Lords Sitting of 25 May 1995

Preamble
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of St. Edmundsbury and Ipswich.

National Air Traffic Services
Lord Clinton-Davis Lord Clinton-Davis asked Her Majesty's Government:
What are their plans for the privatisation of the National Air Traffic Services.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, the Secretary of State for Transport announced in November 1994 that the Government continue to favour privatisation of the National Air Traffic Services in principle but that further work was needed on a number of important issues before any final decision could be made on whether or not to proceed with privatisation. We are currently considering the further work that has been done and will make an announcement soon.
Lord Clinton-Davis: My Lords, is it not clear that the Government have made a complete U-turn on this matter? Is it not clear also that, following consultation, their proposals have found little or no favour with air carriers, pilots, air traffic controllers and anyone else who has an interest in the matter? Is it not also bizarre that the Government should even have entertained the idea when no other country in the world, including the United States which has rejected the concept of privatisation of the service, follows that course?
Viscount Goschen: My Lords, I do not see how the noble Lord could have gleaned any of that from my full Answer. The party opposite continues to refuse to acknowledge the benefits of privatisation, which we have seen in a number of organisations which have developed efficiencies, introduced new management techniques and found new sources of investment. Privatisation is a very useful tool.
Lord Boyd-Carpenter: My Lords, as one who fully shares the view of my noble friend about privatisation, may I ask him whether in this particular case there are any real advantages to be obtained from it?
Viscount Goschen: Yes, my Lords. Privatisation of an organisation such as NATS can bring efficiencies, reductions in charges and a more efficient service to airlines and hence to the users of airlines, the passengers.
Lord Harris of Greenwich: My Lords, is the noble Viscount indicating that there will certainly be reductions in charges if the privatisation is carried through?
Viscount Goschen: My Lords, I am indicating that the possibility arises.
Lord Clark of Kempston: My Lords, does my noble friend agree that in 1979 British taxpayers were losing £50 million per week in the nationalised industries whereas now, under privatisation, the Exchequer receives £50 million per week? Is that not proof positive that privatisation works?
Viscount Goschen: My Lords, I could not agree more with my noble friend.
Lord Marsh: My Lords, does not the Minister agree that there is a faint danger that the Government may be entrapped by a sort of Clause 4 in reverse?
Viscount Goschen: My Lords, I am grateful for the noble Lord's concern. As ever, the Government will be able to make their position absolutely clear.
Lord Merlyn-Rees: My Lords, does the Minister agree that there are arguments for privatisation in terms of efficiency, greater profits and investment, but air traffic control depends on safety? Can we have an absolute assurance that nothing will ever be done that will weaken the safety record of air traffic control in this country?
Viscount Goschen: Yes, my Lords, I can give that firm assurance.
Lord Craig of Radley: My Lords, can the Minister reassure the House that if NATS were to be privatised the essential training needs of the Armed Forces and the allocation of airspace in and around the UK would continue to be met?
Viscount Goschen: My Lords, our proposals fully take into account the needs of the Ministry of Defence.
Lord Clinton-Davis: My Lords, is the Minister aware that the enthusiasm that he portrayed for this proposal seemed a little restrained this morning? He asked me how I gleaned my information. Is he aware that the White Paper on competitiveness (which I think should be more appropriately called Forging Behind) contains no reference to the privatisation of NATS, in contrast with the 1994 White Paper which was full of it? That seems— does it not?—to be sufficient evidence of the Government's intentions.
Viscount Goschen: My Lords, I set out the Government's position very fully in my original Answer.
Lord Marlesford: My Lords, can my noble friend explain why considerations of safety in air traffic control seem somehow to inhibit the consideration of privatisation of that service when in the case of airlines, where safety is just as important, that does not seem to be a factor?
Viscount Goschen: My Lords, that is an extremely important point. With the privatisation of British Airways and the British Airports Authority, which are entirely safety critical, we have seen two businesses which have an excellent safety record combined with a very good financial performance.

National Lottery: Proceeds
11.12 a.m.
Lord Donoughue Lord Donoughue asked Her Majesty's Government:
Whether and in what ways it is proposed to improve the arrangements for distributing the proceeds of the National Lottery to good causes.
The Parliamentary Under-Secretary of State, Department of National Heritage (Viscount Astor): My Lords, the National Lottery has raised £524 million so far for good causes. The distribution of those proceeds has only just begun, with £69 million being allocated by the 11 distributing bodies for 284 worthwhile projects.
Lord Donoughue: My Lords, nothing is perfect, not even the present Government—
Lord Graham of Edmonton: That is a bit strong!
Lord Donoughue: Yes, my Lords. Is the Minister aware that there are already concerns about the arrangements for distributing the proceeds of the lottery? There are concerns about the priorities that have been established as regards the distributions to charities. There are also concerns about the criteria for the millennium distribution and about the presentation of the heritage distributions. Above all there are concerns about how much is being retained—currently, it is probably 9 to 11 per cent.—by the managers, Camelot. Will the Minister ask his right honourable friend the Secretary of State to reconsider some of these matters? Above all, will he look at whether Camelot should be required to publish every month the amount it is retaining from this huge revenue?
Viscount Astor: My Lords, we have to remember that the lottery funds only started to flow into the distributing bodies in November. So far 284 schemes in our sports heritage have been approved. We expect at least 1,000 projects to be approved by the end of the year. These are early days. Of course I appreciate the noble Lord's concerns as regards how the distributing bodies manage their task but, as I say, these are early days and we must let them get on with the job that was set by Parliament under the Act. As regards Camelot's profit, it is worth emphasising that over the course of Camelot's seven year licence its take-out to cover both operating costs and profit will be just 5 per cent. That will be the average over the period of the licence. As the turnover increases, so does the amount that goes to the good causes, and Camelot's percentage share goes down. Therefore, the more successful the lottery, the more money that will flow to the good causes.
Lord Donoughue: My Lords, before the Minster sits down, does he not agree that although Camelot retains an average of 5 per cent. over a long period, it is currently retaining a figure that is about double that? It has retained that money early in the proceedings, and that is done at the cost of less distribution to the good causes. That is not what we anticipated when we discussed and supported the lottery in this House.
Viscount Astor: My Lords, the percentage retained by Camelot to date is about 9 per cent. which is higher than the overall forecast figure and reflects its higher investment and start-up costs. However, the main point is
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that over time the figure will reduce to just over 5 percent. over the course of the whole licence. Therefore, it will average out. The gearing effect of a licence means that Camelot's share will be a lower percentage as the turnover increases. Therefore the figures will balance. I remind the noble Lord, Lord Donoughue, that the licence under which Camelot operates, which is awarded by OFLOT, is available in the Library of your Lordships' House.
The Viscount of Falkland: My Lords, is it safe to assume that there is some kind of a fast track for funds to be distributed from the lottery, to judge from the decision to keep the Churchill papers in this country? If there is such a fast track, how does one get on to it? For example, the folk heritage of this country, which comprises a multi-media collection of videos and films, is now likely—according to a report in the Observer last Sunday—to go to the United States because of lack of funding here. How could that heritage be put onto a fast track?
Viscount Astor: My Lords, there is no fast track as such. Applications are a matter for the distributing bodies. As the noble Viscount said, the Churchill papers have been saved for the nation. That decision was made by the National Heritage Memorial Fund; it clearly fits in with its published criteria for assessing applications. It is for the distributing bodies to assess applications and I believe they are doing so. They have had many applications and are dealing with them as fast as they are able.
Lord Hailsham of Saint Marylebone: My Lords, would it not clarify the atmosphere of civilised discussion which characterises this House if we avoided analogies from the motorway? We have already had a U-turn and a fast track. Should we not return to the Queen's English?
Viscount Astor: My Lords, that is a laudable ambition. Perhaps if my noble and learned friend can find a way of turning that into an application for lottery funds, he might find some advantage.
Lord Howell: My Lords, are the Government aware of the increasing concern as regards the distribution side? Charities in this country are losing much income as a result of the National Lottery but they have not yet had a penny distributed to them. In spite of the fact that £104 million has been allocated to charities, they will not receive any money at all until next November. Now we learn that the committee distributing money to charities is to set up 13 regional offices to advise them about that. Is that not a totally wrong use of lottery money which ought to go exclusively to charities and not be spent on bureaucracy? Furthermore, is the Minister aware that voluntary sports clubs, especially in the cities, are having great difficulty raising the 35 per cent. sum that is needed to submit a claim whereas bodies involved in the arts only have to raise 10 per cent. to qualify for a grant? Will the Minister examine that terrible discrepancy which is affecting money for sports provision?
Viscount Astor: My Lords, perhaps I may answer the noble Lord's last question first. The grants made by the Sports Council for lottery applications are a matter for that council. It has only just started distributing lottery funds and it will obviously have to take many factors into account.

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As regards the National Lottery Charities Board, I remind the noble Lord that the arrangement for regional boards is part of the National Lottery. It was debated in this House. The setting up of the boards is part of the legislative procedure on which the Government gave their assurance. It is important that the National Lottery Charities Board gets it right; it will probably receive more applications than any other body. It has decided that its primary aim for first grants will be to improve the quality of life of people in communities in this country who are disadvantaged by poverty. The board will look at further applications this autumn.
Lord Nathan: My Lords, can the Minister assist us as regards the concentration of power in the hands of those responsible for distribution? I am thinking particularly of the charities. Is a consequence of this that an industry will develop of consultants on how best to approach the matter? Does that situation arise?
Viscount Astor: No, my Lords, I do not think it does. It is for the charities boards and sub-boards to take decisions on applications for lottery funds.
Lord Annan: My Lords, does the Minister agree that we should give the bodies which distribute the moneys a fair run before we begin criticising every decision that is made? Should we not remember how often great works of art have left the country because, perfectly understandably, the government of the time thought that the taxpayer could not afford the amounts requested? Here we have a marvellous chance to retain works of art in this country. I say that with reference to the Churchill papers and many items which will come up in the future. I would greatly regret it if each donation became a target for envy.
Viscount Astor: My Lords, the noble Lord, Lord Annan, puts the case very well. It is extremely important that at a time when the distributing bodies have only just started receiving applications for grants we resist the temptation to tinker with the system just to keep a few people happy. We must give those bodies a chance to get going and operate properly.

Breast Cancer
11.22 a.m.
Lord Dubs Lord Dubs asked Her Majesty's Government:
What proposals they have to improve the treatment of women suffering from breast cancer.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, our proposals are contained in A Policy Framework for Commissioning Cancer Services, the report of the Chief Medical Officers for England and Wales Expert Advisory Group on Cancer which was published on 24th April.
Lord Dubs: My Lords, while we accept that progress has been made, is it not unthinkable that the Royal Marsden Hospital in Fulham—widely acknowledged to be Europe's centre of excellence in the treatment of cancer, particularly breast cancer—should be under threat
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of closure or at least has an uncertain future? The consequence is that the hospital has a lesser ability to attract high quality staff and there is a disastrous effect on the attitude of patients who have gone to the hospital for its high quality of treatment. That hospital, unlike others, treats patients as human beings.
Baroness Cumberlege: My Lords, I absolutely agree with the noble Lord that the Royal Marsden Hospital is a place of excellence, with a world-wide reputation. As your Lordships will be aware, it has become a trust and I am sure that health authorities will recognise that and will continue to use it.
Lord Ironside: My Lords, as the Question points to the considerable public unease about the quality of breast cancer services, I welcome the steps that my noble friend has taken to improve them. Will she say what steps she is taking to provide for the clinical treatment services and needs of a large number of women who have been permanently and adversely affected and injured by radiotherapy treatment? The Minister has already given me assurances that the clinical outcomes group in her department is considering this month, during May, the recommendations of the Royal College of Radiology to manage the treatment services which are needed. Can she say whether the clinical outcomes group has given its approval, and if not why not? There is a crying need for the services.
Baroness Cumberlege: My Lords, I should like to pay tribute to my noble friend for the work that he has done in the field, especially concerned with the organisation RAGE. The NHS Executive is at the moment considering ways of disseminating the guidance that has been prepared by the Royal College of Radiologists. That will shortly go out to the service.
Lord Ashley of Stoke: My Lords, is the Minister aware that many noble Lords will welcome the assurance that she has given in response to my noble friend, so far as it goes? If closure of the Royal Marsden came to be envisaged, will the Government actively step in and prevent the closure? May we have a guarantee of that?
Baroness Cumberlege: My Lords, if there is a change in service and if it is opposed by the local community health council, then the matter has to go for determination to the Secretary of State. It would be wrong for me to give any assurances at this time with regard to a single institution because we know the enormously rapid change in medical science, in the way that services are provided, and in the needs of the population. So although I know it would be a great comfort to many of your Lordships in this House to give some kind of cast iron assurance, I am afraid that I am unable to do so.
Lord Skelmersdale: My Lords, has my noble friend had time this morning to read the Daily Express newspaper? In it there is a report of American research suggesting that wearing a brassiere for more than 12 hours a day will increase the incidence of breast cancer by 11 per cent. Has any comparable research been done in this country or is it likely that the suggestion will become the medical flavour of the month, with imported, unchecked

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American research? Will we forget about it in a few years' time as we have done with butter and many other substances?
Lord Lyell: Do you wear them?
Baroness Cumberlege: My Lords, I heard a Member of your Lordships' House asking whether I wear them. This is a very grown up question. The answer is that I am still trying to think of ways of abandoning my liberty bodice!
I have no knowledge of any research in this country in that field. I suspect that it is an example of a newspaper anxious to fill its pages.
The Viscount of Falkland: My Lords, can the noble Baroness tell the House how the treatment of breast cancer, particularly for women between the ages of 50 and 65, compares in quality with that of other developed countries?
Baroness Cumberlege: My Lords, there has been a recent report comparing the survival rates in Europe with those in this country. In fact, we are suspicious of some of that research. In our country we have a comprehensive cancer registry system but only our country, Denmark and the Netherlands have a similar system. We also do not fully believe the basis of that research. When it was published there were qualifications made by the researchers that those who were taking part in the study were volunteers and therefore it was not a comprehensive study. It is an area which needs further research, but, as I have said, cancer registration is patchy in most of Europe.
Lord Campbell of Alloway: My Lords, does my noble friend's answer to the noble Lord, Lord Dubs, mean that the Royal Marsden is no longer under threat of closure?
Baroness Cumberlege: My Lords, at the moment there is no intention of closing the Royal Marsden Hospital.
Baroness Jay of Paddington: My Lords, is the Minister aware—there is no reason why she should be— that this morning I opened a conference of the Royal College of Midwives and the Health Visitors' Association, designed to promote breast feeding in this country? In that area there is substantial research which is neither in the Daily Express nor in any sense questionable that breast feeding can prevent breast cancer. In future, will the Government promote the link between those two as part of their health education campaign?
Baroness Cumberlege: Yes, my Lords. Indeed, we have put a huge investment into the current National Breast Feeding Awareness Week. We recognise that "breast is best". It is the designer food for babies, and we want to encourage women to breast-feed.
Lord Dubs: My Lords, will the Minister agree that when she says she is unable to give an assurance about the future of the Royal Marsden in Fulham, the truth is that the way in which her department is reorganising cancer care in London is likely to mean that the Royal Marsden's future is doomed? It is not part of one of the other teaching hospitals and therefore has no obvious catchment area. Is it not a rather sad day when a masterplan for the health
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service in London —dare I add, Soviet style?—is likely to lead to the closure of Britain's best hospital for treating cancer?
Baroness Cumberlege: My Lords, it is a very sorry day today, when the noble Lord puts such a question. It will raise a whole lot of fears that are totally unfounded. It is scaremongering. I have already told noble Lords that there is no question at this time of the Royal Marsden Hospital closing. The noble Lord will know as well as anyone that I cannot say that in 100 years, 150 years or whenever, this hospital will never, ever close. That would be a ridiculous statement for any Minister to make.

Channel Rail Link Bids: Compliance
11.31 a.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey asked Her Majesty's Government:
Whether any of the bids submitted for the Channel Tunnel rail link by the appointed deadline were not full bids on the basis of the reference specification; and if so, whether any such bid was subsequently accepted for consideration on the basis of information supplied after the deadline.
Viscount Goschen: My Lords, there was a large number of non-compliant elements in the bids submitted on 14th March. We have been seeking to rectify these in accordance with the rules of the competition which were set out in the competition overview document published last August.
Lord McIntosh of Haringey: My Lords, the Minister replied in terms of defects in bids. However, does he agree that the rules for the process that were published last year require that all bidders must submit a full bid on the basis of the reference specification? Will he further agree that the tender adjudication group, while acknowledging deficiencies in all the tenders, said specifically that the tender for Eurorail did not include a reference specification? Is that not a far more serious breach of the rules than the other tender deficiencies?
Viscount Goschen: My Lords, we had always anticipated a degree of non-compliance. That is why we set out very full rules in a public document published last August. I can assure the House that the department has acted entirely in accordance with those published procedures, and entirely even-handedly as between the four bidders.
Lord Peyton of Yeovil: My Lords, I wonder whether any of the applicants is likely to fulfil the Government's hope that it will have sufficient resources, and the will, to put the Grade I building at St. Pancras into an appropriate state of repair. Does my noble friend agree that it is quite clear that the British Rail Property Board has neither?
Viscount Goschen: My Lords, I note of course my noble friend's interest in the St. Pancras building. It was rehearsed in another question earlier. I believe that my noble friend has tabled a further Question with regard to the St. Pancras building, and I shall be delighted to give him an Answer then.
Lord Peyton of Yeovil: My Lords, that is no answer to the question that I just asked. My question was about the present list of applicants.
Viscount Goschen: My Lords, the Question on the Order Paper relates to the bids submitted and whether they were compliant with the specification. As I said, we anticipated a degree of non-compliance; there was non-compliance in a number of areas in the bids. We have acted entirely in accordance with the rules as set out in the published document.
Lord Monkswell: My Lords, does the Minister agree that there seems to be a question about what the rules are? If they are published, and three applicants submit bids in accordance with the rules and one does not, why does the fourth applicant remain in the race? Is it a question of the rules being fit for the particular people involved? I gather that the bid that did not meet the initial rules involved a Member of this House on the Government side. Is that not a very curious way of applying the rules?
Viscount Goschen: My Lords, I have already given the House a very straightforward assurance that we have acted entirely in accordance with the rules and in an even-handed fashion. If the noble Lord cares to go to the Library and look at the document, he will see in paragraph 11.3.1 the detailed procedure for processing bids, and the procedure where there is a degree of non-compliance. To read out the exact rules would take up too much of your Lordships' time. However, I believe that when the noble Lord examines the document he will be fully assured that the Government have acted properly.
Lord McIntosh of Haringey: My Lords, the Minister again refers to "a degree of non-compliance". Will he acknowledge that my Question refers not to a degree of non-compliance—which is of course acceptable—but to a failure to meet the basic specification of the bid? Is it not the case that one of the four tenders—I have no interest in any of them—of which three are led by Conservative Peers, failed to meet the basic requirement to submit a full bid in terms of the reference specification? If that is the case, why is that bid still in the ring?
Viscount Goschen: My Lords, without wishing to tax the patience of the House with somewhat repetitive answers, all I can do is repeat the assurance that I have already given that the bids contained a degree of non-compliance. That fell within the scope of the document that we published as to how to deal with this situation. We have not acted outside the rules as set out in the document entitled, Channel Tunnel Rail Link and European Passenger Services: Competition Overview.
Lord Richard: My Lords, I wonder whether the Minister can help me. I am a little lost. As I understand it, he is telling the House that in relation to the competition, the Government had rules with which they did not expect people to comply; and when people lived up to the Government's non-expectations and did not comply with the rules, the Government decided that somehow or other they would forgive the non-compliance. Were there any criteria in relation to the forgiveness? Were some of the sins considered graver than others? If so, can we be told on what basis the Government reached their conclusions?
Viscount Goschen: My Lords, the noble Lord has done a very good job in trying to confuse the House on this issue. I said earlier that I did not wish to try the patience of the House, but I feel that the moment has come. The document states:
"Bids received by the tender deadline will be checked for completeness and for compliance with the tender documentation. Where bids are found to be lacking in terms of the information necessary to enable proper evaluation, or where inconsistent information is presented, one of the following courses of action, which are not necessarily mutually exclusive alternatives, will be taken:
the information presented will be analysed and where necessary specific clarification sought from the Tenderer,
the response will be reviewed to determine the consistency and acceptability of the bid;
as a last resort"—
as a last resort, my Lords—
"the bid will be rejected".

Atomic Energy Authority Bill
11.37 a.m.
Earl Ferrers Earl Ferrers My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to whom the Atomic Energy Authority Bill has been committed that they consider the Bill in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 6,

Schedule 2,

Clauses 7 and 8,

Schedule 3,

Clause 9,

Schedule 4,

Clauses 10 to 14.—(Earl Ferrers.)

On Question, Motion agreed to.

Commonwealth Development Corporation Bill
Read a third time, and passed.

