Lords Sitting of 5 December 1996

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Coventry.
Viscount Wimborne—Sat Viscount Wimborne—Sat first in Parliament after the death of his father.

Television Sponsorship: ITC Draft Code
Viscount Astor Viscount Astor asked Her Majesty's Government:
What progress has been made in the review of Independent Television Commission programme sponsorship and what interim decisions have been taken on the future of masthead programming on television.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, the Independent Television Commission's consultation on its draft of a revised code of programme sponsorship ended on 15th November. The consultation document proposes to allow masthead programming on cable, satellite and new digital services while retaining a ban on the public service channels. I understand that the commission hopes to introduce a final revised code early in the new year.
Viscount Astor: My Lords, I thank my noble friend for his reply but can he explain why the ITC has proposed that programme sponsorship should be encouraged on satellite and cable channels but banned on ITV Channel 4 and Channel 5? Is that not illogical and unfair competition, especially when programmers and publishers are increasingly coming together to make programmes?
Lord Inglewood: My Lords, I hasten to add that this is a draft document which relates to a code to be drawn up by the Independent Television Commission. I believe that the distinction that has been drawn by the ITC is based on the fact that the public service channels have certain positive programming requirements that are absent on the other licensed channels.
Lord Donoughue: My Lords, perhaps the Minister will help the House because the distinction is not clear at first sight. Is the Minister saying that the distinction arises because this activity is slightly disreputable and is not appropriate on public service broadcasting but is perfectly all right on satellite?
Lord Inglewood: My Lords, the point is not that this activity is inherently disreputable—far from it—but that the standards that are expected of, and the tone that is expected to be conveyed by, the public service channels
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are different from those on the other licensed channels by virtue of the positive programming requirements that are placed upon them.
Lord Jenkins of Putney: My Lords, is the Minister aware that programming sponsorship tends to condition programmes? Can he assure the House that there is sufficient understanding of this problem and that care will be taken to ensure that programmes do not become totally conditioned by sponsorship?
Lord Inglewood: My Lords, as the noble Lord, Lord Jenkins, has said, this is potentially an extremely difficult area. I emphasise that sponsorship of the kind that is being discussed must not involve the sponsor exercising any editorial or programming control over the programme in question. In addition, it cannot advertise that sponsor's products or promote them in any way.
The Viscount of Falkland: My Lords, I am not sure that I understand the noble Lord. Obviously, it is my fault. Is the Minister saying that this applies only to satellite, cable and digital services? If so, can one take it that when digital replaces analogue on terrestrial services there will be a relaxation of the restriction?
Lord Inglewood: My Lords, I am grateful to the noble Viscount for seeking clarification in case what I have said is not clear. Currently, masthead programming is not permitted. The ITC's draft code, which is out for consultation, proposes that it should be permitted on the services that I have mentioned. When digital terrestrial services come into operation, simulcasts, that is, simultaneous identical transmissions of existing analogue public service broadcasters, will be at the core of such services. Those programmes will be public service broadcasts. It is open to those who broadcast the programmes to broadcast additional material which will require licensing by the ITC. That additional material, even if transmitted and broadcast by an existing public service broadcaster, may be sponsored by the masthead technique provided it does not fall into the category of the programmes that are being simulcast.
Viscount Astor: My Lords, I thank my noble friend for his very clear reply which I am sure all noble Lords have understood perfectly. Will my noble friend express to the ITC the view that there must not be a situation in which satellite and cable broadcasters suddenly find themselves with a distinct advantage over terrestrial ITV broadcasters in this country?
Lord Inglewood: My Lords, in response to my noble friend I think I can do no better than explain that I advised the ITC that this Question would be put and that that body might find it helpful to hear what your Lordships said.
Lord McNally: My Lords, is not the warning of the noble Lord, Lord Jenkins, apposite? Is this not yet another step in the influencing of programming by commercial interests? One already has the skilled art of

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product placement not only on commercial television but on BBC television and in films, and the separation between commercial interests and programming is very important to the quality of television.
Lord Inglewood: My Lords, the noble Lord is right. I should like to emphasise that product placement is not permitted under the sponsorship rules. The point the noble Lord makes is one that is widely recognised and in this country owes its origin to the European television without frontiers directive which specifically points out the essential requirement that editorial and programming control is separated from the sponsor.

Council Flat Owners: Financial Assistance
3.15 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What plans they have to provide financial assistance to people who purchased the council houses or flats in which they lived and who now find themselves in financial difficulties as a result.
The Minister of State, Department of the Environment (Earl Ferrers): My Lords, Her Majesty's Government intend shortly to issue directions to social landlords which will enable them—and in certain cases require them—to reduce charges in some cases to those who are in particular difficulties with high service charges.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that Answer. Is he aware that I am talking about people who in good faith bought the council properties in which they were living? Is he further aware that the numbers are growing so much that we are talking in terms of thousands of elderly people who, in the main, purchased flats and are living in them. In some places a block of flats has been bought in that manner. The owners now find themselves faced with bills of between £10,000 and £15,000 for remedial treatment and repairs, and there is no possibility of selling those flats. They are trapped in them. Could not the Government think up some scheme to provide some financial help for the owners of those properties? If they do not, those properties may well be lost to this country's housing stock.
Earl Ferrers: My Lords, I am sorry the noble Lord did not find my Answer as helpful as I thought he would think it was. Some people who have bought council houses, or flats in particular, find considerable difficulty with high service charges. I agree with him that there are certain people who are old and who find themselves in trouble. The local authorities can buy back those houses or flats, particularly if people are old and may become homeless. It may be cost-effective for them to do so. There is also an exchange sale scheme under which the Government give local authorities
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concessions to encourage them to buy back houses or flats at the original right-
to-buy price, provided that they offer the people another property.
Lord Clark of Kempston: My Lords, does my noble friend agree that the generous discounts given to former council tenants who bought their own houses or flats mean that comparatively few of them are suffering from negative equity? Does he further agree that it would be wrong to single out one class of owner-occupier on whom to use taxpayers' money? Finally, does he agree that the Government's policy of selling council houses has been extremely successful in view of the fact that nearly 70 per cent. of the population are owner-occupiers?
Earl Ferrers: My Lords, I am grateful to my noble friend for drawing your Lordships' attention to that matter. He is right that few people are caught by this. Of some 200,000 flat owners—those who have purchased their council flats—only 2 per cent. could not sell because the purchaser could not obtain a mortgage. We produce a booklet on the right to buy. That booklet warns tenants of the costs of buying, service charge costs and the possible difficulty in selling the flats. We warn that expert independent advice should be taken, and tenants should think carefully before they buy. With regard to my noble friend's remarks about people being house owners, he is again of course right. In fact, 2.1 million council tenants have bought their properties since 1979 and become house owners. That is a creditable figure.
Lord Williams of Elvel: My Lords, I welcome some of the measures that the Minister has announced. Does he agree, however, that the proper way to approach this problem, which is a serious one, would be to introduce a scheme for mortgages to rents generally across the board rather than the scheme of rents for mortgages that the Government had in place?
Earl Ferrers: My Lords, I shall need to work out exactly what the noble Lord is saying. Some people have their mental processes work rather slower than the noble Lord's. I shall consider what he is saying about mortgages to rents and rents to mortgages. People who decide to purchase their house take a risk—of course they do. It happens with everyone. In the council sector they are given substantial concessions. The negative equity problem to which my noble friend referred does not affect them nearly so much, particularly now, because house prices are increasing. Negative equity at the moment is about one-fifth of what it was in 1992.
Lord Dean of Beswick: My Lords, is the Minister aware that some of the facts in the noble Lord's question were wrong? Is he further aware that just after the right to buy was established several years ago, a substantial number of tenants bought industrially built houses which showed serious defects after a short time and that

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the Government introduced substantial grants for them to be repaired? Will the Minister consider extending that scheme to these people?
Earl Ferrers: My Lords, I have explained to your Lordships that the exchange sales scheme enables local authorities to buy back houses where there is a difficulty. The fact is that anyone who purchases a house takes a risk and has to have professional advice. I realise that some people fall into difficulties not necessarily of their own making and we have taken steps to help.
Lord Monkswell: My Lords, we are grateful that the Government are recognising the problems experienced by some people who have bought their houses or flats, and that they are prepared to make financial provision to help them. However, there is a difference between the situation of those people who have bought their houses or flats and who then experience unforeseen problems and the situation in Westminster where the Conservative council mis-sold its flats with the result that the owners have faced enormous bills. Presumably the government scheme will apply to them, too. However, have the Government any intention of surcharging the councillors responsible for mis-selling their council's property?
Earl Ferrers: My Lords, that question is wide of the Question on the Order Paper and does not require an answer, other than the fact that I am not aware that it is so.
I say to the noble Lords, Lord Monkswell and Lord Dean of Beswick, that a survey carried out in 1994 of the people who had bought council houses showed that 97 per cent. of those who purchased under the right-to-buy scheme considered that they had good value for money; 86 per cent. of council flat owners considered that they had good value for money; only 8 per cent. of flat owners were more than one year in arrears with their service charges; and only 12 per cent. of all sales under the right-to-buy scheme are flats. Therefore, a considerable number of people who have purchased flats or houses are satisfied with what they have done.
Lord Avebury: My Lords, is there any incentive for local authorities to buy houses or flats at less than their market value and to relet them to the tenants at rents which do not cover the interest or management charges? Will the Minister say how many local authorities have taken advantage of the powers that he says they possess in this regard?
Earl Ferrers: My Lords, not many councils have taken advantage of the exchange sales scheme, although it is there for their benefit. With regard to buying back houses which are owned by people who have got into difficulties, if people are old and may
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become homeless it may well be cost effective for the local authority to do so; otherwise, it would have to find alternative accommodation for such people.
Lord Williams of Elvel: My Lords, the Minister said that not many local authorities have taken advantage of the scheme. Can he give a figure indicating how many is not many?
Earl Ferrers: My Lords, I shall have to scratch around in the books to find the answer. I do not have it at the moment, but I shall see what it is and tell the noble Lord.

Office of Public Service
3.24 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What are the functions of the Office of Public Service and whether they are satisfied that these functions do not encroach upon those of other government departments.
Baroness Trumpington: My Lords, the Office of Public Service carries out functions designed to promote and support good government, the provision of efficient and effective public service and policies which improve UK competitiveness. Details of these functions are set out in the department's last annual report (Command Paper 3220). Co-ordination arrangements exist to ensure that they complement and support those of other government departments.
Lord Peyton of Yeovil: My Lords, I am grateful to my noble friend for that Answer. I wonder how much other government departments have welcomed this spur to greater efficiency and also whether the help proffered to them does not seem more like a hard grip on their windpipes. Will my noble friend do what she can to ensure that the new department keeps Parliament informed of its plans and gives Parliament an opportunity to discuss them? The handling of the RAS and the plans in so far as they are understood for the Whitehall estate have generated a few breezes of anxiety.
Baroness Trumpington: My Lords, I am surprised that my noble friend has finished. He is stating his opinion, but he would not expect me to share it. However, I have noted his concerns and I shall draw them to the attention of the First Secretary of State, the Deputy Prime Minister.
As regards the RAS and parliamentary accountability, both Houses had the opportunity to debate the Government's proposal to privatise it and the

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Government responded to the detailed report of the Public Service Committee of this House on the sale, accepting all but one of its detailed recommendations.
Lord McIntosh of Haringey: My Lords, the Minister will recall that accepting all but one recommendation means accepting all the recommendations except the really important one. Does she recall that in May this year Sir Peter Kemp, the former Permanent Secretary of the Office of Public Service, said that Whitehall's existing structure reflects a view of the world that is usually anachronistic, distorted and sometimes just plain wrong. Is that the Government's view?
Baroness Trumpington: My Lords, no. I believe that a pretty good bite was had at the cherry on 7th November when the whole matter was discussed in detail. My noble friend Lord Howe said that the Select Committee did not include the wider question as to whether privatisation should proceed. That was the one recommendation with which the Government did not agree. He also said that the recommendations of your Lordships made for a better contract and arrangements with the new owners in the end and he was grateful to this House.
Baroness Park of Monmouth: My Lords, does my noble friend agree with me that the most useful thing that the Office of Public Service could do would be to direct the scrutiny of Mr. Fisher and the deregulation taskforce to its own operations; for instance, to deal with the novel idea in the OPS that it is going to tackle the burden of paperwork in the public sector, with further scrutinies to be launched? That is a very interesting point of view. Is it my noble friend's view that it may conceivably be part of the intention of the Deputy Prime Minister to change the culture of the Civil Service; but changing that culture seems to involve more paper, not less, except that the paper is OPS-generated and perhaps for that reason is respectable?
Baroness Trumpington: My Lords, this Government are committed to a permanent, politically impartial Civil Service, recruited through the principles of fair and open competition and selection on merit. The Government introduced the new Civil Service code and are committed to uphold the values of integrity, impartiality and objectivity across the Civil Service, which my noble friend Lady Park will know a great deal about.
Lord Peyton of Yeovil: My Lords, I should be grateful if my noble friend could forecast the likelihood of that office achieving its own target of becoming a model of good management practice by the end of this year?
Baroness Trumpington: My Lords, I do not forecast anything, but I shall pass on those remarks, as I said I would my noble friend's other remarks, to the department

National Heritage Bill [H.L.]
3.30 p.m.
Report received.
Clause 1 [Financial assistance from the National Heritage Memorial Fund]:
Lord Inglewood Lord Inglewood moved Amendment No. 1:
Page 1, line ID, after ("architectural.") insert ("engineering,").
The noble Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendment No. 4. When we discussed the Bill in Committee, the noble Lord, Lord Howie, proposed a number of amendments, the main thrust of which was to add the word "engineering" to the various lists of heritage "interests" which appear throughout the Bill. The amendments attracted support from the noble Lord, Lord Monkswell, and my noble friend Lord Caldecote. My response was that the amendments added nothing of substance since the funding remit of the National Heritage Memorial Fund under the terms of the Bill will encompass objects of interest in relation to engineering history. I nonetheless recognised fully the noble Lord's firm conviction that engineering must be seen as an aspect of the heritage in its own right, rather than simply an element falling within architecture or science. I therefore agreed to look again at the case for making specific reference to engineering on the face of the Bill.
Having now done so, I have concluded that there are two lists of heritage "interests" set out in the National Heritage Act 1980, as amended by the Bill, where a specific reference to engineering might happily be included. These are the lists in new Section 3(1) and new Section 4(2) of the 1980 Act. My proposed amendments accordingly add the word "engineering" in those two places. The other lists of heritage "interests" in the legislation are rather narrower in scope and I do not think it would be helpful to add any further items in these cases for the reasons I explained at Committee stage.
I hope the House and in particular the noble Lords to whom I have just referred will agree that what I am now proposing represents a sensible way of dealing with the concerns expressed in Committee. I accordingly commend the amendments to your Lordships. I beg to move.
Lord Howie of Troon: My Lords, I am extremely grateful to the noble Lord, Lord Inglewood, for his response to the arguments which I produced in Committee and for bringing forward these two amendments. Not only that, I am extremely grateful to him because last week he listed my house—admittedly only as Grade II; it was part of a bumper bundle of houses in the Hampstead garden suburb. But it is interesting that the notification of listing was accompanied by a number of papers, some of which actually defined what architectural interests meant in the eyes of his department. The definition reinforced the arguments which I have put forward; namely, that architectural interest did not include engineering interests.

