is a fuller assessment of the risk to the public. I

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can give the House a categoric assurance that public safety will always be the paramount consideration in determining whether a prisoner should be granted temporary release.
In response to the noble Earl, Lord Longford, there is of course a place for temporary release in appropriate cases, but a balance needs to be struck, and the paramount consideration must at all times be the protection of the public.
Secondly, a system of incentives and sanctions for prisoners will be implemented across the service, to encourage prisoners to behave well and use their time in prison constructively. Prisoners will be required to earn facilities over and above the minimum through good behaviour and hard work. The facilities will be withdrawn if behaviour deteriorates. There is no confusion here. The policy is that of the Home Secretary, and the management of that policy will be the responsibility of the Prison Service.
Thirdly, a major new strategy is tackling drug abuse in prisons by reducing supply through better control and detection, including random urine testing, while reducing demand through support, education and counselling. I take all that has been said about improving all the counselling and other therapeutic methods that can be employed in the vexed area of treating prisoners.
The noble Baroness, Lady Gould of Potternewton, referred to performance indicators. The Prison Service's key performance indicators do not tell the whole story about the service's performance. A small number of key indicators cannot, by definition, cover all the service's activities. They cover, among other things, escapes, assaults, overcrowding, sanitation, regime activities, time unlocked, and cost per place. It is entirely right and proper that the service's performance in those areas should be monitored and that targets for improvements should be set by my right honourable friend the Home Secretary.
In terms of prison numbers, since 1989 the number of prison officers has increased by 4,000, while the prison population has increased by only 1,000.
After recent events, it is bound to take time to restore public confidence in the service. But the programme to improve security, and the other measures I have outlined, form a coherent and challenging programme of work which the Prison Service is determined to deliver.
In the words of the noble Lord, Lord Harris of Greenwich, my right honourable friend the Home Secretary is proving to be resolute, firm and calm. I believe that he deserves the support of us all, particularly in this House, in this most difficult of policy areas.
5.28 p.m.
Lord Rodgers of Quarry Bank: My Lords, I am grateful to all noble Lords who felt it right to join in our short debate, although I am disappointed that there were no speakers from the Conservative Benches. I am sorry if questions got under the Minister's skin at any time, but in the last analysis it was up to her—because she
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said she was present at every meeting between the Home Secretary and the director general—to give a reply of her own to the question: did the Home Secretary make any suggestion at any time to the director general about Mr Marriott's future? It was a simple question, and it deserved a simple reply.
We are grateful to the Minister for being here. We took a great deal of interest in what she said. I hope that on some future occasion we will focus on what was the central question. It was put by the noble and learned Lord, Lord Woolf, when he said that the relationship of the Home Secretary to the Prison Service is difficult and delicate. We know that that is so. No speaker has suggested otherwise. We have all been trying to find a way out and a way ahead. If we have failed to do so, these are matters to which we shall return at a future time.
The Prison Service is passing through a critical and difficult time. Morale is low. The country is deeply disturbed by recent events. Perhaps today's debate has opened up the issues a little wider, even if it has not resolved them. In that light, I ask leave to withdraw my Motion.
Motion for Papers, by leave, withdrawn.

Accidents at Sea
5.30 p.m.
Lord Perry of Waltonrose to call attention to the increase in the number of serious accidents at sea, and to the 1993 annual report of the Port State Control Committee; and to move for Papers.
The noble Lord said: My Lords, there are 80,000 ships of over 100 gross tonnes afloat on the seas today. In 1993 only about 1,500 of them were registered under the British flag; but no fewer than 6,500 of them visited British ports.
We may nowadays be a relatively small flag state but we are a very important port state and round our coasts are some of the busiest waterways in the world. Thus we are much at risk from accidents and pollution. Despite that, only three vessels have been lost in the past three years in our waters and not a single life has been lost. But those figures do not include smaller vessels, including the bulk of the fishing fleet. That is not such a satisfactory story. In the same period, 91 ships were lost and 33 fishermen lost their lives.
Today, however, I want to talk about the world picture and the big ships. In the report of the Institute of London Underwriters, one finds that in 1993 the number of lives lost at sea in vessels of 500 gross tonnes and over was about twice the number lost in 1992; and the number lost in 1994 was more than twice the number lost in 1993. Those are disturbing figures. The most recent example was the loss of 900 lives on the "Estonia", which sank in the Baltic. That drew attention again to the problems of the safety of ro-ro passenger ferries, publicised by the accident to the "Herald of Free Enterprise" in 1989.
But there are many more ferry accidents not included in those figures because the ships are of less than 500 gross tonnes. Figures about them are extremely difficult

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to obtain. In 1993, two such accidents caused over 2,000 deaths. Furthermore, there have also been several major accidents in which, although no one was killed, there was enormous damage to the environment. Pollution from the "Braer" in 1993 attracted major attention and reminded the public of the other major oil tanker disasters of previous years.
That concern would be very much greater if the public were aware of the vastly greater number of incidents that occurred when there was great danger and where, either by extraordinary good luck or the dedicated efforts of all kinds of rescuers, damage to life or the environment was miraculously avoided. Sometimes those incidents involved serious damage to ships; in other cases, they were near misses which occurred without any accident ensuing. Several of them were mentioned in the report of the inquiry chaired by the noble and learned Lord, Lord Donaldson, entitled Safer Ships, Cleaner Seas, published in May last year. I am glad to see that the noble and learned Lord is to take part in this debate.
The inquiry had been set up as a result of the "Braer" disaster. I want to refer to one set of incidents from his report concerning what are called "dead ships": ships which have lost all power. In 1993, there were several incidents. The "Oligitria B", having lost power, anchored in one of the traffic lanes in the Dover Strait and remained there for 48 hours; the owner and the master failed to arrange for a tug, even when requested to do so. The hazard to other ships in the Channel requires no emphasis. The "Gran Piedra" lost power near the Scilly Isles and nearly ran ashore. The "Eloisa" lost power in the Thames Estuary. The "Ice Star" drifted close to oil platforms near Sumburgh Head.
What was truly frightening about all those incidents was the reluctance of owners and masters to incur the expense of a tow, despite the obvious danger that they were causing, not only to themselves but to many other ships. None of those dead ships gave rise to any loss of life, collision or pollution but they are all to be regarded as tragedies that might have happened. I was moved to suggest this debate by reading the 1993 annual report of the Port State Control Committee, which arrived on my desk last summer. I was horrified when I read it and wanted other people to read it and recognise the dangers.
Let me start with a little background which many noble Lords will know. A ship is subject to all the laws of the country in which it has been registered; namely, its flag state. Those laws require all ships to be of suitable standard and suitably manned. International standards are set by the International Maritime Organization and a number of conventions, which are then ratified by member states. They have no force of law until the member states legislate and have no effect unless that legislation is implemented. It is the implementation that is inadequate in many flag states.
In the United Kingdom the Marine Safety Agency, an executive agency of the Department of Transport, is responsible, but it delegates some functions to the classification societies, such as Lloyd's Register, which carries out much of the survey work for the issue of the necessary certificates. Without wishing to be
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complacent, it is fair to say that the United Kingdom as a flag state does a good job and is backed by responsible classification societies.
When the IMO conventions were introduced, most ships were registered in the major maritime powers. Nowadays, most ships are registered elsewhere, since many shipowners seek the cheapest registration in those flag states—sometimes referred to as flags of convenience—which fail fully to implement the international standards, even though they have ratified them and legislated to cover them.
In 1982 the problems created by the inadequacy of such flag states were such that 15 European states signed the Paris Memorandum of Understanding (which I shall refer to as the Paris MOU) which set up the Port State Control Committee. Other states had joined it and recently the European Union has drafted a directive which will give the Paris MOU the force of European Union law but which will still be based on the IMO conventions. All the states which are party to the agreement agree to inspect 25 per cent. of all foreign ships entering their ports. Each year the Port State Control Committee issues a report. It is the report for 1993 to which I refer.
In that year the signatories of the MOU carried out 17,294 inspections of 11,252 different ships which came from 111 different flag states. It is clear from the figures that some of the ships were inspected on more than one occasion. That can readily be understood, because one of the types of ship that is targeted for inspection by all those states is ships which have previously been found deficient. Nearly half of the ships inspected were deficient in one respect or another. The average number of deficiencies noted was over five per ship—43,000 in all.
It is bad enough that there should be so many deficiencies. But the very disturbing discovery was that 24 per cent. were deficiencies in lifeboats, liferafts, lifebuoys and lifejackets. Another 17 per cent. had inadequate and neglected firefighting equipment. Other major categories of deficiency were of navigational equipment, the construction of the hull, bulkheads and hatches and the equipment carried to prevent marine pollution.
I cannot resist referring again to the report of the noble and learned Lord, Lord Donaldson, where he outlined the history of the motor vessel "Stella". It was a ship built in 1965 which arrived in Southampton in November 1993. In the previous two years she had been detained in various Paris MOU ports on three occasions and was therefore a prime target for inspection. There were cracks in the ship's hull; there were hatch covers that were not watertight; there were perforations between the hold and the weatherdeck; the anchor had punctured a hole in the anchor recess; the emergency fire pump could not be started; the main engine room fire dampers could not be closed; and the main engine cooling water pipes had been mended by a temporary bonding material.
The ship was detained for a fourth time in Southampton and further inspections showed that it was wholly unseaworthy. The captain was told that the conditions for release would either be extensive repairs

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in Southampton or a tow as a dead ship to another port. I have quoted this example at length because it is a case where four different port state control inspections were necessary before the ship was certified as wholly unseaworthy.
I find it frightening that so many of the ships sailing around the coasts of Europe and of the United Kingdom are in such very poor condition and that so little is done about it. Port state control inspectors have power to delay and detain ships in ports if in their opinion the deficiencies which they uncover are so serious as to render the ship unseaworthy. Detention should always be enforced if the inspector believes it is necessary for him to inspect essential repairs before the ship leaves. However, inspectors are always conscious that delays may cost a lot of money and that shipowners are liable to claim compensation should there be any undue delay; and "undue" is a very vague term. It is not surprising perhaps that inspectors are reluctant to act unless very sure of their ground. Nevertheless, in 1993 no fewer than 926 detention orders were issued in Europe. That is a sharp increase from 588 in 1992. It is striking that of the 926 detention orders issued in Europe, no fewer than 309—one in every three—were issued in the UK, although only one in every eight inspections was made here. Either our inspectors were more stringent or, more probably, they were more courageous in risking the wrath of the owners about the costs of the delays. Yet their judgment must have been good, for no owner ever sued for compensation.
Finally, I turn to the quality of the crew rather than the quality of the ships. That depends upon training and it is in that regard that I claim a little experience. The initial training of officers is in three parts. First, there is a period of education in a maritime college—of which some are good and some are not. I am told that, for example, of 57 colleges in the Philippines, only four are recognised as of high quality. Some of the others may be delivering courses up to international standard, but from reports many clearly are not. College education is followed by a required period of sea-time training and practice. The quality of that depends upon the master who certifies it, and the standards of masters vary widely.
Finally, the responsible government authority gathers evidence through direct examination or otherwise and issues certificates of competency. A questionnaire was issued by the Nautical Institute on "Standards of Training, Certification and Watchkeeping Convention (STCW)". It was published in July and gave some quite dreadful replies. One stated:
"far too many flag authorities are able to issue so-called STCW certificates of competence which are not worth the paper they are written on".
Another stated:
"national certificates here [country not named] are of an appalling and unacceptable standard".
Port state inspectors are required to accept such certificates without question even when they know that they are wholly spurious.
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Recognition of the numbers of ill-trained officers and ratings was one reason for the introduction by the IMO and national governments of mandatory on-board training. I must declare an interest in that form of distance education, having worked part-time with Videotel Marine International for 15 years to provide training materials on board several thousand ships for many nations in many languages. While that is undoubtedly helpful, it is not a substitute for proper initial training.
It is a sorry tale that I have told. It is not a new story; much of it has been told before, notably in the second report of the Select Committee on Science and Technology, 1991–92, and in the report of the inquiry of the noble and learned Lord, Lord Donaldson, to which I have referred. But it is a story that needs to be told over and over again for it needs to be brought home to the Government and the general public in this country. The underlying reasons for the sorry tale are that shipowners are living in an intensely competitive market and some are prepared to cut corners in order to save money so as to reduce freight rates.
They often know little about their ships or crews because they employ a managing agency to operate the ships and hire the crews. Some flag states either actively or passively permit owners to cut corners by delegating the implementation of their control to inadequate classification societies whose main loyalty is to the owners or agents who employ and pay them.
Knowing the underlying reasons for the mess that we are in does not, however, help us to make progress in solving the problems. The report by the noble and learned Lord, Lord Donaldson, made 103 different detailed recommendations. But even if the Government were to implement all the recommendations, it would not solve the problems, for that requires the full co-operation of all member states of the IMO and they cannot be forced to act. But action by port state control authorities could greatly improve matters and fortunately there are encouraging signs that things are moving. The Paris agreement has been copied first in Latin America and secondly in the Asia Pacific region and it is hoped that it will be implemented in the Caribbean, Africa and the southern-eastern Mediterranean.
Thankfully, the IMO is now much more favourably disposed to port state control. It is currently trying to amend the convention to delete the clause which requires port state inspectors to accept without question certificates issued by flag states. The British Government have made a grant of £20,000 to the IMO to support seminars on port state control and the IMO hopes that it will be repeated because training of the inspectors is vital if the system is to work fairly.
Despite the excellent job that the inspectors do in this country, many people believe that there are still too few of them to do a really thorough job and many inspections are necessarily too short and too superficial since the expenditure on each is strictly limited. Regrettably, the budget of the Marine Safety Agency is due to be cut this year. Much of the work of the Marine Safety Agency consists of inspections carried out as the flag state authority, although some of them have been

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delegated to the classification societies. In Lloyd's List of January 18th there is a report that the Government plan to delegate the inspection of the stability of ro-ro passenger ferries will be postponed because of public concern about the "Estonia" disaster. There are fears that such delegation may lead to a deterioration in safety standards. It is indeed true that those flag states which delegate the largest section of their responsibilities to classification societies have the worst records in port state control inspections. It is very regrettable that, especially at this time, the Government should cut the budget of the Marine Safety Agency and that they should plan to delegate any further powers to the classification societies.
As far as I can see, it is only through the operation of a reinforced and extended port state control that the steadily worsening state of the world's shipping can be improved in the relatively near future. Were unseaworthy ships and ill-trained crews to lead to detentions in many more ports, the message would soon be learned by unscrupulous owners: detention would cost them more than improving their ships and crews. The resulting inevitable increase in freight costs is the only way in which the ageing world fleet can be replaced by high quality and, consequently, safer ships. The Government must surely promote that by setting an example, not by cutting costs. With our busy waterways, we have an enormous amount to lose if we fail to act. I beg to move for Papers.
5.50 p.m.
Viscount Caldecote: My Lords, I should like to thank the noble Lord, Lord Perry, for initiating a debate on such an important subject. The noble Lord mentioned the ro-ro ferry accidents, and it is to that topic that I should like to devote most of my remarks. However, I should also like to support and reinforce the point made by the noble Lord, Lord Perry, and his concern about the worsening of conditions, especially as regards pollution due to owners being reluctant to seek the assistance of tugs in sufficient time.
There is no such thing as absolute safety. The sea is a dangerous and unpredictable place, but it is our duty to ensure the safety of travellers to the maximum possible extent. Good seamanship demands two things: first, preventing accidents happening and, secondly, effective plans to deal with them if they do occur, so as to save lives. In the case of the ro-ro ferries, that second requirement has not been met. They are still very vulnerable to accident. It is clear beyond peradventure that the problem is the rapid loss of stability when water gets on to the car deck and the rapid capsize of the ferry, without giving any time, or giving very minimal time, for the evacuation of passengers and crew.
There are several important factors which help to minimise the chance of water getting on to the car deck which, as I say, is the main problem. We can look at the structures, improve the bow door sealing and the like; we can improve the operational procedures, which is already being done; and we can ensure that the ship is so constructed that the danger of serious damage in the case of a collision is reduced.
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However, I should emphasise that those issues are important but secondary. The problem is the rapid capsize of a vessel —a ro-ro ferry—when water gets on to the car deck. They are serious problems and we must tackle them more rapidly. Design standards must be improved so as to ensure that no disaster of a catastrophic nature occurs when there is an accident. Let us compare what happens in public places where many people gather. For example, a cinema or a theatre. Everything possible is done to prevent fire breaking out. Electrical installations and the structure are inspected, along with everything else. But arrangements are made—and inspectors make much of this—to ensure that, if the disaster of a fire does occur, people in that public place can get out in time by exits which are clearly marked so as to save at least the vast majority of those in that place.
The present situation on ro-ro ferries is unsatisfactory. Unmodified ro-ro ferries built before 1990 are quite unacceptable in the sense that they capsize very quickly when water gets on to the car deck. Those vulnerable ferries—that is, vulnerable when there is an accident, but perfectly safe under normal conditions—can operate into the next century. Even those ferries that were built after 1990 in accordance with the IMO safety of life at sea 1990 agreement are not entirely satisfactory. For instance, there is no requirement for ensuring safety after water enters the car deck and floods it. The improvements in the agreement relate almost entirely to helping to prevent flooding in a sea state of three, which is not a rough sea at all. I submit that that agreement needs to be strengthened very considerably if lives are not to be at serious risk in the event of accident on those ferries.
Her Majesty's Government have done their best to make progress with this difficult problem. After the "Herald of Free Enterprise" disaster, they sought to get IMO agreement to improve the standards of those ships. However, they found that that was impossible. Instead, a limited European agreement was achieved; but that still allowed some vulnerable ro-ro ferries to continue operating too long, as witness the "Estonia". In answer to a Question that I tabled last October, my noble friend Lord Goschen replied that, if she had been governed by the present regulations, the "Estonia" could have continued to operate into the next century to the year 2004.
New requirements are urgently needed. First of all, it should be a condition of issuing passenger certificates (in addition to meeting the SOLAS 1990 agreement) that owners should have to satisfy national authorities that, should flooding of the vehicle deck occur with or without associated spaces underneath, the ferry will survive nearly upright for a time sufficient to evacuate the passengers and crew and for rescue work to be effective. That is a most important point.
Secondly, modifications to existing ferries must be completed in the minimum possible time, abandoning the current extended time-scale, and reaching, as I say, well into the next century. That is not a hopeless proposition. It can be done. We know at least six different ways which have been proved by research whereby such ferries can be made less vulnerable in the

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event of water entering the car deck. Some ferry companies are already carrying out those modifications. Some of them have already completed the modification of some of their ferries. Of course, it can be a fairly expensive business and it will not be worth while modifying some ferries. However, we must enforce regulations that prevent those unmodified, dangerous and vulnerable ferries operating for so long as is now permitted. I suggest that they should no longer be allowed to operate after 1996. That should give time for a reasonable number of ferries to be modified and if the others cannot be modified, or if it is not worth modifying them, they can be scrapped.
Time must not be wasted on further research into the main problem. As I have said, the main problem is quite clear. However, research is needed to help to determine more effective evacuation arrangements should the ships run into trouble. The IMO should also continue to press home the adoption of regional agreements on acceptable behavioural standards and to impose them under the umbrellas of port state control to which the noble Lord, Lord Perry, referred. That is also a very important point. More work is necessary in that connection. Thirdly, sponsorship of research is required into the development of the SOLAS 1990 agreement for higher sea states than are now effective under that agreement.
I must stress again that there is great urgency in taking action on the matter. We cannot continue to accept the risk of another catastrophic accident where 500 to 1,000 lives might be lost. For example, if one of those ferries came into collision in mid-channel, there would be a real catastrophe. We cannot accept that responsibility for longer than is absolutely necessary.
As I said earlier, modifications are available and some are already being carried out. We must press for that process to be carried along much faster. A timescale must be set after which ferries cannot be operated unless they satisfy new and more stringent agreements. If necessary, if we cannot get agreement with IMO, which I expect will be difficult because of its ponderous procedures, then we can perhaps get another agreement on a European basis. But if in the last resort we cannot get anything that is satisfactory to us, then we must act unilaterally through port state control and insist that all ro-ro ferries operating out of UK ports, of whatever nationality, come up to satisfactory standards which will remove their great vulnerability to the type of accidents which I have described.
6.1 p.m.
Lord Cooke of Islandreagh: My Lords, I am grateful to the noble Lord, Lord Perry, for having brought this debate forward today. It is a subject in which I have long been interested and about which I am greatly concerned. I would like to say how much I agree with the remarks just made by the noble Viscount, Lord Caldecote, on the subject of ferries. I am glad that I did not, in my notes, address the same subjects—as well I might have—because the noble Viscount has covered them too well.
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I wish to speak about ocean going cargo vessels because I think that that is a wider subject which may be even more difficult to solve. This report of the port state control committee is horrifying. It will be horrifying to those who have been unaware of unsafe ships. However, it will be helpful, as it goes a long way to explain why there are so many marine casualties each year. The fact is that there are many ships trading which are either structurally unsound or without essential navigating equipment or which have unqualified watch-keepers, perhaps even unable to communicate with each other. There is no obligation to speak a common language. This situation is getting worse and it will continue to get worse as able young men are not going to sea because pay at junior levels is poor.
The underlying reason for unsafe ships is that there are gentlemen in various parts of the world who do not mind how they make their fortune. They buy a worn out ship cheaply, which they can now do as scrap prices are low. They flag from a state that pays little attention to its international obligations as a flag state, and they crew at minimum cost. They are able to get the ship classed and insured. That may seem surprising, but the insurance companies have no way of determining the real risk which they are taking on. If the ship sinks after a few voyages the owner will have made his money and if the crew are lost as well he does not seem to mind, and the fact may hardly be reported in the UK press.
In spite of all that the International Maritime Organisation and the plethora of regulatory bodies can do, this situation is getting worse. However, here I must commend the Ministry of Transport for inspecting more than the required number of ships calling at our ports and for publishing the list of ships detained each month with the reason and the name of the classification society. If only other countries would follow that example and accept Recommendation No. 34 of the report of the noble and learned Lord, Lord Donaldson of Lymington, on safer ships and cleaner seas, that would make a big difference. That was mentioned by the noble Lord, Lord Perry. Recommendation No. 34 would require ships, under the Paris Memorandum of Understanding, to carry log books which would be signed off as ships were inspected.
This horrific situation is complex and to discuss it fully would take all day, but in the few minutes at my disposal I wish to make a proposal which I hope will be helpful. Records show that approximately 80 per cent. of marine accidents are primarily due to human error. But the only international requirement is that members of the crew hold the necessary relevant certificates. In my view current training and certification do not take account of the increasingly high technology being used in ships and ship management. In addition, forged certificates can be bought in Bombay and in the Philippines. Unless port state inspectors have reason to believe certificates are forged, they do not have the power to question or to examine watch-keeping officers further. To navigate and manage a modern ship in confined waters requires much more than a crew with certificates. The crew must work together in a carefully co-ordinated way; essential maintenance must be attended to and all equipment kept in good order. At