Civil Evidence Bill [H.L.]
11.38 a.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that this Bill be now read a second time.
This is the fourth Bill I have introduced this Session to give effect to recommendations for law reform which have been put forward by the Law Commission. The Bills implement no fewer than seven of its reports. I am sure that noble Lords will join me again in thanking the Law Commission for their excellent work towards simplifying and modernising our laws.
Hearsay is a technical and complicated subject, and it is one which is in need of reform. Those of your Lordships who wish to go into greater detail about the current law,

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its defects and the recommendations will find it in the Law Commission's report No. 216, The Hearsay Rule in Civil Proceedings, which was published in September 1993. Notes on Clauses are also available for further details in the Printed Paper Office.
When Sam Weller remarked in the case of Bardell v. Pickwick that he had quite enough to get, "as the soldier said ven they ordered him 350 lashes", the judge said, "You must not tell us what the soldier, or any other man, said, sir. It's not evidence". That is the hearsay rule. More prosaically, it may be expressed in this way: an assertion other than one made by a person while giving oral evidence is inadmissible as proof of the facts asserted. In its usual application, the rule is concerned with statements made by persons other than the witness, like the soldier, but it also applies to the previous assertions of the witness himself. The origins of the rule are not entirely clear, but there appear to have been two principal reasons for it. The first was that it was doubted whether juries would be able to evaluate hearsay evidence adequately. The second was that the use of hearsay evidence by one side would prevent the other side from cross-examining the maker of the original statement. In civil cases, the first reason has now lost its force: since the 1930s very few types of civil case have been tried by juries.
Exceptions to the rule, both statutory and common law, have gradually developed and as a result of the Civil Evidence Act 1968 the position in civil proceedings in the High Court and county courts is that first-hand hearsay will usually be admissible, if the parties agree or if various conditions are met.
As a result of criticisms which were made to it about the hearsay rule, the Civil Justice Review Body recommended in 1988 that there be an inquiry into the usefulness of the rule; and I referred the matter to the Law Commission. Another significant development at that time was the abolition of the rule in Scotland by the Civil Evidence (Scotland) Act 1988.
As is its customary practice, the Law Commission first issued a consultation paper which made out the case for reform and provisionally suggested the abolition of the rule. It is important to emphasise the strong support which that consultation paper received. Among bodies which welcomed its proposals were the Council of Her Majesty's Circuit Judges, the Association of District Judges, the Magistrates' Association, the Law Society and the National Consumer Council.
Some notes of caution were, however, struck by a few consultees. Two points which were made were, first, that there is a need for the best evidence to be produced if at all possible; and, secondly, that there is a need for a party to be able to test the other side's evidence in cross-examination.
The Law Commission took those arguments into consideration when producing its final report, and the Government share their view that they can be met by the provision of various safeguards. Such safeguards were, indeed, felt necessary by most consultees. They relate to the giving of notice, the weighing of hearsay evidence and cross-examination.
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The commission's report confirmed the proposals in the consultation paper and recommended the abolition of the hearsay rule. The Government fully agree with the commission that the hearsay rule is difficult to understand and to explain to witnesses and litigants. The 1968 Act and rules of court made under it are complex, unwieldy and in some respects outmoded. The provisions on notice impose unrealistic requirements and have fallen into disuse, while those on records, especially on computer records, do not accord with business life today.
Reform is needed. It is not an acceptable argument against reform to say that the inconvenient provisions in the Act are ignored and that there are therefore few problems in practice. That is not the way to achieve comprehensible and workable laws which can command the respect of all who use them.
Nor would the best course be to make a few amendments to the 1968 Act. Although the effect of the Act is that hearsay evidence is generally admissible, the Act is still based on the rule that hearsay is inadmissible. The Government believe that it would be more sensible to abolish the rule itself.
The guiding principle must be that all relevant evidence should be admissible; it should then be for the court to decide what weight to give to the evidence. The concept of hearsay evidence will remain, and hearsay evidence may well be less reliable than direct evidence. But it should not be excluded altogether just because it is hearsay.
I turn now to the Bill. I should make it clear that it only applies to civil proceedings. The Law Commission is now looking at hearsay in criminal cases as well, following recommendations to that effect by the Royal Commission on Criminal Justice which the Government accepted. It will be publishing a consultation paper later this year.
It may also be helpful for your Lordships to know that there are no differences of substance between the draft Bill which was appended to the Law Commission's report and the Bill which has been introduced into your Lordships' House. One or two drafting changes have been made, for the sake of consistency or clarification, but the Government have accepted all the 18 recommendations set out in the report.
Clause 1 gives effect to the principal recommendation in the report. It abolishes the rule against the admission of hearsay in civil proceedings. Hearsay evidence which is already admissible by virtue of other statutes is not to be affected by the Bill.
Clause 2 requires parties, subject to rules of court and unless they agree otherwise, to give fair notice of their intention to adduce hearsay evidence. This will be enlarged on in rules of court, which I intend should be considerably simpler than the present rules. If a party fails to give reasonable notice, it will still be possible for him to introduce the evidence. That is in line with our object of moving away from arguments over admissibility. The court will, however, be able to take the failure to give notice into account when considering the weight to be given to the evidence or when it comes to making orders for costs.
Clause 3 provides for a power to call for cross-examination a person whose statement has been tendered as hearsay evidence but who has not been called

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to give oral evidence. This; clause is one of the safeguards which it was generally agreed to be necessary as a result of the abolition of the hearsay rule.
Clause 4 is another safeguard. It provides courts with statutory guidelines to assist them to assess the weight that they should attach to hearsay evidence. They are no more than guidelines and, indeed, they do little more than set out matters which courts already consider when assessing evidence. But I believe that it will be useful to have this provision in the Bill, particularly for magistrates' courts, which have not admitted hearsay evidence to the same extent as the higher civil courts. Among the factors that I should mention are the questions of whether it would have been reasonable or practicable to have called the maker of the original statement to give evidence, whether or not the statement is first-hand hearsay and when the statement was made.
Clauses 5 to 7 largely re-enact provisions in the Civil Evidence Act 1968, dealing with the competence and credibility of the makers of statements, previous consistent and inconsistent statements of witnesses who give oral evidence, and common law rules on hearsay; for example, in public documents and records.
Clause 8 provides for the proof of statements contained in documents and copies of documents. It also changes the existing law by permitting copies of copies to be received in evidence.
Clause 9 simplifies the rules on the manner of proving records of a business or a public authority. It is an important clause, partly because of what it leaves out. The complex and outmoded rules about computer evidence, which were one of the most criticised parts of the 1968 Act, have not been replaced. Again, this is not to say that computer evidence is always going to be reliable, but that no unnecessary barriers should be put in the way of adducing computer evidence in the first place; leaving it, of course, to the court to consider to what extent the evidence is useful.
Clauses 10 to 15 are general supplementary provisions, but there are several points in them to which I should draw your Lordships' attention. First, the Bill applies to all civil proceedings, before any court or tribunal, in relation to which the rules of evidence apply. It therefore applies to civil proceedings in magistrates' courts, to which the 1968 Act has not been extended. This will make for greater uniformity between civil courts. But the Bill does not apply in proceedings where the court is not bound by rules of evidence, such as small claims proceedings in county courts.
Secondly, the interpretation clause, Clause 12, gives a wide meaning to several words, such as "statement" and "document". The 1968 Act gives examples of documents, including films, tapes and photographs; the Bill simply says that a document is anything in which information of any description is recorded. I should add that in the consequential amendments in the first schedule, where an Act says at present that, for example, "document" has the same meaning as in the 1968 Act, the general provision is of a free-standing definition, like that in the Bill.
Next, if evidence is inadmissible both because it is hearsay and for some other reason, the abolition of the hearsay rule is not to affect the inadmissibility of the evidence for that other reason.
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Finally, the Bill is to apply only to proceedings begun after its commencement.
I believe that the Bill will benefit those who use the civil courts, both individuals and businesses. The National Consumer Council states that abolition of the hearsay rule will enhance public understanding of the law and therefore public confidence in it. On a more specific point, concern has been expressed by insurers that the present complex and out-of-date rules on computer evidence, which can lead to uncertainty as to the admissibility of such evidence, may discourage firms from coming to the City of London.
The Bill fits very well with current developments in the conduct of civil litigation which the Government have been pursuing and supporting, and which I hope my noble and learned friend Lord Woolf will shortly be taking further. These developments involve the admission of all relevant evidence, more openness between the parties, fewer procedural technicalities and greater procedural uniformity between courts. The Bill will, I believe, simplify the law and make it more comprehensible to all who use it. I have the greatest pleasure in commending the Bill to the House.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
11.50 a.m.
Lord Hailsham of Saint Marylebone: My Lords, I congratulate my noble and learned friend on his introduction of the Bill. It underlines once more the valuable contribution which the Law Commission makes to the progress of law reform. It is a standing memorial to the memory of the Lord Chancellorship of the late Lord Gardiner, who immediately preceded me. We are in arrears with some of the reports and I am glad that my noble and learned friend persuaded his colleagues of the importance of finding room for those that appear in our legislative programme.
The history of our law of evidence is slightly ridiculous. We were so obsessed with the dangers of perjury in the presentation of a case that we chose to connect the law with the competence of witnesses and the types of evidence presented instead of giving consideration to their relative weight. In the modern system of justice that which is logically probative should be evaluated by the tribunal of fact and admitted, and only that which is not logically probative should be dismissed as irrelevant.
I have only one slight criticism of what my noble and learned friend said. I am sorry that the respect that we have for the rule against retrospection led us to say that the new law will only apply to proceedings begun after its enactment. Purely procedural and evidential changes in the law should apply as from the moment when the law is enacted to proceedings which are currently before the courts. Having said that, I have said everything I want to say and I hope the House will forgive me for taking up its time.
11.53 a.m.
Lord Mishcon: My Lords, we have just heard a delightful contribution by way of—according to the

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traditions of this House—hearsay evidence from the noble and learned Lord whose name did not appear on the speakers' list.
Lord Hailsham of Saint Marylebone: Sorry!
Lord Mishcon: I have no doubt that it is an invitation to this House to alter its rules. As I said, it is always a great pleasure to hear the noble and learned Lord express himself, especially when it is unexpected.
Baroness Trumpington: My Lords, if I may interrupt the noble Lord, Lord Mishcon, I should say that I did ask my noble and learned friend whether he realised that he had been a naughty boy, and he said yes.
Lord Mishcon: My Lords, I entered my name on the speakers' list because it appeared to me that the voice of a solicitor as well as that of the cuckoo should be heard in the land. I did it for several reasons. The first was to follow the thoughtful words of the noble and learned Lord the Lord Chancellor in paying a tribute to one of his great predecessors, the late Lord Gardiner. He conceived the idea of the Law Commission. It has been left to his successors to see that its recommendations receive the greatest consideration and find their way, if they merit it, on to our statute book. No one has done more than the present noble and learned Lord the Lord Chancellor to see that those wishes are carried out. Not only have the recommendations given new life to our law; they have also given encouragement to the Law Commission which was somewhat disconsolate in years gone by to find that its hard work seemed to end up in a pigeon-hole in a department. The procedure that now exists in this House for speeding these Bills through is a great help. I know that the House appreciates the efforts of the noble and learned Lord in achieving a good record in regard to law reform.
The second reason I added my name to the speakers' list was to express the Law Society's gratitude for the degree of consultation that has taken place between it and the Lord Chancellor's Department. Those consultations have been of great use, not least in bringing to the fore the need for seeing that the timing of the notices which would have to be served under the Act, receives recognition in the rules that will subsequently appear. It is vital in the preparation of a case that there should be proper timing of the notice that hearsay evidence will be adduced. There must also be proper timing in regard to any notice to say that that intention is being abandoned. Otherwise we shall find a great deal of time taken up unnecessarily with confusion at the eventual trial.
I ask the noble and learned Lord to consider carefully the suggestion by the Law Society that another recommendation of the Law Commission should be implemented in the Bill. In September 1994 the Law Commission published its final report on structured settlements and interim and provisional damages (Command 2646, Law Commission Paper 224). The Lord Chancellor was good enough to indicate in a recent press notice that he approves of those recommendations. One hoped that a Bill would be introduced in the present Session of Parliament to implement them. Apparently that has not proved possible, though one of the recommendations found its way into the Finance Act.
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This is an important recommendation which comes within the question of evidence in civil proceedings. It relates to the fixing of damages in personal injury cases, which noble and learned Lords who have sat as judges of first instance in time far gone by, will remember as being a difficult matter in the trial of injury cases. Consideration of forecasts of the future finances of this country and the question of the future chances of employment in this country have to be worked out, which involves difficulty and guesstimates. In that context one has found that multipliers used by some judges are different from those used by other judges on more or less the same facts.
The recommendation of the Law Commission is that we introduce actuarial tables, which are available from government departments, in a way which will stop the use of guesstimates to a large extent and produce more consistency in the adjudication of damages. The Law Commission took the trouble to prepare a clause—clause 6 of its report—which would meet that case. Because of the need for such a provision in personal injury cases, one hoped that this Bill, dealing as it does with evidence in civil cases, would be able to incorporate that clause. I hope that the noble and learned Lord will be good enough to give the matter his consideration.
11.59 a.m.
Lord Meston: My Lords, I thank the noble and learned Lord for his introduction of the Bill and for the particularly helpful Notes on Clauses in which we find the object of the Bill succinctly summarised. The object of the Bill is to move away from a situation in which the admissibility of evidence is of importance to one in which what matters is the reliability and weight of the evidence.
It was 30 years ago, in the case of Myers v. DPP, that Lord Reid recommended reform of the hearsay rule by legislation following a wide survey of the whole field. This Bill follows such a survey by the Law Commission. It marks a further stage in the removal of what Sir Rupert Cross called "the superstitious awe about having any truck with evidence which involves A telling the court about what B said to him". Clients and witnesses in court are often quite bemused by the efforts of the judge and the lawyers to stop them uttering what they believe to be perfectly relevant and credible evidence. There remains much force in Henry Cecil's remark that,
"the laws of evidence often prevent a witness telling the whole truth".
The elaborate and confusing rules about hearsay evolved when juries tried many more cases and many more types of cases than they do today. That does not necessarily mean that now that only a very small proportion of civil cases are heard by juries a total abolition of the rule against hearsay is the only, or the obvious, reform. However, it seems to me that the experience which we now have of the working of the 1968 Act, of the orders made for the admissibility of hearsay under the Children Act and of the more relaxed rules of evidence in industrial tribunals all point the way to the reforms proposed in the Bill. Indeed, the other day I read a case report in which an industrial tribunal had actually been held to be wrong in excluding hearsay evidence, which is perhaps an indication of how far things have moved.

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It is also correct that it has long been possible to include first-hand hearsay in affidavits in interlocutory proceedings provided that the source of information is stated. I hope that that proviso will continue under the workings of the Bill. Indeed, one of the problems of the technicalities of the existing law is illustrated in medical negligence cases where there has to be an omnibus direction that doctors' notes and hospital notes should stand as evidence without further proof. The one thing the court and, I am afraid, legislation cannot do is to make a doctor's notes legible.
The emphasis in modern litigation on advance disclosure of witness statements means that the parties should not be disadvantaged by being confronted with hearsay evidence which cannot be tested by cross-examination and which may have been deliberately or innocently distorted by the witness relaying that hearsay. The reforms to be brought about by the Bill will not succeed in making hearsay evidence wholly respectable. All-important are the safeguards contained in Clauses 2, 3 and 4. Judicial discretion, assisted by the useful statutory guidelines as to the weight to be given to hearsay evidence, should ensure that a consistency of approach will quickly emerge. The rules of court will be of vital importance in ensuring that practical fairness is part of the legislation and the subordinate legislation which follows. I hope that the rules will be the product of wide consultation.
It is not clear from the Bill what classes of proceedings or evidence are to be exempt from the notice procedures. The requirement to give notice is already in place in the 1968 Act under rather more limited circumstances—that is now well understood—which should make the transition to the proposed new procedures fairly painless for practitioners. The Law Commission's criticism of the rule in the 1968 Act governing the admissibility of evidence from "beyond the seas" struck a chord with me at least. I once dismally failed to persuade a judge on the Isle of Wight that I could use it to put in a statement of a witness who had failed to turn up having missed the train in Liverpool. However, the provisions of the Bill will put yet a further emphasis on pre-trial preparation and on case management. An important part of the advice on evidence will be the decision whether to require leave under Clause 4 to bring a witness to court to be cross-examined.
The removal of undue technicalities relating to documentary evidence is another welcome improvement. I have recently been in a case in which there were substantial bundles of Civil Evidence Act notices to prove computer print-outs from a mortgage lender and other such uncontroversial material. I would only question whether the phrase in Clause 8(1), "authenticated in such manner as the court may approve",
is rather too vague and may allow for rather too much variation between different courts and different judges. In Scotland, the legislation is more precise, and I wonder whether perhaps more thought should be given to that aspect of the Bill. With that very limited proviso, I am sure that the Bill will have the general support of the House.
12.8 p.m.
Lord Wilberforce: My Lords, I venture to interpose a
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few words in, I hope, a regular manner in the gap, apologising, of course, for not having entered my name in the list of speakers.
First, I give a very hearty welcome to the Bill. It is a case in which very substantial research and consultation has been carried out by the Law Commission. It is very gratifying that in this case the result of such intensive research and consultation coincides completely with what one considers to be one's instinct in these matters, and has been so for a long time; namely, that the hearsay rule ought in substance to be done away with.
Having said that, I want to make one comment on the Bill as drafted. It is enormously elaborate. It runs to 14 pages and goes into a great number of details. I wish to comment particularly on the schedules which trawl through a great number of Acts of Parliament—the forces Acts, criminal Acts, the International Carriage of Perishable Foodstuffs Act 1976 and finance Acts—and which seem to have very little to do with the object of the Bill. I want to make two comments on that. First, the schedule introduces some changes in the criminal law of not insubstantial extent. If one looks at the Army Act, the Air Force Act and the Naval Discipline Act one finds that it introduces what I think is a new offence of a slightly wide and alarming character. Paragraph (d) of the proposed new Section 62 states:
"with intent to deceive, fails to make an entry in an official document",
In addition, the new section introduces a new definition of "document" in subsection (3):
"'document' means anything in which information of any description is recorded".
That seems to have the effect that, although what the soldier says is henceforth going to be evidence, it is going to be a crime if the soldier interferes in any way with a silicon chip. That may be a necessary step. I just wonder whether it is an appropriate subject for legislation in this Civil Evidence Bill, which, as the noble and learned Lord said, is concerned only with civil proceedings, to introduce these new or extended offences. It may be said that this is technically incorrect but it is convenient. If that is the answer, I am probably satisfied with it. But perhaps the noble and learned Lord would like to deal just with that aspect of the matter.
The other point I want to make is one of simplification. The general effect of the schedule is to extend the meaning of the word "document" to something in which information of any description is recorded. That is done in Clause 12 of the Bill, to which the noble and learned Lord referred:
"'document' means anything in which information of any description is recorded".
That is to give effect to technological developments such as computers, silicone chips, and so on. In effect, the schedule goes through all these Acts which have been trawled through and makes similar amendments to the word "document" as used in those Acts.
I wonder whether that might not have been achieved in a more simple manner. Perhaps the noble and learned Lord might care to consider with his draftsmen whether one should be able to have a simple clause, perhaps in the Interpretation Act or in this Bill, saying that a document means something in which any information is to be recorded; and consider whether it is necessary to go

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through all these Acts, one after another, instead of doing it through a general phrase which would have the advantage of picking up something which the draftsmen may have failed to notice. I do not expect the noble and learned Lord to deal with that point now. Perhaps he will consider some simpler referential clause which deals much more easily with this point. It is of importance and needs to be dealt with in this legislation. Subject to those two points I have great pleasure in commending the Bill to the House.
12.11 p.m.
Lord Irvine of Lairg: My Lords, we support this Bill, as we have supported the three other Bills introduced this Session by the noble and learned Lord on the Woolsack to give effect to some of the superb work of the Law Commission. It is refreshing that it has proved possible to identify a number of quite complex Bills which could be agreed not to be controversial in any party political sense so that they could attract an accelerated passage onto the statute book.
I join the noble and learned Lord, Lord Hailsham, and my noble friend Lord Mishcon in acknowledging the energy of the noble and learned Lord on the Woolsack in promoting these achievements. The standing of Parliament as a legislative machine is enhanced when much needed law reform can be implemented by lean and speedy procedures.
I shall not take up your Lordships' time by rehearsing the noble and learned Lord's explanation of the Bill. I agree with him that the central point is that all relevant evidence should be admissible; that the court must decide what weight to give each piece of evidence; and that it may well be appropriate to give less weight to hearsay evidence.
I particularly welcome Clause 3. It enables rules of court to be made to enable a party to call for cross-examination a person whose statement has been tendered as hearsay evidence by another party but who has not been called by that other party to give oral evidence in court where he can be tested on his evidence by cross-examination. In all our efforts to simplify and reduce the cost of court proceedings, we must never lose sight of the sad fact that parties and witnesses in contested litigation often have an interest to be untruthful or economical with the truth. The function of cross examination is to expose untruths.
A practice direction of 24th January of this year in the name of the noble and learned Lord the Lord Chief Justice and the Vice-Chancellor, Sir Richard Scott, encourages judges in civil litigation to impose time limits on cross-examination. Unnecessarily lengthy or irrelevant cross-examination must always be prevented, but relevant and concise cross-examination, never—even if of unavoidable length—in order to get at the truth. There should be no arbitrary time limits on relevant and concise cross-examination for such limits can only operate in favour of the untruthful.
The modem practice of giving evidence-in-chief by way of a written witness statement—in practice drafted at great length by lawyers in a form in which it is
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inconceivable that it could conform to any oral evidence-in-chief that the witness would himself give in the traditional way from the witness box—increases rather than diminishes the need for thorough and relevant cross-examination. It is therefore welcome to see Clause 3 underlining the importance of cross-examination in our justice system.
In our search for simplified and economic procedures we must never overlook that a primary function of the justice system is to get at the truth. No doubt these are considerations which the noble and learned Lord, Lord Woolf, will address in his report which we eagerly await. I join the noble and learned Lord in commending the Bill to the House.
12.15 p.m.
The Lord Chancellor: My Lords, of course one of the provisions of this Bill is that notice requires to be given of the intention to use hearsay evidence, but that the ordinary rules of notice may, in some circumstances and if the situation requires it, be overlooked. I am sure that your Lordships welcome the intervention of my noble and learned friend Lord Hailsham even though it came perhaps at an unexpected part of our proceedings.
So far as commencement is concerned, that is a matter I wish to consider further. My recollection is that the Law Commission report was silent on that point. There is some need to be clear about precisely how that should operate in relation to cases which are presently in court and may be substantially prepared. One would need to be careful. It is on that basis that the present Bill has been framed.
I am grateful to all noble Lords who have spoken about the progress that has been made this Session with these Bills. It is quite important to remember that although Law Commission Bills may not be party politically contentious—that is the case with all the Bills which I have introduced this Session—nevertheless they may be very highly contentious on a technical level. All the Bills I have introduced have at least had some element of questions of that kind related to them. The degree has been less in some than others; for example, in the Law Reform (Succession) Bill there was very little of it and we were able to take it through in the ordinary way with very little time used on the Floor of your Lordships' House. On the other hand, the private international law Bill was the subject of a good deal of technical discussion. Not everyone was absolutely agreed even at the very end of that discussion, as your Lordships were reminded at the end of our proceedings here.
I believe that the proposals of my noble friend Lord Jellicoe, and accepted by the House, have enabled us to have a very suitable procedure for these matters to be thoroughly examined. Nobody wants Parliament to be a rubber stamp to the Law Commission when there are questions of a technical character that may require to be debated. The difficulty has been to get that kind of thing into the ordinary parliamentary programme when there is such competition for what I might very generally refer to as Bills involving political policy of a high order. Generally, these Bills do not have that except the political policy which is a consensus policy, of trying to simplify and improve our law generally. I believe that we now have

