Lords Sitting of 2 April 1996

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

Colombia: "Decertification" by US
Viscount Montgomery of Alamein Viscount Montgomery of Alamein asked Her Majesty's Government:
Whether they agree with the "decertification" of Colombia by the United States.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, how to achieve a reversal of the US decertification of Colombia is a bilateral matter between the United States and Colombia. The criteria for certification are set out in legislation and discussed with the Colombians at the start of each year.
Viscount Montgomery of Alamein: My Lords, that may well be so. But surely we should be supporting a country which has made such determined efforts and is so successful in bringing so many drug barons into custody. Does my noble friend recall that when President Gaviria visited Britain in 1993 it was clear that we had a long-standing and warm relationship with Colombia? The bilateral relationship is extremely important in as much as we have considerable trading and investment interests in Colombia. Is my noble friend prepared to make representations in Washington concerning that arbitrary measure? It may well damage Colombia's status in international circles as a major trading nation.
Baroness Chalker of Wallasey: My Lords, I believe my noble friend knows that this whole issue is a matter for the United States Administration. We have excellent relations with Colombia and have long believed that close co-operation is absolutely vital in the international fight against drugs. I can certainly confirm to my noble friend that Colombia has had some spectacular successes against drug traffickers in recent times since President Samper took office, particularly the arrest of six of the seven kingpins of the Cali cartel and a number of other instances where the authorities did all that one could possibly believe necessary. I note my noble friend's point in regard to representations. We enjoy a warm and important trading relationship with Colombia. We work well with them and they are working well with us in terms of drug interdiction.
Lord Hailsham of Saint Marylebone: My Lords, can my noble friend enlighten my darkness and tell me exactly what is meant by the terms "certification" and "decertification" in this context?
Baroness Chalker of Wallasey: My Lords, when my noble and learned friend asks a difficult question,
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I take careful note. I understand that the United States' legislation allows that country to take a specific attitude with those they believe have not taken adequate action against drug trafficking. At the present time there are accusations against certain members of the Government of Colombia, but they are only allegations. The Colombian authorities are investigating those allegations. I believe that they came to light as a result of the Colombian Government putting vastly additional resources into tackling the drugs problem. However, it is one of those matters where the terms of the Foreign Assistance Act 1961 require the US Administration to certify annually those major drug-producing countries which have co-operated fully with the United States in the fight against drugs. Because of the accusations I described, it is considered by some in the United States that there is not the full co-operation that there needs to be.
Baroness Blackstone: My Lords, given what the Minister has just said and the fact that investigations are now being carried out in Colombia into the actions of President Samper and some members of his government who, it is said, have been involved in using drugs money for political campaigning, was it not inevitable that the US Administration would take action to decertify Colombia? Do the British Government support the US Administration in taking that decision, at least for the time being?
Baroness Chalker of Wallasey: My Lords, this is a difficult situation. I should underline that these are only allegations; they are not proven. I underline also something that I said just now to my noble and learned friend. It is as a result of the Colombian Government tackling this problem so energetically that many of the possible takers of drug money have come to light. Until the issue is resolved by the Colombian authorities nobody can gainsay one way or the other. It may be, because of the "black and white" nature of the Foreign Assistance Act, that that action was inevitable. However, we take the view that it is more important to work in support of Colombia's counter-narcotics policies than to have such legislation on our statute book.
Viscount Waverley: My Lords, is the Minister aware that a recent report by the international drug control committee of the United Nations categorically states that Colombia is doing all that can reasonably be expected of it? Why therefore should the United States consider decertification?
Baroness Chalker of Wallasey: My Lords, first, I am aware of the report; secondly, the United States may consider decertification because of the Foreign Assistance Act.
Lord Richard: My Lords, perhaps I may congratulate the Minister on treading the decertification tightrope without falling off.
Lord Pearson of Rannoch: My Lords, does my noble friend agree that it is the increasing demand for

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these drugs, particularly in western societies, which causes their supply? Does she further agree that it might be advantageous if the United States were to look at the deep-seated problems within its own society that cause this demand, a demand which exists in other western societies including our own, and treat those problems with the same vigour that they recommend the Colombians should adopt?
Baroness Chalker of Wallasey: My Lords, on this occasion I think my noble friend is absolutely right. I commend to him the work of my right honourable friend the Lord President of the Council in another place because the work now being done by the United Kingdom in terms of counter-narcotics policy with foreign governments and in terms of trying to suppress demand for drugs in this country is second to none.

UN Response to Emergencies
2.45 p.m.
Lord Rea Lord Rea asked Her Majesty's Government:
What progress is being made with the reform of the United Nations' response to complex humanitarian emergencies.
Baroness Chalker of Wallasey: My Lords, the United Kingdom was instrumental in the creation of the Department of Humanitarian Affairs to strengthen the co-ordination of humanitarian emergency assistance of the United Nations. The creation of the DHA has led to a number of improvements in the way in which the UN system responds to complex humanitarian emergencies.
Lord Rea: My Lords, I thank the noble Baroness for that Answer, which certainly sounds appropriate. Does she think that the present structures of the United Nations could work better if they were better resourced? Or does she feel that further structural reforms are necessary in order to get an effective early warning system so that the United Nations is ready to prevent crises before they actually erupt?
Baroness Chalker of Wallasey: My Lords, I believe that the present structure could be made to work better. It is not simply a question of increased resources. It is actually a question of the better use of existing resources. Further reforms are needed. One of the things the Department of Humanitarian Affairs, based in Geneva, has in good measure is its early warning system. It is now in a position to give good information to other UN agencies and to call upon other UN agencies to deploy their resources in the most effective way. That is not always easily acceptable to other UN agencies because it causes a feeling that someone else knows how to put the job together. But increasingly the United Nations must look at the
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deployment of its varied resources and find ways of making the maximum use of them, particularly for preventive work.
Lord Redesdale: My Lords, as one of the great criticisms of the DHA is that it has been under-resourced, does the Minister really believe that it has adequate resources to carry out its job?
Baroness Chalker of Wallasey: My Lords, it is rather difficult to tell at this moment, particularly when we are in the midst of a considerable amount of debate on UN reform. Whereas we have had much more emergency spending over the past five years, that has now bottomed out. That may give the Department of Humanitarian Affairs the chance to deploy its existing resources still better. In my discussions last week with Mr. Akashi, the new Under-Secretary General in charge of the DHA, I made it quite clear that the existing resources could be better deployed. We are in deep discussion about how that should be done.
Lord Clark of Kempston: My Lords, although it is important to increase funding if necessary, does my noble friend agree that it would be much better to concentrate on those members of the United Nations who do not pay their subscriptions?
Baroness Chalker of Wallasey: My Lords, my noble friend can rest assured that I was in such discussions in Washington and New York just last week.
Lord Judd: My Lords, does the Minister agree that undermining the effectiveness of the UN generally has been the major funding crisis? Does she further agree that the stand being made by President Clinton at the moment is to be welcomed and that we should be giving him all possible support in ensuring proper resourcing and proper paying of dues? Does she accept that if the Department of Humanitarian Affairs is to be fully effective it is essential to have strong co-ordination with the authority of the 38th floor and the Secretary General at headquarters and equally strong co-ordination in the field?
Baroness Chalker of Wallasey: My Lords, I am not sure that it is just the funding crisis that is undermining confidence in the United Nations. As we covered in a Question in your Lordships' House yesterday, there is the problem of bringing together the different agencies which, in all honesty, are more competitive than they need to be. We have to help the United Nations through this reform process. It is always good for departments, as my own has recently done, to look at their objectives and at how they are fulfilling those objectives. That is very necessary for the United Nations.
There is a need for much better co-ordination, not only between New York and the field, but also between New York and Geneva. There are often quite stupid disputes and a lack of communication despite the vast increase in IT these days. So there is a great deal to be done. I can assure the noble Lord and your Lordships' House that the British Government and my department in particular are working very hard on the matter.
Lord Jenkins of Putney: My Lords, can the noble Baroness tell the House whether there is a department

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which concentrates on inhumanity within member states of the United Nations; for example, Saudi Arabia? That is the country which probably contains the most torture victims; it is part of state policy and includes whipping women and other disgusting activities. Can the noble Baroness say who is looking after that?
Baroness Chalker of Wallasey: My Lords, I do not expect that this House would expect me to agree that the whipping of women was ever justified.
Noble Lords: Hear, hear!
Baroness Chalker of Wallasey: My Lords, I believe there is a good deal of serious consideration taking place in a number of UN departments about the lack of respect for human rights and the way in which some national governments pursue their endeavours. One thing I do know is this: neither the United Nations nor other governments can impose on a sovereign government rules on how to run the lives of their people; nor should they.

Community Health Councils: Functions
2.52 p.m.
Baroness Masham of Ilton Baroness Masham of Ilton asked Her Majesty's Government:
In the light of the abolition of regional health authorities, how they intend to preserve the functions of community health councils and who will appoint their members.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the functions of community health councils have not altered following the abolition of the regional health authorities. The composition and appointment of community health council members will remain as now, except that regional offices of the National Health Service Executive will act on behalf of the Secretary of State instead of the former regional health authorities.
Baroness Masham of Ilton: My Lords, I thank the Minister for that reply. Will she agree with me that with so many changes in the National Health Service, and more emphasis on primary healthcare, commissioning and GP funding, community health councils—and they are called that—should have more involvement in primary healthcare?
Baroness Cumberlege: My Lords, we issued guidance quite recently in March on the role of community health councils. We have tried to ensure through them that primary healthcare is also part of their remit, but there are no statutory obligations as yet.
Lord Molloy: My Lords, will consideration be given to those members of staff who might otherwise be dismissed, who have considerable knowledge and
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experience and who are only too ready to continue to give their excellent service to our National Health Service?
Baroness Cumberlege: My Lords, I am not aware of any community health council staff being displaced through this move. Indeed, there is a study going on at the moment, through a firm of consultants, to see what their role is and whether the resources are properly or adequately allocated.
Lord Rea: My Lords, after the abolition of the regions, can the noble Baroness say whether the number of CHCs will remain the same or will perhaps increase, and that they will be adequately resourced?
Baroness Cumberlege: My Lords, I believe that I have dealt with the question of resources. There is a firm of consultants looking at that question. We shall be reporting back in June. As regards the numbers of CHCs, the Secretary of State is always very open to any suggestions as to different sizes or the numbers of CHCs. As I understand the situation at the moment, they are satisfied, although there are some marginal changes in boundaries where some of the district health authorities have been amalgamated with family health services authorities.
Viscount Caldecote: My Lords, can my noble friend clarify the position as regards government policy on cottage hospitals, in view of the number of reports on the closure of such hospitals which contribute so much to community care?
Baroness Cumberlege: My Lords, wherever there is a major change in service it has to be referred to the community health council. If the council objects to a closure, then it is referred to the Secretary of State. As regards cottage hospitals, my noble friend will have read over the weekend that there is now greater emphasis on ensuring that hospitals which are useful and serving a purpose remain in being.
Baroness Hayman: My Lords, is it not correct that, as the Minister said, the CHCs are about the only part of the NHS structure which has not changed in the past five years? Is it not true that after five years of perpetual and continuous reorganisation culminating in the abandonment of RHAs this week, all the evidence from this year's contracting round is that the NHS is facing this year exactly the same issues of resourcing and financing as sparked off the whole reorganisation process in 1987?
Baroness Cumberlege: My Lords, when we were debating the Bill to abolish regional health authorities, I remember that noble Lords opposite tried very hard to stop the abolition and the saving of £300 million, which have gone from administration into patient care. As regards the contracting for this year, I have been in the health service for a good many years and I have to say, "'twas ever thus".
Baroness Jay of Paddington: My Lords, as the Minister recalls the debates last year on the health

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authorities Bill, she will no doubt recall the amendments that we on this side of the House put forward in order to retain the independence and the powers of the community health councils under the new organisation. Is she now confident that there are sufficient safeguards to protect the access of the community health councils to independent trust organisations and district health authorities at local level?
Baroness Cumberlege: Yes, my Lords.
Baroness Farrington of Ribbleton: My Lords, does the Minister have available for the House the figures for the number of referrals by community health councils for proposed closures of local cottage hospitals? How many of those closures have gone ahead after referral?
Baroness Cumberlege: My Lords, I do not have those figures. I shall certainly write to the noble Baroness.
Baroness Masham of Ilion: My Lords, does the Minister agree that members of community health councils who represent patients on tribunals when they have problems and difficulties, as well as looking at the standard of all healthcare facilities, work very hard and do not get paid?
Baroness Cumberlege: Yes, my Lords, they do a splendid job. They are voluntary workers and they put an enormous amount of time and effort into their work. That is why, when the Government were considering NHS reforms, they decided to keep community health councils as they are now.

Construction Industry Training Board
2.58 p.m.
Baroness Turner of Camden Baroness Turner of Camden asked Her Majesty's Government:
Whether the proposal that the Construction Industry Training Board should move from its existing location will adversely effect its training programme, particularly if staff redundancies result.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, the re-location of the administrative headquarters from Bircham Newton is a matter for the Board itself and, I am informed, it is part of a package to improve the operational efficiency of all its services, including the training programme. The board does not propose to re-locate the training facility currently situated at Bircham Newton. It also aims, as far as possible, to keep to a minimum staff redundancies arising from implementation.
Baroness Turner of Camden: My Lords, I thank the Minister for that response. Is he aware that the proposed re-location has occasioned an enormous amount of local anxiety, with the result that a group is opposing the re-location? The group is led by the local MP and supported by the trade unions. Is the Minister aware that
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there has been very little consultation, if any, about the proposed move and that certain members of the board also oppose the move? Is he also aware that there is a very strongly held belief that the move, if it does take place, will involve substantial redundancies? Will that not inevitably have some effect on the effectiveness of the CITB? Therefore, will not the Government feel it incumbent on themselves to do what they can to influence the CITB against this move?
Lord Henley: My Lords, I am aware that very strong feelings have been expressed both for and against the proposals and those strong feelings were reflected in the decision of the board which, I understand, was split in its vote on these proposals. I am also aware that consultation with the various employer federations took place only some two weeks before the decision was made. That is possibly something which the noble Baroness and I would agree was regrettable. As regards whether the Government should intervene, it is a matter for the CITB to decide for itself. It is an operational matter for the board and I am sure that it will take note of the anxieties put forward by the local MP and by a considerable number of members of the other place and those expressed this afternoon by the noble Baroness.
Viscount Ullswater: My Lords, does my noble friend agree that because of the fragmentary nature of the construction industry, there is some requirement for a central training facility, such as the CITB, particularly to develop new technology skills? Does my noble friend agree that the CITB does a good job and that it is the proper function of government to fund such a central facility, which I hope that they will continue to do?
Lord Henley: My Lords, the future of the CITB is not in question. It is not a matter of government funding. The CITB is funded by a levy which is agreed by both Houses each year, so obviously that is a matter for the Government. I can assure my noble friend that whatever happens as a result of the re-location proposals, the CITB will continue to perform the function that it performs at the moment and to provide training facilities in my noble friend's own part of the world, Norfolk.
Lord Rochester: My Lords, can the noble Lord confirm that the Construction Industry Training Board has already decided to eliminate 380 training posts, and that a spokesman for the board is reported to have said that the restructuring of the board is because—I quote:
"training is seen as yet another cost in a difficult time"?
Should not training for skills be regarded rather as an essential investment for the future?
Lord Henley: My Lords, I can confirm that, as I said to my noble friend, the CITB will continue to exist and to provide training. We are talking merely about the re-location of its headquarters. I can give an absolute categorical assurance that there is no question of money from the training budget being diverted to pay for the implementation of the review proposals. I am not aware of the allegations which the noble Lord has made about a cut in the number of training posts provided by the

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CITB, but I shall certainly look into that. The assurance that I have had from the board is that it will not cut its training and certainly not as a result of the re-location proposals which relate only to its headquarters.

Liaison: Select Committee Report
3.2 p.m.
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the First Report from the Select Committee be agreed to (H.L. Paper 57).—(The Chairman of Committees.)
Following is the report referred to:

1. In our Second Report, Session 1994–95, we recommended that the Dangerous Dogs (Amendment) Bill [H.L.] should be referred to a Select Committee, and that thereafter a further ad hoc Committee on the Public Service should be appointed. The Select Committee on the Dangerous Dogs (Amendment) Bill [H.L.] has now reported.

2. We recommend that the Committee on the Public Service should have the following terms of reference:

"To consider the present condition and future development of the Public Service in Great Britain with particular regard to the effectiveness of recent and continuing changes and their impact on standards of conduct and service in the public interest.

For the purposes of the Select Committee, the Public Service should be deemed to exclude local government, the National Health Service, schools and institutions of higher and further education, but to include all Government Departments, executive agencies, non-departmental public bodies, companies, trusts and other organisations created by or working for the public service."

3. In the light of the debate in the House on 8 March on the Government's plans for the future of Recruitment and Assessment Services, we suggest that the Committee should begin by reporting, as a matter of some urgency, on that specific matter. The Committee should accordingly have power to report from time to time.

4. Finally, we invite members of the House to submit proposals for the appointment of ad hoc Committees into specific matters. Such submissions should be made to the Clerk to the Liaison Committee, Committee Office, House of Lords, London SW1A OPW.

Lord Bruce of Donington: My Lords, with the permission of the House, I should like to ask the Chairman of Committees a question. On the assumption that we concur with the receipt of the report, can the noble Lord explain what further action is necessary to activate the ad hoc Committee on the Public Service? Has the noble Lord received any information from the Lord Privy Seal on when the Government propose to table a Motion to set up that committee in view of the fact that they have declined to give any information on what they propose to do with regard to its subject matter?
The Chairman of Committees: My Lords, I am grateful to the noble Lord for letting me know in advance that he was proposing to intervene in this way. The customary consultations have already begun about the membership of the committee. The next step will be for the Committee of Selection to meet and to recommend to your Lordships the names of the chairman and other members of the committee. The
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report of the Committee of Selection will then be moved in your Lordships' House. Those steps will take place if your Lordships pass this Motion this afternoon. I hope that those steps will take place in the week we resume after the Easter Recess.
On Question, Motion agreed to.

House of Lords Offices: Select Committee Report
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the Second Report from the Select Committee be agreed to (HL Paper 58).—(The Chairman of Committees.)
Following is the report referred to:

1. Electronic Publishing

The Committee agreed that:

(1) the House should make its publications available free of charge in electronic form;

(2) the medium for free distribution should be the Internet;

(3) by a system of licensing, electronic material should be made freely available, on a non-exclusive basis, to commercial publishers who wish to process it and add value to it;

(4) HMSO (and after privatisation, the Stationery Office), as the "normal and preferred agent for the official publication of Parliamentary material", should be invited to act (subject to satisfactory prices and conditions) as the contractor to create and administer a source database of Parliament's electronic material, to place it on the Internet and keep it up-to-date;

(5) the first classes of Lords document for release on the Internet should be Hansard, bills and public information documents, and (when practicable) the Minute.

2. Copyright

In view of the proposal to privatise HMSO, the Committee agreed:

arrangements for the future administration of parliamentary copyright by the residual HMSO;

the payment of an administration fee to be shared pro rata with the House of Commons; and

the issue of copyright licences free of charge except in exceptional circumstances.

3. Painting of the House in session

The Committee was informed of the following decisions by the group to which it had delegated responsibility of the painting of the House in session:

copyright in the painting will rest with the House;

330 Lords will be painted in accordance with a general scheme for the placing of Lords which has been agreed;

the painting will be completed by 1st October 1997;

Lords to be painted will pay a subscription of £150, and will receive a signed print. Further prints will be available for purchase by peers and the public.

4. Signalling of Divisions over the TV and radio channels on the annunciators

The Committee took note of a new method to signal Divisions in both Houses over the television and radio channels on the annunciators in such a way that, with the minimum of interruption, peers and others can be made aware that a Division is taking place, whatever channel they are receiving.

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5. Fire precautions

The Committee took note of the progress made with fire precautions and the plans to implement further fire safety measures through an automatic fire detection system and fire compartmentation.

6. Cashpoint machines

The Committee was informed that cashpoint machines had been installed on the ground floor of the House of Lords next to the staff restaurant.

7. Staff of the House

The Committee was informed of the appointment of Mr. J.A. Vaughan as a Clerk, with effect from 16th October 1995; and of the appointment of Mr. T.E. Radice as a temporary Senior Clerk, with effect from 15th January 1996.

The Committee agreed the following new posts:

a Senior Information Officer in the Journal and Information Office at Grade 7, for two years in the first instance;

a temporary Archivist in the Record Office at Curatorial Grade F for one year only;

a Personal Secretary in the Bill Office; and

a part-time casual Executive Officer for about two years from October 1996 to complete an Index of Local and Personal Acts.

Baroness David: My Lords, perhaps I may ask the Chairman of Committees about item 4 (the signalling of Divisions over the TV and radio channels on the annunciators). I do not quite understand what is going to happen which is different from what happens now. However, what happens now is totally unsatisfactory. One has to keep one's eye on the annunciator, which in itself may be difficult from where one is sitting and one can see only the revolving message. I think that the least that we could expect is to have annunciators for both the House of Commons and the House of Lords in every Committee Room in every part of the building. We have them in the Grand Committee Room and in one or two other rooms, but I think that it is essential that we have them in all. I cannot believe that that would involve colossal expense, but it would make life very much easier for those of us who attend all-party group meetings in every part of the building. Can the Chairman of Committees promise that that will happen soon?
Lord Cocks of Hartcliffe: My Lords, on 20th July 1995 the House debated the Fourth Report from the Select Committee on House of Lords Offices, when I questioned the criterion to be used in the painting of the House in Session. I was told that one could be included on payment of £150. I said that that was neither in keeping with the dignity of the House nor a worthy way to proceed. I also made the point that it could well be the last ever painting of the House in its present form and that we should therefore think carefully before going down the route of including only those noble Lords prepared to pay. As I pointed out on that occasion, noble Lords who perhaps attend only once or twice a year but who pay their money could be in the painting while other noble Lords who may be assiduous attenders but who may object to
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the way in which this is being done will not be included. I was supported in that by the noble Lords, Lord Strabolgi and Lord Donaldson of Kingsbridge.
Lord Strabolgi: My Lords, I must interrupt my noble friend because I did not support him then although I have supported him on other occasions. I did not support him then because I did not agree with what he was saying and I do not agree with what he is saying now.
Lord Cocks of Hartcliffe: My Lords, in order to retain some shred of reputation for consistency, perhaps I may quote from the debate on 20th July 1995 when my noble friend Lord Strabolgi asked:
"Can we therefore ensure that the number appearing in the painting is restricted to those who are regular attenders of the House?"—[official Report, 20/7/95; col. 381.]
That was the point to which I was referring.
I have discovered that only one painting of the House in Session has ever been commissioned by the House previously. That was the 1964 painting by Thomson. The arrangements for that painting were decided by the Offices Committee of the time. The agenda for 24th July 1963 shows that Item I is to consider the picture of the House in Session. The agenda states:
"The list includes certain distinguished Peers as well as those qualifying on the basis of assiduity of attendance. This list represents the optimum number of Peers for inclusion in the picture, but room might be found for any further Peers whom the Committee might wish to specially recommend".
It was stated that suggestions as to who might be included would be welcomed. Because of my position at the BBC I am glossing over the fact that Lord Reith had expressed dissatisfaction that he was not included in the picture. I quote from the Minute that the Lord Great Chamberlain expressed the view that the inclusion of two sleeping Peers in the painting was not in keeping with the dignity of the House. It was stated that Lord Champion, with whom I had the honour of working in the last Labour Government, said that:
"two sleeping out of two hundred is not a bad average. After some discussion a vote is taken and on a show of hands seventeen members of the Committee are in favour of retaining the sleeping Peers and four against".
The Minute does not state whether any Members of the Committee were asleep when the vote was taken.
I do not think that this is the right way to go about it. This is undignified and it is unworthy of the House. If there should be any constitutional changes in the future, this will be the definitive picture of the House of Lords and will be constantly included in articles and reference books. I really think that the House should think again.
Lord Boyd-Carpenter: My Lords, will my noble friend deal with the question of the request for £150 from whoever is to be included in the painting? I feel that for a picture to be painted of the House of Lords but for only those who pay £150 to be included in it, whatever may be their service to your Lordships' House, is an odd way to proceed. I would be grateful if my noble friend could explain why it is thought necessary

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to impose a charge and why those who either cannot or will not pay this sum should be excluded from the picture.
Lord Shepherd: My Lords, I speak as one of the relics of the earlier period to which reference has been made. (I see the noble and learned Lord, Lord Hailsham of Saint Marylebone, also present, although I do not say that he is also one of the relics.) The portrait painted in 1962 or 1963 which is now in the Cholmondeley Room resulted from a decision by a committee of this House. The question was how the moneys in the window fund were to be spent. During the war a collection was made by noble Lords, and I believe that there was also some insurance money. The fund was raised so that if there was any bombing, moneys would be available for the replacement of the windows in the Chamber. Fortunately, the Chamber was not damaged during the war and those funds were available. It was thought best to dispense with the fund because it then had no great importance. It was decided that a portrait of the House, as it then was, should be painted, and there was no need to raise funds from those who participated in it for the artist who painted the picture.
If we want to have a portrait of the House today, I do not suppose that presently there are any funds available other than by raising them from Members. Whether or not, as my noble friend Lord Cocks has said, this is the right way to go about it, if a portrait is to be painted someone will have to pay for it. I share his view that it would represent an incomplete House if it were made up only of those who were prepared to pay a sum of money. I do not believe that the character of the House would be accurately reflected if, say, someone with £150 who comes up for Ascot gets his picture in the portrait. If the House wishes to proceed with it, I suspect that the portrait will not be of the same character as that painted by Thomson in 1963.
Lord Clark of Kempston: My Lords, does the noble Lord agree that a similar situation obtains in another place? It is impossible to get all Members into either Chamber. Consequently, not everyone could appear in the official portrait of the other place. Subsequently, what was known as "the other portrait" was painted. All the other Members were in that portrait. Surely this House could adopt the same principle.
The noble Lord, Lord Cocks, says that not all Members can get in. Of course we cannot; the Chamber is too small. But it would be possible to have another portrait featuring those Peers and Peeresses who cannot get into the original picture. In conclusion, the other portrait in the other place included the present Prime Minister.
Lord Marsh: My Lords, will the Lord Chairman of Committees reflect upon the fact that as this discussion continues it may reveal a picture of this House that not all of us may wish to see? Having heard all the arguments several times, could it not be considered by
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the appropriate committee? This matter may fill too much space in the newspapers tomorrow, which not all of us would appreciate.
Lord Strabolgi: My Lords, my noble friend Lord Shepherd spoke of the fund which was set up. I am absolutely certain that all of us had to pay for the 1962 painting by Thomson. I believe that the sum was about £15. Considering the inflation that has occurred since then, that is approximately equivalent to £150 today.
Lord Monkswell: My Lords, I should like to quote another precedent in support of my noble friend Lord Cocks of Hartcliffe. I refer to the painting of the House in 1895 which is just outside the Bishop's Bar, close to the Chamber. Noble Lords may be interested to know that that painting was subscribed for by a dozen Peers, who were presumably fairly affluent, and included a whole range of their colleagues. I am fairly certain that it was representative of the House in 1895. I claim interest in the fact that my ancestor, the second Lord Monkswell, appears in that portrait.
I also support my noble friend Lady David in her request for information about the announcement of Divisions. Perhaps I may ask the Lord Chairman of Committees whether it is planned to have an audible signal throughout the Palace of Westminster to signify Divisions in the House of Lords. Last night I missed a Division in your Lordships' House as a result of being in the precincts of the House of Commons conferring with parliamentary colleagues about the implications of the Government's Business Statement. Perhaps we may be given some assurance that in future there will be a distinct, audible signal of Divisions in the House of Lords.
Lord Harris of Greenwich: My Lords, does the Lord Chairman of Committees agree that if Members of this House do not subscribe to this painting the taxpayer will have to pay? Some of us would find it extremely difficult to accept such an arrangement.
The Chairman of Committees: My Lords, I deal first with the question about Divisions raised by the noble Baroness, Lady David. This matter was also mentioned by the noble Lord, Lord Monkswell. I am grateful to him for letting me know beforehand that he proposed to raise this matter. As far as concerns the general improvements that I hope will be made, perhaps it may be for the convenience of your Lordships if I let the noble Baroness, Lady David, the noble Lord, Lord Monkswell, and others know precisely what is proposed, so as to avoid taking up too much time this afternoon. One of the proposals is to have a bell in a picture on the television screen which can be there all the time that a Division is taking place without interrupting the sound. I will explain the other matters to your Lordships elsewhere.
To deal with the other point raised by the noble Lord, Lord Monkswell, I am sorry that he had difficulty last night with a Division, whichever way he was proposing to vote. I will have the matter looked into to see whether anything can be done to help.

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So far as concerns the suggestions made by the noble Baroness, Lady David, I should like to look into them. I feel that some helpful suggestions have been made. It may be that we shall wish to give consideration to further steps that can be taken. Perhaps I may leave it in that way for the time being. I will let the noble Baroness know of any developments.
The other main matter which was raised was spoken to by a number of noble Lords, including the noble Lords, Lord Cocks of Hartcliffe, Lord Boyd-Carpenter, Lord Shepherd, Lord Strabolgi, Lord Marsh, Lord Clark of Kempston and Lord Harris of Greenwich. Perhaps I may take all the points made at the same time. First, let me offer a word of personal reassurance to the noble Lord, Lord Cocks of Hartcliffe. I have never regarded his reputation as being in the slightest danger. I would also venture one further personal comment, without of course committing your Lordships for the future or any of my successors: I very much hope that this will not be the last painting of your Lordships' House in Session. I trust that there will be many, many more to grace your Lordships' walls. I see that the noble Lord, Lord Graham of Edmonton, is expressing an interest in this matter. He was one of the first to suggest the present arrangements for having a painting of the House.
One of the fundamental points raised by the noble Lord, Lord Boyd-Carpenter, and other noble Lords is the payment of £150. When your Lordships' committee was first considering this matter it was felt that the painting needed to be self-supporting and that it would not be right for the taxpayer—this is a point which was touched upon by the noble Lord, Lord Strabolgi, and others—to bear the cost of it. Perhaps I may say in passing that those were the considerations that were in the mind of another place when it was preparing for the last paintings made there. That is the fundamental reason.
In answering the noble Lord, Lord Cocks, and other noble Lords, I should perhaps remind your Lordships that you have already taken a decision on this. It was taken as long ago as last summer. The Offices Committee recommendation, later approved by the House, delegated to the group which has been guiding the work for the painting, financial matters and the inclusion of noble Lords in the painting. Those are matters which were accepted by your Lordships' House quite some time ago.
I take the point made by the noble Lord, Lord Clark, that an alternative was considered by the Advisory Panel on Works of Art, chaired by the noble Earl, Lord Gowrie. It was felt best not to proceed in that way. I am sorry to have to disappoint him about that.
We have already gone some way towards preparing for this painting which, as your Lordships will have seen, it is hoped will be completed by about October of next year. I believe that that deals with most of the points raised.
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The noble Lord, Lord Marsh, asked about referring the matter to the committee. I am sorry to have to disappoint him, but these are matters which have been considered thoroughly. I hope that he will feel that it is appropriate not to take that suggestion further forward.
On the point made by the noble Lord, Lord Shepherd, I believe that it is right that none of the funds mentioned by him is any longer available. I shall check whether there are at least two other funds of your Lordships' House in being, to make sure, for the satisfaction of the noble Lord, that neither of those is available for this purpose. If I am wrong, I shall of course let him know.
Lord Shepherd: My Lords, I am sure that the noble Lord will. If he finds that they exist, I hope that he will not think that I was proposing that they should be utilised for this painting.
The Chairman of Committees: My Lords, I can reassure the noble Lord on that point. I did not take his words to indicate anything of that kind.
With those explanations, I hope that your Lordships will feel that we can proceed with the report of the Offices Committee. I commend it to the House.
On Question, Motion agreed to.

Finance Bill
3.24 p.m.
Brought from the Commons endorsed with the certificate of the Speaker that the Bill is a Money Bill within the meaning of the Parliament Act 1911; read a first time, and to be printed.

Marriage Ceremony (Prescribed Words) Bill
Brought from the Commons; read a first time, and to be printed.
Trading Schemes Bill
Brought from the Commons; read a first time, and to be printed.
Dangerous Dogs (Amendment) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Chemical Weapons Bill
3.26 p.m.
Read a third time.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, I beg to move, That the Bill do now pass.

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Perhaps I may briefly thank those noble Lords who have taken part on the Bill as it has passed through your Lordships' House. I also thank the opposition parties for the full and constructive support they gave to this important measure which marks a major step forward in freeing the world from the menace of chemical weapons. It has been the Government's aim that the UK should be among the founding state parties to the convention. For the UK to be among the first 65 states to ratify—at present there are some 49—will preserve British influence both in the preparatory commission and in the organisation for the prohibition of chemical weapons which will come into being upon entry into force of the convention. It will also secure British people in post there.
The Bill's passage will ensure that the UK continues to take a leading role in the development of the Chemical Weapons Convention. I can assure your Lordships that we shall not hesitate to use our influence to ensure that the convention's ban on chemical weapons operates effectively. Apart from my thanks to those noble Lords who participated in our brief exchanges on these matters, I thank also the Royal Society of Chemistry for its thorough and thoughtful briefing. I beg to move.
Moved, That the Bill do now pass.—(Lord Fraser of Carmyllie.)
3.28 p.m.
Lord Peston: My Lords, perhaps I may first apologise to your Lordships, and to the Minister, for not being in my place when the business on the Bill started. The previous business ended slightly earlier than one was anticipating.
This is an important piece of legislation. I am delighted that it will soon be enacted into law. We have dealt with it as best we can, although I must say that I was disappointed that a Bill of this importance attracted little interest from your Lordships.
The Minister did an excellent job, and I did the best I could in the circumstances, as did the noble Lord, Lord Redesdale. Most other Members of your Lordships' House, despite what many of us believe is a tremendously important move by Her Majesty's Government, did not feel that it was worth their while taking part. So much for that.
Perhaps I may make one or two points before coming to my final remarks. We discussed the issue of an advisory mechanism. Although in connection with that and one or two other matters the Government felt unable to accept my amendments, they made a number of pledges. One was that advice would be taken without delay and would be taken seriously. I hope that will be the case and that the non-statutory advisory mechanism will start soon. I intend to find ways within your Lordships' procedures to check on that matter because it is important.
Similarly, what will be an extremely important Act will involve various licensing arrangements. The Government promised to publish documentation on the proposed appeals process but as yet I am unaware of its publication. I hope that the Minister will ensure that it
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will be published soon. The researcher who is denied a licence or who has his licence varied will be most anxious about the matter and will wish to be in a position to appeal. I have also pointed out that many people who will be affected by the Bill—notably the academic community engaged in chemical research—appear to know nothing about its existence. The Minister promised that he would do what he could to publicise the Bill and I know that once he has made a promise, he will ensure that it is fulfilled.
The Bill is a start; but we are discussing a world-wide issue and we cannot act alone. We have taken a leading part, and I know that we shall do so again, in making chemical weapons a thing of the past—that is, so far as is humanly possible. Your Lordships will be aware that biological weapons are another of the more noxious things in the world. I look forward to a biological weapons convention, too.
I repeat my congratulations and thanks to the Minister and I join him in thanking the Royal Society of Chemistry. Mr. Stephen Benn was immensely helpful to me. It was obvious that in so far as I had anything useful to say he was one of my main sources. I wish to place on record my thanks to the Royal Society of Chemistry and to Mr. Benn. I also thank Mr. Julian Perry-Robinson of the Science Policy Research Unit, who has been most helpful. The unit is an example of an effective research body playing a useful role in helping those of us who sit on the Opposition Benches who do not have the vast resources of a government department. Such bodies give us the kind of back-up which enables us to make sense of such legislation.
I support the Bill, as I have throughout its passage. I hope that it succeeds and I hope that our successors will not live in a world in which the use of chemical weapons is acceptable in any kind of conflict.
3.30 p.m.
Lord Redesdale: My Lords, I echo the sentiments put forward by the noble Lord, Lord Peston, in thanking the Minister for his adroit handling of the Bill, and in particular for the assurances that he gave on Report about the function of the advisory body. I hope that the Minister will take adequate advice.
As the noble Lord, Lord Peston, pointed out, a large number of institutions—mostly the universities and the smaller institutions—will discover that the Bill has financial implications. They must be sorted out at a later date and I am sure that such issues will be raised in this House again. It would be wrong if that were not the case because the Bill is supported by everyone and it certainly has our blessing.
Lord Chalfont: My Lords, I have not taken part in the proceedings of the Bill in this House. However, one of the reasons why few people took part and why the Bill has not received from outside the attention that it should have received is that there was a misunderstanding about its general scope and purpose. That was due in part to its departmental sponsorship—the origins of the Chemical Weapons Convention are in the Foreign and Commonwealth

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Office—and in part because some of the briefing concentrated on academic and non-military aspects of the impact of the convention.
However, as one who with the late Lord Mulley was in at the birth of the Chemical Weapons Convention more than 30 years ago, it is a great pleasure to see the convention come in this form to your Lordships' House. The legislation is of enormous importance and significance. As the noble Lord, Lord Peston, said, chemical, biological and microbiological weapons are among the most horrifying engines of war ever to be invented.
In commenting on the noble Lord's wish that we should see the end of such weapons, I point out that one of the great problems which faces us is their proliferation. The fact that Her Majesty's Government are taking a leading part in this way underlines their commitment to the cause of limiting the proliferation of all weapons of mass destruction and the means of delivering them. I therefore conclude my one and only brief contribution to the proceedings and congratulate Her Majesty's Government on taking a leading role in the matter.
On Question, Bill passed.