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I am grateful to the Minister for the step that he has taken; it is small hut welcome. However, at the risk of appearing churlish, although I do not wish to do so, I suggest that at the next stage of the Bill, he should take further steps. He said that the word "engineering" has been included in two places in the Bill. When we discussed the matter in Committee, I suggested that the word should be included in four places. He has excluded two of those and I wonder that that has been done.
In the schedule to the Bill at paragraph 1(3), new subsection (2)(a), where the Minister has made an amendment, it is followed by paragraph 1(3), new subsection (2)(b) and (c) where no amendment has been made. I support entirely the fact that the Minister has accepted my amendments where they relate to architectural and structural engineering. But engineering goes much further than that. Paragraphs (b) and (c) refer to any object which is of outstanding historic, artistic or scientific interest or any group of objects. "Objects" must include machinery. The Minister will explain if it does not include those things. If we go to the somewhat oddly named scientific museum, we find that a large part of what is on display there consists of engineering artefacts—machinery and things of that nature. A machine—whether it is a machine tool, a planing machine, a screw-making machine or something of that nature, of which there are many and which are part of our heritage—is an object under the terms of the Bill. If they are not, I shall stand corrected. But if those are objects they are of engineering interest and the word "engineering" should be include in paragraphs 1(3), new subsection (2)(b) and (c).
I asked the Minster to consider the point. If I am wrong, which has happened before, perhaps he will correct me.
I am very grateful to the Minister and, as I say, am anxious not to appear churlish. However, in Committee, I asked him why the word "structure" should not be added on page 2 line 4 at the end of "construct or convert buildings". He has never given me a satisfactory answer as to why that should not be included. When I wrote to him some time ago before Committee stage, I drew the noble Lord's attention to the Anderton lift on the River Wear, which is a great structure, although it is not a building. Its purpose or function is to lift barges from one level of the river to another. It is a great machine which moves on rollers. It is not a building of any sort but it is a structure. Therefore, the word "structure" should be included to cover such things as the Anderton lift.
In Committee I asked him another question to which I received no answer, and that rather surprised me. Paragraph 1(3), new subsection (2)(a) refers to,
"any land, building or structure".
I agree with that wording entirely. But I am surprised that the word "structure" is appropriate in the schedule but is somehow not appropriate in the main part of the Bill. There may be a reason for that. I am sure that there is because the parliamentary draftsman would not do that if there were no reason. However, I asked this question in Committee and did not receive any answer. I should like to know why it is appropriate to include "structure" in one part of the Bill but not in another.
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With those remarks, I welcome the Minister's two amendments which he has tabled. I am extremely grateful to him for listening to my pleas, in so far as he has done so. However, I hope that he will reconsider and at the next stage of the Bill, or even in another place, take that further step which will mean that the Minister and I are in total amity and agreement, a consequence which is much to be desired.
Viscount Caldecote: My Lords, we often criticise Ministers for being inflexible and resisting amendments proposed to Bills. Perhaps I may say how extremely pleased I am that the Minister has responded to the amendments suggested by the noble Lord, Lord Howie, in Committee and that he has shown such admirable flexibility. I fully support the amendment.
Perhaps I may add that it is a very happy coincidence that this morning there was the parliamentary launch of the Year of Engineering Success, which is to take place in 1997. Therefore, it is a happy coincidence that this amendment is brought forward on this day. I feel that we should be satisfied that the admirable flexibility which the Minister has shown. I do not feel like joining the noble Lord, Lord Howie, in pressing my noble friend to go further.
Lord Monkswell: My Lords, I, too, wish to thank the Minister for his ready acquiescence to the suggestion of my noble friend Lord Howie of Troon at the Committee stage. However, I hope I may ask the Minister a question in support of what my noble friend has said this afternoon. Paragraph 1(3), new subsection (2)(b) states:
"any object which in their opinion is of outstanding historic, artistic or scientific interest".
Having included the word "historic", which encompasses anything in the national heritage arena, we are worried that it should need to be qualified, or added to, by the words "artistic or scientific", but that no mention is made of engineering. That is one of the difficulties we are faced with. Will the Minister consider either extending the list, as he has done in a previous section, or deleting the words "artistic or scientific"? That would cover the argument we have made as regards making a distinction in the heritage arena between engineering and something that is scientific or artistic.
I hope I may ask a further question. What is the Government's interpretation of the word "historic"? I believe the generally accepted meaning of "historic" is that which has applied in the past. However, I suggest that it might encompass something that has just been created. I refer to a prototype revolutionary motor car which is not destined to go into production but which is an engineering marvel. At the point of manufacture of that engineering marvel it may not be considered to be historic in the sense that it is something from the past, but it could be construed as historic in the sense that it is a milestone in the engineering field. and therefore in the future it will be considered historic. Therefore it is worthy of protection. I leave the matter there. I support

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my noble friend Lord Howie in the suggestions that he has made for future supportive action by the Government.
Lord Stewartby: My Lords, I regret to say that I was not present when these matters were discussed at the Committee stage. The last thing I want to do is to complain when Ministers respond in an understanding manner to amendments which seem to have general support. I came to the Chamber this afternoon because I could not quite understand the purpose of this amendment. It seems to me extremely unlikely that the trustees would ever want to give financial assistance to items of an engineering interest which did not have that engineering interest by virtue of being historic, archaeological, architectural or scientific. The last thing I want to do is to introduce a note of dissent because the measure clearly takes nothing away. However, it poses the question whether engineering comprises a different category and is therefore subject to different considerations. Would engineering include electronic equipment? Obviously the main industrial revolution took place 200 years ago and therefore early examples of engineering equipment or buildings might well be 100 or 200 years old. However, in the case of computers one might be talking—
Lord Strabolgi: My Lords, I am sorry to interrupt the noble Lord, but if he had been present at the Committee stage he would have heard my noble friend Lord Howie give a long description in his excellent case for including the word "engineering". If the noble Lord had read the annual report of the National Heritage Memorial Fund he would note that the fund already makes provision for a great many of these items which could be categorised as historic engineering. I am sorry the noble Lord was not present at the Committee stage. He is trying to pick up the pieces on a matter when he was not present at the original discussion.
Lord Stewartby: My Lords, I have apologised for not being present at the earlier stage. However, I remain unclear as to how engineering matters are not already covered by the words in the clause. Is any differentiation intended by the choice of the word "engineering" rather than "industrial" or something else? Does the word "historic" cover anything that was produced as recently as 20 years ago in a rapidly developing technology such as that of computers? That is the point of my question. 1 hope that my noble friend can enlighten me.
Lord Howie of Troon: My Lords, if the noble Lord wishes to meet me outside the Chamber I shall explain this matter to him and all will be made clear in a few moments.
3.45 p.m.
Lord Inglewood: My Lords, as I hope I intimated in my opening remarks I intended to oblige your Lordships with these two amendments. I am reassured that the noble Lord, Lord Howie, is grateful that his house has been listed. People do not always feel that way about the process.
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The point that my noble friend Lord Stewartby made is one that I made on the previous occasion that we discussed this matter. I have been given legal advice to the effect that the addition of engineering will not extend the scope of the Bill, and that the trustees will not now be enabled to do anything more than they previously would have done had this word not been suggested for inclusion. We tabled this amendment because a number of noble Lords felt strongly that this was an important statement about the importance of engineering in our society. I do not think anyone would dissent from that basic proposition.
As regards the second point that my noble friend made when he asked how old something has to be to be considered historic, we are entering the realms of theology. I have absolutely no doubt that something of the kind he is describing that will commend itself to the trustees will almost by definition be sufficiently important in the development and evolution of whatever activity we are referring to to make it historic in the context of that form of technology, and hence bring it within the scope of the word "historic" as used in this Bill. I shall consider the remarks made by the noble Lords, Lord Howie and Lord Monkswell. I said on the previous occasion we discussed this that I did not think that anything was added to the substance of the matter. However, I shall reconsider the matter, but I do so making it quite clear that I give no guarantee to be as obliging on the next occasion as I have been on this occasion.
On Question, amendment agreed to.
Lord Inglewood moved Lord Inglewood moved Amendment No. 2:
Page 2, line 42, leave out ("or").
The noble Lord said: My Lords, in moving Amendment No. 2 I wish to speak also to Amendment No. 3. With these two amendments we return to the issue of lottery funding for the Victoria County History, the Dictionary of National Biography and other similar projects. I loosely described those projects at the Committee stage as being benchmark works of historical research. I believe there is total agreement across your Lordships' House that such works should be within the funding remit of the trustees of the National Heritage Memorial Fund. It was with that fact in mind that my noble friends Lord Beloff and Lord Pilkington and the noble Lords, Lord Donoughue and Lord Strabolgi, added their names to amendments at the Committee stage. It also prompted me to bring forward amendments in my own name.
However, on that occasion doubts were expressed as to whether my amendments would achieve the desired effect. As the House will know, I therefore decided not to move them and agreed to look at the matter again. Since then I have examined the matter further and had the most helpful discussions with my noble friends Lord Beloff and Lord Pilkington and the noble Lords, Lord Donoughue and Lord Strabolgi. In that light I now bring forward revised amendments as on the Marshalled List.
The legal advice that I am receiving is still that the new Section 3A of the 1980 Act as amended. in accordance with the earlier ideas that I had, would

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encompass support for the Victoria County History. However, as I explained then, I am most anxious that the matter should be put beyond doubt and at the same time put in a way which protects the National Heritage Memorial Fund from pressure to support the general run of historical and topographical research and from frivolous applications. My conclusion is that it can best be done by enlarging further the scope of new Section 3A. This provision will empower the trustees to fund projects which relate to an important aspect of the history, natural history or landscape of this country and are of public benefit. The provision currently embraces exhibition and archive projects. My amendments will extend it to include the compilation and publication of a comprehensive work of reference or the publication of such a work of reference that has already been compiled. The amendments also cover the publication of archive material and any activity ancillary to the projects specified in new Section 3A.
I am satisfied that these amendments will ensure that the Victoria County History and other comparable undertakings are within the remit of the fund and are thus eligible for lottery support. The noble Lords with whom I have discussed the matter agree and I am delighted that my noble friend Lord Pilkington has added his name to the amendments, as have my noble friend Lord Beloff and the noble Lords, Lord Donoughue and Lord Strabolgi.
It will of course be for the National Heritage Memorial Fund trustees themselves to determine their funding priorities in the light of their statutory powers and the resources available. The Government's willingness to bring forward this provision must not therefore be seen as prejudging the view which the trustees take of any funding application they receive in respect of the Victoria County History or a similar project. I must also stress that this extension of the National Heritage Memorial Fund's powers does not mean that the lottery can now be regarded as a potential source of funding for mainstream academic research and publication in the field of history. Nor would I expect it to be available to support publishing ventures that should be self-financing. On that basis, I commend the amendments to the House.
On Question, amendment agreed to.
Lord Inglewood Lord Inglewood moved Amendment No. 3:
Page 2, line 43, at end insert—
("(c) publish archive material, or
(d) compile and publish a comprehensive work of reference (or publish a comprehensive work of reference that has previously been compiled),
to do any ancillary thing.").
On Question, amendment agreed to.
Schedule [Consequential Amendments]:
Lord Inglewood Lord Inglewood moved Amendment No. 4:
Page 4, line 13, at end insert (", engineering").
On Question, amendment agreed to.

Channel 4 (Application of Excess Revenues) Order 1996
3.52 p.m
Lord Inglewood Lord Inglewood rose to move, That the draft order laid before the House on 15th October he approved [1st Report from the Joint Committee].
The noble Lord said: My Lords, the Broadcasting (Application of Excess Revenues) Order 1996, which we are debating today, honours the commitment I gave at Report stage of the Broadcasting Bill on 7th March to end Channel 4's compulsory payments into its statutory reserve at the earliest parliamentary opportunity.
The draft order is made under Section 27(7) of the Broadcasting Act 1990 as amended by Section 83(4) of the Broadcasting Act 1996. It will reduce from 50 per cent. to nil the percentage of excess revenues Channel 4 must pay into the reserve under the provisions of the Channel 4 funding formula set out in the 1990 Act.
Although many Members of the House are familiar with the intricacies of the Channel 4 funding formula contained in the Broadcasting Act 1990 from our debates on this issue during the passage of this year's Act, I shall set out for the benefit of others a brief précis of the history to the order.
Under the terms of the 1990 Act, Channel 4 is guaranteed funding from the Channel 3 companies should its income from advertising fall below 14 per cent. of total national television advertising revenues. To date that has not happened, and Channel 4's income is currently 21 per cent. of advertising revenues.
The 1990 Act, however, also provides that if Channel 4's income from advertising rises above the 14 per cent. threshold, the excess revenue above that threshold must be distributed according to arrangements also specified in the 1990 Act. Half of that excess goes to the Independent Television Commission for onward distribution to the Channel 3 companies, 25 per cent. goes to a statutory reserve fund held by Channel 4 and 25 per cent. can be added to Channel 4's current expenditure plans. Should Channel 4's income fall below the 14 per cent. threshold, however, the funds which have accrued in the statutory reserve are its first recourse to make good the shortfall in funding. If and when the funds in the reserve are exhausted, it is for the Channel 3 companies to make up the shortfall between Channel 4's income and the 14 per cent. threshold. The liability of the Channel 3 companies is, however, limited to 2 per cent. of total national advertising revenue in any one year.
The funding formula was introduced by the 1990 Act as part of new arrangements whereby Channel 4 was to sell its own advertising rather than rely on financing from the Channel 3 companies. Prior to the 1990 Act, Channel 4 had been financed by a subscription from the ITV companies which sold Channel 4's advertising airtime. The funding formula was a safety net, because it was feared that the new arrangements might not provide Channel 4 with sufficient income properly to fulfil its remit.
During the passage of the Broadcasting Bill earlier this year, there were calls to abolish the Channel 4 funding formula. Many, including Channel 4 itself, believed that, in the light of the success that Channel 4 has enjoyed since it began selling its own advertising, the financial safety net was no longer required and the payments being made by Channel 4 to the ITV companies should be ploughed back into the channel's programme production.
The Government were not wholly persuaded by these arguments. It was accordingly decided to retain the basic framework of the funding formula but to take steps to increase the level of income Channel 4 can retain. The Broadcasting Act 1996 therefore introduced the power to adjust by order the distribution of Channel 4's excess revenues above the statutory threshold of 14 per cent. of television advertising revenues.
The level of funds in the statutory reserve, which stood at £84.8 million on 31st December 1995, is sufficient to cover any conceivable shortfall in income in the immediate future. To that end we have tabled the order before the House today which removes the requirement for Channel 4 to make any payment into its reserve and thereby doubles at a stroke the proportion of advertising revenue above the threshold level which Channel 4 is able to retain.
The Government have also long made it clear that we intend to amend the proportion of any such "surplus" which goes to the Channel 3 companies. However, as we stated during the passage of the Broadcasting Bill, the provisions of the Broadcasting Act 1990 did not permit any change in the financial equilibrium between Channels 3 and 4 under the funding formula before the end of 1997. As it was on that basis that the Channel 3 companies bid for their franchises, we are not willing to make any change to the operation of that relationship before 1998.
I also announced during the passage of the Bill the general lines on which we propose to use the new power in respect of payments to Channel 3 companies. We would reduce the level of payments from Channel 4 to the Channel 3 companies from their current level of 50 per cent. of Channel 4's excess income above the 14 per cent. threshold. These changes were to be in two stages, taking effect from 1998 and 1999 respectively. The Government, as I said, intended to make decisions on the exact changes to the percentages in the formula nearer 1998. That remains the position.
The order before us today will enable Channel 4 to spend tens of millions of pounds per annum on programming. It fulfils a specific undertaking to Parliament which was widely welcomed on all sides and in both Houses. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 15th October be approved [1st Report from the Joint Committee].—(Lord Inglewood.)
On Question, Motion agreed to.