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present, insurers have no way of finding out how well a ship is crewed and managed, but insurance must be one of the keys to this problem because, if ships could not obtain insurance, ownership of these ships would no longer be attractive.
It seems to me that there must be some way of setting up a body or bodies which would inspect ships with respect to crewing, management and all that goes with it. However, it is not easy to see how that could be done. There have, for instance, been suggestions that the classification societies should take this over and that they should charge the insurers. However, there are so many classification societies now of such differing standards that I doubt whether that would be practicable. It would require inspectors to have different backgrounds and training from those they presently employ for inspection of hull and machinery, and there would be additional costs. However, I hope that the cost of this would be accepted by insurers and P&I clubs. It would have to be passed on but it would be to everyone's advantage, as insurers would then be able to make a realistic assessment of risk, which they cannot do at present. I do not think it is unreasonable to hope that a heavy penalty would apply to poorly crewed and poorly managed ships and that modem well equipped ships with a good safety record might well obtain lower rates of insurance than at present.
Unsafe ships and the high casualty rate have significance far beyond that of loss of life, serious environmental threat and so on. The fact is that worn out, cheaply crewed ships have depressed deep sea freight rates to a level that has meant that well managed British flagged ships can no longer make money. There is no question of being able to write off the cost of depreciation of a new modern ship. The future of British shipowning is threatened and the future of British shipbuilding is threatened. Our Government are probably doing the best they can at the moment but I hope and trust that, perhaps with nudging from Government, the various other interested parties who have recently been fighting each other will come together to find a solution. I refer to the owners, the classification societies, the insurers, the regulatory bodies and so on. These interests are probably concentrated in London to a greater extent than anywhere else and it should be possible for them to get together and agree on a proposal such as I have suggested; that is, that they should arrange for a means of examining and checking on crewing and crew management.
I have been pleased to note that our new Commissioner in Brussels, Mr. Kinnock, has moved quickly in his new role with responsibility for transport and is energetically attacking the question of marine safety. I wish him luck and I hope that he will be supported by all interested parties. It is only a matter of time before we have a quite horrific accident—for example, a gas tanker colliding with a VLCC in confined waters. The fireball, the environmental pollution and the risk of endangering life if the accident happens near the coast, are almost unthinkable. It must be only a matter of time before that happens. The risk is there. The only thing we do not know is whether it
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will happen next week or next year. Some way must be found of improving this whole question of ship safety quickly.
6.9 p.m.
The Viscount of Falkland: My Lords, I thank my noble friend Lord Perry for introducing the debate. It is timely that we should be discussing the subject in your Lordships' House because last year produced more deaths at sea than in the air and more seafarers were lost at sea than at any time since the Second World War.
I should like to follow the road taken by the noble Lord, Lord Cooke, and speak about ocean-going bulk carriers in particular, because that is where I have some experience, albeit more than 25 years ago.
Loss at sea was commonplace in the 19th century. Such tragedies became so extraordinarily common that in the middle of the last century action was forced upon Parliament through Select Committees. If in a leisurely moment any of your Lordships were to delve into the bound copies of The Times going back to the origin of the newspaper in the late 18th century, you would find in almost every edition accounts of losses at sea of a horrifying and dramatic nature. Such incidents were followed very closely by the public. Nowadays I am afraid the public only take notice when there are tragedies such as the loss of the ferries which occurred recently.
The marine Act of 1850 came about as a result of many losses at sea, but particularly due to the heavy loss of life among those emigrating to the Americas and on convict ships. However, what really caused Parliament to sit up and introduce regulatory law through the merchant shipping Act of 1854 was the enormous loss of life in the transatlantic timber trade from North America to Europe, in which large numbers of ships were lost over a few years. That was due to the overloading of ships in order to earn more from freight. When those ships met heavy seas the result was shipwreck.
It would be an omission not to mention in a debate such as this the extraordinary work that was done by the flamboyant Member of Parliament for Derby in the 1870s, Samuel Plimsoll, through whose efforts load line legislation was incorporated in statutory form. That made a great difference to world shipping and is an example of the way in which we led the world in this area.
Nowadays accidents at sea are due to a number of factors. When I left ship management in 1970, shipping, particularly in the case of bulk carriers, was entering a new era of larger ships and new technology. That created problems in terms of training seamen, as has been mentioned by other noble Lords. The larger vessels presented problems with loading and discharging. However, in the early years there were encouragingly few casualties.
I sailed on an early voyage of a large bulk carrier. The company for which I worked had purchased a vessel of 44,000 tonnes, which was very large for that time. I went on a voyage across the Atlantic. The ship was in ballast from Antwerp; it was loaded with iron ore pellets in the St. Lawrence and sailed to Baltimore, where the

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cargo was discharged. I was discharged from the ship there while the ship continued to Japan. I was able to observe for myself some of the problems that faced the officers and engineers of the ship and the problems that might arise in the future as vessels became larger, and those problems have occurred.
Since the mid-1970s, well over 70 bulk carriers in excess of 100,000 tonnes have sunk. The reasons are the cause of enormous anxiety now. The causes of those shipwrecks have not been tackled seriously enough. The increasing size, the economies of scale and the pressure on speed of turnaround are factors. In particular, the speed of loading of iron ore into ships and the related discharge of ballast is now seen as creating extraordinary and unforeseen stresses on the structure of vessels.
There is perhaps a false sense of security both within and outside the shipping world because there are already onerous requirements on shipowners to have their ships registered, insured, inspected and classified by well-known and mostly reputable organisations throughout the world. However, there are no universal standards. Nor are there any recognised or universal minimum safety standards for ships or for the training of crews.
International confidence in the shipping industry is not high. That is not surprising, bearing in mind the record of losses and the muddle that exists among the various organisations involved. The financing of new tonnage, which is an extremely important aspect of creating world fleets that are safe and reliable, is a problem. In the case of a large bulk carrier, the most vulnerable period for a ship is between the ages of 12 and 20 years. Generally the age before scrapping of a ship of that type is 20 years. There are too many old vessels in the world, and, due to the current situation there is not enough confidence on the part of those who could finance new tonnage. There are too many problems, too many organisations and too much fragmentation of shipowning. In the case of tankers, the average fleet size is only 1.7 vessels. The oil companies themselves have very little interest in owning vessels these days.
My overriding memory of my days in shipowning, which I enjoyed, is, apart from meeting very charming, able and brave people, the tradition of secrecy which prevailed in the industry. Secrecy and the inability or unwillingness to share information went from the bottom to the top. That is still a traditional aspect of shipowning and it has to be overcome.
Ship inspections are undertaken by various bodies, including flag states, insurers, charterers, owners, protection and indemnity clubs, and potential purchasers. No information is shared properly between those bodies and it is not available to other interests. There is a huge and costly duplication of information. The secrecy is probably due to fear of competition, fear of legal liabilities and fear that a privileged position may be lost. That has always been the case in shipowning. However, the problems will continue until some way is found of collating all the information about ships in an international ship register which will meet the needs of
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all those who are interested in having an international fleet in which safety at sea and the protection of the environment are paramount.
The lack of financing for new tonnage will result in a continuing number of ships which are substandard and improperly manned. As has been said, the solution is the provision of an international database. The International Maritime Organisation has already announced that it is considering the possibility of undertaking that. But there has been a great deal of unease about the international database in certain quarters with regard to confidentiality, and so on. That unease must be overcome.
Much can be learnt from the aviation industry. It has developed a method of international control and inspection which is simple and effective compared with that which prevails in the international shipping world. Surely that is the way to proceed. I hope the Government will do everything they can to encourage the achievement of that aim.
6.20 p.m.
The Earl of Caithness: My Lords, I, too, thank the noble Lord, Lord Perry, for giving us the opportunity to discuss shipping, a subject dear to my heart.
However, before doing so, I omitted an important matter when I last spoke. Therefore, I should like to put on record my grateful thanks to all the officials with whom I had the honour to serve when I was a Minister for their extremely hard work and conscientiousness. I believe that sometimes in the press and in this House they are somewhat knocked. But those officials did a very good job for me, and I am grateful to them.
There are two aspects to the debate today: first, the number of serious accidents; and, secondly, the question of port state control. There is a link between the two but not a major link. Let me first deal with port state control.
Anyone or anything which adds to safety is surely to be welcomed. But port state control is very limited. It is but the last line of defence. If one presses too much on port state control, it diverts attention from the more important issue of flag state control. Shipping is a worldwide business, but port state control is a regional operation. It is particularly good in Europe; but there is now port state control in Latin America and the Asia-Pacific region. However, within Europe itself there are differences between ports regarding the uniformity of standards applied, the interpretation of the conventions, and communication. The noble Lord, Lord Perry, referred to MV "Stella". I wonder whether the MV "Stella" was not a classic case of a ship obtaining different treatment in different ports before it came to Britain and received the proper treatment.
If we become too regional, the problems which already exist in Europe will become magnified, and discrepancies and differences around the world will be multiplied. I do not think that that is good for safety. The problem of language is a difficulty which also needs to be addressed with regard to safety.
A lesser but important point is this. It has been put to me by captains that if we impose too many inspections on a vessel when it is in port, the people who should

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be doing other important jobs—I refer to the captain supervising the loading, and checking documents—could be distracted. They can be distracted by port state control, the insurers' inspectors, the underwriters, and the hull people coming on board in that short period in port.
More importantly perhaps, the memorandum of understanding under the Paris convention has already been amended and needs updating on a regular basis. If we become too regionalised in port state control, we shall see those discrepancies appearing time and again in different parts of the world; and those discrepancies will be magnified.
Port state control is useful, but it is merely a snapshot of a vessel in port at a specific time. There is no doubt that such control catches some substandard vessels, but others will get through. I hope that we do not pay too much attention to port state control at the expense of other matters which I believe may be more crucial to safety at sea and preventing accidents.
Let me turn to what I believe is the important part of the debate: the number of serious accidents at sea. There is no doubt that shipping is safe in most areas of the world. If one compares the statistics on shipping and aviation—they are very safe forms of travel—with the statistics on cars, one will see what a good and safe form of transport shipping is. But it is not perfect. Of course I agree with what has been said before: that absolute safety cannot be guaranteed in any form of transportation.
When considering passenger vessels, one bad accident can distort the statistics. However, if one considers the cargo vessels, some rather different statistics appear. According to Lloyd's Register of Shipping, all cargo carrying ships of 1,000 dead weight tonnes or over had an average loss ratio of ships at risk between 1980 and 1993 of 5.3. What is interesting is that if one considers the individual years, in each year between 1980 and 1986 the average for each year was above the 13 year average. In the years 1987 to 1993, the average for each year was below the average for 13 years. Therefore I contest the point made that the number of serious accidents at sea has increased. The issue needs attention, but I believe that there has been an improvement.
Shipping is very different from aviation. There is a different structure. It is a diverse and fragmented operation by its history and nature. It is possible for one person to own a ship. He can lease that ship to a company in a different country. That company or individual could have the ship managed by a management company in a different country which could employ a multinational crew. Although different from aviation, that factor in itself is not necessarily bad. Things could go wrong if that ship were flagged in a state which did not take its duty seriously, using a multinational crew which held dubious certificates; using no common method of communication or common language so that they could act in concert at a time of accident; and if the ship traded in ports where there was no port state control—and that, of course, is easily possible.
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How do we address those problems? I believe that we should have one worldwide body to do just that. We are lucky that we have such a body in London: the International Maritime Organisation. It is by far and away the best and most suitable organization to address the shipping problems of the world. I pay tribute to the secretary-general, Bill O'Neil, for the enormous amount of work that he has done to improve the standing of the IMO.
The IMO comprises member states which agree standards and monitor those standards. I believe that position to be fundamentally wrong. The member states are gamekeepers and poachers because they are also the flag states. We should separate those functions, as we have done so well in this country, and allow the member states to set the standards. It is worth considering whether the IMO should be the enforcement agency throughout the world.
Having said that I believe that the IMO is good, it follows that I do not believe that regional bodies are the right answer. The European Commission gave a great deal of assistance to me in obtaining the ferry standards that I believed we should have had —an issue which the IMO ducked. However, although the European Commission has competence in the area of shipping, it is not competent to act in the area of shipping. I hope very much that although it can play a part, it will recognise that the proper body is the world body, the IMO.
I turn specifically to the UK. I congratulate the Government on all the work that they have done to raise standards, and in encouraging our shipping companies to raise standards. But what really matters is the crew. I would rather have more poor ships on the seas with good crews than class ships on the seas with poor crews. As has been pointed out it is human nature which causes and aggravates accidents, and sometimes alleviates them.
We should do more on training. I am glad that we introduced the development of the certificated seafarers scheme. That, plus the general assistance for training scheme, has helped. I hope that my noble friend Lord Goschen and my right honourable friend the Chancellor of the Exchequer will look at the issues again and strengthen the provisions. I believe that we have the potential to face a difficult situation in the years to come. The UK sits at the high table when it comes to safety. Unless we have men of experience, of the right training and the right qualifications who have been to sea, then I fear that in future years we will not have the force that we have now when we sit at the high table. Our voice is listened to now and I hope that it will be listened to in the future. That is where training and encouragement to join the merchant marine is so important.
However, it is not just a question of the Government and our shipping companies, there is the whole area of the classification societies and the insurers. We have the best classification society in the world in this country—Lloyd's Register. It is doing a good job through the International Association of Classification Societies. But what about those who are not members of the society and who do not have the same standards as Lloyd's? I

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think that the insurance industry could do more, too. It does not differentiate enough between what is and what is not a class ship. Last year, 1,100 ships left the books of the major classification societies. Where did they go? Some were undoubtedly scrapped, some probably are casualties and are not sailing. The others are still on the high seas. The serious question is: who has classed them and who has insured them? They should not be allowed on the seas if the major companies do not do that.
In summary, I believe that we are heading in the right direction. We need to strengthen the one world body that we have—the IMO. I do not believe that the regional bodies should be given any more encouragement to take up the mantle. The Government should continue to press on the training and continue to fund it. What is important is safety, the environment and instilling into every company throughout the world that the safety culture is inherent, from the managing director to the directors, to the divisional head, to the captain. If those people think safety, then so will the newest recruit.
6.31 p.m.
Lord Donaldson of Lymington: My Lords, I join with other noble Lords who have spoken in thanking and congratulating the noble Lord, Lord Perry of Walton, on raising an issue which, I have no doubt at all, is of great importance and great urgency. It is also, sad to say, a matter of great complexity. It is extremely difficult within the time that noble Lords have to discuss the subject, to go into the matter in any depth. Listening to the speeches that have been made up till now, I kept thinking: "Ah, but there's a qualification". However, I have put aside qualifications because it is necessary to deal with the matter broadly.
Lack of safety at sea has two obvious results. First, it endangers the lives of the seamen concerned, including those who go to sea to try to rescue people. Secondly, it exposes the coastline to pollution. Both are important and it is quite wrong to try to rank them in any order. They are different, but they have the same cause.
It is worth remembering that the United Kingdom coastline is 8,000 miles long; it is the third longest coastline in Europe. Furthermore, all that coastline is subject to passing traffic and merchant ships seeking to call at our ports. I have said it before and I say it again, we live virtually in the middle of a maritime spaghetti junction.
The sea is inherently much more dangerous than the roads. It follows from that that we need safety standards for shipping which are much higher. We have safety standards. I do not compare them particularly with standards for the roads, but they are certainly not as high as they ought to be, for the simple reason that they require international agreement. The lowest common factor invariably obtrudes.
Even on the basis of those standards, it is clear that of every 100 ships sailing past our shores or calling at our ports, 60 will be found to be deficient in one respect or another. It is also clear that of every 100 ships, eight are so seriously unseaworthy that they cannot be allowed to sail the seas until repairs have been effected.
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Of course, we do not inspect all the ships, but that is a perfectly fair and reasonable extrapolation from the results of inspections of ships which we are able to examine.
In this country alone, during December there were 26 ships under detention because they were in the serious category. I add—if further evidence is required as to the risks which are involved in our own waters—that during the course of the inquiry which I chaired, we asked for details of all incidents occurring round the coast of the UK which either caused pollution or had the potential to cause serious pollution. The answers are set out in the appendix; in summary, there were 34 incidents in 61 weeks. That is a serious incident every fortnight. If we were concerned with similar low standards on the roads or similar obvious risks on the roads, there would be a public outcry.
Clearly we shall not put it right unless, first, we find out why it is happening. The primary responsibility for the state of ships, both in terms of structure and of manning and training, is that of shipowners and ship managers. Some succeed—and it is only right that tribute should be paid to them—in putting high standard ships to sea. On a recent visit to Australia I was pleased to hear people refer to international standards and the Shell standard. I am sure that they would equally have said the same of other major oil companies. However, that illustrates that it is accepted that higher standards are adopted by really good shipowners.
Some shipowners succeed; some try but fail. However, a great number of shipowners simply do not try. Let us be fair about it, they have considerable problems. Shipping is an international activity with international competition. Furthermore, there is over-capacity and the two add up to low freight rates. The solution, in essence, is that it must no longer pay, and it must be seen not to pay, a shipowner to run an unsafe ship. That, of course, immediately raises the question of how on earth we achieve that. I agree that the first line of defence is the flag state. It is the flag state's responsibility. The flag state has far greater facilities than any other state to achieve safety in the shipping flying its flag. But again, the story is a sad one. Some flag states undoubtedly succeed, and I hope that by ignoring the odd accident we are one of them. I believe that we probably are, although I would be happier if there were a greater degree of self-monitoring. However, let us assume that we are among those who succeed. Again, there are some who try and fail but, alas, there are a large number of flag states which do not even try. They deliberately refrain from trying because it costs money. They are able to attract more and more vessels to their flag as a nice little earner.
The Institute of London Underwriters has shown that the flag states which have the greatest number of total losses are those whose fleets are now expanding; contrariwise, those who have the least losses appear to be unable to attract ships.
I listened with a mixture of amazement and despair to the plea of the noble Earl, Lord Caithness, that we leave it to the IMO. I mention, merely en passant, that it is true I am older than he is. But I am certain that I shall never live to see the day when the IMO is in a