Arbitration Bill [H.L.]
3.36 p.m.
Lord Fraser of Carmyllie: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Arbitration Bill, have consented to place their prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.
Bill read a third time.
Clause 85 [Modification of Part 1 in relation to domestic arbitration agreement]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 1:
Page 34, line 1, leave out from ("(2)") to end of line 2 and insert (""arbitration agreement" and "seat of the arbitration" have the same meaning as in Part I (see sections 3, 5(1) and 6).").
The noble and learned Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 11 and 12. They are small, tidying-up amendments. The purpose of Clause 101 is to bring into Part II of the Bill the definition of certain terms which are used in Part I. It is largely redundant as the linkage is either already made in the text of Part II or a separate definition is provided. The clause can be omitted but it is necessary to make the linkage between Parts I and II for those terms which are not already covered. That is achieved by the amendments. I beg to move.
On Question, amendment agreed to.
Clause 88 [Power to repeal or amend sections 85 to 87]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 2:
Page 34, line 33, leave out subsection (2).
The noble and learned Lord said: In moving Amendment No. 2, I shall speak to the remaining amendments on the Marshalled List. I regret that having done so, I must take a moment or two longer to explain what we are doing. I indicated on Report that I would be bringing forward at Third Reading an amendment to Clauses 89 to 93, which provide for consumer arbitration agreements. The revised text is covered by Amendments Nos. 3, 4 and 5. Amendment No. 2 is paving in nature and the other amendments are consequential.
We decided at a late stage in the preparation of the Bill that it would benefit from the inclusion of provisions relating to consumer arbitration agreements. The Bill is more comprehensive as a result, and I have no doubt that we made the right decision. On reflection though, and in the light particularly of the comments made by my noble friend Lord Hacking, I believe that there is room for improvement in the way that the issue is treated in the Bill.
I wish to make it clear from the outset that, in proposing these changes, the protection which consumers enjoy under current legislation on consumer arbitration agreements is not intended to be watered down. Indeed, the reverse is the case; the rights of the consumer are strengthened in certain respects.
Noble Lords will be aware that the Bill as drafted restates for England and Wales and Northern Ireland the provisions of the Consumer Arbitration Agreements Act 1988. On reflection I now believe that, with two limited changes, it would be possible to rely on the Unfair Terms in Consumer Contracts Regulations 1994. That implements EC Council Directive 93/13 EEC on unfair terms in consumer contracts. Paragraph 1(q) of Schedule 3 to the regulations refers specifically to:
"excluding…the consumer's right to take legal action…by requiring [him] to take disputes exclusively to arbitration".
There are several advantages in that approach. It will remove the link with the definition of domestic arbitration agreement in Clause 85 of the Bill. The effect of that definition is that consumers in other member states do not have the same protection as UK nationals and, as my noble friend Lord Hacking has commented, this distinction raises questions in terms of EC law. Whatever the position on that, the difference is in any case undesirable. The Unfair Terms in Consumer Contracts Regulations, based as they are on a European Community Directive, accord the same rights to consumers throughout the European Economic Area.
Secondly, it remedies the unsatisfactory situation where we have two pieces of overlapping legislation—the Unfair Terms in Consumer Contracts Regulations 1994 and the Consumer Arbitration Agreements Act 1988. In the treatment of arbitration the two pieces of legislation overlap but are at the same time marginally but significantly different in certain key respects. This could

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be confusing for consumers and their advisers. Consumers need a clear and simple statement of their rights which they can access with the minimum of difficulty. The amendments before your Lordships focus on the 1994 regulations. At the same time we have strengthened the rights of consumers by incorporating the best features of the 1988 Act, which can therefore be repealed. This approach enables us to make a contribution to achieving clarity and simplicity in legislation which is an important feature of our work on deregulation. At the same time we are shortening the Bill by two clauses. I am pleased to be able to deal with this example of what I believe is called "double-banking".
Your Lordships will see that we intend to make all consumer arbitration agreements non-binding where the claim does not exceed a certain level. In the 1994 regulations terms in consumer arbitration agreements have to be shown to be unfair before the consumer is not bound by them. We have decided not to include a specific limit on the face of the Bill in the interests of flexibility. It will be seen that we have included an order-making power for this purpose. The intention for England and Wales and Northern Ireland is to follow but not to be bound by the limits set for small claims court based arbitration. Claims above the level set will of course be covered by the provisions of the 1994 regulations, so that if shown to be unfair will not be binding. I have also widened the definition of "consumer" slightly to keep it in line with the 1988 Act.
Noble Lords will wish to be aware that nothing in these provisions affects statutory arrangements for small claims arbitration; for example, in relation to England and Wales, the rules under Section 64 of the County Courts Act 1984. The effect of avoiding a term requiring the consumer to go to arbitration may be that his claim will be subject to such procedures but, although they have the same name, they are of course different in a number of respects. It is the case also of course that statutory arrangements incorporate certain safeguards.
I propose that these provisions of the Bill should apply to Scotland as well as to England and Wales and Northern Ireland. Your Lordships will be aware that Scotland has its own arbitration law and the rest of the Bill applies only to England and Wales and Northern Ireland. However, the Unfair Terms in Consumer Contracts Regulations apply throughout the United Kingdom and there is distinct merit in having common provisions for consumer arbitration agreements in this Bill. Otherwise there might be a risk of re-introducing confusion into an otherwise clear and straightforward system.
I apologise for taking a few moments to spell that out, but it is a complicated area and I believe that I should give an explanation of what the changes entail. I beg to move.
3.45 p.m.
Lord Hacking: My Lords, I thank the Minister for moving these amendments on two grounds. First, he has shortened the Arbitration Bill by two clauses. It is regrettable that he could not shorten it further but we are very grateful to him for that. Secondly, I am grateful
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to the Minister for meeting some of my anxieties in relation to the issue of domestic and international arbitration. My noble friend knows—and I shall return to it when we debate the Motion that the Bill do now pass—that I wish him to go further and to abolish altogether the distinction between domestic and international arbitration.
Lord Peston: My Lords, before we accept the amendments, I wish to make certain that nothing in these provisions in any way reduces the rights or position of the consumer. I believe that he said that, in fact, they strengthen the position. In case I was not listening sufficiently carefully, will the Minister confirm that not only is it the intention to do that, but that in reality, that is what will happen?
Lord Fraser of Carmyllie: My Lords, indeed, the noble Lord did hear me correctly. We were concerned that nothing should be watered down and our conclusion is that we have strengthened the rights of the consumer in certain respects.
On Question amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 3:
After Clause 88, insert the following new clause—
APPLICATION OF UNFAIR TERMS REGULATIONS TO CONSUMER ARBITRATION AGREEMENTS
(".—(1) The following sections extend the application of the Unfair Terms in Consumer Contracts Regulations 1994 in relation to a term which constitutes an arbitration agreement.
For this purpose "arbitration agreement" means an agreement to submit to arbitration present or future disputes or differences (whether or not contractual).
(2) In those sections "the Regulations" means those regulations and includes any regulations amending or replacing those regulations.
(3) Those sections apply whatever the law applicable to the arbitration agreement.").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 4:
After Clause 88, insert the following new clause—
REGULATIONS APPLY WHERE CONSUMER IS A LEGAL PERSON
(". The Regulations apply where the consumer is a legal person as they apply where the consumer is a natural person.").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 5:
After Clause 88, insert the following new clause—
ARBITRATION AGREEMENT UNFAIR WHERE MODEST AMOUNT SOUGHT
(".—(1) A term which constitutes an arbitration agreement is unfair for the purposes of the Regulations so far as it relates to a claim for a pecuniary remedy which does not exceed the amount specified by order for the purposes of this section.
(2) Orders under this section may make different provision for different cases and for different purposes.
(3) The power to make orders under this section is exercisable—

(a) for England and Wales, by the Secretary of State with the concurrence of the Lord Chancellor,

(b) for Scotland, by the Secretary of State with the concurrence of the Lord Advocate, and

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(c) for Northern Ireland, by the Department of Economic Development for Northern Ireland with the concurrence of the Lord Chancellor.

(4) Any such order for England and Wales or Scotland shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(5) Any such order for Northern Ireland shall be a statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 and shall be subject to negative resolution, within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954.").
On Question, amendment agreed to.
Clause 89 [Consumer arbitration agreements]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 6:
Leave out Clause 89.
On Question, amendment agreed to.
Clause 90 [Restriction on enforcement of certain consumer arbitration agreements]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 7:
Leave out Clause 90.
On Question, amendment agreed to.
Clause 91 [Exclusions from section 90]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 8:
Leave out Clause 91.
On Question, amendment agreed to.
Clause 92 [Causes of action to which restriction applies]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 9:
Leave out Clause 92.
On Question, amendment agreed to.
Clause 93 [Power to exclude cases where no detriment to consumer]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 10:
Leave out Clause 93.
On Question, amendment agreed to.
Clause 98 [Specific adaptations of provisions in relation to statutory arbitrations]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 11:
Page 38, line 21, after ("dispute") insert ("or difference").
On Question, amendment agreed to.
Clause 101 [Interpretation]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 12:
Leave out Clause 101.
On Question, amendment agreed to.
Clause 110 [Extent]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 13:
Page 42, line 2, at beginning insert ("Sections (Application of unfair terms regulations to consumer arbitration agreements), (Regulations apply where consumer is a legal person) and (Arbitration agreement unfair where modest amount sought) (consumer arbitration agreements) extend to Scotland and").
On Question, amendment agreed to.
Schedule 4 [Repeals]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 14:
Page 59, column 3, leave out lines 22 to 25 and insert ("The whole Act.").
On Question, amendment agreed to.
Lord Fraser of Carmyllie: My Lords, I beg to move that the Bill do now pass. At Second Reading the noble Lord, Lord Lester, indicated that he expected the Bill would travel through the legislative process:
"speedily, free of friction, moving on oiled castors".—[Official Report, 18/1/96; col. 764.]
I am glad to say that that has proved to be the case, at least up until this point, and I would hope that its smooth passage continues.
That we have made such rapid and problem-free progress is due in no small measure to the support which noble Lords have given to the Bill at all stages. I am most grateful for that. I am particularly grateful to those noble Lords who participated in the Committee stage off the Floor of your Lordships' House and also to those who took the trouble at various stages to write to me on particular issues. As this was a technical, legal matter, it was of immense value to have advance warning of a number of the suggestions.
The noble Lord, Lord Peston, indicated on Second Reading that the debate was dominated by lawyers. He may feel that that pattern established on Second Reading continued. But I hope that he does not feel that his own contribution has gone unrecognised. I am certainly very grateful to him for the welcome support which he has given to the Bill. He did that very graciously and I am not surprised that to some extent, he was rather over-awed by the contributions of a number of very distinguished lawyers, including several practising arbitrators.
The fact that the Bill has been scrutinised carefully by a number of noble and learned Lords who bring to bear on the issues a wealth of experience of commercial litigation and arbitration gives me considerable confidence that we have got it right. Indeed, I have succeeded in doing a double this year. Not only did I secure the support of a number of noble and learned Lords on the issue of public interest immunity some weeks ago, but on this occasion also I have secured their support. That is of great value.
We have made a number of amendments to the Bill. I should like to stress the immense contribution made to the Bill by Lord Justice Saville. In thanking him, I should stress that none of the amendments that we have made has not met with his agreement and none represents major changes of policy. Most amendments were of a drafting nature and designed to improve the clarity of the Bill.

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On Second Reading, a number of your Lordships praised the Bill for its clarity. Indeed, we took the utmost care in drafting it to ensure that it would be readily comprehensible to both business and other users. I trust that that will be one of its selling points. However, with such a complex and technical subject matter, it would be surprising if there were no ways in which the text could have been refined or improved.
Finally, I believe the Bill is in fine shape. I am convinced it will do much to further the cause of arbitration in this country. Those who find themselves in the unfortunate position of needing to resolve a dispute with another party want it sorted out with a minimum of fuss and expense. At the same time, they look for fairness and finality.
The Bill provides a comprehensive framework for settling disputes and meeting those criteria. I am sure it will enhance the competitiveness of both the arbitration community, particularly by helping to attract foreign arbitrations here, and the business community at large. I invite your Lordships' House to despatch the Bill, with oiled castors attached, for consideration in another place.
Moved, That the Bill do now pass.—(Lord Fraser of Carmyllie.)
Lord Peston: My Lords, I never use anybody else's clichés, so I would like to see the Bill simply despatched with alacrity. It is a Bill of which one can be extremely supportive, and I would like to echo the remarks of the Minister, especially his remarks about Lord Justice Saville, who did what I imagine was an intellectually back breaking job in preparing the groundwork for this Bill.
My difficulty was that I did not understand anything about the subject when I started and, in so far as I believe I now do understand the subject of arbitration, it is rather late to decide that we ought to start all over again so that I can make a more positive contribution. However, in due course, having worked at it, I found the subject absolutely fascinating, and I hope that I shall find some way to use my newly acquired knowledge in your Lordships' House on some other occasion, particularly if the noble Lord, Lord Hacking, finds ways of returning us to these matters.
Although the overwhelming interest in the matter rests with the lawyers—and an extraordinarily distinguished group of lawyers joined us on these matters—the reason for the Minister's and my involvement is that we are discussing real business; we are discussing things that are economically valuable to our country. There is a lot of money to be earned by what is called the arbitration community, and the whole point of having this legislation and the reason why we are equally supportive of it is to enable that community, as the Minister said, to compete effectively and efficiently and to bring the business to this country. I, for one, want very much to see this legislation on the statute book and see no reason to delay the matter any further. I hope that the Bill does now pass.
Lord Hacking: My Lords, could I begin by expressing personal pleasure that the noble Lord, Lord Peston, has intervened in this debate. The noble Lord spoke at Second Reading; he made a very short intervention in Committee and, after his short intervention, was corrected by the noble and learned Lord, Lord Wilberforce. The noble Lord then fell into silence until now, the Third Reading. Therefore, I am very glad that he has come back, and I am glad that he has come back with the confidence of knowing something about the subject.
I would like to thank my noble and learned friend the Minister for accommodating my concern over security for costs. I was very grateful that he came forward with his own amendment on that issue. I express my gratitude over that. However, I express sorrow at not being able to persuade the Minister on the issue of costs, and express even greater sorrow—I do not see the noble Lord, Lord Byron—that I did not get support from my fellow solicitor of the Supreme Court, the noble Lord, Lord Byron, on that issue. My noble and learned friend knows of my continuing concern over this distinction between domestic and international arbitration. I will not repeat the arguments that I put to your Lordships at Second Reading and at Committee and Report, but I would ask my noble and learned friend to continue to note those arguments, particularly the argument that I put forward at Report, where I sought to show to your Lordships that nobody would be disadvantaged in the domestic market by removing altogether this distinction between domestic and international arbitration.
Therefore, I live in hope—although I regret that it was not done as a primary matter as this Bill was passing through your Lordships' House—that my noble and learned friend will revisit the subject and will do so by introducing an appropriate statutory order to remove that distinction altogether. My noble and learned friend has indicated that he hopes to do that by the end of this year. May he take polite notice from me that I intend to put down a Starred Question before the Summer Recess to find out how his consultation process is going on that issue, and I intend again, if he may take notice of this, to put down another Starred Question after the Summer Recess to find out again how his consultation process is going.
It therefore falls upon me to join with my noble and learned friend and, indeed, with the noble Lord, Lord Peston, in paying tribute to the departmental advisory committee on arbitration law to Lord Justice Saville, who again has honoured us with his presence in the Chamber this afternoon, and also, as I am sure Lord Justice Saville would wish me to do, to his two successors, the noble and learned Lords, Lord Mustill and Lord Steyn, for their contribution to the work of that committee.
It has been a long journey. I do not know if my noble friend Lord Cullen of Ashbourne remembers—he is sitting right in front of me at the moment—the debate in which he participated in this House in May 1978, when he gave a good thrust forward for arbitration law reform. I do not know if the noble and learned Lord, Lord Hailsham, remembers participating in that debate in 1978 and, indeed, I do not know if the noble and

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learned Lord, Lord Hailsham, remembers that the first book that he ever wrote was on the subject of arbitration. The book, I believe, has now gone out of print, but perhaps the noble and learned Lord could be persuaded to revisit that subject. Now, some 18 years after the debate of 1978, your Lordships have reached the point of passing the Bill. Therefore, I wish it all speed and happiness through the other place and speed and happiness onto the statute book.
Lord Donaldson of Lymington: My Lords, I should like to join in the general congratulations with great confidence, without the slightest authority, on behalf of the judicial members and ex-judicial members of this House who joined in the various stages of this Bill, and congratulate the Government on achieving this stage in the proceedings.
Lord Justice Saville, undoubtedly, has been a driving force—not the only one, but a major driving force—and I join in the tributes to him. I can assure the Minister that I shall not be putting down any Starred Questions. I am not even sure that I know how to do it.
My final word is that I believe the Bill will have a wider effect than its mere terms because of the way it has been drafted. It is beautifully drafted in terms of clarity. I may be wrong, but I believe it is the first time we have ever seen an Act or Bill with parenthetical references by way of example. I look at Clause 40: "(see Sections 32 and 45)". I regard that as enormously valuable and I hope that it will be regarded as a precedent for other Bills that come before this House. May I once again congratulate all concerned and wish the Bill well.
On Question, Bill passed, and sent to the Commons.

Deer (Amendment) (Scotland) Bill [H.L.]
3.58 p.m.
Lord Strathclyde: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Deer (Amendment) (Scotland) Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Clause 1 [Constitution, functions and membership of Deer Commission for Scotland]:
The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay)The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay) moved Amendment No. 1:
Page 1, line 16, after ("of") insert ("deer in Scotland").
The noble Earl said: My Lords, I indicated at Report that I would be tabling an amendment to Clause 1 to make a specific mention of welfare in subsection (1)(a) of the 1959 Act dealing with the general functions of the commission in response to the widespread view taken by your Lordships that that is needed. The
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amendment before the House would have the effect of ensuring that the welfare of deer is a matter which is always kept under review by the commission.
As I have made clear throughout our discussions on the subject, welfare is at the heart of the 1959 Act which, among other things, provides greater protection for the welfare of deer than is available for probably any other wild animal in Scotland. The deer commission has taken an interest in deer welfare from its inception and has conducted a number of research enquiries into deer welfare issues in conjunction with the Lasswade veterinary centre. The commission has also developed a good working relationship with bodies concerned with animal welfare, including the Scottish Society for the Prevention of Cruelty to Animals, and has, for example, recently agreed with that society to prepare guidelines on the use of enclosures for managing wild deer.
The welfare of deer is also at the heart of the Bill before your Lordships. All night shooting will henceforth be subject to authorisation and the code of practice for night shooting prepared by the commission. All driving of deer for the purpose of taking or killing them will be subject to a code of practice to be prepared by the commission. Clause 3, on the commission's advisory and research powers, now includes a specific reference to welfare as an area the commission can devote its resources to.
I have also confirmed that welfare is an integral part of sustainable management, a general function of the commission introduced by this Bill. It is an essential component of sustainability that deer as a species have a right to co-exist with humans and cannot be treated simply as human property to do with as we please. We must respect their right to live healthy lives in balance with their habitat. Indeed, the legal status of wild deer in Scots law encapsulates this fact neatly. Deer, when wild, belong to no one but themselves and can roam freely, subject only to controls when they conflict with other land uses and the rights of landowners to take or kill deer on their land.
I have also described the legal advice I have received about the possible dangers we might face if we were to introduce a new general function of welfare alongside the existing functions; in essence we risk creating a duty which might override the other general functions, and perhaps even run into real conflict with the traditional practices of sporting, shooting and population control. For that reason I have not been able to support amendments to this effect.
I have also not been prepared to introduce the word "welfare" into the balancing duty since I see welfare as a matter central to the commission's concerns and not one which should be balanced against the commission's general functions. I have therefore concluded that the most appropriate mention of welfare is to single it out as a matter to be kept under review by the commission in its general work. This will have the effect of ensuring that welfare concerns are always at the centre of the commission's work and that all issues relating to welfare can be tackled by the commission.
Moreover, the commission will be able to keep under careful review the impact on deer welfare of its own activities and where necessary adapt its policies and

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practices to take account of that impact. At the same time this stipulation will not cut across the existing general functions which the commission will be able to pursue while having regard to the welfare stipulations in the specific functions throughout the Act.
I believe that this amendment will capture the aim of those who have pressed for the inclusion of welfare in this section. I acknowledge that many Members of the House at different stages of the Bill did so. The amendment will capture that aim while ensuring that the commission is able to carry out its general functions effectively. I beg to move.
4 p.m.
Lord Pearson of Rannoch: My Lords, I thank my noble friend for these amendments and support them. They give effect to the unanimity of expression which was present at our hearings in Edinburgh and during the various stages of the Bill as your Lordships have considered it. There is perhaps one point I might put to my noble friend. He revealed that the Red Deer Commission and the Scottish Society for the Prevention of Cruelty to Animals are conducting a study to produce a code of practice for the management of deer in enclosures. My noble friend uses the word "management" in perhaps its more euphemistic sense. I think he means the culling of deer in enclosures. If that study is going on, can I suggest to my noble friend that he does what he can to encourage the Red Deer Commission and the SSPCA to consult with the Association of Deer Management Groups before they produce any code of guidance which obviously should be acceptable to all sides of the land use debate in Scotland. Having made that suggestion to my noble friend, I thank him again for his amendments and support them.
Baroness Robson of Kiddington: My Lords, I too thank the Minister for the amendment. He may remember that I was one of those who spoke in favour of the proposal. It is tremendously important that the welfare of deer will appear in Clause 1 under the functions of the deer commission. We are grateful to the Minister for introducing the amendment.
Lady Saltoun of Abernethy: My Lords, I too wish to thank the noble Earl. It is very clever of him to have come up with a solution. We have all been trying to find a way of introducing welfare into Clause 1 without any unwanted consequences. We are all grateful to him for having been the one who managed to do it.
The Earl of Lindsay: My Lords, I shall pass on the compliments paid by the noble Lady, Lady Saltoun of Abernethy, to the draftsman of the amendment. It underlines the concern that we have had throughout the different stages of the Bill. We have all agreed that welfare is vital to the management of deer in Scotland. We wished to ensure that the way that concept was introduced onto the face of the Bill would not lead in later years to a misuse of our intentions. The noble Baroness, Lady Robson of Kiddington, was, I think, the first to mention the matter at Second Reading—possibly
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the noble Lord, Lord Carmichael, did so too—hut it has been a continuing theme and I am glad that we have managed to reach a successful conclusion.
My noble friend Lord Pearson of Rannoch suggests that my reference to enclosures was perhaps somewhat euphemistic. I have heard since Report stage about the use of enclosures, described to the SSPCA, alongside the Red Deer Commission, for the treatment of warble fly and other problems that deer suffer from. My understanding is that the SSPCA was quite impressed with the way in which enclosures could be used in those circumstances. However, I take note of the points the noble Lord made. I can assure him that the SSPCA will be consulted in the drawing up of the code of practice.
Lord Pearson of Rannoch: My Lords, I think my noble friend means that the ADMG will be consulted.
The Earl of Lindsay: My Lords, I am grateful to my noble friend for that correction.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 2:
Page 1, line 17, after ("matters") insert (", including their welfare,").
The noble Earl said: My Lords, I announced at Report that I would be tabling amendments to stipulate that the proportion of the commission chosen to represent the deer management category should be chosen from among nominees of organisations representing deer managers.
Noble Lords: Amendment No. 2 has been spoken to.
The Earl of Lindsay: My Lords, I apologise to the House. I am speaking to Amendment No. 4. I spoke to Amendments Nos. 2 and 3 when I moved Amendment No. 1. Along with Amendment No. 2 therefore I also wish to move Amendment No. 3:
Page 1, line 17, leave out ("in Scotland").
The Earl of Lindsay: I beg to move the two amendments en bloc.
On Question, amendments agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 4:
Page 2, line 24, after ("and,") insert ("subject to subsection (3B)(c) below").
The noble Earl said: My Lords, I repeat my apologies to the House. My mistake must have had something to do with my being in Luxembourg last night and not getting any sleep. That means that I am not running with the normal procedures of the House as efficiently as I usually try to do.
I announced at Report that I would be tabling amendments to stipulate that the proportion of the commission chosen to represent the deer management category should be chosen from among nominees of organisations representing deer managers. The amendments before your Lordships are designed to have that effect.
The reason for the amendments is that concerns have been expressed that an unreasonable Secretary of State may decide to choose people to represent this category

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who do not have the confidence of deer managers throughout the country. To do so would be a foolish act indeed, since without that confidence the commission will not be able to do its job effectively at all. For the most part the commission will not be able to act without the agreement and active co-operation of those who manage deer throughout Scotland. Nevertheless I recognise the validity of the point being made and have therefore decided that the best way to tackle the concern would be to ensure that such persons are chosen from among the nominees of the organisations which represent deer managers.
It may be helpful if I explain that the phrasing of the amendment is designed to ensure that organisations which represent those with a primary interest in the management of deer are asked to provide such nominations. That clearly means that the deer management groups, presumably represented through the association, would be consulted.
Since we have defined deer management to include the sporting interest in deer, the representative bodies involved in that side of deer management will be included. We have not been able to stipulate the names of such organisations in the Bill because such bodies are non-statutory. But the intention and effect are clear.
The amendments will have no impact on the way the rest of the commission is chosen nor on the general principle I have elucidated from the start of our deliberations that the commission must be a balanced body which has the confidence of all those affected by deer throughout Scotland. The reason for including special rules in respect of the deer managers' category is because of the central role deer play in their land use practices, which is not generally true for the other categories. Nevertheless, the Secretary of State will be obliged to consult relevant bodies from all possible sectors before selecting members of the commission and will have the results of the consultation before him when decisions are made.
I am confident that the appointment provisions as now amended will provide a more flexible basis for choosing the best available candidates to serve on the commission in future while maintaining and, it is hoped, developing the level of confidence that exists throughout the country in the commission and its works. I beg to move.
Lord Glenarthur: My Lords, my noble friend Lord Lindsay has recognised that the composition of the commission was one of the key areas, if not the key area, which concerned a number of noble Lords as the Bill has been debated in your Lordships' House, and the key to the success of the commission in the future, and of all that the Bill contains.
The amendment that he puts forward today meets as many of the anxieties that I can think of within the bounds of practicality. For my part I am extremely grateful to the Minister for his efforts in bringing the amendment forward.
Lord Carmichael of Kelvingrove: My Lords, I, too, thank the Minister for delineating specific groups that he will consult. I hope that the commission does not
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become too cosy, and that people in Scotland other than those who have a definite connection with deer and the forest will have an opportunity to be on the commission.
I am sure that the Minister will remember the plea made by me and by the noble Earl, Lord Mar and Kellie, for some public representation. We referred to people from outside bodies. We suggested that CoSLA, the Crofters' Commission or some such body might be included. The amendment makes it possible to include a wider range than might be considered ideal by those who are concerned only with the estates.
4.15 p.m.
Lord Pearson of Rannoch: My Lords, again I am very grateful to the Minister for the amendments that he has tabled and for the way that he has introduced them. I speak to Amendment No. 9 tabled in my name. Its purpose is to clarify that the one-third of the new commission which the Secretary of State must appoint from nominees of organisations representing deer managers must be put forward by organisations which have deer management as their primary purpose. This may already be within the legal drafting. If it is, I apologise for taking two minutes of your Lordships' time.
The point I am trying to make is that, although I have been a life member of the Royal Society for the Protection of Birds for many years and have a high regard for that organisation (except perhaps when some of its investigations are a little too zealous), I would not expect the RSPB to be among the nominating organisations in this part of the Bill. The RSPB manages deer on several of its reserves, perhaps most notably Abernethy, but deer management is not its principal purpose. The National Trust for Scotland would be in the same category, I suppose, although one should exonerate it from any charge of over-zealous investigation.
The amendment has been tabled to confirm on the face of the Bill what the Minister said on 21st March at col. 1424 of the Official Report at Report stage. He said:
"The aim behind the proposed amendment at Third Reading is that the Association of Deer Management Groups will be the nominating organisation".
My noble friend then wisely went on to say that life is never as simple as that, especially when legal drafting enters upon the scene. Of course, we all accept that.
Apart from the Association of Deer Management Groups, there are other organisations which have as their primary purpose the management of deer. The British Deer Society springs most obviously to mind, as does the British Field Sports Society. The Scottish Landowners' Federation might also be a candidate, especially when it is representing Highland landowners. But I am afraid that it does also busy itself with advice on things like sheep and the unfortunate grants which go with them. Therefore I am not sure that the SLF maintains quite the pristine purity of deer management which my amendment seeks.
I certainly would not expect to see the deer farmers brought within this clause because I should have thought that they would have come under the agricultural provisions of the clause. My expectation, especially

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after what my noble friend said when introducing his amendments, is that it is in effect the ADMG which will he consulted. It can then consult the BDS, the BFSS, the SLF and such other bodies as may appear relevant.
The Earl of Woolton: My Lords, I should like to support all the amendments relating to membership of the new commission put forward by the Minister. At Report stage I was still not convinced that the correct balance had been found for the various interest groups; there were concerns still being expressed by those organisations representing deer managers about their future representation. These new amendments seek to address those concerns and they remove much of the ambiguity surrounding the issue.
Specifying that one-third of the commission should be nominated by the organisations representing the interests of deer managers should give reassurance to those with the task of implementing deer management on the ground that their interests and opinions will be given proper consideration and hearing. Provided that the Association of Deer Management Groups is one of the nominating organisations—I am pleased that the Minister has confirmed that—I believe that the new commission now has the correct balance of interests while at the same time retaining necessary flexibility and should therefore command the widest possible support from all organisations with an interest in the management and welfare of Scotland's deer.
I welcome the amendments and congratulate my noble friend the Minister on the positive and helpful way that he has handled this sensitive issue.
Lord Taylor of Gryfe: My Lords, I regret that it was not possible for me to attend at Edinburgh, where I gather that there were fruitful discussions on this and other matters. I commend the proceedings at Edinburgh.
I may be out of order in making this comment as regards representation on the Deer Commission. I have heard noble Lords putting down their marker regarding their respective interests and organisations. As noble Lords will appreciate, as chairman of the Forestry Commission I spent a fair amount of time covering the largest estate in Scotland—indeed, in the United Kingdom. The commission was made up of a variety of interests, not unlike the body now under discussion.
One of the areas specifically referred to in the Act governing the Forestry Commission was the representation of those who had experience in labour relations in countryside affairs. Those various worthy organisations which have been mentioned this afternoon inevitably have experience in that regard, but there is merit in having some of the operators in the field of land management and deer conservation with some voice as regards policy. That could be extremely helpful. The point is not introduced in a confrontational sense, but as regards having the co-operation of the labour force which will be operating this piece of legislation.
Lord Mackie of Benshie: My Lords, I am afraid that I shall be introducing a slightly contentious note. It appears to me that the Minister has gone too far. I should like his assurance that he will go no further. In
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my view, he cannot possibly accept Amendment No. 9 proposed by his noble friend Lord Pearson of Rannoch. His noble friend specified the trouble with the amendment when he said that he wanted to exclude organisations which took a contrary view to his way of thinking from the one-third of the commission to be appointed. I hope that the amendments which the Minister has put down to appease his noble friends will leave the Secretary of State in control of those appointed. As I understand it, the reason for giving the Secretary of State the power to pick members, as against their nomination by those bodies, was that the system had not been working. I hope that the Minister can give us an assurance that that is so and that a body like the Royal Society for the Protection of Birds would be eligible. I have heard its handling of deer on Abernethy praised by experts in the field. The society handles many deer forests and I hope that it would be considered as having the expertise necessary to be appointed in this case. The Scottish Landowners' Federation should also be one of the bodies eligible that has experience in the handling of deer.
Can the Minister tell us how many organisations will be consulted? He said that they were not statutory bodies and could not be named on the face of the Bill. It would be useful if the Minister could tell us which ones are concerned. At the moment I view the amendments with fear and displeasure. I thought that the provisions were right to start with in the Bill but I wait to hear what the Minister has to say.
Lady Saltoun of Abernethy: My Lords, surely an organisation such as the RSPB would be covered under subsection (3)(3A)(a)(iv), "the natural heritage".
The Earl of Lindsay: My Lords, perhaps I may address first Amendment No. 9 proposed by my noble friend Lord Pearson of Rannoch. Then I shall pick up on the comments made by other noble Lords on the group of government amendments. Referring to my noble friend's amendments, the effect of the amendments I have moved is to ensure that it is from nominees of bone fide organisations representing the interests of deer managers that the Secretary of State will select the members of the commission whom he chooses to represent that category. Organisations which do not represent the interests of deer managers as their primary purpose will fall into other categories. The crucial word is "represent". My noble friend is quite right to compliment the RSPB on its record of working with deer and deer management at Abernethy. Other noble Lords have also pointed out its commendable record.
However, as an organisation, the RSPB does not have objectives which represent deer and deer management. Its objectives are devoted primarily to ornithological subjects and the organisation would not fall within this category, it would come into other categories. I hope to reassure the noble Lord, Lord Mackie, that the RSPB is an obvious organisation which will be consulted and it may provide from within its own ranks a commissioner because of its experience with the natural environment and how it impacts on deer management.