Magistrates Courts (Remands in Custody) (Amendment) Order 1997
3.58 p.m.
The Minister of State, Home Office (Baroness Blatch)The Minister of State, Home Office (Baroness Blatch) rose to move, That the draft order laid before the House on 20th November be approved [5th Report from the Joint Committee].
The noble Baroness said: My Lords, this order provides that Section 128A of the Magistrates' Courts Act 1980, which enables magistrates' courts to remand defendants in custody for a maximum period of up to 28 days, shall have effect in all petty sessions areas in England and Wales in relation to those under the age of 17, as well as those of 17 and over.
This order is a consequence of Section 52 of the Criminal Procedure and Investigations Act 1996. As noble Lords may recall, Section 52 provides that Sections 128(1A) and (3A) and 128(A) of the Magistrates' Courts Act 1980 shall apply to defendants under the age of 17.
The effect is that the maximum length of time for which courts may remand to custody a juvenile who is awaiting summary trial or committal to the Crown Court will be in line with that for adult defendants. This means that on second and subsequent appearances of a juvenile in court, the court may order a remand to custody of a juvenile for up to 28 days, rather than eight days as at present.
This order brings into effect the change to Section 128A provided by Section 52 by providing, as I have said, that Section 128A will have effect in all petty sessions areas in relation to those under the age of 17. Section 128A already has effect in these areas in relation to those aged 17 and over. We intend to bring the amendments to Section 128(1A) and (3A) into effect on 1st February by means of a separate appointed day order.
Frequent court appearances where no change in remand arrangements are sought can be disruptive for young people as well as being unproductive. The new arrangements will give courts greater flexibility in determining the appropriate remand period and reduce the number of adjournments. Courts will remain free to set shorter remand periods than the maximum if they consider it is desirable and defendants will be able to make bail applications before the end of a remand period if there is a change in circumstances.
We will be issuing guidance to the courts and to other criminal justice agencies to make sure that the effect of the new arrangements and the flexibility that they provide are fully understood. This will, in particular, make clear that the welfare of the child must be considered in determining the appropriate remand period.
The order will be subject to debate in another place. If it is approved by both Houses, the Home Secretary will then sign the order and it will come into operation on 1st February. I commend the order to your Lordships. I beg to move.
Moved, That the draft order laid before the House on 20th November be approved [5th Report from the Joint Committee].—(Baroness Blatch.)
Lord McIntosh of Haringey: My Lords, I understand that the matter has not yet been debated in another place, which is unusual. Normally we have the benefit of its opinion before orders come to us. None of us likes juveniles, people under 18, being remanded in custody. We do not like them being in prison. We certainly do not like them being in police cells; nor do we like them being in detention centres when it can possibly be avoided.
However, from what the Minister said, I am relieved to hear that in itself the order will not increase the amount of time that juveniles will spend in custody. It will simply reduce the number of occasions on which they are required to go before the courts and the courts have to grant an adjournment. On that basis and on the basis that the order implements legislation which has already been passed, we have no objection to it.
On Question, Motion agreed to.

Home-Grown Cereals Authority Levy (Variation) Scheme (Approval) Order 1996
4.3 p.m.
Lord Lucas Lord Lucas rose to move, That the order laid before the House on 13th November be approved [4th Report from the Joint Committee].
The noble Lord said: My Lords, the purpose of the order is to make two small changes to the 1987 Home-Grown Cereals Authority Levy Scheme. The authority exists to improve the production and marketing of home-grown cereals and, since 1989, oilseeds. The authority is funded almost exclusively by industry levies which it uses to commission research and development, provide a market information service, encourage the development of UK cereals exports and support food from Britain. Fourteen of its current 16 members are appointed specifically to represent the interests of the levy payers and after consultation with relevant trade organisations. It therefore remains directly answerable to the industry which it has served for over 30 years.
The order before us today concerns the arrangements by which the authority collects the levy on cereals. In the first place it concerns the levies payable to the authority by cereal growers and by cereal dealers. Except where grain is sold directly into intervention, cereal grower levy payments to the authority are collected by the first purchaser or dealer. Therefore the levy due from the dealer is a gross figure which includes the grower levy, which the dealer recovers from the grower and an element from the dealer himself.
Dealers are permitted to make a small deduction from the gross levy before passing the balance to the authority. This deduction—or commission—is intended to provide the dealers with some recompense for any expenses which they may incur when collecting the
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grower levy on behalf of the authority. The principal change being made by the order before us today is to reduce from 5 per cent. to 3.7 per cent. the deduction which cereal dealers may make from the gross levy before passing the balance of the levy to the Home-Grown Cereals Authority.
The dealer commission has remained at 5 per cent. of the gross dealer levy throughout the life of the 1987 levy scheme. During that period, however, the cereal growers have chosen substantially to increase their financial contribution to the authority's activities whereas the dealers have not. For example, in 1988-89, 78 per cent. of the gross dealer levy came from the growers, whereas in 1996-97 the proportion has risen to 90 per cent. This means that a commission of 5 per cent. of the gross levy now takes a disproportionately large share of the growers' levy contribution. Both growers and dealers recognise the inequity of this situation. hence the present proposal to reduce commission from 5 per cent. to 3.7 per cent. At current levy rates, a reduction from 5 per cent. to 3.7 per cent. would limit commission in monetary terms to approximately the sum deducted by the dealers in 1995-96, the last year before the growers agreed a further substantial increase of 10 pence per tonne in their own levy contribution.
The opportunity is also being taken to make a second minor change to the 1987 levy scheme. This will make it clear that the Home-Grown Cereals Authority may instruct persons not employed by it—for example, a firm of accountants—to inspect cereal grower, dealer and processor records on its behalf for the purpose of determining liability for levy. It is clearly not cost effective for a small organisation such as the authority to retain sufficient employees with the required level of expertise to inspect records of levy payers scattered the length and breadth of the country.
The order will not come into force until 1st July 1997 which is the start of the authority's next financial year. However, it is being brought forward now because the reduction in dealer commission will obviously have an effect on the actual income which the authority can expect to receive from a given rate of levy. Therefore the authority needs to know what the commission rate will be well before it must finalise and forward to Ministers its financial estimates and levy recommendations for 1997-98. Ministers would normally expect to receive these around Easter each year.
Both changes follow extensive consultation with, and have the support of, relevant UK cereal trade interests. I therefore hope that your Lordships will be able to approve this short but useful order which I commend to the House. I beg to move.
Moved, That the order laid before the House on 13th November be approved [4th Report from the Joint Committee].—(Lord Lucas.)
Lord Carter: My Lords, as a cereals and oilseed grower, I should declare an interest in the order. I believe that the Minister answered the questions that I was going to ask. The change is welcome and agreed by the industry and it is clear that it has no effect on the growers' levy. It cannot be clawed back from the grower because of the way in which the levy is collected.

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I would have asked the Minister what kind of inspectors will be authorised besides the officers of the authority. However, he said that they would be accountants employed by the authority.
On Question, Motion agreed to.

Deregulation (Rag Flock and Other Filling Materials Act 1951) (Repeal) Order 1996
4.7 p.m.
Baroness Miller of Hendon Baroness Miller of Hendon rose to move, That the draft order laid before the House on 4th November be approved [4th Report from the Delegated Powers and Deregulation Committee].
The noble Baroness said: My Lords, the draft order is concerned with removing the burdens currently imposed by the Rag Flock and Other Filling Materials Act 1951. The Rag Flock and Other Filling Materials Regulations 1981 would fall with the repeal. If the House wishes me to go into the detail of the 1951 Act's provisions, I can do so.
The controls placed in the rag flock legislation are considered to be over-prescriptive and bureaucratic. Furthermore, both businesses and the enforcement agencies consider that the methods used to assess the cleanliness in the rag flock legislation have become outmoded.
The Government are satisfied that the repeal of the Act will not compromise the protection it was enacted to provide. This protection will be offered by the existing provisions of the General Product Safety Regulations 1994 (which implement an EU directive) and the British Standard 1425 of 1991. These place responsibilities on producers and distributors of products (including second-hand products) to supply only those products that are safe, that is in this case, products that are clean, free from contaminants and impurities. In order to ensure that producers and manufacturers supply products that are safe, the regulations attract the relevant enforcement provisions of the Consumer Protection Act 1987 in relation to prohibition and warning notices, suspension notices and appeals, forfeiture, the power to obtain information, the power to enter and search premises and to take samples. The measure will therefore not reduce the necessary protection for consumers.
The proposal has completed the preliminary scrutiny procedures for the deregulation orders under the Deregulation and Contracting Out Act 1994. The Delegated Powers Scrutiny Committee of your Lordships' House and the Deregulation Committee of the other place have separately assessed and reported on the proposal. Both committees have indicated that they are content with the draft order as it stands.
The order will remove controls which are considered to be over-prescriptive, bureaucratic and outmoded, without reducing the necessary consumer protection. Therefore I commend the order to your Lordships. I beg to move.
Moved, That the draft order laid before the House on 4th November be approved [4th Report from the Delegated Powers and Deregulation Committee].—(Baroness Miller of Hendon.)
Lord Gladwin of Clee: My Lords, I am grateful to the Minister for that detailed explanation of the order. We on this side of the House wish it a fair wind. It is clear from the documentation that many of the requirements under the 1951 Act have been overtaken by subsequent legislation. I am grateful that she made reference to the general product safety regulations. The response from the Minister, Mr Ian Taylor, is very helpful.
I also note that the Fire Officers Association is quite happy with the provisions of the order, and although the National Consumer Council was invited, it was not able in time to submit its views about the new order. But the committee is satisfied that the necessary consultation has taken place and therefore, as I said, this side of the House wish it a fair wind.
On Question, Motion agreed to.

Firearms (Amendment) Bill
Brought from the Commons; read a first time, and to be printed.

Land Registration Bill [H.L.]
4.13 p.m.
Lord Browne-Wilkinson: 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 Browne-Wilkinson.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clauses 1 to 3 agreed to.
Lord Coleraine Lord Coleraine moved an amendment:
After Clause 3, insert the following new clause—
Inspection of leases of residential flats
(". After subsection (1)(a) of section 112 of the Land Registration Act 1925 (inspection of register and other documents) insert—
"(aa) copies, in the custody of the Registrar, of leases of residential flats referred to in the register, and".")
The noble Lord said: When I supported this Bill at Second Reading, I had given notice to the noble and learned Lord and to my noble friend Lady Trumpington that I considered that the Bill gave an appropriate opportunity to revisit the 1988 Land Registration Act. That Act opened up the Land Registry for the first time. It gave public access to most of the information about the ownership of land in England and Wales held in the registry. A notable exception at that time, and now, is that copies of registered leases held in the registers remain secret.
The case that I made at Second Reading—I need not repeat it now—was that much water had passed under the bridge since 1988 and that it was now appropriate to reconsider the matter as it was left then. There would be great benefit to all actual and potential flat owners if they and those who advise them had access as of right to copies of registered residential flat leases. This amendment would provide for that change.
In responding for the Government at Second Reading, my noble friend regretted that time had not permitted an answer to be prepared and given to me. She undertook to ask the noble and learned Lord the Lord Chancellor to write to me with a substantive reply. I have now received that reply. I shall be happy to provide any Members of the Committee with a copy of his letter. My noble and learned friend wrote that the Government could not support an amendment to this Bill to compel the Land Registry to provide copies of residential flat leases as of right. However, he reminded me that the registrar has a statutory discretion, which is occasionally exercised, to provide copy leases in cases where there is no right of inspection. My noble and learned friend writes also:
"The Registrar accepts that, since that section was replaced in 1988. circumstances have shown that there is sometimes a need to see copy leases of flats other than the one owned by the applicant and there have been some cases where the discretion has been exercised accordingly.
"Following consideration of the points you made in the debate, the Registrar proposes that there should be a liberal use of the discretion so that anyone who can show an interest in obtaining copy leases of residential flats may do so upon payment of the usual fee. Without being limited to such cases, the exercise of the discretion would encompass any person involved in a process of collective enfranchisement or who is interested either as an existing lessee or as an intending one in a flat in a purpose built block of flats or a converted building."
I found that encouraging. It may well be that my noble friend will be able to satisfy me that my concerns can be met in that way. I look forward to her response. In the meantime, I beg to move.
Baroness Trumpington: I am grateful to my noble friend Lord Coleraine for giving the Chamber an opportunity to hear what my noble and learned friend the Lord Chancellor has been able to offer as an interim measure to go towards meeting the noble Lord's point about access to copy leases held by HM Land Registry. Further details will be addressed by the joint working group which is considering land registration. Meanwhile, as I said during the Second Reading debate, the Government wish this short but useful Bill a fair wind for the remainder of its passage through this Chamber and in due course in another place.
Lord Browne-Wilkinson: I hope that the noble Lord, Lord Coleraine, having received that assurance, will be able to withdraw the amendment, so as to enable this Bill, which everybody agrees is valuable, to go through swiftly. Otherwise, we have to move to Report stage formally, which will hold it up. I trust that the assurances from the noble and learned Lord the Lord Chancellor may be sufficient.
Lord Coleraine: I am very pleased to reassure the noble and learned Lord. I am very satisfied with the
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response from my noble friend. I should like to thank my noble and learned friend and the registrar for dealing with the matter so speedily in the way that they have done. I am sure that the changes being introduced will be of great benefit to many lessees and those who advise them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Remaining clauses and schedules agreed to.
House resumed: Bill reported without amendment; Report received.

Theft (Amendment) Bill [H.L.]
4.18 p.m.
Lord Goff of Chieveley: 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 Goff of Chieveley.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Obtaining a money transfer by deception]:
Lord Donaldson of Lymington Lord Donaldson of Lymington moved Amendment No. 1:
Page I, line 7, leave out ("money") and insert ("value").
The noble and learned Lord said: In moving this Amendment, I shall speak, with the leave of the Committee, to all the amendments in my name, since they form a cohesive and, I believe, coherent whole.
I made clear at Second Reading that my interest in the Bill arises from the fact that I am chairman of the Financial Law Panel. That is a non-profit making body set up by the Bank of England and the Corporation of London to act, in effect, as a specialist law commission for the wholesale financial markets of the United Kingdom.
As the Committee knows, in July this year, the House, acting in its judicial capacity heard the Preddy appeals. Those appeals concerned electronic money transfers as part of mortgage frauds. The decision that no criminal offence had been committed surprised many in the legal profession, though I should make it clear that I do not for one moment suggest that it was wrong. It did, however, have the practical effect of decriminalising some fraudulent electronic money transfers. It also had the effect of decriminalising the fraudulent electronic transfer of bonds and securities in so far as they are indistinguishable from money transfers.
This Chamber, in its legislative capacity, is now being invited to close one barrel of what is in truth a double-barrelled loophole in the law. My amendments seek to close the other barrel of the Preddy loophole. They are designed to be simple and discrete. They add "investments", where appropriate, and substitute "value" for "money", thereby including both money and bonds and securities.
The Law Commission, in its admirable report which gave birth to this Bill, sought to confine its provisions to what may be described, without disrespect, as the "Preddv mischief". Unfortunately it failed to appreciate that the electronic transfer of investments is a significant part of that mischief. That that should be the case may seem surprising unless one appreciates the way in which the wholesale financial markets operate, not only in London, but also worldwide.
If any physical manifestation of the bonds or securities is created by the issuer—and sometimes it is not—it or a promise to issue on request is conveyed to a custodian bank or similar institution. Thereafter, all dealings in the bonds or securities are affected by credit and debit entries in the accounts of the transferor or transferee kept with the custodian. No physical transfer ever takes place and the whole process is indistinguishable from the processes involved in a transfer of foreign currency held to the credit of a bank account.
My noble friend Lord Alexander of Weedon, who is unable to be present today, tells me that the banking community considers that the change I have proposed would make a valuable contribution on the footing that it could be dealt with as a discrete point which will not jeopardise the speedy passage of the Bill. The Bank of England expressed a similar view. The point is indeed discrete. The amendments cannot adversely affect any legitimate transaction since the Bill, with or without amendments, is solely concerned with dishonesty.
I accept that the amendments may cover some transactions which would fall within the criminal law notwithstanding Preddy. But that is equally true of some money transfers which will be covered by the Bill. So the only true objection to my amendments is their potential effect upon the speedy passage of the Bill. That is a matter which is exclusively within the control of the Government. I hoped and expected a degree of co-operation and joint endeavour which could and would have achieved that objective. I have been gravely disappointed. Instead, I have been told that this is all very complicated and difficult, which it is not. I have been told that my amendments could have unforeseen adverse consequences. No one can give a guarantee concerning the unforeseen; but for the reasons I have given I can guarantee that they will not be adverse.
I accept that the Home Office, in its responsibility for the reform of the criminal law, has unrivalled experience of legislating in haste and repenting at leisure. However, I can assure the Committee that this is one of those rare cases where it would not be at risk.
No one doubts the urgent need for this Bill to become law; no one would wish to impede its progress in any way. Proper consideration of a limited widening of the scope of the Bill could have been achieved if the Government's attitude had been different. As matters stand, it seems that I must reluctantly accept that, so far
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as this Bill is concerned, my attempt to enable this Chamber to fulfil its traditional role as a revising Chamber will fail. I beg to move.
Lord Goff of Chieveley: Perhaps I may be allowed to make one or two points about the amendments of my noble and learned friend. We should be extremely grateful to him for drawing attention to the specific matter to which he referred. There is obviously great force in what he said and plainly his proposed amendments raise a matter of considerable importance.
I have only one worry, which my noble and learned friend foreshadowed in speaking to your Lordships. The gap in our law revealed by Preddy, which is concerned with straightforward money transactions, is literally enormous. It potentially affects a vast range of transactions, but especially mortgage and other lending transactions. It is obviously a matter of deep concern, especially for the banks and building societies. It is essential that we move as quickly as possible to fill the gap. The amendments of my noble and learned friend, though important, do not cover so wide a range of transactions as those.
My noble and learned friend's proposal was before the Law Commission last summer and the Law Commission then took the view that it was best to go ahead with an absolutely clean, straightforward Bill to deal with the Preddv problem itself. There is also a review of dishonesty pending at the Law Commission and it is anxious to proceed with that as soon and as quickly as possible. It will be possible for my noble and learned friend's proposals to be dealt with in that review.
One reason why the Preddy gap occurred was revealed during the hearing in your Lordships' Chamber in its judicial function; that is, that there was an over-hasty amendment to the proposed legislation. That was revealed in Preddy itself and it became clear to me on that occasion that something may appear to be simple, but when looked at with care it is not quite so simple. I am grateful to my noble and learned friend but beg him to be so kind as to consider withdrawing his amendments.
Baroness Blatch: I am grateful to the noble and learned Lord, Lord Donaldson, for bringing this issue before the Committee today. The noble and learned Lord highlighted an issue which requires careful consideration and he put the case for the amendments with characteristic clarity and incisiveness.
There are a number of reasons why we have difficulty with these amendments and why I shall invite the Committee to reject them. This is not a new point. The Law Commission looked at the point when it was raised by the Financial Law Panel during its consultation exercise this summer. The commission concluded that it needed further consideration and consultation that was not possible in the timescale of the main Preddy review. It proposed to include it in its current review of dishonesty. That is the right way to deal with the problem and I shall return to that specific point in a moment. It may be helpful if I explain why the Government prefer not to tackle the possibility of