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very good machinery for examining these technical matters fully and enabling a view to be reached on them, as a result of the institution of the Jellicoe procedure.
I take this opportunity to say how grateful I am to so many Members of your Lordships' House who have participated in these committees, which tend to be somewhat time consuming and tend to involve a great deal of preparation, particularly by those who are not familiar with the field, in order to follow what is going on. In the nature of the matters they are technical. I am very grateful to all those from all sides of the House who have been willing to participate.
The noble Lord, Lord Mishcon, mentioned consultation with the Law Society. Obviously, I find such consultation extremely valuable and it is important to continue that in relation to the rules of court which have to be formulated to deal with such matters, including with the question of the extent to which exceptions from the notice required should be provided.
Like the noble Lord, Lord Mishcon, I am very much in favour of seeking to incorporate in our statute law the Law Commission's proposals on structured settlements. As the noble Lord mentioned, they have already been recognised for tax purposes in the Finance Act as a result of agreement between parties across the political divide on the Bill which preceded the Finance Act. I am keen to do that. Indeed, I have been making preparations with a view to doing that at as early a date as I can achieve. If it were possible to do that in this Bill by consent, that date might be even earlier than I had anticipated. Perhaps we can look into that to see whether it is possible. My impression was that these are not "together" as subject matters; but perhaps we can devise some way of putting them together. I should not like to lose any opportunity to bring structured settlements into the law because I believe that they represent a considerable advance on the present situation.
The noble Lord, Lord Meston, referred to a matter which has caused much unnecessary writing in the past. I refer to medical records and their being accepted as evidence. It is now standard procedure to agree that they can be used, but it always takes a little time and effort to meet the technical requirements involved.
We shall want to consider in Committee the point that as been made about Clause 8(1). The intention was to leave the provisions open. They state:
"authenticated in such manner as the court may approve".
Perhaps we should consider making that a little tighter, as the noble Lord suggested. My impression was that the intent of the provisions was sufficiently clear as to make it a good practical proposition.
My noble and learned friend Lord Wilberforce asked two main questions. I turn first to the structure of Schedule 1. I have tried to limit the extent to which the user of a statute has to refer to another statute. That is why we have sought, where necessary, to include definitions which will not require the person using that legislation to have to read this Act. It may be that other considerations suggest another way of looking at that.
I turn now to the criminal law provisions. Given my noble and learned friend's observations, I shall want to look into this a little more fully, but my understanding is
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that they are simply consequential amendments to the existing provisions. Where the language used was that of the Civil Evidence Act 1968, we have substituted the language of this Bill. In a sense, that may alter the precise scope of the offence, but it does so in relation to the matter that is now in question, a record in relation to evidential matters.
The Bill is as simple as we have been able to devise. One way of looking at it is to recognise that it is about half the length of the 1968 Act. If we proceed at that rate of shortening, the statute book will soon be of agreeable proportions.
I am grateful to the noble Lord, Lord Irvine of Lairg, not only for his full support for the Bill, but for the help which he and his colleagues, along with the noble Lord, Lord Meston, and his colleagues, have given to the procedural aspects of getting such Bills into Parliament without undue delay.
I agree with the noble Lord that cross-examination is an important part of oral advocacy. The practice directions, handed down by my noble and learned friend the Lord Chief Justice and the Vice-Chancellor, and followed in somewhat similar terms by the President of the Family Division after a few days, are intended to give the court a clear indication that it has the power to control the time for which evidence is given. I am sure that I can speak for the President and for the Vice-Chancellor in saying that there is no intention of in any way limiting proper cross-examination. However, it is sometimes found that if the time is limited in order to ensure succinctness, that does not in any way detract from the effectiveness of the cross-examination. A short, well thought-out cross-examination is likely to be at least as effective in nailing lies as one which goes on, apparently relentlessly, for a time which appears to the judge and possibly to all those others who are independent observers, except the person conducting the cross-examination, to be unnecessarily long. That is the purpose of those powers. I am sure that they will be well and wisely used. They are intended to be brought to the attention of the judiciary; and I am sure that your Lordships will feel that in those hands they will indeed be wisely used.
I am grateful for the warm support which the Bill has received and it is therefore with confidence that I renew my Motion.
On Question, Bill read a second time and committed to a Committee of the Whole House.

Family Homes and Domestic Violence Bill [H.L.]
12.27 p.m.
Report received.
Clause 2 [Associated persons]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Page 2, line 1, at end insert:
("(dd) they have agreed to marry one another (whether or not that agreement has been terminated),").
The noble and learned Lord said: My Lords, in moving Amendment No. 1, I should like to speak also to the subject matters of Amendments Nos. 2 to 5.
Amendments Nos. 1 to 5 enable persons who have agreed to marry to be "associated persons" able to apply for remedies in the Bill in certain circumstances. The Law Commission recommended that persons who have agreed to marry should be "associated persons" for the purposes of the Bill. One of my concerns about that recommendation was that the whole purpose of proceedings in the Bill was to give quick and adequate remedies in particular circumstances. The last thing that I wanted to encourage was a long preliminary trial which had to do with entitlement, but which had nothing whatever to do with the substance of the matter with which the parties were seeking to deal. That is precisely what brings the law into difficulty and sometimes into disrepute. That can happen if there is a long preliminary inquiry which has nothing to do with the subject matter, so far as anybody can see, but which is embarked upon simply so that the person concerned is qualified to bring proceedings. So at first I was not happy to have such a category in the Bill.
As the evidence before the Committee developed, it seemed plain that there might be cases where it would be easy to prove that entitlement. It may have been a bit harsh, unnecessary and unwise to exclude those. If we could find some way of satisfactorily differentiating between the cases in which the entitlement could be proved readily and those in which it would take a great deal of time, that would be the best answer to the problem. We had some discussions about those issues in Committee and we have had some since.
The noble and learned Lord, Lord Archer of Sandwell, the noble Lord, Lord Meston, the noble Baroness, Lady David, and my noble friend Lord Butterworth produced an amendment addressing that concern before I produced mine. I believe we are all agreed that we want to provide a remedy in the cases falling within that category where it would be fairly easy to establish the title of the applicant as conforming to the description. The Government's amendment is intended to cover the whole subject matter of the other amendment and it does so except in one particular category. The second part of Amendment No. 2 refers to a new category of persons who,
"have undergone a ceremony of marriage in the presence of others assembled for the purpose of witnessing the ceremony whether or not such a ceremony creates a valid marriage".
I understand that that is intended to cover non-effective marriage ceremonies among certain groups. So far as I have been able to follow it up to now, I do not favour that amendment as it appears to have the effect of conferring, at least to some extent, recognition on marriages which do not satisfy the requirements of English law. The intention is not to confer the status of marriage but that part of the amendment would have the effect of conferring on the ceremony a validity for a purpose which is different from the purpose of the ceremony itself—the ceremony itself, as a ceremony of marriage, not satisfying the requirements of English law. That would create an anomaly and would not therefore be an improvement to the Bill. Obviously I am willing to hear what is said, but those are my thoughts.
Amendment No. 5 provides that three types of evidence will suffice to entitle an applicant to obtain a remedy under the Bill. The first is that the agreement is evidenced
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in writing. In seeking evidence in writing, I am not proposing to require that the agreement itself be in writing, because that would be unlikely in the majority of circumstances. Instead, I am proposing that this written evidence may take a variety of forms including correspondence between parties, newspaper announcements, made with the consent of both parties, invitations to an engagement party, and so forth. I believe that that will offer sufficient flexibility in the sort of evidence of the agreement which can be produced while at the same time greatly assisting the courts in dealing with any potential problems with the definition and proof of that category, which could seriously undermine the new domestic violence jurisdiction.
Secondly, the agreement can be evidenced by an engagement ring given by one party to the other in contemplation of their marriage. Engagement rings are still widely used and offer further evidence that an agreement to marry is in existence. Of course it would be a way of proving that an agreement had been entered into. The Bill does not contemplate the idea that the mere fact that one had an engagement ring from the other would necessarily constitute an agreement to marry, but it is a way in which the court could find that the agreement had been evidenced satisfactorily.
The third means of evidencing an agreement to marry is by a ceremony of betrothal in the presence of witnesses. That is intended to deal with the more formal cases. I had hoped that it might cover the types of case mentioned in relation to at least some of the ethnic minorities where problems might arise. That is a method by which clear proof of an intention to marry could be evidenced. It will assist those groups which hold formal or informal engagement ceremonies. Couples who have terminated their agreement to marry may also apply for remedies under the Bill. However, where the agreement has been terminated for more than three years, they may no longer apply and will need to rely on the general law. That provision is consistent with Section 2(2) of the Law Reform (Miscellaneous Provisions) Act 1970.
Amendments Nos. 3 and 4 are intended to achieve a consistency with the general provisions of the existing law. Any violence between the couple is likely to occur within three years of the termination of the agreement. That limitation is also likely to assist the courts with any problems of definition and proof if they do not have to deal with agreements which have been terminated many years previously, where the couple may no longer have any greater nexus than other members of the public.
The amendments I propose will provide a helpful and practical means of addressing the evidential difficulties which may arise in relation to the definition of those who have agreed to marry and will ensure that a remedy is offered to those who have entered into such agreements without undermining the Bill's ability to provide urgent remedies where domestic violence occurs.
I have spoken to the subject matter of the four amendments as well as to Amendment No. 2, because I believe that they all go together. I beg to move Amendment No. 1.
Lord Archer of Sandwell: My Lords, I express my warm appreciation to the noble and learned Lord on the Woolsack for addressing his mind to some of our

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anxieties and for responding so adequately to what those anxieties were. If I may say so, our proceedings in Committee, under the chairmanship of the noble and learned Lord, Lord Brightman, were the ideal way in which a legislature ought to address the details of its legislation. We heard evidence from those who were capable of giving informative evidence; we addressed our minds to one another's anxieties. Over a very large area, we reached consensus, and where there were differences we clarified them.
The history of the matter has been set out by the noble and learned Lord the Lord Chancellor. In the initial version of the Law Commission's draft Bill, the words referred to by the noble and learned Lord were there. They were left out in the Government's version. On Second Reading some of us asked the reason for that, and the reason was expressed by the noble and learned Lord. He has expressed it again today. I say at once that I found what he said persuasive, but my noble friend Lady David, who very much regrets that she cannot be with us today, having committed herself to be elsewhere before she knew the date of these proceedings, decided that she would like to hear further discussion. She set down an amendment in Committee to restore the words which were in the Law Commission's original draft Bill.
The noble and learned Lord again repeated the reasons for the form of the Bill as it had been originally introduced. The noble Lord, Lord Meston, supported my noble friend, and I think, if I may paraphrase him, expressed the view that perhaps some of the difficulties were a little exaggerated. The noble Lord, Lord Butterworth, expressed his support for the amendment. I said, positively and decisively, that I found it difficult to make up my mind, and the noble Baroness, Lady Darcy, equally decisively, shared my hesitation. That was how the matter left Committee, except that the noble and learned Lord the Lord Chancellor suggested that there might be room here for a compromise in the sense in which he has already described it to the House so that much of our anxiety would be dealt with without opening the field to the very long delays which might emerge from the original Law Commission version.
At that stage, my noble friend Lady David, the noble Baroness, Lady Darcy (de Knayth), the noble Lord, Lord Meston, and I went into a huddle. We sought advice in particular from those who were knowledgable about the anxieties of the minority ethnic groups and we tabled the amendment. I wish to acknowledge the great assistance that we received from the noble Lord, Lord Meston, who greatly improved my initial efforts at drafting.
The response of the noble and learned Lord the Lord Chancellor has met all our anxieties, subject to one, and we are grateful for that. I am sure that those whose anxieties we were seeking to express will be grateful too.
As the noble and learned Lord said, the one matter that has not been addressed is the position of those from certain minority ethnic communities who undergo a religious ceremony of marriage which in the view of that community establishes a marriage but is not recognised as such in English law. It is curious if when all they seek to do is to undergo an engagement ceremony they are protected under Clauses 7 and 13. However, sometimes the engagement ceremonies are not public and fall into
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exactly the category which occasioned the anxieties of the noble and learned Lord the Lord Chancellor. If, instead, they undergo what they see as a marriage ceremony in accordance with the requirements of their religion, and they are perceived by their community as being married and they perceive themselves as being married, normally all that remains is at a suitable time—frequently when various people can be present and when arrangements can be made—to go to a registry office and undergo a ceremony that is recognised in English Law as creating a marriage. But that is not what such couples see as creating the marriage; they consider that they are married at the time that they undergo the original religious ceremony. It would be most curious if they would be protected merely because they considered that they were engaged but they would not be protected if they considered themselves to be married.
I have not had an opportunity to consult the noble Lord, Lord Meston, or the noble Baroness, Lady Darcy (de Knayth), and therefore I can speak only for myself. I would not wish to seek to divide the House today. I express our gratitude for the amendments, which have been tabled as a result of the noble and learned Lord's reaction to our anxieties. I believe that the matter is worth further discussion between us and perhaps at some stage something will emerge which we all find ourselves able to live with.
Amendment No. 2 appears in my name, but that of the noble Lord, Lord Meston, appears above mine. Perhaps I should leave it to him to move the amendment but if the task falls to me I shall be happy to move it for purposes of discussion today. However, I say at once that if it is left to me I shall in due course seek leave to withdraw it.
12.45 p.m.
Lord Meston: My Lords, for the reasons indicated by the noble and learned Lord, Lord Archer, I should be happy to follow that course in relation to Amendment No. 2. I join him in thanking the noble and learned Lord the Lord Chancellor for responding to the amendment tabled in Committee and I pay tribute to the noble and learned Lord, Lord Brightman, for his chairmanship of the Committee.
The amendments return us to the question of where to draw the line between those who can and those who cannot seek relief under the Bill. The Law Commission included those who had agreed to marry and also those who have had a sexual relationship. The Bill excluded them because of the risk of difficulties in definition and proof. The arguments were fully rehearsed in evidence to the Committee and were summarised by the noble Baroness, Lady David, when she moved her amendment.
The provisions will apply only to a small number of people who are not caught in the other categories listed in Clause 2. Only in a small proportion of that small number would there arise the issue of whether the parties were engaged to marry. I suspect that in respect of an even smaller proportion of that small proportion would any time need to be taken in resolving that issue. However, the noble and learned Lord the Lord Chancellor helpfully pointed the way to a possible compromise, hence the tabling of these amendments.

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The government amendment appears to be more elaborate than ours. It includes a specific reference to evidence of the agreement to marry being in writing. Frankly, in the real world few agreements to marry are in writing. I doubt whether even the most fastidious member of the Chancery Bar would solemnly record his engagement in writing. I was pleased to hear the noble and learned Lord the Lord Chancellor indicate the wider interpretation to be given to that provision. Of course, in practice the more important evidential requirements will be the existence of a ring or a betrothal ceremony of some kind. Today we have had reference to Bardell v. Pickwick. It remains the fact that Mrs. Bardell, with no ring and no corroboration, would not be covered by the provisions of the Bill. It is such a topical case that I reread it and was reminded that even an early conditional fee agreement was undertaken by Messrs. Dodson and Fogg. Perhaps that will be material for later debate.
The point of difference between our amendment and that tabled by the Government is the inclusion of those who have undergone a ceremony of marriage in the presence of others, whether or not such a ceremony created a valid marriage. I respectfully agree with everything that was said about the provision by the noble and learned Lord, Lord Archer. There are people who are married in the eyes of their own community. They may be married without a betrothal ceremony, so they would be caught by the preceding provision of the amendment.
I have in mind a case in which I was involved concerning an Asian arranged marriage. The 16 year-old bride was tricked into a religious marriage ceremony, which our courts would not have recognised. She then had the strength of character to resist the subsequent arrangements for the civil ceremony and to resist cohabitation with the "husband". Thereafter, he harassed her; in particular he tried to obtain money from her and her family. Such a situation might usefully be covered by the Bill. However, it must be remembered that in some situations there is a gap between the religious ceremony and the subsequent civil ceremony. The amendment would serve the purpose of filling that gap. Of course, there may be other consequences. I suppose that polygamous marriages would then come within the ambit of the Bill. But perhaps it is not too high a price to pay if we extend the provisions of the Bill to polygamists.
It is not my intention to press that difference at this stage but perhaps it should be looked at further before the Bill leaves this House.
Baroness Darcy (de Knayth): My Lords, perhaps I may give a very warm welcome to these amendments which are the happy result of the ingenuity of the noble and learned Lord the Lord Chancellor and the persistence of the noble Baroness, Lady David, and others. I hope that perhaps, as the noble and learned Lord, Lord Archer, has said, eventually we may be able to include the group that he has just mentioned.
As very much the lay member of the Committee, so brilliantly chaired by my noble and learned friend Lord Brightman, perhaps I may say that I found the whole experience absolutely fascinating. I regret very much that we cannot include all those who have agreed to marry but
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without any formal agreement and also the other category recommended by the Law Commission and referred to by the noble Lord, Lord Meston; namely, those who have or have had a sexual relationship. However, I understand the difficulty about lack of proof.
I very much hope that we shall soon see the introduction of a new branch of tort which would cover not only those groups but also obsessive stalkers which were referred to frequently in the evidence. Meanwhile, these amendments are extremely welcome.
The Lord Chancellor: My Lords, I am grateful for what has been said in relation to the amendments which I am proposing. As regards the last point made by the noble Baroness, Lady Darcy, perhaps I may emphasise that it was quite clear from the evidence, and in particular from the evidence of the police, that there are problems in the area covered by the Bill, in particular in relation to molestation, where they face quite severe difficulties. One should address the evil in question, the wrong that is going on. It does not matter whether one has agreed to marry or one happens to be a fellow employee. If molestation is taking place, that is what one wishes to prevent. One does not wish the law to be involved in long inquiries about the nature of the relationship when that is irrelevant to the remedy that is being sought.
The committee was cautioned about extending family homes and domestic violence law in a way which unduly distorts it in order to introduce other perhaps deserving cases. The right way to approach those deserving cases is to develop the law for them. Therefore, I very much welcome what the noble Baroness said and I believe that the law is developing in that connection.
I can see the force of the arguments used by the noble and learned Lord, Lord Archer of Sandwell, on the second branch of Amendment No. 2. The difficulty for me so far about the noble and learned Lord's proposals is that it depends on the nature of the invalidity. If people are moving towards what would be a valid marriage in this country, there are fewer difficulties. If one goes into an area where the law, for good public policy reasons, does not recognise the marriage, it is somewhat difficult in principle to recognise the agreement to marry as having any legal effect, although of course it may have practical effects.
The case to which the noble Lord, Lord Meston, referred is somewhat unusual in that there must be a certain amount of doubt about the status of the original agreement to marry and whether or not it was an agreement. Usually in those cases, marriage would be followed by cohabitation and people would be brought within the provisions of the Bill under that heading.
Obviously, there are matters to consider further. I have tried to explain my difficulties. I shall consider further what we should do and I may consult on the matter. In the meantime, I commend the amendment.
On Question, amendment agreed to.
[Amendment No. 2 not moved.]
Clause 7 [Occupation orders where applicant has estate or interest etc. or has matrimonial home rights]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Page 5, line 31, at end insert:
("( ) Where an agreement to marry is terminated, no application under this section may be made by virtue of section 2(1) (dd) of this Act by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.").
The noble and learned Lord said: My Lords, I explained this amendment in relation to Amendment No. 1. This puts a time limit on the matter, which I think helps, and is consistent with existing law. I beg to move.
On Question, amendment agreed to.
Clause 13 [Non-molestation orders]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
Page 10, line 41, at end insert:
("( ) Where an agreement to marry is terminated, no application under subsection (2) (a) above may be made by virtue of section 2(1) (dd) of this Act by reference to that agreement after the end of the period of three years beginning with the day on which it is terminated.").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 5:
After Clause 14, insert the following new clause:
Evidence of agreement to marry
(".—(1) Subject to subsection (2) below, the court shall not make an order under section 7 or 13 of this Act by virtue of section 2(1) (dd) of this Act unless there is produced to it evidence in writing of the existence of the agreement to marry.
(2) Subsection (1) above does not apply where the court is satisfied that the agreement to marry was evidenced by—

(a) the gift of an engagement ring by one party to the agreement to the other in contemplation of their marriage, or

(b) a ceremony of betrothal entered into by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony.").