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I draw the attention of noble Lords to Clause 1(3)(3B) which states:
"Before making an appointment under subsection (3A) above, the Secretary of State shall … afford to such persons or organisations as he thinks fit an opportunity to suggest the name of any person who would in their view be an appropriate person".
The persons so appointed, in other words under the subsection on the natural heritage, will be expected under subsection (3)(3A):
"to have knowledge or experience of one or more of the following matters … in so far as that matter may be affected by the Commission's exercise of their functions".
I make that point because the experience of the RSPB with deer management, as it impacts on the expertise that the organisation has of regenerating forestry or ornithological matters, makes it eligible for the Clause 1 nomination.
My noble friend was quite right, the ADMG is an obvious candidate for nominating persons for the deer management section of the commission, a minimum of one-third deer managers. However, because it is a non-statutory body it cannot be named on the face of the Bill. I can reassure my noble friend that as regards deer farmers, under Clause 10 farmed deer are, for most practical purposes, excluded from the scope of the 1959 Act. The term "deer management" therefore applies to the management of wild deer and not farmed deer.
I am grateful for the support from the noble Lady, Lady Saltoun, and my noble friends Lord Glenarthur and Lord Woolton for the Government's amendments. I say to the noble Lords, Lord Carmichael and Lord Mackie of Benshie, that we do not seek a cosy relationship, through the provisions, with certain interests involved in deer management nor do we seek in any way to unbalance the commission. The primary purpose is to inspire confidence in those people whose primary duty is to manage deer. They have deer management at the heart of their activities and all the related activities. Therefore, it is vital, because of the importance that the Deer Commission places on the voluntary principle and voluntary agreement, that it has the confidence of deer managers.
The amendment is proposed in response to many observations and comments made at all stages of the Bill. It is designed to encapsulate our intentions for that section of the Deer Commission that represents deer managers. The word "appeasement" is totally irrelevant in that context. We intend the deer management section to represent the activities with which the Association of Deer Management Groups is involved.
Lord Mackie of Benshie: My Lords, perhaps I may ask the Minister a question. Can he assure us that there are enough groups concerned with deer management to give the Secretary of State a choice from among the nominees they propose?
The Earl of Lindsay: My Lords, my noble friend Lord Pearson of Rannoch named three groups to begin with, and the Association of Deer Management Groups is exactly that—an association of many groups of people who manage deer. There is no shortage of avenues for
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nominees. The overlap between the British Deer Society, the British Field Sports Society and the Association of Deer Management Groups will ensure that both cohesion and a width of field will be available to any Secretary of State.
I must also reassure the noble Lord, Lord Carmichael, that crofters are already guaranteed representation on the Deer Commission. I say to the noble Lord, Lord Taylor of Gryfe, that we see forestry as being a critical interest which must be properly represented on the Deer Commission. I am glad that he reminded the House of his illustrious career with the Forestry Commission. He was a chairman who is still remembered at Forestry Commission headquarters. He rightly points out that the Forestry Commission is a huge landowner; it still owns over 1 million hectares, despite the erroneous fears of some Members opposite who feel that the modest sales of about 1 per cent. of the holding per annum for the sake of rationalisation is, for some reason, privatisation by the back door. It will take 100 years to achieve that if that is the theory held by noble Lords opposite.
The Forestry Commission is an organisation that any Secretary of State would want to consult before appointing commissioners who could represent the forestry interests on the commission. Indeed, someone within the ranks of public or private sector forestry might be suitable to be a commissioner.
On the matter of labour, I can reassure the noble Lord, Lord Taylor, that it is open to nominating bodies and bodies that are consulted to put forward names which they think are fit for consideration by the Secretary of State. So if, for instance, a stalker was put forward by one of the nominating groups from the deer management section, it would be for the Secretary of State to judge the eligibility of that potential member against others.
I hope I have answered most of the points raised. The crucial point expressed by those who doubted the need for this amendment is that we are determined that the commission should retain a balance and also that it should retain the confidence of those who spend most of their time and their focus on deer management at ground level.
On Question, amendment agreed to.
4.30 p.m.
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 5 to 7:
Page 2, line 29, leave out ("persons or").
Page 2, line 29, leave out ("he thinks fit") and insert ("appear to him to represent the interests of persons concerned with the matters mentioned in subsection (3A)(a) above").
Page 2, leave out line 32.
On Question, amendments agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 8:
Page 2, line 33, at end insert ("; and
(c) where names have been suggested by organisations representing the interests of deer managers, select the one third of the Commission referred to in subsection (3A) above from among those names.".").
The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 4. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker (Baroness Serota): My Lords, in calling Amendment No. 9, as an amendment to Amendment No. 8, I point out to the House that "Line 2" should read "Line 3". There is a misprint in the Marshalled List.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved, as an amendment to Amendment No. 8, Amendment No. 9:
Line 3, leave out ("representing") and insert ("which appear to the Secretary of State to have as their principal purpose to represent").
The noble Lord said: My Lords, I am most grateful for what my noble friend had to say about his amendments and indeed about my Amendment No. 9. I think that what my noble friend said renders my amendment redundant. Before begging your Lordships' leave to withdraw it, I only have to express a certain amount of mild dismay that the noble Lord, Lord Mackie of Benshie, should have misunderstood the thrust of what I was saying. I confirm my understanding, which my noble friend the Minister confirmed, that the RSPB, which is an excellent body, will presumably be consulted under the natural heritage interest of the clause rather than under the deer management interest of the clause. I am most grateful to my noble friend for explaining the niceties of the legal drafting, in that when the word "represent" is used, we are talking about a primary aim. That was in fact the object of my particular amendment, so I beg your Lordships' leave to withdraw it.
Amendment No. 9, as an amendment to Amendment No. 8, by leave, withdrawn.
On Question, Amendment No. 8 agreed to.
Clause 4 [Emergency powers of Commission to authorise killing of deer causing damage]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 10:
Page 3, line 34, leave out from beginning to ("or") in line 35.
The noble Earl said: My Lords, I announced on Report that I would table at Third Reading amendments to Clause 4 to clarify further the exact circumstances in which the use of the emergency powers in Section 6 to control damage by deer would be used. This is in response to concerns expressed by noble Lords that the way Clause 4 was originally drafted seemed to make it possible to use the power in other than emergency circumstances.
The effect of my amendments will be to require the commission to be satisfied before using Section 6 powers that the damage in question being caused to natural heritage features on unenclosed land is due to the presence of a significantly higher deer density than is usual in all the circumstances. I have already clearly explained that the clause is designed for use in emergency circumstances only, and also added in Committee the rider that the power can be used by the commission only when no other power is adequate to deal with the situation. Nevertheless, I have thought it sensible in the circumstances to include a further
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clarification which will make it absolutely clear that the power can be used only when deer arrive in much greater numbers than is normally the case on the ground in question—in other words, they are "marauding".
For the most part, that will be obvious from the nature of the damage or danger being caused: deer are quite clearly not expected to be in a farmer's field of turnips, nor in a school playground, nor for that matter within an enclosure designed to protect some natural heritage feature. No specific qualification is needed in respect of these types of land. But deer can be an integral part of the land management pattern on unenclosed land where natural heritage features might be present. Hence the effect of my amendment will be to make it clear that the damage being caused should be an unexpected event by virtue of the arrival of a significantly higher density of deer than is usual.
As background, I should perhaps mention that the Section 6 powers were originally designed to allow the commission to authorise action to deal with damage to agricultural production when it was not possible, for whatever reason, for the occupier to take action himself on the land in question. Over the years, the power has also been adapted to allow action to be taken in this way in respect of the other forms of damage with which the Deer Commission is concerned, notably damage to woodland.
In 1982, in response to fears then about damage caused by deer which had colonised ground, the original stipulation that deer had to be "coming onto ground" to trigger the use of the power was deleted. The power has been used relatively frequently in the years since the time the commission was established and is, for example, the basis on which authorisations are currently given to shoot in the close season as part of the current voluntary control schemes being run by the commission.
The effect of the Bill, in particular the provisions for control agreements and for out-of-season authorisations to protect the natural heritage and unenclosed woodland will be to reduce considerably the need for the commission to use Section 6 powers. As a consequence, we have used the Bill to recast the various powers of the commission to ensure that they are tailored to the situation at hand and are mutually compatible.
Where special action is necessary the commission would normally look in the first instance to the occupier (or owner in certain cases) to take action themselves on their own land, either during the season or, under the powers in Section 33 of the 1959 Act. Where there are more longstanding or widespread problems, the commission would seek to use the powers available to it under Clause 5, that is to say control agreements, or in exceptional circumstances control schemes. In addition, the commission may turn to the powers to protect the natural heritage and unenclosed woodlands set out in Clause 9 of the Bill. Only in emergency situations where deer are causing unexpected serious damage or danger and no other course of action is adequate, could the last resort powers in Section 6 be invoked.
Section 6 powers are not designed as a catch-all to deal with all the kinds of damage wherever they occur. They are a last resort measure to deal with emergency

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situations when no other form of control is possible. Consequently if deer are an established and significant part of the land use pattern on the land in question, the damage being caused is unlikely to constitute an emergency. It may very well be serious and require effective action to be taken, but that is precisely what the control agreement and control scheme powers are all about. They contain in particular real safeguards for land managers which cannot be overridden without proper consideration.
It has been suggested that by singling out the natural heritage in this way, we are somehow discriminating against it as a land use worthy of protection compared with the other land uses protected by the Bill. That is not our intention; nor is it the effect of the amendment. All the amendment does is allow the terms of the power to operate in the case of the natural heritage as the power is intended to work; that is to say where deer are causing damage in such a way that emergency action deserves to be taken. Specific reference to the circumstances in which the natural heritage can be protected using these powers is needed, because the natural heritage can occur on any land, including land where deer are the primary land use, unlike the other features worthy of protection which are quite obviously land where deer are not the primary land use. I refer to agriculture and forestry.
Moreover, these amendments do not have the effect, as has been suggested by some, that the occupier or owner in question will be required to put up a fence to benefit from Section 6 protection. Where the commission is satisfied that a significantly higher density of deer are present on the land in question and are causing the damage, then Section 6 powers can be used to protect the natural heritage, just as they can for the other factors worthy of protection. I believe it important to retain the option of using emergency powers to protect the natural heritage in the last resort, wherever it occurs, and am confident that the amendments will achieve that effect.
As I stated at Report, we have not, on legal advice, incorporated the term "marauding" into the text of the Bill because of the real legal uncertainties associated with it, especially the definition of "range". The requirement that deer are present at a significantly higher density on the land in question than is usual is one that can be met by the relatively objective criteria of records of deer numbers and movements.
The phrase "all the circumstances" is designed to ensure that the commission takes into account factors such as seasonality and weather conditions as well as movement patterns in reaching its decision on this matter. I beg to move.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for his explanation, though it did not quite meet some of the objections I received from some of the other bodies in Scotland. It is just as well that the amendments have arisen now and that we have another stage in another place where more discussion can take place. Possible improvements in the wording
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may be made and matters may be cleared up to allow people to understand better than perhaps some of us are able what the full impact of the new clause is.
As a result of the introduction of the new clause, the majority of Scotland's nationally and internationally important habitats, such as peatland, heather moorland and scrub habitats, have been excluded from protection under the emergency powers available in the Bill. The role of Scottish Natural Heritage as the statutory conservation adviser in Scotland appears to be undermined.
The new clause specifically limits the application of Clause 4 to forestry, ignoring other habitats that may be seriously damaged by higher deer numbers. The Minister said—I wondered whether he would—that the issue is related to not merely the quantity of deer but also to the density. That may be obvious, but it did not appear to be the case from my understanding of the wording.
I received representations from the RSPB and the WWF. They consider that the consultation relationship between Scottish Natural Heritage and the Deer Commission should be a statutory one so that the commission seeks the advice of SNH, first, in order to satisfy itself that adverse change is being caused to the natural heritage and, secondly, for financial reasons. I shall not go into that; the Minister is aware of the grants made to SNH which could be affected if it lost a certain amount of status because of the Bill.
The new clause changes the situation dramatically in that regard. The Minister's explanation will be looked at carefully when the Bill goes to another place. For instance, as a consequence of the new clause, what role will SNH play? We all thought when the Bill was going through that it would be the fundamental body looking after the natural heritage of Scotland. What role will it now play in advising the commission on whether deer numbers are having an adverse effect on the natural heritage? Which body, other than SNH, would be the appropriate body to judge serious damage? The Minister mentioned the Forestry Commission. If that is suggested as an alternative body, what will be the appropriate body to decide that serious damage is being caused to natural habitats such as peatlands or montane features?
A number of issues are raised in the new clause. While its intentions are good, one of the reasons that a second Chamber is important is that the Bill will go back to the other place after all the discussions that have taken place here. I hope that the other place looks at it and we end up with something that at least I can understand.
Lord Pearson of Rannoch: My Lords, I rise to support the amendments of my noble friend on the Front Bench. Though it is with a tinge of regret that I see the word "marauding" disappear even from the rubric of the Bill, I confess that once again his drafting is good and meets the majority of opinion advanced so far in our deliberations on the Bill.
It may not be my place to answer the noble Lord, Lord Carmichael of Kelvingrove, but can I say to him that the Bill does not exclude damage done by deer to

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sites of special scientific interest, peatlands or whatever; all it does is ensure that if enhancement of the natural heritage is to take place, then that must take place with the consent and agreement of the occupier and owner in question, possibly through a management agreement.
The difficulty in the past has been how to define the natural heritage, which is the new feature of the Bill. It is easy enough to define agricultural production, crops, foodstuffs and so forth. But the amendment meets all the difficulties raised. Where the natural heritage is on enclosed land, Section 6 can still apply and indeed it can also apply on unenclosed land provided a significantly higher proportion of deer than is usual is present and is doing the damage.
I believe that my noble friend has met the main body of opinion advanced during our deliberations. I am grateful to him and feel sure that the amendments will do much to ensure the harmony which we all hope the Bill will introduce into the land in question. I support the amendments.
4.45 p.m.
Lord Taylor of Gryfe: My Lords, I agree with the noble Lord, Lord Pearson of Rannoch. I should have thought that the anxieties of my noble friend Lord Carmichael were covered by the effect of natural heritage in relation to SSSIs. I presume that any operation of the Deer Commission will need to take account of areas of land which are covered by SSSI provisions.
The Earl of Lindsay: My Lords, the advisers to the noble Lord, Lord Carmichael, would do well to read what I said in Hansard. In fact, I could almost have moved the amendment by saying "This is a clarifying amendment". Not one piece of policy has changed with the amendment. All that has happened is that I have taken the assurances given from the Dispatch Box at every stage of the Bill in relation to Clause 4 and turned them into wording on the face of the Bill. We are therefore clarifying the situation.
The noble Lord, Lord Carmichael, said that the intention behind the amendment was good. We have taken that good intention and put it into unambiguous language. I thank my noble friend Lord Pearson of Rannoch for saying that the drafting meets that intention. Once again, that compliment will be passed on to the draftsman involved.
SNH is obviously a vital element in the management of the natural environment of the natural heritage in Scotland. Unavoidably it will be concerned with deer management generally and with advising at various instances on the activities of the Deer Commission. SNH is the statutory adviser to the Secretary of State on the natural heritage in Scotland. It is also a public body, so there will inevitably be a close liaison between SNH and the Deer Commission.
We decided deliberately not to make SNH the statutory adviser to the commission. There will be matters concerned with the natural heritage where the Deer Commission wants to seek advice from other quarters. It may be that the Forestry Commission and
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many other bodies are the right people to advise the Deer Commission on some elements of the natural heritage. We did not feel that the Deer Commission should be obliged in every instance to seek advice from that quarter. But the link will be close. I shall be grateful if the noble Lord can assure those who addressed their concerns to him on this point that the link will be close.
The grant-giving abilities of SNH are obviously important, especially if enhancement of the natural heritage is sought through voluntary agreements. It may well be that SNH is involved both as an adviser and as a grant-giving body in the drawing up of a voluntary agreement between the deer commissioner and the deer manager.
The definition of "serious damage" which the noble Lord mentioned will be sought depending on the circumstances of the case. I would not be surprised if SNH often provides advice on the definition of serious damage, but there will be other instances where other arbiters or advisers will be drawn in. At the end of the day it is up to the commissioners on the Deer Commission to make a sound judgment, balancing the advice they have had from experts and their other expertise and duties.
The central assurance that I have sought to give on Clause 4 at all stages of the Bill is that we are dealing with marauding deer which cannot sensibly be defined on the face of the Bill but can be described in, as it were, longer hand by saying that they are deer that are not being effectively controlled and that they are not normally established on the ground in question. The amendments that we have brought forward over the course of the Bill ensure that there is a tighter definition of what Clause 4 is intended to deliver. We have also stressed that Clause 4 powers can be triggered only in a genuine emergency—in other words, if the other powers available to the commission are not adequate or have not been able to deal with the situation. I believe that the concerns usefully raised throughout the proceedings on the Bill have led to a wise clarification of Clause 4 and I hope that noble Lords will accept it.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 11:
After Clause 4, insert the following new clause—
PREVENTION OF DAMAGE TO NATURAL HERITAGE
(". After section 6 of the principal Act there shall be inserted the following sectionߞ
"Application of section 6 in relation to natural heritage.
6AA. Section 6 of this Act shall apply in relation to the natural heritage as it applies to woodland, where the Commission are satisfied that deer are causing serious damage to the natural heritage—

(a) on enclosed land; or

(b) on unenclosed land, but only if the Commission are also satisfied that the damage is being caused by reason of the presence on the land in question of a significantly higher density of deer population than is usual in all the circumstances.".").

On Question, amendment agreed to.
Clause 9 [Authorisation by Commission of certain acts]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 12:
Page 8, line 43, at end insert ("and "vehicle" does not include any aircraft or hovercraft").
The noble Earl said: My Lords, anxiety has been expressed in the House over the use of helicopters to drive deer to take or kill them for deer management purposes. As the 1959 Acts stands at present, it is not an offence to use vehicles to move deer. It is only an offence to make such use of a vehicle with the intention to take or kill deer on unenclosed land.
It is our clear intention that all uses of vehicles to drive deer to take or kill them should require authorisation by the commission and be subject to the code of practice to be prepared by the commission. The Bill makes it clear that this requirement will apply to wild deer on all land.
In the light of comments during the passage of the Bill I have given considerable thought as to whether helicopters in particular should be permissible for such operations. I have discussed the matter with the chairman of the Deer Commission and believe that, if used with due sensitivity to the welfare of the deer, helicopters could be used in some circumstances without raising undue concerns. However, the continuing concern expressed at every stage of the Bill on this matter has tempted me to revisit this clause and to table the amendment now before the House. I am proposing that aircraft and hovercraft should be omitted from the range of vehicles which can be used for this type of work. I hope this addresses the contributions of noble Lords from the committee in Edinburgh onwards. I beg to move.
Lord Carmichael of Kelvingrove: My Lords, the House will be grateful to the Minister for omitting hovercraft and helicopters from the Bill. The matter was raised right at the beginning of our proceedings. There was a feeling that there could he horror stories in the popular press about helicopters chasing poor little deer over the Highlands. In Committee we heard some interesting information about the use of helicopters in New Zealand. The noble Lord, Lord Glenarthur, who is an authority on the subject of helicopters, made a considerable contribution to this part of the Bill. All in all the Bill without the helicopters will be given a better reception than it otherwise would receive. Certainly in the other place the issue would have raised very many doubts.
Lady Saltoun of Abernethy: My Lords, I am very grateful to the noble Earl for this amendment. Perhaps I may say a brief word about Amendment No. 17. When I first looked at Amendment No. 12 I thought that it was splendid. Then I suddenly asked myself why helicopters had been taken out of Clause 9 while the definition was left under Clause 11. I regret to tell the House that very unworthy dark suspicions entered into my mind and I became seriously worried lest there was some nefarious plot behind leaving the definition in Clause 11. I consulted the noble Lord, Lord Pearson of Rannoch. That is why I put down my amendment and it is
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probably why he put down his amendment. Perhaps when the Minister comes to wind up he will comment on what I have just said.
Lord Mackie of Benshie: My Lords, this will be a good amendment if it allays suspicion. As I understand it, it means that one must not move a hovercraft or a helicopter in an operation to take or kill deer. However, rich noble Lords like the noble Lord, Lord Pearson of Rannoch, could have a helicopter and a hovercraft on their estate for the normal work of the estate, but they must not use it to take or kill deer. Is that what the amendment means?
Lord Pearson of Rannoch: My Lords, I regret to say that once again the noble Lord, Lord Mackie, has misunderstood my position, if not my words. As to the amendments themselves, I have to join the noble Lady, Lady Saltoun, in confessing that Amendment No. 16 was tabled with the idea of being a backstop in case anything my noble friend on the Front Bench had to say about his Amendment No. 12 had not been sufficient to remove any doubts that remained in our minds and, indeed, helicopters from the use to which we feared they might have been put. I support the government amendment and will not be moving mine when the time comes.
The Earl of Lindsay: My Lords, I shall make a brief comment because the purpose of the government amendments and therefore the problems posed by Amendments Nos. 16 and 17 have become clear. I would stress to the noble Lady, Lady Saltoun, that there was no dark intent or conspiracy. However, the problems we had with Amendments Nos. 16 and 17 relate partly to the fact that if one excluded those two vehicles from the definition in Clause 10 one automatically removed much of the merit of an amendment which the noble Lady herself moved and which was accepted at an earlier stage of the Bill—namely, that it is an offence to shoot a deer from any moving vehicle and by changing the definition throughout the Bill to exclude from vehicles hovercraft and helicopters one suddenly legitimised the shooting of deer from hovercraft and helicopters. The issue is not as straightforward as it should be when one looks at the amendments that are tabled. But the intention is very simple. I hope that the House will accept the amendments.
On Question, amendment agreed to.
5 p.m.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 13:
Page 9, line 5, after ("the") insert ("owner or").
The noble Lady said: My Lords, with the leave of the House, in moving this amendment, I shall speak to Amendment No. 14. Clause 9 of the Bill introduces a new Section 33A(5) into the 1959 Act. The section allows the commission to authorise the taking and killing of deer out of season in order to prevent serious damage to unenclosed woodland, the natural heritage, or in the interests of public safety.
The section presently provides that such an authorisation may be given to the occupier or his nominee. The noble Earl indicated at Report stage that he recognised that there may be occasions where the beneficial interest in the woodland or natural heritage feature lay with the owner of the land in question rather than the occupier. He said that he was therefore prepared to allow the occupier, the owner or their respective nominees, to be authorised. These amendments achieve that purpose.
I understand that, for reasons of safety, the commission's application procedures will require the applicant to notify the owner or the occupier, as the case may be, of the intention to apply for authorisation. Since tabling these amendments, I have been shot at down the telephone by a friend who said that he is horrified about this and that it is the lazy deer manager's charter. He said that the provision will allow the lazy deer manager, who has not been bothered to shoot his quota of deer in season, to obtain an authority from the commission to shoot what he has not shot in season, out of season. I wonder whether the noble Earl will be very kind and comment on that point when he replies. Meanwhile, I hope that he can accept the amendments that I have proposed. I beg to move.
Lord Pearson of Rannoch: My Lords, I support these amendments. They seem to me to make sense of what we have been intending in this part of the Bill for some time. The noble Lady, Lady Saltoun, suggested that they might be a charter for the lazy deer manager. I suppose it is possible that for one season they might be, but I would have hoped that, with the progress that is being made all over Scotland in counting the number of deer and making sure that the right number is shot through the co-operation of the Association of Deer Management Groups, the Red Deer Commission, SNH and others, before too long the powers which the commission will have under this Bill will be brought to bear against the lazy manager in question. Therefore, I should have thought that the benefits that these amendments confer are likely to be very much greater in the medium and long term than any disadvantage from that fast-disappearing breed, the lazy deer manager.
Viscount Massereene and Ferrard: My Lords, these powers for shooting deer out of season ought to be granted only in the most dire emergency. I know that the Forestry Commission, as a matter of course, likes extending the season for culling hinds. As I said before, they should only be permitted in an emergency.
The Earl of Lindsay: My Lords, as I hinted to the noble Lady, Lady Saltoun, at earlier stages of the Bill, I am in complete agreement with the point she makes and I am very happy to accept her amendment.
These amendments will allow the commission to authorise either the owner or the occupier of the land, or their respective nominees, to take or kill deer out of season to prevent serious damage to unenclosed woodland or the natural heritage, or in the interests of public safety. There will be occasions where the
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beneficial interest lies with the owner rather than the occupier and it is reasonable that the owner should be able to initiate action in his own right.
Proposed new Section 33A(5) introduces what is, in effect, a new power to the commission. The nature of the action that may be authorised, for instance action on unenclosed land, will require careful attention by the commission as to its procedures for ensuring that adequate notification is given to those with a direct interest in the land in question.
I also stress that these are powers which are only to be used in the last resort and therefore they will not be part of a lazy deer manager's charter. Indeed, the discretion available to the commission should prevent that, even if it is unable to establish whether or not these are circumstances which justify last resort powers. In addition, I believe that my noble friend Lord Pearson of Rannoch made the point that lazy deer managers are now a very rare breed indeed.
I also share and sympathise with the anxiety expressed by my noble friend Lord Massereene and Ferrard. The sentiment that he has expressed is one that we would expect to see in the Deer Commission itself in the exercise of such authorisation. The Government are happy to support this amendment.
Lady Saltoun of Abernethy: My Lords, I am very grateful to the noble Earl for his reception of this small amendment.
On Question, amendment agreed to.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 14:
Page 9, line 6, leave out ("such an occupier") and insert ("either of them").
On Question, amendment agreed to.
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 15:
After Clause 9, insert the following new clause—
CARCASS TAGGING
("After section 25F of the principal Act there shall be inserted the following section—
"Carcass tagging.
25G.—(1) For the purpose of monitoring the quality and source of venison sold in Scotland the Secretary of State may by regulations made by order subject to an approval by resolution of both Houses of Parliament introduce a scheme to make provisions for the identification of all deer carcasses sold within Scotland ("the scheme"), as may from time to time be defined in the regulations.
(2) The scheme shall require any such carcass sold to bear a tag in a form approved and issued by the Commission and bearing an individual mark or number for each carcass, identifying the producer, the year of issue and the carcass number.
(3) It shall be a requirement of the scheme that any person requiring to sell a deer carcass shall obtain in advance from the Commission the relevant tags and shall affix them to any carcass sold in such manner as may be specified.
(4) At the expiry of the year to which any unused tag relates, the producer to whom it was issued shall return the same to the Commission.
(5) It shall be an offence for any person to sell, offer or expose for sale or to receive or to have in his possession, transport or cause to be transported for the purpose of sale on any premises any carcass not bearing a tag in such form as may be specified by the scheme.
(6) A person who is guilty of an offence under subsection (5) above shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.".").
The noble Lord said: My Lords, we come again to the suggestion that deer carcasses might be tagged in future. Most of what can be said in favour of this amendment has already been said in earlier proceedings on the Bill so I shall not weary your Lordships with repetition now. However, I confirm that the amendment merely advocates an enabling provision, subject to regulations from the Secretary of State and confirmation by Parliament. Since our proceedings on Report, support for the amendment has continued to pour in and most of it addressed to my noble friend the Minister, with copies to noble Lords who have shown an interest in the matter. So I believe that my noble friend is fully aware of the strength of feeling in favour of this proposal.
When we last debated this subject my noble friend seemed minded to set off on a process of consultation. We wish him well on any such journey, although I ask him whom he proposes to consult, who has a legitimate interest in the subject and who has not already volunteered full support for the amendment. There is now unanimous support from producers, including the Forest Authority; support from dealers and processors who handle more than 90 per cent. of the produce, and the supermarkets have also made their position clear. So I have a little difficulty in understanding who may be left to consult in the eventual consultation exercise.
However, there is perhaps one aspect of our proposal which has gained strength owing to unfortunate circumstances since we last discussed it. I refer in passing to the problem of BSE and the emphasis which such a scare gives to the need for the traceability of meat sold in the United Kingdom and elsewhere. The BSE scare might seem to be an irrelevance to the Scottish wild venison market and indeed it probably is. After all, wild venison must be about the most healthy meat that one can eat, free of all contaminants; high in protein and low in fat.
But now I must mention—again, somewhat in passing—Benbecula and the current suggestion that the inhabitants may have higher cancer rates, thanks to fallout from the Chernobyl disaster some years ago. I very much hope that Benbecula's problems may prove to have been invented or exaggerated by our ghastly media, who have bestowed on Benbecula much the same energies as they have bestowed on British beef.
One knows that much of the area of the Scottish Highlands where granite rock is exposed shows above-average radiation readings even in normal conditions. That was certainly the case after the Chernobyl disaster. Even if Chernobyl turns out not to be to blame for Benbecula—let us hope that that is so—one cannot rule out some similar disaster in future which might be shown to have a localised effect. It must surely be sensible to have a system which reveals which carcasses come from that area or at least to have the
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ability to install such a system quickly. That is what the amendment is intended to do. I very much hope that my noble friend can agree to it. I beg to move.
Viscount Mountgarret: My Lords, I apologise for the lateness with which I have involved myself in the Bill, but I have been following it with the greatest of interest since its early stages. I have done so because, apart from a short interval during the war years, my family owned or leased the same deer forest for over 50 years and I can recall very clearly that after the war when I was there much concern was expressed by many people on the question of the tagging of carcasses. When the Red Deer Commission came into being, we had many conversations with the commission during which the question of marauding deer was raised as, on every occasion, was the question of the tagging of carcasses. It was definitely felt that that was probably the best way of controlling the poaching of deer and of preventing deer that had been poached being described as "marauding deer". However, the idea never seemed to get off the ground. I have never understood why.
I should like to lend the maximum support possible to my noble friend's proposal. The question of the tagging of carcasses has raised its head yet again. Surely we should have at least an enabling provision in the Bill. I am only sorry that it is not a requirement in the Bill. However, I very much hope that my noble friend the Minister will feel able to take the amendment on board and to include such an enabling provision in the Bill.
The Earl of Woolton: My Lords, I, too, should like to support Amendment No. 15, which has been moved by my noble friend Lord Pearson, as I did on Report. Those of us who have been pressing the Government on this issue have been heartened in our attempts by the commitment of my noble friend the Minister to keep an open mind and to be willing to be persuaded by the weight of the argument.
As my noble friend Lord Pearson said, the Minister has now received further expressions of support for a mandatory scheme from organisations representing the great majority of producers, dealers and processors. Both sides of the industry are now united in a desire to see mandatory tagging introduced as a basis for participating effectively in the food industry.
On Report I raised the issue of food quality in relation to persuading the food retailers, the main customers for wild venison, that they could have confidence in the production procedures and in the quality of the meat. As my noble friend Lord Pearson said, since then the beef crisis has underlined how fragile consumer confidence can be even when existing hygiene controls are deemed satisfactory. I was interested to hear the Secretary of State for Health comment in another place during a recent beef debate that the United Kingdom is now the most highly regulated country in Europe for food production. That has been a powerful argument in giving British consumers confidence in British food products.
I believe that a mandatory tagging scheme should not be seen as compromising the Government's deregulation initiative; rather, it should be presented as

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strengthening the Government's initiatives to improve the quality of another British meat product. In the light of criticism currently being directed at the United Kingdom's public health procedures and at intensive livestock husbandry in general, the Government should be seeking to ensure that there is no possibility of substandard, poorly handled venison being sold either in this country or abroad.
I believe that the opportunity should be taken to introduce an enabling provision into the Bill to provide for a mandatory scheme once the new commission has put in place the necessary administrative details. I hope that my noble friend the Minister will agree that the arguments in favour of such a scheme have now been proved.
5.15 p.m.
Lord Nickson: My Lords, perhaps I may express the same sentiments as my noble friend Lord Woolton because I, too, have not played any part in the Committee stage or the Bill's progress to date, but I, too, have read with great interest the Minister's responses to amendments on carcass tagging. Although I have no interest to declare in relation to deer, the subject interests me greatly.
As some noble Lords may know, I have another even greater interest, salmon in Scotland—and I may be involved at some stage in legislation on that. I have had a very quick look at Clause 31 of the Salmon Act 1986 which provides an enabling provision, not too dissimilar to this, to create a dealer licensing scheme. There are about 70,000 rod-caught salmon in Scotland and about 80,000 red deer are killed there annually. I mention that only because that enabling legislation was passed by Parliament and is now on the statute book. I know that the Government have considered that provision since then although they have not found it practical or desirable to apply it. Nevertheless, that enabling legislation is on the statute book should implementing its provisions become either necessary or desirable at any stage. Therefore, I very much support the amendment because I think that such a system may well become desirable, even if introducing it may not be immediately possible now.
Viscount Massereene and Ferrard: My Lords, I, too, support the amendment for the simple reason that the honest man should have nothing to hide. Many red deer carcasses go under the counter and the more that can be done to make that as difficult as possible, the better.
Lord Mackie of Benshie: My Lords, I believe that subsection (1) of the amendment would be a useful inclusion in the Bill, but I believe that it is probably wrong to set out all the detail now. The deer groups should move not only to tag the deer, but to promote them in the sort of exercise that is now taking place in farming generally in Scotland in relation to beef, lamb and many other products. I believe that the Government should have the power, but that the detail should not be on the face of the Bill.
Lord Glenarthur: My Lords, powerful arguments were expressed behind the scenes, if not on the Floor of
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the House, in 1982 when we debated this matter. Those arguments seem to have been enormously strengthened during the past few weeks. I very much agree with all that my noble friend Lord Woolton said about confidence in the meat industry in this country. With those few words of commendation for my noble friend's amendment, I hope that my noble friend the Minister will be able to see his way to accepting some kind of enabling measure along the lines suggested by my noble friend Lord Pearson.
The Earl of Lindsay: My Lords, when moving his amendment my noble friend Lord Pearson of Rannoch said that he was not going to rehearse all the arguments that we have usefully gone over in detail at earlier stages, and in responding to the amendment, I shall not go over all the arguments that I have used previously. I accept, as I have at every stage, that there is a strong case for tagging. I accept that I want to keep an open mind on this. Indeed, my noble friend Lord Woolton reminded me that I have done that. My mind remains open on the question of whether a strong case has been made for mandatory tagging as opposed to voluntary tagging by the industry.
The principle behind the proposal, which has been accepted by the Red Deer Commission, was introduced comparatively late in the day in terms of the formulation of the Bill. The Bill was the subject of three or four years of consultation. It was only once the Bill had started its progress through your Lordships' House—at the evidence-taking session in Edinburgh—that deer tagging suddenly became an urgent issue.
I am conscious that the introduction of mandatory carcass tagging will impose burdens on the many people in Scotland who have the right to shoot and deal in deer. Questions relating to the administration and enforcement of such a scheme need to be properly thought through. Of the benefits that have been explored at earlier stages, a number of noble Lords have mentioned BSE and traceability. The noble Lord, Lord Mackie, has pointed out that in the agricultural industry there are traceability systems which are incorporated into quality assurance schemes. Despite some of the animal health problems that have been experienced, to date the traceability procedures have not been compulsory; they have been voluntarily assumed by producers in order to gain market advantage over competitors.
My noble friend Lord Mountgarret refers to poaching. Tagging deters poaching, but whether that argument alone or the various benefits that are accumulated make a strong case for mandatory tagging is yet to be discovered. We believe that the case is not absolutely proven.
My noble friend Lord Nickson, who has a very important job and special interest and expertise in salmon, has prayed in aid the Salmon Act 1986. I acknowledge the point that he makes. However, I am glad to see in the Chamber my noble friend Lord Mackay of Ardbrecknish. The contracting out and deregulation Act, which has been introduced since the Salmon Act, has changed the whole approach of government to new regulatory measures which impose