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position to control shipping on a world-wide basis, which is how he would like to see it controlled. I hope that he will live long enough. But that is the sort of term that we are talking about, and we cannot afford to wait. I very much regret that the Paris memorandum suggested that there should be a limit to the amount of port state control, as that would merely relieve flag states of their responsibilities. There are other ways of dealing with flag states, but it takes time.
Port state control is our only defence at the moment. I congratulate the United Kingdom on raising its rate of inspection to 30 per cent. when its obligation is 25 per cent. I congratulate the UK on publishing the monthly list of "ships of shame", to borrow the Australian term. I congratulate the UK upon the leadership which I happen to know it has exerted in recent months, albeit without much self-publicity. But it will not succeed until shipowners are convinced that the risk of sending an unsafe ship to a European port is just not worth it. We cannot do it on our own; we have to do it on a regional basis. There is not time to try to do it on a world basis; it just will not happen.
I hope that it will be possible for the Government to extend their "ships of shame" category to include United Kingdom ships. They are not inspected under port state control, but under a different system with a different name. I have always thought it wrong that none of the Paris memorandum states publish the results of snap inspections on their own ships. They ought to do so, in order that there might be a comparative picture.
As has been pointed out, there are other players in this game apart from government. There are charterers who have to be convinced that it really is not worth paying the cheapest rate in the light of the risk of the cargo not arriving or arriving damaged. There are hull and machinery underwriters who have to be persuaded that it is not very sensible to take a low premium to get business which turns out to be unprofitable. There are cargo underwriters who are in much the same position, except that there are special problems for them. There are the P&I clubs' underwriters, who are undoubtedly in a very special position because there is no "them and us" mentality. It is not a case of "us" making the claims and "them" paying them. They are self-insured on a mutual basis. Their standards of information are very high indeed. What all those have in common is that they need a pooling of information. I would like to see a sort of Dun & Bradstreet of the sea, but we shall not arrive at that for a little while. There should be a permanent flow of information between government and each of these organisations. It is beginning to happen, but it needs encouragement.
Then there are the classification societies. I should like to be able to express my unalloyed admiration for the big classification societies, the members of IACS. I regret to say that I cannot do so. If one looks at the monthly statements made by the Government it will be found that the classification societies are to some extent unfairly blamed in that they are named when all that is wrong is that the radio operator does not have a certificate, which is nothing to do with them. If one looks down the list carefully one finds cases of wasted and corroded hulls which must have been passed by
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major classification societies within a time which casts grave doubt upon the standard of their work. They are improving—let us say that loudly and clearly—but there is room for more to be done.
Perhaps I may just make a few more points very quickly; I appreciate that I risk running over time. Of all the bodies that noble Lords may find surprising, there are the missions to seamen. They do an immensely valuable job in providing a channel of complaint which seamen dare use and that information can very often be passed on to those who can take action. And there is the media. The media highlighted the case of the "Stella". I hope that they will continue to highlight similar events.
I seem to have slipped out of the congratulatory mode, but I have one last word of congratulation for Her Majesty's Government on having stationed the two support tugs in the guise of salvage tugs in Stornoway and Dover. Both have been used already, which speaks for itself.
I return to the point that I have been making all along. It would be nice to tackle this problem on a world basis, but we have no chance of doing so within any reasonable time. We have to pin our faith on port state control. There is a crucial, indeed a critical, level of effort in port state control at which shipowners will begin to come into line. I cannot put a figure on it, but until that critical level is reached, things will merely continue as they are at the moment. I hope that we can increase our effort until we reach that critical level.
6.45 p.m.
Lord Carver: My Lords, like other noble Lords, I am very grateful to the noble Lord, Lord Perry of Walton, for moving this Motion, and in particular for drawing the attention of the House to the interesting 1993 report of the Paris memorandum on port state control.
The noble Lord, Lord Perry, has already mentioned that the Select Committee on Science and Technology published a report almost three years ago on safety aspects of ship design and technology. I chaired the sub-committee which produced that report. I find it gratifying that the Paris memorandum report shows that significant progress has been made in improving certain aspects of port state control in the direction that we recommended. However, I do not intend to discuss those aspects. Other noble Lords have enlarged upon them. I wish to draw attention to some other aspects of ship safety.
The Paris memorandum report itself emphasises that port state control is only one element—a secondary tier—in the enforcement of ship safety regulations, and that too great a reliance on it could create a disincentive for negligent flag states to improve their safety performance; and would, in fact, contribute to a situation where port states would implicitly subsidise non-compliance by flag states.
The main burden of our report was the lack of scientific background to the methods by which ship safety is regulated and the regulations enforced. We proposed that in the long term—we accepted that it would be in the long term—prescriptive rules should be replaced by a safety case, based on quantified risk

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analysis, covering all aspects of ship design, construction and operation. In their official response to our report, the Government gave that idea a cool reception. But, during the year that followed, the more progressive minds in the marine directorate of the Department of Transport prevailed over the traditionalists. In April 1993 the Government forwarded an excellent paper to the International Maritime Organization, drawing attention to our report and recommending that the Marine Safety Committee of the IMO should set up a working group to consider proposals made by the Government for the introduction of formal safety assessment, as they preferred to call it, as the basis of regulation in addition to prescriptive rules covering hull and machinery design and construction. I understand that a further paper on the subject was submitted to the Marine Safety Committee at its meeting last month. I should be grateful if, when he replies, the noble Viscount can say how it was received and report on what progress there has been in this field.
There was one specific recommendation that we made in relation to that concept to which we had no clear response and on which, so far as I am aware, no action has been taken. It was that the European Community (or Union as it now is), should adopt a standard of verifiable safety management systems for shipping based on ISO 9002 and IMO Resolution A647, and impose it as a compulsory requirement for ships of any flag carrying passengers, oil or hazardous cargoes in European Union waters. That might go some way towards what my noble friend Lord Cooke suggested. I hope that the Minister will clarify the Government's attitude to this and, if they do not regard it as acceptable, explain why.
This brings me to the difficult issue of what part the European Union and the Commission in particular should play in the field of ship safety. The Commission produced a document in February 1993 called A Common Policy on Safe Seas. I hope that the noble Viscount can tell us when he replies whether any of its recommendations have been accepted and what is now the status of that document.
Our report made no other recommendations specifically related to the European Union. But a certain body of opinion felt that the Union should play a larger part. It was suggested that, as around 28 per cent. of world trade at that time passed through European ports, it would be possible, if all littoral nations co-operated, to impose higher standards than those accepted as mandatory within the IMO, and thus exclude ships of flag states which refused or failed to enforce those higher standards. It was even suggested that there should be a European coastguard with responsibilities and powers akin to those of the US Coastguard.
But there are arguments in the opposite direction, largely indicated by the noble Earl, Lord Caithness, a fundamental one being the importance of maintaining the greatest possible freedom of operation of shipping worldwide. Those who support that suggest that any move towards different mandatory standards in different areas could operate against freedom of operation and lead to discriminatory measures in retaliation. There was also a certain fear that the Commission was trying to
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take over the Paris memorandum organisation of port state control, important members of which, such as Norway, Poland, Russia and Canada, are not members of the Union.
It seems to me that the best way forward is to encourage members of the Union to make mandatory for their own shipping safety resolutions which have been recommended by the IMO but not yet made mandatory because of failure to obtain wide agreement on them. I shall be grateful if the Minster, in his reply, can explain what he sees as the role of the European Union in this field.
There are one or two other matters to which I should like to draw the Minister's attention. The first is the quality and quantity of ship surveyors available not only to the Marine Safety Agency but also to classification societies. With the drastic rundown in both the shipbuilding and the ship operating industries in this country, is there not a danger that there will develop a severe shortage of experienced surveyors of the quality needed both to inspect and to maintain high standards? What are the Government doing about that?
Another factor is the future of the Marine Safety Agency. We welcomed its formation, though it did not go as far as our recommendation that it should be a statutory authority similar to the Civil Aviation Authority. But, since its formation, the Government have attempted to farm out a significant proportion of its survey work to private bodies, which, in practice, means generally to classification societies, which are the clients of the shipbuilders and operators. Are the Government satisfied that the MSA has the funds, the personnel and the powers which it should have in order to maintain high standards of safety in all respects? There are some of us who doubt it.
We also recommended that the MSA should become responsible for functions other than those it inherited from the Surveyor General's organisation, including marine traffic control. Are the Government satisfied that their relations with the coastguard, Trinity House and the air-sea rescue services, including the RNLI, are as good as they should be? Finally, we recommended that the Government should find ways to encourage ship science. What have the Government done in that respect in the three years since we reported? Not much, I think. I believe that I have asked the noble Viscount enough questions.
6.54 p.m.
Lord Kirkwood: My Lords, I too thank my noble friend Lord Perry for initiating this debate on accidents at sea. He and other noble Lords very clearly and adequately dealt with some of the issues of the 1993 annual report of the Port State Control Committee. That document concentrates mainly on organisational and management issues; the problems of the responsibilities of port state control as against those of the flag states; the standards of inspection; the penalties of delay and detention; the selection of ships for inspection; and collaboration and co-operation with other countries. On the technical side, the noble Viscount, Lord Caldecote, referred to the stability of ro-ro ships. I want to

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concentrate on another technical issue; that is, the technical aspects of the deficiencies encountered during inspection.
The report refers to,
"alarming levels of corrosion in essential structures, particularly older bulk carriers".
Consequently, members (of the Paris memorandum) embarked on special bulk carrier inspection programmes, focusing on the structural integrity of those ships.
Annex 4 to the report provides information on the number of deficiencies in various categories. Perhaps I may briefly outline them. The major categories are life saving appliances, 24 per cent. deficiencies; fire fighting, 17 per cent.; safety in general, 13 per cent.; and navigation, 12 per cent. The rag-bag category termed "Safety in general" is further broken down, and within that defects in the construction, hull and bulkheads of the ships amounted to something like 20 per cent. That may appear to be a small part of the whole, but since such things as life saving appliances and to some extent fire fighting equipment are needed only where failure of the structure occurs, structural integrity is clearly of prime importance.
For much of what I am about to say I am indebted to Mr. John Jubb, who is an expert on structural failures in hulk carriers. This is in fact the title of a lecture that he is giving at this moment at the Institution of Mechanical Engineers. I am concerned with catastrophic failures of ships at sea—catastrophic in human terms, with the loss of life of crew and officers, and catastrophic in engineering terms because failure of the ship's structure is so rapid, perhaps a matter of seconds, that there is no opportunity to send out Mayday calls or to take to the lifeboats.
The reasons for those catastrophic failures are complex. They include bad design resulting in stress concentrations in critical parts of the hull; corrosion which results in the thinning of ship's plate and structural members; and fatigue, which causes cracks to grow slowly at first to a critical length, at which point the crack propagates as a brittle failure through the whole structure at the speed of sound (several hundred metres a second). Brittle fracture is catastrophic and occurs without warning, and corrosion can aggravate the situation.
An important factor in the whole problem of structural integrity is the critical crack length above which catastrophic failure occurs. This is primarily a property of the material—in this case steel. A high strength steel—which is an attractive material to ship designers because it is a way of saving weight and more cargo can be carried—will have a critical crack length of only a few millimetres, almost undetectable by normal visual inspection. A grade A steel, usually required for shipbuilding, will have a critical crack length of a few inches, though no fracture toughness requirements are specified for that steel. A grade D steel, which is required for naval ships, will have a critical crack length of about one metre. That clearly gives a hugely increased safety margin as well as making a sub-critical crack easily detectable. It seems incredible that, when the steel industry has been
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developing over the past 10 years very clean steels with fine grain size for constructional purposes—both of which give greater toughness to the steel—for little or no extra cost, those materials should not be made mandatory in the construction of present-day ships.
I want to finish by making some remarks on inspection for defects, with quotations from Mr. Jubb. In his paper he writes:
"Actual structural failures highlight the uncertain ability to detect defects before they reach a critical length … Unfortunately while there are many references to quality management in shipbuilding literature, there are no quality systems that address visual inspection including cleanliness and illumination".
Further on he says:
"The enhanced survey requirements concentrate largely on thickness measurements and fail to address quantitative and authoritative assessment of crack size at any location, and local corrosion losses at the edge of plates adjacent to the weld".
He goes on to recommend the inspection procedures developed by the CAA and the FAA for the aircraft industry to be adopted also by the shipbuilding industry. That was also the conclusion of the Carver Select Committee, of which I had the honour to be a member.
There is no single or simple solution to the problem of the structural safety of ships. But it should begin with a requirement to design structures from first principles so that high stresses in critical parts can be avoided. Secondly, the minimum fracture toughness requirements of materials used in construction should be specified and the use of new tough steels should be encouraged. Finally, a quality system of visual inspection for structural defects should be established and adhered to.
7.2 p.m.
Lord Greenway: My Lords, I join other noble Lords in thanking the noble Lord, Lord Perry, for instigating this debate today. It is more than six months since last we had an opportunity to discuss shipping and all its ramifications.
I do not have to remind the House that the sea is, and always has been, a dangerous element. If we look way back we see that there has been a constant rise and fall in accidents at sea, often relating to certain types of ship. In the last century gross overloading went on for many years. That was finally put an end to by Mr. Samuel Plimsoll. The loss of the "Titanic" ensured that enough lifeboats were available for passengers. In the 1920s there was a spate of collier losses due to broken hatch covers. Research into that resulted in the arrival of modern steel hatch covers. More recently we have had many accidents involving explosions on large tankers, which has led to the introduction of all kinds of systems with inert gas and so forth. Today, as we have heard, the spotlight is falling on bulk carriers and ro-ro ferries. I shall have more to say on that subject in a moment.
Against all of this one must put the decline—the quite drastic decline in some instances—in the fleets of traditional maritime nations. Among that number is the United Kingdom. There has also been a drastic decline in well trained personnel. I shall have more to say on training and personnel later. This has been counterbalanced by a rise in nations new to shipping which in many ways cannot hope to emulate the

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standards that we have built up over the years. It is a complex and wide-ranging problem but things are being done.
Port state control is one example. I join my noble and learned friend Lord Donaldson in saying that port state control is one of the most effective ways yet devised to assist in raising standards. I do not think it will eliminate substandard ships entirely, but it is a good step in the right direction. The problem is that the inspecting authorities vary in their forms of inspection. If we can tighten up that area, the whole system will be very much more efficient. Against that, as I said a moment ago, some of the nations new to shipping find it very difficult to enforce certain of the standards that come out of the IMO. However, we are making progress and reports of offending nations and ships are now being circulated.
While I am on that subject, perhaps I may turn to some points raised by the noble and learned Lord, Lord Donaldson, in his report. He thought that a better way of doing this would be for the shipowners to pay for port state control. Not all shipowners are entirely happy about that. Their argument is that the system that exists at present—not everywhere but in a good many cases—under which offending ships pay is a far better way of going about it. It is a similar concept to that relating to pollution, under which the polluter pays. I believe I am right in saying that when a ship is inspected it is not charged. If it passes it does not have to pay anything. But, if a ship has faults, the surveyors might have to come back once, twice or several times. From that second visit they charge. The defaulting ship owners are in effect paying. That is the right way to go about it.
The noble and learned Lord also proposed a self-targeting system for ships coming to our shores and other shores for the first time whereby they would have to give 48 hours' notice of arrival, thereby allowing the authorities suitable time to gather an inspection committee. It sometimes happens that, for a number of reasons, a ship is unable to give notice. I am slightly worried that such a ship might fall into the category of being detained, which is the stick, for 48 hours. That may cause problems if it happens to be a passenger ship or a tanker, which may be dangerous. There is a slight worry on that principle and I think that we shall have to look at it a little more carefully.
The noble and learned Lord's report is excellent. It has been very well received. The Government's reply is fairly imminent and we all look forward with great interest to hearing what they have to say. Before leaving that subject, I would endorse fully what my noble and learned friend said with regard to the missions for seamen, which do a tremendous job.
I shall now turn to safety at sea and to bulk carriers, which have been mentioned by a number of noble Lords. A large number of those ships have been lost. By and large they have been elderly ships, 19 or 20 years old, and almost all of them have been carrying iron ore, a particularly heavy cargo. This problem is being addressed in a number of quarters. Lloyd's Register carried out an investigation in 1992 which revealed the disturbing fact that operators expected their ships to be damaged as a consequence of the environment in which
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they operate. Studies continue and one particular project which is under way at the moment is being undertaken by a number of learned bodies such as Lloyd's Register, a Japanese shipbuilder, the Australian Maritime Engineering Co-operative Research Centre and BHP Transport, a large Australian operator of bulk carriers, particularly ore carriers. The study is looking into all kinds of ways of monitoring stresses in bulk carriers with meters and a variety of electronic equipment. That is a very good way forward which in due course may help enormously, though I have a certain worry in that it probably means more VDU screens on ships' bridges and the poor officer of the watch these days has quite enough to look at without extra screens.
Perhaps I may now turn to ferries. The noble Earl, Lord Caithness, in his general safety comparison with other modes of transport, was quite right. Despite the press coverage, ferries are not necessarily dangerous, although they can be under certain circumstances. Indeed, all ships are dangerous under certain circumstances. I do not believe that the noble Earl mentioned an actual figure, but I understand that it is something like seven times more dangerous to travel in a motor car than it is on a ro-ro ferry. That must be taken into account. The problem is being addressed. Naval architects are hard at work trying to produce ideas to keep these ships afloat longer, and that is very much to be welcomed. I believe that Her Majesty's Government were quite right to resist the sealing of bow doors because I do not believe that to be necessary. Some of our ferry companies know exactly what they are doing. Some of them have fitted third doors to the ferries they brought from the Baltic. Their feeling is that they prefer to implement some of these features themselves. They know what is best in many instances. They have tightened up their procedures, insist on not sailing until all doors are shut and various other things.
I refer quickly to a point made by the noble Lord, Lord Perry, as regards the Government postponing the delegation of ro-ro ferry inspections to the classification societies. My understanding is that those societies are already involved. They inspect ships as do the Government inspectors. That applies to all passenger ships and not just ro-ro ferries. The Government have put this delegation on ice because of the IMO studies, and that is quite understandable. I ask the Minister: what is the position as regards cruise ships? Are the Government to go ahead and try to save costs by doing away with double inspection?
I should say a brief word about manning, as time is running out. It is estimated that there will be a shortfall of 750,000 mariners by the year 2000. I find that very disturbing. Where are the new crews to come from? Are we training enough people? A great many intelligent people want to go to sea but there are no berths for them. Some are going into marine-related industries but they have no sea experience. Today those jobs are filled by former seafarers, so there is a shortfall. Basic seamanship, which is most important, is lacking and tends to be overlooked. I believe that that may possibly have been one of the problems with the "Estonia",

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which may have been travelling too fast in conditions that did not warrant it. It is a problem of basic seamanship.
My time has run out. Finally, I concur with what the noble Earl, Lord Caithness, said, as regards the IMO. It is the best body to deal with many of these problems. Shipping is an international world these days and it should be dealt with internationally by the IMO. At times I am slightly worried by Europe. There is a danger that it might come in and add another level of bureaucracy, which is something the shipowners certainly do not want.
7.14 p.m.
Baroness Thomas of Walliswood: My Lords, in entering the debate in order to wind up for our side, I feel a good deal of trepidation. We have listened to speakers, all of whom, as I learned before I came into the House, have a specific expertise in the subject which we have been discussing. It would be ridiculous of me to claim any such expertise. Therefore, I shall try to stick to making comments in a way which reflect my knowledge of life in general rather than pretending to be an instant expert for this occasion.
A great many speakers have spoken vividly about something which struck me when I began to look at the briefing material with which I have been supplied; namely, the enormous number of different agencies which are operating in this field—the owner, the insurer, the classifier, the person who looks after the ship and the crew. There is a mass of people, all of whom are scattered across the world and who operate in the private sector. I do not mean that in any derogatory sense; it is simply a matter of fact. It has been suggested by one noble Lord or another that somehow we need to regulate them in the interests of safety at sea, which is a subject in which this country has historically taken a long and sometimes quite distinguished interest. If the Minister wishes to respond to any of the comments which I make, I hope that he will do so in the sense that I have put all my questions to him in the context of this very difficult situation where, as I say, we want a regulatory function over international organisations, all of which operate, as my noble friend said, in mutual secrecy and in the private sector. It is obviously an extremely difficult situation.
I now turn briefly to the subject of insurance, which is obviously connected to the ageing of vessels. As my noble friend and others have said, it is one of the proximate causes of accidents at sea, particularly among bulk carriers. Is there anything which the Government can do, either alone, with other states or through the IMO, to get at or influence the more irresponsible classification societies which, looking at the matter from my inexpert position, are one of the niggers in this particular woodpile? Are there any specific objectives which the Government should set themselves in dealing with the particular problems associated with the insurance of ageing ships?
For example, I have read suggestions from at least one person, and probably more, that as bulk carriers grow older they should perhaps have their loading limits reduced. That is something which we might pursue. The
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noble Earl, Lord Caithness, suggested that the IMO should become the policeman of these and other matters. I look forward to hearing from the Minister how he believes such a policing function can be set up and put into effect. I come from a background where there is a great deal of interest in international organisations of every kind and a great willingness to believe in their effectiveness. Nevertheless, it is precisely in this area where the difficulty lies of reconciling the individual and the regulatory power of an international organisation. That is where we get into our greatest difficulties.
I turn briefly to the subject of policing, or port state control, which set this whole debate going. Not only do several noble Lords who have spoken consider that control by the flag states is what is really desirable; the Paris Memorandum is also in favour of it. The 1993 report says in several places that the policing is only a fragile substitute for what should be happening. I was struck by the fact that the area of influence is actually growing.
We have a not fiercely dynamic, but nevertheless dynamic, institution here which is gradually extending its powers of control and inspection by encouraging the spread of its methods of operation to other regions, most notably the Caribbean, Latin America and the Pacific Basin. It is also in favour of establishing something to which many noble Lords have referred; namely, a database through which countries can exchange information about the ships which they have inspected, the faults they have found and the really bad eggs, as it were, that they have discovered. Again, I shall be interested to hear the Minister's response, but I should have thought that Her Majesty's Government might take an interest in trying to extend the operation of port state control to other areas of the world. Areas that are conspicuous by their absence are the Mediterranean basin countries, the Middle East and a good deal of the Far East. Is there any way in which we can use our influence to encourage the continuing expansion of the role of port state control through the activities of the member states of the Paris Memorandum?
I should like to refer briefly to the basic problem of ship construction. I was struck by the words of, I believe, the noble Lord, Lord Greenway, who, like my noble friend Lord Kirkwood, described the inadequacies of the design and construction of bulk carriers and ro-ro ships. That made me think about the enormous care that is taken to ensure that aircraft are constructed in a very controlled way. With aircraft we do not have the same problems of deficient standards or the inability to control the standards to which aircraft are constructed. That may be because airline construction is in the hands of relatively few large companies, whereas shipbuilding is far more widely scattered across the world. Other noble Lords have referred to the newcomers in the world of shipbuilding. But even if more companies are involved in shipbuilding than in airline construction, it seems to me that the number of companies is relatively limited. It is extremely important that all governments begin to impose, or to require, more severe certification as to a ship's seaworthiness along the lines that we have gradually begun to require for aircraft, particularly those