On Question, amendment agreed to.
Clause 17 [Arrest for breach of order]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 6:
Page 12, line 39, at beginning insert ("if the matter is not then disposed of forthwith,").
The noble and learned Lord said: My Lords, in moving this amendment, perhaps I may speak also to Amendments Nos. 7, 8 and 12. These amendments represent minor and drafting amendments that have arisen following further consideration of the amendments agreed in Committee. I. am grateful to some of the witnesses who drew some of those matters to our attention, in particular, Judge Fricker.
Amendments Nos. 6 and 7 clarify the powers available to the court when a person is arrested and brought before the court within 24 hours. The Bill as drafted does not exclude the powers of the court to deal with the respondent other than by remanding him or her. However, it has been suggested that the Bill could have been interpreted as meaning that the only power available to the court was the power to remand. None of us wanted that. The amendment therefore ensures that the provision cannot be interpreted as excluding the other powers of the court in dealing with the respondent, particularly the power to hear the contempt proceedings forthwith.
Amendment No. 8 to Clause 19 clarifies the position in relation to the right of a successor in title or trustees affected by a charge under Clause 8 of the Bill to apply for the variation or revocation of orders. Clause 8(1) (b) enables the person deriving the title under the owning
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spouse to apply for an order under Clause 7 For example, a successor in title of the owning spouse might apply for an order restricting or terminating the matrimonial home rights of the other spouse. If the owning spouse's successor in title was, by virtue of Clause 8(1), the applicant or respondent in the original proceedings, he will be able to apply under Clause 19(1) for the variation or revocation of the order. However, no provision was made for a successor in title or trustees to apply for the variation or revocation of an order made against the owning spouse on the application of the other spouse. The amendment to Clause 19 is intended to permit such an application.
Amendment No. 12 to Clause 30 clarifies the definition of "relevant judicial authority" in relation to a magistrates' court in Clause 30(1). The amendment clarifies that the term "any justice of the peace" is not intended to override the current statutory provisions and rules relating to the constitution of a magistrates' court. As your Lordships will know, there are certain circumstances in which "any justice of the peace" may do so, but we became concerned that if that were used as a definition, it might be thought that we were overriding or overruling the existing provisions stating the constitutions of the court required for various subject matters. Therefore, the amendment refers to a "magistrates' court" instead of "any justice of the peace". That brings into effect the rules which would ordinarily govern the exercise of the jurisdiction. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 7:
Page 13, leave out lines 8 and 9 and insert:
("(10) Where a person is brought before a court by virtue of a warrant issued under subsection (9) above and the court does not dispose of the matter forthwith, the court may remand him.").
On Question, amendment agreed to.
Clause 19 [Variation and discharge of orders]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 8:
Page 13, line 43, at end insert:
("( ) Where a spouse's matrimonial home rights are a charge on the estate or interest of the other spouse or of trustees for the other spouse, an order under section 7 of this Act against the other spouse may also be varied or discharged by the court on an application by any person deriving title under the other spouse or under the trustees and affected by the charge.").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 9:
After Clause 19, insert the following new clause:
Power of magistrates' court to suspend execution of committal order
(".—(1) Where under section 63(3) of the Magistrates' Courts Act 1980 a magistrates' court has power to commit a person to custody for breach of a relevant requirement, the court may by order direct that the execution of the order of committal shall be suspended for such period or on such terms and conditions as it may specify.
(2) In subsection (1) above "a relevant requirement" means—

(a) an occupation order or non-molestation order,

(b) an exclusion requirement included by virtue of section 38A of the Children Act 1989 in an interim care order made under section 38 of that Act, or

(c) an exclusion requirement included by virtue of section 44A of the Children Act 1989 in an emergency protection order under section 44 of that Act.").

The noble and learned Lord said: My Lords, in moving this amendment, I wish to speak also to Amendment No. 10 and, in particular, to Amendment No. 11 which is in the name of the noble Lord, Lord Meston. Towards the end of the Committee stage there was a discussion about the powers of various courts to suspend the operation of an order for committal for contempt. The general consensus of the Committee was that, subject to the levels of jurisdiction, the powers of the various courts exercising jurisdiction under the Bill should follow the same pattern and that, if the High Court and the county court had powers to suspend, so too should the magistrates' court.
Some doubt was expressed at the end of the proceedings about the precise basis of the county court's jurisdiction in that connection. I am glad to say that the researches which I instituted came to exactly the same conclusion as the research carried out by the noble Lord, Lord Meston. I am most grateful to the noble Lord. His letter arrived at just about the time we concluded our research. Therefore, we have corroboration that we have found the right answer. I arranged for an amendment to be drafted to give effect to that. The only difference between the two ways of doing it is that, in our amendment, I have done it in the Bill so that the legislation is self-contained. The amendment of the noble Lord, Lord Meston, has proceeded by amending the Magistrates' Courts Act 1980. On the whole, I am keen to try to make it a self-contained code with all the relevant information contained therein. For example, there obviously has to be some reference to the Children Act 1989, but the actual powers are specified. Therefore, I propose to move Amendment No. 9 for that purpose while acknowledging the fact that the amendment of the noble Lord, Lord Meston, would also do the job perfectly well. We happen to have done it this way. For the reasons I have given, I believe that our amendment may be preferable. I shall be glad to hear the noble Lord's view in that respect. I beg to move.
1 p.m.
Lord Meston: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for taking the matter to such a stage. I also express my thanks to the noble Viscount, Lord Colville of Culross, who, although unable to be here today, inspired me to look into the matter in more detail.
As the noble and learned Lord said, the position is quite clear; namely, that the High Court and the county court have power to suspend orders for committal, but, curiously, the magistrates' court does not. That was made clear in a decision of the Divisional Court reported in 1969 and the position has remained the same ever since.
In passing, it should be mentioned that on at least one occasion—in fact, I believe it was more than one—the Children Act advisory committee has, in its annual report, expressed the view that that anomaly should be removed generally. It is suggested that the powers and procedural safeguards as regards the High Court, the county court and the family proceedings courts should
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be unified. That cannot be completely achieved within the ambit of the Bill now before the House. But the amendments certainly go as far as they can in that direction.
It is perhaps worth pointing out that, in such cases, the courts have traditionally taken the view that imprisonment or committal is a last resort. Indeed, in a recent decision of the Court of Appeal the county court was held to have been wrong in having failed to consider a suspended committal order. If a county court was wrong not to have considered it, it is doubly curious that, as the law stands, a magistrates' court cannot contemplate it even if it wanted to do so.
Having said that, there is one point I should like to draw to the attention of the House. It concerns the differences between my amendment and that moved by the noble and learned Lord the Lord Chancellor. My amendment specifically covers the breach of any undertaking as opposed to just the breach of any order. As I understand it, the Bill very sensibly—and for the first time—enables the magistrates' court to accept an undertaking. Of course, it is trite law that an undertaking to the court is as enforceable as an order of the court. Therefore, I question why the amendment proposed by the noble and learned Lord the Lord Chancellor does not include the possibility of committal or of a suspended committal order when there is a breach of an undertaking which, as I said, is clearly intended to be enforceable under Clause 16 of the Bill as if it were an order of the court. With that slight reservation, I am happy to support the amendment.
The Lord Chancellor: My Lords, perhaps I may deal with the reservation expressed by the noble Lord. It has arisen partly because the Magistrates' Court Act does not confer on those courts the power to deal with the undertaking in the way set out in our amendment. Clause 16(3) as amended by the Committee says:
"An undertaking given to a court under subsection (1) above shall be enforceable as if it were an order of the court".
Therefore, the fundamental jurisdiction applies as if the matter in question was an order of the court. In other words, for all practical purposes of enforcement it makes an undertaking given to the court the equivalent of an order of the court. The amendment is framed on that basis. Therefore, where a magistrates' court has power to commit a person to custody for breach of a relevant requirement, the court may by order direct that the execution of the order shall be suspended, and so on. Because of Clause 16(3), the idea is that that should apply equally to undertakings.
I shall obviously need to check the position in view of the fact that the noble Lord has raised the matter. However, I have outlined my understanding of the way the process should work. Subject to that reservation, and as I hear no counter voice in respect of my amendment, I renew my motion to move it.
On Question amendment agreed to.
Clause 20 [Power of magistrates' court to order hospital admission or guardianship]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 10:
Page 14, line 10, leave out from ("requirement"") to end of line 17 and insert ("has the meaning given by section (Power of magistrates' court to suspend execution of committal order) (2) of this Act").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 27 [Magistrates' courts]:
[Amendment No. 11 not moved.]
Clause 30 [Interpretation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 12:
Page 19, line 38, leave out ("justice of the peace") and insert ("magistrates' court").
On Question, amendment agreed to.
Schedule 3 [Amendments of Children Act 1989]:
Lord Meston Lord Meston moved Amendment No. 13:
Page 24, line 39, after ("living") insert (", or about to live,").
The noble Lord said: My Lords, in moving the amendment I shall speak also to Amendment No. 18 which is identical. The amendments would alter the provisions of Section 38A and Section 44A of the Children Act which are both to be inserted by way of the Bill. They refer not simply to another person living in the dwelling house who is able and willing to give the child the care which it would be reasonable to expect a parent to give him, but also to another person living or about to live in the dwelling house.
The purpose of the amendments is to ensure, where appropriate, that the child can remain in the dwelling-house where he has been living, even if the parent or carer is not living there at the time the order is made. It should be possible for another person who is able and willing to care for the child to enter the dwelling-house and to care for the child.
The Bill currently envisages the carer as someone who is presently living with the child. That excludes the possibility of a relation or friend coining to live with the child in the child's home. There will be cases where the child's welfare will be best served by staying in his or her home, close to friends, relations and school. That would mean a relation moving in to care for the child. Such a situation could arise, for example, where the mother of the child has a disability and is living with a man who is a risk to the child. Under the provisions of the Bill the man can be excluded, but as the mother is unable to provide the necessary care alone a relation, perhaps a grandparent, or a friend may move into the dwelling-house to provide care for the child. The child would then remain with its mother in a safe and caring environment. In other words, the amendment would ensure that a responsible adult can move in to preserve the status quo for the child. I beg to move.
The Lord Chancellor: My Lords, as the noble Lord explained, Amendments Nos. 13 and 18 propose that the consent to an exclusion requirement being attached to an interim care and emergency protection order should be extended to include the consent of a person about to live in the dwelling-house as well as one already living there.
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The amendments would broaden considerably the categories of persons able to consent to the exclusion requirement, and as drafted could include not only relatives of the child but anyone proposing to enter the home to look after that child. I believe that it would not be right to allow someone not living in the dwelling-house to consent to an exclusion order and, therefore, that the extent of the amendments are too great.
Essentially, it is a question of the person presently providing care. It may be that the intention, as explained by the noble Lord, would be effected by another person coming to live in the house. However, if that person does not do that then it cannot be right to allow consent to an exclusion order to be made by someone who is not already living in the house.
In addition, I am concerned that the policy of the requirement of consent of the current carer of the child could also be defeated if someone else is allowed to consent to the exclusion requirement regardless of the wishes of the current carer. The examples given by the noble Lord, Lord Meston, did not encompass that possibility but, as I understand the amendment, that could happen. Someone not living in the house could give consent when the carer was not prepared to give consent. That would not work at all.
I do not believe that the noble Lord referred specifically to Amendments Nos. 14 and 15.
Lord Meston: My Lords, with the permission of the House, I intended to deal with those amendments separately. They deal with a separate matter.
The Lord Chancellor: My Lords, I am content to do that. That being the case, that completes what I have to say about Amendments Nos. 13 and 18. I believe that they would unduly open up the possibility of consent to exclusion orders by persons who are not necessarily the right people to give consent. Unless the current carer gives consent I do not believe that the provision would work.
Lord Meston: My Lords, I am grateful to the noble and learned Lord for his explanation of why he cannot accept the amendments. I see his point in relation to the drafting. It may be that the matter can be tackled better with some improved drafting. I hope to attempt to achieve that before the Bill leaves the House. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
1.15 p.m.
Lord Meston Lord Meston moved Amendment No. 14:
Page 25, line 10, leave out ("may") and insert ("shall").
The noble Lord said: My Lords, in moving Amendment No. 14 I shall speak also to Amendment No. 15, which is connected. The purpose of the amendments is to amend the proposed new subsection (5) of Section 38A of the Children Act so that it reads:
"Where the court makes an interim care order containing an exclusion requirement, the court shall attach a power of arrest to the exclusion requirement, unless the court is satisfied that in all circumstances of the case the applicant or child will be adequately protected without such a power of arrest".
One of the nagging worries I have about this particular provision of the Bill is that, although in the main body of the Bill there are criteria governing when the power of arrest can be considered and imposed by the court, no criteria are laid down under this part of the Bill which introduces this new section of the Children Act. All one can deduce is that it is implicit that the court would probably impose a power of arrest if there was a risk of the person being excluded returning to the home.
The purpose of the amendments is to make the power of arrest mandatory when including an exclusion requirement in an interim care order. Without the amendments the child and the person looking after the child may not be sufficiently protected where the excluded person can return to the home without fear of arrest. That could make it possible for the adult responsible for caring for the child to consent to an exclusion requirement on the ground that they may not be able to protect the child should the excluded party return. In the absence of the power of arrest the local authority would be faced with having to remove the child on an emergency basis if an exclusion requirement were breached. That goes against the intention of the legislation which seeks, in an appropriate case, to remove the alleged perpetrator of the abuse rather than the child.
It is proposed that the same wording be adopted in Schedule 3 as presently exists earlier in the Bill. It leaves the option for the court to include an exclusion requirement without the power of arrest when the court is satisfied that in all the circumstances of the case the child will be adequately protected without the power of arrest. I beg to move.
Lord Archer of Sandwell: My Lords, I rise briefly to indicate that my noble friend Lady David, who unhappily cannot be with us today, very much supports the amendment. Your Lordships may recollect that in Committee it was a question from my noble friend which evoked the answer from Mr. Joel-Esam of the NSPCC to the effect indicated by the noble Lord, Lord Meston.
One can see, and Mr. Joel-Esam himself indicated, that some problems may arise. It is a matter of balance. He recognised that if the power of arrest became mandatory the courts might be reluctant to make the order in the first place. These are matters to which the NSPCC had clearly given attention. On balance it considered that the danger of making an order without a power of arrest, with the consequences indicated by the noble Lord, Lord Meston, was paramount.
All that emerges from the amendments, if they appeal to your Lordships, is that instead of the power of arrest being wholly neutral with the court directing its mind to whether it should add the power of arrest, the normal situation would be that it will exist. The second of the two amendments makes it possible to say that where there is no danger to the child it will still not be mandatory. The onus would be on those who do not wish a power of arrest to be added. In those circumstances, I support the amendment.
The Lord Chancellor: My Lords, this is obviously a difficult matter. This is an option for replacing the interim care order with an exclusion requirement; in other words,
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taking the person who is seen to be the possible cause out of the home, because it is an interim matter. That is an option that has to be considered. There is a great deal to be said for that course of action if it is a reasonable one. However, it requires the consent of the carer. Therefore all of this has to be taken into account, as regards considering realistic options, when the court is considering the matter.
In her evidence to the Committee, Mrs. Justice Hale, who was the law commissioner responsible, thought that to introduce a mandatory power of arrest here could be too draconian, and it could mean—as the noble and learned Lord, Lord Archer of Sandwell, has said—that the usefulness of the order would be limited as the court might be unwilling to make the order where it might be obliged to attach a power of arrest in these circumstances. Of course there is also the question of the consent of the carer; the carer's consent is required. There might well be a consideration in that connection of whether or not a power of arrest is there.
As regards leaving the matter discretionary, the court would have considerable opportunities to reconsider its position. It would also be possible for the matter to be reviewed. However, I have reached the conclusion—trying to balance all these matters—that I am prepared to believe that the court can be trusted properly to exercise its discretion in an open way in this situation where there are so many aspects of an option that are difficult for us here, or even for the NSPCC with its great experience, to envisage. It is much better that this matter should be considered on an individual case basis.
The inclusion of this requirement in Clause 17 of the Bill in relation to occupation orders and non-molestation orders deals with the situations where the respondent has actually used or threatened violence. This should be distinguished from the situation in relation to exclusion requirements under Schedule 3 where the use or threat of violence may not have occurred. I believe therefore that the best course for this Bill to take is to leave the court with the flexibility to decide whether to attach a power of arrest. I believe that best allows it to deal with the wide range of circumstances with which it is likely to be faced. Therefore, as at present advised, I would not feel able to support Amendments Nos. 14 or 15.
Lord Meston: My Lords, as the noble and learned Lord has just said, this is a matter of balance. The concerns of the NSPCC are obviously worthy of consideration. I, for my part, also wish to stress the point which initially concerned me; namely, that if a statute is to give a right of arrest, the statute should indicate criteria. However, I fully understand and respect the points advanced by the noble and learned Lord the Lord Chancellor. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 15 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 16:
Page 25, line 29, leave out from ("authority") to ("period") in line 31 and insert ("have removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous").
The noble and learned Lord said: My Lords, this is an amendment that I spoke to with Amendment No. 13. I beg to move.
On Question, amendment agreed to.
Lord Meston Lord Meston moved Amendment No. 17:
Page 26, line 21, after ("child") insert ("usually").
The noble Lord said: My Lords, the purpose of this amendment is to clarify the confusion which might arise where an exclusion order As sought on the basis that a child is presently being accommodated elsewhere under Section 44 of the Children Act 1989. Clearly, if the child is being presently accommodated elsewhere, then he or she is not living in the dwelling house referred to in the provisions of new Section 44A of the Children Act 1989. Nevertheless, the conditions necessary to obtain an exclusion order against the relevant person rely on the relevant person living at the same house as the child. The Bill presumably envisages a situation where the child has been accommodated for a period of time, having left the dwelling house where the relevant person is residing, or visits. On the present drafting it may be argued that the relevant person may not be excluded from the dwelling house as the child is not there at the time of the application. It is for that reason, and that reason only, that I seek to introduce the word "usually" into subsection (2) of the proposed new section in the Children Act. I would hope that the word "usually" adds clarity and would not itself beg too many questions, if and when the matter came to be debated in a court. I beg to move.
The Lord Chancellor: My Lords, this amendment is intended to enable a person to be excluded from a dwelling house in which a child usually lives as opposed to the current wording which refers to where the child lives. In my view the word "lives" is a word that a court would apply as a matter of practical common sense. If the child was there only on a temporary basis it would still be proper to describe the place as where the child lives. On the other hand I do not think one would wish to have some kind of arrangement under which a child who spent more than half the year in one house and the rest of the time in another house was covered by this provision. It is a practical matter and my view is that the words in the Bill are sufficiently precise, and yet sufficiently general in their scope, to allow the court to apply the provision in a practical way. I would not favour, as at present advised, adding the word "usual" to the Bill. Living in a house implies a degree of use of a house, or of "usualness", if that is a correct expression. It implies that to a degree the house is the place where the child usually lives. I suggest that the present wording is reasonably plain and would not be particularly advantaged by adding the word "usual".
Lord Meston: My Lords, this was intended to be a drafting improvement. It has been suggested, however, that perhaps it is not. I hope I do not have to declare an interest if I say that I look forward to arguing the point in court one day. But, subject to that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 18 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 19:
Page 27, line 19, leave out from ("applicant") to ("period") in line 21 and insert ("has removed the child from the dwelling-house from which the relevant person is excluded to other accommodation for a continuous").
The noble and learned Lord said: My Lords, I have spoken to this already with Amendment No. 13. I beg to move.
On Question, amendment agreed to.

Geneva Conventions (Amendment) Bill [H.L.]
1.27 p.m.
Lord Archer of Weston-Super-Mare: My Lords, I beg to move that this Bill be now read a second time. May I open as in the great tradition of this House by declaring an interest? I am a fully paid up member of the British Red Cross Society and have been for many years. It has over those years cost me a great deal of money. The purpose of this Bill is to make the necessary changes in United Kingdom law to enable the United Kingdom to ratify the 1977 protocols additional to the Geneva Conventions of 1949. These 1977 protocols, like the 1949 Geneva Conventions, concern the protection of war victims.
The Minister of State for foreign and commonwealth affairs announced in another place in October 1993 that Her Majesty's Government would ratify the two 1977 treaties,
"as soon as the necessary legislation can be enacted in domestic law".
Such domestic legislation is required before ratification can take place so that Britain is not in breach of its international obligations once the treaty is ratified. So the Bill may be considered non-contentious and mainly technical in nature, but it is nevertheless extremely important. I also hope it will find support from all sides of the House.
The Bill amends the existing Geneva Conventions Act 1957, enacted nearly 38 years ago to enable the United Kingdom to ratify the 1949 Geneva Conventions. Broadly, the Bill extends or amends existing sections of the 1957 Act to give effect to certain articles of the First Additional Protocol 1977. As an illustration, by virtue of the 1957 Act, grave breaches of the Geneva Conventions are already criminal offences in United Kingdom law. This Bill extends the relevant section of the 1957 Act to include grave breaches of Additional Protocol I so that they too become criminal offences in our law.
The Bill also seeks to update or improve a few provisions of the 1957 Act, mainly with a view to enhancing the legal protection of the Red Cross and other protective emblems and devices and adds the two 1977 protocols as schedules to the 1957 statute.
I doubt that your Lordships need a great deal of introduction to the Geneva Conventions, whose protective, humanitarian purposes have been well known through films, television and history books and, of course, taught to our children over many years. Noble

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Lords will know that for centuries countries have agreed that despite actions to the contrary there are constraints on the waging of war. Indeed, the idea of restraint in warfare has been called one of civilisation's greatest achievements. There now exists a large body of international law—some written, some unwritten—regulating the means and methods of warfare, as well as protecting the victims of armed conflict. These rules are variously called "the law of war" or "the law of armed conflict" or "international humanitarian law".
The Geneva Conventions are a very important part of this branch of the law of nations and since 1863 the Red Cross movement has been closely associated with its development, dissemination and respect. Indeed, it was at the statutory meetings of the International Red Cross and the Red Crescent movement in October 1993 that the Minister for Overseas Development, following the parliamentary announcement, made a commitment to the movement to ratify the 1977 additional protocols.
Like other parts of international law and, indeed, like national laws, the rules governing warfare are not always obeyed. But that does not mean that these laws should be discarded. Moreover, their application in particular conflicts has often been accompanied by controversy, as indeed was the case in the conflicts in the Gulf and the Falklands. But even in these conflicts, lives have been saved and suffering prevented by the application of international humanitarian law. There are many people—Britons and others—who have spent years in prisoner of war camps or who were wounded on the battlefield, whose lives have been saved by these rules; in particular, by the Geneva Conventions.
In addition, increasing numbers of civilians are caught up in armed conflicts throughout the world and their position would be made even more vulnerable without the protection of these laws. The original Geneva Convention was agreed in 1864. It sought to improve the plight of wounded soldiers on the battlefield. Since then, the Geneva Convention has been extended to other categories of war victims—the shipwrecked, prisoners of war and, of course, civilians. It has also been periodically updated and expanded in the light of the experience of new conflicts and of new developments in warfare.
The main principles laid down in the 1864 Convention have been maintained in all subsequent Geneva Conventions. They are: first, relief to the wounded without any distinction as to nationality; secondly, the inviolability of medical personnel and medical establishments and units; and thirdly, the distinctive sign of the Red Cross on a white background, known universally as the Red Cross emblem, to be used as a symbol of protection and neutrality.
Britain has in the past been a party to all the Geneva Conventions. Over the years, Parliament has had to enact legislation before ratification of the relevant Geneva Convention was possible. This happened in 1911, when the Geneva Convention Act of that year was passed to enable Great Britain to ratify the 1906 Geneva Convention. The same thing happened in 1937 with respect to the 1929 Geneva Convention. As already mentioned, the Geneva Conventions Act 1957 was
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required to enable the UK to ratify the 1949 Geneva Conventions. Thus, the Bill is only the latest in the line of legislation necessary to enable the United Kingdom to become a party to the latest update of the Geneva Conventions, namely, the additional protocols of 1977.
I shall explain briefly the two additional protocols whose texts are set out in the schedule to the Bill. These treaties were adopted after much consideration over four years, taking into account various developments since 1949. These developments included the greater number of internal armed conflicts and the greater number of mixed armed conflicts—that is, part international and part internal; the increasing use of guerrilla warfare; the wars and effects of decolonisation; the growth in the field of human rights and changes in military technology. The two protocols reflect these experiences. They supplement and update the 1949 Geneva Conventions, bringing them into line with modern methods of warfare and provide better protection for the victims of armed conflicts. The vast majority of their rules remain relevant and necessary today.
Additional Protocol I, relating to international armed conflicts, strengthens the protection for the civilian population, in particular, against the effects of hostilities such as aerial bombing. It clarifies the classic distinction between civilians and combatants, and civilian objects and military objects, through prohibitions and definitions. The protocol provides protection for special categories of persons with special needs, such as refugees and stateless persons; it extends the protection of medical services, both military and civilian; it improves the provisions on relief actions in favour of starving civilians and has new provisions relating to the search for missing persons.
The protocol also introduces a new mechanism to enforce the law, through an international fact-finding commission. I hope that the United Kingdom will make a declaration accepting the competence of this commission when it deposits its instrument of ratification of the protocol.
Protocol II, which is much shorter than Protocol I, develops protection for victims in certain non-international armed conflicts. It establishes fundamental guarantees for all persons who do not take a direct part in hostilities, and bans attacks on the civilian population and forbids the forced displacement of civilians. The Second Protocol also provides an improved basis for humanitarian actions by such bodies as Red Cross organisations and local medical and religious personnel.
The United Kingdom played a leading role at the diplomatic conference which met from 1974 to 1977 and which adopted the two protocols. Your Lordships will remember that we had a Labour Government during most of that time, which is one reason why I hope that there will be cross-party support of the Bill. The United Kingdom representative signed both treaties on 12th December 1977, subject to certain understandings. Since then, 137 states have become a party to Additional Protocol I, and 127 countries have become a party to Protocol II. Parties include most of our NATO partners, Russia and China. France is a party to Protocol II. Ratification could be influential in encouraging the few remaining countries which are not yet parties to the protocols to become so.