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a burden on business, however small those burdens appear to be. Quite rightly, it subjects proposals for such burdens to very careful compliance costs and cost benefit analysis. An essential part of this analysis is a properly conducted process of consultation with all potentially affected parties. That will allow all views to be taken into account.
My noble friend Lord Pearson asked who else there was left to consult. I acknowledge the flood of correspondence, bearing in mind the amount of correspondence that has come through my letter-box in the past few weeks from various organisations which support my noble friend's amendment. Given that there are hundreds of thousands of people in Scotland with the right to shoot deer, I imagine that there are still some people to consult. We wish to consult throughout the chain, from the person with the right to take or kill deer to the point of purchase for retailing on to the public. We wish to ensure that farmers and small land managers who now and then take a roe deer and drive up the road to hang it in their larder are consulted, because if there is no tag on it they will be committing an offence under the amendment as moved by my noble friend. They may do that once every year, or every 10 years, but it will still be an offence.
To reassure my noble friend, I have already alerted my officials that as soon as possible a consultation exercise will be conducted on this matter. Noble Lords in the Chamber who have been involved in creating policy will understand the process that has to be gone through, especially where new regulations are to be imposed. They will understand the need to produce a comprehensive argument with evidence across all bodies affected by such a scheme. The Deer Commission will be asked to look again at the proposals. It has commented upon them only in principle, not in detail. A contribution from that angle will be a vital part of the exercise. I renew my promise that, with sufficient evidence from consultees and various interests who will be affected, Ministers will give a positive consideration to this matter. I also flag up, as I did at Report stage, the ability to use the new fast-track procedure for Scottish legislation. My right honourable friend the Secretary of State for Scotland is anxious to seek measures that are required in Scotland which do not involve United Kingdom legislation in order that they can be used on this system. We will consult quickly and widely.
We have available the fast-track procedure for Scottish Bills, if this Bill passes through the other House and this House before the results of the consultation are known. On the basis of those assurances, I hope that my noble friend will feel able to withdraw his amendment.
Viscount Mountgarret: My Lords, I ask my noble friend why it is so easy to have consultations with the many people that he rightly wishes to consult but not to accept the amendment. If there is an enabling provision and the consultation proves fruitful, it is a simple matter to press the trigger on enabling legislation. If it is not there, one has to go through the long-winded process of
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having an amendment to the Bill. Surely it is more sensible to have the enabling provision in the Bill in the first place.
The Earl of Lindsay: My Lords, quite often this House takes a suspicious view of enabling legislation, especially when the need for such legislation has not been proven. I remind my noble friend that we now have a fast-track procedure for Scottish legislation. The size of the Bill required for the introduction of mandatory carcass tagging will be ideal for such a procedure. My noble friend Lord Pearson of Rannoch is often wary of future Secretaries of State having enabling powers which may be misused either accidentally or deliberately. I would rather present this legislation to the House at a later date, with the costs and benefits well proven and the burdens on all businesses involved thoroughly analysed, than simply introduce an enabling power for the Secretary of State without the case having been properly scrutinised.
Lord Pearson of Rannoch: My Lords, I am grateful to my noble friend. I hope he will forgive me if I take his remarks about the deregulation initiative in this country with a pinch of European salt. I remind your Lordships that at the moment there are some 1,500 regulations which pour forth annually from the Brussels monster but do not even see the light of day for debate in your Lordships' House or the other place. I gather that not one of the pieces of deregulation brought forward in this country under the auspices of my right honourable friend the Deputy Prime Minister would have changed one word of any of the articles in the Sunday Telegraph written by Mr. Christopher Booker over the past three or four years on the burdens of overregulation. I trust that my noble friend will accept what I have just said as a general comment.
I thank him for his undertaking to continue the consultancy exercise, which I understand has already been initiated. I hope those noble Lords who support the amendment will wish to keep the pressure on for the fast-track procedure if the consultancy exercise produces the result which we all feel confident it will. With that proviso, and with thanks to my noble friend, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Interpretation of the principal Act]:
[Amendment No. 16 not moved.]
Lady Saltoun of Abernethy Lady Saltoun of Abernethy had given notice of her intention to move Amendment No. 17:
Page 11, line 30, leave out ("an aircraft") and insert ("a").
The noble Lady said: My Lords, having heard the Minister's explanation of why the amendment would be totally counter-productive, I am not moving it.
[Amendment No. 17 not moved.]
An amendment (privilege) made.
5.30 p.m.
The Earl of Lindsay: My Lords, I beg to move, That the Bill do now pass.
The Bill is an important measure to amend the legislation on deer management in Scotland set out in the Deer (Scotland) Act 1959 so that this legislation can be better fitted to meet the challenges of today and the new century.
Much has changed since the 1959 Act and since the previous amendment Act in 1982, especially relating to the nature of land use in upland Scotland and the increasing importance society as a whole places on the protection of our natural heritage. The Bill before your Lordships is designed to ensure that deer can continue to thrive as an important part of our natural and cultural heritage yet in harmony with their habitat and with other land uses.
The Bill achieves that aim by making significant changes to the powers and functions of the Deer Commission, to be renamed the Deer Commission for Scotland. The commission henceforth will be responsible for furthering the sustainable management of deer in addition to its existing general functions of furthering their conservation and control. It will now have equivalent powers for all species of deer and be able to exercise them in a manner which takes full account of the characteristics of individual species. It will be subject to a new balancing duty to take into account key issues such as the impact of deer on the natural heritage and the interests of other land uses and owners and occupiers in exercising its functions.
New, more flexible arrangements for the appointment of members of the commission will be introduced, so that the best available candidates can always be chosen. The advisory and research powers of the commission will be broadened and arrangements for appointing advisory local panels made more flexible.
Measures related to the protection of the natural heritage and dangers to public safety will be added to the various powers of the commission to authorise action to control deer. These powers will be in particular strengthened by the detailed provisions in Clause 5 for the commission to promote control agreements.
Clause 9 contains a number of measures to regulate the circumstances in which action can be taken by occupiers and owners, including at night and during the close season, to protect against damage or danger caused by deer. New provisions on close seasons will allow the Secretary of State to set all those by order.
All in all, the package of measures included in this Bill will provide a coherent and consistent framework for ensuring that deer are managed effectively for their own benefit as well as for the benefit of the wider community.
The House has subjected to detailed and careful scrutiny the original proposals put before it which were based on proposals put to us by the Deer Commission. I made it clear on Second Reading that I would listen very carefully to suggestions made by your Lordships for improvements to the wording first proposed, and I am very pleased to say that the work we have done
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together has achieved precisely that. It is a better Bill now as a result of your Lordships' scrutiny than when it arrived with us.
We broke new ground through the work of the Scottish Select Committee which met in Edinburgh in January to take evidence from a wide range of interested parties. I should like to pay a special tribute to the chairman of that committee, the noble Lord, Lord Wilson of Tillyorn, who I understand from all parties, and indeed saw when giving evidence, ran a productive and useful committee. It aided all the Bill's stages to have had that opportunity. That committee stage allowed many of the noble Lords involved the opportunity to learn more about what is to many a very esoteric subject so that we were all well prepared for our subsequent work.
In Committee and on Report we considered many amendments and accepted a significant number which acted for the most part to clarify the wording of the Bill. We have also accepted a number of important amendments today. I would stress again to the noble Lords, Lord Carmichael and Lord Mackie of Benshie, that the policy underlying all the clauses has remained the same, but its intention has been clarified through the introduction of various amendments.
The noble Lord, Lord Carmichael of Kelvingrove, has been diligent and thoughtful from the Bill's very first stages. We are grateful to him for the issues he has raised and for expressing his concerns over the consequences that may result to land which has been enclosed for forests or agriculture and the impact that that will have on deer normally resident over that ground.
The noble Lord, Lord Mackie of Benshie, expressed a number of concerns. Being a good and honest farmer from Angus, he used turnips in many of his examples of what the Bill will or will not do in relation to the management of deer. I am sorry that his noble friends Lord Mar and Kellie and Lady Robson of Kiddington are not here because they contributed greatly to the Bill's passage. The noble Earl, Lord Mar and Kellie, was concerned about the use of the word "servants". The Consolidation Bill, which is almost complete, will address the term "servants", and I hope that any noble Lords who remain uneasy about the use of that term will be reassured.
The experience of many noble Lords of deer management at ground level has been especially useful. I refer especially to my noble friends Lord Astor, Lord Massereene and Ferrard and Lord Woolton, who, the whole House will be delighted to see, made his maiden speech on this Bill. It was a fine maiden speech.
The experience of my noble friend Lord Burton has been missing from every stage of the Bill, which is unusual. But he has been a constant presence through telephone calls and correspondence during the Bill's passage, so that he has played a part in the way that the Bill has proceeded.
I should like also to draw attention to noble Lords who have had previous experience of bringing forward deer legislation in the House. My noble friend Lord Forbes was the Minister in charge of the 1959 Act which

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this Bill seeks to amend. My noble friend Lord Glenarthur was involved in the 1982 amendment Act. I am grateful to them both for applying their skills and expertise to the Bill. A former Secretary of State for Scotland, my noble friend Lord Campbell of Croy, is sadly not in his seat now, although he was here earlier this afternoon. He took a keen interest in the Bill, and due to his curiosity about the possible use of contraceptives in deer management he generated interest among the evening newspapers in various Scottish cities which Scottish legislation in your Lordships' House does not usually achieve.
I pay a special tribute to the noble Lady, Lady Saltoun of Abernethy, and to my noble friends Lord Glenarthur and Lord Pearson of Rannoch for their continuous commitment to the detail of the Bill and their continuous scrutiny of it to ensure that the Bill's intention is properly set out on the face of the Bill and that that achieves what I, from the Dispatch Box, explained. Some of the most important amendments to Clauses 1 and 4 are the result of the bright light that my three noble friends were able to shine on the matter.
I hope that the Bill will be welcomed and useful, and that the improvements that the House has brought to the Bill will be regarded as having made it a better piece of legislation. I look forward to the consolidation Bill which, in the normal way, will be published shortly after Second Reading in another place. I hope that the Bill will be a considerable improvement for all those involved in deer management and that we will have one document which deals with all the legislation on this subject rather than having to have an amendment Bill in one hand and the original Act in another. I beg to move.
Moved, That the Bill do now pass.—(The Earl of Lindsay.)
Lord Carmichael of Kelvingrove: My Lords, the one person who the Minister could not congratulate was himself. He has done a remarkable job and was courteous at all times. I am sure that many noble Lords, particularly the few on this side of the House, are grateful that he was so courteous.
This is the second Bill with which I have been involved which was outwith the scope of my normal range and experience. When I look across the Chamber, I see almost exactly the same group of noble Lords who discussed a salmon Bill until two o'clock one morning. I then learnt a little about the great Atlantic salmon and so forth and during the past few weeks I have learnt a great deal about deer. I hope that we shall be less esoteric when we next discuss deer.
Someone from my background still has many questions about a Bill such as this. However, we got to know each other very well; we got to know each other's opinions and points of view. It was an experience for which I am extremely grateful. I am pleased that the Bill is now ready to go to another place; but there it may have a slightly rougher time.
Lord Mackie of Benshie: My Lords, I too pay tribute to the Minister, who has handled the Bill extraordinarily well. He has co-operated and compromised and has put
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up with the close lobbying of his noble friends in an admirable manner. I hope that he has not placed a future Secretary of State in a position in which the close knit community of deer managers will present him with only four names which he will be compelled to accept. The Minister assured me that that is not the case and that a flood of names will come forward from the public-spirited body.
It is a good Bill and it will be useful. It achieves one great aim; it brings in the Scottish National Heritage, widens its scope and shows the concern which we all have for our heritage at large as well as the particulars of deer management in Scotland. I wish the Bill well in another place.
Lord Forbes: My Lords, I too congratulate the Minister not only on being at the Dispatch Box after a sleepless night in Luxembourg but on the way in which he has handled the Bill. My noble friend has spoken with great clarity and courtesy in carrying out his task of steering the Bill through your Lordships' House. We are all most grateful to him for the way in which he has handled it.
The success of the Bill, which amends the 1959 Act, will depend largely on the members of the Deer Commission for Scotland. I cannot emphasise too strongly that its members must be chosen with the greatest care. They must be chosen for their wisdom rather than their technical or scientific merits. The commission has considerable latitude over any action it takes so the onus is on it to use its wisdom. I look forward to the day when a consolidated Deer (Scotland) Act reaches the statute book.
5.45 p.m.
Lord Glenarthur: My Lords, perhaps I may follow my noble friend Lord Forbes and congratulate my noble friend Lord Lindsay on all that he has achieved in getting the Bill to its present state. I endorse all the remarks about the way in which he has handled the Bill. I am grateful to him for the way in which he has listened to all the arguments and has taken matters forward in a way which all of us agree has improved the Bill no end.
He has not been alone in that because others have been associated with the Bill throughout its long gestation period prior to reaching your Lordships' House. For a number of years they have played a large part behind the scenes and have been most helpful to those of us who have taken an interest in the Bill. I remember the intense relief, as I expect does my noble friend Lord Forbes, of reaching this point in respect of the Deer (Amendment) (Scotland) Bill 1982 and seeing it on its way to another place. When it came back to your Lordships' House I was not able to take it on but I hope that when this Bill returns my noble friend Lord Lindsay will be able to do so. We all expect that. I wish the Bill a speedy passage to the statute book.
Lord Wilson of Tillyorn: My Lords, the Minister was kind enough to mention that I had the honour and interesting task of being chairman of the Select Committee set up by your Lordships' House to consider the Bill. Since that was an historic occasion, perhaps it

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deserves a brief mention. Unfortunately, I was unable to be present during the Committee stage but I had the impression that the meeting of the Select Committee in Scotland—that being the historic occasion—was a success. Perhaps this was the ideal piece of legislation to choose as a first for that experiment. It was a matter of great interest to a number of different groups in Scotland. It was not particularly a party political issue. A great deal of preparatory work had been done by the chairman of the Red Deer Commission. There was a great willingness to find common ground, not least in the form of the responsiveness of the noble Earl the Minister to everything that was said in the committee. The committee pursued its questioning with a great deal of good humour and I thank my fellow members for that.
Lady Saltoun of Abernethy: My Lords, I wish first to say a word or two about the Select Committee which was chaired so ably by the noble Lord, Lord Wilson of Tillyorn. Most of us believe that it was a useful exercise. It provided the opportunity to receive submissions from so many diverse organisations and to clarify various points by questioning their representatives. Then to have all that body's evidence gathered together in one publication was most helpful in later stages of the Bill. I believe that the noble Lord, Lord Pearson of Rannoch, has one or two constructive suggestions about how such Select Committees might be even more useful. I shall leave that to him.
Most of us are very happy with the Bill as it now stands. The noble Earl was most helpful in meeting some of us in between its various stages. As a result amendments—mostly Government amendments—were tabled to meet all the principal concerns of, in particular, the noble Lords, Lord Pearson and Lord Glenarthur, and myself. No Divisions have taken place. I thank the noble Earl for that; we are most grateful to him. I also thank him for his kind tribute to myself, over which I am still glowing. Finally, I wish the Bill a speedy and uneventful passage through another place from which we all hope it will return in as good condition as it leaves us now.
Lord Pearson of Rannoch: My Lords, I shall not trouble your Lordships by repeating what has been said. Were I to speak at any length I should be repeating everything that has been said so far. The noble Lady, Lady Saltoun, suggested that I might have something to put forward about our Select Committee meeting in Edinburgh. I suggest that it might be helpful if in future such committees which have near unanimity at the end of their proceedings on any particular subject might be allowed to make the briefest of reports to your Lordships' House. I believe that that might have been helpful on this occasion and I can but recommend it to the usual channels or whoever considers the procedure of such committees in future. I believe that if there had been such a report the wish to put welfare onto the face of the Bill in some way and to remove the spectre of helicopters driving deer and causing them great distress would have been one of unanimity.
I am grateful to my noble friend the Minister and I congratulate him on his success in achieving that.
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The other important changes which he has been able to agree are to clarify the powers of the new commission to enhance the natural heritage on open ground; that will have to be subject to the consent of owners and occupiers in future.
The only thing that remains undone is that the tagging system is not actually with us but it does appear to be on its way and I am sure that most of us wish it well on its journey.
I end by agreeing with something that my noble friend Lord Forbes said which is, of course, that nothing will be more important than the composition of the commission in future. I very much hope that the Bill as it leaves your Lordships' House will enable the commission to continue to do the good work which it has started to do over the past few years in collaboration with the Association of Deer Management Groups and Scottish Natural Heritage. With that hope, I wish the Bill well in another place.
The Earl of Lindsay: My Lords, the noble Lord, Lord Carmichael, described himself as being outside his normal range when he addressed this Bill. Part of the definition which we apply to marauding deer, certainly from the Dispatch Box, is that they are deer which are outside their normal range. I suggest that as a marauding Peer, he did very well. The second part of the definition of marauding deer is that they are not being effectively controlled. But I think that is for the noble Lord's Chief Whip to decide and not for me.
Perhaps I may say to the noble Lord, Lord Mackie of Benshie, that the intention behind the Bill is that a balance is maintained through all the powers of the commission. Without balance, the commission will not command confidence and if it cannot do that, it cannot promote voluntary agreements. Over the past 30 or more years, it has had a tremendous record in relation to promoting voluntary action and there is nothing to suggest that the commission will seek to follow any path other than that which it has trodden so successfully to date.
I am grateful for the remarks of the noble Lords who have supported the Bill. For those noble Lords who do not know it, my noble friends Lord Forbes and Lord Glenarthur steered the earlier legislation in this area. My officials advise me that the 1959 Act and the 1982 amendment Act were a great deal more complicated than this modest 1996 Bill. Therefore, I commend them in retrospect for what they achieved with that legislation. I commend the Bill to the House.
On Question, Bill passed, and sent to the Commons.

Audit (Miscellaneous Provisions) Bill
5.53 p.m.
The Minister of State, Department of the Environment (Earl Ferrers): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

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Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Dean of Harptree) in the Chair.]
Clauses 1 to 4 agreed to.
Clause 5 [Publication at direction of either Commission]:
Lord Dubs Lord Dubs moved Amendment No. 1:
Page 4, line 5, at end insert—
("() The relevant body may publish the information in accordance with a code of practice issued by the Secretary of State under section 2(2) of the Local Government, Planning and Land Act 1980.").
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 2 to 5. Clause 5 is concerned with the publication of performance indicators. It is not easy to make the Committee feel that performance indicators are the most exciting thing imaginable. But they are important and they are important because they enable local authorities to demonstrate to their electorates how the local authority has been performing.
Given the fact that the majority of local authorities in this country are now Labour, the performance indicators, when published, will reveal a record of first-class performance for local people. Therefore, I am delighted that in bringing forward this Bill, the Government will enable the many efficient and effective Labour authorities up and down the country to demonstrate how well they are doing in serving their local people.
I turn now to the amendments. Amendment No. 1 seeks to introduce a code of practice in order to give wider discretion in the publication of performance indicators. The amendment seeks to permit the Secretary of State to issue a code of practice to determine how that may be done. There are precedents for that under Section 3 of the Local Government, Planning and Land Act 1980. The Secretary of State may make regulations to enforce the provisions of a code of practice to cover such matters as annual reports by local authorities. It seems to me that given that there is such a precedent, it would not be a very major step to have also a code of practice governing the publication of performance indicators. There is a precedent for it and it would be a helpful way in which to proceed.
Amendments Nos. 3 and 5 seek to achieve a similar end by different means; that is, they seek to permit a local authority to publish information about performance indicators possibly in its own publication or periodical if it has one. That would enable the information to be published not merely through free newspapers not owned by local authorities but through free newspapers owned by local authorities. It seems to me that that is quite a sensible step and I do not know why the Minister resisted such a suggestion on Second Reading. After all, private companies publish information for their shareholders in their own
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publications—in their annual reports and so on. Provided that the publication produced by a local authority reaches sufficiently widely, I cannot see why that is not a proper way in which to publish its own information. I cannot see that there would be any hint of bias in such a local authority paper as regards publishing performance indicators. That would seem to me to be an extremely cost-effective way of ensuring that voters are given information. After all, local authorities do their best to ensure that their own newsletters or publications reach every household, which is more than can be said for the other methods of publication.
Therefore, I should have thought that if the aim is to ensure that performance indicators economically and efficiently reach all people in a local authority area, where the local authority has its own free newspaper or publication which it distributes, that would be an excellent means of achieving that.
Amendments Nos. 2 and 4 are concerned with a slightly different matter. In Clause 5, conditions are imposed on free newspapers before they qualify for having performance indicators published in them. Those conditions are somewhat more onerous than those imposed on paid-for newspapers. There is not a distribution condition which applies to paid-for newspapers but such a condition applies to free newspapers in that they must have a circulation sufficient to reach the majority or all of the people in an area.
Therefore, a free newspaper would have to be extremely well distributed whereas a paid-for newspaper would not have to be. The point of Amendments Nos. 2 and 4 is to achieve similar distribution conditions for free newspapers as for paid-for newspapers. That merely levels the playing field as regards those two sets of publications.
I hope that the Government will consider the earlier amendments. It seems to me that having established a basis for distributing performance indicators to local people, it would be sensible to adopt these amendments as an improved way in which to achieve such distribution if the local authority has a newspaper and chooses to use it rather than choosing the other methods suggested in Clause 5. I beg to move.
6 p.m.
Baroness Thomas of Walliswood: I apologise to the Committee for not being in my normal place. I broadly support the amendments which the noble Lord, Lord Dubs, has brought forward, and I do so for two main reasons. First, it seems to me impossible for any local authority to exercise any power over a newspaper, whether free or not, to distribute its product anywhere that it does not wish to distribute it. Therefore, I do not see how you can exercise upon a free newspaper any kind of means to ensure that it reaches, as it says in the Bill, each household, each dwelling.
In fact, I would like to ask the noble Earl the Minister what he considers to be the reasonable steps which local authorities should take to ensure that newspapers are delivered to each dwelling. I would also like to ask him what the Government suppose the criteria for a local

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authority's success in this matter would be. Would the local authority be proved to be successful if the free journal reached 70 per cent. of dwellings, 50 per cent. of dwellings, or 30 per cent. of dwellings? What is the criteria for success and, if the Bill goes through, will we be leaving it to the courts?
My second point relates to what I take to be the main aim of the amendment, which is in one way or another to achieve the ability for local authorities to use their own publications to circulate information about performance indicators. I believe that would be an excellent idea for the following reasons. First, it is one way to ensure that the publication actually does reach each dwelling, and I believe it is the only way of doing so. Secondly, legislation already exists and the code, if that is the method that we adopt, could reinforce this to prevent such publications from taking on a party political tone. Thirdly—this is something people have not talked about before—in those areas, at least, where a two-tier system has persisted despite the Government's best efforts and where the responsibility for allied services are divided, the publication of a joint publication by both county and district authorities could reduce the total cost of informing local people and contribute to the enhancement of the two-tier system which the Local Government Commission recommended.
I support these amendments and I suspect that, even if the Government reject them today, the ideas that they represent may appear sooner or later in the legislative process.
Earl Ferrers: First, let me say how distressing it is to see the noble Baroness, Lady Thomas of Walliswood, sitting where she is and not in her normal position on the Liberal Democrat Benches. I thought for one moment that she might have left them behind but, no, she has not; she merely finds herself sitting in a wheelchair as opposed to on a seat on the Bench. I am sure that the Committee would extend their sympathies to the noble Baroness for her indisposition.
I enjoyed listening to the speech of the noble Lord, Lord Dubs, as one always does. Then, all of a sudden, he went off and he banged the drum for the Labour Party in the most astonishing way in an extraordinary extravaganza of imagination. He was saying that he was looking forward so much to reading of all the wonderful work that the Labour Party has done and the local authorities have done—let it all be published and then everyone can see how good they are. That is a very good thing and, of course, it is exactly what we want to see as a result of this Bill.
The amendments which the noble Lord has put down do not come as any great surprise to us because, as the noble Lord, Lord Dubs, will no doubt be aware if he read the proceedings in another place—I have no doubt that he did—they were put down in another place, too. However, I am bound to reiterate the argument which my right honourable friend the Parliamentary Secretary of State for the Department of the Environment put forward in another place.
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The noble Lord, Lord Dubs, and, indeed, the noble Baroness, and I share a common objective in this matter. The objective is to ensure that local authorities publish information about their performance in a way which is unbiased and which informs the people in their area. We think that the Bill as drafted at present achieves this by providing that the publication must be subject to independent editorial control.
The suggestion made by the noble Lord, Lord Dubs, in his Amendment No. 1, that the Secretary of State should issue a code of practice for the publication of performance information, might be used to the same ends, but we must consider what would be involved in that kind of measure. First, it would land local government and the Government with more regulation. That would mean more intervention; we would need yet another code of practice, and that would mean more bureaucracy. I do not know whether the noble Baroness, Lady Thomas of Walliswood, likes that kind of thing, but I doubt that she does. I am quite sure that her party does not, either. Of course, the party of the noble Lord, Lord Dubs, loves that kind of thing, and that is probably why he put down the amendment. However, we do not agree with that, and I am bound to say to the noble Lord that it does not attract us very much.
The code of practice would need to specify not just what information should be included, but also what information must not be included. One might ask, for example: how would a code deal with the Government's concerns that the indicators should provide independent information about an authority's performance? One might ask also: would a code allay the suspicions which the public may have about statistics which councils publish in their own publications? Would the publication need to be what one might describe as a stand-alone document? That would mean more expense for local authorities.
I have no doubt at all that the Government's way is better. Local authorities and Parliament will be in no doubt whatever about the publication requirements and they will not face the possibility of changes to those requirements from year to year. I do not think that we wish to increase the level of interference.
Of course, the remainder of the noble Lord's amendments are closely tied to the first one. The removal of the distribution requirement in subsection (3) and the independence requirements in subsections (3) and (5) could mean that local authorities could publish performance information in an in-house newspaper, which not only was editorially biased, but which might also have only a very limited distribution. That would entirely negate the whole purpose of what we are trying to achieve.
We believe that, whatever forms of publication are chosen by a local authority, the information about its performance, as measured against the Audit Commission's indicators, should at least he available throughout its area in a publication which is wholly independent of the authority. We attach considerable importance to that information being readily available to all those who wish to obtain it, and to it being available in a context where an authority cannot seek to

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put its own gloss on the results of its own performance. Of course, it is entirely open to the authority to publish this kind of additional information about its performance. In addition to publishing it in a newspaper of independent editorial concept, it can also publish it perfectly easily in an in-house journal which is delivered to the public. Some authorities have produced their information in a very good and a very understandable way, and I congratulate them on that. The point is that that should not be the only way in which to transmit the information.
The picture which emerged from the second national publication is one in which many of last year's worst performers have risen to the challenge of improving the services which they provide. That is the purpose of publishing the information, and I congratulate the local authorities on that. Perhaps those were the local authorities which the noble Lord, Lord Dubs, had in mind—the ones that had done so well and had made such an improvement on last year because, perhaps, they had not done so well in the previous year.
The increase in flexibility in the minimum publication requirements—in other words the ability to publish in a free newspaper—which is contained in this Bill is intended to assist local authorities in the publishing of their performance indicators, and members of the public in having access to them. One of the reasons for that is that free newspapers often reach more people because they are free than do paid for newspapers which have to be bought.
The noble Baroness, Lady Thomas, asked how an authority could know whether the free newspapers would reach people. The authority has to check with the editor of the free newspaper to ascertain whether the paper is distributed throughout the area—that is the important point. If the authority is satisfied by the editor's assurance that the paper is distributed throughout the area, and if, subsequently, the paper fails to be delivered, or some houses do not receive it by mistake, or there are publication difficulties, the local authority cannot be criticised. The noble Baroness asked about publication in areas which have retained a two-tier system. The performance indicators demonstrate local authority performance against a decision by elected members. The county and district each have a duty to report separately to their electors, but the two authorities could share the cost of publication by, say, taking out an advertisement together.
The noble Lord, Lord Dubs, was worried that the distribution requirements for free newspapers could be more onerous than for newspapers for sale. I do not think that one can have a distribution requirement for newspapers for sale. The public make a choice when they buy a newspaper. The point about buying a newspaper is that it is independent of a local authority. While I understand the concerns of the noble Lord and the noble Baroness, I hope that they will agree that all
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those concerns can be met by the local authority publishing its information in its own paper, provided that it also publishes it in an editorially free newspaper.
Lord Dubs: That was interesting. I was surprised when the Minister said I was tub-thumping for the Labour Party. I made the mildest of pro-Labour council comments. If the Minister thinks that was an example of my making full scale pro-Labour Party comments, I am afraid that he has not heard me when I really want to do that. The Minister said that the amendments happen to resemble those that were put forward in another place on this Bill. That may or may not be a coincidence, but they were tabled because I had hoped better of the Government in this place than the Government achieved in the other place. Sadly, I am disappointed.
The Minister said that he was against too much interference and bureaucracy as regards local authorities, and suggested that I liked bureaucracy. I certainly do not; I dislike bureaucracy very much indeed. However, the Minister is setting up a complicated bureaucratic system. I put it to him and to the Committee that my amendments would lessen the bureaucratic load on local authorities rather than increase it. Let us consider Clause 5. As regards free newspapers, Clause 5(4)(a) states, with regard to the condition imposed on local authorities, that they should,
"take all reasonable steps to secure that a copy of a publication containing the information is distributed to each dwelling in their area".
It is quite a burden for local authorities to establish that a paper is distributed to each dwelling in their area when that newspaper is not within their control, and indeed when they might have the choice of using a newspaper for sale where they do not have to worry whether it is distributed widely. It might be distributed in a narrow area. The Minister said that if a local authority's own publication was used, there would be the danger that a local authority would put its own gloss on the performance indicators. However, he then said that there is nothing to stop a local authority from using its own publication provided the information also went into one of the other publications specified in the Bill. He thereby conceded that if a local authority wanted to put its own gloss on the figures it could certainly do so. That does not seem to make much logical sense. I have a feeling that the Minister's heart was not in it because it does not stand up as an argument. I should like the Minister to say a little more before I decide what to do with my amendment.
6.15 p.m.
Earl Ferrers: Of course I shall comment further. I shall be more than delighted to help the noble Lord. He said that his observations were merely mild pro-Labour Party comments. That is fine; I understand that. I shall watch out for the blast when he really gets going and I shall take cover! The noble Lord said that he thought better of the Government in this place than in another place. It is gracious of him to say that and I am sure that was a personal compliment that he was making to me. However, he will realise that

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governments tend to have a unified view as regards this place and another place. However, the exposition of it may be slightly different. That is the reason that I did not feel I could accept the noble Lord's amendment. I thought the phrase he used was charming when he said that if we accepted his amendment that would do away with bureaucracy. What is the very first amendment the noble Lord has tabled? His Amendment No. 1 states,
"The relevant body may publish the information in accordance with a code of practice issued by the Secretary of State".
I shall let the noble Lord into a little secret. Since I have been in the Department of the Environment, I have seen codes of practice that appear on my desk which are submitted for approval. They are usually vast documents. I keep on saying that we should think of the people who have to read those documents. They are enormous great documents which state exactly what is to be done, how and why it is to be done, and who should do it, and other such matters. The noble Lord, Lord Dubs, suggests that we should produce another one. It will be quite simple but it might be half an inch thick and all his local authority councillors will have to read through the wretched document—and what for?—to find out whether they can publish the information in their in-house newspaper. That is a waste of time. They can publish all the information they want in the in-house newspaper provided they also put it in other local newspapers.
I think the noble Lord, Lord Dubs, was lost in imagination as to how an authority might publish the facts and possibly put a gloss on them. He did not seem to think that was at all conceivable, but then he went on to say that it was perfectly all right for them to put a gloss on the facts if they published that in a newspaper for sale. He therefore admits that they might put a gloss on the facts because if they can do that provided they put the facts in a newspaper for sale they can also do it if the facts are not in a newspaper for sale. The noble Lord made the argument against his case, hook, line and—if I may say so—sinker.
I do not think that the noble Lord has his heart in this. Now he is talking to the noble Baroness on his Benches because he is trying to inveigle her into getting involved. However, I do not think she will because her heart is not in it, either. The noble Lord, Lord Dubs, knows perfectly well that if we proceed with the Bill as it stands all a local authority has to do is to publish the information either in a newspaper for sale or in a free newspaper, and in the local authority's newspaper—with a gloss, if the local authority wishes to put such a gloss on the information, which I am sure not even a Labour authority would wish to do as it would wish to give the facts—and then everyone will be satisfied.
Lord Dubs: I shall read Hansard tomorrow with great interest because in referring to putting a gloss on information, I was quoting what the Minister had said. If my memory is right—and I am pretty confident that it is—the Minister said the trouble with only publishing in local authority newspapers is that local authorities will be tempted to put a gloss on the information. I then suggested that if the Minister was happy that local
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authorities should publish the information in their own newspapers provided they also published it in others, he was saying that the gloss did not matter.
However, if the Minister is against codes of practice, I would refer him to a previous code of practice concerning the publication of financial statements and annual reports by local authorities which was published in February 1981. If the Minister is against the suggestion in this amendment, he is presumably against things that the Department of the Environment was putting out some years ago. However, there is a simple answer. The Minister needs only to accept my other amendments which do not cover a code of practice but which simply say that the local authority may publish in its own newspaper if it so wishes. I fear that the Minister is not to be persuaded this evening. I deeply regret that but I feel it would be wrong to take up any more of the Committee's time in what is a matter of some importance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 5 not moved.]
House resumed: Bill reported without amendment; Report received.

Rating (Caravans and Boats) Bill
6.21 p.m.
Lord Lucas: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee. —(Lord Lucas.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES(Lord Dean of Harptree) in the Chair.]
Clause 1 [Caravans and boats occupied as sole or main residence]:
Lord Lucas Lord Lucas moved Amendment No. 1:
Page 1, line 20, at end insert—
("(4A) Subsection (3) or (4) above does not have effect in the case of a pitch occupied by a caravan, or a mooring occupied by a boat, which is an appurtenance enjoyed with other property to which subsection (1)(a) above applies.").
The noble Lord said: The purpose of the amendment is to show that we listen to the noble Lord, Lord Dubs, sometimes; and, incidentally, to ensure that pitches occupied by caravans or moorings occupied by boats which are part of a larger domestic property—such as a house with a river frontage with mooring—will be considered as appurtenances to the main property. They will, therefore, be domestic property. Without this amendment any such pitches or moorings would be non-domestic property and subject to non-domestic rates. I beg to move.
Lord Dubs: Clearly, I welcome the amendment and thank the Minister for having responded to what was said at Second Reading and for the letter that he sent me explaining in some detail the thinking underlying the amendment.

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In so far as I understand the technicalities, I believe that it is an improvement on the Bill. I support the amendment.
On Question, amendment agreed to.
Lord Lucas Lord Lucas moved Amendment No. 2:
Page 2, line 11, leave out ("or 1st April 1995") and insert ("1st April 1995 or 1st April 1996").
The noble Lord said: In moving Amendment No. 2, I speak also to Amendment No. 3. These amendments apply the Bill's provisions to the new post-reorganisation rating lists in Wales. These lists will have effect from 1st April 1995 but were compiled on 1st April 1996. I beg to move.
On Question, amendment agreed to.
Lord Lucas Lord Lucas moved Amendment No. 3:
Page 2, line 14, leave out ("1st April 1995 (as the case may be)") and insert ("in the case of lists compiled on 1st April 1995 or 1st April 1996, from 1st April 1995").
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with amendments.