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problems in this area by the type of amendment proposed by the noble and learned Lord, Lord Donaldson.
This is a complex problem which may exist in a wide range of circumstances well beyond the position of the well-known securities depositories. The essence of the problem revealed in Preddy is that when one writes a cheque, money is not actually transferred from a specific bank to that of the payee. What happens is that an instruction is given to the bank to reduce the amount standing in one account and to obtain an increase in the amount standing in the payee's account. In essence, the bank account is a record of the extent to which one has the right to call for the bank to deliver another asset; in the case of a bank account, that is cash.
The noble and learned Lord, Lord Donaldson, argues that it does not matter what is in the account. It may be shares, eurobonds or any other security. In fact, it could be anything. Thus, for example, I can place metal in a warehouse approved by the London Metal Exchange and obtain a warrant which may be traded on that exchange. If I am a farmer I can put grain into an elevator on that basis or milk with a farmer's co-operative. But each situation will be different and the rights will depend on the precise legal nature of the contract between the depositor and the depository. It may therefore depend on the whole structure of law relating to rights, deposits and trusts in the jurisdiction concerned.
The Committee will no doubt be pleased to learn that no such problem can arise in relation to the holding and transfer of dematerialised securities in the new CREST system for the London securities market. In the CREST system, both the instruction to transfer and the evidence of title to the shares are fully dematerialised and this does not affect the nature of the rights held by the owner or the transferee.
Although the shares are dematerialised, there is still a company register, whether in paper or electronic form, which records the members of the company for the time being, and which must be amended each time there is a transfer of ownership of the shares. A transfer of shares is procured by the erasure of one name from the register and the insertion of a new name. The CREST system transfers to the purchaser the ownership of the actual shares in the company, not merely the rights of an account holder to call for delivery of a share.
At the more technical level, we should want to look in much more detail than we have had time for so far at the terms of the amendment. Specialist terms such as "investment" and "investment business" are taken from the Financial Services Act and have precise, carefully drawn meanings. We will need to be certain before legislation is brought forward on this point that the coverage and the cross-references are right. For example, whether or not a piece of property constitutes an investment may depend on the terms of a contract which provides for its forward delivery. Certain persons can provide depository-type services without doing investment business.
I said I would return to the consideration of this issue by the Law Commission. I am pleased to be able to tell the Committee that the Secretary of State is minded to
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ask the Law Commission to look at the issue raised by the amendments as a matter of priority, and I shall write to the noble and learned Lord about this. I can give him a personal assurance that I will want to press this myself, because I know how important it is to reach a conclusion on the issue. I am, therefore, asking the Committee to reject the amendments, not because these are not important issues, but because there are a number of matters to which I have already pointed which need to be resolved and consulted upon before legislating.
I do not believe that this opportunity should be taken ahead of more detailed work by the Law Commission on the issues raised by the noble and learned Lord. This Bill is urgent and it is important. There is no doubt of that. A problem has been revealed by Regina v. Preddy. It is a well specified problem and I believe we should tackle it now. The Bill provides a well drafted solution. It has been thoroughly researched and crafted by the Law Commission and we are most grateful for the tremendous effort in doing this work so speedily.
This well thought through measure needs to be enacted quickly, not only for the reasons that I mentioned but also for those that were put forward by the noble and learned Lord, Lord Goff. Although the noble and learned Lord, Lord Donaldson, feels strongly about making progress on the subject of these amendments, I hope he will feel able to withdraw his amendments so that the Bill may proceed without delay and the Law Commission can take up the problem that has been properly identified by the amendments.
4.30 p.m.
Lord Donaldson of Lymington: I am grateful to the noble Baroness for the crumb of comfort which I have been given that there will be an expedited inquiry by the Law Commission into this issue. I hope it will be divorced from the general inquiry which is so wide-ranging that it will go on for the better part of my remaining lifetime. I also hope that whatever government are in power at that time will provide time to enact whatever are the results of that inquiry. So far as the idea of keeping an account of the contents of a grain silo is concerned, I regard that as somewhat far-fetched. The idea that the London Metal Exchange may use accounts of this nature is not far fetched, and I was well aware of it in putting down my amendment. However, it is only the dishonest metal trader who would have trouble with my amendments. In no way can it affect honest trading.
In view of the feeling of the Committee, and with a view to making a contribution to the progress of this Bill, I ask leave to withdraw this amendment, and, if I may say in advance, I shall not be moving any of the other amendments.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 4 not moved.]
Lord Goff of Chieveley Lord Goff of Chieveley moved Amendment No. 5:
Page I, line 16, at end insert ("(in particular)").
The noble and learned Lord said: In moving this amendment I shall speak also to Amendment No. 14. They both serve exactly the same function: simply to

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make sure that the matters described in both places as "immaterial" shall not be the only matters which are so regarded. The first amendment was tabled in response to a suggestion by my noble and learned friend Lord Wilberforce and my noble friend Lord Williams of Mostyn that the specified matter should not be exhaustive. The second amendment has the same purpose in the second clause.
In moving this amendment, perhaps I may express the hope that the Committee will agree that in view of the widespread support for the principles of the Bill as introduced, it will be possible to take the remaining stages formally early next week. I understand that, subject, of course, to proceedings in another place, the Bill has a good chance of becoming law by Christmas. I very much hope your Lordships will agree that it would be wholly for the best if this should happen.
Baroness Blatch: The two amendments have the same effect: to make it clear that matters described as "immaterial" in new Section 15A(4) and new Section 24A(5) are not exhaustive. As the noble and learned Lord, Lord Goff, has said, they are minor amendments but nonetheless important. As was said at Second Reading, an exhaustive list of immaterial matters could tie the hands of the judiciary when determining whether an offence has been committed. The Government welcome this clarification and we lend our full support to these amendments.
Lord Wilberforce: I am grateful for these amendments, particularly Amendment No. 5, which responds to observations I made on Second Reading which received an echo from the Opposition Benches from the noble Lord, Lord Williams of Mostyn. I must say, if it is not too ungrateful, that the amendments do not go as far as I would have liked. I would have preferred not to have a list at all. But if we are to have a list, insertion of these words, if sanctified by the parliamentary draftsman, is to me satisfactory. I am glad to take the half-a-loaf which is offered on this occasion.
On Question, amendment agreed to.
[Amendments Nos. 6 to 11 not moved.]
Clause 1, as amended, agreed to.
Clause 2 [Retaining credits from dishonest sources, etc.]:
[Amendments Nos. 12 and 13 not moved.]
Lord Goff of Chieveley Lord Goff of Chieveley moved Amendment No.14:
Page 3, line 8, after ("immaterial") insert ("(in particular)").
The noble and learned Lord said: My Lords, I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 15 to 19 not moved.]
Clause 2, as amended, agreed to.
Clause 3 [The new offences: jurisdiction]:
[Amendment No. 20 not moved.]
Clause 3 agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with amendments.

Human Fertilisation and Embryology (Amendment) Bill [H.L.]
4.39 p.m.
Lord Winston: My Lords, I beg to move that this Bill be now read a second time. Before I speak about the Bill, I declare an interest as a practising reproductive medicine doctor, working in a sizeable clinic which deals with problems related to reproduction and, on occasion, problems related to the particular circumstances about which we are speaking today.
I do not want for a minute to suggest that we should be changing the law for a single person. I do not think that that would be appropriate. I hope that we shall not hear the rather facile phrase that hard cases make bad law. Your Lordships' House is well known for its ability to make difficult judgments in very hard moral circumstances.
This is an exceptionally difficult issue. It concerns the posthumous insemination of a woman after her husband or partner has died. It is something which was never discussed in detail during the proceedings on the Human Fertilisation and Embryology Bill in 1990. I am therefore grateful to the House for allowing me to introduce this Second Reading debate and to discuss the difficult moral problems that arise from it.
Although we do not and should not be changing the law for a single case, I must inevitably deal in some detail with the circumstances of one case, Mrs. Diane Blood, because it illustrates so well the problems faced by a few people in this tragic predicament. It is a hugely distressing one. It is no exaggeration to say that when I read her affidavit at two o'clock in the morning I was not in an emotional state. I was quite tired and I was about to go to bed. I had never met her. But I was moved to tears in my dining room because I believed that a fundamental injustice was being done. The whole context of the affidavit—every single word of it—rang out a truth which I had heard from other women in that situation.
Had I encountered the case 15 years ago my reaction would have been totally different. There is no question that I would have been horrified at the idea of posthumous insemination. I would not have considered it possible; I would not have considered it moral; I would not have considered it good for the grief and bereavement of the partner and the resolution of that bereavement; and I would not have considered it good for the child. However, my attitude to this problem has radically changed and it has changed because of extraordinary experience.
The clinic I run is one of the largest in the world for assisted reproductive technologies, so we see a huge number of people in quite unusual circumstances. My attitude has changed because I have come into contact with young men who have developed cancers. That may

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seem odd but it happens that modern cancer treatments, some chemotherapy and most radiotherapy, particularly where it concerns total body irradiation, have the almost inevitable result of sterilising the man. As medicine has slowly improved, the prognosis for cancer treatment has become better and better. When we treat Hodgkin's Disease or leukaemia there is a high probability that men, particularly young men, will survive. The depository at Queen Charlotte's Hospital has been a depository for the Royal Marsden Hospital for a long time. For many years we have stored the sperm of men undergoing cancer treatment at the Marsden and elsewhere because we know, and they know, that later on they will be sterile but they may want to have a child once they are restored to full health. Medicine is by no means perfect and some of those men have died. Before 1990 we could take a decision—a medical decision—based on the evidence in front of us, perhaps with reference to our ethics committee, whether or not to allow the posthumous insemination of the widow if that was being requested. Over the years I have seen a regular small number of these cases. Since 1990 it has been a requirement that we have written consent. In general that has not been a problem and it is only recently that the cases we are discussing have started to emerge.
In every single case, after counselling of the widow and proper medical management has been conducted, we have seen women produce entirely happy children and bring them up well without any evidence of deprivation. On other occasions they have gone on to produce happy families because, having lost their first husband, after a period of time they have remarried and the child has taken to the new wedded relationship perfectly happily. That is not unreasonable and seems in many ways, for those people at least, to be a memorial for the man they have lost.
Mrs. Blood is in a very similar situation. Things have gone differently in her case because her husband died extremely suddenly after a short, vicious illness. I do not know, but I think it was rather like the short, vicious illness that is going on at the moment in Cardiff—the attack of very serious meningitis. There was never time for him to give formal written consent because he became comatose. Because he became comatose and did not give written consent, his wife is barred by law from access to her husband's stored sperm. That to my mind is ridiculous.
I say that so strongly because there is the strongest possible evidence that this is what Stephen Blood desired. They were married in accordance with what is now regarded as a rather archaic version of the marriage ceremony—the 1662 version. They wanted to emphasise particularly the procreation of children and the marriage of a couple as of one flesh. Theirs was an extremely strong, loving relationship. There is plenty of evidence, of that.
There is plenty of evidence, which has never been contested, that throughout the marriage the couple discussed children in detail. When it became apparent that they wanted to plan for children they made certain that they were in financial circumstances that would permit children. More importantly, they considered the
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possibly of infertility treatment. There is evidence, never contested in any way in the High Court during the judicial review, that they discussed in vitro fertilisation and the new technologies in considerable detail. There is further evidence that Mr. Blood explicitly said that he would want his wife to have his child after his death. However, he did not write it down and therefore Mrs. Blood cannot now have access to that treatment. I believe, with complete clarity, that that is the case and I have seen the situation with other people from time to time.
The ban on the use of his semen comes from the Human Fertilisation and Embryology Authority. It is promoting the ban because it believes that it is implementing the law. I have no quarrel with the regulatory authority. Indeed, I do not want to quarrel with the HFEA. What I want to do is to enhance its purpose. I want to strengthen its purpose. I want it, in the way Parliament intended, to be allowed to use its discretion in these difficult circumstances. That is why I say that the argument that hard cases make bad law is irrelevant.
The Human Fertilisation and Embryology Authority was set up with the good people who run it—people from many different walks of life who have great experience—to decide difficult issues which would be presented to it from time to time. It has done so very successfully. I had personal experience of that with one very controversial case I wanted to treat some time ago, and there are other doctors who have had free access to it. However, one slight fear I have is the risk that if the law is seen to be unnecessarily rigid, doctors might not always be quite so ready to consult the HFEA as they have been in the past. Therefore I want to see the authority helped to come to decisions.
It is worth mentioning that so far as I am aware—perhaps the noble Baroness, Lady Cumberlege, will correct me if I am wrong—there is no other medical treatment which specifically requires written consent. Even transplantation does not require written consent. I was actually below the Bar in 1990, listening with great attention to the debate. I remember that I wanted to leap over the Bar and join in. As I recall, the concern that Parliament rightly had was that gametes are different, that they are special, and that there is a need to protect them in a particular sort of way.
The basic principle for written consent, as the British Medical Association has just said in an ethical judgment, is that in cases like this it is not written consent, but the quality of consent, which is important. I also have to say that when Parliament considered the issue in 1990 it was not actually concerned with arrangements between husbands and wives together. It was mainly interested in regulating donor gametes, donor sperm and donor eggs and in particular the problems related to embryos. In fact, looking at the report of the Second Reading debate, one sees that the discussion in this Chamber was entirely concerned with embryos.
That is why I want to have this matter discussed. Like the case of Mrs. Blood, there are regularly a few couples each year who are faced with this predicament. I know