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The International Conference of the Red Cross and Red Crescent will meet in Geneva in early December this year. They will want this Bill to become an Act. The International Conference, one of the most important humanitarian forums in the world, will bring together representatives of 185 states which are party to the Geneva Conventions, as well as all the recognised Red Cross and Red Crescent organisations worldwide. Acceptance of the 1977 protocols will be among the matters discussed. It would enhance the British influence at the conference were legislation for ratification to be in place.
As has already been noted, the Red Cross movement promoted the original Geneva Convention of 1864. It has continued to have a prominent role in helping to develop and promote subsequent Geneva Conventions, including the 1977 additional protocols. The British Red Cross has long been an advocate of this country's ratification of the 1977 treaties. It would be particularly gratifying to the society if this necessary legislation could be enacted during 1995, the year of its 125th anniversary.
We do not estimate that there would even be a significant increase in cost by enacting this Bill. On the contrary, costs could be saved if, as a result of UK ratification, more countries accept the protocols, since the cost to our country and others of the disruption or destruction of thousands of innocent lives, the forced homelessness of entire communities and populations, and the victimisation of children, who grow up knowing only hatred, death and fear, is incalculable.
The 1977 additional protocols are the most recent efforts at a multi-lateral level to moderate the horrors of war. They follow a long line in Geneva Conventions to which this country has always adhered. The protocols represent a balance between military requirement and humanitarian dictates, which, after long study, the Government have already decided they can accept. Many of the rules contained in the protocols are part of customary law, or have been influenced by human rights treaties, and are accepted already by our allies. United Kingdom ratification in the near future would limit potential problems for our Armed Forces at an operational level, as in the Gulf War, where not all the coalition members had signed Protocol 1. The fact that the protocol was not universally ratified also made it more difficult for this country to condemn Iraq's destruction of the oil-fields in Kuwait as a violation of international humanitarian law.
The values of humane treatment and restraint, of making a distinction between civilians and military, so that the former are not attacked, as contained in both protocols, merits reaffirmation. They are relevant to existing armed conflicts of all kinds throughout the world. It has been estimated that 240 armed conflicts have occurred since the end of the Second World War. Sadly, it appears inevitable that such conflicts will continue. Today, in conflicts throughout the world, civilians are most affected by war, and many of them are children. It is reported that 90 per cent. of those who died in the conflicts in the Lebanon were civilians; and 25 per cent. to 30 per cent. of those were children.
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The toll on civilian lives by armed conflicts in the past 50 years is now calculated to run into millions. The world community is desperately in need of international agreements such as the two 1977 additional protocols, which protect innocent human beings caught up in the tragedy of war and conflict. The United Kingdom, I say to the Minister, can give a lead, and avoid embarrassment internationally by acting swiftly to ratify these humanitarian law treaties.
It could not be more appropriate than in the 125th year of the British Red Cross that the country should offer its own olive branch and ratify these two protocols. It would allow the British delegation to attend the convention in Geneva on 4th December and confirm that Britain has signed and turned them into law. I doubt whether there is an institution in the world that is more universally admired and respected than the Red Cross and the Red Crescent movement. It is with considerable pride that I represent those organisations in your Lordships' House today. I hope that the House will give the Bill a Second Reading. I beg to move.
Moved, That the Bill be now read a second time.— (Lord Archer of Weston-Super-Mare.)
1.45 p.m.
Lord Craig of Radley: My Lords, I believe that no one in this House dissents from the view that the 1977 protocols, which supplement and update the 1949 Geneva Conventions, are long overdue for full ratification. The proximity of the next International Red Cross conference, which is due before the end of the year, is a timely reminder to ensure that this country formally ratifies the protocols before then.
Perhaps noble Lords will agree that our experiences in the Falklands and Gulf conflicts are also strong reasons for ensuring that we are a fully ratified signatory to these important protocols. They are important because, as the noble Lord, Lord Archer, said, they bring the 1949 Conventions into line with more modern methods of warfare, and not least the effects of aerial bombing and missile attack. War and conflict are horrible experiences for those who are caught up in them, whether operations are of a high intensity or the more frequently experienced mortar and small arms exchanges that have filled our newspapers and television screens over recent months.
While ratification may not give complete comfort that all will be well for servicemen and women and the civilian population, it is still an important element of control in the conditions of modem conflict. Noble Lords will recall the utterly callous and deplorable treatment of some of our air crew captured by the Iraqis in the Gulf conflict. Their forced appearance on television and their maltreatment as injured prisoners of war were humiliating and degrading in the extreme, even though Iraq had already ratified the two protocols. I contrast that treatment with our own preparations to fulfil the Geneva Conventions and our humane treatment of Iraqi prisoners of war. Those arrangements involved our Armed Forces in considerable extra effort to meet the Conventions. Although not explicitly stated in the protocols, I would hope that the shocking treatments meted out to our air crew by the Iraqis would be specifically forbidden as inhumane and

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degrading. Surely there can be no place for exploitation of prisoners of war by the use of television in that cynical way. Our position to argue so is morally weakened unless we, too, have formally enacted the protocols through this Bill.
1.48 p.m.
Lord Wright of Richmond: My Lords, we should all be grateful to the noble Lord, Lord Archer of Weston-Super-Mare, for introducing this valuable, timely, and indeed long overdue Bill. Like the noble Lord, I declare a personal interest as a member of the international advisory committee of the International Committee of the Red Cross in Geneva. I have served in that capacity for about four years; and in that capacity I have been able to see the extent to which the ICRC, perhaps more than any other body in the world, has the sad opportunity to witness—but also to try to alleviate—the suffering of the victims of armed conflict, whether international or domestic in character.
The ICRC shares with the depository power, namely, the Government of Switzerland, and indeed with all signatories to the Geneva Conventions, a desire both to disseminate more widely the principles of international humanitarian law and to ensure their observance. The ICRC has been monitoring particularly closely the list of those signatories to the Geneva Conventions who have not yet ratified one or other of the additional protocols under discussion today. I have therefore been very gratified by the several assurances given—also noted with gratitude by the ICRC—that Her Majesty's Government are ready and willing to ratify the additional protocols and that it only remains, in the words of a reply I was given as recently as 18th May by the Minister, the noble Baroness, Lady Chalker,
"to find a way of ensuring that these protocols can be ratified".
The Bill of the noble Lord, Lord Archer, seems to provide just such a way of fulfilling Her Majesty's Government's public commitment. I therefore urge the Minister to ensure that that is done as soon as possible and certainly in good time before the Red Cross international conference to be held in December this year.
I should perhaps add that no one and certainly not the International Committee of the Red Cross has any doubts about the extent to which the British Armed Forces both understand and comply with the principles of international humanitarian law. On the contrary, we score very high marks. But ratification by Her Majesty's Government is not only important in itself. It will also be an encouragement and an incentive to those few governments who still retain some reservations about one or both of the protocols.
The noble Lord, Lord Archer, eloquently described the constraints which have applied to Her Majesty's Government from our failure so far to ratify the additional protocols. I urge the early passage of the Bill.
1.52 p.m.
Baroness Rawlings: My Lords, I apologise for speaking in the gap, having missed the deadline last night. I too thank my noble friend Lord Archer for bringing to
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your Lordships' House the Geneva Conventions (Amendment) Bill in this very important 125th birthday year of the Red Cross.
As an honorary vice-president and an active member of the Red Cross for well over 30 years, having started under the inspirational guidance and wise leadership of the noble Baroness, Lady Hylton-Foster, I naturally feel very strongly on this matter.
Since 1949, there have been four Geneva Conventions for the protection of war victims, which have been adopted by virtually every country in the world. The aim of the original Convention of 1864 was to improve the condition of the wounded of armies in the field. In 1907 a Convention agreed at The Hague adapted previous provisions to cover the wounded of maritime warfare. A further Convention, adopted in 1929, detailed the acceptable treatment of prisoners of war; and a Convention in 1949 provided for the protection of civilians in time of war.
Two new treaties, called protocols, were drawn up in 1977. They add to and update the 1949 Geneva Conventions and aim to give greater protection to civilians. It is the work of the International Committee to develop the Geneva Conventions and the entire movement has a key role in their promotion throughout the world. It is in relation to those 1977 protocols that we are debating this Bill today in your Lordships' House.
As we heard, in 1993 at the Red Cross conference in Birmingham, it was agreed that we would ratify those protocols. Sadly, they still remain unratified. I add my voice today to urge my noble friend the Minister to make sure that our Government, who have always been so supportive of the British Red Cross Society, ratify those protocols as soon as possible.
1.55 p.m.
Lord McIntosh of Haringey: My Lords, the support of the Labour Party for the successive Geneva Conventions has never been in any doubt. We have no hesitation whatsoever in supporting the purposes of this Bill. I shall speak very briefly because, unlike the previous distinguished speakers, I have no individual knowledge or personal experience to communicate to your Lordships. In my view, the only question is how to put this Bill on the statute book as soon as possible. The question preceding that—it is a question to the Government—is: why is this a Private Member's Bill and not a government Bill?
This is the third occasion within the past month that a Bill has come before your Lordships' House as a Private Member's Bill. It ought to have come from the Government and in particular from the Home Office. The Bills brought forward by the noble Earl, Lord Lauderdale, and the noble Lord, Lord Chesham, were both fully supported by the Government and, I believe, drafted by officials. They ought to have come as government Bills and been treated with the respect and full professionalism that is due to a government Bill.
The same is true of the present Bill. I have not been through it in great detail but I see that the Long Title of the Bill is incorrect, in that it refers to the Geneva Conventions Act 1975 instead of the Geneva Conventions

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Act 1957. That fills me with, a certain amount of dread and I wonder what is in the text of the Bill and whether that kind of inaccuracy is present anywhere else. No doubt such matters can be tidied up, but what is necessary above all is that we have a Bill which can go through this House, can be relied upon to be properly drafted and properly effective and is restricted to only those matters which are essential for the ratification of the two additional protocols of 1977, and nothing else. If the Minister, in replying, can say that she is prepared to give her assistance to tidying up the Bill, which I believe will be necessary, it would be enormously helpful not only in speeding the passage of the Bill through your Lordships' House but also in ensuring that time can be found for it, at least the time necessary for it to be approved by the other place.
I understand that my honourable friend Mark Fisher will take charge of the Bill if and when it goes to the other place. I am sure that he will say, as I do, that it is essential that the Bill that he receives from your Lordships is the best Bill possible. I hope that both the Ministers and the promoters of the Bill will feel it possible to talk seriously and make sure that we have a Bill that can be enacted through both Houses of Parliament in good time for the international conference in December this year.
1.58 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, a fortnight ago the 50th anniversary of victory in Europe was commemorated throughout the country. Indeed, it was commemorated throughout the world. It was an opportunity to remember and give thanks for the spirit and sacrifice of those who fought for the democratic ideals which we all hold dear and which were so determinedly threatened during those dark days of the last war.
During that long conflict, those in the Armed Forces and their loved ones could draw some comfort from the protection afforded by the Geneva Conventions. However, the war showed that there was a need to improve and indeed extend the scope of those Conventions, which have now been replaced by the four Geneva Conventions of 1949.
The process of improvement has been taken further with the additional protocols of 1977. Through the Conventions, a humanitarian duty towards friend and foe alike is imposed upon combatant states. The Geneva conventions are, of course, inextricably linked in history and in practice with the Red Cross whose relief work in time of war and peace cannot be commended too highly. In this, the 125th anniversary year of the British Red Cross, it is fitting that we should be discussing ratification of the additional protocols to the Geneva Conventions which extend the protection already given to combatants under the Geneva Conventions and introduce new protections for the civilian population.
Few could argue with the general principles underlying the protocols and, indeed, the Government are committed to their ratification. As my noble friend indicated in his outstanding and telling Second Reading speech in bringing forward his Bill, domestic legislation is required before ratification can take place. Such legislation is
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needed in order to ensure that what are defined as "grave breaches" of the First Protocol can be dealt with under our criminal law. My noble friend's Bill, however, goes somewhat further than is strictly required in a number of areas and in so doing raises some sensitive issues. It also has some technical deficiencies, as was pointed out by the noble Lord, Lord McIntosh, which would require amendment. Indeed, the Bill requires; substantial amendment.
Clause 2, for example, provides that certain contraventions of the First Protocol, such as threatening an adversary that there shall be no survivors, shall be treated as grave breaches, although the protocol itself does not treat them as such. In these circumstances it is, in the Government's view, inappropriate and inconsistent with the approach we have taken to the Geneva Conventions more generally to seek to extend the criminal law to cover those acts which are, in any event, already likely to be covered by the general criminal law or the Armed Forces' disciplinary codes.
Clause 3 also goes further than is required for ratification by seeking to make the Defence Council the sole protecting authority for emblems instead of the function being divided between the Defence Council and the Board of Trade, as is currently the case. The current arrangements reflect the fact that the misuse of the relevant emblems often arises in a trading context and raises issues which are outside the responsibility of the Defence Council.
Those are only two examples of areas in which my noble friend's Bill goes beyond what is strictly required by the protocols and raises wider issues. These are, of course, issues which need to be debated but, with all deference to my noble friend, I have to say that I believe that they require more time for debate than is likely to be available for his Bill.
Some helpful discussions have already taken place with the Red Cross which has indicated that many of the policy issues are likely to be capable of satisfactory resolution. Nevertheless, a considerable number of amendments to the Bill would be required which would also need to be discussed with my noble friend and the Red Cross. As your Lordships will appreciate, they could consume valuable parliamentary time when we already have an extremely busy programme. Noble Lords may agree therefore that, given the importance of this subject, it may be better to defer consideration of those proposals until more time can be devoted to them.
Perhaps I can say to the noble Lord, Lord McIntosh, that, first, I noted his remonstration as to whether the Government should have brought forward this Bill at this time. But the determination to ratify the protocol is actively being pursued by the Government and it is therefore a matter of timing. There have been extremely constructive talks between officials in my department and Red Cross officials about some areas of the Bill which may require resolution. I hope that those discussions will continue. However, I must flag up to the House that parliamentary time is an issue at this end of the parliamentary Session.
Lord McIntosh of Haringey: My Lords, my intervention was meant to be helpful. The Minister said, rightly, both that the Government are committed to

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ratification and that legislation is necessary. Surely, the easiest thing to do would be to take a Bill which has already had its First Reading and will have its Second Reading and by agreement speedily make the amendments, if necessary in the form of excisions of inessential material, rather than introduce other legislation. There is simply no other way of getting it done by December except through this Bill.
Lord Wright of Richmond: My Lords, is the Minister telling us that she does not now expect ratification before the end of this year? If so, I must express strong personal disappointment. The tone of this brief debate today shows that any further debate on ratification is unlikely to be contentious. I ask the Minister whether a way cannot be found quickly to amend the Bill, as the Government think fit, and proceed rapidly to ratification.
Baroness Blatch: My Lords, I note the points that have been made. It would be presumptuous of me at this time to predict a smooth passage with all the outstanding issues being resolved in sufficiently amicable form to be able to facilitate the Bill's passage. I cannot say that there will not be parliamentary time; I simply flag up that parliamentary time at this end of the parliamentary Session is an issue. Some amendments may be complex. Discussions are taking place with officials of the Red Cross. So far they have been extremely constructive. I shall certainly report back to both the officials in my department and to my right honourable friend the Home Secretary at least to communicate the goodwill of the House to do what it can to facilitate the Bill's passage. But we cannot be presumptuous about people who are not present today either agreeing or disagreeing with any amendments that may be tabled on behalf of the Government in order to find a resolution to the problem.
With that caveat along with the fact that discussions must continue and adding the reminder that parliamentary time is an issue, I have flagged up that some issues may be sensitive. I hope therefore that it is possible to enact the Bill. If it is not possible, it is still the intention of the Government to get on as quickly as possible towards completing the ratification process:
Lord Archer of Weston-Super-Mare: My Lords, I apologise for interrupting my noble friend but she must have clear in her mind that we are talking about December. The Minister talks of disagreements. It must clearly be in her mind also that every person who has spoken on the Bill wants it to be enacted. We are talking about time. I do not want people going to Geneva in December giving that as a British excuse—that we could not find the time. I do not want the Minister leaving the normally gentle House of Lords under the illusion that she has crept out and her civil servants have got her off the hook, because they have not. This is an important Bill and she should support it. I want to know that she will do everything she can to see that this Bill goes through by December.
Baroness Blatch: My Lords, I can give my noble friend an absolute assurance that I will spare no energy in making sure that all the messages of this debate are
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conveyed both to my officials and to my right honourable friend the Home Secretary. That I will do. But I cannot pre-empt—this point is well understood by the House—the consternation of Members who are not present who may raise points that could delay the passage of the Bill. Nor can I pre-empt the time that may be taken in another place. What I can say is that we are all seized of the importance of ratification and, depending on the outcome of discussions with Red Cross officials, we will do all we can to find a proper resolution of the issue.
2.8 p.m.
Lord Archer of Weston-Super-Mare: My Lords, I thank the Minister because I know, despite my raising my voice, how much work she has done and how sincere she is about wanting to get this done by December.
The one thing the Minister must be clear about is that the second speech in the debate was made by a former Marshal of the Royal Air Force, the third speech by a former head of the Diplomatic Service, and the fourth speech by someone who has served the Red Cross for the past 30 years. After that we immediately had the support of the Benches opposite. I say that to the Minster only because I want her to realise that while we are only five people we probably represent between us a fair number of people who want it to be possible for the British Red Cross to go to the Geneva meeting on 4th December and say that this has been done. Not least, as the noble Lord, Lord Wright, pointed out, it will be an influence on those remaining countries which have not yet signed the protocol.
I thank the noble Lord, Lord McIntosh, for his support. I had not picked up the mistake he referred to in dates, which was my own stupidity, but I hope he will forgive me for pointing out that the work done by the officials of the Red Cross on this Bill has been long into the night for a long time. I would say to him that I do know that it was considered a well drafted Bill. A lot of hard work went into it. If his idea of slight modification were possible —I aim this point at the Minister as well—that could be a way through to making this possible before 4th December. I thank the noble Lord very much for his support.
I thank the Minister for her support. I am sure my noble friend will appreciate that it is much easier if the Minister is not someone one knows very well. The Minister and I have been great friends for many, many years. I hope that our theatre date next week, when her husband is not in London and my wife is not in London, will still be allowed. But I want to say to you, Minister, that I hope by then you will have some news for me, because I feel very strongly about this Bill.
I conclude as I began in my opening speech. I am immensely proud to stand here representing the British Red Cross. If there is a body in this country that deserves the support and gets the support of both sides of the House, it is that movement. When the Minister walks out of this Chamber and sees her civil servants, I hope she will say to them, "I am damn well going to have this through by 4th December 1995".
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Dangerous Dogs (Amendment) Bill [H.L.]
Report received.