Social Security (Reduced Rates of Class 1 Contributions) (Salary Related Contracted-out Schemes) Order 1996
6.25 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish) rose to move, That the draft order laid before the House on 13th March be approved [14th Report from the Joint Committee].
The noble Lord said: My Lords, in moving the order, I shall speak to the other two orders on the Order Paper.
When SERPS was introduced in 1978, the government of the time recognised that some employers already provided good quality pension schemes—good quality meaning offering defined benefits based on salary, as indeed did SERPS. Those that could show they offered benefits as good as those in SERPS—the guaranteed minimum pension or GMP test—were rewarded for continuing to do so by giving employers and employees in such schemes the right to pay a reduced rate of national insurance contributions. Thus the contracted-out rebate was born.
If I may continue the history lesson for a little longer, the present Government saw the potential further to encourage pension provision by the private sector through allowing money purchase schemes run by employers to contract out and by giving employees with no occupational pension the opportunity to provide for themselves through appropriate personal pensions. The rebate given as an incentive to these schemes from 1988 opened up new options for individuals and employers at the same time as averting a major public spending crisis
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in the next century, when the burden of pay-as-you-go funding for SERPS was set to fall on a much smaller working age population.
We have continued to take initiatives to strengthen private sector pension provision, and the Pensions Act 1995 was a major exercise in improving the security of pension schemes. We also took the opportunity to make the system of contracting out more attractive.
This brings me to the recent past. The complexity of administration of GMPs for contracted-out salary related schemes, the implications of the Barber case and the unsuitability of the flat rate rebate for money purchase arrangements led us to overhaul the contracting-out arrangements.
We responded to complaints of complexity by breaking the current links between state and private second tier provision. For salary related schemes, we introduced a new test of overall scheme quality that threw off the tortuous complexities of the GMP system; and we designed a system of age-related rebates for those contracting out on a money purchase basis specifically tailored to meet the needs of this type of pension provision.
This brings me to the orders that are on the table before us today. My right honourable friend the Secretary of State has a statutory duty to review the contracting-out terms at least every five years. In this case we have reviewed after four in order to implement the Pensions Act reforms from 6th April 1997.
The current rebate was set in 1993. At that time the uncertainties surrounding the Barber case led us to consider the value of GMP accruals over the following three years only; we subsequently allowed that rebate to continue until reviewed under the provisions of the Pensions Act 1995.
The independent Government Actuary issued a consultation document in August last year. He took account of the responses to that document in preparing his report to the Secretary of State. The Secretary of State has taken account of his advice in preparing his own proposals, which were laid before the House together with the three orders and the Government Actuary's report on 13th March.
This setting of the rebate is a technical actuarial matter, but I shall do my best to unravel some of the mysteries that lie behind these orders in my explanation. I will take the contracted-out salary related (COSR) rebate order first, and then the other two orders, each of which have similar considerations.
The current rebate is based on the cost to salary related schemes of providing a guaranteed minimum pension and at the last review was set at 4.8 per cent. Of this 1.8 per cent. goes to employees and 3 per cent. to the employer.
The new rebate is calculated on a different basis—the cost of providing benefits of an actuarial value equivalent to the SERPS given up. This makes the COSR rebate higher than it would have been if reviewed again under the previous system, as it must reflect the greater liabilities now undertaken by schemes which contract out—for example, inflation proofing.
The Government Actuary took account of these and other reforms to the contracting-out system from 1997 along with the changes in SERPS provision and up-to-date actuarial assumptions. He reached the conclusion that the appropriate rebate for COSR schemes would be 4.6 per cent. from April 1997. My right honourable friend Peter Lilley considered his advice and decided to set the rebate at that level. We propose that 1.6 per cent. should go to the employee; as now 3 per cent. will go to the employer.
Currently some 10 million people are members of salary-related schemes and these form a key element of pension provision in the UK. We remain committed to the widest possible choice of pension provision and believe our proposals will ensure a sound basis for their continuing operation and development.
I turn now to the proposed age-related rebates for those who contract out into appropriate personal pensions and contracted-out money purchase schemes. Those who contract out of SERPS at present in either of these two ways receive the same flat rate rebate as those in salary-related schemes, except that those aged 30 or over with a personal pension receive an additional 1 per cent. A flat-rate rebate does not suit the needs of older people with personal pensions, as the initial investment has to be higher to match the state pension forgone the nearer a person gets to retirement. This extra amount recognises the need for the rebate to be higher for such people.
We have said for some time that age-related rebates are the next logical step. The orders before us relating to COMPS (contracted out money purpose schemes) and personal pensions set out for each the respective age-related rebates for each the next five years, starting in April 1997. The COMPS rebates will range in the first year from 3.1 per cent. of relevant earnings for the youngest members to a maximum of 9 per cent. They will be available partly as a flat-rate 3.1 per cent. deduction from national insurance contributions; this deduction will be split, with 1.6 per cent. for employees and 1.5 per cent. going to the employer. Any additional age-related payment up to the total ceiling of 9 per cent. will be paid directly to the scheme by the Department of Social Security at the end of the tax year.
The rebates for personal pensions will, as at present, be paid directly to the member's scheme at the end of each tax year. The rates will vary in the first instance from 3.4 per cent. for the youngest members to a maximum of 9 per cent. We have capped both types of age-related rebate at 9 per cent. rather than allow rebates at much higher levels for older scheme members during the early years of the scheme. But we have nevertheless ensured that the great majority of those already with appropriate personal pensions should be best advised to remain with them both now and in the future. By imposing a 9 per cent. cap we have been mindful of restraining the cost to the taxpayer of all this too.
We have also sought value for money in deciding on the level of expenses and charges of pension providers to be used in calculating these age-related rebates. Necessary and reasonable charges and expenses of providers and the correct amount to be invested on
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behalf of the member are both crucial in calculating appropriate levels of rebate. In deciding this we have taken the Government Actuary's advice on what were the charges of the more efficient providers. This again reflects our aim to be fair to pension holders, pension providers and taxpayers alike.
I firmly maintain that we have in these orders successfully achieved those intentions in setting the age-related rebates at a level that should ensure that those who have contracted out through money purchase or personal pension schemes will find it worth their while to continue to do so.
I hope I have been able to shed sufficient light on these three orders to show your Lordships why we are confident that these measures will help us to meet our commitment to maintaining and, where possible, increasing levels of contracting out, without unduly burdening the public purse. The cost to the taxpayer in the first year of the new rebate will be £7.7 billion in terms of revenue forgone by the National Insurance Fund. However, by 2020 we expect annual savings to the National Insurance Fund in SERPS expenditure to outweigh the annual revenue then forgone on the rebate. By 2030 we anticipate savings nearly double the costs and by 2050 savings some three times greater than costs. That represents a major burden which we have lifted from future generations.
Thanks to the success of our policies up until now, over three-quarters of employees have already opted out of SERPS into non-state schemes of one kind or another, where their money is invested to pay for their pensions when they retire. In the meantime the money strengthens the economy by injecting long-term savings. The total value of investment in British pension funds is nearly £600 billion. As your Lordships have heard me say before, that is not just more than any other country in Europe but more than all the other member states put together. The OECD suggests that the UK may be able to repay its national debt and start to accumulate assets by 2030, leaving us better placed than almost any other country to meet the challenges of global competition in the next century.
Our proposals build on these undoubted strengths. Continuing to make available as wide a choice as possible of contracting-out routes, they are based firmly on the continuing partnership between the state and the private sector. Giving maximum scope for individuals to provide for their future, they meet the needs of taxpayers present and future. Our proposals underpin the almost uniquely strong position of the UK in meeting the challenges of the 21st century. I commend the orders to the House. I beg to move.
Moved, That the draft order laid before the House on 13th March be approved [14th Report from the Joint Committee]—(Lord Mackay of Ardbrecknish.)
Baroness Hollis of Heigham: My Lords, we thank the Minister for explaining the regulations to us. They show that personal pensions remain a bad deal for so many people that the Government are artificially having to make them more attractive by bribing existing and potential personal pension holders with more of our—the taxpayers'—money to keep them.

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We all want people to hold a second-tier pension. It is the only way of ensuring and enjoying an old age above the margin of poverty. We all accept that a good occupational pension is the most desirable of second pensions. For those on lower incomes, SERPS may provide the same kind of security; or it would have done if, since 1979, the Government had not progressively raided it, both to save government money and to make private pensions artificially and comparatively more attractive. In consequence, under this Government we have seen SERPS cut from the best 20 years to 40 years, every year but five, as well as an annual rather than an end-of-scheme valuation. Together, those have almost halved the value of SERPS. Even so, SERPS remains appropriate for people on relatively low incomes in secure occupations without an occupational pension. However, in future SERPS may have to be made more secure against government raiding.
The third option has always been personal pensions. Again, no one disputes that they meet a real need in the market, for the better off, for those who are self-employed and for those who are highly mobile. In other words, they are for those who do not have a conventional employer and have to or can afford to dispense with the employer's contribution. Had that niche market been addressed and had personal pensions been properly regulated, there need have been no problem with either approved personal pensions or the right to recycle the standard SERPS rebate. Instead, we have seen hungry, commission-only salesmen whose companies have willingly turned a blind eye to dubious practices.
A similarly blind eye from an indulgent Government has put us in the following situation. First, we have seen the marketing of approved personal pensions to the wrong people: those on low incomes who were persuaded out of good occupational schemes and out of SERPS, to their disadvantage. Secondly, as a consequence, those APP providers have been found to be so inefficient that even the best providers top-slice at least 15 per cent. in charges and the inefficient double or nearly treble that in some cases. Thirdly, some two-thirds of those holding APPs only, and merely, recycle their rebate. Many are in and out of work and cannot keep up regular premiums. Therefore, sadly, many people will find that APPs will not float them off poverty in old age.
Therefore, finally, the Government have realised, as pension holders themselves are realising, that for many it would be financially prudent to rejoin SERPS because of the poor deal that they get from APPs. As the Government are anxious that SERPS should not become an ambulance to casualties of private pensions, they are throwing additional rebates at APPs, not because APPs and their providers are good providers of pensions but because they are bad; not because they are efficient but because they have proved inefficient; not because people want to remain in them but precisely because people may not. Consequently, the taxpayer is having to contribute some £300 million, we suspect, this year to
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bribe people with their own money to stay in schemes which would otherwise probably damage their financial health.
Let me spell out those points a little further. First, personal pensions (APPs) have been sold to the wrong people. Those with personal pensions may be worse off if their income is low—say, below £10,000 a year; if they are too old to benefit because the pension does not have time to accrue; if they cannot maintain regular contributions; if they are in and out of work; or if they are women, who tend to get lower private pensions for the same level of contributions or annuity rates. As my honourable friend Mr. Denham made clear in another place, every one of those fears has materialised. We find that something like 3.6 million people—60 per cent. of all personal pension holders in 1993–94—had less than £10,000 a year in average income. For women holding personal pensions the average income was £6,300. We also find that nearly half a million of the holders are over 45. In addition, since 1987–88, nearly half of those who bought personal pensions have failed to make regular contributions each year since.
In consequence, if APPs are funded merely by recycling this rebate, they will be insufficient to take people out of poverty. We fear that that may apply to something like two-thirds of those holding such pensions. As we found when we discussed the Pensions Bill last year, the best advice was that unless people can afford to make voluntary contributions over and above a rebate taking them up to something like 15 per cent., it will not be sufficient to provide for their old age. By definition, those who are poorest, those who are often unemployed and women with interrupted work, are least likely to make voluntary contributions and least likely to benefit from APPs in their old age, and may still need income support.
This situation has been made worse by charges. It would be bad enough, pensions having been sold to the wrong people, if APPs were efficiently provided. But the record has been disastrous. According to the Government Actuary, the typical figures (not the most efficient provider, but not the least efficient either: presumably the median) suggest that, on an income of £10,000 with the SERPS rebate being recycled, between a quarter and one-third of the money saved is being top-sliced in charges if a person is around 40 with 25 years to go to statutory pension age. We should remember that the average income for women is only £6,300; and for someone on £7,000, charges can take anything from 25 per cent. (the more efficient) to 40 per cent. or more of the payments at the age of 40. Some will do better, some will do worse, according to age, gender, income and provider. But in all cases where we are dealing with incomes under £10,000 we are likely to see at least a quarter of the savings top-sliced, and nearly half of the savings top-sliced in costs. For those who put in simply a single premium or an intermittent premium, the whole of that will be taken out in charges. It is a straight gift to the commission-hungry salesman and to the company, and nothing remains in the bank.
How many people on an income of £7,000 a year would have entered into a personal pension plan at the age of 40 had they appreciated that in some cases 40 per

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cent. of what they were recycling or saving was being wiped out in charges? It is worse still, compared to SERPS. For someone in SERPS who is unemployed for a year and cannot make a contribution, or whose earnings fall below the income threshold for two and three years, nonetheless the existing contributions are fully protected. They are ring-fenced, and people are not charged. But for those in a personal pension scheme, fees continue to be charged per year to manage a pre-existing asset whether or not additional contributions are made. So each and every year people see their capital being top-sliced, top-sliced and top-sliced in fees. They see it diminishing, as they stand there looking for work, steadily depleting what has been built up.
As for women, they are hit three times over by the Government's personal pension schemes. First, they are more likely to have low earnings—as I say, the average is £6,300. Secondly, their income is more likely to be interrupted as a result of work patterns and family responsibilities, while charges nonetheless continue to top-slice what they have put away. Thirdly, women will receive a lower pay-out because, unlike SERPS, where the same is received whether a person is male or female because there are no actuarial considerations involved, in APPs the payment will be less. So women are hurt because they are more likely to have lower incomes, because the charges continue when they are not so likely to be in work and because at the end of the day they will receive a lower sum. These are the people the Government have encouraged the personal pension providers to take into portable personal pensions. It has been an absolute disaster.
This means that, as the Government have belatedly woken up to the fact, if such people are not to rejoin SERPS the Government have to increase the attractiveness of staying with the personal pension by increasing the rebates that can be recycled to fund it. In other words, in a desperate effort to keep personal pensions afloat, the Government are having to pay for the management costs and charges of inefficient providers so that more of the rebate stays as savings and less is grabbed by the company. That might be fine—except that they are doing it with our money, the taxpayers' money: £300 million of it. So far the Government have spent over a billion pounds of our money to persuade low earners to leave SERPS, even though, alas, many will remain in poverty.
The Government have got themselves into the most awful mess. We see their pensions policy unravelling before our eyes. They are having to throw additional money at the problem. (This is one area where the Government clearly think that the problem is solved by throwing money at it.) But it will not be solved. Although additional money is being provided, it will still not be enough—nor can it be—to remedy the plight of those who are with the worst providers. Even with the additional rebates they will still find themselves facing poverty in old age—all to avoid a return to SERFS which this additional rebate may not postpone.
So we have a government pensions policy, first, to cut the value of the state pension relative to earnings from 22 per cent. value in 1979 to 14 per cent. today;
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secondly, we have seen the Government chop away at SERPS, which would otherwise, in 2040, have been worth £173 and will now be worth only some £107 under the Tories; thirdly, to encourage private provision at all cost. It is now clear that that cost is considerable.
At considerable cost to the taxpayer, we have ended up with a scheme that pays to the poorest more taxpayers' money to take them out of SERFS into APPs, while still almost certainly having to give them additional money when they reach pension age because a recycled APP will not float them off income support. What a waste of taxpayers' money and their money. And what a desperate situation for those who will see their savings whittled away by the false promises of government and the false prospectuses of providers. It is a sad and sorry story.
Earl Russell: My Lords, every time I hear the word "SERPS" I start feeling a bit like Laocoon. It is not a simple creation; it tends to mirror the mind of its creator whose worst enemy would never have described him as simple minded.
I shall not follow the Minister and the noble Baroness into a long argument about contracting out. I have heard that argument in this House at least 10 times before and it tends to grow in the telling. In any case, as I understand it, it is not directly relevant to the orders before the House today. Those orders are simply a matter of fixing rates according to the recommendations of the Government Actuary.
I do not propose to make a complaint about the Government taking the advice of the Government Actuary. I will ask the Minister about one thing that he said in his speech. In the contracting-out money purchase order, he said what I suspected on looking at the figures as set out in the order; that is, that the Government have decided to treat the rate of 9 per cent. as a cap. I understand the Minister's argument for having a cap, without at present passing judgment on it. What I want to know is why he fixed that rate at 9 per cent. Why not 8 per cent? Why not 10 per cent.? Maybe there is an answer; maybe there is not; but if there is one I would be interested to hear it.
Also, somebody should draw attention to the report of the Joint Committee on Statutory Instruments, to which, as usual, we owe a great deal. It noticed a drafting error in the primary legislation on which the salary related contracting-out scheme is based. The wording of the section left out the words "or (b)". The effect of that was to make it apply only to the employee's share of the rebate and not to the employer's share. The committee believes that it was clearly the intention of Parliament to refer to both percentages and thinks that it should be treated as a manifest mistake on the face of the Act. I should like to hear the Minister's comments on that.
I do not mean to make a meal out of this matter at the moment because the rebate percentage for employers has not, in any event, been altered. It does not affect the vires of the order. But if the mistake, as is alleged, has been made, at some stage before we leave things set in stone for too long, there should be a miscellaneous provisions Bill in which this question could be addressed. I do not know whether the Minister has

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anything to say on that. Mistakes happen to all of us; one does not make a meal of them but they need to be put right.
I agree that in 1995 the security of personal pension funds was improved. I am not sure that it was improved enough. There is probably still a good deal to do in that area. Indeed, we have not even done all that was set out in the Goode Report, a subject to which we must return and give our attention. It should be clear that there is an employee trustee and a pensioner trustee and the other trustees should not have the power to dismiss them. There should not be schemes which are open only to directors and to which other people cannot get access. There should also be, before and not after we experience another scandal, a really effective compensation fund so that the next time we have a Maxwell—and it will happen again because sin goes on—we have equipment ready to deal with it rather than having to look at emergency provisions.
With those few remarks I shall not detain the House on what are themselves, however great the arguments behind them, quite small orders.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Baroness and to the noble Earl, Lord Russell, for their welcome, at least to those parts of the orders with which they agree. I do not believe that there was too much disagreement on COSRs; the disagreement from the noble Baroness came from the order on COMPS and perhaps in particular from the order on personal pensions.
I shall deal with the technical point, though it is equally a serious point, raised by the noble Earl in relation to the observation of the Joint Committee on Statutory Instruments that there was an error in the Pensions Act. As is so often the case, the noble Earl is quite right about that. I am surprised that he did not spot the error in the original Act but I suppose he was not actually dealing with the original Act for his party and that excuses him. However, it does not excuse the rest of us who took part in the passage of that Act. I fear that there was a mistake and nobody spotted it. I should like to blame the word processor and perhaps that is where I shall stand.
What happened, without going into detail, was that the important words "and (b)" were omitted from the Act when they should have been included. The Joint Committee on Statutory Instruments rightly points out that if we take the whole of the section together, it is clear that it should refer to (a) and (b); (a) being the employee's share and (b) being the employer's share. The joint committee accepted that that was the meaning of the Act and that we should work on that basis.
The noble Earl asks whether we will take the opportunity to correct that error at the earliest opportunity. In fact we do not need to do that. The specific part of the Act where the error occurs is relative to the transitional position. As we stand here this evening, this is the transitional position and after this the error effectively disappears for subsequent reviews
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under the Pensions Act. I am happy to tell the noble Baroness therefore that at least we do not need another Pensions Bill to correct this error.
Baroness Hollis of Heigham: My Lords, if the Minister is prepared to make the same sort of concession as his noble friend Lord Lucas made to my noble friend Lord Dubs, I would welcome such a Bill.
Lord Mackay of Ardbrecknish: My Lords, the noble Baroness should not push her luck too far.
The noble Earl asked how the figure of 9 per cent. for the cap was arrived at. Essentially, the setting of the cap at this level means that most current appropriate personal pensions holders are able to maintain their plans until retirement without imposing excessive cost on public funds. A balance therefore had to be selected between trying to make sure that people were encouraged to stay in their personal pension schemes as they got older and making sure also that one was not putting too much money across from the national insurance contribution fund to personal pension holders. As the noble Earl will note, over time, as each year progresses, fewer years—if I may describe them like that—at the top end down to the 9 per cent. are capped. In time, five years and then another five years as each quinquennium progresses, the 9 per cent. would drop off if governments maintained the same kind of arrangements into the future. That is the reason we selected 9 per cent.
The noble Earl went a bit further than the provisions before us by addressing the protections in the Pensions Act for pension schemes against people like Robert Maxwell. There is already a compensation fund. As I have described before—I will take a second to do it again as the noble Earl raises the matter and it is important—the defences operate at a number of levels. There is a compensation fund if all else fails and there has been distinct cheating. Also, OPRA will be there; indeed, it has just been set up with the chairman, chief executive and members appointed. Duties have been placed on auditors and scheme professionals to blow the whistle to OPRA if they see anything irregular occurring in the fund, as can members of the scheme or trustees if they feel that there is something wrong or something has not been properly done. They, too, can blow the whistle by reporting the scheme to OPRA and OPRA will then investigate. The employer trustees are another line of defence, as is the minimum funding requirement. We believe that, taken together, the OPRA schemes and, more importantly, the pensioners and prospective pensioners have better protection than they had before the Act and before Goode.
I turn to some of the points raised by the noble Baroness, Lady Hollis, who seemed to say that the Government's pension policy was "unravelling before our eyes". The Opposition's pension policy is not even ravelling, let alone unravelling. We are still waiting for it. I am not too sure if, in the midst of the attack on personal pensions, I got the flavour of the fact that Mr. Chris Smith, when he announces the Opposition's pension policy, may well say that they intend to abolish personal pensions. It will be interesting to know whether

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that is the kind of commitment I can rightly assume emerges from the noble Baroness's clear dislike of personal pensions.
Baroness Hollis of Heigham: My Lords, the Minister, I am sure not deliberately, misstates my position. It was not a clear dislike of personal pensions. I made it very clear that there is a niche in the market for personal pensions—for those who are better off, for those who are mobile and for those who are self-employed. My criticism of personal pensions—I am delighted to spend another 10 minutes repeating it if the Minister does not recall what I said—is that the Government have encouraged them to be targeted at people who could not afford them, that personal pensions for them would not float them off poverty and that too heavy a slice of those personal pensions was going in charges—up to 40 per cent. of people's savings.
Lord Mackay of Ardbrecknish: My Lords, I have lifted a little corner of the veil over the Opposition's pensions policy—they do not dislike personal pensions. That was not the flavour that came over to me, but I am happy to accept that and to accept the Opposition into the same group as those of us who believe that personal pensions have an appropriate part to play in pension provision for all our people.
The noble Baroness made a number of points about the personal pension scheme. She attacked our rebates on a number of grounds. The decision as to whether the pension is a good buy depends on a lot of circumstances and not, if I may say to the noble Baroness, just on the level of income the person has at that time. We are keen to encourage people to contribute as best they can to their pension. There is no firm evidence that so-called rebate-only personal pensions are unsuitable for specific types of employees. Neither low earnings nor time out of the employment market necessarily mean that their final personal pension will not be as high as the SERPS they would have received if they had stayed in SERPS. Quite often the effect of charges on a pension fund is more than outweighed by the investment performance. For example, pension funds over the past 15 years have managed a real rate of growth per year of nearly 10 per cent. and providers' charges vary too. If people have a personal pension, even if it starts off by being a rebate-only one, at least they have the vehicle into which they can put additional contributions if they are able to do so at any time in their working life. Therefore they are on their way to providing a better pension provision than just remaining with SERPS.
Personal pension charges do indeed vary and, as the noble Earl, Lord Russell, mentioned, since January 1995 changes have been made. Providers have been required to set out their charges in their promotional literature and in the key feature documents issued at the time of sale. Indeed, a PIA recent report said there was some evidence that companies are charging less and that they are improving what they pay if a policy is surrendered early or transferred. Our publicity advice clearly advises potential investors in personal pensions to shop around
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by talking to an independent financial adviser or several advisers tied to individual companies. We are sure that that is the way to explore what is on offer.
With regard to where the expenses have been pitched, we have made allowance for reasonable costs and charges of the more efficient personal pension providers. We have not incorporated any allowance for flat rate charges. We have not taken the average. We have looked at the more efficient personal pension providers when we have come to the conclusion about how much the expenses part of the rebate should be.
It was said that the age-related rebates are just another example of a bribe to keep people out of SERPS. At present appropriate personal pensions become less attractive for contracting out of SERPS as people get older simply because there is less time for the investment to gather interest and to grow the nearer one gets to retirement age. These age-related rebates will ensure that most of those who are already contributing to an appropriate personal pension will continue to do so for the rest of their working lives. It also gives younger people the same kind of personal choice.
Personal pensions play a part in the spectrum of pension provision that we on this side of the House, and I think most people, want to see available. Not everyone works in a company where there is an occupational pension scheme—either a salary related scheme or a money purchase scheme. Indeed, personal pensions are a sensible way for those people to consider putting aside money for their retirement. We are all keen to see that. Even the party opposite appreciates the need for second pension provision. We have a clear policy on how we proceed to that and APPs form an important part of it. In order to get to the position where an increasing number of people have second pension provision, these rebates are very important—the rebates to salary-related schemes, the rebates to money purchase schemes and the rebates to appropriate personal pension schemes.
As I said at the beginning, we are looking forward to the unveiling of the pensions policy of the party opposite. I think I know now that it is not entirely opposed to personal pensions. I think I know from an article I read in a newspaper that it is not keen on carrying on with SERPS. An article in The Times of 29th February by Mr. Chris Smith stated that,
"Serps depends on the benevolence of each younger generation to meet the cost of its elders' pensions".
The article went on to say that it will always be liable to raids from some future Mr. Lilley who will cut the benefits once again.
The noble Baroness complained loudly about the changes we made to SERPS provision in 1985. Without those changes, by the middle of the next century SERPS would be costing the taxpayers of that time an extra £30 billion at 1985 prices. It is one thing to expect the next generation to look after you; it is another thing to saddle them with costs that are so huge that they will no longer be prepared to accept the burden. That is why we made those changes in 1985 and 1986. SERPS had not been properly worked out when it came to considering the burden which it would impose on future generations in the middle of the next century and when

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it came to the £30 billion cost that would be imposed at that time. We had to throttle back that expense, frankly, in the interest of those people who would come to retirement at that time and the working generation who would be expected to shoulder that burden.
In conclusion, we believe that the rebates will reinforce and continue the excellent policy we have in this country. We have a pensions policy of which we should be proud and on which we should be building. It should not be attacked in the negative way in which the noble Baroness attacked it in her speech. We should be proud when we consider what our colleagues in Europe have. They must look with envy at the kind of pension provision we have—£600 billion and 10 million of our people in salary-related schemes or COMPS and another 5 or 6 million in personal pensions. We ought to be pleased about that. We ought to be extremely pleased for future generations that we are making these sensible provisions today. These orders are part and parcel of the sensible provisions for people in retirement tomorrow. I commend them to your Lordships.
On Question, Motion agreed to.

Social Security (Reduced Rates of Class 1 Contributions and Rebates) (Money Purchase Contracted-out Schemes) Order 1996
Lord Mackay of Ardbrecknish: My Lords, I beg to move.
Moved, That the draft order laid before the House on 13th March be approved [14th Report from the Joint Committee].—(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.

Social Security (Minimum Contributions to Appropriate Personal Pension Schemes) Order 1996
Lord Mackay of Ardbrecknish: My Lords, I beg to move.
Moved, That the draft order laid before the House on 13th March be approved [14th Report from the Joint Committee].—(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.

Defamation Bill [H.L.]
7.10 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Burnham) in the Chair.]
Clause 1 [Responsibility for publication]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Page 1, line 8, at end insert ("of the statement complained of").
The noble and learned Lord said: With Amendment No. 1, I would like to speak to Amendments Nos. 2, 5, 6, 9 to 12, 15 and 20. Amendment No. 1 is a small drafting amendment. It does not affect the meaning of subsection (1), which sets out the conditions which must be satisfied if the statutory defence under Clause 1 is to apply. It moves the words,
"of the statement complained of",
which relate both to the "author editor or publisher" in paragraph (a) and to "publication" in paragraph (b), to an earlier position in the subsection. Amendment No. 2 is consequential on the first amendment, to avoid unnecessarily repeating words which now appear in the previous paragraph.
Amendment No. 5 is a drafting amendment to avoid any doubt that the new defence will be available to a person who has shown that he is within a specification, in subsection (3), of a person who is not to be considered an author, editor or publisher for the purposes of the clause. If he is within that specification, he will not be considered to be the author, editor or publisher even if he might otherwise have fallen within one of the definitions of those terms in subsection (2). Those definitions are now expressed to be further explained in subsection (3).
Amendment No. 6 is a drafting amendment which ensures consistency in the special meaning given to the word "publisher" in subsection (2). The words "publication", "publisher" and "publish" and all related words have very different meanings in the context of defamation proceedings from their usual meaning in the world of commercial publication. In this special context, "publisher" will mean a person whose business is issuing material to the public (or a section of it) and who issues material containing the statement complained of in the course of that business. The revised definition avoids the use of the word "publish" within the definition in either its special narrow meaning or the wider meaning which it usually has in defamation proceedings.
Amendment No. 46 is a drafting amendment to Clause 17(1) which confirms that "publication" and "publish" have the meaning they have for the purposes of defamation generally, although there is a special definition of "publisher" for the purposes of Clause 1 only. The amendment changes Clause 17(1) by making an express reference to that special definition to avoid any suggestion that the words "publication" and "publish", where they appear elsewhere in Clause 1, should be construed otherwise than with the meanings they would normally have for the purposes of defamation.
Amendments Nos. 9 to 12 are four linked drafting amendments to achieve greater economy of words, so that the words "only involved", which qualify all the descriptions in subsection (3) of those persons who shall

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not be considered the author, editor or publisher of a statement, appear once only instead of being repeated in every paragraph.
Amendment No. 15 is a drafting amendment which makes it clear that, in the context of communications systems, paragraph (e) will apply to those who provide access to such systems as well as those who might be regarded as the "on the spot" operators at a particular time.
Amendment No. 20 is a drafting amendment which spells out for the avoidance of doubt that the list, which plainly could not be and does not purport to be an exhaustive list of those who should not be considered to be authors, editors or publishers, may nevertheless serve as a guide in those cases which are not expressly covered but could be seen as analagous to those which are. I beg to move.
Lord Kilbracken: Some time ago the noble and learned Lord invited suggestions on the drafting of this Bill. I am grateful to him for dignifying two or three of the suggestions that I made as two or three of the Government's amendments. It is helpful to have it made clear in Clause 1(1)(a) that we are indeed talking about the statement complained of. That makes it possible to simplify paragraph (b) by means of Amendment No. 2 and also, I hope, by means of my Amendments Nos. 17 and 25, which I shall move in due course.
The Lord Chancellor: I am very grateful to the noble Lord for his help in these amendments. I have perhaps some less helpful remarks as regards some of the other amendments he has proposed. I have adopted the ones that he suggested to me where we seem to be able to fit them in. I am not so sure about some of the others, but we shall come to them as matters proceed.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 1, line 9, leave out from ("to") to ("and") in line 10 and insert ("its publication").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 3:
Page 1, line 11, at beginning insert ("either (i)").
The noble Lord said: It is certainly desirable for the defence of innocent dissemination to be statutorily defined and to be extended to cover a wider class of secondary publishers; that is, distributors, printers and others. The problem with Clause 1 as it stands, however, is that it does not contain a wholly accurate formulation of the elements of the existing common law defence of innocent dissemination.
An individual libels someone else when he publishes in permanent form to a third person words or matter containing an untrue imputation against the reputation of that person. At common law, secondary distributors can rely on the defence of innocent dissemination provided that they did not know that the publication contained the libel complained of and did not know that
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the publication was of a character likely to contain a libel and that such want of knowledge was not due to any negligence on their part. Consequently, it is the current practice of large newsagents, aware that many of the publications they sell contain defamatory statements, to seek and obtain reassurance that there is no libel risk because there is every reason to believe that these statements are true.
Yet the defence of innocent dissemination, as it is set out in Clause 1, would, as I understand it, exclude from its protection those who were aware, or ought to have known, that the material they were handling was merely defamatory whether or not its publication was defensible. This, I believe, would have important implications for the large newsagents I have mentioned. Once they have discovered a defamatory statement in one of the publications they distributed, they would be denied the protection of the defence of innocent dissemination regardless of any steps that they subsequently took to assure themselves that the statement was true and that its publication was not therefore libellous. If I am right, that would have the unfortunate effect that it might encourage newsagents, booksellers and libraries to keep their eyes shut and remain ignorant of the contents of the publications they carry.
This amendment seeks to bring the defence of innocent dissemination in Clause 1 into line with my understanding of the common law defence. I beg to move.
The Lord Chancellor: Clause 1 is intended to provide a defence for those who have unwittingly provided a conduit which has enabled another person to publish defamatory material. It is intended to provide a modern equivalent of the common law defence of innocent dissemination, recognising that there may be circumstances in which the unwitting contributor to the process of publication may have had no idea of the defamatory nature of the material he has handled or processed.
The amendment proposed by the noble Lord would, in effect, create an entirely new defence. It would give a defence to a person who was indeed aware, or on notice, that he was contributing to a defamatory publication, but nevertheless chose to do so. It would allow him to rely on his own judgment as to whether there might be some other defence in the event of the defamed person taking proceedings, and have the effect of presenting him with a real defence because he thought, however wrongly, that he would be able to rely on some other defence.
It is imperative that we do not lose sight of the effect on plaintiffs of giving a defence to those who have in fact been instrumental in bringing material which has defamed the plaintiff to its audience. The effect in practice may be to deprive the plaintiff of any cause of action to remedy the wrong which he has suffered and which he would not have suffered had it not been for the link in the chain of publication provided by the contributor who escapes liability