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used for passenger transport. That would have to be carried out through an international organisation of some sort or another.
Following the tragic loss of life on the "Estonia", everyone was made aware of the way in which ro-ro ships operate if water enters either through holing below the waterline or because of faulty front or bow doors. We have all become aware of the extent to which water can destabilise a vessel. Many people and organisations, including most recently the Royal Academy of Engineers, are urging the Government to take unilateral action in response to such disasters and to insist that all such vessels should be able to remain upright for 30 minutes following an accident at sea.
I believe that it was the noble Viscount, Lord Caldecote, who made it plain that, although older ships are not required at present to conform to such standards, there seems to be retrofitting of, for example, stabilising bags and other equipment such as that to subdivide the vehicle deck once it has been filled. Even if, for reasons of competition, we cannot insist on a car deck being permanently divided, I understand that there are ways in which the deck can be divided after it has been filled in order to prevent water rushing through the ship and destabilising it, as happened with the "Estonia". What are the Government doing to further that important aim of trying to ensure that existing vessels are safe for the future?
In reading for this debate, I noticed that a number of people are suggesting that the situation is becoming so competitive for the companies which operate ro-ro ferries that it is difficult to insist on increased safety standards. However, in conclusion, I draw your Lordships' attention to the comments of Sir Alastair Morton of Eurotunnel who spoke recently to a group of risk assessors, making an interesting point which is relevant to this debate. He said that whereas the Channel Tunnel has had to be created to what are almost super-safe standards, Eurotunnel and the lines using the tunnel are nevertheless competing directly with shipping which does not have to comply with the same level of safety standards with which he, quite happily, is having to comply.
7.26 p.m.
Lord Clinton-Davis: My Lords, I begin by congratulating the noble Lord, Lord Perry of Walton, on having initiated this excellent and well informed debate which has enabled a good deal of expert opinion to be offered. Perhaps I may touch first on one of the points that has just been made by the noble Baroness, Lady Thomas of Walliswood, and say that one of the most significant reasons for the safety differences between aviation and shipping is that so far, thankfully, there is little evidence of flags of convenience in relation to aviation.
We have had the great benefit of listening to the noble and learned Lord, Lord Donaldson of Lymington, who, with his committee, has produced a superb report. I ask the Minster to recognise that this short debate must not
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be seen as a substitute for a major debate in government time on that report when the Government have published their reply. The report deserves no less.
I am delighted to see the noble Earl, Lord Caithness, back in harness. It was nice of him to do what he did vis-à-vis his officials. I am sure that they appreciate it. I do not agree entirely with some of the noble Earl's points; but I shall come to them in a moment.
Tonight we are talking essentially about sub-standard ships which shame their owners and their flags and which are a source of major risk to the marine environment and the marine facilities of the nations that they visit. We are also talking about ways of at least mitigating, if not eliminating, some of those risks. We are therefore reflecting not only on the role of port state control in relation to that, but also on that of flag state control. I entirely agree with all those who have said that flag state control has to be improved. Indeed, we must improve our own.
Back in 1977 when I was the Minister responsible for shipping, I put forward an idea to IMCO, as it was then—the IMO succeeded it—to set up a marine safety corps. That idea was adopted and implemented for a time. The idea was that the developed shipping nations would make surveyors available to the developing countries, providing expertise so that they could create a better infrastructure for flag state control. Sadly, that idea seemed to fall into desuetude after a couple of years. Is there any chance of it being revived? The need is great.
Port state control must never be seen as an alternative to flag state control. I am not in any way seeking to diminish its importance, but all it does is to identify deficiencies in ships that should never have been allowed to develop in the first place—the fault of flag state control; the fault of the shipowners. But we are talking as well tonight of the flags of shame where flag states have virtually no connection with the vessels sailing the flag, let alone any proper infrastructure of regulation.
Some of the statistics we have heard from the noble Lord, Lord Perry, and others illustrate how some flags have declined in terms of effectiveness. That means there has been a diminution of effective control. That has arisen through economic stress, the recession and other reasons. But over the past 40 or 50 years, the maritime world and administration have been slow to recognise the iniquity of flags of convenience. After all, what is it? It is a system designed to enable shipowners to contract out of fundamentally important responsibilities; responsibilities for civilised treatment of seafarers; to contract out of taxation and internationally agreed obligations.
It has been commercially tempting for some shipowners to overlook technical and structural deficiencies; to cut corners; and too many have been aided and abetted by shippers and charterers—all in the name of commercial pressures.
The Paris memorandum arose because there was widespread concern about ineffective monitoring and supervision by large numbers of flag states. It did not however seek to tackle the basic problem posed by the very concept of flags of convenience. It focused on

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substandard ships. It may have been easier to do that. Perhaps it was the only pragmatic way of proceeding. What is reflected vividly in the report of the noble and learned Lord, Lord Donaldson, is "the quite appalling record" of defects in vessels visiting our ports. Some of those statistics have already been alluded to.
Too many geriatric rust buckets sail between ports or, perhaps more accurately, almost sink between ports. It is all catalogued in the report—corroded ballast tanks and safety brackets; the widespread neglect of lifesaving appliances and fire equipment—amounting all-in-all to a callous disregard of human life. When a flag of convenience seeks to improve its standards, like Liberia, what happens? It loses out. It is deserted by many, once again on the ground of commercial pressures.
The task of responsible maritime administrations must be to wage unremitting war against the type of practices that have been described. The price of failure is, indeed, unacceptably high. What has led to that catastrophic state of affairs? Undoubtedly, as the noble Lord, Lord Greenway, said, it is the decline in influence of respectable flags.
A number of noble Lords referred to the classification societies, some of which collude deliberately in declining standards and compete unfairly with the long-established societies. They all too readily accept changes in class of vessels rejected by the more reputable societies; they issue certificates which bear little relationship to the true condition of the vessel; they force down standards all the time so far as concerns the more respectable classification societies, but they, too, are belaboured by the fact that they are in a somewhat invidious position, because they are in a client/adviser situation. That weakens the force of their activities.
A good deal has been said tonight about the IMO. I do not believe that it is to blame for tardy behaviour and ineffectiveness. It is the fault of the member states of the IMO. Too many have a vested interest in opposing reform. Some are too poor to undertake the necessary changes. Combined, that can so easily, and has so frequently, frustrated reform. I do not believe that we can place entire faith in the IMO. I support completely what the noble Earl, Lord Caithness, said about Bill O'Neil. He is a superb leader, but he has what I have just referred to in the background of all his activities.
It is possible to engage in a limited form of regionalism to make progress. It has been done. It was done by the French, effectively, in 1976 with the "Amoco Cadiz"; it was done by the noble Earl with regard to the "Herald of Free Enterprise" in another limited way. It can take place, and it needs to be stimulated. The IMO should not be replaced by the European Commission. Of course not. It needs to be stimulated by regional activity and influence. There is a critical need to buttress international co-operation; to ensure that the Paris memorandum has wider effects in other parts of the world.
Some of your Lordships referred to the number of surveyors. I posed a number of questions in advance to the Minister who is to reply to the debate. I share the concerns expressed on that subject. Do we have sufficient surveyors? How many are employed by the MSA as compared with, say, five years ago? What is
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the potential for recruitment now that our own fleet is in a state of decline? We rely upon those seafarers to become surveyors in the public and private sectors.
The noble Lord, Lord Cooke, and others, referred to social affairs, in effect, on board ship. So much human error is responsible for shipping accidents. We hear a great deal about that, but we do not hear much about the poorly trained crews; the crews unable to communicate with one another; the appalling conditions found all too often on board; bogus pay books, suggesting that seafarers have been paid much more than they actually receive; and so much fatigue through working excessive hours. Will the Government be committed to the draft ILO Convention 109 in that regard? What steps are they taking to ensure that Convention 147 is applied in our port state control procedures?
I shall say a word about flag state control and the "QEII". That episode did not reflect well on our flag state control. I ask the Minister to indicate why that ship was allowed to sail to New York last December. We saw on our television screens frightening pictures of debris in the corridors, which could have had a devastating effect in the event of an accident. Why did that ship go to sea? Why did the United States coast guard feel compelled to intervene and detain the ship? How consistent was that with the surveyor's report at Southampton?
Many speakers have spent a good deal of time—I do not have much time to deal with it—on the issue of ro-ro vessels and bulk carriers. We need to take particular care in relation to vessels of those classes. We seem all too often to react to catastrophe: the "Estonia" incident happened and so we geared up our activities. When the "Herald of Free Enterprise" incident happened, we did the same. Why is there not more continuing vigilance over those types of vessels? We know that a great deal of work is being done in the IMO and DG.7, and I wish my friend Commissioner Kinnock well in everything he has to undertake. But speed is of the essence. Solutions must be dictated less by cost in financial terms and more by cost in human life.
I want to end on a matter which I consider to be serious. On 21st December 1994 the Secretary of State wrote to the Chancellor of the Duchy of Lancaster about the scope for greater private sector participation in ship survey and certification work, as part of the deregulation process. The Secretary of State said that in the case of ro-ros, the brake would have to be applied. So far so good; I agree with that. But we have to look at the motivation. I have the letter, and he made it clear that if a major accident were to occur after safety supervision had been sold off, then the Government would be accused of putting commercial considerations above safety. In the light of the "Estonia" he suggested that delegation of hull and machinery surveys of ro-ro passenger vessels should not proceed. He said:
"When the decision was made in 1993, we had no reason to believe that the inspection of hull and machinery was especially safety critical".
What rubbish! Who advised him to come to that conclusion? I have never heard such nonsense.

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This matter needs explanation. Short-term postponement is wrong. I hope that the Minister will make it clear that that is out of the window once and for all.
7.40 p.m.
Viscount Goschen: My Lords, this has been a most interesting and well-informed debate. I thank the noble Lord, Lord Perry of Walton, for providing us with the opportunity to discuss this most important issue of maritime safety. I echo the remarks of the noble Baroness, Lady Thomas, concerning the expertise of the other speakers, which of course includes the noble Baroness herself.
I shall attempt to answer many of the points raised this evening but there has been a great range of matters raised. I should begin by assuring the House that it remains this Government's firm commitment to seek and maintain the highest practical standards both for marine safety and for the prevention of marine pollution. We are currently acting simultaneously on a number of different fronts in pursuing that commitment, not least through our consideration of the report of the inquiry chaired by the noble and learned Lord, Lord Donaldson, to which I shall turn later.
The Motion tabled by the noble Lord calls attention to recent serious accidents at sea. By far the worst of them was the "Estonia" disaster last September. Such a tragedy reminds us all of the ever-present dangers of the sea. As a result of that tragedy, maritime safety in all its aspects has once again assumed a high profile and is undergoing a period of rigorous reassessment.
Preventing such accidents is of paramount importance. But such is the international character of the shipping industry, that no single country acting alone can hope to achieve that goal. That is one of the strong threads that has emerged from the debate this evening.
It has also been highlighted that international negotiations can be painfully slow, as we learnt in the aftermath of the "Herald of Free Enterprise" disaster. Our research, commissioned in the wake of that disaster, demonstrated conclusively the shortcomings of the then existing survival capability requirements for ro-ro passenger ferries in the event of damage following a collision or other severe accident. That is why we pressed hard in the International Maritime Organization for the worldwide adoption of a superior standard. We were not successful with that pressure. That is why consequently we brokered an agreement with our European Community partners, plus Norway and Sweden, to apply the desired higher standards to all ro-ro passenger ferries which were engaged in international journeys to and from United Kingdom ports.
We shall shortly be publishing a list of all ferries plying international routes to and from our ports, giving details of their current post-damage stability capability and the dates by which they must be modified to meet the requirements of the higher standards or be withdrawn from service. The list will show that the majority of those ferries already meet the required new
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standards. We are awaiting further details on some of those vessels for which our information is not yet complete.
It is regrettable that we were forced to act outside the forum of IMO negotiations in order to implement the higher standard. There has been much discussion this evening with the noble Lord, Lord Clinton-Davis, and my noble friend Lord Caithness, about the value or otherwise of smaller regional solutions, or indeed unilateral action. I firmly believe that the problems affecting shipping today require worldwide rather than regional solutions. But, if one cannot get exactly what one wants, in some circumstances it is wise to press for what one can get. As my noble friend Lord Caldecote recognised, and indeed the IMO must appreciate, we reserve the right ultimately to act alone, if necessary, to ensure implementation of the safety standards that we consider appropriate for our passengers and for the protection of our marine environment.
Since the loss of the "Estonia", enormous international attention has once again been paid to the question of the safety of such vessels. We are confident that those ferries serving our ports are safely maintained and operated. I am sure that the House will recall that in the immediate aftermath of the "Estonia" disaster, we ordered the Marine Safety Agency to conduct urgent checks on the bow doors of all such vessels which serve our United Kingdom ports. The results of those checks confirmed that generally high standards were being maintained. That is to be expected on ships which are already subject to a vigorous inspection regime. We have not stopped at that and action is being taken in respect of such ferries that were found not fully to comply with international requirements.
A great deal has been said this evening also about the value and the role of the IMO. I am pleased to add my backing to the remarks concerning the secretary general which have been made this evening. The IMO has now established a steering committee and a panel of experts to consider urgently what extra measures might now be taken on ferry safety. Experts from the United Kingdom are actively participating and are represented on that panel. We expect the panel to look again at the question of damage stability and to consider whether the standards that we have in place at the moment are adequate, following the likely circumstances in which we believe the "Estonia" was tragically lost. The results of the panel's deliberations should be available in May, with a diplomatic conference to adopt any agreed amendments to the SOLAS Convention later this year.
One area for particular consideration will be the question of the need for a safety case regime for ro-ro ferry operations. In 1992 the report of the noble and gallant Lord, Lord Carver, recommended the adoption of performance rather than prescriptive standards and that for the longer term—he acknowledged the longer term in the course of his remarks—we should consider a safety case regime for ship operations.
The Government's response to that recommendation highlighted the difficulties arising from the international character of the shipping industry and especially the potential for wide variations in interpretation and

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implementation by the various maritime administrations around the world, as well as the need for international agreement on safety standards.
Nevertheless, we have developed and taken forward those recommendations in international discussions. In 1993, the IMO reacted favourably to the United Kingdom proposal for the adoption of what is termed "formal safety assessment". That is an approach which is goal orientated. It facilitates the introduction of performance-based requirements and embodies the philosophy and principles underlying a risk-based system of safety management. The objective is the adoption by the IMO of formal safety assessment as a means to ensure that the regulatory framework for international shipping is both risk-based and consistent, and thus avoids the emergence of differing approaches. Significant research work is in hand in support of those objectives and to demonstrate the benefits and practicability of the new approach.
It would be absurd to suggest that the maritime world does not face very significant problems indeed. Too many of the world's maritime administrations are failing to honour their obligations under international agreements, whether through lack of capacity or lack of genuine commitment. The work of the IMO's relatively new Sub-Committee on Flag State Implementation is therefore to be very warmly welcomed indeed.
Perhaps I may turn to a point raised by the noble Baroness, Lady Thomas. It is the flag state failure which has led to the necessity for port state control. That was a theme developed also by the noble Lord, Lord Clinton-Davis. The fact that those administrations have failed in their responsibilities as flag states is not encouraging in relation to any potential responsibility in terms of being port states. The noble Baroness suggested that there should be wider imitation of the action taken by the Paris memorandum of understanding. Port state control is active in other areas of the world. The Tokyo memorandum is now active in the Asia-Pacific countries and is using similar guidelines to those used in the Paris memorandum. The Latin American MOU is also developing along similar lines. There are similar plans for the Caribbean.
Those seafaring nations which accredit themselves with responsibility in the implementation and enforcement of international standards cannot afford to stand idle while others fall short of the mark. That is why the inspection of foreign ships has become a major line of defence since the Paris memorandum on port state control was agreed in the early 1980s.
Real progress has been made by those countries, including the United Kingdom, which are members of the Paris group. The noble Lord, Lord Perry, referred to the 1993 annual report produced by the secretariat of that group. That report shows clearly that there is still much to be done to eliminate the use of sub-standard ships. On the other hand, it gives evidence that MOU administrations are not only inspecting more ships but that they are learning to target their inspections with increasing accuracy. That idea of targeting was one of the themes developed by the noble and learned Lord, Lord Donaldson.
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This improves the chances of identifying and, if necessary, detaining the worst offenders. Since that report was published, more work has been done to improve targeting, including the consideration of the proposals made by the noble and learned Lord, Lord Donaldson.
We take very seriously our responsibilities for the inspections of foreign ships. I am grateful for the support of the noble Lord, Lord Cooke of Islandreagh, and that of other noble Lords for the activities of the Marine Safety Agency's inspectors in inspecting so many vessels. We inspect at least 30 per cent., as against the 25 per cent. that is our undertaking.
Attention has also been drawn to the fact that we now publicise cases where ships have been detained. That is a strong, positive measure. It met with some opposition initially but, on balance, I believe that that has been a very worthwhile measure indeed.
It must be stressed that the recent attention focused on port state control should not be allowed to detract from the need to ensure that flag states honour their international obligations. The MOU annual report makes that point and it is a sentiment which the United Kingdom supports wholeheartedly.
The report of the noble and learned Lord, Lord Donaldson, which was commissioned in the wake of the loss of the "Braer", contains many recommendations aimed at improving safety and preventing pollution. It offers a comprehensive agenda for future action by us and others. The Government have already welcomed the report, as has the shipping industry, and it has generated considerable interest abroad. Discussions with other shipping Ministers in the Paris MOU and the European Union have left me in no doubt about the importance which they attach to the report and its recommendations.
Many of the report's recommendations cannot be implemented unilaterally but require international consultation and agreement. The Government intend to publish their response very shortly. That will identify those areas in which we have already taken action where we feel that unilateral action is appropriate.
The noble Lord, Lord Cooke of Islandreagh, my noble friend Lord Caithness, the noble Lord, Lord Greenway, and other noble Lords identified, as did the report, the human element as a key factor of most maritime accidents. Good management is important, and we are encouraging the widespread use of the IMO International Safety Management Code before its mandatory introduction. We welcome, and have encouraged, the European Commission's proposal that the code should be applied to ro-ro ferries operating to Community ports by July 1996. And we continue to support strongly the current revision of the Convention on Standards of Training, Certification and Watchkeeping at IMO.
The noble and gallant Lord, Lord Carver, asked about how we view the role of the European Union within this issue.
We believe that the European Commission is to be commended for its efforts in developing a Community policy on safe seas. Since the Ministers of the member states welcomed that policy in June last year, a wide

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range of proposals for Community legislation has been discussed. Many other proposals are currently being developed, and we shall continue to play an active role in EC negotiations.
The noble Lord, Lord Clinton-Davis, raised the issue of the "QE2". Bearing in mind that I am slightly short of time, I shall address that matter as quickly as possible. That incident provoked a great deal of comment in the national press. Before the vessel left Southampton for New York, it was thoroughly inspected by the Marine Safety Agency to ensure that it met the international convention standards. Refit work was not complete in all areas and hence the agency was able to issue a safety certificate only for a limited number of passengers for the voyage to New York.
Although I am satisfied that proper standard procedures were followed in that case, I have asked the chief executive of the Marine Safety Agency to consider the matter as part of his review of the agency's survey and inspection instructions.
A number of noble Lords raised the issue of delegation of survey and certification. I should like to reassure noble Lords that safety will in no way be compromised by that measure. There has been extensive consultation on those regulations. Our plans have been publicly known since August 1993. They have received support from the industry. As the noble Lord, Lord Greenway, mentioned, it is important to note that the classification societies to which the functions will be delegated already have sole responsibility for major areas of ship safety under the international conventions. We are confident that they are capable of increased responsibility under delegation.
A number of points were raised in relation to the Marine Safety Agency to which I would be delighted to respond but I do not have time.
There is still much work to be done to make our ships safer and our seas cleaner. But we are confident that our active approach to the development of maritime safety policy, both at home and in the international sphere, testifies to our commitment to the highest standards. The Government accepted all the recommendations made in relation to the "Herald" disaster, and we have been building on those important lessons ever since. Our strategy must be to continue to anticipate potential threats to safety and correct them in advance.
We believe that United Kingdom ships and seafarers are as safe as any in the world. Our survey and inspection regimes are as stringent as those of any other respected administration. The expertise of our professional staff in the Marine Safety Agency is unparalleled. But we cannot afford to be complacent and we shall not be so. I thank all noble Lords for all their comments and suggestions. I consider that this debate marks a further step towards our common goal of safer ships and cleaner seas.
7.58 p.m.
Lord Perry of Walton: My Lords, I thank all noble Lords who have taken part in the debate. I have learnt a great deal. I am sure that all noble Lords will agree that flag state control is the best way in which to achieve
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everything, but it will not work and it will not work in time. I thank the noble and learned Lord, Lord Donaldson, for reinforcing what I was trying to say and for saying so much better than I that port state control is the only way in which that will be achieved quickly. I thank the Minister for his remarks and I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.