Landlord and Tenant (Covenants) Bill
2.12 p.m.
The Earl of Courtown: My Lords, I beg to move that this Bill be now read a second time. This Bill will put an end to the operation of the doctrine of privity of contract, described during the Bill's passage in another place as "the privity trap", which has resulted in considerable hardship and financial distress for large numbers of former tenants of all types of property over the years. I should like to thank my honourable friend the Member of Parliament for Bolton, North-East, Mr. Peter Thurnham, for and congratulate him on having persevered in bringing this Bill through another place in order that I may bring it before your Lordships' House.
While there have been some significant changes along the way, the starting point of the reforms which your Lordships are to consider is the Law Commission's 1988 report. It considered the extent and duration of liability undertaken by the parties to leases of land and their successors in title, under the doctrines of privity of contract and privity of estate, which apply to all types of lease, whether commercial, residential or agricultural.
The report explains the law with the thoroughness and erudition we have almost come to take for granted from the Law Commission, and I shall attempt only a brief overview. A lease of land has a twofold effect, acting both to create a new legal estate vesting the property in the tenant for a defined period and as a contract between the parties, who normally undertake liabilities under the contract for the whole of that period.
Under privity of estate, the landlord and tenant for the time being are bound by the covenants under the lease which "touch and concern" the land, as opposed to those which impose merely personal or collateral obligations. The original landlord and tenant, however, are also bound by privity of contract, and this binds them to their respective obligations for the whole period of that lease, notwithstanding that they may have parted with their whole interest in the property.
As many former tenants have found to their often crippling cost, this can mean having to pay rent or to pay for repairs years after parting with the property. Worse still for the former tenant, the liability is not limited to what he was paying when he parted with the property, so that, if there have been rent reviews or changes to the property in consideration of a higher rent, he may find himself liable for vastly increased sums.
The Law Commission criticised the existing law on two grounds in particular. The first is that the distinction between covenants which "touch and concern" the land and those that do not is unclear and a potential source of difficulties. The second, and the one which has drawn support from every quarter, is that it is intrinsically unfair for anyone to continue to bear burdens under a contract when he no longer derives any benefit and has no control, and that privity of contract bears particularly harshly on tenants.
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When a demand is made of a former tenant under this doctrine, it will often be not only out of the blue but also beyond his means, particularly where a small businessman assigned his lease so that he might retire. There is also no logical way in which a former tenant who does understand that he has this contingent liability can estimate its amount.
The Law Commission recommended reform for all types of leases based on two principles. First, a landlord or tenant should, as a general rule, have no rights or liabilities arising from a lease once he has lawfully parted with his interest in the property; and, secondly, all the terms of a lease should be regarded as a single bargain for letting the property, so that, when the landlord's or tenant's interest changes hands, the successor should take on the whole package of his predecessor's rights and obligations, with no distinction between covenants which "touch and concern" the property and those which do not.
These two principles would ensure that rights and obligations would go hand in hand and would produce a clean break on assignment of a party's interest. The commission accepted, however, that there would be circumstances where it would be reasonable for both landlords and tenants to have a degree of continuing liability. For tenants it was accepted that it would in some circumstances be reasonable for a landlord to expect an outgoing tenant to guarantee performance of the tenant's obligations by his assignee, and it should be possible for a landlord to require such a guarantee, but only where that is a reasonable condition of his giving consent to the assignment and covering only the period until the assignee himself assigns, at which point the landlord could seek a similar guarantee from the outgoing assignee.
In the case of landlords, the commission noted that tenants would rarely, if ever, be in a position to exercise any control over assignment by the landlord, and so would be unable to require guarantees of performance by the landlord's successor. It recommended instead that a landlord's rights and liabilities under the lease should continue after assignment unless the landlord is released in accordance with a procedure allowing for the tenant to argue that it would not be reasonable for the landlord to be released.
The commission's recommendations also included detailed provision for apportionment of liability where only part of the landlord's or tenant's interest is assigned, and such matters as anti-avoidance provision to invalidate contractual or other devices to the extent that they have the effect of subverting the reforms.
In 1993 the Government accepted these recommendations, but with one very significant change; namely that they should apply only to new leases, and not, as the Law Commission recommended, also to leases already in existence when the Act comes into force. It is accepted by all sides that retrospective legislation of that order could not be justified, and the Bill accordingly gives effect to these recommendations for new leases only.
There was still concern, however, for those former tenants who would still be subject to continuing liability and who might still be presented without warning with demands for payment covering extremely long periods of arrears. To alleviate this, the Government agreed a further

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provision, to apply to both new and existing leases, and presently embodied in Clause 13 of the Bill. This requires landlords to notify former tenants of arrears within nine months of their falling due, or lose the right to enforce them. It will ensure that former tenants are promptly informed about their obligations when default occurs and will help to protect individuals and companies against the sudden and unexpected costs which cause such problems under the existing law.
Noble Lords who have followed the Bill's progress in another place will know that that is by no means the whole story, and there is particular reason for my congratulations to my honourable friend, Mr. Peter Thurnham, on his determination in bringing the issue to the House. The Bill represents a second attempt to introduce these much needed reforms, an attempt which perhaps carries more of a spirit of compromise than the first. Following the failure last year of the first Bill, for reasons which all parties accept were entirely proper, the British Retail Consortium and the British Property Federation worked together to see whether a measure of agreement could be reached on privity reform, and eventually put forward a balanced and considered package of measures which is now supported across the property industry by, among others, the Association of British Chambers of Commerce, the Forum for Private Business, the Royal Institute of Chartered Surveyors, the Property Managers' Association and the British Council of Shopping Centres. The force of that agreement has carried the Bill as far as this House and will, I hope, carry it all the way to the statute book.
There are two parts to that agreement. The first is to apply only to new commercial leases; the second to both new and existing leases of all types. The first part comprises the amendment of Section 19 of the Landlord and Tenant Act 1927, thereby enabling landlords and tenants to agree between themselves at the commencement of the lease, or by agreement later, the terms under which future assignments can be made.
Without such a change, the abolition of the privity of contract doctrine would undermine the ability of landlords to preserve the covenants underpinning investment in commercial property, with consequent serious harm to investment and confidence in the property market, to the detriment of both landlords and tenants. In its absence, it is likely that the majority of landlords would be driven to exercise their right to ban assignment altogether since under the current law the principles on which the courts operate do not give landlords and investors the certainty they require in respect of assignments and covenant strength. By enabling the parties to agree the terms for assignment in advance, this harm will be avoided. Both the British Retail Consortium and the British Property Federation are convinced that this sensible and measured approach will provide the property industry with the necessary control over covenant strength which will maintain confidence in the property market as well as ensuring a real future for the high street. They are certainly not alone in that, as the support of the bodies I mentioned earlier indicates.
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The second part of the agreement aims to provide additional protection for tenants by means of three extra measures, all of which are to apply to both new and existing leases. One is a reduction to six months of the nine-month period in Clause 13 of the Bill to which I have already referred. This will mean that those former tenants who remain subject to continuing liability will now have early notice of their financial liabilities for any subsequent default and will be able to budget accordingly, rather than be faced with unexpected demands for debts accumulated over a number of years.
The next measure is to provide that no former tenant or their guarantor will be liable to pay any sum resulting from a change to the lease after assignment by a deed of variation. This provision applies to new and existing leases, but will only apply to deeds of variation after the commencement of the Act. Any increase in the rent solely attributable to a variation of the original terms of the lease would not fall within the original tenant's privity of contract liability. This provision is not intended to cover increases in rent following rent reviews which are provided for by the lease, but rather is intended to prevent cases where assignee tenants have accepted changes in the terms of the lease in the knowledge that they will not have to meet the additional costs which result, and former tenants are then faced with excessive costs resulting from negotiations to which they have not been party. I am sure that your Lordships will agree that it is wholly unreasonable that former tenants should be placed under any obligation resulting from changes in the lease which could not have been contemplated by the original parties.
The final component would allow former tenants to call for an overriding lease when faced with a privity of contract claim. This will address the concern that many businessmen and women have expressed about their lack of control and feeling of helplessness over the property when they are called upon to make good the default of a subsequent tenant. This measure will allow former tenants to take back control of the property and take action to control their liabilities as quickly as possible.
The Bill was introduced in another place without provision for these additional changes, but on the clear basis that they should be incorporated by subsequent amendment. Following wider consultation undertaken by the Lord Chancellor's Department, which revealed support across a wide range of interests in the property industry, the Government accepted these additional changes and have confirmed that they would be willing to extend all necessary assistance to enable the amendments necessary to give effect to them to be brought forward.
The Bill as I have outlined it, together with the additional measures, has wide cross-party support, amply illustrated by the fact that its sponsors in the other place are drawn from all the English and Welsh parties and include the honourable Member for Brent South, Mr. Paul Boateng, who is the Opposition spokesman on the Lord Chancellor's Department, the honourable Member for Berwick-upon-Tweed, Mr. Alan Beith, the deputy leader of the Liberal Democrats, and, for Plaid Cymru, the honourable Member for Ynys Mon, Mr. Ieuan Wyn Jones.

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Your Lordships will appreciate that these reforms do represent a compromise which has moved in some respects from the Law Commission's original vision, and I think it proper to mention that the commission itself did express some reservations about the first part of the agreement which I have outlined. Notwithstanding those reservations however, the commission has continued to extend the benefit of its advice and expertise to the drive to enact these reforms, and I should like to thank the commission for its assistance.
In conclusion, I consider that these reforms will introduce fairness in this area of the law, striking a balance between the rights of tenants and those of landlords. To the extent that they represent a compromise, it may be that they omit features which some would have wished for, and include elements which some might have preferred to omit; but it is my firm view that the balance is right, and the will to carry through these reforms and make them work is there, shown by the firm support which the Bill has received from all sides. There is a golden opportunity to secure much-needed reform for the benefit of all in the property world, and I hope your Lordships will agree that we should seize that opportunity and make the most of it. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(The Earl of Courtown.)
2.26 p.m.
Lord Meston: My Lords, I am sure the whole House will want to thank the noble Earl for his explanation of this important Bill, which should have the support of us all, particularly those who appreciate the problems it seeks to address. The existing state of the law is bad and has created many hard cases. It is also a confusing area of the law, particularly in England. I never properly got to grips with the subject of covenants that touch and concern the land, and I congratulate the noble Earl on his mastery of it.
It must be an enormous worry and a surprise to the original tenant to be met with a demand to meet the terms of a lease of which he has no longer any benefit, possibly several years after he had anything to do with the property concerned. The original tenant may have left those premises years before, having complied with all the covenants and all the obligations as at the date of his departure. He will have assigned the lease to an apparently suitable replacement with the knowledge and full approval of the landlord. There will probably have been good references for the assignee and sureties of apparent means.
The original tenant may also have obtained written indemnities from the assignee. Yet, with all those safeguards, the original tenant might find himself meeting demands, and being embroiled in litigation, arising out of breaches of the lease caused by any of his successors. Those successors may be not be just the assignee he knew about, but subsequent assignees of whom he knows nothing. The claim against him may also follow rent reviews and other actions or transactions with which he had nothing to do.
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Moreover, if the landlord has taken time first to pursue the successor tenants and their sureties, the original tenant may also be faced with a large demand for arrears of rent which have mounted in the intervening period and with a large claim for interest.
Alternatively, the landlord may be more selective and go almost immediately for the original tenant, leaving him to pursue his indemnities against whoever else may be liable. All too often those indemnities prove to be worth little or nothing, and it turns out that the landlord has rightly perceived that the blameless original tenant is the person with the deepest pocket.
Perhaps it is also worth remembering that the original tenant of small commercial premises may have assigned the lease on retirement. Indeed, one of the cases that was shown on a television programme which dealt with this subject illustrated the difficulties of the widow of the original tenant who was left to cope with the landlord's claim after her husband's death.
That is the nature of the problem; and it is a problem peculiar to English law. The need for reform was urgent by the time the Law Commission reported in 1988. Unhappily, the Bill comes too late to help those who have suffered during the recession, which has aggravated the problem. The noble Earl mentioned retrospection. I believe that retrospection would be unfair on those who had to pay up under the existing law as against those who as yet have managed to escape liability.
It is ironic that more recently tenants have had greater bargaining power and today are able to require in leases the inclusion of a variety of contractual restrictions on their liabilities. Having noted that, if in years to come the bargaining power returns to landlords, I should not want to see the provisions of this Bill unduly fetter the future assignability of tenancies. I listened with care to what the noble Earl said about that matter, which we must consider in more detail in Committee.
I hope that further thought will be given to Clauses 12 and 13. There is much to be said for an upper limit of 10 years and for some of the other limits on liability of the original tenant, which were suggested by the CBI. It is also not unreasonable that the notices, which under Clause 13 must be served, should also supply information to the original tenant about the identities of other candidates for liability under the lease and that there should be some obligation on the lessor to heed the reasonable wishes and views of the original tenant about possible enforcement against such other people.
Matrimonial law strives to deal with, among other things, the problem of the limping marriage. This Bill tackles tenancy agreements which limp on causing trouble, conflict and expense long after the lease or agreement concerned has any practical utility. I hope that the Bill will achieve what a matrimonial lawyer calls a "clean break" between the original landlord and the original tenant who are no longer wedded in any real sense to the property or to the agreement they signed years ago.
Finally, perhaps I may comment on the drafting of the Bill. It lacks the direct clarity of drafting of the original Law Commission Bill. I wonder whether Clauses 1 and 2 have to be where they are and in that form. I also wonder whether Clauses 3(4) and 4(4) add a great deal. It is not obvious to the reader what is meant by a "non-attributable

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covenant", which is used in Clause 6. Perhaps we must return to those issues in Committee; but, with those reservations, I hope that the House will support the Bill.
2.35 p.m.
Lord Graham of Edmonton: My Lords, my noble friend Lord Irvine of Lairg has had to leave the Chamber for an urgent appointment in Scotland. He apologises for having to do so.
He has asked me to say on his behalf that he believes that the Bill will be welcomed by the whole House. It reflects the agreements on reform of the law of privity of contract arrived at between the British Retail Consortium and the British Property Federation.
My noble friend tells me that it is right also to mark the industry and determination of the honourable Member for Bolton North-East which has led to this Bill coming to your Lordships' House in such an advanced state. As the noble Earl explained, amendments remain to be brought forward which will have to be scrutinised with care because of the difficulties of the subject matter. However, we give this measure a fair wind and will co-operate in its speedy translation to the statute book.
There is one specific point which I wish to raise at this stage so that the noble Earl may consider it. Has thought been given to the special position of charities and their trustees? Under Clause 12, the original tenant may be required to guarantee the performance of the covenants, subject to the qualifications in Clause 13. The guarantee will last during the remainder of the term of the tenancy. If the rent is increased due to a rent review, after assignment the guarantor will be liable for the increased rent. If trustees sign a guarantee without having received legal advice independent from that given to the charity itself, when the guarantee becomes enforceable, perhaps many years later after the charity has been wound up, the trustees would remain liable in their personal capacity. In Committee your Lordships may wish to consider whether greater protection should be afforded to the trustees in that position.
Meanwhile, we are grateful to the noble Earl for his full and clear exposition of this long-awaited Bill, which we support.
2.36 p.m.
The Lord Chancellor: My Lords, I am sure that your Lordships are grateful to the noble Lord, Lord Graham of Edmonton, for contributing on behalf of the noble Lord, Lord Irvine of Lairg. If one has to leave the Chamber, I cannot think of a better place to go than that to which he has gone.
I join with those who congratulated my honourable friend in another place for his perseverance in bringing forward the previous Bill, for considering the points made about it and the discussions of the property industry organisations, and for keeping up the momentum by bringing forward the present Bill in the conviction that the eventual agreement reached by those organisations represented a proper compromise and a way forward which all sides, including the Government, would find themselves able to support. It must be underlined that my
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noble friend brought forward this Bill in the wake of the agreement before we could know the extent to which it was generally acceptable elsewhere. His courage and judgment in doing so have been vindicated, as I shall indicate.
I think "perseverance" is the right word, for the level of agreement which has carried the Bill as far as your Lordships' House has been hard-won. As my noble friend Lord Courtown said, the backbone of the Bill was provided by work done by the Law Commission and reflects the decision of the Government which I announced in 1993 to accept the commission's recommendations, but only in relation to new leases.
That decision itself represented a compromise following consultation in which I played an extensive part. There were those on the one hand who regretted that more could not be done to alleviate the difficulties which would continue to be faced by former tenants under existing leases, and those on the other hand who applauded the decision to legislate with prospective effect only, but remained worried about how the market might greet the new regime and the potential effects for tenants as well as landlords.
Those worries, as your Lordships are aware, proved an insurmountable obstacle to the previous Bill, but there were indications that the debate was not between an irresistible force and an immovable object, and the Government for their part remained willing to hear suggestions as to how progress towards the principal objective of abolishing privity of contract liability might be made. Accordingly, when at the end of 1994, the agreement outlined by my noble friend Lord Courtown was put forward, it was clearly a matter for close consideration.
Reservations about the effect of aspects of the agreement, in particular on small business tenancies, have been mentioned. It was a matter of concern to the Government that notwithstanding the influence and breadth of representation of the British Retail Consortium and British Property Federation, the agreement which has been put forward could not be said to have been tested against the views of every sector of the property industry. In particular, while what might be described as the big battalions were supportive of the spirit of the agreement, it was considered necessary that smaller commercial tenants, residential tenants and agricultural tenants should be given the opportunity to make their views known.
In accordance with that view, I and my colleague, the Minister in another place, initiated consultation to that end. That consultation produced a clear vote in favour of the compromise, a notable feature of which was the number of respondents who expressed the view that no progress could be made without compromise and urged the Government to seize the opportunity and act on the agreement.
In the light of the views expressed, the Government decided that the package of extra measures should be accepted as a proper and widely-supported compromise and the best way of making progress. It was decided, however, that while the three elements aimed at alleviating the difficulties of former tenants were of benefit to all tenants and should apply to all types of lease, the first element, allowing for new leases a greater degree

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of control over assignment by the tenant, should apply only to commercial leases and not to residential or agricultural tenancies. A number of respondents argued—and it is accepted by all sides—that the commercial and economic arguments for applying the measure to new commercial leases had no real application to tenancies of dwellings. It was also accepted that agricultural tenancies, to which a different regime for control over assignment has always applied, should also be excepted from the change.
As your Lordships have been told, the acceptance by the Government of the principle of the additional changes, and cross-party support for the agreement in the other place, enabled the Bill to pass to this House unopposed, so that the necessary amendments might be considered by your Lordships. In the circumstances, your Lordships may think that that was the best way forward. I am happy to confirm my readiness to offer all the necessary assistance to my noble friend in bringing forward those amendments and in assisting your Lordships to give them the consideration which they deserve.
Quite apart from those amendments, I am advised that there are some areas of the Bill which will require amendments, not to introduce additional changes but as a matter of technical necessity, to ensure that the Bill will effectively implement all aspects of the reforms. My noble friend will no doubt be relieved to hear that I consider it proper that I, rather than he, should consider those matters and bring forward the necessary amendments on behalf of the Government.
I am sure that my noble friend will also wish to consider the further points made by the noble Lord, Lord Meston, and those made on behalf of the noble Lord, Lord Irvine of Lairg. I believe it only right that we should consider them in preparation for the Committee stage. Indeed, I do not think that they are points upon which we would wish to elaborate at this juncture.
My noble friend referred in his opening speech to the attitude of the Law Commission and outlined the package of additional changes. I believe that it would be both helpful and right if I were to expand on what has already been said in that respect. The Law Commission expressed concern about the terms; of the package in its response to my department's consultation paper. Its concern is principally in relation to the amendment of Section 19 of the Landlord and Tenant Act 1927, which it fears will seriously weaken the protection enjoyed by tenants, particularly small business tenants, in terms of freedom to assign the property. That protection was recently strengthened by Parliament, implementing Law Commission recommendations, in the Landlord and Tenant Act 1988. The commission is also concerned that to allow the parties to negotiate in advance the grounds on which any future assignment will be permitted will be likely to lead to delay and greater expense in leasehold conveyancing. I shall be happy to supply a copy of the commission's response to any noble Lord who may be interested to read it.
Your Lordships will appreciate that the Law Commission is concerned with the long-term aspects of reform. On the other hand, your Lordships and the Government have also to consider the shorter-term situation.
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The consultation suggested an urgent need to deal with the matter while at the same time suggesting that unless there were a degree of compromise it would not be possible to make progress. While I understand the Law Commission's reservations, it is in that spirit that we are continuing. The Law Commission will wish to keep the long-term arrangements under review and make what proposals it considers right in that connection.
As my noble friend mentioned, notwithstanding its concerns the Law Commission has been prepared to lend its expertise. I should like to add my thanks to those already expressed for the Commission's gracious assistance, which will without doubt enable the production of a greatly superior end product. I am sure that your Lordships will wish to mark that notwithstanding the fact that the Commission has reservations about the compromise it has been willing to give the benefit of its great expertise to enable us to do the best that we can with this Bill. It may go some way towards reassuring those who share the Commission's reservations if I say that all parties have very much in mind the need to ensure that while the amendments which are to be brought forward are fully effective to implement the essence of the agreed compromise, they should not unwittingly extend beyond it to possible deleterious effect.
To sum up, your Lordships may agree that the history of this matter shows a need throughout for a degree of accommodation and compromise so that genuine conflicting interests may be reconciled to the overall benefit of all. It is perhaps of the essence of this type of reconciliation that the final result may not please everyone and that those who take the very long view may see the need for the position as a whole to be assessed again in the longer term. However, it seems to me that the consensus is very much in favour of doing now what is possible to extend to the people who really need it the relief that they require. It is in that spirit that I am happy on behalf of the Government to support the Bill and support the Motion that it should now have a Second Reading.
2.46 p.m.
The Earl of Courtown: My Lords, I thank noble Lords who have taken part in this debate. This has been a serious discussion on a very serious matter. The more I listened to the debate the more it confirmed my belief that neither is this a simple matter, but one in which it is very difficult to strike the proper balance. On the other hand, I remain hopeful that the spirit of compromise will remain uppermost and that we may be able to reach the statute book with an agreement which, while it may not be ideal for many, will be acceptable to most.
Due to the adjournment yesterday and the second reading being held over until today a number of noble Lords have been unable to speak in the debate. In particular, my noble friend Lady Gardner of Parkes wishes me to say that she fully supports the Bill and intends to support it on behalf of the British Retail Consortium.
I should like to thank the noble Lord, Lord Graham of Edmonton, for putting forward the views of his noble friend Lord Irvine of Lairg, and also the noble Lord, Lord

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Meston. I have noted the queries raised by noble Lords and hope that these can be considered before the Committee stage.
I thank my noble and learned friend the Lord Chancellor for the help he has given personally and the encouragement that he and my honourable friend the Parliamentary Secretary to the Lord Chancellor's Department have given to the endeavours to carry this Bill through. I also thank the Lord Chancellor's Department, the Law Commission and parliamentary counsel for their continuing assistance. I hope that with the good will that has been shown this afternoon we may succeed and that your Lordships will agree that the Bill be now given a Second Reading.
On Question, Bill read a second time and committed to a Committee of the Whole House.