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because of this defence. That may happen when the originator of the defamatory statement is impecunious or cannot be found.
That is an important point which I stressed when I consulted on the question of whether it was right for a defence of this nature to be available to printers. That had been recommended by the Faulks Committee in 1975, and the response to my public consultation persuaded me that it was right. However, the Faulks Committee had concluded that it would be wrong to make the defence an absolute defence absolving distributors from any responsibility in any circumstances, for, broadly, the reasons I have sought to explain. I believe that the reasoning of the Faulks Committee, and the public response to my consultation, justifies some broadening of the categories of defendant to whom this defence may be available beyond those to whom the common law defence of innocent dissemination might have been. But in my submission it would not be right to deprive a plaintiff of his cause of action against a defendant who was aware that he might be wronging the plaintiff and misjudged the plaintiff's chances of succeeding in a defamation action. Unlike the defamed plaintiff, those who may participate in the publication of a libel can protect themselves from the consequences by taking care, by taking indemnities or by taking out insurance against liability.
For the reasons that I have given, I hope that the noble Lord will recognise that that would be a considerable and unjustified extension—indeed, a new defence—in the circumstances and, in the light of that explanation, I hope that he may feel able to withdraw the amendment.
Lord Aldington: Perhaps I may detain the Committee for a moment because in the long saga of my libel-factual career recently I have had experience which is relevant to what the noble Lord is trying to cover in his amendment. However, perhaps I should say first that my recent experience in the libel courts was not my first experience of libel. I do not suppose that the Committee is aware that in 1938 I was appointed secretary of the Lord Chancellor's Committee on the Reform of the Law of Defamation—an earlier attempt to do what is being done here—and but for the war I might have been as knowledgeable as the noble Lord, Lord Lester, and but for the war I might never have got into recent troubles with libel action.
Although I am glad to say that it did not result in court action, I had an occasion when a libel was published by an impecunious man with a subsidy from the Scottish Arts Council, which was rather curious, repeating the main Tolstoyan libel. I found it quite impossible to deal with him so I had to deal with the retailers and the newsagents. Immediately I informed them of what was happening, they wanted to know that I was right and that I was not telling them a falsehood. That was communicated to them in the course of a day and they withdrew all of the offending material. That
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happened with the printers and others in the process also. It seems to me that the law as it is is satisfactory to deal with the point which the noble Lord has in mind.
Lord Williams of Mostyn: I redeclare my interest as a practitioner in defamation, acting for plaintiffs and defendants. I believe that the analysis put forward by the noble and learned Lord the Lord Chancellor is correct and that it should not be an expanded defence for a person who, in certain circumstances such as those outlined in Amendment No. 4, knew that he caused the publication of a defamatory statement simply on the basis that he believed, on reasonable grounds, that the statement was justified on the basis of fair comment. After all, fair comment can only depend on the basis of true, proved facts. I believe as a matter of principle that mere belief in the truth of facts which are incapable subsequently of proof ought not to afford a defence.
A further disadvantage and detriment to Amendment No. 4 is that mere belief that the defamatory statement which is known to be defamatory at the time of publication in certain circumstances—mere belief that qualified privilege attached—should not be sufficient, since whether or not the matter is one of qualified privilege would be a matter for ruling by the trial judge. As the noble and learned Lord said, common practice in a commercial undertaking is to take out insurance or contractual indemnity. It seems to me that there is no reason to expand those defences to commercial organisations, some of which are of great financial power and which are faced by plaintiffs who have no recourse to legal aid and which in many instances may be private litigants.
Lord Lester of Herne Hill: I am grateful to the noble and learned Lord the Lord Chancellor for his clear explanation of his objection to the amendment. I am also grateful to other noble Lords who have spoken, including the noble Lord, Lord Wiliams of Mostyn, to whom I should like to refer as "my learned friend" among other things. I suppose that I too should declare my professional interest as I sometimes appear against him in libel actions: I normally appear for the defendant while he appears for the plaintiff.
I have been persuaded by what the noble and learned Lord has said. We share a common aim: to achieve a fair balance in the Bill between the rights of plaintiffs and defendants. I am reassured by the explanation that Clause 1 is designed to give effect to the common law defence of innocent dissemination. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 5:
Page 1, line 14, leave out ("subject to") and insert ("which are further explained in").
The noble and learned Lord said: I have already spoken to Amendments Nos. 5 and 6 with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Burnham): I must advise the Committee that if Amendment No. 6 is agreed to, I cannot call Amendment No. 7.
The Lord Chancellor The Lord Chancellor moved Amendment No. 6:
Page 1, line 21, leave out ("publishes") and insert ("issues material containing").
Lord Kilbracken: As the Deputy Chairman of Committees has just indicated, this amendment, if agreed, would have the effect of pre-empting my Amendment No. 7 which calls for the word "publishes" to be put into the past tense as "published", but Amendment No. 6 would remove the word "publishes" altogether, replacing it with the word "issues".
I would, however, suggest that the past tense "issued" would be preferable here. If there are defamation proceedings in progress, it stands to reason that the statement has already been published or "issued", if the amendment takes effect. Therefore, surely the past tense should be used. The passage would then read, "a person whose business is issuing material to the public … who issued material containing the statement". I hope that the noble and learned Lord will perhaps consider this.
The Lord Chancellor: I have considered the proposal put forward by the noble Lord, Lord Kilbracken. The real point is that the passage with which we are dealing contains definitions of who is and who is not an "author", "editor" or "publisher". Those definitions apply at all times for the purpose of the clause. It is true that that will happen as far as the past is concerned where the statement has already been issued, but the point is that when giving a definition of who is a "publisher", it is right that that should be done—at least, it is an option—in the tense that we have used. A "publisher" is a person who publishes a statement in the course of that business. It is true that because of that he may incidentally have published a particular statement in the course of his business, but I submit to the Committee that the definitions apply at all times for all the purposes of the clause. For that reason, I have not accepted this suggestion. I have been a little selective in accepting the suggestions of the noble Lord.
Lord Elton: Perhaps I may ask my noble and learned friend why, if that is the case, in line 16 the word is "did" rather than "does", since the rule seems to be the same?
The Lord Chancellor: In line 16 the context is a little different:
"'author' means the originator of the statement, but does not include a person who did not intend that his statement be published at all".
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That is anterior to the publication of the statement. That he did not have that intention must precede publication of the statement. Therefore, there is a distinction between the situation in line 16 and the other positions to which the noble Lord, Lord Kilbracken, has referred.
Lord Kilbracken: Clause 1(5) slips into the past tense again. I do not know why we slip from the present into the past. I believe that there is merit in consistency.
The Lord Chancellor: The same point applies. I believe that if the noble Lord looks at it closely he will see it is rigorously consistent. I have re-examined it in the light of the noble Lord's suggestions and concluded that the ones I have accepted are rightly accepted. We have not accepted those where, on the basis of rigorous consistency, we believe we have done it correctly.
On Question, amendment agreed to.
[Amendment No. 7 not moved.]
Lord Kilbracken Lord Kilbracken moved Amendment No. 8:
Page 1, line 23, leave out ("is") and insert ("was").
The noble Lord said: In moving Amendment No. 8, I should like to speak also to Amendments Nos. 13, 14, 16, 18 and 19. Here, one is not dealing with a definition, although much the same matter arises as in Amendment No. 7. If defamation proceedings are under way, it is clear that the printing, producing, etc., of the statement will already have taken place. Therefore, in the past tense, the person was or was not (as the case may be) involved. Surely, "is" should become "was" at the end of line 23. The same consideration applies to the other amendments that I have mentioned.
The Lord Chancellor: The point is the same, and I cannot elaborate it. Subsection (3) is in the nature of an exclusion from the definition which applies at all times for all the purposes of the clause. It is perfectly correct as it is. I do not say that the alternative would not be possible. However, if we are to be consistent I believe that this is the right way to do it.
Lord Kilbracken: In the absence of any support, I accept what the noble and learned Lord has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 9 to 12:
Page 1, line 23, at end insert ("only involved").
Page 1, line 24, leave out ("only involved").
Page 1, line 26, leave out ("only involved").
Page 2, line 3, leave out ("only involved").
The noble and learned Lord said: I have spoken to Amendments Nos. 9 to 12 with Amendment No. 1. I beg to move the amendments en bloc.
On Question, amendments agreed to.
[Amendments Nos. 13 and 14 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 15:
Page 2, line 7, leave out from beginning to ("statement") in line 11 and insert—
("(d) as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement;
(e) as the operator or provider of access to a communications system by means of which the").
The noble and learned Lord said: I have spoken to Amendment No. 15 with Amendment No. 1. I beg to move.
[Amendment No. 16, an amendment to Amendment No. 15, not moved.]
On Question, Amendment No. 15 agreed to.
Lord Kilbracken Lord Kilbracken moved Amendment No. 17:
Page 2, line 10, leave out ("a defamatory") and insert ("the").
The noble Lord said: Amendment No. 17 is a minor drafting point. Perhaps the noble and learned Lord can explain why the word "defamatory" in line 11 is necessary. Can it not simply read "by means of which the statement is transmitted"?
The Lord Chancellor: If the Committee looks at Amendment No. 15, it will see that Amendment No. 17 is on that account not necessary. I have accepted the effect of this amendment in my Amendment No. 15.
Lord Kilbracken: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 and 19 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 20:
Page 2, line 12, at end insert—("In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.").
The noble and learned Lord said: I have spoken to Amendment No. 20 with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 21:
Page 2, line 24, leave out ("cause of action which arose") and insert ("litigation which has commenced").
The noble Lord said: I have put down Amendment No. 21 at the request of the Scottish Law Society. I pay tribute to the quality of its briefing material provided by Mr. Michael Clancey. Deferring to Mr. Clancey's greater knowledge of Scots law, I am told that "cause of action" relates principally to the English and Welsh analysis of rights of action and that, in the context of the United Kingdom, ought more appropriately to be replaced by the words in the amendment. I cannot assist the Committee further.
The Lord Chancellor: Needless to say, I am reasonably familiar with this matter. I accept that the phrase "cause of action" is not as technical a term in Scots law as in English law. However, I suggest that it is capable of being understood by Scots lawyers. I do not believe that
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the briefing suggests otherwise. The expression is used in other Acts which apply to Scotland; for example, in Section 17(1) of the Defamation Act 1952. I can see the possibility of other phrases, but this seems to me to be a fairly precise phrase which is capable of being understood by Scots lawyers. While the point is worth noting, I believe that what we have is suitable.
Lord Williams of Mostyn: I am obliged to the noble and learned Lord for that explanation. It is not my intention to press any of the amendments in my name to a vote this evening, but I have indicated that on subsequent occasions I may wish to test the feeling of the House. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1, as amended, agreed to.
Clause 2 [Offer to make amends]:
Lord Kilbracken Lord Kilbracken moved Amendment No. 22:
Page 2, line 27, leave out ("has published") and insert ("was the author, editor or publisher of").
The noble Lord said: Unlike my other amendments which were all drafting amendments, this amendment raises a question of some substance in which I hope the Committee will see merit. Clause 2(1) at present states:
"A person who has published a false statement alleged to be defamatory of another may offer to make amends under this section".
That is an important new provision—a fast-track procedure, as it has been called—which should have the effect of reducing the immense cost of litigation to all parties and saving the time of the courts.
As at present drafted, however, it is not made available to the author or the editor, but only to the publisher of the statement complained of. I do not know why that should be the case. It is obvious that the author and the editor may be defendants. Otherwise, why should they be mentioned in Clause 1(1)? It seems clear to me that they, too, should have the right to make this offer on the terms set out in the clause. My amendment would have that effect by amending the subsection to read:
"A person who was the author, editor or publisher of a false statement alleged to be defamatory of another may offer to make amends under this section".
I suppose that as an author I should declare some kind of interest, though I hope never to be guilty of defamation. I beg to move.
The Lord Chancellor: I do not wish to accept the amendment because these provisions—the fast-track as it has been referred to—are intended to apply to any person who has published a defamatory statement. The word "published" has an established wide meaning in the law of defamation. It makes no difference for this purpose whether the person who has published the statement would be regarded as a publisher, editor or author. Indeed, not all of those who publish defamatory statements would be necessarily regarded as any one of those, using everyday language.
A person who utters a slanderous comment publishes it within the meaning understood in the context of the definition, but it might be artificial to describe him as the author. Accordingly, the procedure of the offer to make

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amends is a procedure which should be available to everyone who has published a false statement alleged to be defamatory of another, whether that person would qualify as a publisher, editor or author in the strict sense.
Lord Kilbracken: I am surprised. I know that words can mean anything that lawyers want them to, but it seems rather surprising that a person who writes an article or a book is thereby publishing it, or that an editor is publishing it, particularly when we have in Clause 1(2):
"'publisher' means a commercial publisher, that is, a person whose business is issuing material to the public…who publishes a statement in the course of that business".
It would never have occurred to me, as a layman, that the writer or editor of a book could use this process. However, since the noble and learned Lord has made it quite clear that in the legal use of language that is the case, and that the author of a book counts as the publisher, I am prepared to accept that. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 23:
Page 2, line 27, leave out ("false").
The noble and learned Lord said: The amendment is a drafting amendment to remove a word which became redundant as a result of earlier drafting changes made following our consultation on the draft Bill. That was pointed out to me by the noble Lord, Lord Kilbracken. I have given effect to that in the amendment. When I looked at the noble Lord's suggestions originally, I did not accept this one, but on more mature consideration I have seen that he is right. I gladly acknowledged its authorship. I have published the amendment, but I believe that he is the author, having published it to me.
There are one or two other amendments grouped with Amendment No. 23 with which I could perhaps deal. Amendment No. 28 is in my name. It is a small drafting amendment in the description of the effect which a party's acceptance of an offer to make amends will have on his cause of action on defamation. It substitutes the words "may not" for "cannot" in preventing him from pursuing, or further pursuing, that course of action (which is succeeded by the right to enforce the offer). I beg to move.
Lord Kilbracken: I am grateful to the noble and learned Lord for coming round to my point of view, apparently, after reading the words of wisdom that I published in my letter to him.
On Question, amendment agreed to.
Lord Kilbracken Lord Kilbracken moved Amendment No. 24:
Page 2, line 28, leave out ("of another").
The noble Lord said: In moving Amendment No. 24, I speak also to Amendment No. 25. I simply want to ask whether the words "of another" in line 28, and "complained of in line 40 are necessary. They seem to me to be otiose. I beg to move.
The Lord Chancellor: I accept that the two words in Amendment No. 24 may not be necessary to the sense
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of subsection (1). There would not be a cause of action unless the statement were defamatory of someone other than the defendant himself. Nevertheless, the words do serve a useful purpose in linking together the provisions of this and the following two clauses, which envisage, first, that the publisher of the statement will address his offer to the other person, the person who has been defamed by it, but has not necessarily issued proceedings so that he or she could be described as the plaintiff; and, secondly, that the acceptance or non-acceptance of the offer will have particular consequences as between the publisher and that other person. So although the words are not strictly necessary for the sense of the clause, they provide a useful link, and therefore I wish to retain them, if the noble Lord is willing to withdraw his amendment in the light of that explanation.
Lord Kilbracken: I also raised the question of Amendment No. 25 and the words "complained of in line 40. My feeling is that since we have stated in Clause 1(1) that we are talking about the statement complained of, it is subsequently not necessary to define it each time, and therefore the words "complained of can be left out.
The Lord Chancellor: It may be convenient to answer that point now. Subsection (4) explains what is meant by an offer under the clause. It is an offer to do various things in relation to the statement complained of. The words are necessary for the purpose of identifying the statement to which the offer refers. It is for that reason that I do not feel able to accept Amendment No. 25. One has to specify what it is that one is dealing with, and identify it for the purpose of the offer under the clause.
Lord Kilbracken: I am sure that the noble and learned Lord is right; he always is. However, Clause 2(1) states:
"A person who has published a false statement alleged to be defamatory",
so that is what we are talking about. Subsection (2) states:
"The offer may be in relation to the statement generally".
However, when the word "statement" appears again in line 40 on page 2 for some reason we have to put in the words "complained of". I do not believe that that is necessary but it is not a point of earthshaking importance. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 25 not moved.]
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 26:
Page 2, line 41, at end insert ("which shall be made by a joint statement in open court unless the parties otherwise agree").
The noble Lord said: The amendment deals with the power of the court to determine the form of fulfilment of an offer of amends. It is the result of a great deal of concern that has been expressed by newspapers such as The Times in its editorial today, the Financial Times and

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the BBC and other media organisations. They are concerned about how to make the fast track procedure really work in the sense that it will be used in practice. As the Bill is currently drafted, an offer to make amends includes the publication of a correction and apology. If the parties were unable to agree on a suitable correction and a suitable apology, the court would decide the issue under Clause 3(3).
By analogy with Clause 9(3), which relates to the summary of procedure, the court would therefore have the coercive power to specify the terms and the timing of the apology. The power to resolve disputes about the steps to be taken in fulfilment of an offer of amends is already available to the High Court under Section 4(4)(a) of the Defamation Act 1952. However, the defence of unintentional defamation under that Act has proved so unworkable that in practice very few offers of amends have ever been made. Therefore, there has been little opportunity for the courts to exercise their Section 4 powers.
In my view, the Bill rightly seeks in Clauses 2 and 3 to remove the obstacles to the successful operation of the defence of unintentional defamation by means of the creation of the new defence of offer of amends. That is greatly to be welcomed. The new streamlined defence would provide a welcome means of reducing unnecessary litigation while vindicating the plaintiff's good name provided that the procedure was used in practice. The conditions necessary to bring the defence into operation have been amended and that too is welcome. However, the power of the court to make orders dealing with the prominence and wording of apologies and corrections in default of agreement between the parties has not been amended. It is the continued inclusion of that power which is unwelcome to most broadcasters and newspaper editors.
I shall explain why that matters a great deal. An editor or broadcaster confronted with the ultimate prospect of being ordered to give an apology or correct a prominence which he felt was not merited would be most unlikely to be willing to make an offer of any kind. Rightly or wrongly, the threatened loss of editorial sovereignty would be too great. If that is right, the defence will again be little used in practice. If any evidence is needed for that one only has to look at the editorial in today's copy of The Times.
The amendment would alter the focus from an offer to publish an apology or correction to an offer to join in the making of a statement in open court. The power of the judge would be confined to ruling on whether what was said in open court was suitable and efficient as an apology. The statement would come to the attention of the public vindicating the reputation of the plaintiff in two ways. First, the Press Association is, as a matter of routine, present in court when defamation proceedings are disposed of by a statement in open court. The outcome of the hearing is then wired to newspapers and periodicals. Secondly, if the defendant were a newspaper or a broadcaster its respective code of practice would require it to report the outcome of the action. The code of practice of the Press Complaints Commission requires, for example, that a newspaper or
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periodical should always report fairly and accurately the outcome of an action for defamation to which it has been a party.
Clause 2 as it currently stands would allow for a degree of judicial encroachment of a coercive kind that would be regarded as too coercive to make the offer of amends procedure likely to be attractive in practice. My amendment seeks to make the defence of offer of amends workable for both plaintiffs and defendants and to strike a fair balance between their competing interests. I beg to move.
Lord Williams of Mostyn: I share the concern expressed by the noble Lord, Lord Lester of Herne Hill, and the concern expressed on many occasions both recently and earlier by editors and those who control the contents of broadcast and televised matter. I do not believe that the amendment will deal fully with the mischief that the noble Lord wishes to avoid because it seems to me that his present amendment leaves it open to a joint statement in open court unless the parties otherwise agree. That may well mean that in default of agreement the full offer of amends cannot be acceptable and therefore will not be accepted. But I wholly agree with the fundamental principle. It is wrong as a matter of principle to dictate to the editor of a newspaper or periodical or to the editor or the director of a broadcast item to include televised material, a form of apology which may not be wholeheartedly meant. That is an undue interference with the freedom of the press. I believe that it will vitiate the value and the effectiveness of the offer of amends procedure. I do not believe that the present amendment deals fully with the mischief.
The problem is not restricted to this jurisdiction. There have been serious difficulties in South American countries—for instance, Argentina—which are feeling their way towards a free press after many years of totalitarian dictatorship and interference with the press where editors violently object as a matter of principle to directed corrections or apologies with which they do not concur. Therefore, I believe that in principle the thrust of the amendment is right and I believe that in practice if something is not done by way of useful amendment the procedure will not be used by many newspaper editors when it ought to be.
Lord Elton: Perhaps I may ask my noble and learned friend whether under this or any other construction it would be possible to offer the reluctant editor the alternative of paying a suitably increased financial compensation. I see the difficulty of getting a free press to make an apology which is not sincere. Equally, I see the importance of protecting the victims of press unfairness who are numerous and at present too inadequately defended. I see that the courts should throw their protection over those people and I wonder whether that is a way of squaring that circle.
The Lord Chancellor: I agree that there is a problem in relation to forcing an apology from someone who does not wish to make an apology. I certainly do not wish to do that and we have tried to meet the point in the wording of Clause 9. It states:
"If they cannot agree on the content, the court may direct the defendant to publish or cause to be published a summary of the court's judgment agreed by the parties or settled by the court in accordance with the rules of court".
That is intended to deal precisely with the situation where a party does not wish to apologise because he believes that he was right in the first place but cannot prove it. Therefore, he is likely to have been found liable but does not wish to make an apology. Therefore, we have substituted for an enforced apology a judgment of the court on the outcome to be agreed by the parties or, failing agreement, to be settled by the court. I believe that that deals with that point.
I have read carefully, as I always do, the leaders in The Times. I have thought about the ITN broadcasts which will start with a "bong". I have not yet heard one of those but I am sure that The Times will anticipate the future in a way that I cannot. However, I do not believe that this amendment deals with that point. We have not yet reached the amendment which deals with that point. The answer to the "bong" editorial, if I may call it that, is to be found at the third paragraph of Clause 9(2), which states:
"If they cannot agree on the time, manner, form or place of publication, the court may direct the defendant to take such reasonable and practicable steps as the court considers appropriate".
The use of the words "reasonable" and "practicable" are intended to guard against the scenario which one finds in the leader in The Times.
Of course, it is possible to take the view that the court would act unreasonably or impracticably, but I am not prepared to take that view. The judges would take account of the particular conditions set out in Clause 9. However, this amendment does not directly address those matters and therefore I should have thought that it restricts the scope of an offer to make amends. I cannot see why it needs to take the restricted form which the amendment proposes. An essential element of the offer, which has been accepted, would be missing if the parties were unable to agree.
There is a question of precisely what the formulation should be. I should be the last to want to have a system which would not work for one reason or another. So far I have accepted the essence of the point made by the noble Lord, Lord Williams of Mostyn, and have tried to deal with it in the form of words which I used in Clause 9(2). It may be that something more needs to be done. I shall be happy to consider that because I want this to work. It is a question of whether it needs to be restricted to a statement in open court.
8 p.m.
Lord Hoffmann: I am not sure whether the noble Lord, Lord Lester, is speaking also to Amendment No.
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36 and subsequent amendments. If he is not, I shall wait until we reach that point before giving the Committee the remarks that I wish to make about them.
Lord Lester of Herne Hill: Both the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Hoffmann, are quite right to indicate that this amendment should be taken together with the later amendment dealing with Clause 9 and the power of the court to determine the form of the apology by way of summary relief. I have spoken to that matter because I intended the two to be taken together.
Lord Hoffmann: If the same point arises, I would say that Amendment No. 36 and the three which follow it would in effect destroy the main purpose of the summary procedure. The whole idea of the summary procedure was based upon the perception, which I think is widely shared, that a libel victim does not usually want a large sum of money but rather the rapid publication of a correction and the vindication of his reputation as nearly as possible in the same place and with the same prominence as the original libel.
The Bill as it stands provides that in the first instance the courts will in general terms order the publication of a suitable correction and apology. But obviously, as my noble and learned friend the Lord Chancellor said, one cannot make a newspaper say that something is false when, despite the views of the judge, it still believes that it is true. After all, one must allow for the possibility that the judge may be wrong.
Nor is there any point in making a newspaper publish an insincere apology. Therefore, the Bill provides that the publication of an apology is for the parties to agree. But if there is no agreement, then the judge may direct the newspaper to publish a summary of his judgment. That does not commit the newspaper to saying that it agrees with it. In fact, if it is willing to risk another libel action, it can say that it disagrees with the judgment. But that judgment must be published because that is what justice to the victim requires.
It is only the most doctrinaire view of editorial freedom which will seriously object to a newspaper simply having to publish a summary of the judgment. The right to make a statement in court which the newspaper can ignore is perfectly useless. I know that my noble friend Lord Lester says that there is a code of practice relating to those matters, but we have some experience of what happens to codes of practice in this area. You may as well allow the victim to go out and proclaim his innocence to the passers-by in the Strand. The only proper remedy is to bring what the judge considers to be the truth to the attention of the same people who saw the original libel.
If that is thought to be an invasion of editorial freedom, one should remember that that is part of a larger package. First, there is the limitation of summary damages to £10,000. I should not like to see that limit increased to £25,000, as the noble Lord, Lord Lester, suggests, because £25,000 is quite a large sum of money. It is important to make it clear that the summary remedy is intended for people who are not primarily interested in money.

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Secondly, the other part of the package is that newspapers have the advantage of using the summary procedure as a cheap way to get rid of gold-digging claims. All that I have heard from editors and newspaper lawyers suggests that they regard this as a useful weapon. The amendment in the name of the noble Lord, Lord Lester, would give them all the advantages of the summary procedure with virtually no concession on their part to the rights of libel victims. I do not believe that that is fair.
Lord Lester of Herne Hill: I am extremely grateful for all the speeches that have been made on this and later amendments. I hope that the noble and learned Lord, Lord Hoffmann, does not regard me as doctrinaire on the approach towards editorial independence and its sovereignty because I certainly do not have that view.
I agree with the noble Lord, Lord Williams of Mostyn—and I believe that all Members of the Committee agree—that we must avoid inserting into a statute coercive judicial powers which dictate unnecessarily the form and manner of publication in newspapers. I am extremely heartened by the fact that all who spoke share that view.
Having heard the extremely persuasive speeches of the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Hoffmann, I should like to reconsider the matter. I am sure that it will be reconsidered also by the press because it is extremely important that the persuasiveness of the noble and learned Lord, Lord Hoffmann, persuades newspapers about the fairness and practicability of that procedure. If my amendment has done no more than serve to raise that issue, it has probably been worth while. Therefore, I shall reconsider the matter in case I wish to return to it on Report. Meanwhile, with gratitude, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 27:
Page 3, line 6, leave out ("not").
The noble Lord said: As presently drafted, Clause 2(5) indicates that the procedure of an offer to make amends may not be made by any defendant after he has served a defence. My proposal is that the word "not" should be deleted.
I make that suggestion for these reasons of practicality. Many publications are made responsibly by serious newspapers, although they are erroneous. It is not always discovered that they are wrong until perhaps the close of pleadings or, more often, the exchange of witness statements, which is automatic in libel actions. The usual defences of course would include justification, fair comment or qualified privilege.
It may well be that a perfectly responsible defendant publisher—for example, a newspaper—may wish to plead fair comment on a matter of public interest in the belief that it can demonstrate the truth of the underlying facts or justification to prove the underlying facts themselves, or it might be under a legitimate, genuine misapprehension that qualified privilege did attach.
It seems to me, with great respect, that it is an unnecessary and unneeded restriction on the offer to make amends if the offer may not be made at any time after a defence has been served relating to fair comment, justification or qualified privilege, when the newspaper, for genuine reasons, wishes to abandon any of those defences. I beg to move.
Lord Lester of Herne Hill: I agree with everything that has been said by the noble Lord, Lord Williams of Mostyn. I have nothing to add.
The Lord Chancellor: It is a matter of some interest, to see just what we should do about it. The purpose of the provisions in Clauses 2 to 4 is to encourage defendants who have published defamatory statements to make speedy reparation to the wronged plaintiff. It will be up to the defendant to make up his mind reasonably quickly that he wants to use this machinery, which will curtail the proceedings and avoid trouble and expense for both parties. Speed is clearly of the essence, although one of the reasons why the defence under Section 4 of the Defamation Act 1952 did not achieve popularity as it might have done was that it required the defendant to act so fast that he hardly had any opportunity at all to carry out legitimate investigations and consider whether the best course would be for him to make an offer of amends under the section. Clauses 2 to 4 do not provide a specific time limit within which the defendant must make up his mind, but they do require him to act before he serves a defence. That allows him time to complete any necessary investigation.
Once he has served a defence, he has signalled his intention to go down the other path, and to defend the claim on some other basis, raising other issues, so that the defamation proceedings will take their normal course. The service of a defence, which is the result of his own considered decision, is a natural watershed. It is the point at which he must have decided that there is a defence which he wants to pursue, rather than make immediate amends. If a defendant were permitted to serve a defence first, and then decide that he would, after all, like to take advantage of these provisions, much of the benefit of these provisions might be lost. It could take away all sense of urgency, and fail to provide the plaintiff with the prompt amends that the provisions are designed to achieve.
The clause, as drafted, does not impose any time limit in the sense of a fixed time, but it does suggest a sensible watershed at which the decision is taken not to go down the road of an offer of amends because it has been decided to defend the action. This is the thinking behind the clause. An amendment as simple as this is easily made, but it affects, quite basically, the idea which is embodied in these provisions.
Lord Williams of Mostyn: I am sorry to say that I believe myself to be continually right and the noble and learned Lord, the Lord Chancellor, to be continually wrong in this instance. Everyone who has acted in a defamation case for the defendants realises the value of investigative journalism, particularly in a country as

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obsessively secret as ours. Many investigative programmes or articles are conscientiously researched and legitimately put forward.
The noble and learned Lord said that there was no fixed time. I respectfully disagree. If a plaintiff issues his writ promptly and his statement of claim promptly then, of course, the rules of court are quite restrictive in terms of time when the defence may be served, unless an extension is applied for and given. They are not frequently given in defamation cases. However, a defendant may honourably come to a conclusion that he was simply honourably wrong in the allegations he made against a wounded and wronged plaintiff. He may realise that his sources were wrong. He may simply realise, on a view, perhaps, of expert evidence from the plaintiff on the exchange of witness statements, that he has it hopelessly, awfully wrong.
The noble and learned Lord said that in effect that gives to the defendant—though he put it more elegantly than I—the penny and the bun but, of course, the answer to that lies in the question which the noble Lord, Lord Elton raised. If an apology is not forthcoming, can the damages be enlarged? The answer is: yes, a thousand times yes. That is because, as every practitioner will recognise, what inflates damages in most defamation cases is the refusal to apologise, or the refusal to apologise promptly. What is suggested here is that if a newspaper realises that it has it wrong, and realises, perhaps, that justification cannot run or that qualified privilege is a mistaken assertion, it ought to be able to say to the wounded plaintiff: "I have it wrong; I will make amends." Of course, if the fast-track procedure allowed an increase up to £25,000, then the plaintiff might well be adequately compensated. It seems to me to be unduly rigid in an area of law which is hide-bound by over-rigidity, to refuse to allow a repenting, repentant defendant to use this procedure simply because he has put the pleader's signature to a defence of fair comment, justification or qualified privilege.
8.15 p.m.
Lord Lester of Herne Hill: I am so grateful to the noble and learned Lord. Is it not the case that, as an example of the very rigidity of which he complains, at present the jury are not allowed to be told about an offer of amends once the matter comes to trial? Therefore, a defendant who does everything he reasonably can to make amends by way of apology and offers of various kinds is not able to place that material before the jury.
I should say, as regards the answer to that question, that it is the subject of a pending appeal in which I am professionally representing the defendant. Is that not now the current position which, therefore, adds force to the amendment in the context of the fast-track procedure, because one cannot remedy the situation once the matter goes to trial.
Lord Williams of Mostyn: I can achieve a lifelong ambition, because I can use the immortal words, "Up to a point, Lord Copper", on a legitimate public occasion. It is not entirely right, because one can always put forward on behalf of a defendant the fact that an apology has been offered. I have done it myself, not always with
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enormous success. The fundamental point is that it is an undue rigidity which is capable of harming the defendant's interest but, not least, capable of taking away from a plaintiff an offer of amends, which is all he really wants. Having said that, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 2, as amended, agreed to.
Clause 3 [Accepting an offer to make amends]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 28:
Page 3, line 14, leave out ("cannot") and insert ("may not").
The noble and learned Lord said: I have spoken to this with Amendment No. 22. I beg to move.
On Question, Amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 29:
Page 4, line 7, at end insert ("where the parties so agree").
The noble Lord said: This relates to Clause 3, subsection (9):
"Proceedings under this section shall be heard and determined without a jury."
My amendment seeks the agreement of both parties for a judge alone so to decide. In essence, this comes down to a question of the approach to the assessment of damages. Many would, perhaps, feel that damages in personal injury cases are grossly unacceptable to the vast body of public opinion, rightly, as I submit, because the power of increasing damages was taken away from juries and now juries virtually never assess damages, at least in England and Wales, contrary to the position which has applied in Northern Ireland.
The reason that I put this forward is that it should be for both parties to agree that a judge alone should assess the damages. Judges are notoriously mean in assessing damages in personal injury cases. That is the basis for this amendment, which I beg to move.
The Lord Chancellor: In introducing this machinery, we are seeking to provide a way in which the parties will be brought together to reach a sensible conclusion which will be for the benefit of both plaintiffs and defendants. In many cases it may be unnecessary for them to seek the assistance of the court at all. But if they cannot agree on the steps to be taken in fulfilment of the offer, they may seek the assistance of the court under Clause 3.
One of the factors which will make the offer to make an amends an attractive option for defendants is the knowledge that if they cannot agree with the plaintiff on the exact details of the steps to be taken by way of amends, any money compensation which would form part of the amends package would be assessed by the judge who would clearly take very much into account such mitigating factors as the defendant's willingness to restore the plaintiffs reputation fully and promptly. It is important to recognise that a defendant who makes an offer under these provisions will be entering into an open-ended commitment to do a number of things which

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may include the payment of a sum of money on which there is no upper limit. Certainly defendants will recognise that.
The effect of this amendment, providing that Clause 3 proceedings should only be heard and determined without a jury if the parties so agreed, is to give the plaintiff the option of insisting that the steps to be taken to honour that open-ended commitment should be determined by a jury. Immediately, the costs which the parties are likely to meet will be much more substantial. The defendant will bear that in mind when deciding whether to make an offer under Clause 2. But another and more serious objection is that a defendant may not even contemplate making an offer if it will amount to entering into not only an open-ended commitment but a commitment to pay whatever sum, and take whatever steps, a jury may decide upon. Our intention in these provisions is to provide machinery which defendants will want to make use of for the purpose of making amends. We shall fail if defendants find that there is a sting in the tail of that so that they conclude that there is no point in using it.
It is always possible for a defendant to offer to settle at any stage of the litigation on such terms as he or she thinks he should offer. Then it will be for the plaintiff to decide whether to take that offer. In my submission to the Committee this provision is intended to introduce a special procedure in which it is appropriate that the judge should decide the amount in question as a concomitant to the fact that this is a special procedure which is intended to short-circuit the existing procedure and also to involve a degree of constraint on cost, which is an important element in the matter. I hope that, in the light of this explanation, the noble Lord will feel able to withdraw the amendment.
Lord Williams of Mostyn: I shall indeed—although I may wish to return to it at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3, as amended, agreed to.
Clause 4 [Failure to accept offer to make amends]:
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Williams of Mostyn: I wish to raise some general questions. However, I shall be economic in my words because in a sense I repeat the questions which I raised earlier. Clause 4(3) states,
"There is no such defence if the person by whom the offer was made … had reason to believe that the statement complained of—
"(a) referred to the aggrieved party or … was both false and defamatory of that party".
"The person" referred to is the defendant. I have mentioned my next question before. If a defendant realises that his earlier belief was wrong and that it was grossly wounding of a plaintiff, why should no offer of amends defence be available to him? Clause 4(5) states,
"The offer may be relied on in mitigation of damages whether or not it was relied on as a defence".
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I wonder how that will work in practice and whether there is not some internal inconsistency here, and how a judge will deal with these matters if an offer is relied on in mitigation of damages though it is not relied on as a defence. That is a genuine question as to how this measure will work in practice.
The Lord Chancellor: It is some time since I practised in the field of defamation in another jurisdiction and therefore I offer comment on practice with a degree of diffidence which perhaps I do not always show. As regards the latter matter to which the noble Lord referred, what I assume to be the situation is that if the offer was made but subsection (3) of Clause 4 applies, and therefore the offer either was not put forward as a defence or fails as a defence for the reason that the conditions there referred to were applied, it is still possible to rely on the offer as a mitigation of damages on the view that if the offer had been accepted the resulting damage would have been less than it might otherwise be. That is the way I assume the measure might work.
On the main point, the intention that the noble Lord has evinced is that there should be machinery to determine the steps to be taken pursuant to an offer to make amends which has been accepted, but that the fact that a good offer had been made and not accepted should not amount to a defence. Those modifications together would undermine the purpose of the offer to make amends. In making an offer, the defendant commits himself to making appropriate amends, which may include money compensation assessed by a judge. The incentive to commit himself in this way is provided by the knowledge that he will have an absolute defence if the offer is not accepted (unless it is shown that he knew or had reason to believe that he was defaming the plaintiff). The effect of taking that defence away is that once the defendant has made an offer, the plaintiff must win, and has nothing to lose by disregarding the offer and insisting on a trial. It is most unlikely that any defendant would then use this machinery rather than making a without prejudice offer. It is important to draw attention to the fact that this is an alternative. It is not the same as either a without prejudice offer or an offer of settlement. It is a more particular matter that is being addressed. If Clause 4 were to go, the position would be hopeless. The single most important part of the proposals made for reform remaining to be implemented would go if this were taken out of the package.
I think it is also worth saying that the approach of the Court of Appeal in recent cases, such as those of Elton John and Esther Rantzen, towards the control and rationalisation of libel damages, as well as running quite contrary to the modern attitude of courts towards litigation generally, would be affected in an inconsistent way if Clause 4 were not kept in place. In my submission, Clause 4 is an essential part of the machinery for this special type of offer of amends which is set out in Clauses 2 to 4.
Lord Williams of Mostyn: I am obliged to the noble and learned Lord for his exposition. I do not concur but my observations in respect of Clause 4 relate to the judgments of the Court of Appeal in the case of Elton John v. Mirror Group Newspapers which itself was not consistent with the Court of Appeal judgment which occurred shortly before that in the case of Rantzen. However, I shall withdraw my opposition on the basis that I may well return to it in due time.
Clause 4 agreed to.
Clause 5 [Limitation of actions: England and Wales]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 30:
Page 5, line 41, at end insert ("and
(d) the conduct of the defendant after the cause of action arose including the extent (if any) to which the defendant responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiffs cause of action against the defendant.").
The noble Lord said: It may be for the convenience of the Committee if I speak to Amendment No. 30 which stands in my name and also indicate the basis of my opposition to the Question that Clause 5 stand part of the Bill because I have indicated my general approach to the Committee earlier.
My fundamental objection to Clause 5 is that it is wrong to take away a plaintiff's right, subject to exceptions, to the three-year period in respect of limitation. Amendment No. 30 includes a further relevant protection for a plaintiff who, if Clause 5 becomes Section 5 of the Act, may need further protection.
Perhaps I may make one or two general observations. If I stand on the pavement outside this House and am run over by the Evening Standard delivery van, I do not understand why I should have three years in which to claim in respect of my broken leg; but if another newspaper defames me, perhaps wounds my life more fundamentally than the break of my leg would represent or imply, I have only the one year. I know it will be said that there are exclusions. I do not see why there should be any reason in principle that a plaintiff should be limited to one year.
There is no legal aid for plaintiffs. Many plaintiffs are private individuals. Very often a plaintiff will want to take action—for instance, if he is a doctor or a member of a profession which is subject to an internal complaints machinery. Very often a plaintiff will have to save quite strenuously to afford the costs. If no legal aid is available, there is normally an inequality of arms between defendants, who tend to be well off, and plaintiffs, who, if they are not a member of a union or a professional organisation, are not well off.
Despite the explanations given on an earlier occasion, it seems to me that there is no proper reason to limit the limitation period to 12 months in respect of false material published which is defamatory as opposed to the personal injury example that I gave earlier.
I recognise, of course, that there are exceptions. But the court will tend to be rigid if the experience of the Limitation Act in personal injury cases is any guide. For the convenience of the Committee, I have sought to address the matter generally. I beg to move.
8.30 p.m.
Lord Lester of Herne Hill: On this occasion I have the misfortune not to agree with the noble Lord, Lord Williams of Mostyn. It seems to me that there is a major difference between a personal injury case involving an accident and the subsequent trial and a claim for defamation. The two main differences are these. Defamation cases are tried by a jury. The same factors which apply in criminal trials—the need for the trial to be brought on quickly while memories are fresh and the defendant given an opportunity to vindicate himself speedily—apply in defamation proceedings. The other factor is that the burden of proof is upon the defendant in a libel case. That is often a heavy burden and if the defendant has to shoulder it, it is right that he knows there is a fairly short time limit within which he will have to prove his case.
I therefore regard the Bill as sensible in giving one year as the limitation period. I do not think that there is a justification for a longer limitation period. But it enables the plaintiff to gather funds to be able to pursue his course of action.
The Lord Chancellor: I am grateful for the anticipatory support from the noble Lord, Lord Lester of Herne Hill, for what I shall say.
Clause 5 implements one of the major recommendations made by Lord Justice Neill's working group; and I need not remind the Committee of the depth of experience which resided in that group.
I think that I discern a difference between the situation in which, unfortunately, the noble Lord had his leg broken by a newspaper van and in which he was defamed either by that newspaper or another. The injury by defamation is an injury done at the time, and the sooner it is corrected the better for everyone. In so far as the injury to the broken leg heals, that is well and good. But the substitution of damages, which is the remedy, depends a good deal on how the injury turns out. One might hope that the injury would heal quickly and that so good and so straight would be the result that one would hardly notice the difference as the noble Lord walked on in his brilliant career. In that case the damages would be somewhat reduced. Therefore, a three-year period of limitation for personal injuries seems reasonable in regard to these circumstances.
However, as the Neill group said, in its experience it would be in only the most exceptional cases that a plaintiff could be justified in delaying for more than a year before starting defamation proceedings. That is the result of a great deal of experience. I think that all of us agree that the sooner these actions are taken the better for reasons of freshness of evidence and the like.
Looking at the law of limitation generally, I cannot anticipate what the Law Commissioners may say, for example, on the law of limitation on personal injuries.