Human Rights Bill [H.L.]
8 p.m.
Baroness Blatch: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Human Rights Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Lord Lester of Herne Hill: My Lords, I beg to move that this Bill be now read a second time.
The purpose of the Bill is to incorporate the rights declared by the European Convention on Human Rights and by the First Protocol to the Convention into the law of the land. The Bill authorises British courts to provide speedy and effective remedies to the victims of breaches by the public authorities of the United Kingdom. It gives practical effect to the European principle of subsidiarity and to the domestic remedies rule. That is what was intended by the makers of the convention. It requires judgments to be made locally by our own courts before recourse may be had internationally to the hugely overburdened European Commission on Human Rights and European Court of Human Rights.
In introducing the measure, I am following the path of many remarkable Members of this House over many decades: notably Viscount Samuel, the Earl of Arran, Lord Wade, Lord Broxbourne and the noble and learned Lord, Lord Scarman. I walk in their footsteps with gratitude and humility. I am very sorry that the noble and learned Lord, Lord Scarman, is unable to be present for tonight's debate because Lady Scarman is seriously handicapped by illness. The noble and learned Lord has given wise and inspiring leadership to the movement for constitutional reform for 30 years and has asked me today to express his strong support for the Bill.
The convention is the jewel in the crown of the Council of Europe. It reflects universal human rights and freedoms, as well as duties and responsibilities. It owes much to British legal drafting and much to the philosophy and values of British thinkers of the past three centuries—ideas and values bequeathed to us by Edward Coke, John Locke, John Milton, William Blackstone, Tom Paine and John Stuart Mill as part of our precious heritage. The convention's makers also drew upon the English common law tradition, including the ancient writ of habeas corpus, and the great British constitutional charters which are our birthright: the Great Charter (the Magna Carta), the Petition of Rights, the English Bill of Rights, the Scottish Claim of Right and the Act of Settlement.

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The convention has been ratified by 30 European states. By this summer all but two of the 30 states—the United Kingdom and Ireland—will have incorporated convention rights directly into their national legal systems. Sweden has done so recently and Norway is doing so. All other contracting states, including Ireland, also have constitutional Bills of Rights defining state power and protecting the individual citizen against the tyranny of majorities and the misuse of government power by public officials.
Even though it is not part of our law, the convention is well known in this country as an important means of protecting civil rights and liberties against the misuse of the powers of public authorities of the state. That is because of the many well-publicised and significant cases in which the United Kingdom has been found by the European Commission and Court of Human Rights to have breached the convention. In the absence of effective domestic remedies, there have been more findings of serious and significant breaches of the convention by the UK than by any other contracting state.
The relevant convention provisions are contained in the first schedule to the Bill. I shall not attempt to summarise them. The UK was the first state to ratify the convention on 8th March 1951. The convention came into force on 3rd September 1953. Since January 1966, successive governments have permitted alleged victims to have recourse against the UK to the European Commission and Court of Human Rights.
The Cabinet papers which I have read show that in 1950 Lord Chancellor Jowitt regarded it as axiomatic that the Attlee Government would have to introduce a measure to incorporate the convention's rights into domestic law as a necessary consequence of ratification. However, for the past 44 years since ratification successive governments have refused to do so, compelling our fellow citizens to take the long and costly road to Strasbourg instead of obtaining speedy and effective redress from British courts. Successive governments have refused to have their considerable powers limited by law or judicially reviewed against the standards of the convention.
Again and again, the European Commission on Human Rights and the European Court of Human Rights have had to deal with UK cases because of the absence of effective British remedies. Britain's dirty linen has been washed slowly, expensively and inefficiently in Strasbourg, much of the fabric still stained afterwards or cleaned far too late to be of value to the customer. Meanwhile, British judges are unable sufficiently to help at home because they have no parliamentary mandate to do so. Failure to incorporate also means that we lack a coherent legislative framework to guide our courts when deciding cases involving human rights questions, where choices have to be made between competing human rights and between individual claims and the interests of the community as a whole.
In November 1968, in a lecture given to a Fabian Society audience, I first called for the incorporation of the convention into UK law so that the people of this country, like the citizens of the other states parties, could obtain speedy and effective remedies before our
1138
own courts. That was then regarded as rank heresy by many supporters of the Labour Party, just as it has remained an anathema to successive Conservative administrations.
In 1972, a Conservative Government persuaded Parliament, upon our joining the European Community, to incorporate Community law into UK law. As noble Lords know, Community law takes priority over inconsistent national legislation and is directly effective in our courts. Community law also confers rights on individuals which national courts must protect. Where Community law is directly effective, our courts are commanded by Section 2 of the European Communities Act 1972 to interpret all existing and future UK legislation in conformity with Community law, where necessary displacing national legislation to give effect to Community rights and duties.
The present Bill seeks to give similar effect to European Convention law as the 1972 Act gave to European Community law. Parliament retains its sovereign power to repeal or to amend the Bill; but, unless and until it does so in plain terms, British courts are directed to interpret existing and future legislation so as to comply with convention law, just as they now do in giving effect to Community law.
I shall revert briefly to the history. In June 1976 the then Home Secretary, my noble friend Lord Jenkins of Hillhead, published a discussion document on legislation on human rights, with particular reference to the European Convention, summarising and analysing the relevant issues fairly and in depth. Later that year, Lord Wade introduced the second of his Bill of Rights Bills. It was referred to a Select Committee chaired by the noble Lord, Lord Allen of Abbeydale. The Select Committee took evidence from many quarters. One of the most eminent Conservative supporters of the Bill was the noble and learned Lord, Lord Hailsham of Saint Marylebone, who stated that, as part of,
"a radical overhaul of our constitutional arrangements, a Bill of Rights entrenching the European Convention is a modest, but desirable, addition to the armament of liberty against populist or bureaucratic intrusion and oppression".
I respectfully agree.
Meanwhile, in November 1977, the Standing Advisory Commission on Human Rights in Northern Ireland published a report, to which I was privileged to contribute as a special adviser, strongly recommending incorporation of the convention. That was also the view of the Northern Ireland Constitutional Convention, chaired by the noble and learned Lord, Lord Lowry, which reported in November 1975, and is the prevailing view among both traditions, Republican and Unionist, in Northern Ireland.
In May 1978, the Select Committee of this House reported that it was in favour of the Bill, although its chairman, the noble Lord, Lord Allen of Abbeydale, was in the dissenting minority. Lord Wade's Bill was duly passed by this House but was defeated in another place in December 1979. In November 1980 the indefatigable Lord Wade made a third attempt. Once more his Bill was passed by this House and once more it was defeated in another place. A yet further attempt was made almost nine years ago—the last attempt—when Lord

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Broxbourne, with the support of the noble and learned Lord, Lord Scarman, introduced a Human Rights and Fundamental Freedoms Bill which was passed by this House in April 1986, but after receiving a Second Reading in another place, on the initiative of the distinguished Conservative Member of Parliament, Sir Edward Gardiner, QC, the Bill progressed no further.
In passing these Bills, this House has been in close harmony with the popular will and informed opinion. Independent polls show that incorporation has the support of most of our fellow citizens. The early judicial supporters of incorporation, led by the noble and learned Lord, Lord Scarman, included two former Lord Chancellors, Lord Gardiner and the noble and learned Lord, Lord Hailsham. They have been joined—I hope he will not mind my taking his name in advance or in vain—by the Lord Chief Justice, the noble and learned Lord, Lord Taylor of Gosforth, the Master of the Rolls, Sir Thomas Bingham, and several Law Lords. The Bar Council and the Law Society also now favour incorporation. So does Justice, under the distinguished chairmanship of the noble Lord, Lord Alexander of Weedon, and a former Home Secretary, Sir Leon Brittan.
The Liberal Party was the first political party to advocate incorporation. For some 40 years the Labour Party, as I have said, was implacably hostile. But there has been a sea-change in its attitude. It now makes common cause with Liberal Democrats in supporting incorporation. Indeed, all of the Opposition parties, including the Ulster Unionists, are now in favour of making the convention directly enforceable in our courts.
In the absence of incorporation, our courts have done their best to give effect to the convention. They have treated it as persuasive where the common law is uncertain or incomplete or where statute law is ambiguous. Whether sitting in the Judicial Committee of the Privy Council and interpreting the Bills of Rights of Commonwealth constitutions or interpreting and applying European Community law, our judges have shown themselves as well equipped, in my opinion, as any courts anywhere in the world to use convention law in a wise and enlightened way.
But unless and until Parliament gives them a clear legislative mandate, there are limits to what our courts can do. Crucially, they cannot provide effective redress in cases involving the misuse of public powers in breach of convention rights; and our exceptionally able judges cannot make a full and powerful British judicial contribution to the progressive development of European legal principles in the human rights field. So we unnecessarily add to the excessive burdens of the European Commission and Court of Human Rights and weaken the potential influence of our own legal system right across Europe.
Four years ago, in the Brind case, which sought unsuccessfully to challenge the Government's ban on the direct broadcasting of statements made by Sinn Fein and its supporters, the Law Lords rejected the judicial incorporation of the convention to review the scope and operation of Ministers' powers. They decided that, if
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they were to interpret Ministers' very broad statutory powers—in that case to censor broadcasting—as being limited by or subject to the convention, they would be usurping the functions of Parliament by incorporating the convention through the back-door. So legislative incorporation is plainly necessary.
The Government have recently accepted—I refer to the Official Report, House of Lords for 7th December 1994, col. WA 84—that Ministers and civil servants must comply with the convention in discharging their public functions. But the Government have not accepted that Her Majesty's judges in discharging their public functions have a similar duty to comply with the convention—Official Report, House of Lords, 9th January 1995, col. WA 1. Unless and until Parliament makes the convention part of our law, the duties of public authorities under the convention are not legally enforceable. They give rise to no legal remedy in our courts. The present Bill is designed to fill that major and significant gap.
Another consequence of the failure to incorporate the convention is that there is no constitutional citizen's charter prescribing core rights, freedoms and duties for everyone within the jurisdiction of the UK on the basis of equal citizenship. This Bill prescribes a binding code to strengthen the unity of our somewhat disunited kingdom. It encourages national unity by prescribing core standards which a future Scottish Parliament, or Welsh Assembly, or Northern Irish governing body, or English regional or local authority, like central government departments, will have to respect.
The statutory code enshrining the convention encourages everyone, everywhere within the UK, to cherish the positive value of being a British citizen. The code also gives guidance to Ministers and civil servants, to Parliament and the courts, and to ordinary men, women and young people. In place of ethical aimlessness and excessive bureaucratic discretionary powers, it encourages a culture of ordered liberty under the rule of law.
I shall not detain the House with a detailed account of the Bill's provisions as they are described in the explanatory memorandum. However, I will, if I may, draw attention to a few salient points. Clause 1(1) makes section 1 of the convention and the first protocol part of the law of the United Kingdom and ensures that they will be given full legal effect. I have confined the Bill to incorporation of the convention, together with the protocols so far ratified by the UK, as there is a consensus in the three main political parties that the rights set out in the schedule to the Bill should continue to be enjoyed by everyone within our jurisdiction. I am well aware that there are additional rights in the International Covenant on Civil and Political Rights which the UK is also bound to implement effectively in domestic law. That is a matter which requires further consideration once the present Bill is enacted.
Clause 1(2) has the effect of abrogating any existing rule of law in so far as it is inconsistent with the convention. Clause 1(3) prevents any Act of Parliament or statutory instrument from being enforced or from being relied upon in any way in any legal proceedings to the extent that it is inconsistent with convention law.

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It is similar in its legal effect to Section 2(4) of the European Communities Act 1972, in that it requires our courts to interpret and apply existing and future legislation in accordance with European law. However, although Parliament cannot effectively legislate in contravention of Community law, that is not the case with the provisions being incorporated into this Bill. If it is enacted, it will remain open to a future Parliament to alter the position by clear and explicit amending legislation. In the absence of such legislation—which might risk being declared by the European Court to breach the convention—the task of our courts under Clause 1(3) would be to eliminate any mismatch between our statute law and European convention law.
Clause 1(4) provides that judicial interpretation of the convention shall follow the precedents set by the European Court. Our courts will not have to start from a completely fresh standpoint in construing the convention and determining the extent of its rights and obligations but will follow Strasbourg case law.
Like Lord Broxbourne's Bill, Clause 4 creates a right of action as breach of statutory duty for violation of the incorporated convention rights in the performance of public functions. It does not create a direct right of action against persons acting in a private capacity, because that is not the object of the convention. The Bill creates what is in essence a constitutional tort. However, the incorporated convention would, as at present, continue to influence our courts' interpretation of private law as well as of public law; for example, the contours of defamation law or the protection of personal privacy.
In other common law jurisdictions, including Canada, India, the United States and Ireland, it is well established that compensation is payable for some breaches of constitutionally guaranteed human rights and freedoms. The Judicial Committee of the Privy Council has held that the same is true of breaches of Commonwealth and Caribbean constitutions.
As with any other statutory duty, the circumstances in which a breach gives rise to a claim for compensation will have to be determined on a case-by-case basis. The cases in which compensation is recoverable for breach of the convention are mainly well recognised categories of our existing law: cases not only of misfeasance in public office, but also trespasses by public officers involving assault and battery, false arrest, false imprisonment, malicious prosecution and wrongful interferences with the right to property. All those wrongs are actionable in our own courts now.
There may be other cases in which our courts will fashion appropriate remedies for the constitutional tort of breaching the convention, depending upon the nature and circumstances of the particular breach. They will have to do so, not least because of the need to secure effective domestic remedies in accordance with Article 13 of the convention.
The noble and learned Lord, Lord Woolf, who unfortunately cannot be present tonight but who has, I believe, authorised the noble and learned Lord, Lord Taylor of Gosforth, to explain his position, has kindly informed me of his doubts about the particular terms in which Clause 4 is drafted. I well understand his
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concerns about its potentially broad reach. I suggest that that is a matter which will merit careful scrutiny during the Committee stage so as to ensure that our courts are able to give effective domestic remedies, including compensation where appropriate, for breaches of convention rights.
Neither the European convention nor the Bill is a panacea. As the eminent judge, Learned Hand, reminded his fellow Americans a half century ago:
"Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. While it lies there, it needs no constitution, no law, no court to save it".
But a constitutional guarantee surely acts as a rallying point and a bulwark for all who cherish freedom. It strengthens the sinews of democracy and promotes good governance. It provides orderly legal redress for infringements of civil rights and liberties, and it contributes to public education in winning hearts and minds. The power of government needs to be matched by the power of the law if the individual is to be secure. The law of the British constitution should encourage the spirit of liberty, and our courts should give redress where basic civil rights and freedoms are infringed. For those reasons, I commend the Bill to your Lordships.
Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)
8.24 p.m.
Lord Taylor of Gosforth: My Lords, I shall not detain the House long. The Bill before us is short, and I venture to suggest that our speeches should reflect that. Nevertheless, it is of great importance. My noble friend, Lord Lester, has already outlined the main arguments in favour of the Bill, and I should like to endorse the points he has made. I should add that, although I cannot comment for the judiciary as a whole, I can assure the House that what follows has the strong support of the Master of the Rolls, Sir Thomas Bingham, and of my noble and learned friend, Lord Woolf, who, as has been mentioned, regrets that he is unable to be present during the debate.
We have a proud tradition of freedom in this country, a freedom which has largely derived from the strength and vigour of the common law. But, strong as that tradition is, I do not think that we may safely rely on it for all purposes in the modern world. Nor have successive Governments thought so.
We ratified the European convention that forms the schedule to the Bill as long ago as 1950. We have allowed our citizens to enforce their rights under it through the European Court of Human Rights since 1966. The convention is therefore as much a feature of our constitution as life peerages or the holding of a referendum.
We are bound to give effect to decisions of the European court, and if our law does not accord with it we are bound by treaty to change our law. Despite our tradition of freedom, there have been many instances in which our law has had to be changed. One field in which that has occurred a number of times concerns the rights of prisoners, and especially the procedures regarding life prisoners.

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It is not helpful to debate our record of compliance with the convention or to compare it with that of other signatories. The question is: why should any of those litigants who have exercised their right of petition in order to enforce their fundamental human rights have been compelled to go all the way to Strasbourg—distant not only in space but more importantly in time—to obtain a remedy which could have been granted by a domestic court in the United Kingdom?
The answer usually put forward in response is that to allow United Kingdom courts to apply the convention directly would involve the judiciary in political issues from which they are supposedly sheltered at present and would displace the supremacy of Parliament. I do not believe that those arguments withstand serious scrutiny.
Judges have, with the growth of judicial review, been increasingly required to consider issues having a political dimension. For example—and it is only one example—they have had to review the conduct of Ministers. They have on occasion struck down decisions of Ministers. That has not led to any collapse of confidence in the political impartiality or independence of the judges. Rather the reverse.
As to the supremacy of Parliament, in the field of European Community Law the Factortame case is an example of our own judges having to give an EC directive precedence over an Act of Parliament, the very thing which opponents of the Bill say would make the constitutional roof fall in.
In fact it is not the proposed change but the present situation which is worrying from a constitutional viewpoint. At present, the aggrieved citizen is advised that his or her fundamental rights under the convention have been infringed. He or she cannot obtain any immediate remedy but must pursue a hopeless application through all the United Kingdom courts, including your Lordships' House. At the end of this procedure, the case can be argued in Strasbourg (with all the delay which that involves). The European Court eventually decides that the Government are in breach of their obligations, with the attendant criticism and embarrassment to which I have already referred. Finally, many years after the actions complained of, the law has to be altered by Parliament. Is that any way to offer protection for freedoms which have existed under our constitution for nigh on half a century? All it does is to put off what the Government see as the evil day when we have to come into line with our treaty obligations. As I have said before, and I repeat it, it is as though when we signed the treaty we were saying, "God, make us good, but not yet".
It is because of that anomaly that I support the Bill. However, I must qualify my support in two respects, in both of which I am authorised to say that the Master of the Rolls and my noble and learned friend Lord Woolf concur. First, I would wish there to be a power whereby Parliament could expressly override the provisions of the convention if an exceptional need arose. The power of the New Zealand Parliament to override its Bill of Rights is a workable precedent for that. I would expect
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such a power to be exercised very rarely, if at all, but it is conceivable that some need special to the United Kingdom might make it necessary.
Secondly, I am concerned by the suggestion in Clause 4 that a violation of the convention should give rise to an action in damages as of right for breach of statutory duty. I should have thought that the range of discretionary remedies which has been developed by the courts in judicial review, including, where appropriate, compensation, would be much more suitable. I am glad to know that my noble friend Lord Lester agrees that this should be subject to review at the Committee stage. But the overall purpose of the Bill is in my view incontrovertible and I commend it to the House.
8.31 p.m.
The Lord Bishop of Southwark: My Lords, I am grateful to the noble Lord, Lord Lester, for introducing the debate. I am grateful to the noble and learned Lord, Lord Taylor, for his suggestion that speeches may be kept fairly brief. I cannot match the expertise and knowledge of the noble and learned Lord, but I certainly hope to match his brevity.
The rights of the individual and the responsibility of nation states to maintain those rights are matters to which the Christian community is deeply committed. I therefore welcome the possibility that the European Convention for the Protection of Human Rights and Fundamental Freedoms should be incorporated into the domestic legal system of this nation.
Whereas we hear much said about the encroachment of European legislation and bureaucracy upon our lives, what we are talking about in this instance is something completely different. Our Government played a key role in drafting the convention that we now consider. For 40 years we have adhered to it. Countless numbers of ordinary people have over those years sought redress through its provisions for situations in which they have been the victims of injustice. In short, we have benefited as a nation from that convention.
Yet to this present time those remedies have had to be sought outside the United Kingdom. To incorporate the European convention into British law would make the entire process more transparent and much quicker. It would not undermine rights or freedoms, but would enhance them. That theme was touched upon by the most reverend Primate the Archbishop of Canterbury in the speech which he made to the Council of Europe in 1993. In recognising the importance of the convention and expressing his admiration for its achievements, he concluded by saying:
"The arguments for incorporation of the Convention into British law grow more pressing".
In the two years that have passed since he made that speech, the pressure has not grown less.
There is also a dimension to this in which I have a more personal interest. There would be real additional advantages to the incorporation of the convention with respect to the future of Northern Ireland. As part of the domestic legislation of the Province, it would provide additional safeguards for the people so that justice is both done and seen to be done in that particularly