Electoral Registration
2.47 p.m.
Lord Monkswell Lord Monkswell rose to ask Her Majesty's Government whether they have any plans to improve the level of electoral registration and to make all aspects of the electoral system more easily accessible.
The noble Lord said: My Lords, every British Commonwealth and Irish citizen resident in this country has a right to vote in our elections; but there are a number of ways in which that right is denied to some of those people.
I want to ask the Government what plans they have to deal with those problems, and in particular to deal with the financial, bureaucratic and physical barriers which prevent some people from exercising their rights. I intend to explain what I mean about those barriers and suggest ways to bring them down; but before doing so I want to highlight the broad problem and explain why I believe that we need to take action. Overall in this country between 5 per cent. and 9 per cent., or between 2 million and 3.5 million people, may be denied their right to vote. This masks some quite startling local variations which mean that up to 30 per cent. of people in some areas may be disenfranchised.
I am proud that in 1832 one of my ancestors, the father of the first Lord Monkswell, was elected as one of the first MPs for the City of Plymouth. For six generations my family has endeavoured to serve the people. In the past 160 years we have seen a steady enlargement of the electoral franchise. Initially it was available just to men of property, then to all men, then to women, and finally to all those over 18 years of age. We might ask why that has happened and what are the benefits that derive from it. It happened because people demanded their right to vote, their enfranchisement. The benefits have been the cohesiveness and the unity of our society.
Because everyone is involved in drawing up the rules of our society, by and large they accept those rules. However, at the end of the 1980s that changed and for the first time we had the poll tax. Effectively to be a member of society one had to pay a price. Statistics now confirm the anecdotal evidence, and the experience of those of us
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involved in the election process, that some people took themselves off the electoral register in the hope of escaping the imposition of the poll tax. Of course the poll tax has now been abolished and replaced by the council tax. However, the working of the council tax, and specifically the 25 per cent. discount for single adult households, still provides, unfortunately, a financial incentive not to be registered on the electoral roll. The first detailed supplementary that I have—if I can put it like that—is: will the Government look at this problem and do something to prevent that perceived financial disincentive to be registered on the electoral roll?
I now turn to the bureaucratic barrier to voting. The register is compiled in October and comes into effect in the following February. When the system was set up most people did not move house frequently. They might only move house once in a lifetime. But now society is much more fluid and people move house much more frequently. In fact, the Office of Population Censuses and Surveys reports that in the year up to the 1991 census, 9 per cent. of the population moved home. In some areas there is more movement than in others. It is estimated that in some areas the electoral register may be up to 30 per cent. inaccurate by the end of the year in which it is in force.
My second supplementary is: what plans do the Government have to modernise our electoral registration system? In this context, I commend two ideas: first, a computerised rolling register, as suggested by Harry Barnes MP in his Private Member's Bill, the Representation of the People (Amendment) Bill, which he introduced in another place in 1994; and, secondly, the system that operates in some states in the United States of America where a resident can go to a polling station on polling day and register and vote at the same time.
The third barrier to the human rights of voting is the physical barrier to disabled people. Due to changes in our society and medical science we now have many more disabled people wanting to play their full part in society. They have every right to do so. However, SCOPE, previously the Spastics Society, carried out a survey in 1992 which showed that 88 per cent. of polling stations were inaccessible to disabled people.
The third supplementary question that I ask is: what plans do the Government have to make polling stations more accessible? I point out that postal voting and proxy voting are no real substitute for the ability of people to vote in person. Also, making polling stations more accessible will help disabled people at other times than on polling day because most polling stations are in schools or other public buildings which should be accessible in their own right during normal use.
I should like to thank all those who are taking part in this little debate today. I thank the Minister in advance for her reply which will, I am sure, be studied with great interest. I pay tribute to Harry Barnes, M.P., for his activity on the subject and for the help he has provided to me with statistics and in other ways. I wish to thank Full Franchise, a non-party campaign to maximise involvement in the electoral process, for its work in the field.
In my remarks I must pay tribute to the electoral registration officers in town halls throughout the land for the contribution they make to ensuring that our electoral system works as well as it does, with limited resources and even less recognition.
Finally, I wish to give three case studies of the problems which I am talking about this afternoon. The first is of a single mother with an 18 year-old son who does not register him for the elections because she cannot afford to pay what is effectively an extra 30 per cent. on her council tax. Secondly, there is the little old lady who, when she arrives at the polling station, is told "No, I am afraid you cannot vote". Why not? Either because she did not receive the form or because she filled it out wrongly. That lady may not have moved house, she may have voted in virtually every previous election. That happens in election after election and it is palpably unfair. Thirdly, I cite the case of the disabled man in a wheelchair who could not get into the polling station. He was only able to cast his vote because the election officers at that polling station, acting totally illegally, brought the ballot paper and ballot box out of the polling station to him, to enable him to cast his vote. It is surely wrong that people can only vote illegally.
The problems that I have highlighted this afternoon and the solutions that I have proposed will, I hope, not be considered as party political in any way. I hope that the Government will address the issues, to the benefit of the whole of society, with the recognition that every human being in our society is equal and should be treated as equal and have equal human rights when it comes to the electoral system. I thank all noble Lords.
2.58 p.m.
Lord Lester of Herne Hill: My Lords, I am very glad that the noble Lord, Lord Monkswell, has initiated the debate to discover the Government's thinking on ways not only of improving the level of electoral registration but also of making all aspects of the electoral system more accessible. We should be grateful to him for raising some important problems and suggesting practical solutions to make the electoral system work better.
I should like to focus on one notorious way in which the existing electoral system is inaccessible to the unwary voter. It is, namely, that parliamentary candidates can use deliberately confusing and misleading party political labels so as to pass themselves off, confuse voters and produce results which are not truly representative of the people's wishes.
The United Kingdom is obliged by Article 3 of the first protocol to the European Convention on Human Rights to hold free elections at reasonable intervals by secret ballot, under conditions which ensure the free expression of the opinion of the people in the choice of the legislature. We are also bound by Article 25 of the International Covenant on Civil and Political Rights to guarantee the free expression of the will of the electors. Most unfortunately, our existing election law enables a candidate to describe himself or herself in such a way as to confuse and mislead the electorate and to distort the free expression of the people and the electors' will.
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A recent and blatant example of this mischief occurred during the European parliamentary election for the Devon and East Plymouth constituency on 9th June 1994. That constituency consists of seven parliamentary constituencies and an electorate of some 527,000. A certain Mr. Huggett delivered to the returning officer his nomination paper describing himself as—I must enunciate clearly—a "Literal Democrat" (with a "t"). The returning officer held his nomination paper to be valid because it was in good form and complied with the narrow rules of the present electoral game.
The official Liberal Democrat candidate sought unsuccessfully to apply for judicial review of the returning officer's decision that Mr. Huggett's nomination paper was valid. The court held that it had no jurisdiction to deal with the case. So the election went ahead with eight candidates on the ballot paper, including Mr. Huggett, described as a Literal Democrat, and Mr. Sanders described as a Liberal Democrat.
The election was keenly contested and the result was very close. The Conservative Party candidate received almost 75,000 votes, narrowly defeating the Liberal Democrat by only some 700 votes. Mr. Huggett, the Literal Democrat received some 10,203 votes—quite an impressive result for an unknown, recently arrived schoolmaster describing himself as a student of "perceptual psychology". Mr. Huggett had not campaigned at all, but he enjoyed the great advantage of preceding Mr. Sanders on the ballot paper, and of having a party label which must have misled many supporters of the Liberal Democrat candidate.
Complaints poured in from understandably indignant voters, and the Liberal Democrats pursued a parliamentary election petition—the first European parliamentary petition, and the first election petition of any kind presented since 1962.
The Divisional Court decided that, under the law as it stands, the political party description on the ballot paper is optional, and that it is unnecessary to include such a description to qualify as a candidate. The court also found that there is no requirement at present that the description be true, fair or not confusing. The fact that some voters may be confused by a candidate's chosen words of description is irrelevant for the purposes of existing law, unless those words have obscured the identification given to the candidate by his or her full name and address.
During the debate in another place on 18th December 1968 on the Representation of the People Bill, there was much discussion on the subject of political descriptions of candidates. Mr. Quintin Hogg, as he then was, very sensibly proposed a rule entitling a duly nominated candidate to object to the description of another candidate on the ground that his description was misleading and did not accurately describe him. The Home Secretary, Mr. Callaghan, as he then was, opposed this on the basis that it was unlikely that candidates advancing themselves for selection by their fellow citizens would misuse the procedure so as to deceive electors about themselves. Sadly, subsequent political history has shown that on this issue the noble and learned Lord, Lord Hailsham of Saint Marylebone, was the better prophet.

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With the leave of the House I should like to quote the words of Mr. Justice Dyson in the Divisional Court in the Literal Democrat case. He said:
"It is … clear that the Rules do not prohibit candidates (whether out of spite or a wicked sense of fun), from describing themselves in a confusing way or indulging in spoiling tactics … Parliament considered these very matters at length and in detail during the debates on the Representation of the People Bill in December 1968. Parliament was so anxious to avoid Returning Officers becoming involved in what might be called 'political controversy' that, as the Home Secretary said, it was prepared to take a risk that occasionally there would be misleading and confusing descriptions. It is not for us to say whether that political judgment of Parliament was wise. In other jurisdictions, such as New Zealand, the Commonwealth of Australia, the State of Queensland and the Republic of South Africa, a wholly different course has been adopted involving electoral commissions, a system of registration and political parties in the statutory provision, limiting the ability of candidates to use the name of a political party".
Mr. Justice Dyson concluded:
"It may be in the light of the present case that Parliament will wish to consider again whether a similar regime should be adopted for the conduct of elections in the United Kingdom".
I gave notice this morning to the noble Baroness the Minister that I wished to raise this issue during the debate. I very much hope that the Government have considered the judgment given some six months ago and the suggestion made by the Divisional Court that a similar legal framework might be adopted for the conduct of elections in this country to that which exists in other Commonwealth countries.
In case noble Lords believe that this is a problem exclusively for Liberal Democrats and their supporters in Devon and East Plymouth who were cheated of a result which reflected the true wishes of the majority of voters, I should mention that the problem has also afflicted the other parties as well. It seems from newspaper reports that in the recent local government elections, Mr. Ashton, a staunch Conservative from the village of Bloxham, stood for the Conservative controlled Cherwell District Council in Oxfordshire. On discovering that Labour (spelt in the normal way) had chosen not to fight the seat for Bloxham, he decided to stand and described himself as a candidate for the Labor Party (spelt without a "u"). The local Labour Party was reported to have accused the Conservatives of a crude attempt to split the anti-Conservative vote to assist their candidate, as local Conservatives were reported as saying, "We need every vote we can get."
Fortunately, that particular incident had a happy ending for the good people of Bloxham. The Liberal Democrat candidate won the seat and Mr. Ashton managed to gain only 65 votes. But the opportunity to mislead and deceive voters was once again exploited.
Much has been made recently in the press of the formation of a "Conversative Party"—which is no doubt dedicated to promoting the art of good conversation. It remains to be seen whether or not that new party will indeed put up a candidate at a parliamentary by-election or any other election. The fact is that any candidate, quite extraordinarily, may now put himself (or herself) forward as the Conversative Party candidate, or even as the official Conservative Party candidate, whether he (or she) is or is not. There is nothing that a returning officer can do about it.
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I believe that what happened in Devon and East Plymouth and what might have happened in Cherwell will come to haunt the Conservatives very much more than it will haunt the Liberal Democrats. The time is surely ripe—I would say over-ripe—to change the rules of the electoral system so that further flagrant abuse of that kind cannot take place. Some suggest that people vote for the individual person and not for a party. But that is clearly undermined by the wealth of party-related advertising and broadcasting at election time, especially in the context of European parliamentary elections, where constituencies sometimes exceed even the boundaries of a whole shire county. When there is an electorate of over 500,000, it is impossible to expect that all, or even most, voters will know the name of their candidate and will vote for him or her by choice.
We pride ourselves—we tell ourselves again and again in this country—on being the Mother of Parliaments. Surely the time has come to ensure that our elections remain free and fair, so that candidates can no longer sail under false party political colours. We already protect consumers against the misleading passing off of trade names. Surely we should do the same for the misleading passing off of the names of political parties by the mischievous, the unscrupulous and the deceitful.
3.10 p.m.
Lord Tope: My Lords, it is a particular personal pleasure for me to follow immediately after my noble friend Lord Lester of Herne Hill, who raised an important point and, as he rightly says, a point of considerable concern to all political parties, not just the Liberal Democrats. The event in Devon is not the first time this has occurred, but it was probably the event that gained the greatest publicity. Therefore the danger of it happening again and again is that much greater, and I hope that in her reply the Minister will have something encouraging to say to us on how the Government propose to tackle what I believe will be a growing problem in elections to come.
I want to return to the comments made by the noble Lord, Lord Monkswell, in his opening speech and to thank him for raising those points so timely and so well. Indeed, I shall repeat some of them in my comments. All of us who are involved in elections meet all too often on the doorsteps people who cannot be bothered to vote. When we remember, as the noble Lord, Lord Monkswell did, the fight to get the vote in the first place, and more recently the pictures of those people in South Africa queuing for hours to place the vote they had fought so hard to achieve, understandably we feel a little frustration with those who say they cannot be bothered. On the other hand, some of the answer to that problem lies with us politicians, encouraging people to feel that it is worthwhile to vote.
This debate is not so much about those who cannot be bothered to vote, but those who cannot vote for a variety of reasons. One of the first reasons is that when the election comes along they find that they are not on the electoral register and often that is the first time that they discover that they are not on the register. There are a range of reasons for that and they are perhaps only a minority. As the noble Lord, Lord Monkswell, said, registration in this country is still relatively high. In my borough we have managed to get registration up over 97 per cent. in all our

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wards; but, as the noble Lord, Lord Monkswell, said also, commendable though that is, it serves to disguise much lower registration levels in other parts of the country, for obvious reasons.
The trend is downwards; it is in the wrong direction. A survey carried out after the censuses of 1966 and 1981 showed that non-registration in Great Britain had risen from 4 per cent. of the eligible population in 1966 to 6.5 per cent. in 1981. The 1991 census showed that it had again risen to over 7 per cent. Research carried out by the OPCS as part of the 1991 Census Validation Survey, found that non-registration was—perhaps not surprisingly—highest among young people, people from ethnic minorities, people living in private rented accommodation and people who had recently moved. But other people, outside of those groups, who would have wished to be included on the register have also been excluded.
In the 1992 general election, and indeed in many other elections, people found that they were not eligible to vote, some because they had failed to return their forms or were ineligible to register on the qualifying date, others because they had recently returned from abroad or become British citizens since the qualification date for registration and those who did not register due to lack of accommodation on the qualifying date. Many of those people did not realise that they were not on the register until the poll cards had been issued and they had not received one, by which time it was too late to apply for inclusion onto the register even if they were eligible to do so, and still be able to vote at the forthcoming election.
We need to make registration as easily accessible as possible. We need to make the registers as accurate as possible. I hope that when the Minister replies she will tell us what the Government are proposing to do in response to the many recommendations of the report of the working group on electoral registration, published by the Home Office in February last year. But one specific measure mentioned by the noble Lord, Lord Monkswell, and which I strongly support, is a rolling or continuous register. As is known, the qualifying date of 10th October means that by the time the register is put into operation, it is already four months out of date. By the time it ceases to be in operation, it is as much as 16 months out of date. People have moved.
In a general election, one can use the argument that people are electing a national government, and that it perhaps matters less where they actually vote. I spend a lot of my time in local elections. To call on people who want to take part in a community to which they have moved to tell them that they have no vote there but that they have to go back to the place where they used to live to help elect a council in which they have only a nostalgic interest is just not good enough. In these days of information technology, when it is possible, although difficult, to have a poll tax register on a daily basis, we should be moving to an electoral register that is updated on a daily or at least a weekly basis, and certainly more frequently than on an annual basis. That would do something to help improve registration, but not enough in itself.
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There are other factors that contribute towards a disinclination both to register and to vote. The noble Lord, Lord Monkswell, mentioned the poll tax, which undoubtedly had a very serious effect on electoral registration, particularly in certain areas, from which we are now only beginning to recover. There are other reasons why people do not register. One that I have come across many times is that they simply do not want to have their names and addresses sold to the many commercial organisations which use the electoral register for junk mailing. I regret that those authorities, like mine, which decided not to sell the electoral register on a commercial basis are now required to do so. I hope that the Government might consider returning to at least allowing local authorities the freedom to decide on that for themselves.
In addition to the introduction of a continuous register, a number of other measures can be taken to tackle the decline in registration and to encourage people to vote. One of those measures is to change the day on which we vote. I have never understood why it has to be a Thursday or whether it does have to be a Thursday. But it always is. Thursday is a working day for those fortunate enough still to be working. In many areas it is also a late shopping day. In my area the shops close at the same time as the polling stations for local elections close. For some reason completely beyond me, some people seem to prefer to go shopping than to go to vote. Sunday is widely used as a polling day in Europe and has proved very popular. In countries which vote on Sundays, registration—and more particularly turn out—are usually much higher than in this country. There are other reasons for that, but I suspect that the convenience of being able to vote is one factor.
The noble Lord, Lord Monkswell, mentioned accessibility to polling stations. That is particularly important. As he rightly said, improving access has benefits beyond just those enjoyed on polling day. There is another form of access in terms of voting which was mentioned in the other place in a Written Answer last week. I was most disappointed to see that the Minister at the Home Office said in a Written Answer on 18th May that he had no plans to introduce ballot papers in Braille for local, general or European elections. I would ask the Minister and the Government to reconsider that. In a reply given to another question on the same day the Government said that those with vision difficulties wanting to vote in person could ask someone else to help them vote. That is a direct negation of a secret ballot. Why should people who have vision difficulties be any more disadvantaged than they already are? 'Why cannot we produce ballot papers in Braille?
Another means of accessibility is the forms produced by the Home Office. I hope that the Home Office will look seriously at improving the design of those forms and using plain English on those forms. Postal and proxy votes should be available on demand. It is a lot easier now to get a postal or proxy vote than it used to be, but it is still not easy enough. I also believe that there should be separate forms for a proxy vote and a postal vote. We know of cases where people have signed a form believing that they are applying for a postal vote—perhaps because many of them are elderly and not so aware—but do not get their postal vote because someone else has completed the

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section in respect of a proxy vote and taken their vote from them. We know that that has happened in a number of cases. I am quite certain that it has happened in many more cases that we do not actually know about. There is no reason for it having to be done on the same form. To have separate forms would tackle that abuse straight away.
Similarly, I believe there should be a later date for registration for postal and proxy voting. By the time people realise that they need a postal vote—or indeed that they are entitled to have one—it is often too late for that election. There is no reason for such an early deadline.
Another measure considered by the working group to which I referred earlier was the need for anonymous registration for those who believe themselves to be at risk in some way. We should have the opportunity for anonymous registration either under the list of other electors at the end of the register or, as I would personally prefer, using an agreed pseudonym.
I cannot end a speech on this subject from these Benches without a call for what I believe would have the greatest effect on our electoral system and on voter turn-out. That is a call for the reform of our voting system as part of a much wider package of constitutional reform. That in itself is a subject for debate on its own. I believe that a fair voting system would do more than any other single measure to encourage voter registration and turn-out. A fair voting system would end the frustration of a wasted vote which serves only to increase a majority or, perhaps even worse, to elect nobody. It would mean that people were voting for what they wanted rather than, as is so often the case, against what they do not want. It would bring about in time a positive approach to voting and not a negative one. I suspect that in a few minutes we shall not be hearing from the Minister that the Government propose to adopt such a system; but until and unless such a system is adopted in this country, we shall be tinkering at the edges.
Dire predictions have been made that, as things continue, we could soon achieve the level of voter apathy seen in the United States of America. I do not believe that it is likely to be that bad, but it would surely add to alienation from the democratic process and disinterest in elected government which is evidenced in America today. As politicians we should be taking every measure to ensure that not only does that never happen in this country, but that it ceases to be predicted and that as a nation we achieve levels of registration and electoral participation that are the envy of every democratic country. In that way we shall have a healthy democracy for which all of us strive.
3.22 p.m.
Baroness Gould of Potternewton: My Lords, perhaps I may also begin by thanking my noble friend Lord Monkswell for introducing this brief but extremely important debate. It is important because, as has been said, it deals with people's fundamental democratic rights to register as an elector and to have the ability to vote. Often people do not realise that electoral registration is the key to voting. If one does not register one does not vote:
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not everyone is aware of that position. There is no doubt that an examination of the state of electoral registration in this country clearly identifies a largely unnoticed but serious democratic deficit.
As other noble Lords have said, the right to vote is absolutely fundamental. It should not be denied anybody either by administrative or even, may I say, for cost reasons. It is for most people the only opportunity to express a view on the performance of their public representatives or on their hopes or aspirations for the future.
I am sure that other noble Lords along with myself have had to deal with people who have not registered and who have suddenly recognised, close to polling day, that they cannot vote. The frustration and disillusion of those electors is heartbreaking on many occasions. It is very often because of ignorance or because they were in the wrong place on the qualifying date. We have to look at ways of making the system much simpler. We have to make sure that such people have the basic civil right to vote. I should only add in passing that, having voted in 11 general elections, not being able to vote in the next one is already causing me some anxiety. But I understand the reason for that; many people do not.
Earlier this year, I asked the Minister in a Written Question whether she accepted that 3 million eligible voters are missing from the electoral register and what efforts were being made to rectify that position. I did not pursue it at the time but I did not find her answer satisfactory. There was a disagreement over the figures. Furthermore, there was no suggestion that the procedures for encouraging people to vote would be improved. I shall not go into the dispute over the figures in detail—suffice it to say that after discussion in the OPCS, the Director of Statistics stated in November last year that the estimate of 3.4 million people currently missing from the electoral register in Britain was broadly correct. That means that, for many reasons, 5 per cent. of eligible voters have simply vanished from the register.
Even if we accept the 2 million figure cited by the Minister, that still shows an extremely disturbing trend. As my noble friend Lord Monkswell and the noble Lord, Lord Tope, said, we should be even more concerned if we break down those blanket figures. In greater London, it is estimated that 11.6 per cent. of eligible voters are missing from the register. Throughout the country, nearly 20 per cent. of ethnic minority electors are not on the register. The figure is 28 per cent. for those in private rented accommodation. Perhaps of most concern is the fact that an estimated 18 per cent. of 18 to 24 year-olds are not registering.
Along with other opposition parties, the Labour Party has been putting its concerns to the Home Office for some considerable time. In its report Agenda for Change, the Hansard Society reinforced that view when it stated:
"There is indeed considerable cause for anxiety".
It defines its concern not only from the figures but because of the widely differing efforts that are made when compiling the register. It concluded that there is a case for increasing the resources devoted to canvassing and advertising for registration, preferably through a system of central funding. I should like to know whether any central funding will be forthcoming.