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As regards Amendment No. 30, we put the measure into the Bill as published for consultation. Following consultation, and in response to many comments on the clause, it was modified so that fewer examples of "all the circumstances of the case" to which the court might need to have regard were provided. The basic and essential provision is that the court shall have regard to all the circumstances, which was not the case under the previous legislation. Although the reason for and length of delay will always be relevant, and lack of knowledge will often be, it is clearly not possible to identify all the kinds of circumstances which could conceivably in any case be relevant for consideration.
Moreover, it was pointed out in consultation that the inclusion of a specific example could raise two expectations which it should not do. One possible expectation was that a plaintiff who could show that his case fell within that example must succeed. That is clearly not right if it is just an example of a matter which could affect the exercise of the discretion. The reason that we took that out in the final form of the Bill as laid before the Committee was in order to avoid those difficulties.
My answer on the main point is that there is an essential difference between the cause of action in defamation and the cause of action in personal injuries. The accumulated experience of the Neill Committee was in favour of, and recommended as a central recommendation, the limitation to 12 months. The discretion should be a completely open one and particular examples are on the whole unwise.
Lord Williams of Mostyn: I cannot detect a true difference in principle in the examples referred to by the noble and learned Lord. I am not employed as a manual worker. Therefore, if my leg heals up after six weeks I have no loss of wages or anything of that kind. If I am employed in a profession where reputation is important I may have special damage. The consequences of the dissemination of the defamatory material may be very wide and difficult to establish. I detect no difference in principle. I could understand a principled approach which said that the limitation period for the personal injury was to be the same as for defamation. But I fail to see any distinction in principle between 12 months for one and three years for the other. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 31:
After Clause 6, insert the following new clause—
UNJUSTIFIED PROCEEDINGS FOR, OR ACTIONS IN RELATION TO, ALLEGED DEFAMATION
"(.—(1) If a person (whether or not the person allegedly defamed) without reasonable cause issues a writ for defamation or by letter, advertisement or otherwise without reasonable cause threatens to issue such a writ, or otherwise without reasonable cause attempts to hinder the publication or further publication of allegedly defamatory material, the person aggrieved (whether or not the person to whom or
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against whom the threats or attempts were made) may bring proceedings against the person issuing the writ or making the threat or attempt, claiming any relief mentioned in subsection (4) below.
(2) In any such proceedings the onus of proving reasonable cause shall be on the defendant or defender but he may discharge it as follows—

(a) if he has issued a relevant writ, by undertaking to the court to pursue the consequent proceedings with due expedition,,

(b) if a relevant writ has not been issued, by undertaking to the court that such a writ will be issued forthwith and that consequent proceedings will be pursued with due expedition.

(3) Breach of any such undertaking mentioned in subsection (2) above shall, in addition to being a contempt of court, revive the plaintiff's or pursuer's right to claim the reliefs in subsection (4) below.
(4) The reliefs are as follows—

(a) dismissal of the writ,

(b) a declaration that the threats are unjustifiable,

(c) an injunction or interdict against the renewal of the writ or the continuance or resumption of the threats or attempts,

(d) damages, including (where appropriate) aggravated or exemplary damages.").

The noble Lord said: The amendment stands in the name of the noble and learned Lord, Lord Simon of Glaisdale, but I have given notice that I wish to move it on his and my own behalf. The noble and learned Lord asked me to apologise that it is impossible for him to be present this evening.
The amendment follows from a point raised by the noble and learned Lord during the Second Reading debate; namely, the notorious practice by some rich and powerful individuals in the commercial world and elsewhere to issue groundless or so-called gagging writs to suppress damaging information about themselves or their malpractices from the public. One of the most notorious examples was the practice of the late Robert Maxwell. He was able to take advantage of the fact that under the law of libel, as under no other branch of the law of tort, the burden is on the defendant to discharge the effective burden of disproving that the words published or to be published are false. That problem would be solved if the burden of proof were shifted. That is the subject of one of my later amendments. On the assumption that the burden remains upon the defendant, I submit that it is fair and reasonable to provide the defendant with an effective remedy for the unwarranted and groundless use of gagging libel writs.
The amendment is based on Section 70 of the Patents Act 1977. Prior to 1883, the position was that the proprietor of a patent could issue threats of proceedings for infringement without rendering himself liable for any damage which he might occasion thereby, provided that those threats were made bona fide. The 1883 Patents Act gave a statutory right of action in certain limited cases to any person damaged by groundless threats of infringement proceedings, whether or not such threats were bona fide. That right of action is substantially reproduced in Section 70 of the 1977 Act. As I explained, the present amendment is based on that section.
If a person were to issue or threaten to issue proceedings for defamation without any cause for doing so, the person to whom those proceedings were issued or the threats were made would be entitled to bring an action

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against him. If the defendant could not prove that he had a perfectly good cause for bringing a defamation action, the plaintiff would be entitled to various remedies, including an injunction to prevent the threats or the writ continuing and, where appropriate, damages.
Groundless threats by public figures to bring defamation actions accompanied by coercive prior restraints represent an unacceptable encroachment on free speech. The amendment would go some way to restoring the balance between the protection of reputation and the freedom of the press to keep the public informed by providing an effective remedy where the issue of proceedings is truly groundless. I beg to move.
Lord Williams of Mostyn: There is a mischief to be dealt with here, but it seems to me that the amendment is not the remedy for that mischief. If what the noble Lord, Lord Lester, called "prior restraint" is sought by way of injunction, no court gives an injunction if justification is the defence. He mentioned the late Robert Maxwell, for whom I have to say I acted and against whom I acted. But he was resisted. It is quite a roll call of honour to see who resisted him. He was resisted by Tom Bower and Sir Andrew Lloyd Webber who owned Aurum Press. He was resisted by "Panorama" which published its exposé of his misdeeds shortly before his death.
If one is trying to make the law of defamation simple, there is a danger that one will go the American route. That is not an exaggeration. Lawyers in the United States act on contingencies; many of them are now suing tobacco companies and it will not amaze your Lordships to know that the tobacco companies are now suing the lawyers acting on contingencies for improper suits. Now the lawyers who are sued by the tobacco companies for improper suits are themselves suing the tobacco companies on the basis of interference with their right to practise law. I am not sure that I can usefully say anything further in opposition to the form of the amendment, although I fully recognise that there is a mischief.
8.45 p.m.
The Lord Chancellor: I also recognise the possibility of a mischief but, as the noble Lord, Lord Williams, said, it is a mischief which can be resisted. I had the experience of defending someone unsuccessfully against an action on the basis of unwarranted threats in a patent action based on the design of cranes. The circumstances in which the provision exists in the patent legislation is a particular one. It is related to a right in something, whether as a proprietor or otherwise. The person who makes the threats is the person who has a right in the patent in question. So what the person is trying to do is unlawfully to extend the scope of his monopoly.
The section is limited to threats to bring proceedings, whereas the new clause goes somewhat further and includes the phrase,
"otherwise without reasonable cause….attempts to hinder the publication or further publication of allegedly defamatory material".
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For much the same reasons as were given by the noble Lord, Lord Williams of Mostyn, at the moment I do not feel able to go along with the new clause. It may be a matter for further consideration as to whether some other remedy may be found for the problem. But, as was pointed out, such things can be resisted. Perhaps that is the best defence to the mischief.
Lord Lester of Herne Hill: I am most grateful. I appreciate that where the defendant indicates that he intends to justify, no interlocutory injunction will be granted against him. The problem arises where the defendant is not able to prove the truth of the defamatory publication. It is in that situation where all or most of the knowledge is in the plaintiff and not the defendant that the problem tends to arise.
I am glad that all noble Lords who have spoken recognise that there is a problem. I am at the disadvantage that the architect of the amendment is not present. I am sure that he and I will carefully consider what has been said, to see whether we need to return to the matter. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Ruling on the meaning of a statement]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 32:
Leave out Clause 7 and insert the following new Clause—
RULING ON THE MEANING OF A STATEMENT
(" . In proceedings for defamation, the court shall not be asked to rule whether words are arguably capable, as opposed to capable of bearing a particular meaning or meanings attributed to them.").
The noble Lord said: The amendment relates to the difference between the phrase in Clause 7, the ruling as to whether a statement is arguably capable of bearing a particular meaning, and the proposal which I put forward, which concerns the defamatory words.
The question was raised by the Law Society, to whom I am grateful, as to whether one ought to concentrate on whether the words are arguably capable of bearing a certain meaning. If one deals with a statement, one is looking at perhaps the totality of the statement rather than the words in question. I beg to move.
The Lord Chancellor: The words were used in the version of the Bill which was published for consultation. We thought that we had made an improvement by substituting the word "statement" because that which has been published and whose meaning is in issue may not have taken the form of words or certainly not exclusively words. A cartoonist, for example, may be skilled in conveying a meaning without using any caption. To close that loophole, we have substituted the word "statement" which has an extended definition in Clause 17 and would cover any method by which a meaning could be conveyed. Accordingly, we believe that this is an improvement on the clause put out for consultation.
As will be recognised, we shall have to make a corresponding amendment to the rules of court under which the parties would make applications for rulings as to what the published material was actually, as

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opposed to arguably, capable of meaning. Like the earlier draft of Clause 7, the rules refer to the meaning of "words". It would be desirable to alter these to make the provision of the rules more in keeping with what is in the Bill.
I hope in the light of that explanation, the noble Lord will feel that in moving to what is in the Bill, we have improved on what was put out for consultation in the light of the responses to consultation.
Lord Williams of Mostyn: I am grateful for that explanation, which I accept. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 33:
After Clause 7, insert the following new clause—
BURDEN OF PROOF
(" In an action for defamation, the burden shall be upon the plaintiff to prove that the defamatory words of which he complains are false.").
The noble Lord said: I recognise that this is a bold amendment. I hope the Committee will bear with me if I take a little longer to explain it than I would any other subject. In moving it, I am greatly indebted to Mr. Desmond Browne QC, who, with his very great experience of the law of libel, told me that from his first week in pupillage he regarded this aspect of the law of libel as being the most unfair aspect of it.
Unlike the tort of malicious falsehood, the common law action for defamation is not an action on the case—that is, it is not dependent on proof of damage. It is derived from the common law crime of libel, whose essence was the tendency of all libels (whether defamatory, obscene, blasphemous or seditious) to create a breach of the peace.
Because the Star Chamber and its successor courts were concerned with the preservation of the peace, at common law truth was not a defence to criminal libel. Indeed, it was literally the law that the greater the truth, the greater the libel. The Star Chamber stated:
"For libelling against a common strumpet is as great an offence as against an honest woman and perhaps more dangerous to the breach of the peace, for, as the woman said, she would never grieve to be told of her red nose if she had not one indeed".
Section 6 of the Libel Act 1843 (Lord Campbell's Act) mitigated the rigour of the common law by providing a defence of justification, so long as, in addition, the defendant could prove that,
"it was for the public benefit that the matters charged should be published".
That is the source of the present defence of justification in civil proceedings, though there is no requirement for proof of public benefit. However, it explains why historically the burden of proof is upon the defendant.
A rule as to the burden of proof derived from the Star Chamber's concern with preserving peace is hardly consistent with modern day notions of freedom of speech. The public interest if often well served by
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the publication of defamatory words, for example, where a newspaper exposes a charlatan member of a profession or a dishonest businessman. So why should the newspaper have to assume the burden of proof? The question is seldom posed, and never answered. The leading textbooks merely state the rule as to where the burden of proof lies, without attempting any explanation of the rationale. Nor do they refer to authorities for the rule.
The existence of the rule has important practical consequences for the defence of libel actions. Villains can (and frequently do) recover substantial damages in libel without having to show that what has been published about them is false, or (in the absence of a plea of justification) without having to give discovery of the material documents. Libel counsel need to consider their position very carefully before pleading justification. They must have evidence to support the plea, or reasonable grounds for supposing that sufficient evidence to prove the allegations will be available at the trial.
The way in which the burden of proof on justification chills free speech was realistically described by the noble and learned Lord, Lord Keith of Kinkel, in Derbyshire C.C. v. Times Newspapers, in which I acted for the defendant newspaper, in this way. The noble and learned Lord said:
"Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public".
A leading academic lawyer, Professor Eric Barendt, has argued in his article in Public Law that if the remarks of the noble and learned Lord, Lord Keith, are taken seriously, as they must be,
"they provide a powerful argument for reversing the presumption of falsity in defamation actions, at least in actions brought by public officials and politicians".
There is no reason why the reversal of the presumption should be limited in that way. Public officials and public figures are not the only classes of person who may require exposure in the public interest.
As Barendt says, only two arguments have ever been given for the present incidence of the burden of proof. The first is the deterrent argument expressed by the Faulks Committee; namely, that the rule,
"tends to inculcate a spirit of caution in publishers of potentially actionable statements which we regard as salutary".
That argument collapses if the approach of the noble and learned Lord, Lord Keith, based on the chilling effect, is accepted. The two arguments are plainly not consistent one with the other. Faulks echoes in that respect the Star Chamber. The approach of the noble and learned Lord, Lord Keith, for the Law Lords, reflects the strong commitment to free speech, for example, in Article 10 of the European Convention on Human Rights and in the common law.
The second argument used is that the plaintiff cannot be expected to prove a negative. Professor Barendt rightly describes this as, "surely only a debating point". Plaintiffs in actions for malicious falsehood have always

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had to discharge the burden of showing that the statements sued upon are false, and in practice do so without difficulty.
In its 1991 report on the civil law of defamation, the Irish Law Reform Commission, chaired I believe by Mr. Justice Hederman, examined the presumption of falsity and concluded, by a majority, that the onus of proof should be on the plaintiff to establish that the words complained of are true.
The majority of the Irish Law Commission referred to the chilling effect of libel, and stated that:
"The law of defamation should protect the citizen from defamatory statements which are untrue, not those which are true… The approach of the law should be that, while there is no public interest in the publication of false statements, there is equally no public interest in penalising the authors of true statements, particularly when they relate to matters of public concern".
The minority contended that to abolish the existing presumption would be to create an unfair presumption that anything said of the plaintiff, no matter how damaging, was true.
That argument by the minority is, I suggest, based on a misconception. The present amendment would result in there being no presumptions in this area of the law: no presumption that the defendant had wronged the plaintiff by the publication of an untrue defamatory statement, and equally no presumption that what the defendant said about the plaintiff was true. The plaintiff would simply be required to prove the commission of the alleged wrong by the defendant in accordance with the general principles of the civil law of tort.
The time has come to throw off the shackles of the Star Chamber and to adjust the law of defamation to contemporary notions of free speech. The noble and learned Lord, Lord Keith, and his colleagues pointed the way in the Derbyshire case with the acceptance of the concept of the chilling effect of the civil tort of defamation as it stands.
I apologise for taking so long. I beg to move.
Lord Williams of Mostyn: I speak against this amendment. In a action for defamation frequently the scales are uneven. The plaintiff is very often a private person. As I said earlier, legal aid is often not available. In a very substantial number of cases the defendants are extremely wealthy corporations with vast resources.
I take the citations from the speech of the noble and learned Lord, Lord Keith, in the case of Derbyshire County Council. But essentially I believe that relates to whether or not a public body has a reputation that is capable of being defamed. I do not believe that those remarks were intended to go or do go to the present question.
I put the matter on the basis of principle. A private person's reputation is his or her property. It may be of infinitely more intimate value than his or her home, which is presently defended by the law. If an attack is to be made on a private person's reputation, why should the attacker not have to justify it on the basis of taking on the burden of proof?
I give an example. I know that the noble Lord, Lord Aldington—he is not in his place at the moment—intends to speak later, but I am sure that he will not
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object to my poaching part of his territory. How on earth could he possibly have taken on the burden of proof in the case of Tolstoy and Ors? It would have been impossible for any private person.
It seems to me that balances may need to be redressed. The Court of Appeal, as the noble and learned Lord the Lord Chancellor indicated, has begun to redress the balance in terms of the excessive awards for damages which have recently been made. But to put on the plaintiff the impossible, intolerable burden suggested by the amendment tilts the balance far too far against the individual and far too much in favour of the multinational, very wealthy organisations which substantially control the public press and other media.
9 p.m.
The Lord Chancellor: I too speak against the amendment. First, it would be a major change in the law of defamation, with considerable ramifications, and the Bill does not attempt to do anything of that major kind.
As the Committee will be aware, Lord Justice Neill's working group—upon whose recommendations many of the provisions in the Bill are based—considered representations to the effect that the burden of proof was the wrong way round. However, as the group pointed out, it is normally the plaintiff who is the accused and who should be presumed innocent of the defamatory charge unless the defendant can prove that he was guilty; or, to adopt the phraseology of the noble Lord, Lord Williams of Mostyn, he is the person who has the reputation, and if somebody is going to seek to deprive him of it, that person should be under the obligation to show that that deprivation is justified. If the defendant can prove that the plaintiff was guilty, then his plea of justification will succeed.
The amendment would alter the whole structure of defamation law so that every hapless person against whom another chose to allege dishonesty, immorality, dishonourable conduct, incompetence and so forth would always have to prove his innocence in order to protect his reputation.
Professor Barend's comments are interesting. The one that I would wish to mention is part of what he described as the second reason—proving a negative. But it is a negative in which I would say the plaintiff normally has the right to have it presumed that the positive (that is, his reputation) is something of value to him.
The Irish Law Reform Commission, by a majority, decided to do that. I am not sure whether the Doyle—the Irish Parliament—has yet given effect to it. It may be right to wait to see whether anyone introduces it to the Doyle and, if so, what the result is. I also subscribe to the view that the observations of my noble and learned friend Lord Keith of Kinkel in the Derbyshire case were not intended to be as general as the defendant's counsel would seek to make them in this situation.
Lord Lester of Herne Hill: It is not my purpose to seek further to debate the point. The fact that the Irish Law Reform Commission was split three to two shows, I hope, that reasonable people can reasonably disagree

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about this. I remain convinced that one day, at some time in the future, the burden will need to be readjusted. It may be that the circumstances in which that will happen will be circumstances in which a specific kind of plaintiff is regarded as giving rise to the need to change the burden of proof. However, that is a matter to be dealt with by the courts rather than by Members of your Lordships' Chamber.
I am grateful for the explanations given. This may be the first time in which such explanations have been given in this Chamber. I am sure that Professor Barend will be particularly interested to see the fruits of his article having been commented on in the serious way in which they have. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Summary disposal of claim]:
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 34:
Page 7, line 42, leave out from ("that") to end of line 44 and insert—

("(a) there is no arguable defence to the claim on the ground of justification or fair comment or under section 1 (responsibility for publication) or section 3 or 4 (accepting an offer to make amends),

(b) there is no other defence which has a reasonable prospect of success, and

(c) there is no other reason why the claim should be tried.").

The noble Lord said: The present wording of this part of Clause 8 represents a slight variation to the draft Bill in the Lord Chancellor's consultation paper of July last year. To avoid summary relief being granted against him, a defendant now has to do more than show an arguable defence of justification or fair comment. It must appear to the court that there is no defence which has a reasonable prospect of success.
That is a heavier burden than confronts a defendant on an application for summary judgment under Order 14 of the Rules of the Supreme Court. It is difficult to think of a good reason why a defendant's right to defend a defamation claim should be so restricted. Amendment No. 34 would restore the wording of Clause 8 to the form it took in the draft Bill in the consultation exercise and, in my view, would provide a fairer test. I beg to move.
Lord Hoffmann: Amendment No. 34 looks like a minor change in language. The Bill says that the plaintiff may have judgment if there is no defence to the claim which has a realistic prospect of success. My noble friend Lord Lester would substitute for some defences, "no arguable defence" and for others,
"no other defence which has a reasonable prospect of success".
This looks like a rather arcane dispute—the kind of thing which gives lawyers a bad name. But underneath there is a point of some importance. As my noble friend said, he chose his phraseology from the existing general summary judgment procedure under Order 14 because it is well worn and familiar. It has been used for more than a century in connection with applications for summary judgment or to strike out hopeless cases.
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There are many cases in which judges have said what these little phrases mean. But the intellectual baggage that they bring with them is from a past time and different circumstances. They were defined by the courts at a time when cost and delay in litigation hardly seemed to matter. Summary procedures were regarded as something quite exceptional; and if there was the slightest prospect of an arguable point, the whole procedure of a full trial had to grind into action. The assumption was that only at a full trial could one have perfect justice.
In our day we have come to realise that if we insist on perfect justice, for many people there will be no justice at all. It is so perfect that hardly anyone can afford it. So the draftsman of the Bill—these are not my words—has deliberately broken away from the old formulae and all the resonances of the old procedures that they carry with them. The words "a realistic prospect of success" are ordinary English words. They have not been used before, but my noble and learned friend Lord Woolf tells me that they are in the draft of the rules for the summary procedure which he is preparing for general use in the courts. Together in this Bill with the very wide discretion which is given by the words,
"there is no other reason why the claim should be tried",
they allow the judge to decide whether there is really anything in the case that needs to go to a full trial—is there really any justification for putting the plaintiff to all that trouble and expense?
Of course, judges are human, and sometimes they will get it wrong, but the more realistic approach to civil procedure which the noble and learned Lord, Lord Woolf, recommends and which we have adopted today is that one will never attain perfection in these matters. A jury sometimes also gets it wrong. The Bill as drafted is intended to encourage judges not to look back to the old Order 14 procedure but to use the power to grant summary relief in a vigorous, humane and commonsense way. I would urge your Lordships therefore not to retreat to the old language which comes from a different age.
The Lord Chancellor: I am grateful to my noble and learned friend Lord Hoffmann for his support for the clause as drafted. The amendment reflects what was in the clause put out for consultation. In the light of the consultation, and as one of the benefits of it, we saw a way considerably to simplify and to focus on the issue which, as far as I can see, is the correct issue to determine whether or not the summary disposal should be given effect. I do not know that the noble Lord, Lord Lester, actually suggested that there was anything wrong with Clause 8 in the sense in which it would deal with the matter. Rather, he preferred the more detailed but not so succinct version of the summary judgment clause. I would submit to the Committee that, as drafted, clear guidance is given as to the questions which the court has to ask, and the result on answering these questions is what justice would suggest was the right answer.
Lord Lester of Herne Hill: The last thing I want to appear to be is a traditionalist when it comes to the procedures of the 19th century. I am wholly persuaded by what has been said both by the noble and learned Lord, Lord Hoffmann, and by the noble and learned

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Lord the Lord Chancellor. However, I think that the noble and learned Lord, Lord Hoffmann, may turn out to be an optimist if he thinks that the members of my profession will not seek to graft onto the new phrase a great deal of the baggage from the past. But no doubt a Pepper v. Hart reading of this debate may serve to discourage that from happening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 35:
Page 8, line 13, at end insert—
("This is not an exhaustive list of the matters which may be considered.").
The noble Lord said: This is an amendment by way of a probing query. It is to establish whether or not it is intended that in Clause 8(4) the statement of matters to which the court shall have regard is to be wholly and exclusively exhaustive. I beg to move.
The Lord Chancellor: This was in the clause for consultation. We concluded in the light of the consultation that it was redundant, and I think it is so. The intention is that these matters are ones that the court should have regard to. But they are not exhaustive.
Lord Williams of Mostyn: I am grateful to the noble and learned Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clause 9 [Meaning of summary relief]:
[Amendment No. 36 not moved.]
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 37:
Page 8, line 22, leave out ("£10,000") and insert ("£25,000").
The noble Lord said: Under Clauses 8, 9 and 10 of the Bill, it is envisaged that every defamation action shall come at an early stage before a judge to determine whether it is suitable for summary disposal. The aim of the introduction of summary proceedings is, according to the Lord Chancellor's consultation paper, to offer a streamlined disposal procedure where the claim is straightforward and less serious. I find it disappointing, therefore, that the initial ceiling on the amount of damages that can be awarded under the summary procedure has been set at a level which is so low. I perfectly understand what has been said already in the debate by the noble and learned Lord, Lord Hoffmann, that it is not designed to deal with cases where the plaintiffs are after serious money. But at the moment few juries would award less than £10,000 to a successful plaintiff. Indeed, £10,000 would hardly begin to cover even the costs of the average plaintiff in a libel action, so heavy are the legal costs of proceedings of this kind.
I believe that the operation of the summary procedure is likely to be constrained as a result. Under Clause 8(3) of the Bill, a case will not be disposed of summarily unless the court is satisfied,
"that summary relief will adequately compensate [the plaintiff] for the wrong he has suffered".
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Unless judges were to adopt the attitude that the mandatory publication of an apology or the text of the judgment, provided substantial vindication for the plaintiff warranting a much lower award of damages, it seems likely that £10,000 will be considered such a small sum that the number of cases considered by judges suitable for summary disposal will be very restricted. That will entirely subvert the reasons for the introduction of the summary procedure, resulting in the procedure becoming merely an extra interlocutory stage in every defamation case and actually adding, perversely, to the cost and length of defamation litigation.
The alternative scenario is that judges will frequently dispose of cases summarily by awarding the maximum of £10,000 damages. Although that will be perfectly in accordance with the aims of the summary procedure, it will be likely to result in a host of additional appeals from disgruntled plaintiffs and the courts would then become overburdened. There is a power in Clause 9 for the Lord Chancellor to amend the maximum amount of damages by order. I suggest that it might be preferable for the Bill to be amended on its face to make it workable from the outset rather than seeing it amended by order in council at a later stage out of necessity because the summary procedure proved to be unworkable or much less used than it ought to be in practice. I beg to move.
9.15 p.m.
Lord Williams of Mostyn: I support this amendment substantially on the basis which was put forward by the noble Lord, Lord Lester of Herne Hill. It is true, as he said, that Clause 9(1)(c) allows for an order by the Lord Chancellor to increase the amount, but inertia being what it is, the temptation will be to say, "Well, Parliament thought that it was appropriate in 1996 and therefore there will be no significant increase for some time". It is simply a discretionary power for the judge to manoeuvre within the ceiling of £25,000. It is not a vast sum these days even in terms of personal injury awards, which are far too low, I suggest, and certainly in terms of what one expects in libel awards in the moderate area. Therefore, I invite the noble and learned Lord the Lord Chancellor to accede to this amendment.
Lord Hoffmann: I shall not repeat what I said earlier about the purpose of this procedure. Unless I misunderstood him, some of the points made by my noble friend Lord Lester of Herne Hill seemed to be based on a misreading of the Bill as it now stands, but they might have been properly directed to the Bill as it went out for consultation.
The Bill as it now stands states in Clause 8(3),
"Unless the plaintiff asks for summary relief, the court shall not act under this subsection unless it is satisfied that summary relief will adequately compensate him for the wrong he has suffered".
In other words, if the plaintiff is making the application for summary relief and is content to have £10,000 or less, the court is not concerned whether that will be adequate. It is up to the plaintiff to decide that he is going to act under that procedure and choose that as his limit in order to get the other advantages of the summary

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procedure. It is only if the defendant is seeking to rely on the summary procedure and have the action dismissed as a trivial one, that the judge has to be satisfied that, come what may, the plaintiff would not be able to recover more than £10,000.
The Lord Chancellor: I gratefully accept the point made by my noble and learned friend Lord Hoffmann. But even with that point it is a difficult matter to decide what the rigid figure should be. The intention behind this series of clauses is to provide a reasonably speedy remedy for plaintiffs who are not particularly concerned about serious money, although in my book £10,000 is quite serious money. I can understand that others have a different appreciation of that. The precise level is difficult to decide. I do not know why £25,000 is thought to be a particularly appropriate amount either. The idea that a plaintiff should be able to go for that means that in many cases it will be an advantage to the defendant to accede to that procedure. I do not want to lose that because I want to give the person who wants a summary and rapid remedy a remedy which is likely to be attractive from the defendant's point of view also. The protection of the £10,000 limit is important for the defendant. I am willing to consider this further, but at the moment I am inclined to think that the £10,000 figure is reasonable for the purposes of this clause.
Lord Lester of Herne Hill: I am grateful to the noble and learned Lord, Lord Hoffmann, for correcting my misreading of the Bill. I suppose that my real concern is to set the figure as high as one reasonably can to compensate plaintiffs without deterring defendants from taking part in the procedure. I think that £10,000 is lower than the amount for which newspapers would be likely to settle under the procedure. It is a question of judgment.
The noble and learned Lord the Lord Chancellor asked: why £25,000? The answer is that in my practical experience that is the sort of figure which newspapers would tend to regard as a reasonable top limit for such a procedure. I am not saying that because that is what I have been told by newspapers; it is a judgment from my experience of seeking to settle cases. I still regard £10,000 as very low. I am seeking to tempt the parties into more and more settlements under this procedure by raising the figure. I am sure that this matter will have to be reconsidered at some stage and I would hope that it will be sooner rather than later. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 38 and 39 not moved.]
Clause 9 agreed to.
Clauses 10 and 11 agreed to.
Clause 12 [Evidence of convictions]:
On Question, Whether Clause 12 shall stand part of the Bill?
Lord Williams of Mostyn: This is a troublesome clause which, on the basis of the correspondence that I have received, concerns many who act in this area. Its consequence would be that previous convictions would
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be proof in respect of the plaintiff that he had committed the offence in question, but not in respect of the defendant or any person giving evidence on behalf of the defendant. I believe that that opens the door to collateral attacks on criminal convictions. It may cause unfairness to certain plaintiffs, such as doctors, other professional men, police officers and prison officers. The noble and learned Lord the Lord Chancellor was kind enough to write to me at length on the matter, but I am afraid that I remain unconvinced. I do not see why a plaintiff should be disabled whereas a defendant and/or his witnesses are not.
Lord Lester of Herne Hill: On this matter I respectfully disagree with the noble Lord, Lord Williams of Mostyn. As I understand it, the position is as follows: before 1968 a person's conviction of a criminal offence was not admissible in defamation or any other civil actions. That was amended by the Civil Evidence Act 1968 which provides that in a defamation action, the proof that a person has been convicted of an offence is conclusive evidence that he committed that offence.
The working group under the chairmanship of Lord Justice Neill explained in its 1991 report that the rule could operate unfairly in proceedings where the plaintiff is a person other than the one convicted of the relevant offence. Where a defendant made allegations about the conduct of a police officer, for example, or some other witness for the prosecution in bringing about the conviction, the plaintiff would have an artificial advantage in that the correctness of the conviction could not be challenged in an action for defamation arising out of the allegations. As the Neill Committee recognised, that could obstruct the defendant in justifying the allegations. Indeed, it would be likely to deter him altogether from making the allegations, chilling free speech. In line with the opinion of the Neill Committee, Clause 12 narrows the application of the rule which makes conviction evidence conclusive in those cases where the convicted person is the plaintiff or one of several plaintiffs in a defamation action. Proof of the conviction of any other person will still be admissible evidence under Section 11 of the Civil Evidence Act but it will no longer be conclusive. Consequently, if a newspaper decided to write a defamatory article claiming that a police officer had put the wrong person in gaol, in an action for defamation against the newspaper by that police officer the fact that the person in gaol had been convicted of a criminal offence would be admissible but no longer conclusive.
In my view, Clause 12 has welcome implications for freedom of the press and public discussion of the conduct of those who exercise public powers. Therefore, I welcome the clause as it stands.
The Lord Chancellor: I have already provided a fairly full explanation of this clause to the noble Lord, Lord Williams of Mostyn. I shall not weary the Committee by reading it out. Essentially, the reasons given by the Neill Committee for the recommendation upon which this clause is based are good ones. They have been elaborated somewhat by what the noble Lord, Lord Lester of Herne Hill, has just said. In a sense, a

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collateral matter of this kind should not be decided conclusively as a result of a conviction of a person when the person in question is not the plaintiff. I do not see why it should be so regarded. The matter has been raised by the Neill Committee, but I have not been able to find any satisfactory answer to that question. I hope that in the light of those explanations the noble Lord, Lord Williams of Mostyn, will feel able to allow the clause to proceed.
Lord Williams of Mostyn: Of course I shall. I still do not understand why a plaintiff should be disabled by the conclusive nature of the finding. I believe that there is a continuing possibility of mischief arising out of a collateral attack on the validity of a criminal conviction before a jury properly directed, possibly even after the matter has gone to the Court of Criminal Appeal (Criminal Division). However, on the basis of the indication that I gave earlier, I beg leave to withdraw the Motion.
Clause 12 agreed to.
Clause 13 [Basis of entitlement to damages]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 40:
Page 10, line 26, after ("damages,") insert ("but only after a finding in favour of the plaintiff on liability").
The noble Lord said: If Clause 13 becomes law it will lead to longer trials of defamation cases, more expense and a lot more evidence. If one does not restrict it, it will permit the leading of evidence substantially on credit, which at the moment is not allowed. My proposal is that if evidence of specific fact is to be admitted at all it should be admitted only after the jury has found in favour of the plaintiff on liability. Therefore, it would be true mitigation of damages. There would be no overlay between the proper assessment of damages and the question of whether or not the plaintiff was entitled to succeed on liability. The amendment is intended to give effect to the principle that one should be compensated only for damage to one's real reputation, as it were, and to avoid the confusion between liability—whether or not the plaintiff should succeed—and quantum of damages. I beg to move.
9.30 p.m.
Lord Lester of Herne Hill: I regret that I do not agree with the noble Lord, Lord Williams of Mostyn, on this amendment. It seems to me entirely sensible that the plaintiff should be entitled to recover no more damages for injury to reputation than he deserves when all the facts liable to affect his reputation in relation to the sector of his life to which the statement relates are generally known. Otherwise, if one makes a technical distinction between liability and damages, rather than look at it in a sensible way, given the reverse burden of proof, and so on, it means that unmeritorious plaintiffs will be able to recover more than they deserve. I therefore very much welcome the clause.
The Lord Chancellor: I do not believe that there is anything I can add to what I have said before as regards the clause generally. On the question of whether there
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should be a statutory rule, there is a passage in the Lord Justice Neill Working Group Report which might suggest that it envisages such a rule, where it says, "In such cases"—referring to the situation we have here:
"we would see no objection to liability being determined first, and the issue of damages being subsequently resolved by the same judge and jury in the light of the outcome on the pleaded instances of misconduct".
It is implicit in that passage that the group did not envisage that evidence going to mitigation only would invariably be left until after the liability verdict. My understanding is that that is the correct interpretation of what the group said. The group agrees with the view that a statutory rule to that effect would not be helpful in practice.
There is no impediment of course to the two verdicts being separated if it appears that mitigation material could be prejudicial to the plaintiff on the issue of liability. That would be a matter for the court to determine in the light of the circumstances of the individual case. If that be right, no statutory power to separate them is required. The court can do that. Automatic separation in every case, whether necessary or not, is likely to increase the length of trials. None of us would wish to do that.
Lord Williams of Mostyn: I thank the noble and learned Lord for that explanation, but I am convinced that trials will become longer. Statements will be served and counter-served on endless material. To take an example, a doctor may be accused of defrauding the NHS. That is the sector of his life as a professional man. It is possible that evidence could be led that he had behaved indecently to a woman patient. It is the same sector of his life as a professional man—a doctor.
What will inevitably happen is that trials will become longer; the volume of evidence will become greater; and attempts will be made to blackguard plaintiffs on the supposed basis that that goes to mitigation. If the material is relevant only to mitigation, it has no proper part in the assessment of liability. Judges should therefore be constrained to exclude from the consideration of liability any material which properly goes only to mitigation of damages. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Lord Hoffmann Lord Hoffmann moved Amendment No. 41:
After Clause 13, insert the following new clause—
EVIDENCE CONCERNING PROCEEDINGS IN PARLIAMENT
(".—(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.
(2) Where a person waives that protection—

(a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and

(b) none of those things shall be regarded as infringing the privilege of either House of Parliament.