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difficult context. The incorporation of the European convention into domestic legislation in both Britain and Ireland was, as we heard, urged in the 1988 report, Human Rights and Responsibilities in Britain and Ireland, a project for which the most reverend Primate the Archbishop of York served as president, and the noble Lord, Lord Lester, and the current President of the Republic of Ireland, Mary Robinson, served as consultants.
We are already bound by the provisions of this convention. We already have the opportunity to have recourse to the remedies for which it provides. What we should be supporting here is the opportunity to make the citizens of this nation more aware of their rights and providing them with more speedy and accessible opportunities to right wrongs. Though I cannot claim any expertise in the legal and constitutional issues that are necessarily bound up in our consideration of the legislation before us, I believe that fundamentally we have nothing to fear from the proposal but much to gain.
8.35 p.m.
Lord Donaldson of Lymington: My Lords, I very much welcome the Second Reading of the Bill because it gives a full opportunity to Members of the House to express their views on what undoubtedly are important issues which have been much debated over a long period. My only reservation is that I have a shrewd suspicion that I shall find myself in a minority of one.
I have great concerns about the Bill—concerns which, I confess I was surprised to learn on lunchtime television were not shared by my noble and learned friend the Lord Chief Justice and my most distinguished successor as Master of the Rolls, Sir Thomas Bingham; but there it is. When several lawyers are gathered together, it is not unusual to find a certain difference of opinion, albeit perhaps unusual to find so deep a division as may well exist here.
I think that it is important to remember that in this country our approach to human rights is, and always has been, different from that of many others. It is a difference of which I personally am very proud. It lies in the fact that in this country the citizen does not have to identify any right to justify his conduct. He has total freedom of conduct unless restrained by law; and it is for those who complain of his conduct to identify what law it is which interferes with his freedom. He has no need of a list of freedoms, or rights of freedom. He has them anyway.
Those legal restrictions to his otherwise unfettered freedom arise in two different forms. First, there are the restrictions imposed by the common law. When sitting as a judge, I have from time to time been referred to the convention as an aid to an argument as to the law. But I do not remember it ever being suggested that there was any inconsistency whatsoever between the common law of England and the terms of the convention, at any rate as understood by an English lawyer. Secondly, there is the statutory law, which provides restrictions on the freedom of the citizen.
I have no doubt that all, or virtually all, Members of both Houses of Parliament accept the principles set out in the convention. But they are necessarily broad
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principles to which exceptions may need to be made in the public interest outside any derogations contemplated by the terms of the convention. I have also a strong feeling that, while all, or most, Members of both Houses of Parliament would say, "Yes, of course we accept the convention wholeheartedly", when one puts a particular case in front of them and says, "Now this is said to be a breach of some term of the convention", they would say, "But good heavens no, of course it isn't".
Then the question would arise of whether they are right or wrong. I can give the House a small example which I think would cause dissension as to whether or not the convention was breached. I take Canada, which in effect incorporated the convention a few years ago. There was a challenge under Article 6, I think, of the laws relating to the illicit trade in drugs, on the basis that the burden of proof had been reversed where a criminal was found in possession of drugs. I think he then had to show that he was not a supplier and the burden was on him to prove it. That was challenged. I can well imagine that some authorities might say, "Yes, that is a breach of his rights". But many others would say, "Well, it isn't, when you come to consider the principle which underlies the appropriate article of the convention". Ironically, in that case there would undoubtedly have been no breach of the convention if one had taken away some of the accused's rights and made the possession of illicit drugs an absolute offence so that there was nothing left for him to prove. That kind of consideration is important before we rush to incorporate the convention.
However, I have a much greater worry about the convention. I firmly believe that we live in one of the greatest and best functioning democracies that the world has seen. I am not saying that it is not capable of improvement; of course it is. But it is in the front rank of true democracies. The Members of the other place are elected and, under the Parliament Act, they have the last word. Accordingly, I do not have to go into the interesting discussions as to how democratic this House is. For the purpose of the present discussion, it suffices that the other place has the last word and it is an elected body.
What is proposed is that Parliament's right to govern should be restricted by the convention. I find that constitutionally totally unacceptable. I have often thought that Parliament—and I use these words colloquially and in quotation marks—"had taken leave of its senses". However, I recognise and still believe that ultimately it is the right of Parliament to make some stupid decisions. If someone else thinks that they breach human rights, again that is the right of Parliament. It is not said that the courts should have the opportunity to override Parliament, operating on an ordinary domestic jurisdiction. Personally, I would think that that too was unacceptable. I go along with the idea that the courts could express an advisory opinion for Parliament to consider, but that is a different matter and is not what is proposed here.
What is proposed is that the United Kingdom courts shall set aside Acts of Parliament, not because they think that the Acts of Parliament breach the convention, not because Parliament thinks that the Acts of Parliament

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breach the convention but because—and I must refer to this because it is accurate—a foreign court thinks that those laws breach the convention. That must, in large measure, be a matter of interpretation. A significant factor in deciding what is and what is not a breach of the convention is the background, the history and the social background as well as the attitudes of the British people. It is they who should decide that, either through the ballot box or, if they wish to give the power to the courts, so be it. But it should not be decided by an external body. I find the whole principle of the Bill totally unacceptable. The basic assumption is that Strasbourg knows best and I am quite convinced that it does not know best.
The noble Lord, Lord Lester, suggested that the courts' powers of judicial review were in some way inhibited by the fact that the convention is not part of our law. I have spent a lot of time in my judicial career exercising the judicial review jurisdiction and, I hope, extending it. In fact, I know that I extended it in ways which were distinctly disagreeable to the Government but which I regarded as being absolutely essential and part of what one might describe as the common law approach. But I never felt in any way that anything I was unable to do involved an inability which stemmed from lack of the convention as part of English law. I dare say that Ministers would say: "Well, goodness me, look at what the courts do to us without the benefit of the convention. We tremble to think what they would do with it". That may be, but it is a partisan view. I merely say that I never found the lack of the convention any problem.
The noble Lord, Lord Lester, also suggested that the Bill would create something in the nature of a constitutional court. I have never heard of a constitutional court which was constituted in its vast majority by citizens of another nation.
I should just mention one practical objection, which I am sure could be dealt with in Committee. It is that in the face of Clause 1(3) and (4) it seems to me that it would be very difficult to enforce any act or instrument to which there was a bona fide challenge until the European Court and the commission had ruled upon it. Indeed, it goes further than that because I may have misread the Bill. I think that the requirement is to give effect to the views of the commission as well as the court. We could have the situation which we have at the moment where the commission has expressed a view and the court has not yet got round to expressing a view. Whether I am right or wrong about that, I have little doubt that if my construction is basically right, we shall be faced with a species of "convention blight" which would make government extremely difficult.
One other point which might be cured in Committee is this. The Bill is designed to be fully retrospective to whatever the earlier statute is on the statute book. We have had the disappearance of the power to bind over under a statute of about the 1300s. I am not sure exactly when it dates from, but the statute has been around for a very long period. The Canadian experience, which can easily be checked with our Canadian colleagues, is that when they introduced their Charter Act, as I think they
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called it, which provided that any citizen could challenge any Act or instrument of whatever antiquity, the courts—in particular the Supreme Court—became totally and completely blocked with charter cases. Initially it was not possible to strike them out. No doubt I would have said, "That's nonsense", but it may be that my noble and learned friend Lord Taylor would say, "That is extremely plausible". Until a body of case law had been built up—which took a considerable time—the courts were clogged up. If there were a special court dealing with this, it could clog itself up, but we have enough trouble with the ordinary courts at the moment without that being brought in.
If the Bill goes ahead—and I devoutly hope that it will not—it may be possible in Committee to have another look at the fully retrospective aspect, which I regard as being undesirable. I have taken up too much of your Lordships' time, but, as I am probably the only member of my party—a party of one—opposing the Bill, perhaps I may be allowed a little extra time.
8.49 p.m.
Lord Browne-Wilkinson: My Lords, I join the noble and learned Lord the Lord Chief Justice and the right reverend Prelate the Bishop of Southwark in welcoming the presentation of the Bill. My noble and learned friends Lord Lester and the Lord Chief Justice have illustrated the extraordinary anomalies from which we now suffer. We have a treaty obligation, under Article 13 of which this country and this Government are bound to afford to everyone whose rights and freedoms are set forth in the Convention and which are violated, an effective remedy before a national authority. I do not know, but at first reading it appears that the failure to incorporate and provide an effective remedy before the national authority of the member state—in this case the United Kingdom—is itself in conflict with the treaty obligation. However that may be, this country has an honourable record in complying with decisions of the European Court of Human Rights. Retrospectively it complies.
One asks oneself: how did we get to a position where this country—which, as my noble and learned friend Lord Donaldson of Lymington so graphically described, prides itself on its freedoms going back over the centuries, it being in the forefront of democratic freedom; its principles of freedom being the very basis on which much of the convention was based in drafting; being one of the progenitors of the convention itself—is found more often to be in breach of that convention than any other member state? It is an astonishing position. I am tempted to call it an Alice in Wonderland position. We are in breach of the international obligation. All our governments for the past 40 years have accepted this obligation. They have accepted the duty to observe these human rights; and yet we do not allow our own courts to do that very thing themselves. That must be a major reason why we are so constantly and so publicly disgraced—I am afraid I use the word "disgraced" with deliberation. That this country with its history should be found so repeatedly in breach of its international obligations to provide freedoms is very shocking.

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The objection, as usual so eloquently presented by my noble and learned friend Lord Donaldson, always comes down at the end of the day to sovereignty—the supremacy of Parliament. I am not one to disregard that factor. I do not share it, but I believe it is a very real consideration, and that to confer on the court the right to strike down the statute—which is effectively what this Bill will propose —is a very major constitutional step indeed. I fully recognise that different views can be held about it. I just hope that the Bill does not die the death in any form on that ground alone.
I hope not to be too technical—this looks too much like a lawyer's party anyway. The main reasons why this country has been held in breach of the convention is not that Parliament has specifically enacted any measure which is in breach of the convention. It is not because, save on one or two occasions, the common law of this country has been found to be in breach. It is for the very reason that my noble and learned friend Lord Donaldson of Lymington mentioned; namely, our traditional English freedoms are freedoms, not rights; and like any other common law freedoms they are subject to abridgement and curtailment by Act of Parliament. That is where we have been found to be at fault—not in our general institutions but by the operation of Acts of Parliament. It is not in the substantive provisions of the Acts which this House and the other place have passed that we have been found wanting. We have been found wanting by accident.
It is an essential feature of any legislation in the modern state that it is bound to confer discretionary powers on the Executive to operate the powers that are conferred by Parliament. Ministers are given power to make such regulations as they may think fit to achieve this result or that. It is the operation under those powers that has given rise to most of our infringements.
Contrary to the view of my noble and learned friend Lord Donaldson, I believe that if people walking through the Lobbies in this place or in the other House were asked, as they voted on the usual Act which contains 123 discretionary powers conferred on the Minister to make regulations and do all the other things: "Have you voted to allow the Minister to infringe the European Convention on Human Rights?", they would say, "Of course not. We have given powers to act in accordance with law and in accordance with what this country has undertaken to do". I only suggest this. But I hope that this Bill does not disappear, because it seeks, in typically wholehearted fashion, to go the whole way and enable the courts to strike down legislation completely. I hope that if, as seems possible, a "whole hog" Bill is not attractive to a majority in the other place (if not here), consideration will be given by everybody concerned to putting right a ludicrous Mad Hatter's tea party position—and in this way: simply by providing in this Bill that the courts shall, to the extent possible, construe the Acts of Parliament so as to take effect on the basis that they are not intended to confer powers designed to infringe the convention. That is what the Nordic countries have done for many, many years and they have complied. That is what everybody else who has not had incorporated rights has done, and they have complied.
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Unhappily, my experience is contrary to that of my noble and learned friend Lord Donaldson. I have on occasion had to reach conclusions in cases which I knew to be contrary to the convention because I was not able to do otherwise. Why cannot we enable our courts to administer what the European Court of Human Rights does many months, many years, many hundreds of thousands of pounds later? Why should the courts here not give effect to what is undoubtedly the implied intention of Parliament, stopping short if necessary of declaring invalid any Act of Parliament? That brings about a position of true constitutional reform. I am, I am afraid, at much greater length saying what the noble and learned Lord the Lord Chief Justice said in about three words; namely, what about the New Zealand approach? That approach does not override Parliament's right to say, "We are going to contravene the convention". The courts are simply being allowed to apply legislation in accordance with what I believe most people would understand to be everybody's intention; namely, not to breach the convention.
Finally, and very shortly, I make one further comment in the hope that it can be considered in Committee. I am anxious about matters of this kind coming up all over the judicial system. A point taken that legislation, or executive powers, are contrary to the European Convention could as well arise in the Puddletown magistrates' court as in the High Court. If any power of challenge of this kind is to take place, considerable care has to be given to where and when that matter shall be adjudicated. Much of the trouble that has occurred in Canada, whose Bill was far more sweeping than anything that was proposed here, has arisen from the fact that it arises in multifarious jurisdictions. But that is a matter for the Committee. I commend this Bill and hope that it produces a fruitful result, putting an end to the absurdity that currently exists.
9 p.m.
Lord McGregor of Durris: My Lords, I am taking the advice of the noble and learned Lord, Lord Taylor of Gosforth, and I shall not give the speech that I had intended to make. I wrote it having read, and frequently re-read, all the proceedings in this House on this subject, to which my noble friend Lord Lester also referred. I finished that task in deep depression because the pages were filled with the hostilities, as I felt, of lawyers towards the convention. This evening has transformed my feelings on that subject. I now feel extremely cheerful having heard what the noble and learned Lords, Lord Taylor of Gosforth and Lord Browne-Wilkinson, have said.
I cannot reconcile the observations of the noble and learned Lord, Lord Donaldson, in regard to the situation that would develop if we incorporated the convention with what in fact is our actual situation. My understanding of the remarks of the noble and learned Lord, Lord Browne-Wilkinson, was that he was also hinting at that. In fact we are committed to the

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convention by a treaty. We can neither escape nor avoid it. The noble and learned Lord, Lord Hailsham, has made this point repeatedly. He has said,
"Rightly or wrongly, we have got a Bill of Rights. We have signed the European Convention on Human Rights — and what we have done is to put ourselves in the hands of judges at Strasbourg, instead of putting ourselves in the hands of judges at Westminster or Edinburgh. Now personally, I mean no disrespect for the judges of Strasbourg. I think the judges at Edinburgh or Westminster or Belfast have a better feel for the way in which those rights to which we are committed in international law ought to be applied in the English, Scottish or Northern Irish context than the chaps at Strasbourg".
That seems to me to be self-evidently true. The noble and learned Lord, Lord Hailsham, added:
"Is it to be supposed that our own judges are so stupid or so biased that they are not to be allowed to decide these matters for themselves?"
I wish to make only one other point—again a point of dissent from what the noble and learned Lord, Lord Donaldson, was saying. Like him, I am very proud of many of the British traditions and in particular of our tradition of freedom. We have promoted that tradition throughout the world. The European convention was in a real sense a British initiative to which, as the noble and learned Lord, Lord Browne-Wilkinson, said, we contributed massively. Let us take pride in our contribution of what is a universal development of human rights.
Many international instruments and treaties today guarantee some 40 distinct human rights. The past 40 years have witnessed an astonishing proliferation of legal safeguards for individual rights which previously in most countries had been no more than aspirations. In 1950 the only binding treaty which mentioned human rights was the United Nations charter. Now there are three global treaties, four regional treaties and two declarations. The late Paul Sieghart saw the development of this code of international law on human rights since Hitler's and Stalin's time as,
"a change in international law so profound that it can properly be called a revolution. Today, for the first time in history, how a sovereign state treats its own citizens is no longer a matter for its own exclusive determination, but a matter of legitimate concern for all other states and their inhabitants".
Moreover, the codes are not merely hortatory. In Europe, 21 sovereign states established a commission and a court of human rights for enforcing the rights guaranteed by the convention. They thereby relinquished the power to treat their own citizens as they chose. Member states have been compelled to rewrite some municipal laws, to change their administrative procedures and to compensate their own citizens when they have been held in breach of the convention. In the same way, the American Convention on Human Rights is enforced by an Inter-American Commission and a court of human rights set up by the Organisation of American States. Now, some 17 independent nations, though not the United States, are party to this structure. The latest of the regional treaties, the African Charter on Human and Peoples' Rights, was adopted by the Organisation of African Unity some 15 years ago but has not yet been implemented in a continent rich in dictatorships and tyrannies.
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Thus, what used to be the unenforceable natural rights of eighteenth century rhetoric—what Bentham called "bawling on paper"—are being endowed with legal sanctions and an effective machinery of enforcement by international courts across national frontiers. I see these conventions on human rights as staging posts on the human road of moral progress. In the history of morals, it is not mankind's sense of duty to neighbours which has changed over the centuries, but the answer to the question: who is my neighbour? In primitive morality, obligations were confined to very small groups of people. As the group widened, so the range of rights and duties extended and new meaning was given to the Biblical injunction:
"Whatsoever you would that men should do unto you, even so do you unto them".
The extension of moral obligation backed by legal sanctions which treats as one group the 400 million inhabitants of the nation states which have adhered to the European convention is indeed a turning point in the history of freedom. Similarly, the American convention now draws rather more than 200 million people into a single group within which a jurisdiction on rights and enforcement procedures is developing.
This is something of which, having played a part right at the very beginning, we ought to be extremely proud. We have played a role in establishing international and enforceable rights. I support my noble friend's Bill because I wish to have a charter of human rights and freedoms in the law of the United Kingdom, where it will be enforced by an independent judiciary, to give British citizens a remedy at home without having to make an expensive and delaying journey to Strasbourg. I believe that incorporation in this country will strengthen a highly desirable development in other parts of the world. I see no benefit to us or to our law or to the principles for which we have stood in being insular about these matters.
I have a particular concern for freedom of the press as a vital social end to be secured in a democracy. I believe that incorporating Article 10 of the convention would provide essential guidance for balancing the rights and responsibilities of the press which we lack within our system at the moment. I very much hope that my noble friend will continue with his efforts in respect of his Bill.
9.13 p.m.
Lord Lloyd of Berwick: My Lords, your Lordships will have noted with relief that I am the last—and I am sure noble Lords will say the least —of the Law Lords who will be speaking on this subject and so I want, if I may, to speak more as a layman than as a lawyer. I do so only because I am a relatively late convert to the campaign which my noble friend Lord Lester and the noble and learned Lord, Lord Scarman, have been waging for so many years, with increasing support on all sides. How sad it is that the noble and learned Lord, Lord Scarman, cannot be with us tonight. I am a convert because initially I was opposed to the idea of incorporating the convention in our domestic law even though we have been bound by it since we signed the convention in 1951 and even though, as we have been

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reminded by the right reverend Prelate, we played a large part, if not the leading part, in formulating its provisions.
If I ask why I was opposed, I am almost ashamed to admit that my attitude was that the convention was perhaps all right for abroad. It was all right for other countries. Most of them have long since incorporated the convention in their domestic law. But I believed that we did not need it here. Human rights in this country were adequately protected by Parliament and the courts. I believe that that was the principal reason.
There was another reason at the back of my mind: whereas the courts are very used to applying our common law and are more or less at ease at construing and making sense of Acts of Parliament, it seemed to me that they might not be so good at handling these rather vague concepts which are enshrined in the convention.
My eyes were first opened when I read in The Times some years ago that the United Kingdom had just lost eight cases in a row at the court in Strasbourg. That did not seem like a very good human rights record. They were all cases in which our citizens had been compelled to go to Strasbourg to get justice in accordance with the convention. They were all cases in which, despite what the noble and learned Lord, Lord Donaldson of Lymington, has described as the overriding protection of the common law, that did nothing whatever to help them. That was the position then and that is still the position today 30 years later. The delay in taking a case to Strasbourg gets longer and longer, and the expense becomes greater.
In four cases decided by the court at the end of 1992 the average delay in getting the cases on and having them decided was six years. That does not seem a very sensible or economical way of going about things. As Sir Thomas Bingham, the Master of the Rolls, said in a lecture not so very long ago,
"If this is a match which we are going to have to play, why should we always play it on an away ground?"
We cannot stop our citizens going to Strasbourg. The record shows, alas, that they are all too often right. Therefore, would it not be better in plain common sense that their claims should first be decided by English, Scottish and Northern Ireland judges? That is a point which has been made by the noble Lord, Lord McGregor of Durris, quoting from the noble and learned Lord, Lord Hailsham. It is also a point which was made by the noble and learned Lord, the Lord Chief Justice, and other speakers. That can only be done if the convention is first incorporated into English domestic law.
My other concern is this: are the judges up to the task? With all humility, I suggest that they are for the position has changed beyond all recognition in the past 30 or so years. The reason is the incoming tide of Community law. In applying that law, as we must, we are no longer confined to our traditional English rules of construction.
We try to construe Community law through European eyes. Indeed, we are obliged to do so by numerous other conventions now incorporated in our domestic law. The
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Brussels Convention and the European Patent Convention and many others, spring to mind. If in the case of those conventions, why not through a human rights convention? Indeed, many of the concepts which would have seemed so vague and woolly 30 years ago are now part of our domestic law in other contexts. A good example of that is the Interception of Communications Act, and the legislation which followed on from that Act. Furthermore, the concepts of national security and economic well-being to which we are now used are taken directly from Article 8 of the convention.
Therefore, I suggest that the judges have been learning fast, that they would be able to cope with the convention and, indeed, that they may even have something to contribute so that in those cases that do end up in Strasbourg we should have made some sort of input ourselves.
With your Lordships' permission, I should like to quote just two sentences from a splendid short book by an American writer, Professor Ronald Dworkin, a distinguished jurist. I stress that he is an American writer, not a British writer. On page 22 he states:
"If British judges began to create as well as follow constitutional jurisprudence … their decisions would be bound to influence the Commission and Court in Strasbourg, as well as the courts of the other nations … Britain could become once again a leader in defining and protecting individual freedom, instead of a sullen defendant giving ground to liberty only when ordered to do so by a foreign court".
My Lords, I support the Bill.
9.21 p.m.
Lord Hylton: My Lords, it is with much diffidence that I join this debate which, of its nature, is dominated by the contributions of four noble and learned judges and by at least three other highly qualified legal Members of your Lordships' House.
I wish to follow the right reverend Prelate the Bishop of Southwark, in particular on what he said about Northern Ireland. Perhaps I may mention that it fell to my lot to be the honorary treasurer of the distinguished inquiry which he mentioned into human rights and responsibilities in Great Britain and Ireland, both north and south. I am glad to say that that study was eventually published as a solid volume by Macmillan Publishers.
I began to visit Northern Ireland in the civil rights period which is now quite some time ago. By then there was already a demand for a Bill of Rights of some sort. By the mid-1970s, as has been mentioned, very nearly all of the major political parties in Northern Ireland were agreed that they wanted a Bill of Rights. What is more, whatever their other disagreements, they are still in agreement on that point. I think I can say quite confidently that they would be very happy with the incorporation into United Kingdom law of the Bill that we are now considering even if perhaps a tailor-made Bill for Northern Ireland might also be necessary or desirable to deal with some of the special circumstances which arise there. As has already been mentioned, if this Bill becomes law, the long and costly road to Strasbourg will be very much shortened. To my knowledge, there