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of two cases in the past six months. One man was undergoing in vitro fertilisation with his wife but had not signed consent for sperm storage. Just before the judicial review he was knocked off his motorbike and declared brain dead in a hospital casualty department. I was rung by the hospital in the south of England, asking for my advice as to whether it should try to get sperm from him. That, incidentally, is a fairly simple technique. It is not a new technology: it has been used for 20 or 25 years. I said that I really felt we should not do that; it would be a hostage to fortune as, until the law was clarified, we could have yet another widow who would be in this agonising position. I said that I thought it was probably better to let nature take its course.
Of course, it is necessary that the HFEA considers each case on its merits. I accept that the wording of this Bill may not be perfect; perhaps I may be given help with that if necessary. There must be an undertaking to look at the express interests of the welfare of the child. There are various objections to my thinking. Some people are naturally concerned that a child should not start off life without a living father: that is certainly an apparent disadvantage. I strongly sympathise with that notion, but there is no practical evidence that children in the right circumstances are genuinely harmed by this. In fact there is plenty of evidence to the reverse. Of course single parent families are not something that we should be attempting to produce: I completely agree. However, we are not talking about the usual nature of deprivation here, bringing social problems. We are talking about an entirely different circumstance. In Mrs. Blood's case, as it happens, she is surrounded by the most loving and supportive family. I think it is particularly impressive that her late husband's family have supported her throughout. When the court case took place in London they came down from Sheffield. They have come down to Parliament on occasions to listen to deliberations in another place. They have continued to support her and will go on doing so in the future. In these circumstances I think there is evidence for saying that such a child could actually be even more cherished and more loved. I do not think that such a child in many circumstances need necessarily remain fatherless indefinitely.
Another objection made to my approach is that Mrs. Blood should never have insemination because her husband did not receive counselling. I argue that the person who needs counselling is not Stephen Blood but his widow, Diane Blood. I believe that to be the general rule for most of these treatments. Of course we never insist on counselling in connection with reproductive treatments. It is something which is offered but is never actually regarded as being mandatory.
Since espousing the case of Mrs. Blood I have had a huge and most remarkable postbag, and I have not had a single letter objecting to what I am doing. I would stress that these are not illiterate letters. They are letters from people like vice-admirals, doctors, clergymen and people who are engaged in important support of our society. They are unanimous in their view. They feel that this is a right and moral thing. Some of them even quote religious views. They rightly observe that
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Stephen Blood did in fact give a form of written consent when he signed his marriage vows, particularly in the circumstances in which he and his wife were married—the nature of their particularly Christian marriage. Other people have pointed out that implementing her wishes in no way threaten public policy; nor does it threaten the moral fabric of our society.
I have what might be called another interest to refer to. As it happens, I am a practising orthodox Jew. Perhaps this is only slightly relevant, but I am reminded that there is of course biblical precedent. Your Lordships will be aware, for example, of Levirate marriage, clearly stated in Deuteronomy. There is a notion that if a man dies prematurely and his wife is without issue, then she is allowed to marry her late husband's brother because that promotes the generation and preserves her lost husband's name in society. Indeed, in biblical law that child is named after the lost father and not after the brother whom she marries. The wife does not necessarily have to do this but it is an option which is open to her.
Finally, some people claim that this could not have happened without the new reproductive technologies. That is not true. Artificial insemination has been here for 150 years; sperm storage for about 40. Nothing about this is particularly new, and I have personally seen these techniques enhance human happiness rather than decrease it. Many of my overseas colleagues say they cannot understand the problem. In many countries, including much of Europe and parts of the United States of America, such treatment is regarded as being accepted. There have never been many cases. Although it has been available in the United States, very few people have applied for this to be done. I think that is important. Britain has a reputation for enlightened, just and appropriately liberal law, promoting the welfare of its people. I hope that in this case Parliament might try to implement justice if possible. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Winston.)
4.57 p.m.
Lord Ashbourne: My Lords, the noble Lord, Lord Winston, has just explained to your Lordships how this Bill has been occasioned by the case of Mrs. Diane Blood, who is seeking to be artificially inseminated with her late husband's sperm. It is almost impossible not to sympathise with the desire of this woman, so tragically widowed at the age of 30, to bear her husband's child. It is not the purpose of my argument to seek to restrict the practice of artificial insemination by husband but to draw attention to serious practical difficulties with the Bill, some of which have grave ethical implications.
Will the Bill, as it stands, remove the obstacles facing Mrs. Blood? That is very doubtful. It may, but only if it can be established that Mr. Blood gave specific consent and that his consent was not simply inferred or presumed. There is little information available on that point. Only one report of which I am aware, which appeared in The Lancet of 30th November, specifically

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states that Mr. Blood "agreed" to his sperm being used after his death. All other reports give the impression that his consent has been inferred from his beliefs and comments on posthumous artificial insemination.
The proposed amendment to the law in the noble Lord's Bill does not obviate the requirement for consent. If, however, such an amendment were interpreted by the courts to mean that no specific consent (as opposed to inferred or presumed consent) were required, that would give the Human Fertilisation and Embryology Authority power to authorise the removal of sperm from men and ova from women without consent or consultation. Nothing in the Human Fertilisation and Embryology Act, or in the noble Lord's Bill, gives the next of kin or any other relative a right to be consulted, to give consent or to stop the removal of gametes from dead or dying relatives.
The Bill also appears to overlook the question of legal paternity. Section 28(6) of the Human Fertilisation and Embryology Act states:
"Where the sperm of a man … was used after his death, he is not to be treated as the father of the child".
The noble Lord's Bill contains no provision to amend that stipulation. It could certainly be most distressing for Mrs. Blood to find that although the courts allowed her to be inseminated after this legislation was passed, her late husband could not be treated as the father of the child.
Furthermore, the Bill makes no provision to obviate the requirements of the Human Fertilisation and Embryology Act that the donor of sperm of ova,
"must be provided with such relevant information as is proper"
and,
"must be given a suitable opportunity to receive proper counselling".
Reportedly, Mr. Blood indicated his agreement with posthumous conception after he and Mrs. Blood had read and discussed a magazine article. What was the article in question? Did it leave Mr. Blood well informed or misinformed? Certainly, he did not receive counselling about the implications of what is being proposed. It should not be assumed that to grant a request like that made by Mrs. Blood will not lead to psychological problems for mother or child.
The noble Baroness, Lady Warnock, has said that her committee lacked foresight in not anticipating this scenario. However, the Warnock Committee did, in fact, foresee situations where a widow might seek artificial insemination by her husband. The committee said:
"we have grave misgivings about [artificial insemination] in one type of situation. A man who has placed his semen in a semen bank may die and his widow may seek to be inseminated. This may give rise to profound psychological problems for the child and the mother".
The committee recommended that the practice "should be actively discouraged". Whatever one thinks of that conclusion, it should be noted that the man in the imagined scenario, who has placed his semen in a semen bank, would at least have had the information and counselling required by statute, which Mr. Blood unfortunately had not.
5.3 p.m.
Lord McGregor of Durris: My Lords, the noble Baroness, Lady Warnock, has recently said:
"I only wish that the law—"
that is, the Human Fertilisation and Embryology Act, which her committee of 1984 had shaped—
"were a little less rigid. I feel we would have … included a loophole if we'd envisaged the situation".
It seems to me that if we had been able to listen during that Second Reading debate to the noble Lord, Lord Winston, the result might well have been a suggestion that would have made the Act a little less rigid. No committee can envisage all the circumstances which may arise from its proposals. What matters is the present situation and the fact that the law has been obeyed and the relevant medical ethics observed. We have the assurance of the noble Lord, Lord Winston, on that. There is wide recognition that the law should be adjusted along the lines suggested by the amendment Bill which the noble Lord has brought forward.
I do not intend to take up the time of the House by speaking of the details. I am not a doctor and I am not a lawyer, but I feel strongly that this is a subject on which lay persons ought to testify. In my opinion, Mrs. Blood's difficulties, and those of others who may face similar situations as outlined by the noble Lord, Lord Winston, should be resolved by the proposal to change the Act. The noble Lord has wholly persuaded me that there can be fundamental injustices under the present Act. It seems to me that all the points raised by the noble Lord, Lord Ashbourne, could be dealt with by amendments in Committee. I hope that the noble Baroness, Lady Cumberlege, will give us some hope of government sympathy for the concerns raised by the noble Lord, Lord Winston.
In conclusion, perhaps I may make one point about the nature of discussion in a democracy. The very basis of a discussion of issues of public policy in a democracy is that we must observe the discipline of tolerance and avoid extremes of language which distort and degrade communication among citizens. I was shocked to read in last week's Sunday Times an assertion given quotation marks by the newspaper that Professor Scarisbrick of Warwick University, chairman of Life, had said that the noble Baroness, Lady Warnock,
"is a very evil and pernicious influence".
Such language among citizens drags the consideration of public policy into the gutter, quite apart from providing Professor Scarisbrick's students with a repulsive model of intellectual discourse. It is a fact that some people, when discussing these problems and occasionally unable to control their repugnance for the issues, degrade the discussion and make rational solutions to the sorts of issues which the noble Lord, Lord Winston, put before us, nearly impossible. I hope that when we hear or read comments made by persons representing bodies with such views, we shall make the most vigorous protests and do everything we can to keep alive the possibility of rational discussion.
5.9 p.m.
The Lord Bishop of Oxford: My Lords, like other noble Lords, I very much sympathise with Mrs. Blood over the death of her husband and can understand her strong desire to have their child. I am also aware of the distinguished work of the noble Lord, Lord Winston, and of how he has helped so many to conceive and bear children. Indeed, I was at a dinner party only a few days ago at which my hostess said that the noble Lord was one of her heroes.
In this Bill, the noble Lord is of course trying to help people in the position of Mrs. Blood—and it would be good to do that if we could. But we are dealing with legislation which by its nature affects many, not just a few. It has intended and unintended consequences and desirable and undesirable consequences. As I understand it, the question is whether legislation can be drawn up that is tight enough to help people in the position of Mrs. Blood without setting up a whole train of unintended and undesirable effects. It is not difficult to foresee a whole range of agonising predicaments that could arise from the wording of the amendment before us.
Every year thousands of young men die, a very high percentage of them in car accidents. About one in every thousand males between the ages of 16 and 39 dies every year. I understand that in 1994, 125,000 car driver casualties alone occurred and they included people of both sexes. One can envisage a situation in which a couple are very much in love. Perhaps they have lived together for two or three years. Tragically, the man is killed in a car crash. His fiancee desperately wants something of their love to go on into the future. He is an only son and his parents have longed for the time when they have grandchildren. If the law allowed it, there would be huge emotional pressure to extract sperm from him as he lay unconscious on a life-support machine or even when he was dead. As the law stands, for that to happen effective consent must be given. According to Schedule 3 to the Human Fertilisation and Embryology Act, a person who contemplates that step must be given an opportunity to receive proper counselling about the implications of taking it and must be provided with such relevant information as is proper. Furthermore, that consent must be in writing.
Consent is a crucial concept in both medical practice and medical ethics. Religious faith, particularly in its Jewish and Christian forms, underlines the importance of this. First, it is an expression and safeguard of the dignity due to the individual human being whether alive, dying or dead. One does not violate the body unless the individual agrees to the procedures involved. One respects his person, especially in the vulnerable stage of dying or death. Secondly, consent is an expression of respect for the individual's free choice. Even if one disagrees with the choice, it is a fundamental facet of what it is to be a human being that choice exists and the individual must be allowed freely to make it. Therefore, it is right to encourage people to make informed, mature choices, taking into account all the consequences they can foresee, as the 1990 Act lays down.
The Medical Ethics Committee of the British Medical Association has said that it accepts the principle behind the amendment before us that consent need not be in
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writing. The noble Lord, Lord Winston, has reminded us of that. But what that committee is concerned about, as I am, is the quality of consent and what would count as evidence of it if consent in writing was not mandatory. One cannot simply assume that because a couple were married or in love and that in normal circumstances they would have wanted to have children they would both want a child that they knew would be born and brought up without a father.
It is not romantic or sentimental to think of a man, close to death, not wanting his wife to have their child, for her sake. Because their love is true and deep, he also wants to leave her free to make fresh relationships in the course of time and to have children who can have a father. Although she may say—and probably would say out of love for him—that she wants to bear their child, even though shortly he will be dead, he out of his very love for his wife or girlfriend may be unwilling to give that consent. If there has been no opportunity to receive proper counselling about the implications of taking the proposed step, if he has not been provided with relevant information, as the Act at present states, and if there is no consent in writing, we simply do not know. If the couple have talked it through and, aware of what he is doing, the man has put his consent in writing, we then know what he wants. But if there is nothing in writing, how do we have access to his mind and on what basis can one discriminate between serious claims, on the one hand, and unfounded and rather thin claims, on the other, that he wanted his wife or girlfriend to bear their child when he was dead?
A great many young men die every year and leave a great number of grieving wives, girlfriends and parents. It would be entirely understandable if a high percentage of them wanted to carry something of the person they loved into the future in the form of their child, if the law allowed it. But in the absence of written consent and serious prior discussion, it is difficult to see what would count for and, no less important, what would count against the assertion that consent had indeed been given. There would be grave danger of the concept of consent being evacuated of all meaning in such circumstances, for a woman who was desperate enough would allow nothing to count against the notion that consent had been given by the man she loved.
As the law stands, the clinical judgment that was made to remove sperm from a dying or clinically brain dead man was, as I understand it, a mistake, if not explicitly illegal, and would be unlikely to be repeated. If the law is amended in accordance with the proposals in this Bill, clinicians may feel obliged to store sperm in case appeals were made later based on the notion that consent need not in every case be in writing and they would be blamed if such sperm was not available. To protect themselves from possible legal action in future they would need to err on the side of caution and take sperm if there was any possibility of a loved one wanting it. But that would place many more people in the distress in which Mrs. Blood now finds herself. She is in particular anguish, not only because of the death of her husband but because, sperm having been taken from

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his body, there is a possibility of conceiving their child. That may be what Mr. Blood would have wanted but we cannot know for certain.
Do we really want hundreds, if not thousands, of women to be placed in that anguished position? Furthermore, there would be two consequences if they were. The first concerns the role of the Human Fertilisation and Embryology Authority. It is difficult to see how it could possibly adjudicate in all these cases. Secondly, if its authority was to continue to be a real authority, it is likely that there would be a significant number of requests that it would refuse. So the distressed relative would have the further anguish that the possibility of bearing a child by the person they loved was extinguished by a human decision which many would find very difficult to accept with equanimity.
Researchers in America have found that a number of fertility clinics in the United States and Canada take sperm from dead men at the request of their partners or families. This is possible in the United States because the law concerning the extraction and use of sperm from cadavers is unclear. The researchers would like American legislators to introduce specific controls on the use of sperm samples as in current British law. The relative clarity of British law at the moment is a great strength and avoids much anguish that would ensue if it were changed.
I am sure that all noble Lords are aware that this is a difficult issue. I shall be listening with great attention to any wisdom that others may be able to offer, as I listened with great attention to the noble Lord, Lord Winston, and his deeply passionate and compassionate eloquence. But, while I am sympathetic to trying to help people in the position of Mrs. Blood, I believe that the present wording of the Bill gives rise to grave difficulties that need to be taken into account. For the reasons that I have sketched out, informed consent is fundamental to medical practice and ethics, especially when genetic material is involved. I should not want to see that consent in any way weakened, let alone evacuated of any real meaning. Furthermore, the relative clarity of the present law should prevent more people being put into Mrs. Blood's position, with all its ensuing anguish. The law can sometimes seem impersonal or hard. But keeping that clarity, so far as we can in this highly complex area, serves human welfare and human well-being.
5.20 p.m.
Lord Clyde: My Lords, I rise with all the hesitation of one who has not before had the opportunity of addressing your Lordships' House. I crave your Lordships' indulgence to bear with me with greater confidence when I am conscious that this House is remarkable for the kindness which it demonstrates to those who come here for the first time. Indeed, I suspect that the principal impression which any new arrival has and remembers when entering this part of the Palace is the outstanding civility, kindness and warmth of welcome that he or she receives, not only from the Members of your Lordships' House but from every member and every officer who serves in this building.
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I come from a family which, according to the heralds, is unorganised. It is legitimate, but it is also legal. Lawyers rejoice in controversy. Having been brought up in a legal household, and having spent my life in the practice of the law, I find it then difficult to discover myself constrained by the rules which quite properly apply to the speech which I must make on this occasion—the rule that requires me not to be controversial. I can only hope that what little I have to offer may not sound simply platitudinous, trivial or dull.
The Bill is admirably brief. I have an anxiety, which I think has already been expressed, that it may be too brief, but it seeks to right a perceived wrong—a wrong which the courts themselves have considered they cannot correct. It seeks to do it by introducing a flexible solution, giving the decision to be made in each case to the authority itself. That will of course be necessarily, in many cases, a hard decision, and it will require to be made on the basis and in the light of the whole evidence which is presented to it. I have no doubt that the authority, already in its history, has been required to make hard decisions, and this may be one which would be within its competence.
Once it is accepted that reproduction can be permitted by artificial means, then is this extending developments unreasonably? So far as concerns the result, there are, and of course can be, cases where the natural father may die before the birth of his child. My concern and interest here would be for the welfare of the child. That is, I confess, the justification which I have for presuming to open my mouth on this subject. When I see that the authority is required to consider, among other things, the welfare of the child, then my mind is substantially set at rest.
There are just two observations which I seek to make about the Bill. This is of course a matter of considerable delicacy and sensitivity. One can understand why, when the Act was passed, it was conceived appropriate that the critical consent should be in writing. A consent is needed for a licence to be given. No alteration is being made to that principle. A consent is still required.
I was interested to hear the noble Lord, Lord Winston, making observations about the reasons for the requirement for writing. I had imagined that at least one of the purposes would be that there would be available then a clear written document which would avoid any room for dispute or doubt about whether a consent had been given. It would serve as evidence of that critical ingredient. If that is part of the reasoning, then perhaps one should not depart lightly from that requirement for writing; but if one is to depart, then I would hope that there would be available some written record of the consent which has been given, albeit given not in writing. That could perhaps be done by the authority keeping the matter as one of written record, perhaps in its register of information or by some other way. However it be done, it would seem to me desirable that there should be written evidence available to establish, either if there were dispute in the present or in the future, that the consent had been given.