(3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it.
(4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.
(5) Without prejudice to the generality of subsection (4), that subsection applies to—

(a) the giving of evidence before either House or a committee;

(b) the presentation or submission of a document to either House or a committee;

(c) the preparation of a document for the purposes of or incidental to the transacting of any such business;

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a committee; and

(e) any communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of members' interests.

In this subsection "a committee" means a committee of either House or a joint committee of both Houses of Parliament.").
The noble and learned Lord said: The amendment is put forward to deal with the problem which was raised on Second Reading by my noble friend Lord Finsberg. It arose out of a recent libel action brought by Mr. Neil Hamilton, a Member in another place, against a newspaper which published an article which meant, he alleged, that he had made corrupt use for private gain of his right to ask Questions of Ministers.
The action was stayed—in effect, terminated—by a judge on the grounds that the law forbade the courts to investigate anything which happened in Parliament. That meant that the court could not decide whether the allegation in the newspaper was true. It would not therefore be fair to allow the Member to sue for libel if the newspaper was not allowed to justify what it had written.
Most people would agree that if the newspaper was not allowed to prove that what it said was true, the Member should not be allowed to sue. Newspapers would be extremely reluctant to criticise what anyone said in Parliament if it meant that they could be sued while they had to stand with their hands tied behind their backs. That would be bad for government and bad for democracy.
The question is whether it is necessary to have a rule that the courts cannot for any purposes inquire into proceedings in Parliament. The judge who stayed the action followed a recent decision of the Privy Council on appeal from New Zealand which decided that such a blanket ban on questioning anything that went on in Parliament was derived from Article 9 of the Bill of Rights of 1689. That article provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. That article, with its echoes of the struggle with the Stuart kings, is primarily concerned with the freedoms and privileges of Parliament; the immunity of Members from prosecutions or actions for sedition or libel on account of their speeches or activities in Parliament. It has no obvious application to
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a case in which a Member of Parliament is not being sued or prosecuted for anything in which he is in fact the plaintiff.
In Australia it has been construed by one judge as concerned only with freedom of speech in Parliament and by another judge as not applying to a case in which a Member of Parliament is the plaintiff. But the Privy Council, in the case to which I referred, stated that over the years since 1689 it had come to have a much wider effect and it now amounted to a total ban on court investigation of any proceedings in Parliament.
The purpose of the amendment is to allow a person who may be a Member of either House, or neither, to waive so far as concerns him the protection of any rule of law which prohibits the investigation of proceedings in Parliament. The waiver does not affect the operation of the rule in respect of anyone else and, furthermore, the immunity of Members from any kind of action in respect of what they have said or done in Parliament remains sacrosanct and cannot be waived. Therefore, in the case that I mentioned, the Member could waive the protection of the rule so as to allow investigation of his own conduct by the court, but not that of anyone else.
The drafting of an amendment to deal with this matter is not easy. I have had the assistance of parliamentary counsel but I do not believe that either he or I would suggest that the form of amendment before the Committee is necessarily the last word on the matter. It raises a point of general public importance and another which is a technical point. I wish to deal first with the general point. The injustice which the amendment seeks to remedy is that a Member of either House of Parliament cannot, like any other citizen, sue to clear his name if he is alleged to have acted dishonestly in connection with his parliamentary duties. The argument against allowing him to do that is that Members of Parliament cannot be sued for defamatory comments that they make in the House about other people. Why, therefore, should they complain if they cannot sue other people for making defamatory comments about them?
I believe that the answer to this tit-for-tat argument is that the immunity of Members of Parliament under the Bill of Rights is not a private privilege for the benefit of individual Members. It is a privilege conferred upon the House as a whole in the public interest to ensure that there will be that complete freedom of debate which is necessary for the functioning of a democracy. All such freedoms have a cost and occasionally the privilege will be abused. But it is for the House to exert its own discipline and prevent its privilege from being exploited by individual Members for their own private ends.
On the other hand, there is no public interest which requires that a Member of Parliament should not be entitled to bring proceedings to vindicate his reputation if he is accused of dishonesty by a newspaper. Members of Parliament are like other men and women; if you prick them they bleed. If you injure their reputations why should they not also be entitled to vindication?
It is true that in theory, the House itself could conduct an inquiry into his conduct and pronounce upon it. One of the reasons which was given in the New Zealand case for complete abstinence by the courts was the possibility

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of a conflict between the views of the House and the decision of the court on the same question. But I believe that that possibility is rather theoretical. There is always a risk that an internal inquiry may divide the House on party lines and vindication by such an inquiry is never as satisfactory as by a judge and jury. Therefore, I do not believe that the tit for tat argument is a good one.
Members of the Committee will find plenty of saloon bar cynics whom nothing will persuade that any parliamentary privilege or immunity is in the public interest. But I do not believe that the original meaning of Article IX needs any defence from me. It is the wider rule that has been built on it which has been shown to need some adjustment to prevent it causing injustice in cases where there is no contrary public interest.
Finally, there is the technical point. The Privy Council in the New Zealand case said rightly, if I may say so, that Article IX was a privilege of Parliament and not of the individual members. It is a rule of law and not a personal right. Therefore, the amendment is phrased not as a waiver of the right but a waiver which, to a limited extent, disapplies the rule.
An alternative possibility would have been to allow the privilege to be released by a resolution of the whole House. But for the same reasons that I mentioned earlier, I do not believe that that would be very satisfactory because again there would be the possibility of party division. The majority of one party might decide whether or not to release the privilege according to how it felt about one of the Members opposite. Therefore, it seemed best to allow waiver by an individual but to confine its effect to him. It may be that other technical improvements will be suggested in debate here or in the other place.
There is an injustice which needs a remedy and I offer this amendment as an attempt at a constructive solution. I beg to move.
Lord Finsberg: As a non-lawyer, perhaps I may dare to say something about this proposed new clause. Perhaps I may say—and I hope not too frivolously—that having listened to the noble Lords, Lord Williams of Mostyn, and Lord Lester of Herne Hill, it reminded me a little of Box and Cox. If I ever require two lawyers, I could not do better than to have both of them because during the evening they have agreed to disagree with each other on many occasions.
I thank the noble and learned Lord, Lord Hoffmann, for taking up the point which I raised on Second Reading and for tabling the amendment which has been clearly couched with expert advice and moved with great elegance and eloquence. It seems to me that this provides the remedy for the injustice which I think has been done to my ex-colleague, Mr. Neil Hamilton, and, indeed, to my long-standing friend, Mr. Ian Greer.
I have looked at the amendment and I have listened to what the noble and learned Lord, Lord Hoffmann, said. I ask my noble and learned friend the Lord Chancellor to confirm that this applies to cases which have not been what I would call in layman's terms "ended" because for reasons adduced by the noble and
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learned Lord, Lord Hoffmann, it has not been possible for certain things to happen. That reassurance is needed and I very much welcome this proposed new clause.
Viscount Tonypandy: Perhaps I may follow the brave example of the noble Lord, Lord Finsberg, because I have been fascinated by listening to the legal profession as it has spoken in the Chamber.
The House of Commons feels deeply about its freedom of speech. The noble and learned Lord is absolutely right about that. But I never had the impression, throughout all the years that I served as Speaker, that it would somehow punish a Member, as it has clearly done in the case of Mr. Neil Hamilton, by not allowing him to defend himself properly. I hope that when the Lord Chancellor replies to the debate, he will make it clear that, whatever else he does, there will be no attempt to interfere with that complete protection of honourable and right honourable Members in another place when they speak.
I may say to the noble and learned Lord and to your Lordships that when an honourable Member defames someone outside the House, no one is more watchful or, sometimes, angry than the House itself. The House has its own way of punishing any honourable Member who defames someone who cannot answer for himself in the House. I believe that the noble and learned Lord the Lord Chancellor, as we all love the institution of Parliament, realises that, ever since the Bill of Rights, a cornerstone has been freedom of speech, with no harm to any honourable Member who speaks in the House. The House will deal with him if he goes too far.
9.45 p.m.
Lord Williams of Mostyn: I specifically disqualify myself from saying anything on this matter. The reason is plain: I have notified the noble and learned Lord the Lord Chancellor of the reason I acted for Mr. Hamilton and Mr. Greer and Mr. Greer's company. The only observation I am entitled to make is that it seems, objectively, a suitable reform for another place to consider.
Lord Lester of Herne Hill: The noble and learned Lord, Lord Hoffmann, is to be congratulated on his attempt to tackle a complex and very sensitive problem raised by the decision of the Privy Council, as he said, in Prebble v. Television New Zealand Ltd. in 1994, as subsequently applied in this country.
The problem is sensitive and complex for a number of reasons: first of all, it is part of the ancient, fundamental principles of the British constitutional system of parliamentary democracy that whatever arises in either House of Parliament ought to be examined, discussed and judged in that House to which it relates, and not elsewhere. That means that each House of Parliament, Parliament itself and the courts have to be astute in order to recognise and respect their different constitutional roles, and they do.
Secondly, it is sensitive because, as the noble Lord has indicated, it is part of the ancient privilege of Parliament enshrined in Article IX of the Bill of Rights that freedom of speech in debates or proceedings of

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Parliament ought not to be impeached or questioned in any court or place outside Parliament. That is a vital protection of parliamentary democracy.
Thirdly, it is sensitive because it is well established that Article IX stops any court from entertaining any action against a member of the legislature seeking to make him legally liable in criminal or civil law, so members of either House may freely defame their fellow citizens in the exercise of their right to free speech and remain immune from libel proceedings. Although one does not wish to encourage it, one would add, "and rightly so". That is a vital protection, going back to 1689.
Fourthly, it is delicate because the parliamentary privilege protected by the Bill of Rights is a privilege of Parliament as an institution and it cannot be waived by an individual Member of either House. As I understand it, there is an absolute prohibition, even when it is the MP himself who brings libel proceedings.
I agree with the noble and learned Lord, Lord Hoffmann, and the other noble Lords who have spoken, that the result of the Prebble case and its progeny has been to create a real injustice. It would be unfortunate, however, if this amendment were seen in some way to be especially for the protection of the rights of Mr. Hamilton or any other MP currently engaged in legal proceedings. We must deal with this, I suggest, as a matter of principle.
There is an element of rough justice about the present position. An MP is immune from being sued for libel for what he says in the House and, on the basis of the Prebble rule, he cannot sue for libel if he depends upon anything which would question proceedings in the House. Therefore there is a kind of reciprocity there, but it is not a fair one. My view is that MPs should be able to sue to vindicate their parliamentary reputation provided that it cuts both ways. Under the amendment of the noble and learned Lord, Lord Hoffmann, as I read it, it would cut both ways because if the MP did not waive the protection, then he would not be able to proceed with his action against the newspaper because the newspaper would not be able to defend itself and therefore the proceedings would be stayed.
The immunity of the MP under the Bill of Rights is a further reason for supposing that the common law might adjust the burden of proof in such cases through qualified privilege. That is not a matter that now concerns the Committee. There is, I think, the problem in the amendment of the notion of an individual waiver. It has been dealt with with great delicacy and rightly not mentioning the Bill of Rights and Article IX as such. But I can envisage problems that may arise where one MP exercises waiver and another MP does not and yet they are both in some way involved as parties or witnesses in the same or related actions. That may cause great difficulty.
It is admirable that the amendment has been introduced and it ought to be passed by this Chamber, but the place where it really needs to be carefully considered is in another place where, as I have indicated, their own position and privileges will be very
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much in the fore when this is considered. I hope that it can be considered in a way which quite transcends any individual case, any individual Member of Parliament and any individual political party. Having said that, I very much welcome the amendment.
The Lord Chancellor: I wish to express my gratitude to my noble and learned friend Lord Hoffmann for bringing forward this new clause and for—if I may quote my noble friend Lord Finsberg—the elegance and eloquence with which he did so. It has given the Committee a valuable opportunity to reflect on the substantial issues which the clause raises. Of course, as has been said, it is a matter of great importance for the other place but it also affects this place and the privileges of this Chamber.
As my noble and learned friend has explained, the clause would allow a person whose conduct in Parliament is in issue in defamation proceedings to waive protection such as that of Article IX of the Bill of Rights so as to enable evidence to be given in court, and findings made, about his conduct in Parliament. At the same time, the clause preserves the essential protection afforded by the Bill of Rights to Members of both Houses and others such as witnesses before parliamentary committees from any legal liability for anything they may say or do in the course of parliamentary proceedings.
As my noble friend Lord Finsberg reminded the Chamber at Second Reading, the matter has been focused because the learned judge stayed an action for defamation brought by Mr. Neil Hamilton and Mr. Ian Greer against the Guardian newspaper. The judge did so because he decided that the case could not be tried properly without hearing evidence about Mr. Hamilton's conduct and motives in tabling Parliamentary Questions which were the subject of the newspaper's allegations; and that evidence could not be heard because of the prohibition (by virtue of Article IX) on the questioning or impeaching by the courts of proceedings in Parliament. As has been said, that followed the earlier decision of Prebble v. Television New Zealand Ltd before the Judicial Committee of the Privy Council, in which, because of the provisions of Article IX, the committee found that the defendants could not use parliamentary materials to establish the truth of allegedly defamatory allegations made by them.
As the noble Lord, Lord Lester of Herne Hill, has said, this raises a matter of principle quite independent of any particular case. The case I mentioned is just an illustration of the situation in which it might arise. The case for the new clause is, in essence, that it would enable justice to be done in defamation cases such as that brought by Mr. Hamilton. Provided Mr. Hamilton waived his protection, which the clause would allow him to do, the defendants would be able to call evidence to justify their publication and the issue between them and the plaintiffs could be tried by the court. If the plaintiffs went on to win their case they would be able to recover damages which they could not do if they were forced to resort to the machinery which exists within Parliament for dealing with such cases by way of a complaint of privilege.

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Therefore, there is a substantial case to be made for the amendment. On the one hand, any interference with the Bill of Rights is a matter of great importance which both Houses will be anxious to assess with the utmost care. I am particularly glad that the noble Viscount, Lord Tonypandy, was able to take part in the debate. His knowledge and experience of the privileges of Parliament in both Houses is very great. I am grateful that he has been able to be with us on this occasion and to contribute to the debate.
The particular way of proceeding which has been proposed inevitably involves an element of one-sidedness. A Member of Parliament would be able to put his conduct in Parliament before the courts when it suited him, but whether it suited him to do that, he would continue to enjoy absolute protection from liability if he so wished. I am sure Members of the Committee would agree that it is essential to preserve, as the clause does, the core privilege of protection from liability in respect of proceedings in Parliament, without which the exercise of free speech in Parliament cannot be fully upheld. But it must be admitted that there is a certain awkwardness in allowing the courts to question parliamentary proceedings only when it is to the advantage of the Member concerned—or, as he sees it, to his advantage.
Finally, I should make what is perhaps a slightly technical point—it has been referred to by my noble and learned friend Lord Hoffmann—that the privilege of either House belongs first to the House rather than to individual Members. In the words of Erskine May,
"it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members".
That is essential, in my submission.
That being the case, it may be remarked on that the clause envisages the waiver of privilege by an individual Member, without the House having any say in the matter. But giving the House a say in the matter—by making the waiver dependent on a resolution of the House—could conceivably lead to a greater mischief: a partisan parliamentary majority might decide capriciously to refuse a waiver—or worse, it might impose a waiver on a Member who did not wish to waive the privilege. That is the real question: whether it would be a matter for Parliament to decide, whatever the wishes of the Member, that the privilege in respect of a particular Member should be waived.
Those are among the considerations which the Committee will need to weigh. There is the point about other Members being involved either in that Member's conduct, or closely with it. The noble Lord, Lord Lester of Herne Hill, gave as an example a case where two Members seemed to be in almost exactly the same position. Their position in Parliament could be the subject of adverse comment if one waived the privilege and the other did not.
As I understand the clause—my noble friend will correct me if I do not have it right—it enables a person whose action had been stayed, for example, to waive the immunity and in consequence for the stay to be lifted to
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enable the action to proceed. If the clause were passed, it would have effect in respect of actions already stayed on grounds such as we have been discussing.
These are among the considerations which the Committee will need to weigh. Speaking as I do on behalf of the Government, their position is one of neutrality. Those are matters for the House rather than the Government. Ministers' concern is that this important issue should be properly ventilated in debate in each House. The Government will want to hear the views of another place in due course before taking a decision on how best to proceed. The debate in the Committee this evening will, I am sure, be of great assistance to Members of another place when they consider the question.
There is the problem of what we should do now. It is a matter of fundamental importance which has only recently been published in the sense of being added to the Marshalled List of amendments to the Bill. So that the whole House may have an opportunity of considering the matter fully before an amendment is made, it may be that my noble and learned friend will feel that the best course to take this evening is, having had the discussion, to withdraw the amendment. Then it can be moved again on Report, giving anyone who may read the debate but who did not have an opportunity to contribute the possibility of studying the subject before the House takes a final decision and the Bill goes to another place.
It must be right for this House to decide, one way or another, before the Bill passes whether it should adopt this clause or any amendment or refinement of it. As I said at the outset, it is a matter for both Houses of Parliament. There are particular sensitivities in the other place to which the noble Viscount referred. However, we too have an important interest in this aspect. Therefore, it is right that the House should decide whether the clause should be added. My noble and learned friend may feel that it is such an important issue that before it is added to the Bill it is considered again at Report stage. Other Members of the House who may not have fully appreciated its importance will then have an opportunity of considering the proceedings in this Committee.
Lord Hoffmann: I am grateful to my noble and learned friend for his remarks and particularly for his acceptance that there is a serious problem. It needs to be dealt with, if not by the precise clause then at least by a clause along those lines. I am grateful to noble Lords for their contribution to the debate. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10 p.m.
Clause 14 [Reports of court proceedings absolutely privileged]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 42:
Page 10, line 37, leave out from ("before") to end of line 41 and insert ("a court to which this section applies, if published contemporaneously with the proceedings, is absolutely privileged.").
The noble and learned Lord said: With Amendment No. 42, I wish to speak to Amendments Nos. 43 to 45 and 52. Amendment No. 42 is consequential on the recasting of Clause 14 which confers absolute privilege on contemporaneous reports of proceedings of courts in the United Kingdom. The effect of the amendment is that the courts to which the privilege applies are no longer referred to in subsection (1), which now simply refers to the courts "to which this section applies".
Amendment No. 45 is part of the same recasting as I mentioned in relation to Amendment No. 42. A new subsection is inserted to provide a free-standing list of the courts to which the section applies, so that contemporaneous reports of their proceedings will be privileged. It adds the courts attached to the European Court of Justice (which will include the court of first instance) and also the European Court of Human Rights. Those are all courts whose proceedings can have an impact in the United Kingdom in one way or another.
Amendment No. 52 is a drafting amendment to affirm that references to the European Court of Justice in the first schedule will include references to any court attached to the European Court of Justice, as the court of first instance now is.
On Amendments Nos. 43 and 44 in this group, perhaps I should wait to see what the noble Lord, Lord Williams, wishes to say. They are obviously connected and it may be convenient to deal with them all together. In the meantime I beg to move Amendment No. 42.
The Deputy Chairman of Committees (Lord Brougham and Vaux): I should advise the Committee that if Amendment No. 42 is agreed to, I cannot call Amendments Nos. 43 and 44.
Lord Williams of Mostyn: If it is convenient, perhaps I should indicate my approach to Amendments Nos. 43 and 44. It is on the same basis as indicated by the noble and learned Lord the Lord Chancellor. It seemed to some of us that an international war crimes tribunal, the General Medical Council and the Scottish Solicitors' Discipline Tribunal should be in the same categories.
Lord Aldington: I wish to comment from my experience of the European Court of Human Rights, which has been added to the Bill. The noble Lord, Lord Lester, knows what I am about to say. We are used to absolute privilege here. It applies to proceedings in courts at which all parties relative to proceedings are present and at which counsel obey rules, do not give evidence, and so on.
However, there was a recent case in the European Court of Human Rights which arose out of my libel action in which one of the defendants was the plaintiff against the United Kingdom. I was not a party. Because of the way in which these things happen, the newspapers reported things said in that court which were entirely incorrect and which were damaging to my reputation. My noble and learned friend should be aware that his department is well aware of my complaints in this matter.
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I want to draw a lesson from that. We are used to applying these privileges to courts, and indeed to parliaments, which have some control over what is said. But the European Court of Human Rights seems to have a completely different procedure to the one to which we are accustomed. This particular case opened with the spokesman for the Commission giving evidence about the matters as background, which was quite wrong. It happened to cross what I knew to be correct and what had been said in my case. The case continued with the noble Lord, Lord Lester, who had been briefed wrongly. He was kind enough to say so, and corrected the record. But the mistakes he made, which were damaging to me, appeared in the newspapers.
It is doubtful whether we should give absolute privilege to proceedings in a court of that kind. The other way is to give them absolute privilege and try to see that the procedure is tightened up a good bit. It was a very extraordinary thing, as the noble Lord, Lord Lester, said to me, that the proceedings started with a representative of the Commission—which, as the Committee will know, examines cases before the court—actually giving some personal evidence of what he himself found when he was a young officer in the 27th Lancers in Austria. It was a very extraordinary way of conducting affairs. All that gets into the newspapers. I cannot think that it will be right for me. It does not matter. I have had the time and resources to try to correct what was in the newspapers; and I have done it. But it was damaging in the meanwhile.
That example provides a lesson for us all. It relates somewhat to what can happen in United Kingdom courts when there is an outburst during the course of proceedings by one of the parties and the newspapers do not report the proceedings properly; they report the outburst and only part of the proceedings. That is because usually they do not immediately report counsel's reply. That is possible here. Because counsel in a court here does reply, it is possible to get matters put right under the terms that it has to be a fair and accurate report.
The case at the European Court of Human Rights, because of the nature of the proceedings, was one of a private individual against a government. It was really a case against me, but I was not a party. I was not represented; I was not there; I could not correct anything that was wrong. Yet the newspapers can carry, the next day, something that is defamatory. I put that point to my noble and learned friend. I do not suggest that he alters the Bill at this moment, but I should like him to do something about it, because there will be others who, like me, are affected in that way in due course. He may say: you can deal with all that. I did. But it cost quite a lot of money and a lot of time. That is not a good way of conducting our affairs.
Lord Lester of Herne Hill: The noble Lord did not give me notice that he intended to make the speech that he just made. I feel a little embarrassed about it. Had he told me, I might have discussed matters with him in advance, and indeed returned to the documents in the case. In that case I appeared for Count Tolstoy against the United Kingdom before the European Court of

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Human Rights. What one has just heard is the views of one of the parties to that litigation who feels extremely strongly about it, just as my client himself did.
The issue raised by the noble Lord is whether it is right for the proceedings in courts, including the European Court of Human Rights, to be covered by statutory privilege. I listened to him carefully and believe that he recognised, in the latter part of his speech, that the kind of injustice that he feels, rightly or wrongly—I emphasise both words, "rightly" and "wrongly" without taking sides—is an injustice that many people who are parties to litigation feel when they read reports in newspapers about the conduct of proceedings.
I was an amusing victim this morning when I found myself described in the newspapers as acting on behalf of the traitor George Blake. In fact, I was not; I was acting as the amicus in the case. But I was described in that way with a lot of comments made to me afterwards. That is one of the facts of life that occur with a free press when it is reporting proceedings in courts or, for that matter, in Parliament.
As somebody who has had a great deal of experience of the European Court of Human Rights, in my view it operates independently and impartially as a real court. I know that the noble Lord, Lord Aldington, does not agree either with what was said by Sir Basil Hall, the delegate for the Human Rights Commission who appeared before the court, nor with some of the statements that I made on instructions that were reported in the press. But that is no argument for withdrawing statutory privilege from our courts or from the European Court. As was said many years ago, justice is not a cloistered virtue; the public are fully entitled to know, on the basis of a fair and accurate report of proceedings in public before the courts, what is going on in those courts.
The noble Lord, Lord Aldington, has had every opportunity to make his point known in this Chamber and I am glad that he has had a chance to do so. However, I do not think that that in any way casts doubt on the wisdom of Clause 14 and the inclusion of the European Court of Human Rights within it.
The Lord Chancellor: I understand well my noble friend's concerns in these matters. I know a good deal about the detail of the matter to which he referred. It is a matter of judgment as to which tribunals and so forth should go into the list. The important thing is that what is protected is a fair and accurate report of the proceedings in public before any court.
Without going into any specific situation—I shall not refer again to the circumstances of the particular case—if something is said against an individual in a court and that something is also flatly contradicted in the course of the same proceedings, a fair and accurate report of the proceedings would incorporate those comments. I leave that case and turn to a case where someone is represented wrongly as representing the traitor George Blake. I imagine that that was not a fair and accurate report of the proceedings in that specific case either, unless the submissions were of such a character that someone could fairly and accurately report them as
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having been made by a representative of George Blake, notwithstanding that the noble Lord, Lord Lester of Herne Hill, was not instructed on behalf of George Blake.
The point is that it is only a fair and accurate report of the proceedings that is protected; it is not a defence to an action of defamation, in my understanding, that the thing simply emanates from a hearing in public before a court. It must be circumscribed by being a fair and accurate report of the proceedings. That is probably the right answer to this matter. In the meantime, I hope that the Committee will approve Amendment No. 42.
10.15 p.m.
Lord Williams of Mostyn: Before the noble and learned Lord sits down, he indicated that he might offer a view on Amendments Nos. 43 and 44.
The Lord Chancellor: I am looking further at the question of Amendment No. 43 because one needs to see what others have done in respect of that. I have instituted inquiries. The General Medical Council and the Scottish Solicitors' Discipline Tribunal are tribunals exercising certain powers. The Scottish Solicitors' Discipline Tribunal would be singled out for some reason—I think possibly because it was mentioned in the excellent briefing of the Law Society of Scotland. It has an English equivalent so it would probably be less clear.
The general rule I have followed is that domestic tribunals are not given the same benefit as those tribunals which are courts. The definition of "court" which I have used consistently in such legislation as I have been concerned with in this area is "a tribunal or body exercising the judicial power of the state". I initially picked that up from the Constitution of Australia and certain of the decisions made there. That gives the essential character of a court and that is why it has been used.
It would not be right to extend the absolute privilege to tribunals which are in the nature of domestic tribunals. There is an argument about whether the particular tribunals to which the noble Lord refers in Amendment No. 44 are of that character. The law has been that domestic tribunals attract qualified privilege under paragraph 14 and that it would not be right to extend the absolute privilege to tribunals of that kind. That is my response.
On Question, amendment agreed to.
[Amendments Nos. 43 and 44 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 45:
Page 10, line 45, at end insert—
("() This section applies to—

(a) any court in the United Kingdom,

(b) the European Court of Justice or any court attached to that court, and

(c) the European Court of Human Rights.

In paragraph (a) "court" includes any tribunal or body exercising the judicial power of the State.").
On Question, amendment agreed to.
Clause 14, as amended, agreed to.
Clauses 15 and 16 agreed to.
Clause 17 [Interpretation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 46:
Page 11, line 30, leave out ("except as provided in") and insert ("but "publisher" is specially defined for the purposes of").
The noble and learned Lord said: I spoke to this amendment with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Clause 17, as amended, agreed to.
Clause 18 [Extent]:
[Amendment No. 47 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 48:
Page 12, leave out line 23.
The noble Lord said: This amendment speaks for itself. I believe it to be acceptable to the noble and learned Lord the Lord Chancellor.
The Lord Chancellor: I accept the amendment.
On Question, amendment agreed to.
Clause 18, as amended, agreed to.
Clauses 19 and 20 agreed to.
Schedule 1 [Qualified Privilege]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 49:
Page 14, line 29, after ("any") insert ("member State or").
The noble and learned Lord said: In moving this amendment I wish to speak also to Amendment No. 50. Amendment No. 49 is a small drafting amendment to avoid any suggestion that the provision in paragraph 9(b) is intended to exclude reference to authorities performing governmental functions in relation to the whole of a member state as opposed to in relation to part only of that state. Amendment No. 50 is a drafting amendment which affirms, in case otherwise there could have been any doubt, that the expression "governmental functions" includes "police functions" both in the United Kingdom and in other member states, so that fair and accurate copies of or extracts from notices or other matter issued for the information of the public by those exercising police functions will attract qualified privilege under Clause 15 of the Bill. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 50:
Page 14, line 31, at end insert—
("() In this paragraph "governmental functions" includes police functions.").
The noble and learned Lord said: I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 51:
Page 16, line 33, at end insert—
(" . A fair and accurate report of a correction or apology pursuant to section 2 of this Act.").
The noble Lord said: As the Bill currently stands, it is possible that a publisher might find himself in the position where, if libel proceedings against him were disposed of under the new offer of amends procedure and he was obliged as a result to publish a correction and apology, a third party might come along and claim that the published correction or apology was a libel of him. That is by no means a fanciful possibility. Frequently, libel proceedings arise out of complicated factual situations involving a considerable number of people, each of whom blames others involved for the scandal that has arisen. Where that happens one or more of the parties involved-might bring libel proceedings.
Under Clauses 2 to 4 of the Bill it is possible that these will be disposed of by way of offer of amends. It might well be impossible, however, to devise a suitable correction and apology in fulfilment of the offer of amends without implying, or even in some cases stating, that other parties involved in the affair were implicated in a way which could be defamatory of them. This amendment would confer qualified privilege on corrections and apologies published by way of offer of amends, reducing the risk that an editor might find himself out of one libel frying pan into the fire of another. I beg to move.
The Lord Chancellor: I understand the reason why it might be thought that reports of the outcome of an offer to make amends should have a special privilege, but I believe that a special privilege for that situation would be unnecessary and have unfortunate consequences. The outcome of an offer to make amends would not often involve a fresh defamation of a person who had not been involved in the original dispute. But if it did, it would raise the question of why a third party had been defamed.
One reason might be that the parties to the offer, and acceptance of the offer to make amends, had been motivated by the desire to gain publicity for their defamation of someone else, knowing that, although they themselves were not worth suing, anyone reporting their publication would have no reason to look into their motives. It does not seem to me right that the reporter of a settlement between two parties should automatically be licensed to pass on their defamatory comments on one another. I should have wanted to consider this amendment if it were shown that a responsible reporter who had not been aware that the reputation of a third party could be adversely affected by the report in respect

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of which no other defence would be available had made the report in question. I believe that to have a kind of general licence to give special privilege to this type of statement would be rather wider than justified.
Lord Lester of Herne Hill: I am grateful to the noble and learned Lord for showing me that the amendment does not do complete justice. It seems to be a case where complete justice probably cannot be done. I would like to think further about it to see whether there is some method of dealing with the problem I have raised in a more proportionate way. I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 52:
Page 16, line 46, after ("Justice") insert ("(or any court attached to that court)").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Remaining schedules agreed to.
House resumed: Bill reported with amendments.
House adjourned at twenty-five minutes past ten o'clock.