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Those differing efforts were highlighted by two successful court cases taken by the Labour Party against Brent and Milton Keynes councils which, we felt, were not carrying out their statutory duty. The judge said that there was an obligation on returning officers to,
"make sufficient house to house enquiries"
and not merely the basic one visit a year.
There is no doubt that the electoral administration service is under funded and that too little is being spent on national promotional campaigns. I should like to ask the Government how they can justify spending more in 1992 on encouraging those residing overseas to register than on encouraging UK voters to register. However one looks at that—even if only numerically—there must be something wrong with that.
The legislative framework for establishing the electoral register was devised for a static population, not the moving population outlined by my noble friend Lord Monkswell. It is rooted in the pre-computer age. In the words of the Home Office Working Group report on Electoral Registration, to which other noble Lords have referred,
"the system for registering electors in the U.K. has remained largely unchanged since 1918".
The report identifies the key problem, illustrated by the noble Lord, Lord Tope, of the register being out of date by the time it is published and of it becoming progressively more inaccurate during the course of the year. Surely such a statement by officials required action. Unfortunately, the conclusions of the report do not go any way towards resolving the position.
Both the noble Lord, Lord Tope, and my noble friend Lord Monkswell referred to the question of the "rolling register". Although the working group discussed that in some detail, it felt that it could not be introduced because of the cost, which it estimated to be between £4 million and £12 million. In 1993–94, the Home Office campaign to encourage registration cost approximately £0.5 million. Over that period, £1.6 million was spent on the Citizen's Charter and £2 million on printing and updating the Parent's Charter. As it was clear that money was rightly available to ensure that people were informed of the public services that they should expect, I asked the Minister for a Citizen's Charter on electoral rights, but no such plans are afoot. I cannot imagine what greater public service there could be than ensuring that people have the right to vote. I hope that that decision can be reconsidered.
The working party calls for more detailed discussions on the rolling register. I ask the Minister whether that work has commenced some 15 months after the report was concluded. Another recommendation was that the cut-off point should be closer to election day. Again, I ask the Minister what action has been taken to progress that important recommendation. Having a date six and a half weeks before polling day, as we did at the last election, is far too restrictive. I ask also whether there will be changes in the procedures by which EU citizens can register, and whether that position has been re-examined in the light of the UK only achieving 0.72 per cent. of take-up in the Euro-elections, the lowest of all EU countries.
The noble Lord, Lord Tope, mentioned the subject of absent voting. The working group report on absent voting opens with the words that,
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"at the last general election there was considerable public dissatisfaction with the current provision for postal and proxy voting"
not least in respect of the number of absent voting irregularities, and notably the question of people not knowing whether they were voting by post or by proxy. While I appreciate that the group had to balance the need to simplify the system versus the importance of making fraud more difficult, it was disappointing that the simplification of the procedures and forms was not forthcoming and that changes in attestation were rejected.
I think also that the working group did not examine in detail—perhaps it did and the Minister will tell us—the causes of the fraud. There should be an examination of whether there is a correlation between the extension in proxy voting and the ability to commit fraud. The report came up with many suggestions. Again, I wonder how many of them have been followed through.
I have been involved, as I am sure have many other noble Lords, in helping the new democracies in east and central Europe and South Africa to develop their electoral roles and procedures. That experience, and the detailed process needed to ensure free and fair elections, confirmed to me the need for a radical overhaul of our own electoral practices. I would not suggest that in the main our elections are not free and fairly conducted, nor that, in principle, every citizen has not the right to vote. But there is a growing awareness that there are, for a number, barriers and obstacles that have to be overcome before they can exercise that right in practice.
There is growing unease among electors, politicians and electoral practitioners that modern election techniques are governed by outdated rules without proper regulation—laws that have become more complex as they have been tinkered with rather than substantial changes having been made. I firmly believe that it is time for there to be a review of our electoral system by a standing conference or some other means—a review not based on whether we can afford the changes, but on clear, democratic criteria. I hope that the Minister will give some indication that such a review is possible.
The Labour Party started that process four years ago when it set up a committee to look at electoral systems under the chairmanship of my noble friend Lord Plant, with a procedures group chaired by the late Lord Underhill. That section of the report made 37 recommendations, covering all aspects of election procedure, including things such as fixed Parliaments, dates and times of poll, and so on, not necessarily relevant to today's debate, but which I hope we can debate at some point in the future.
Perhaps the most important recommendation and that of the Hansard Society in Agenda for Change was the proposal for a single body—an electoral commission— which would be directly and solely responsible for all aspects of electoral administration. That view was supported by all the political parties and, interestingly, by the Home Affairs Select Committee in the other place in its report on the funding of political parties. Not only does the committee recommend that; it suggests that it should be set up as soon as possible.
The noble Lord, Lord Lester of Herne Hill, referred to the judgment given by Mr. Justice Dyson in the Literal Democrat case. He saw an electoral commission as being

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a means and a way of overcoming misrepresentation. Perhaps I may tell the Minister that if I dig deep into my memory I believe that there was a case in which the Conservative Party was also misrepresented. We must look at the whole question of the titles and ensure that people cannot put false names on their nomination papers and misrepresent people. Another fundamental issue is raised, which we do not have time to discuss today; it is the registration of political parties. If political parties were registered we should not have the difficulties that we have had to face over this misrepresentation.
I understand that such a proposition for an electoral commission has been rejected by the Home Office on the ground of cost. I should be delighted if the Minister told me that I am wrong about that. We must overcome the difficulties outlined today, the barriers for voting and the inadequacies in our system. Before the next election the Government have the opportunity, if not to deal with all aspects of procedure, at least to give a commitment of greater support to electoral registration officers in building their electoral registers and in providing considerably more funding for advertising and general publicity. In that way the upward trend of under-registration can be halted. I hope that the Minister will be able to tell us that such improvements are being progressed.
3.36 p.m.
Baroness Blatch: My Lords, I too thank the noble Lord, Lord Monkswell, for initiating this important debate. The Government are by no means complacent about the electoral register. It is one of the most fundamental elements of our democracy that all, and only, those who are eligible to vote should be given every opportunity to do so.
Prime responsibility for effective registration lies with electoral registration officers. Although these officers are employed by local authorities they are not answerable to them for their performance. Nor are they answerable to the Home Office. They are answerable only to the courts for the efficient discharge of their duties. This independence is, I believe, crucial in ensuring that electoral registers are compiled in an impartial way.
I accept, of course, that the Home Office has a part to play as a facilitator in allowing electoral registration officers to achieve as comprehensive a register as possible. Before addressing the points which noble Lords have raised in this debate, I should first like to describe briefly what part the Government play in the process. Our three main contributions to that are publicity, research into best practice and the regular provision of guidance to electoral registration officers.
Each year the Government undertake a publicity campaign which is timed to coincide with the electoral registration canvass in the autumn. The annual budget for this campaign is about £600,000; indeed, last year nearly £700,000 was spent. We are keen to maximise the effect of this campaign and for the past two years we have undertaken television advertising which, research indicates, has proved to be a particularly effective means of communication.
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As well as reminding the general public of the registration canvass, we have taken care to target the advertisement to reach special groups such as young people, inner-city dwellers and members of ethnic groups, for all of whom registration is too low. We did this by means of placing the advertisement in selected slots on the cable and satellite channels, which market research indicated were most likely to be watched by these groups, as well as screening it on the main channels.
Research which we undertook after the campaign showed a significant general increase in awareness of electoral registration publicity from 27 per cent. to 57 per cent. and a notable increase in the proportion of young people understanding that they needed to take action to register from 22 per cent. to 41 per cent. for the 16–24 age group. This was a much higher increase in awareness than was achieved by means of posters, which had for a number of years been our main advertising medium.
Based on this evidence of success, we intend to produce a new television commercial for this year's campaign in order to keep the message fresh; and, once again, we intend to broadcast it in ways which will maximise the chances of its message getting across to under-registered groups.
The second contribution which the Home Office makes is to commission research every year into the practical methods which electoral registration officers have used to compile their registers. That is conducted on our behalf by the Office of Population Censuses and Surveys, which sends a detailed questionnaire to all electoral registration officers. I am very pleased to say that the response rate to this questionnaire is very high—95 per cent. last year— showing that electoral registration officers are keen to contribute to the dissemination of best practice.
Much valuable information has emerged in the course of those annual research exercises, and the results are published in an annual booklet which is sent to all EROS. Research in previous years has demonstrated that there are several procedures which electoral registration officers can undertake in order to maximise the response they receive from households during the canvass. That knowledge was given to EROs as it became available, and there is growing evidence that increasing numbers of them are using those techniques. This year's questionnaire is now being prepared, and it will seek to refine further our knowledge of how those individual techniques may be combined, according to the particular circumstances of the local area, to increase still further a good response rate.
The third contribution from the Home Office which I mentioned was regular guidance. We have issued code of practice notes and advisory circulars of direct relevance to EROS, dealing with a wide variety of legal and practical matters. We continue to issue regular advisory circulars. Officials in the department are regularly telephoned by electoral registration staff for ad hoc advice.
That is, in broad terms, what the Home Office contributes directly to the system of electoral registration. Support is also given, of course, by the Department of the Environment in the form of the revenue support grant. Approximately £40 million is spent each year by local

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authorities on electoral registration, to which the non-hypothecated element of the revenue support grant contributes.
Perhaps I may say teasingly to the noble Baroness, Lady Gould of Potternewton, that she has hinted that we do not spend enough on advertising or on electoral registration. I wonder whether the Labour Party has plans to spend more on both!
I now turn to the speech of the noble Lord, Lord Monkswell, who was kind enough to give me notice of the points that he would raise during the debate. I do not criticise the noble Baroness, Lady Gould, but she raised a large number of questions. If I do not answer them in the course of my speech and there is anything outstanding, I shall ensure that I give her a full reply in due course.
It has been suggested that, in order to evade the community charge, people sought to evade registration as electors, assuming that that would guarantee absence from the community charges register. However, the register of electors, although important, was merely one among a number of sources available to the community charges registration officer in compiling the community charges register. In particular, canvassing arrangements for the registers were separate. In practice, therefore, staying off the register of electors was likely only to deprive the person concerned of his or her right to vote; he would remain liable to pay the community charge and, if he has refused to give the information required of him by his ERO, he would also be liable to prosecution.
Any system of local taxation will be claimed as a disincentive to register. The council tax is levied only on property and not individuals. But it must be accepted that the right to vote carries with it also a duty to help fund services. Therefore, we have no plans to take any further action in that respect.
It is, of course, true that there is a gap between the annual registration canvass and the publication of the electoral register. The canvass asks about residence on 10th October in Great Britain and the register comes into force the following February. But the publication of the draft register in November is widely publicised and members of the public are encouraged to scrutinise the draft in order to check for errors and omissions. Certainly in my own areas we encourage local councillors and especially parish councillors, who know their communities very well, to assist in that process.
Corrections are possible until 16th December. It is, therefore, possible for anyone moving just before the qualifying date to be entered in the electoral register of his new area by taking advantage of the claims process during the draft register stage. It is also important to remember that, even if electors have not been registered in their new constituency by that means, they are not disfranchised. They can still vote in their old constituency, by using the provisions which exist for absent voting. In the light of that fact, we have no plans to alter the system.
I turn now to the points raised by the noble Lord, Lord Monkswell, as regards access for the disabled at polling stations. Again, that is a most important point. For the disabled voter, the issue of first importance is that he or she should be provided with the necessary facilities to enable a vote to be made with proper regard to the provisions for propriety and, indeed, for secrecy.
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The Government take very seriously their responsibility towards disabled voters. We believe that the provisions that we have put in place to assist returning officers and councils to deliver their responsibilities are important and that they have been pretty effective in facilitating greater access to the electoral process for those citizens who have a physical or other disability.
Those arrangements include provision to assist councils with grants of up to 50 per cent. of the costs of providing temporary ramps to improve access to polling places where that would otherwise be difficult. The spending on that help has increased considerably since the last general election in 1992. More than £70,000 was given in grants in 1994, and the effect is, of course, cumulative. Ramps provided in 1992, 1993 and 1994 will continue to be available for subsequent elections. The Government are ready to meet any additional requests which may be made to them for these purposes by returning officers.
We accept, of course, that the responsibility to assist electors to register their vote does not stop there. A voter who has a disability, of whatever kind, may need some special arrangements or facilities in the polling station itself to help him or her.
The involvement of SCOPE and of the Royal National Institute for the Blind in the preparation of guidance material which is issued regularly to returning officers by the Home Office has, I know, helped considerably to improve facilities in many individual polling stations. The checklists provided in the guidance cover a wide range of factors which need to be taken into consideration when returning officers look at the arrangements in place. They have been instrumental in raising the awareness of administrators of the special needs of the disabled voter.
We recognise, however, that it has not proved possible to ensure that every polling place in every constituency offers the sort of access which we and the disabled would wish. It remains the Government's long-term objective that every polling place should be accessible to all voters. But it is important to remember that returning officers do not have access to their own dedicated buildings specifically designed for use at elections.
Councils must look for suitable premises which are already available and must look very closely at accessibility before designating a polling place. Indeed, I have to pay tribute to them, because I believe that they work very hard when looking for suitable places. They may not designate a place which is not accessible if there is a better alternative which would still meet the statutory test that it meets the reasonable requirements of all electors.
The Government believe that those are responsibilities which are properly placed at a local level on local representatives and administrators. It is at a local level that there is the best knowledge of local needs and of the measures which need to be taken and which can be taken to meet those needs. The Government will continue to support councils and local administrators with the necessary funds, advice and guidance to meet the needs of the disabled voter.
In one of his case studies, the noble Lord, Lord Monkswell, referred to the possibility of allowing people to turn up, register and vote all in one go. I have to say that

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I think that that would be a administrative nightmare for the registration officer. However, I believe that the noble Lord would understand that it would require instantly acceptable, unambiguous and verifiable forms of identification that we do not have as yet. I wonder whether there is a read-across with identity cards here. Certainly there would be a problem in preventing abuse.
Lord Monkswell: My Lords, I am grateful to the Minister for giving way. Perhaps I may advise her that the example I quoted concerned a state in America. It is my understanding that, if a resident went to the polling station with a neighbour who was on the register and could vouch for that person, that was an acceptable mechanism for registration and, on the basis of that registration, the resident could vote. I cannot believe that, with modern information technology that enables us to interrogate our bank accounts from some distance away and be paid money instantly, we cannot devise an electoral registration system that can do the necessary instantaneous checks.
Baroness Blatch: My Lords, I shall not be drawn to cite particular cases, but there are people who vouch for others who apply for inclusion on the electoral register when the application is not necessarily bona fide. Some cases are before the courts at this very moment.
In relation to the issue of absent voting and the timetable, I am aware that a number of people have expressed frustration at finding themselves unable to vote because they have missed the deadline for returning their applications for an absent vote. That point was made by a number of noble Lords. The current deadline is 13 working days before polling day. During the remaining time electoral staff must complete a great deal of work in checking and verifying claims and dispatching postal ballot papers. The Government have recently looked again to see whether there is scope for relaxing the timetable but we have not yet reached a firm view.
The levels of electoral registration have not for a number of years kept pace with increase in the estimated eligible population. That trend pre-dates the introduction of the community charge in England or Wales. However, as the table to which I shall refer indicates, 1992 saw the first increase in the proportion of eligible people registered since 1987. The latest return shows the largest number of electors registered. The percentages of the eligible population who registered from 1976 were as follows: 1976, 97.1 per cent.; 1981, 97.4 per cent.; 1982, 97.6 per cent.; 1983, 97.7 per cent.; 1984, 97.7 per cent.; 1985, 97.3 per cent.; 1986, 97.3 per cent.; 1987, 97.2 per cent.; 1988, 96.8 per cent.; 1989, 96.1 per cent.; 1990, 95.7 per cent.; 1991, 95.2 per cent.; 1992, 95.3 per cent.; 1993, 95 per cent.; and 1994, 95 per cent.
Looking at those figures—and I have had some fun playing around with them—there appears to be a peak at general elections and then a dropping away after general elections, as opposed to any link with the taxation system.
A straight comparison between the total number of electors registered and the OPCS revised estimate of the total resident population cannot take account of a
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number of hidden factors. For example, the electorate total contains much dead wood and legitimate duplication of names. A study of electoral registration in 1991 by Stephen Smith of the social survey division of the OPCS estimated that between 7.4 per cent. and 9 per cent. of people in private households in England and Wales eligible to vote at the time of the 1991 census were not on the electoral register. However, a few of those people would still have been on the register at an earlier address elsewhere and not identified. Furthermore, the resident population includes people who are not British, Commonwealth or Irish citizens and are ineligible for inclusion on the register. We believe that there are possibly over a million such people over voting age in the United Kingdom.
The noble Lord, Lord Tope, referred to weekend voting. At present, the only restriction on polling day is that it must be a working day. It is merely convention that polling days are on Thursdays. Under the law as it stands it is not possible to hold a parliamentary election at a weekend. I am not convinced absolutely, nor are all the political parties, that polling on a Saturday or Sunday would necessarily improve the turn-out. Many people choose weekends to go away and they would need to obtain a postal or proxy vote in much larger numbers. There are also a number of groups who would refuse on the grounds of religion or conscience to vote on Saturdays or Sundays. It would be wrong to disfranchise them for that reason.
The noble Lord, Lord Lester, referred to the celebrated case of the "Literal Democrat." It is an important issue which is receiving close attention. A meeting has been held recently between my officials and representatives of the main political parties to determine whether there was support for change to existing nomination procedures, and if so, whether there was consensus on any change which might be required. As the noble Lord may understand, it is difficult to get a consensus on such a difficult issue.
There is a consensus as regards dissatisfaction with the practice of wilfully misrepresenting a political party or another person. Three proposals received a degree of support at the meeting. First, a party logo could be introduced in addition to the candidate's name, address and description which are already included on the ballot paper. This would allow challenges to be made under existing copyright law. A second proposal was that existing legislation could be extended to make it an offence to make a false statement of description, as well as in relation to a candidate's personal character or conduct. Another proposal which received some support was the introduction of an additional stage in an election which would allow a draft statement of a candidate's nominations to be published and challenged. None of these proposals alone would be sufficient to prevent a recurrence of the Literal Democrat problem. However, my officials are currently preparing a paper examining the options in detail and a further meeting will be held with the political parties when that paper is published to discuss the options.
Lord Lester of Herne Hill: My Lords, I hope the noble Baroness will allow me to say that I am grateful for that answer. I take it that officials will be considering

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the laws in other jurisdictions referred to by the Divisional Court in the Literal Democrat case as a possible model for change.
Baroness Blotch: My Lords, I was going to say that it would be helpful, if people have ideas about what might work and what would eliminate this kind of wilful behaviour, to pass those on. We would of course be receptive to such ideas.
The noble Lord, Lord Tope, asked about the response of the working group. Ministers are currently considering the findings and conclusions of the report and therefore I am not able to say any more at the moment. With regard to the design of forms, that is kept under continuing review. Officials constantly consult administrators and indeed political parties. The registration form "A" is not a compulsory format and registration officers can, and indeed do, modify it within limits. I must say that some do it rather better than others.
The noble Lord, Lord Tope, also referred to selling the register. There are no plans to change current requirements on local authorities to sell the register. It is a public document and it would be impractical to restrict access by not selling it on. It is also worth recording that there is a mail preference scheme which allows people to opt out of receiving junk mail. We would encourage people to use that.
As regards the suggestion about ballot papers written in Braille, this has been advanced by a number of organisations representing visually handicapped voters.
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There are, of course, a number of difficulties. Braille ballot forms would inevitably need to be printed on different paper from that of the other ballot forms to accommodate both the Braille and the overprinting necessary for the counters to read them. In a small polling district the limited number of such votes would lead to an increased risk that the secrecy of the individual's vote could not be ensured. That is an important point to take into account.
The noble Baroness, Lady Gould of Potternewton, referred to the spending on overseas electors in 1992 being more than that spent on advertising in this country. Nothing was spent in 1992 on advertising for overseas electors. In fact, nothing at all has been spent since 1990 when money was spent on advertising the extended franchise from five to 20 years, but since that date nothing at all has been spent. The noble Baroness questioned central funding for registration. As I have already said, this exists through the revenue support grant and it is up to local authorities themselves to decide how much of that they wish to allocate to registration.
This has been an interesting and informative debate. I am sure that I have not covered every single point raised, but I can assure the House that the Government welcome the debate and the interest in the subject. I believe that we shall continue to have healthy and lively discussions with the political parties on such matters.
House adjourned for the Spring Bank Holiday at four o'clock.