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have been quite a number of cases arising from Northern Ireland which have taken that four to seven-year-long course.
Again, if this Bill can be passed through Parliament, it will have the effect of reducing the importance of the very complex system that has evolved over time for dealing with complaints, for trying to redress them and for trying to ensure fair play for all the inhabitants of Northern Ireland. That involves not only having an independent Police Complaints Authority, but also an Army complaints system, a variety of ombudsmen, the Fair Employment Agency and the Equal Opportunities Commission. One might consider that that elaborate structure is complicated for a population of only 1.5 million people. If we can have the Bill, the workload of that system will be reduced considerably to the benefit of everyone.
When there has been a longish period of violent and deep-rooted conflict, as in Northern Ireland, people look around, especially once a ceasefire has been achieved, for guarantees for the future. They want to know, under whatever new system can be agreed, that they will be free from oppression and discrimination, and that no one will end up as a second-class citizen.
The Bill will assist considerably in providing such a guarantee. It is in my view a confidence-building measure, one that is badly needed to create trust in a situation which has been bedevilled for a long time by mistrust and deep-seated fears. For those reasons, I greatly hope that the Bill will not just receive a successful Second Reading here but a successful passage through both Houses.
9.26 p.m.
Lord Cocks of Hartcliffe: My Lords, like the noble Lord, Lord Hylton, I rise with some trepidation to take part in what has already been described as a lawyers' party. I first became aware of this issue when I saw in the Sunday Times a letter from the honourable Member for Nottingham North, who speaks for Labour in the other place on constitutional affairs. It said how delighted he was to see that the Law Society human rights debate, sponsored by the Sunday Times, had endorsed the incorporation of the European Convention on Human Rights into British legislation. The letter mentions the initiative of the noble Lord, Lord Lester, in introducing into your Lordships' House this year a Bill to incorporate it into British legislation, following his own Bill.
I have looked at the Bill introduced by the honourable Member. It is more comprehensive than the Bill introduced by the noble Lord, Lord Lester. It leads us more towards accountability and, I should like to think, public acceptability. The noble Lord trailed his Bill earlier. An article by Simon Reeve states:
"Lord Lester … told the Law Society annual conference"—
during the debate sponsored by the Sunday Times that I have already mentioned, about introducing the Bill. The article went on:
"Such a move would enable British citizens to get justice more quickly and more cheaply".
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I must confess that to hear the profession talking about getting justice more cheaply wrings the strongest of responses from me.
The noble Lord, Lord Lester, has been in the news recently because he resigned from the Garrick Club over its admissions policy, having, we are told, wrestled with his conscience for some 20 years. He was no doubt clearing the decks in order to become politically correct. Perhaps I may just say as an aside that the same report about the Sunday Times conference mentioned the video it had produced about legal backing for human rights. It highlighted the case of Mordechai Vanunu. It stated:
"Mordechai Vanunu, the Israeli nuclear technician kidnapped and jailed by the Israeli authorities after revealing in the newspaper that the country was amassing a nuclear arsenal"—
"revealing in the newspaper" is a sanitised way of saying "committing treason". I do not understand the apparent obsession with that one case when so many abuses of human rights are going on throughout the world. I wonder whether those who are so keen to press that case will shortly be asking for a posthumous pardon for Dr. Klaus Fuchs and Dr. Alan Nunn May.
However, I digress. With co-operation, I look forward to working with the noble Lord, Lord Lester, to improve the Bill and incorporate some of the aspects from the Bill introduced by the honourable Member for Nottingham North, which would improve it further.
Yet I must confess that there is one small cloud in the sky. There is one doubt raised in my mind. I have already mentioned the Sunday Times conference which was arranged for this purpose. On 2nd November 1994, during a debate about the Liaison Committee report, I said that I suspected that a request for the Liaison Committee to set up a Select Committee to scrutinise legislation for consistency with the European Convention on Human Rights was in fact motivated by Charter 88. I subsequently wrote to the Leader of the House asking for the source of that proposal to the Liaison Committee. He told me that it had originated from four Peers: one was a Conservative, one was Labour, one was a Liberal Democrat and one was a Cross-Bencher. I said that apparently that gave an appearance of support from all parts of the House, but in fact the Peers were all barristers. So the community of legal interests quite overwhelmed any party considerations.
I explained to your Lordships how Charter 88 is perfectly open about developing lobbying. It seeks to influence your Lordships' House and uses the media for that purpose, having its own agenda. It is trying to cultivate public interest in constitutional changes where there was no interest before.
It is claimed that such measures stem from widespread public concern. In moving the Second Reading of the Bill the noble Lord said that it reflected popular will and had support from informed opinion. If we start to talk about informed opinion, we move into an intellectualist-elitist attitude. One begins to think how grateful the great unwashed should be that those great intellects deign to bend their minds to improving their lot.

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Three years ago we were told, in an article by Anthony Barnett and Paul Hirst, who were associated with Charter 88, that the campaign for constitutional reform had caught a rising wave of popular concern. I wonder how many of the noble and learned Lords present in the Chamber tonight have sat in court, or heard of court proceedings, where people have come in front of the court for having been involved in fights, brawling in public over the question of a European convention of human rights, getting into ugly scenes because this country does not have a written constitution or even squabbling over the lack of a freedom of information Bill. It is quite absurd.
If the great wave of popular concern about which Mr. Barnett and Mr. Hirst wrote three years ago was so evident, why do we see in the Independent of 19th January this year the headline:
"Charter 88 drives for pre-election mandate"?
The newspaper tells us that the noble Lord, together with others, were:
"at the opening of a drive yesterday to try to gain"—
I repeat try to gain—
"a popular mandate for Charter 88's policies".
If it is necessary all this time later to mount a drive in order to attract support, that is not good.
Charter 88's membership comprises mainly those in the professions in the middle of the economic spectrum. According to its own survey and questionnaire which it issued and to which it received some 4,000 responses, 10 per cent. of those who returned the questionnaire were associated with the arts and 0.5 per cent. were manual workers.
Charter 88 boasts of collecting tens of thousands of signatures. Indeed, I believe that it has collected over 50,000 signatures now. However, if one thinks back to the 1830s, the Chartists collected millions of signatures protesting when workers realised that the 1832 Reform Act had enfranchised only the middle classes. At that time the combined population of England, Scotland and Wales was only 16.3 million. Today the population is between three and four times greater and yet Charter 88 is boasting about a few tens of thousands of signatures.
The Chartists' anger arose because of the appalling conditions which they and their families suffered. Charter 88's advertisements are confined to what are known as the "quality" newspapers. I stand to be corrected if I am wrong about that. Perhaps the noble Lord will tell me when he sums up the debate whether Charter 88 has ever advertised for signatures in the Daily Mirror, the Sun or similar newspapers. That selectivity gives the game away. In the 1830s people complained about cholera, child labour and slum housing. Charter 88 complains about judges, miscarriages of justice and lack of information. I sometimes wonder how many countries in the world would even admit that miscarriages of justice had taken place.
The noble Lord told us that the Bar Council and the Law Society support the Bill. One has to be rather cynical about that. Noble Lords will know that at the moment there is a major argument taking place about the wages of top people in privatised industries. The
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Government's line is that that is no cost to public funds. Today, when the noble Lord, Lord Mackay of Ardbrecknish, was answering a Question asked by my noble friend Lord Dean of Beswick, he mentioned barristers' fees. That calls into question the fees which are paid to our legal representatives.
The fees that people in privatised industries receive begin to look like pocket-money when one considers some of the fees commanded by barristers. Those fees are coming from legal aid—ergo, the taxpayer. The chap driving the bus and the lady cleaning the office are paying those exorbitant fees to banisters. I mention once again the case of Mr. Colin Ross-Munro. It was stated in a Written Answer that he had received £671,000 in legal aid in respect of a case involving an Iraqi businessmen with which we are now all familiar.
Perhaps I may say to the noble and learned Lord, Lord Taylor, how pleased I was to see today that he has ordered lawyers to "cut the waffle". We all go along with that. I hope that that is the beginning of a movement towards simplifying and curtailing court proceedings.
I should like to draw the attention of your Lordships to an editorial which appeared in the Mail on Sunday last weekend headed:
"When we sell our souls to the lawyers".
It mentions the fact that every change in the law, for whatever reason, is always good news for the legal profession. It goes on to say:
"Lawyers thrive in provoking conflict, in formalising it, in extending it. And even when they deny that claim, it is only to present themselves as highly priced mediators and conciliators. As new so-called rights are invented by pressure groups and edicts from Brussels promise ever more scope for quarrelling and distrust in our lives",
and so on. We are constantly subjected to a barrage of propaganda about those constitutional changes from various sides. I believe that it is a concerted effort. The inquiry of the noble and learned Lord, Lord Nolan, which is now taking place seems, from what I have heard of it, to be concentrating on commercial aspects. But we have here a pressure group which has managed to collar a large number of opinion-formers and which purports to represent a groundswell of opinion which simply does not exist. I believe that its activities should be looked into.
In conclusion, I believe that this country is in danger of going down the path of the United States of America. Perhaps I may quote again from the article in the Mail on Sunday:
"In America the emphasis on legal rights is in danger of swamping any surviving concept of individual responsibility. When customers can sue a fast food outlet because it didn't warn them that hot coffee might scald, life is reduced to a lawyer's fee note".
It is a serious matter. I was talking about lawyers the other day to a very old lady who has been a friend of mine for many years. She said, "You know, Michael, they used to be on our side". While I am anxious to try

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to improve the Bill, I think that on occasions like this we should try to take stock of just what is happening today in our society.
9.41 p.m.
Baroness Williams of Crosby: My Lords, I do not intend to delay the House for more than a few moments. However, I should like, first, to say how grateful I am to my noble friend Lord Lester of Herne Hill and also to the noble and learned Lord, Lord Scarman, who cannot be present tonight, for having worked away for so long at the issue of the incorporation of the European convention into British law. I should like to congratulate them, once again, on having brought the Bill before the House.
I shall not pursue the arguments made by the noble Lord, Lord Cocks of Hartcliffe, beyond saying that my understanding has always been that one of the greatest prides of British justice was that it was available to every man or woman however poor or disadvantaged they may be, even if they are without power or influence. That principle is one that I believe would appeal as much to the noble Lord, Lord Cocks, as to the noble and learned Lord, Lord Donaldson of Lymington, and indeed to any other Member of this House.
It is precisely for that reason that I rise to support the Bill. I do so not as a lawyer but because it is a Bill of such significance and importance that it is a great shame to see that the legal Benches are filled tonight, while those of non-lawyers are, generally, empty. It is too important a Bill to be neglected in that way by those of us who do not happen to be judges or lawyers.
As I understand it, the great problem that now confronts us—in a situation where no one is suggesting that this country should pull out of the European convention which we signed in 1950—is that we are making redress under that convention, which we ourselves accepted in principle, both slow and extremely expensive. There is no argument for that. It is most difficult for people to seek redress under the European convention, except after years have passed and much money has flown. That means, quite simply, that those who most need that redress are the least likely to be able to get it.
The noble and learned Lord, Lord Donaldson of Lymington, referred to the common law. There are just two comments that I should like to make in that respect. First, I see no conflict, although I am not a lawyer, between the European convention and the common law. Indeed, much that was already embodied in common law is part of the heritage of individual rights that all of us share. But the European convention and the broad revolution of individual human rights, to which my noble friend Lord McGregor of Durris referred in his remarks, have swept beyond the common law; indeed, they complement it and go past it.
If the noble Lord, Lord Cocks, or the noble and learned Lord, Lord Donaldson, were prisoners, women or members of ethnic minorities, they might understand better than they do why the present situation seems to many of us to be so unsatisfactory. For the very groups in our society who have gone to Strasbourg, and found
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the justice there that they did not find here—not because our judiciary was not prepared to give it but because it was not able to do so—are precisely those groups in society who, a century ago, had few rights and who today have the same rights as everybody else.
When the noble and learned Lord, Lord Taylor of Gosforth, the Lord Chief Justice, referred to the difficulties of applying the common law to the modern world as a complete answer to the problems of that modern world, he was speaking of the world in which we live and of the country in which we live, which is multi-racial, multi-cultural and multi-religious, as it used not to be. To rely entirely on custom, practice and precedent—to use the marvellous words of the former Poet Laureate, Alfred Lord Tennyson,
"broadening down from precedent to precedent"—
is a wonderful thing, but it is not enough to cope with all the changes in our society today. There is no conflict; there is a complement.
My next point refers to what my noble friend Lord McGregor of Durris said very eloquently: that we are, in the words of another poet, John Donne, not members of an island but members of the main. The revolution of human rights, which is today trying to become the foundation on which we can build a world of order and law, is one that I very much wish to see our country not only part of but making a major contribution to. In that context I wish to mention three crucial categories. The first was mentioned by the right reverend Prelate the Bishop of Southwark and by the noble Lord, Lord Hylton, when they referred to the great desire in Northern Ireland to have an underpinning of human rights behind both of the great religious traditions of that Province.
If the Republic of Ireland moves—as moving it is—towards the incorporation of the convention on European rights, then we will have the basis for at least a common understanding in both parts of Ireland of those individual human rights and respect for them which should bind us together as two modern democracies. The peace process is not so strong that we should risk not reinforcing it in every way that is acceptable to both of the major groups of Northern Ireland, and this is one important way in which we can do it.
The second issue I wish to refer to briefly is the important responsibility we bear towards the fragile democracies of central and eastern Europe. Those democracies today are profoundly bound up in the efforts by the European Council —the Council of Europe more precisely—to extend and enlarge the Convention on Human Rights to cover the rights of minorities and to cover group rights, responding to the terrible crises that we have seen in Bosnia and in other parts which today threaten the fragile democracies of central and eastern Europe. I would like to see the British judiciary contribute towards that crucial discussion which has already last year led to a declaration on minorities by the Council of Europe but which has not yet been embodied in any form of convention or in any form of international law.

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Thirdly, beyond Europe itself the concept of human rights, the belief in human rights and the attempt to try to establish human rights have now swept across much of the new Commonwealth as well as the old. Last year I had the pleasure of being in South Africa. If the great experiment of South Africa succeeds, it will succeed above all because in South Africa there is a real attempt in the constitution to get the acceptance of the individual human rights of peoples of all racial communities recognised by all other racial communities. It is a brave and important experiment and one to which I believe we should contribute our wisdom, our knowledge and our traditions.
I had the pleasure only last week of listening to the new Chairman of the National Human Rights Commission of India, Supreme Court Justice Raganath Misra. He spoke of the work being done by that commission, which was established only in 1993, in the areas of prisoners' rights and child labour.
If we are to begin to establish a world in which there are some basic rights which we all recognise and accept—and the forbidding of child labour is one of a number of examples all of us could think of—we must not stand in the path of the acceptance of international conventions but contribute to them, accept them and incorporate them in our own law. By doing that we shall put ourselves in a position to make a much greater contribution to the evolution of law, peace and liberty in the world than by resisting on the grounds of tradition, which, marvellous as it is, need no longer stand alone.
9.50 p.m.
Lord Williams of Mostyn: My Lords, on behalf of the Labour Party I give the Bill the warmest welcome in principle, subject of course to detailed scrutiny in Committee, as was mentioned by noble and learned Lords who spoke earlier.
If the Bill becomes part of our law, it will be a constitutional advance of great importance, on several bases. The first is a basis of deep principle—namely, that an individual's human rights are precisely that: attributes capable of being enforced by legal mechanisms which are not the mere bare consequence of state, governmental or sovereign donation. The right should have these characteristics: clarity, simplicity, ease of enforceability. The incorporation of the convention fulfils those criteria.
Secondly,—and this will be of increasing importance in the next few years—the full incorporation of the convention into domestic law will improve the quality of domestic legislation. It will improve the quality of judicial interpretation and performance. I profoundly agree with the remarks of the right reverend Prelate, the noble Lord, Lord Hylton, and the noble Baroness, Lady Williams of Crosby, about the specific importance of the Bill in the context of Northern Ireland. On that point I have encountered no dissent from any part of the political spectrum.
Thirdly, the Bill will reduce the number of dismal occasions when the United Kingdom Government are found to be in breach of their obligations under the convention. It will allow those who are wrongly treated
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a more efficient, prompt and less expensive method of obtaining redress. The true analysis—and I respectfully disagree with the remarks of the noble and learned Lord, Lord Donaldson of Lymington—leads one to this conclusion: that is an exercise of sovereignty, not a derogation from it. It is too well known to need further specification that the record of the United Kingdom Government in this field has been lamentable. They have been at the bottom of every single league table on every possible occasion.
What will incorporation mean in practice in terms of legislation? I hope that it would have made us in this House a good deal more careful and critical in the scrutiny that we gave to the Criminal Justice and Public Order Act 1994. For example, Section 81 allows a constable to stop and search any vehicle, driver or passenger and any pedestrian, and to make:
"any search he thinks fit whether or not he has any grounds for suspecting that the vehicle or person is carrying articles",
of a certain type.
That draconian power went through this House, I regret to say, late at night when there was very little attendance. There was virtually no dissent. The criminal offence is absolute. There is no defence of reasonable excuse. When this Bill becomes law it will be interesting to see how that power is capable of co-existence with Article 5(1) (c). Can the right to peaceable assembly and demonstration be wholly reconciled with Section 68 and the subsequent sections of that same Act?
I turn to Article 6, which states:
"In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time",
and I emphasise those last words. I endorse the frequent and recent criticisms of delay and expense—those Siamese twins—made by the noble and learned Lords, Lord Taylor of Gosforth and Lord Woolf, on many public occasions. I particularly question whether the situation of a dismissed employee, whose only capital is his labour, having to wait in excess of two-and-a-half years for a concluded hearing at an industrial tribunal, can be said to fulfil our obligation. If we do not incorporate the convention, what redress is there for such people? I do not regard that as an elitist proposition.
Article 8 states:
"Everyone has the right to respect for his private and family life".
Where is the common law there? It is notorious that our law recognises no right to privacy as such. The common law is dumb. It is not effective. There is a right to confidentiality in limited cases—employment, commercial relationships, and matrimonial matters. The individual, however mean, lowly and insignificant, has no shield from the common law when his privacy is grossly interfered with and abused. If this Bill becomes law, the present Government would have to stop agonising and come to a conclusion about their final decided view on a distinct right of privacy, giving access to injunctive relief and damages.
Article 10 on freedom of expression has already been of great consequential effect, not least in the speeches in the Judicial Committee of this House in Bookbinder

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V. Derbyshire, where an encouragingly fresh view was taken about what proper restrictions on free press comment ought to be in this country. I echo, if I may, the tributes paid to the noble and learned Lord, Lord Scarman. I am sorry that he has not been present tonight, since he has been a lighthouse and a beacon to so many lawyers, students and practitioners over so many years.
We cannot simply say, "We do it better than foreigners", because experience sometimes demonstrates the contrary. As a country, a society, a parliamentary democracy and a legal system, we should be able to be sufficiently confident in our own virtues to recognise that an established framework can be a benefit. If we know that the convention is part of our domestic law, we are able to frame our judicial conclusions, legislation and general approach to individual human rights in a different way.
There is no cause for this country to be faint-hearted. We have plenty of historic traditions which have life only if they develop. The questions that I have put forward have been quite limited because, as always, I am obedient to the commands of the Lord Chief Justice and I intend to be brief. These are just a few matters which will arise if the Bill becomes law. It will improve the quality of political life in this country. It will transform people's attitudes to rights and responsibilities. It will provide a useful corrective for an Executive—I do not restrict that remark to the present Government—which has had insufficient control over the past 35 years. The control which has been offered has been substantially provided by the judiciary and not by what has been an over-acquiescent Parliament.
I recognise that those preliminary considerations are few. There are many others that we shall have to deal with on future occasions. I think the fact of their existence demonstrates the value of the Bill, in respect of whose introduction I believe the noble Lord, Lord Lester, deserves our full gratitude.
10 p.m.
Baroness Blatch: My Lords, the preservation and development of the rights and freedoms of the individual are central to effective and legitimate constitutional arrangements. This evening's debate has demonstrated the proper seriousness with which your Lordships address these matters, and the quality of this debate is testimony to that. I welcome this opportunity to set out the Government's policy on a Bill which raises issues of great importance.
It may be helpful for me at the outset to summarise the Government's position. It is in three parts. First, we consider that our present arrangements, both in principle and in practice, provide properly and effectively throughout the United Kingdom for the securing of rights and freedoms, including but not exclusively, those in the European Convention on Human Rights. Secondly, the claimed advantages of incorporating the Convention into our domestic law are, in our assessment, few and arguable. Thirdly, and by contrast, we believe that the disadvantages of incorporation would be considerable and fundamental. Notably, incorporation would strike at the constitutional principle
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of parliamentary supremacy. The areas of public policy covered by the general principles set out in the convention have traditionally, and rightly, been the province of Parliament rather than the courts.
Turning then to the principle of our present arrangements, the Government do not consider that it is properly the role of our legislature to purport to confer rights and freedoms, such as those in the European Convention, which are in fact already enjoyed by all members of society. It is central to our position, which is the same position as that taken by successive governments before us, that the rights and freedoms recognised in international instruments to which the United Kingdom is party, including those in the ECHR, are inherent in the United Kingdom's legal systems, and are protected by them and by Parliament, unless removed or restricted by statute.
Baroness Williams of Crosby: My Lords, I apologise to the noble Baroness for interrupting and I shall not do so again. If it is true that all the rights and liberties of individuals are adequately protected under the present British arrangements, why have so many cases which have gone to Strasbourg been decided against the views of the British courts?
Baroness Blatch: My Lords, I shall deal with cases that go to Strasbourg in a moment. What is afforded is that all the national laws of the country, together with the rights backed by the European Convention, exist and are available to all our citizens. What we are talking about and what the debate has been about —and it is interesting to me, after listening to all the contributions—is not whether the citizens enjoy the protection, it is about the mechanisms, the efficiency and effectiveness of using the system. I shall say to the House that I think that in terms of the mechanisms and with all the protections of the ECHR, the arrangements that we have in place and the protection of our national law, the citizens of this country are not in any way disadvantaged. The noble and learned Lord, Lord Donaldson, made the points rather more eloquently and convincingly that I have been trying to make.
It is entirely consistent with this position that the Government attach great importance to the convention and take most seriously the United Kingdom's obligations under it. As we have been reminded earlier in this debate, the United Kingdom played a leading role in drafting the convention. Created very much with the horrors of the defeated war time regimes in mind, it was intended to give binding effect to the guarantee of various rights in the United Nations Declaration of Human Rights which had been adopted in December 1948. We were among the first states to ratify the convention, as long ago as 1951; and, again, we were among the first major countries to subscribe, nearly 30 years ago, to the right of individual petition to the European Commission of Human Rights, and to accept the compulsory jurisdiction of the European Court of Human Rights.
Our present arrangements already provide for our commitments under the convention to be taken into proper account in our governmental, legislative and judicial systems. Our obligations under the convention