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The other matter which I would seek to raise is that the amendment has been prompted by one particular situation. One can conceive—as indeed the noble Lord, Lord Winston, said—that there can be other cases. I could not conceive that this would give rise, if it be passed, to any widespread increase in the number of cases which would come into its fold.
There are, it must be remembered, requirements other than writing for the consent, as the Act stands at present. As has already been mentioned, under Schedule 3 there is the requirement for proper counselling about the implications of the consent before it is given. That will still stand. There is the requirement that all proper information must be given to the person before the consent is given. There must also be information given to the person about the opportunities for variation or withdrawal.
If those provisions stand, it might well be thought that would give a fair indication that there has been a considered consent. It is, and would be, for the authority to be satisfied on that. If it is satisfied with those details, it may well be satisfied that the consent is a considered, conscious and deliberate one. It does not then seem to me that this amendment will open any wide door which would cause alarm, or breach any great principle so as to cause concern. The occasions upon which all these pre-conditions would be met would not, I suspect, be many.
In those few observations I have sought to avoid controversy. I would commend the proposal. I close by thanking your Lordships for the patience with which you have heard me. I shall look forward to an opportunity in the future when I may speak on a matter of greater controversy—of course still observing all due propriety and restraint.
5.28 p.m.
Lord Moyne: My Lords, I must first apologise for missing the start of the debate. I did so owing to a miscalculation of the time that the Business of the House would take, combined with transport difficulties. I hope that the House will forgive me. It is a particular pleasure to follow the noble and learned Lord, Lord Clyde, whose maiden speech was as distinguished as one would expect from someone with a legal career and whose reasoning was both close and humane. I believe that he will be a considerable ornament to this House.
My remarks will not take long. I feel strongly that the Bill ought to pass. I do not understand the concern of the right reverend Prelate the Bishop of Oxford with numbers. I agree with the noble and learned Lord, Lord Clyde, and do not envisage there being a great problem. However, if there were a problem the answer may be that if something is just for one person it is just for many.
It is strange how much attention is being given to the issue of consent. Surely the very marriage service of the Church of England tells us that one important purpose of marriage is procreation. The fact that the deceased husband married the wife is implied consent in about as strong a fashion as one can imagine.
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If, as some people have said, the grounds for objection are that the procedure might result in too many lone parent families there are two important answers. First, a lone parent who has taken the trouble to obtain fertilisation by her dead husband shows a devotion which is likely to recur in her devotion to the child. Secondly, there is absolutely nothing to prevent such a person getting married again when the period of mourning is over. In that case, there would be a two-parent family. Therefore, that cannot be an objection.
I also see a close parallel between the case of Mrs. Blood and that of a pregnant woman whose husband is unfortunately killed in a car crash. Should such a woman have an abortion? I should like noble Lords to think that matter over.
5.32 p.m.
Lord Habgood: My Lords, a large part of me wishes that I could support the Bill. It is compassionate; it is designed to help a few tragic individuals; it seems strictly limited in intent; and it is the kind of Bill which immediately arouses popular sympathy. Nevertheless, I believe that it would be a mistake to change the present stringent conditions for consent, despite the fact that such cases were not envisaged when the present legislation was drawn up, as the noble Lord, Lord McGregor, reminded us.
I see two reasons for being cautious. The first concerns an issue that has been mentioned; namely, the well-being of children. The second has not yet been mentioned. It is the way in which our society understands death. The first reason for caution, which is centred on children and single parenthood, has been much discussed, particularly during our long debates on the Family Law Bill. Unfortunately, public debate on this issue frequently confuses two quite different considerations. I am afraid that our debate tonight is no exception.
One of those considerations is whether we accept the two-parent family as the ideal. If we do, it follows that we ought, in so far as possible, to avoid legislation which implies that in certain, perhaps special, circumstances it is acceptable deliberately to create a one-parent family. I stress the phrase "deliberately to create". I am not talking about misadventures; I am talking about policy. Do we want to encourage the creation of one-parent families or do we not?
The noble Lord, Lord Winston, in his opening speech, interestingly referred to the Jewish practice of Levirate marriages, which one might say was a scriptural precedent for regarding death as a particular exception to this rule. The fact is that Levirate marriages were extremely complicated and raised all kinds of problems. For very good reasons, nobody now thinks of them. Therefore, I am afraid that that was not a strong argument.
The clear policy decision of what we want to say about marriages is frequently muddled up with a completely different issue of how single parents should actually be treated. It is urged in favour of legislation that would tend to create single parents that single

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parents may do a marvellous job; that the children of single parents may develop perfectly normally; that most of those who become single parents are such without wishing to be; and that in any case we should do nothing to denigrate single parenthood or fail to support those who find themselves in that position. Quite so—I agree entirely. But these considerations do not invalidate the ideal nor should they determine decisions about basic policy. These latter considerations are practical issues about helping people to deal with a less than ideal situation.
Therefore, my first point in relation to the Bill is that although the circumstances of some individuals may undoubtedly be tragic it would not be wise to pass legislation which would, however marginally, reinforce the tendency to believe that single parenthood is nothing but one option among others and may be deliberately encouraged by legislative provision.
My second reason for caution about the Bill concerns the way in which our society is beginning to think about death. I want to question the wisdom of trying to push out still further the boundaries of death. In saying that, I am in no way criticising the enormous success which the medical profession has had in defying and postponing death. What worry me are the pressures to deny death or to circumvent it, even when the person involved is clinically dead. As the right reverend Prelate the Bishop of Oxford told us, there are strong pressures of that kind in the United States. There in some clinics sperm is routinely taken from dead men at the request of their partners and families. It is not known whether they have been used for fertilisation, but whether they have or not—and why else would sperm be taken?—there is clearly a danger of moving into a macabre kind of culture in which the dead are clung to as though their potency was still somehow alive.
Admittedly, that possibility is already with us, given the practice of freezing gametes and embryos when proper consent has been granted. I must confess that I do not like this part of our present law, but at least proper consent for it is safeguarded by some clear, precise and relatively high hurdles. As the right reverend Prelate the Bishop of Oxford eloquently argued, it would be a great mistake to confuse that clarity and lower those hurdles even in such a modest fashion as is proposed in the Bill.
Nor do I take the argument that marriage by its very nature implies consent. It is simply not true. The Church might wish it were true when it says that one of the aims of procreation is marriage—
Noble Lords: No, no. The other way round!
Lord Habgood: My Lords, thank you. I am getting carried away. The Church might wish it were true when it says that one of the aims of marriage is procreation. Indeed, in an earlier famous report on the family in 1958, the Bishops of the Anglican Communion said that procreation ought always to be a possibility in every marriage, even though contraception was allowed. But we know perfectly well that in our present society, that is no longer the case. There are many people who either
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do not want to have children now or do not want to at all, even though they have taken their marriage vows.
It seems to me that if experience in the United States is any guide, there certainly will be further pressures on relaxation. There will be a succession of tragic cases, each of which pushes out the boundaries a little bit further. The HFE authority will find that its discretionary powers contain no clear guidance about where to draw the line.
It has been mentioned already that there is an irony in the whole situation in that legally, although not emotionally, death dissolves a marriage. As the noble Lord, Lord Ashbourne, said, post-mortem conception would, technically speaking, result in an illegitimate child. I know that it would not feel as though it were illegitimate or be treated as such but that point illustrates the kind of legal as well as emotional tangles which are likely to occur as soon as we start to tamper still further with the boundaries of death and the more our procedures imply that the dead are not truly dead.
Doctors can do wonderful things in preserving the living. But I hope that we shall not let them persuade us into still further attempts to preserve the potency of the dead. I am one of those who believe that death is not the end. Because I believe that, I believe that we must let the dead go in order to find them again. That is why my Christian conviction works in this instance against the attractions of immediate compassion.
5.42 p.m.
Lord Kilbracken: My Lords, I congratulate the noble and learned Lord, Lord Clyde, on his maiden speech and my noble friend Lord Winston on his maiden Bill in this House. I wish him well with it and hope that it will quickly reach the statute book, although it may need some work in the Committee.
There are one or two small matters on which I cannot help but feel apprehensive; and I hope that my noble friend will be able to reassure me. He has reassured me to the extent that I have already crossed out about half of the remarks which I intended to make because he has given me explanations.
However, I begin by drawing attention, as did the noble Lord, Lord Ashbourne, the right reverend Prelate and the noble and learned Lord, Lord Clyde, to paragraph 3(1) of Schedule 3 of the Act which states:
"Before a person gives consent under this Schedule … (a) he must he given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and (b) he must be provided with such relevant information as is proper".
That section still remains in force. If a donor has died, his consent is still required although under the amendment, it need not be written consent. Therefore, it appears to me that that paragraph would remain applicable, despite the amendment, and it would not be possible to comply with it. Therefore, further amendment to the Bill appears to be necessary.
Secondly, many noble Lords have expressed great concern about the welfare of the child, which I believe we all agree should be of paramount importance. My noble friend emphasises that by including it as one of

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the circumstances which the authority must take into account. It may be no more than a drafting point but I wonder whether it is necessary to state that in the amendment because Section 13(5) of the Act states:
"A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth".
In other words, it seems to me that the welfare of the child is already taken care of in the Act.
The case of Mr. and Mrs. Blood has been mentioned already by numerous noble Lords and therefore I feel no compunction about referring to them by name. However, perhaps my noble friend will give us some more information about their case. We know that the couple had been married, happily we believe, for a considerable period—seven or eight years—and yet no children resulted. Will my noble friend tell us why there was reason to hope that artificial methods might be effective despite the failure of normal intercourse and/or assisted intercourse, if I may so call it, assuming that that has been used?
As it is, any resultant child would inevitably suffer the extremely serious handicap—and I believe it to be a serious handicap—of never having a father. The mother's expectations of remarrying if, in the fullness of time, she wished to do so, could only be diminished. There are cons as well as pros in the case.
5.47 p.m.
Lord Walton of Detchant: My Lords, I am sure that the whole House is grateful to the noble Lord, Lord Winston, not least for bringing this difficult and sensitive issue to debate today based upon the Bill which he has introduced into your Lordships' House. I wish to join in congratulating my noble and learned friend Lord Clyde on his quite outstandingly persuasive and thoughtful maiden speech. I trust that we shall hear from him on many more occasions.
In a lifetime of medical practice, I have become increasingly aware of the fact that medical ethical problems continue to develop and emerge. They are ethical problems which one had never considered as likely to arise when one thought about certain specific situations. I was involved personally to a considerable extent in many of the debates in your Lordships' House on the Human Fertilisation and Embryology Bill some years ago. I agree with the noble Baroness, Lady Warnock. I too thought that the situation which is the subject of our debate today was one that I personally did not envisage as being likely to arise.
Having said that, I am sure that there can be no question that, under the law as it stands at present and under the Bill which became an Act when it finally received Royal Assent, the courts had no alternative but to refuse to Mrs. Blood the use of the sperm taken from her dead husband because that Act is quite explicit in saying that in such circumstances involving issues of human fertilisation, embryology, in vitro fertilisation and artificial insemination, the written consent of both partners is required.
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As the right reverend Prelate the Bishop of Oxford said, informed consent is at the core of medical practice. When a doctor and a patient meet, it is the doctor's duty and responsibility to advise that patient what measures he or she feels are appropriate to the management of the patient's condition. But it is up to the patient to determine whether or not that advice is accepted. However, there are few circumstances when that informed consent has to be given in writing. It has become a convention—this was referred to in passing by the noble and reverend Lord, Lord Habgood,—that in the case of an individual who is assessed by medical expertise as being brain dead, it is proper for the next of kin of that individual, after considering all the relevant circumstances, to give permission for the respirator to be turned off and to allow the patient's heart to stop shortly afterwards. In those circumstances, subject to the advice and permission of the next of kin, it has then been accepted conventionally that it is proper to remove organs, for example the cornea, the kidneys, the heart and lungs, for transplantation. Of course, many individuals in the world today and in this country carry with them cards which give a clear indication that they wish, should they die, for their organs to be removed for transplantation purposes if the organs are regarded as suitable for that.
I understand from today's debate that it is the legal interpretation of the Human Fertilisation and Embryology Act that the informed consent of the next of kin may not extend to the removal of gametes, either sperm from the reproductive tract of the male or ova from the female. I should wish to be sure that that is the legal advice which our lawyers have given, and that the Minister can confirm that is the case. I am not certain that my interpretation or reading of the Act is correct in that regard, but I am not a lawyer. It is important that that point should be clarified.
However, it has also been a strong convention that any operations upon the reproductive organs of male or female, including vasectomy in the male or sterilisation in the female, must be carried out only with the consent of both parties. That, I hope, we totally accept. However, my understanding is that no one ever requires a man presenting himself for vasectomy to give that consent in writing. I believe that a woman is perfectly entitled to give consent to sterilisation, once the partner or husband has given that consent, without it being in writing. Those other issues have become a common part of medical practice. It is therefore important that we should consider carefully whether it is right and proper, in the light of all these circumstances, to seek to amend the Human Fertilisation and Embryology Act in order to allow—as the noble Lord, Lord Winston, suggested in his opening speech—that gametes removed after death from a male or female subject might subsequently be used with the consent of the other partner. Of course in the future—who knows?—people may be asked to include in the cards they carry offering the right to transplant their organs a provision for transplantation of material from their reproductive organs. That is not feasible at the moment, but it may well occur in the future.