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are systematically and carefully taken into account by Ministers and officials in the formulation and application of government policy, and in the preparation of draft legislation.
As regards the courts, judgments of this House have made it clear that the United Kingdom's international human rights obligations are part of the legal context in which the judges consider themselves to operate. For example, the judgment in the case of Salomon v. the Commissioners of Customs and Excise, stated—if I may be permitted to quote from it:
"There is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred."
Another test of the seriousness and importance which the Government attach to the convention is our record in remedying breaches of the convention where these occur. If I may, I shall address the contention that incorporation might further minimise such breaches more fully later in my remarks. Perhaps it may suffice for the moment for me to say that, in our view, non-incorporation is not the reason why the United Kingdom is from time to time found to be in breach of the convention. Instead, the answer to that lies partly in the broad and general provisions of the convention itself—which are inevitably subject to different and changing interpretations—and partly in the inevitability of flaws in any human contrivance. I could not have explained that more eloquently than the noble and learned Lord, Lord Donaldson.
If and where the United Kingdom is found to be in breach of the convention by the European Court of Human Rights and the Committee of Ministers of the Council of Europe, effective arrangements are in place for remedying the matter. Any necessary changes in the law or administrative practice are made as soon as possible. The United Kingdom's record in this respect is second to none: of the 89 cases that are currently on the books of the Council of Ministers as awaiting substantive resolution under Article 54, only three arise from the United Kingdom, of which two relate to judgments given as recently as October 1994.
I come now to the second element in the Government's position; that is, our assessment of arguments made for incorporation. We have to ask in what respects, if any, incorporation would enhance the enjoyment in the United Kingdom of the rights and freedoms provided for in the convention. Any answer to this must entail a degree of speculation. But one objective test is to compare the United Kingdom's performance with that of other states party to the convention which have incorporated it into their domestic law. Information is available on which to compare both the extent to which, in the first place, states are found in breach of the convention; and the extent to which, in the second place, when such breaches are found, the necessary remedial action is taken by the countries concerned. By both these measures, the United Kingdom's record is good, and better than that of many countries which have incorporated the convention into their domestic law.
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I noted that the noble and learned Lord, Lord Taylor, rather chided me on the possibility that I might introduce comparative figures. But I do not believe that we can dismiss this matter lightly. This debate has centred very much on speed, effectiveness, efficiency and justice for those at the receiving end. Such comparisons are very important.
We repeatedly hear claims (and we have heard them again in this debate) that the United Kingdom has a poor record before the convention institutions. In fact, such claims are ill-founded. In considering the figures for findings of violation, account should be taken both of the relative population size of states which are party to the convention and the date of acceptance of the right of individual petition. In the case of the United Kingdom, that was many years earlier than numerous other countries, including France, Italy, Portugal and Switzerland. Taking these factors into account, the United Kingdom is well down the so-called "league table" for breaches of the convention. We are 15th overall, below many countries which have incorporated the convention into their domestic law, including Switzerland, Italy, Austria, Belgium, the Netherlands, Portugal, France and Finland.
Comparative information on practice in taking action to remedy breaches of the convention tells a similar story. I noted earlier that the United Kingdom has an excellent record in this regard. Information provided by the European Commission of Human Rights shows that the majority of cases in which remedial action is outstanding arise from Italy, France, Belgium, Greece and the Netherlands. What all these countries have in common is that they have incorporated the convention.
Comparative information also casts doubt on the contention that non-incorporation places citizens at a real disadvantage in seeking to remedy possible breaches of the convention. It is far from certain that being able to litigate the convention in our courts would lead to a reduction in the number of cases, or to more rapid disposal and resolution of cases overall.
Although alleged violations of the convention may be considered in the domestic courts of countries where it forms a part of the law, what happens is that a large number of those cases still find their way to the European Commission and Court of Human Rights, where they must be examined afresh. For example, in 1994 62 allegations of violation were referred to the Austrian Government; 723 allegations to the Turkish Government; 118 allegations to the French Government, and 356 allegations to the Italian Government. Those are all countries which have already incorporated the ECHR. During the same period 46 such allegations—only 46—were referred to the United Kingdom. That would suggest that incorporation is hardly a way of reducing or speeding up the handling of cases.
Finally, as regards perceived merits, the delay in securing a decision or judgment under the convention, to which advocates of incorporation also sometimes refer, affects all applicants, irrespective of whether the countries concerned have or have not incorporated the convention. These delays are a matter of concern and one on which we, with other states party to the convention, have acted. Over recent years the United

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Kingdom has consistently played a leading role in the discussions in the Council of Europe which have resulted in various reforms of the ECHR procedures aimed at the speedier conduct of business. That work culminated most recently in Protocol 11 to the convention which provides, among other things for the present, part-time Commission and Court to be replaced by a single permanent court. The United Kingdom signed Protocol 11 as soon as it was available for signature. That was last May. We ratified the protocol last month, making us the fourth of the 33 states party to the convention to do so.
I come now to the disadvantages of incorporation which, as I indicated, the Government find serious and conclusive. As I have already said—and I make no apology for repeating—incorporation would strike at the long-held principle of parliamentary sovereignty which lies at the heart of our system of parliamentary democracy. The areas of public policy covered by the general principles set out in the convention have traditionally, and rightly, been the province of Parliament rather than the courts. Under our constitutional arrangements, it is for Parliament to enact detailed legislation on matters affecting the rights and liberties of the individual and to decide where the often difficult balance between competing public and individual interests is to be struck. In doing so, of course, it must have regard to the United Kingdom's obligations under the convention, as indeed it must in respect of all the United Kingdom's international obligations. Nevertheless, the final decision on such matters remains with Parliament. In our view they should continue to remain with Parliament.
That is a vital merit of our present arrangements. They provide that, if and when change is needed, often in areas of keen social and public interest, it is our democratically elected and accountable Parliament which decides how and when any such changes should be made. Among other things, that helps to ensure that change carries public support and understanding.
By contrast, to incorporate the convention into domestic law would transfer that final responsibility to the judiciary. United Kingdom judges would have to decide whether provisions approved in detail by Parliament, and clear in their meaning, offended against the general principles of the convention and, if so, whether effectively the courts should strike down that legislation. The question here is whether it is desirable or appropriate for these matters to rest with judges who are not directly accountable to the people rather than with democratically elected Members of Parliament. The Government's view is that the judges are not the right and appropriate people to be left with that power.
The Government also consider that incorporation would entail serious practical problems. In particular, incorporation would, in our view, have an adverse impact on the work of our courts. We could reasonably expect that, in innumerable challenges to action by public authorities, the convention would be invoked. Each complaint reaching the courts would have to be tried by reference to the principles of the convention but without the benefit of the initial screening process
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carried out by the Commission which currently sifts out as unfounded a very large number of cases—in excess of 80 per cent.
Further, if incorporation took the form the noble Lord's Bill proposes, the potential for allegations of "breach of statutory duty"—a key provision in the Bill—would be enormous: every time someone disagreed with, say, a decision by an immigration officer or social worker, proceedings for breach of statutory duty under the Bill could be instituted. These various factors could lead to a great deal of complicated and time-consuming litigation in the courts, with an inevitable effect on the conduct of other court business and without any real and corresponding improvement to human rights in practice.
The noble Lord, Lord Lester, in a very eloquent introduction to the Bill which I enjoyed, said that the courts can already strike down provisions of United Kingdom primary legislation if they conflict with European Community law. I accept that the European Court of Justice and our domestic courts can suspend the operation of UK primary legislation where it conflicts with European Community law. There is no disagreement with us there. Such cases have, however, been very rare indeed. The nature of the international obligations which the UK assumed on joining the European Community on the one hand, and by ratifying the European Convention on Human Rights on the other, are nevertheless different. Our obligations under European Community law tend to be narrow and well defined while those under the ECHR are broad and general in nature. In joining the European Community, the United Kingdom was obliged to accept that Community law could have the effect of suspending any national law with which it conflicted. We could not have joined without accepting that. In the case of the ECHR, however, we are under no such obligation.
The convention recognises that contracting states have a choice as to whether or not to incorporate the convention in domestic law and as to how best to implement the Court decisions. If the European Court of Human Rights decides that our law does not satisfy the requirements of the convention in a particular case, it is for Parliament to decide how our domestic law should be amended. Until it is amended, it remains in force.
I submit that it is a far more satisfactory state of affairs than that proposed under Clause 1(3) of the Bill, which would give every judge and every magistrate in the country power to decide not to enforce the law of the land if he or she, by their own judgment, formed the view that any person would thereby be deprived of any of the rights and freedoms set out in the convention. That really would represent a shift of power from the sovereignty of Parliament to the judiciary.
The noble and learned Lord, Lord Taylor, mentioned that the extension of judicial review had weakened the case against incorporation. With great respect to the noble and learned Lord, that disregards the fundamental difference between judicial review and incorporation. In considering applications for judicial review, for example, the court is not concerned with the merits of a particular decision or a particular policy. It is concerned

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only to ensure that the appropriate procedures were followed in reaching that decision and that the decision was within the powers given by Parliament to the public body concerned. Incorporation, as proposed in the Bill, would require the courts to address the merits of decisions made by Parliament on matters of public policy and set down in detailed legislation. It would require the courts to adopt a much wider role very different from their current function in cases of judicial review.
The noble Baroness, Lady Williams of Crosby, talked as though the citizens of the United Kingdom would not enjoy the protection of the ECHR unless the Bill was accepted for incorporating the ECHR into United Kingdom law. I have to remind the House that it was the United Kingdom which helped to draft the European Convention on Human Rights legislation. We were one of the first countries to sign the convention. We have a very good record, as I have set out, working within it. Whether we have incorporation or not, there is no disadvantage to United Kingdom citizens—either given the mechanisms that are in place at the moment in terms of delay or in terms of effective decisions at the end of the day. Full protection is afforded to all citizens.
The noble Baroness, Lady Williams of Crosby, implored us not to stand in the way of the international conventions but to encourage and support them. We have not stood in the path of ECHR legislation. As I say, we drafted it and we have supported it. We are bound by it and, as I have said, we have a good record of operating within it. Therefore, no citizen of this land is disadvantaged by that.
It has been my aim to indicate why we consider that incorporation is not necessary to secure the rights and freedoms protected under the European Convention on Human Rights in our country. Claims that incorporation would enhance enjoyment of those rights and freedoms are arguable and are certainly not supported by the comparative performance of countries which have incorporated the convention. There are substantial objections to incorporation both of principle and practice. The fact is that whether or not the convention has been incorporated into the domestic law of a country bears no relationship to how well that country affords legal protection for its people.
The drawbacks of incorporation are not minor matters but involve major changes to existing constitutional arrangements which have developed in this country over many hundreds of years. The Government remain unconvinced that the Bill would mark an advance in the protection of human rights in the United Kingdom sufficient to justify such a major departure from our current constitutional arrangements. Over a very long time the United Kingdom has developed a careful network of arrangements to ensure good government and fairness, including parliamentary sovereignty and full participation of both our Houses, ministerial accountability and judicial review.
To elevate the convention to the status of the primary source of good government and fairness would run the risk of upsetting the balance of arrangements for doubtful advantage, if any. This is a Private Member's Bill and the Government, therefore, would not propose
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to vote against it. However, the Government consider that incorporation is undesirable and unnecessary both in principle and in practice and for those reasons would not be able to support this Bill.
10.22 p.m.
Lord Lester of Herne Hill: My Lords, on the last occasion when a Bill of this kind was introduced into your Lordships' House, in winding up the Second Reading debate Lord Broxbourne began:
"My Lords, that, naturally was a disappointing wind-up by my noble friend the Minister".—[Official Report, 10/12/85; col. 194.]
I hope that on this occasion the Minister will not mind my saying that this too has been a disappointing speech on behalf of the Government—for this reason. It would be perfectly open to the Government to approach the Bill in a constructive way, seeking, as many of the judges in your Lordships' House have done in the course of this remarkable debate, to focus on those aspects of the Bill which in the Government's view need to be improved but not opposing its central thrust. I very much hope that when this remarkable debate is read and considered by the Minister and her colleagues they might feel able to take a more positive view at a later stage if the Bill is given a Second Reading.
Perhaps I may say one or two things without wishing to detain your Lordships for long after what has been a remarkable debate. First, I have read all the previous debates on similar attempts to incorporate the convention. This occasion is quite different. In the first place, this is the first occasion on which the senior serving judiciary have with one voice, and a powerful dissenting voice from a very distinguished former Master of the Rolls, expressed the strong view that the time has come to give the people of this country really effective domestic remedies in our courts. That has never happened before.
Secondly, the noble Lord, Lord Williams of Mostyn, has spoken not just on his own behalf but on behalf of the main Opposition party, making clear their determination that a Bill of this kind should be enacted. That again is a complete break from all previous debates.
Thirdly, the noble Lord, Lord Cocks of Hartcliffe, raised a number of matters which I have not seen referred to in previous debates on this subject. In case I forget to deal with them all, perhaps I may reassure the noble Lord on three points. First, the Bill will not touch the rules of my former club, the Garrick Club. Its members can continue freely to exclude women without being affected by the Bill.
Secondly, I am not here holding a brief for Charter 88. The noble Lord made it sound like a communist organisation of a most insidious kind. He spoke as though he was Senator Joe McCarthy. That is not part of this debate. Your Lordships' views are not formed by being lobbied. Each Member of the House speaks for herself or himself.
Thirdly, the noble Lord is entirely mistaken in thinking that the proposal that was made by the noble Lord, Lord Alexander of Weedon, the noble and learned Lord, Lord Simon of Glaisdale, the noble Lord, Lord Irvine of Lairg, and myself for better scrutiny by this

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House of primary and subordinate legislation to see whether it complies with the European convention is some kind of lawyers' ramp designed to encourage litigation or line the pockets of the Bar. That is completely misguided. The whole purpose of that proposal—not a Charter 88 proposal—is to reduce litigation by ensuring as far as one can that our legislation complies with our international treaty obligations. So the noble Lord, Lord Cocks, with his conspiracy theory need not worry about that any further.
In my opening speech, I quoted some words by a great American judge, Judge Learned Hand. As I listened to this extremely distinguished debate, I was reminded of some other words of that great judge when he said,
"The spirit of liberty is the spirit that is not too sure that it is right".
I am not at all sure that I am right in the precise way in which the Bill has been formulated. All that I am confident of is the diagnosis that there is a serious constitutional and legal problem which needs to be tackled by legislation on these lines.
Since the Minister shakes her head, perhaps I may give the House one example to serve for all. As your Lordships know, there are many examples of serious breaches of the convention which have arisen from the common law, such as Spycatcher, Harriet Harman and Thalidomide; which have arisen as a result of legislation, such as the closed shop case; and which have arisen as a result of administrative discretion, such as the Golder and Silver prisoners' correspondence cases, the detention of mental health patients, and so on.
I should like to focus on one pending case—it is pending before the European Commission of Human Rights—to illustrate the gravity of the problem upon which, in my respectful view, the noble and learned Lord, Lord Browne-Wilkinson, rightly focused when he said that the main problems are not the clear, blatant and deliberate breaches by Parliament, but inadvertent breaches by over-broad delegation of power to Ministers and civil servants which then lead to breaches of the convention.
I refer to a case that is being brought by the Fair Employment Commission, a public authority in Northern Ireland, against the United Kingdom in respect of Ministers' certificates blocking access to industrial tribunals where Catholics complain of religious discrimination in employment in Northern Ireland. If those complainants were women and they were complaining of sex discrimination in employment and, as was the case some years ago, the Minister issued a certificate blocking their claim to access to justice in an industrial tribunal, they would have an effective domestic remedy straight away in the industrial tribunal because, under European Community law, a Minister's certificate cannot breach the European rule of law. The Luxembourg Court so ruled in Johnstone v. The Chief Constable of the Royal Ulster Constabulary. So women across the United Kingdom cannot have their sex discrimination claims blocked by ministerial fiat, but they can (because Parliament has authorised it) have them so blocked if the claim is based on religious
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discrimination. The only remedy open to such alleged victims is to take their case to Strasbourg. Because all the new democracies are clogging up the courts, as we are, six or seven years later—by which time they may be old and unemployable—they may get a remedy.
That is a problem. I can describe many others, but I promised not to. The Government will be pleased that there are not domestic remedies because they prefer, understandably, as all previous governments have, to play it long; to wait as long as they possibly can for the Strasbourg institutions to rule; and meanwhile, the ordinary men and women affected by that practìce have no domestic remedy. English judicial review cannot reach the problem because the statute has authorised the issuing of that certificate; the purpose stated is deemed to be conclusive; the common law is helpless; and there are no positive rights for our citizens.
The central object of the Bill is to place our courts in exactly the same position as the European Court of Human Rights—no more and no less. Sovereignty was passed from this country to Strasbourg on 1st January 1966 when the first Wilson government agreed that there should be a right of petition to the European Commission and Court of Human Rights. It passed because the judgments of that court are binding upon Parliament as well as the courts and the public administration. I regret to say that the decision was taken without even a Cabinet committee discussing it. Therefore, it is not altogether to the point to speak of the sovereignty of Parliament. Parliament is no longer sovereign. It is bound in international law to comply with the European Court's judgments.
The purpose of the Bill is to return some real sovereignty and power to our own courts so that they can have the first bite at human rights violations before cases go to Strasbourg. I should like to make it clear that, if the Bill is seen in any way to threaten the right of a future Parliament to override the convention in extreme circumstances, or for that matter to amend the Bill of Rights in any way, it is not intended to fetter parliamentary sovereignty at all, and it will be sensible for it to be amended for that to be made clear.
I hope that the noble and learned Lord, Lord Donaldson of Lymington, will forgive me if I do not seek to persuade him to take a different view of the matter. I am a poor advocate. I have argued before him as an advocate many times, and I have never persuaded him to take the convention in the way that I hoped he would, and I shall not succeed now. With great respect to him, perhaps I may leave aside the general arguments and philosophy and go to the particular points made by the noble and learned Lord the Lord Chief Justice, Lord Taylor of Gosforth, speaking on his own behalf and that of the noble and learned Lord, Lord Woolf, and the noble and learned Lord, Lord Browne-Wilkinson.
I am intimidated to be faced by three jurists of such eminence, each of whom has looked so carefully at the Bill. Having heard them, perhaps I may say this—these are all points that would need to be pursued in Committee—first, I respectfully agree that Clause 4 is too broad and too rigid in creating a constitutional tort with an apparent right to damages. It needs to be amended so that the remedies, as the noble and learned

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Lord, Lord Taylor, said, would be discretionary, and would of course be capable of including compensation, but not as of right.
Secondly, I again agree that there is a need to ensure that Parliament can derogate under our domestic law, as it is entitled to under Article 15 of the convention. Article 15 is incorporated, and our law should match that right to derogate.
Thirdly, I agree that there is a need to ensure that parliamentary sovereignty is preserved expressly; and, fourthly, I agree with noble Lords that there is a problem about the choice of the appropriate court which is to tackle convention problems. The natural court is the Queen's Bench Division, the Divisional Court, acting under Order 53. But I respectfully disagree with the notion that in every case where a convention point arose there would have to be what the noble and learned Lord, Lord Donaldson, happily described as "convention blight"—a situation in which a case had to be halted in its tracks while a possibly hypothetical convention point was referred to a more senior court. In my view, it is
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more sensible to make the litigant take his or her convention point in the appropriate court, get the facts found and then have it dealt with thereafter.
The noble and learned Lord, Lord Browne-Wilkinson, suggested that there was a danger that one might be going too far by one's approach to statutory interpretation. My fear would be that the New Zealand approach would go scarcely further than the existing approach in this country of a presumption of conformity with the convention. But I strongly agree that most cases could be solved by a formula of that kind.
I have spoken for too long and apologise for doing so. However, I thought it right to try to deal with some of the points. I hope that I have succeeded in showing that at least I understand the problems, even if I do not have answers to all of them. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Sheffield Assay Office Bill
Brought from the Commons, read a first time and referred to the Examiners.
House adjourned at twenty-four minutes before eleven o'clock.