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This amendment is carefully and sensitively phrased. I share the views of the noble and reverend Lord, Lord Habgood, on the crucial importance of marriage and the family. Nevertheless, I accept that there are special and specific circumstances in which it is proper for the welfare of the child to be born that a single parent may be allowed to have a child. I believe this should be the exception rather than the rule. The amendment before us gives authority to the Human Fertilisation and Embryology Authority in specific and special circumstances to give permission, which need not be in writing provided it is the wish of the other partner in such a relationship, for artificial insemination using for example, as in the case of Mrs. Blood, the sperm taken from her dead husband.
On another issue entirely, I had the privilege of being the Chairman of the Select Committee on Medical Ethics in your Lordships' House. Among other issues, we considered the role of advance directives. We also considered a principle of substituted judgment. Is that a principle—which of course is not hallowed in law, but nevertheless has in many circumstances been hallowed in practice—that consent, which may not necessarily be given in writing, can be given by one individual, such as the next of kin, based upon the views of the dead partner or the incompetent partner expressed during life, or at a time when they were competent, upon what they would have wished to see happen to them if they became incompetent, or, subsequently, if they were no longer alive? This is a situation in which that issue of substituted judgment should be carefully considered.
The principle underlying this amendment—bearing in mind the crucial importance of the welfare of any child to be born if this procedure were to be allowed—is one that I would wish to support and commend to your Lordships' House. I accept that there may well be technical and legal problems. As the noble Lord, Lord Ashbourne, said, some amendment may be necessary to this Bill if it is to become law. However, I do not believe that it is beyond the wisdom and authority of your Lordships' House to see that this particular problem is dealt with effectively and sensitively, as the noble Lord, Lord Winston, would wish.
5.57 p.m.
Lord Meston: My Lords, the report of the committee chaired by the noble Baroness, Lady Warnock, was properly cautious about posthumous insemination and pregnancy. The report stated at paragraph 4.4 that a man who has placed semen in a semen bank may die and his widow may then seek to be inseminated. This may give rise to profound psychological problems for the child and the mother. The report states at paragraph 10.9 that the use by a widow of her dead husband's semen for AIH is a practice which we feel should be actively discouraged. Despite our own views in this matter we realise that such requests may occasionally be made. It is obviously essential that there should be some finality for those administering estates of deceased persons since in such cases posthumous fertilisation could cause real problems of inheritance and succession. Account would have to be taken of issue who might be born years after the death.
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In the White Paper of 1987 at paragraph 59 the Government shared those sentiments. However, it is significant that the Government declined to prohibit by law a widow attempting to have a child by use of sperm or embryo stored before her husband's death. However, the discussion in the Warnock Report and in the White Paper did not really consider the question in the context of the requirement of effective consent which became an important part of the legislation which was enacted in 1990.
At the Committee stage of the Human Fertilisation and Embryology Bill, as it then was, on 8th February 1990 I moved an amendment concerning embryos which proposed that consent as to future use and storage should cease to be effective in the event of one of the persons giving consent suffering death or legal incapacity. That amendment sought to give effect to paragraphs 10.11 to 10.13 of the Warnock Report, which were concerned with embryos rather than gametes. The noble and learned Lord, the Lord Chancellor responded to that amendment by pointing out that effective consent could extend to the use of embryos after death. That debate was more particularly concerned with embryos; this amending Bill is concerned primarily with gametes.
If the Bill is passed, it will be entirely consistent with the intention of 1990 Act that there must be effective consent and that such consent could extend beyond death. The child produced will still be produced as the result of the considered decision of two living, competent adults exercising the basic right to found a family. The Bill addresses the situation whereby what intervenes to defeat that decision is not infertility but the supervening death or incapacity of one of the parents. The Bill will simply mean that the absence of written consent alone will not frustrate that considered decision. The purposes for which consent is required will still be met by the unwritten consent—the purposes being to ensure the lawfulness of the treatment provided and to avoid evidential difficulty in establishing parentage.
There may well be a stronger case for requiring writing where it is the gametes of a third party that are to be used. But in the case of a married couple it is surely absurd to make the requirement of writing a means of defeating their agreed intentions. It is ironic that a third party's posthumous donation would be all right provided it was in writing.
I do not see the Bill as opening any sort of floodgate. One has only to look at its terms. First, the authority will retain a duty and a discretion to decide whether it is reasonable in all the circumstances to waive the requirement of written consent. Secondly, and importantly, there must still be reliable evidence of consent. There may be only a few cases where there is sufficient evidence of consent. Consent is not the same as acquiescence. Consent will not be inferred where the evidence amounts to no more than an indication that the deceased did not object or would not have objected. Those points were made in a slightly different way by the right reverend Prelate, the Bishop of Oxford. However, with respect to him, I suggest that it is perhaps wrong to prejudge the quality of the evidence in the

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particular case of Mrs. Blood or to predict the outcome of her case if the Bill was in fact law. Indeed, her case is still sub judice.
The further point to remember is that there is Section 13(5) of the 1990 Act, about which a very great deal has been written and said, not all of it entirely complimentary. Section 13(5) of the Human Fertilisation and Embryology Act 1990 requires clinics which offer assisted reproduction, before offering treatment to a woman, to take account,
"of the welfare of any child who may be horn as a result of the treatment (including the need of that child for a father), and of any other child who may he affected by the birth".
That allows, indeed requires, consideration of the suitability of the proposed parent. It may be that, in the situation that we are considering and if the Bill is enacted, those considerations will be more difficult in the case of supervening incapacity than in the case of death.
People in the situation faced by Mrs. Blood and others who may come after her face enough obstacles. As a widow, she is not barred from conceiving a child by another man whom she never sees again. She is not barred as a single person from seeking adoption. This Bill seems to provide a modest improvement to the law to meet a situation that was not entirely foreseen in 1990 and to deal with it in the context of the 1990 Act. To prevent the Bill becoming law would allow there to continue to be unnecessary regulation of husbands and wives.
The concern of the BMA is a proper concern. It has been echoed by previous speakers this evening. It is that not only is there a requirement for consent, but there is a requirement for counselling. I hope that whether in the form of this Bill, or in guidance to the authority, there will be situations provided for to allow flexibility so that not only the requirement for written consent is waived but also the requirement for formal counselling. I hope that the Bill passes into law, and as quickly as possible.
6.6 p.m.
Lord Rix: My Lords, first, I must apologise to the noble Lord, Lord Winston, and to the House generally for my late arrival. Unfortunately I was out of town on MENCAP business and the weight of traffic held me back. For once I was glad to be a later speaker.
I wish to support the noble Lord, Lord Winston, simply because I agree with him. I have no expertise in this area, and neither my former profession nor my role in MENCAP gives me any standing in this delicate personal issue.
I recognise the hazards in proposals for legislation which might seem to be of the "town clerk's pension Bill" kind in so far as they relate to the circumstances of a particular case and the interests of a particular person. However, the noble Lord's modest Bill is clear in its purpose and does not threaten wider repercussions of a kind not intended by the draftsman. Moreover, it contains all those safeguards for which one might look in this sensitive area: the requirement of "reasonableness in all the circumstances"; and the test of "the welfare of
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the child" that might result. Moreover, the underlying concept is still one of consent. What is waived, in exceptional circumstances, is a requirement for written consent.
Since the noble Lord and others bring expertise, I am content to argue this matter from a lay point of view. As I see it, we are concerned to secure, as the frontiers of scientific possibility are shifted, that science is kept in touch with nature. Given what is theoretically possible either already or at some future date, we want to keep as close as we can to the ideal of a child being born as a result of a loving relationship between a man and a woman, and subsequently nurtured by that man and that woman.
I shall not be side-tracked into exploring the naturalness or otherwise of the huge range of other possible relationships and situations, or indeed into the equally controversial area of the relative priority between spending money on helping people to have babies where they might not otherwise have them, as opposed to spending money on sustaining life and improving the quality of life. I want to focus on the simple issue of a woman, now a widow, wanting to have her husband's child. As a family man, whose marriage has been a long and happy one (despite all the hazards of "theatrical marriages"), I can empathise with someone whose marriage was cut short but who wants to fill a void with her husband's child. That does not seem to me to be unreasonable, or unnatural, even though it has only recently been made medically possible.
I do not know whether your Lordships are well versed in the Book of Ecclesiasticus in the Jerusalem Bible, but those who are (certainly the right reverend Prelates on the Bishops' Benches) will recall Chapter 30, verse 4:
"Even when the father dies, he might well not be dead. if he leaves his likeness behind him".
Surely we cannot deny the late Stephen Blood that vision of immortality.
6.9 p.m.
Baroness Warnock: My Lords, I wish to support the modest proposal contained in the Bill. Your Lordships have heard that there are, and may in future be, a few cases where the provision of joint written consent for the use of sperm by a recent widow has been made impossible by the sudden incapacity of the husband before his death. However, all the circumstances suggest that it would have been his wish that a posthumous child should be born.
I wish in some degree to put the record straight about the deliberations of the committee of inquiry, which reported in 1984. The report was largely incorporated in the 1990 legislation. That committee considered the possibility of the posthumous use of frozen sperm by a widow and decided that, while its use should not be encouraged, within certain time constraints it should not be prohibited. We in the committee advised that written consent from both parties should have been obtained, because we had in mind a particular case where a couple would be treated together as a couple where they might wish sperm to be frozen before surgery in case the

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husband either became infertile or died. The husband and wife were treated together as a couple in such a case.
We did not consider the case of a man who fell ill unexpectedly and from whom sperm might still be obtained during his illness. We did not know of any such procedure at that time, although I believe that it existed. However, I deeply regret now that we did not consider it. If we had, our attitude to a posthumous birth would probably have been the same: namely, that it should not he actively encouraged but, more important, it should not be a criminal offence. I believe that we would have seen the argument for sometimes waiving the written consent requirement, provided that the other requirements were satisfied, especially the general requirement already in the Act that the good of the potential child should he paramount.
A great deal has been made, rather to my surprise, of the second condition that would not be able to be fulfilled in the case of the sudden and unexpected death. That is the condition of counselling. I have a block about the necessity for counselling. The words of the committee of inquiry which were later incorporated into the Bill would never have been my words. People forget that the chairman does not write the report but sometimes has to go along with the views of other members of the committee.
I would regard counselling as desirable perhaps in some cases, but the notion that it should be mandatory to counsel someone who wanted to lay down in writing that he would like to have a posthumous child, should the situation ever arise; or that he should be counselled when, in conversation with his wife, he said that he would like to have a posthumous child if the situation arose, seems to me bizarre. I hope that too much would not be made of the absence of counselling in the case of someone who died unexpectedly and in an unforeseen way.
But, lying behind the details of the arguments about the Bill, somewhere there lurks the feeling that it could never be in the interests of a child to be conceived after the death of its father. I find that proposition difficult to articulate because the child does not yet exist, so it does not have an interest. However, noble Lords will understand what I mean in saying that there are people who think that for a child to be conceived after the death of the father must always be a disaster.
The issue here is not whether that conception is a good or an evil. It is whether such a conception can be permitted without the written consent of the parents. That is why I speak of the objection to posthumous children lying behind the arguments that turn specifically on the question of consent and counselling. I cannot believe that anyone supposes that any posthumous birth is immoral. Being a posthumous child myself, I probably would not think that a posthumous birth was immoral. Therefore, I believe that there is no intrinsic reason why an "assisted" posthumous birth—one that would not have been able to take place before the freezing of sperm was possible—should be intrinsically immoral, if a posthumous birth itself is not immoral.
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The supposition that it is particularly bad deliberately to bring into the world a posthumous child carries the implication that there is something wrong with posthumous children. Otherwise, I cannot see what the difference is between allowing that posthumous children may be born and deliberately assisting the birth of a posthumous child. That is the point at which I find it difficult to follow the argument. It would be a natural consequence that if one believed that posthumous children should not be allowed, it would follow that a mother who was pregnant with a child when her husband died should be counselled in order to ascertain whether she would like an abortion.
I believe that there is nothing special about the deliberate bringing into existence of a posthumous child, nothing especially dangerous or wrong with that deliberateness, provided that the child will be born, if it is born, in favourable circumstances. I do not believe that we ought to accept the presupposition that being the child of a single parent is the worst fate that can befall a child and therefore it cannot be right deliberately to cause such a child to be born. Once again, we must notice that to cause such a child to be born is already permitted in law. The sole issue is whether written consent and counselling has been obtained.
It is difficult to predict how his life will be when the child is born. The father who gives consent to the posthumous child by the use of his sperm, should he die, must guess that it will be all right for the child. It cannot be more than a guess. But we would all agree that the most important points for a child are, to quote Tennyson, that he should be the object of admiration, hope and love. There are many cases where that is the kind of environment in which a posthumous child may grow up. His father, though not present, will be held up to him as an object of love. The father will not be the visible and existing father that everyone would wish; but the child will be the visible and existing sign of the love that his parents bore towards each other. That is the essential of the family. The child will be the hope for the foreseeable future.
I argue that if those circumstances seem to the Human Fertilisation and Embryology Authority likely to surround the child, if he is born, then it should have the power to allow the insemination of the widow, within the existing legal time limits, even though there is no joint written consent and there has been no counselling. The authority will be guessing about the good of the child and it will doubtless be cautious in using its power. But, as I have suggested, guesswork about a child's future is not at all uncommon.
Finally, having argued that there is nothing intrinsically immoral in permitting and indeed assisting in the birth of a posthumous child, I also argue that in the Bill there is nothing that would set public policy in a new undesirable direction. Here I should like to take the opportunity to say that I agree with what was said in the maiden speech of the noble and learned Lord, Lord Clyde, to which I listened with enormous admiration. I agree that this is not a public policy issue. I must regretfully disagree with the noble and reverend Lord, Lord Habgood, who suggested that if we allowed this Bill to go through we would signal a belief that one

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parent was as good as two parents. I feel that if anything this Bill, if passed, would be a signal of our belief in the power of love in looking after a child in a family rather than that one parent is as good as two.
I do not believe that there would be a great rush of new cases to come before the authority. I suppose it goes without saying that no one would choose to have a posthumous child from frozen sperm rather than have a child in the ordinary way with the father still alive. I do not believe that the number of cases likely to arise, and certainly not the number of cases likely to satisfy all the criteria that the authority would have to use, would be very great.
So I believe that there is no moral objection to allowing this slight flexibility in the powers of the authority, nor do I think that it constitutes a public policy issue. For those reasons, I very strongly support the Bill.
6.21 p.m.
Lord Kennet: My Lords, I speak in the gap and do so reluctantly because I had hoped that my point would have been made earlier. As it has not been made, I take a moment or two to detain your Lordships with it. It concerns the position of the HFEA in this amending Bill.
The Bill has been precipitated by an extremely famous case, described most eloquently by my noble friend Lord Winston. It is known to the entire British people, and widely abroad. I believe that there is nobody present who would not wish that the law should permit Mrs. Blood to have the child that she desires. However, the Bill will not only affect the Mrs. Bloods of this world. It will affect a very large class of persons, the probity, the veracity, and so on, of whom will vary widely.
Let us consider the enormous spread of people concerned. To begin with, the Bill affects women as well as men. It affects donated ova and, if they are to be used for procreation, that automatically involves three people at once; namely, one dead party and two living parties. That is considerably more complicated than the case we have been considering so far of two people: one man and one woman. I confess that I have not had the time to think through the ethical ramifications of that. However, the HFEA would be required under the Bill to think out the ethical ramifications, and it might be that the evidence would be contested in easily imagined and very complicated ways.
I was struck by what the right reverend Prelate the Bishop of Oxford said about young men in car crashes at night. Young men do drive about rashly late at night. Typically they are young men who have not yet had families and who look forward to having families. Typically also they are young men who have girlfriends or young wives. Let us imagine a case in which such a young man is killed and his wife is present or arrives on the scene immediately, calls for a doctor and says, "Quick, quick, we need the sperm." Those are unpleasant imaginings but the law is the law. My noble friend corrects me. Then let us assume that the matter can be left until the next day. Let us also assume that at the same moment another young woman disputes the evidence that the young man truly wished to have a baby with the first young woman to appear, and not with her.
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That places the HFEA in a judicial situation. It lays upon it a duty of obtaining evidence, which may be difficult and complicated. At this point I should say that I am in no sense speaking on behalf of the HFEA and that these are just considerations which appear to me rather obvious. There will be emotional urgency even if there is no physical urgency, and telephone calls in the middle of the night will not be unexpected. Is the HFEA to be staffed to remain open all night to take such telephone calls? That is a practical point.
I should like to make one general observation. If this Bill fails—I do not know whether it will fail; indeed, I do not know whether or not I wish it to fail—it will not have been in vain, because it will at least have procured a much wider knowledge among men, and women, of the desirability of writing their wishes down sooner, rather than leaving it too late.
6.26 p.m.
Baroness Robson of Kiddington: My Lords, I am grateful to the noble Lord, Lord Winston, for introducing this Bill of amendment to the Human Fertilisation and Embryology Act. He told us that we should not make a change in the law because of one case, and that is quite right. But he also told us of some of his experiences in the past.
Inevitably, in what we say today we are all influenced by the case of Mrs. Blood. But that is not to say that we want the law changed purely for that reason. My noble friend Lord McGregor said that he was speaking not as a doctor or a lawyer. Neither am I a doctor or a lawyer. But I am a woman and that is very important.
When I first saw the list of speakers, I was astounded not to see more contributions from the women in this House. So far we have heard only from the noble Baroness, Lady Warnock. She, of course, had to contribute to this debate. We all admire her for her work in the late 1980s and up to the introduction of the Act.
As a woman, I feel that I can have a rapport, perhaps on a different level, with Mrs. Blood and other women who are faced with that kind of choice. I have been a widow for a great number of years. I was lucky to have children and I even have eight grandchildren. Every time I see one of those children or grandchildren I see part of my husband. That is what is important. And it is important that we should enable Mrs. Blood to have that experience, though obviously in a different way because her husband will not be there to enjoy it with her. But we owe it to her nevertheless.
I want to go back and talk a little about the intention of the Bill when it was first introduced. During the Second Reading debate in 1990 in another place, the Government indicated that they intended the Human Fertilisation and Embryology Authority to be able to act independently and to use discretion. In that debate the Government stated:
"The code of practice of the authority will have to be submitted to the Secretary of State and laid before the House, but some independence in medical and scientific matters is in the interests of Parliament and the Secretary of State".—[Official Report, Commons, 2/4/90; col. 919.].

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So the intention was always that there should he a certain amount of independence allowed to the authority.
That is particularly relevant in Mrs. Blood's case. That must have been in the mind of the chief executive of the authority when she was telephoned by Professor Cooke of the Infertility Research Trust and gave her agreement that the semen of Mr. Blood could be stored. I believe she acted as I would expect the authority to act—compassionately. She may have been wrong, but in my view it was the right thing to do. The permission that she gave must have given Mrs. Blood great hopes that she would be able to carry her husband's child. The subsequent refusal by the authority must therefore have been doubly devastating for her.
Much has been said about the necessity for consent to be in writing. It is obviously desirable that it should be obtained, and it is extremely important that it is obtained if a third party is involved. But this situation did not involve a third party. The consent was given, albeit not in writing, in the way that the couple lived their lives prior to the husband's death. The wishes of both Mr. and Mrs. Blood were well known.
There is an additional safeguard in the case of Mrs. Blood—I am sorry to use her case to such an extent, but it is important to enable us to look at any amendment of the Act as it stands. As I understand it, the parents of both Mrs. Blood and of her husband are fully supportive of her request. We know in modern society how much family life has lost because of the dispersal of children from parents and grandparents and how important is the extended family. Mrs. Blood will be a single mother. However, she has the support of the whole of her family and that is extremely important. Also, the decision not to allow Mrs. Blood to use her husband's sperm is a refusal to give effect to their simple vows in the marriage ceremony; that is, that marriage is for the purpose of the procreation of children. In that case the law has proved itself to be both uncaring and bureaucratic.
Another consideration in these cases is the future of any child which may result from the procedure. There has been no suggestion that there is any threat to either the embryo or the mother. Mrs. Blood herself has been counselled and fully understands the responsibilities she will be taking on if she is allowed to go ahead in her attempt to carry her husband's child. As I said, additionally, she has the support of her extended family.
The BMA wrote to my noble friend Lord McGregor on 3rd December and agreed that the principle of consent need not be in writing if it could be demonstrated in another way. In other words, it is saying that it is not necessary for consent to be in writing if it can be proved that consent was given in some other way. However, it is concerned that no guidance is given in the Bill as to what circumstances may lead to the waiving of the need for written consent. I agree that, as it stands, the Bill could widen the possibilities too much. But this is the Second Reading of the Bill. Subject to this House giving it a Second Reading, we have the whole of the Committee stage to include the safeguards that noble Lords or bodies like the BMA wish to include. I sincerely hope that, with that in mind, this House will agree to give the Bill a Second Reading.
6.36 p.m.
Baroness Jay of Paddington: My Lords, I too thank my noble friend for introducing this simple Bill which seeks to resolve a complicated and difficult issue. By bringing the Bill before your Lordships and by what he said, my noble friend again demonstrated that his scientific and clinical brilliance in the field of human fertilisation and embryology is matched by his deep human concern about the legal and ethical human problems involved. I congratulate too the noble and learned Lord, Lord Clyde, on his maiden speech, which seemed to combine great clarity and persuasiveness with an admirable lack of controversy. I am sure that we shall hear from him often in the future.
Your Lordships will understand that, although I speak tonight from the Front Bench, I speak in a personal capacity. This is a subject on which it would be inappropriate to take a party political position. But in my personal capacity I fully support the aims of the Bill for the reasons so cogently argued by my noble friend in his introduction and by several other speakers.
Mrs. Diane Blood's tragic circumstances which prompted this measure have been well explained, and I am convinced that the interests of the child, which must be paramount, would be upheld if she were able to fulfill her personal wish to have a baby. However, as many noble Lords have said—indeed, the noble Baroness, Lady Warnock, confirmed—Mrs. Blood's case raises general questions not foreseen when the committee of the noble Baroness, Lady Warnock, was deliberating and during the passage of the 1990 Bill. Frankly, that does not seem to me as a lay person particularly surprising. I would expect that technology in a field such as this would be almost bound to outstrip legislation. But the general arguments for looking with favour on the legal implications of the exciting therapeutic advances illustrated by Mrs. Blood's case have been well made in the debate. It is not necessary at this stage of the debate, particularly following the extremely helpful and powerful contribution of the noble Baroness, Lady Warnock, to repeat any of those arguments in detail.
My concern is primarily one developed by the noble Baroness, Lady Robson of Kiddington, and I should like to follow her on some of her points. The points I wish to raise concern Parliament being forced to return to primary legislation each time any advance in technology or medical practice makes another therapy possible. It is that concern that we have to revisit these issues in this way which makes me uneasy—though I wholeheartedly support my noble friend's Bill. In other words, I wish we were not starting from here.
It has always been my understanding that the Human Fertilisation and Embryology Authority, which, as the noble Baroness, Lady Robson of Kiddington, explained, was established in 1990, had the specific responsibility to deal with such questions as are now the subject of my noble friend's Bill. In many debates in your Lordships' House and other discussions it has been that understanding of a delegated authority to a well qualified and authoritative organisation that has made people like myself enthusiastic about the unique system

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of regulation in reproductive technology that the HFEA has been supposed to represent and, as I say, is unique in the world.
This view was expressed again on 30th October by my honourable friend Ms. Tessa Jowell in another place, when she pointed out that one of the explicit purposes of the original Bill was to remove from the political domain the responsibility for decisions on such matters. Like the noble Baroness, Lady Robson, my attention has also been drawn to the Second Reading debate in another place on the 1990 Bill and, like her, I would like to quote an extract. This is from the speech of the then Secretary of State for Health, the right honourable Mr. Kenneth Clarke. He said:
"It has been argued that, rather than having a completely independent authority, Ministers should be responsible for these matters"—
the matters which might be the responsibility of the HFEA—
"We decided against that, because it would place Ministers and the House in a permanent difficult position if, as a semi-political issue, it was said that Ministers should take this or that view on medical or scientific matters".—[Official Report, Commons. 30/10/96; col. 600.]
Today it seems that the HFEA is not happy to exercise discretionary powers. As its chairman has insisted throughout the discussions about Mrs. Blood's case, the authority can only act within the strict letter of the law, which I feel has been extremely narrowly defined and it has been defined by whatever the particular circumstances may be.
However, I believe that we have a difficulty about the anomaly to which the noble Baroness, Lady Robson of Kiddington, has already referred in the case of Mrs. Blood, in that it is clear that the HFEA exercised discretionary powers about the storage of Mr. Blood's semen, even though it had no written consent, as the law technically requires. My attention has been drawn to the note of the conversation between Ms. Goldhill, who was then the chief executive of the HFEA, and Professor Cooke of the Infertility Research Trust. In the note Ms. Goldhill actually wrote:
"The current situation was so traumatic for the wife"—
that is, Mrs. Blood—
"in that the decision to turn off the life support system would he made in the next few hours that it would appear uncaring and unnecessarily bureaucratic to insist on the provision of proper legal consent at this time".
The authority now says, of course, that Stephen Blood's sperm was stored illegally. I would agree wholeheartedly with the noble Baroness, Lady Robson of Kiddington, in saying that the original decision by Ms. Goldhill, which she clearly felt sufficiently confident to record in writing, was the right one and the proper exercise of discretion. So perhaps it would be more helpful in the long term both for patients and for Parliament if the Department of Health could initiate discussions with the HFEA about the precise understanding that the Government have and the HFEA has about the scope of its authority and the boundaries of its discretion. As I said earlier, it seems to me to be more appropriate to pursue that course rather than to
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face the possibility that Parliament will have to return continually to amending legislation to deal with unforeseen individual cases or unforeseen technical advances.
Returning to the specific provisions of the Bill, I would like to deal briefly with the point which has been made by several noble Lords about the central issue of trying to deal with the special status of genetic material and the impact of that specific status on consent, whether written or otherwise. My noble friend Lord Winston pointed out that what one might, I suppose, describe as ordinary organ donation can take place without written consent, and the noble Lord, Lord Walton, developed that point convincingly. They both implied on the same basis that to deny donation of sperm from husband to wife was unacceptable.
My instinct is to agree with that argument—that consent in writing is not necessary—but I am a little concerned, as were several noble Lords who raised the matter, that the Bill as drafted does not contain positive proposals about what kind of consent is acceptable in the circumstances described. This point has been raised in the context of the BMA's decision that some other demonstration of proof of consent should be provided if written consent is deemed unnecessary. As several noble Lords have said, the BMA feels unable to support the legislation in its present form without that more positive proof; and, like other noble Lords who have spoken, particularly the noble Baroness, Lady Robson of Kiddington, at the end of her speech, I feel that that is an issue to which it would be legitimate to turn in Committee if your Lordships give the Bill a Second Reading.
It would be helpful, when the Minister replies, to have some indication from her of the Government's attitude to later stages of the Bill. I am sure that there will be, as there always is on a Private Member's Bill, departmental concern about the exact terms of my noble friend's proposals. But it would be encouraging if the Minister could say that the spirit, if not the letter, of the Bill is acceptable. As my noble friend said in introducing the Bill, he would be delighted to have official help with the form and wording of his proposals.
I agree with my noble friend Lord Winston that Parliament's overall general intention should be to strengthen the role and authority of the Human Fertilisation and Embryology Authority. I hope that the Government will accept that, by giving this Bill a fair wind, they would be helping to achieve that.
6.46 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, I am grateful to the noble Lord, Lord Winston, for bringing this matter to the attention of your Lordships' House. I am sure that like me no one in this House today could fail to be moved by the sad and tragic case of Mrs. Diane Blood. As other noble Lords have said, we deeply sympathise with the loss of her husband and respect her courage and determination.
As I understand that Mrs. Blood will be taking her case to the Court of Appeal early in the new year, I am advised that the rest of my remarks must be confined to

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general issues. Before I do that, I should like to congratulate the noble and learned Lord, Lord Clyde, on his maiden speech. It was fluent, perceptive, informed and authoritative, a speech which clearly shows the noble and learned Lord's distinguished and impressive career. We look forward to hearing more from the noble and learned Lord in the future on more controversial issues, although I find it hard at this moment to identify them.
I should like to begin by setting out very briefly the background to the Human Fertilisation and Embryology Act 1990. That Act sets out the framework within which the Human Fertilisation and Embryology Authority, as well as clinicians, have to operate.
Fourteen years ago—in 1982—in the light of concerns about techniques such as in vitro fertilisation and the use of human embryos for research, the Government asked the noble Baroness, Lady Warnock, to chair a committee of inquiry. The committee's recommendations were published in 1984. There followed a consultation period. In 1986 the Government issued its own consultation paper and, a year later, a White Paper which formed the basis of the 1990 Human Fertilisation and Embryology Act.
There are two important things to note about this process: first, the remarkably high level of public consultation; and secondly, that the Act itself was passed on a free vote, after lengthy debate in both Houses. It was the first such comprehensive piece of legislation in the world and provided the parameters within which, as I have said, the HFEA operates.
I share the view of the noble Lord, Lord Winston, that the authority has a difficult task in carrying out its duties under the 1990 Act. Parliament has charged the authority with responsibilities which require very careful judgment—judgments which inevitably arouse strong emotions. I believe that the authority has carried out Parliament's wishes in an exemplary manner and I pay tribute to Mrs. Deech and her colleagues.
The noble Baroness, Lady Jay of Paddington, raised the issue of the necessity of primary legislation to keep pace with medical advances. That is a serious issue. It is one that needs to be addressed, but perhaps on another day. Both she and the noble Baroness, Lady Robson, implied that the HFEA has no room for discretion. But the authority does have some discretion under the terms of the Act. It can issue directions where the Act says it can. But the Act does not allow discretion to waive consent in writing, which has been the burden of a good deal of the debate today.
One key requirement of the 1990 Act is the need for consent to be in writing for the storage and use of gametes. Over recent weeks there has been a good deal of public discussion as to whether these existing provisions reflect current clinical and lay opinion. The Government's role is to ensure that these issues are debated fully so that all the implications are properly weighed before changes are proposed. I have listened carefully not only to the noble Lord, Lord Winston, but to my noble friend Lord Moyne, the noble Lords, Lord Kilbracken and Lord Rix, the noble Baronesses, Lady Robson and Lady Jay, and indeed other noble Lords
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who support the Bill. However, it is my view and that of the Government that any possible changes should not be undertaken lightly or without the same full and careful consideration which was given to the framing of the original Act. For that reason the Government propose that there should be an examination of these issues. We do not think that all the provisions of the 1990 Act require reconsideration. However, we think that the time is now right, especially in the light of your Lordships' debate and the national debate, to look at the specific requirement for consent to be in writing and the potential implications for the remainder of the 1990 Act; and, if relevant, other legislation relating to medical interventions.
We will set out in due course how we intend this review to be carried out. Both this and the timing will require careful consideration. What I can say is that in taking forward the review we will seek the views of interested parties to ensure that all the issues are properly explored.
The noble Lord's Bill has been brought forward with, I know, the best of intentions to respond to the distress of a particular woman and to ensure that other women are not put in a similar situation. The effect of the Bill would be to provide a very wide discretion to the HFEA to waive the requirement under the Act for written consent for the use of human gametes; that is, both male sperm or female eggs. It would also enter entirely new territory by making provisions on the taking of gametes. I shall outline some of the concerns that we have with the Bill.
Our first and perhaps important concern is the question of consent. It is one which clearly disturbs many of your Lordships and is a fundamental matter. The Act itself contains a number of important provisions: the underlying theme throughout is the importance of consent by the people involved in the various procedures and, to quote the report of the noble Baroness, Lady Warnock, the need for "fully informed consent". The noble Lord, Lord Winston, asked whether the posthumous use of sperm was discussed in the original Act. It was in Section 28(6)(b) and aspects of Schedule 3 to the 1990 Act which dealt with issues relevant to the posthumous use of sperm. As my noble friend Lord Ashbourne said, it was also addressed in the report of the committee of inquiry. The noble Lord's Bill does not seek to remove the need for consent, but, as the noble Lord, Lord Meston, advocated, to remove the need for it to be in writing.
I share the concern of the right reverend Prelate the Bishop of Oxford and other noble Lords as to how such consent could be given where, in the circumstances mentioned in the Bill, the person providing the gametes is either incapacitated or dead. Is the consent going to be provided by someone else; and if so, who would be able to do that? This issue was also addressed by the noble Lord, Lord Walton, and I believe it needs further thought. For as your Lordships will be aware, English law does not recognise the concept of "substituted consent" whereby one adult may give consent on behalf of another who is unable to do so due to incapacity. If an adult is unable to consent because, for example, he

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or she is unconscious or otherwise incapacitated, then any medical intervention is governed by the concept of "the best interests of the patient".
There are other important safeguards in the Act to ensure that the consent is fully informed and that the use of gametes is fully in accordance with the person's wishes. These include the requirement to specify the maximum period of storage for the gametes if that is less than the maximum statutory storage period. The consent must also specify what is to happen to the gametes should the person who gave the consent subsequently die or is unable because of incapacity either to vary the terms of consent or to revoke it.
The noble and learned Lord, Lord Clyde, has offered us some fruitful avenues to explore concerning these issues. As the noble Lord, Lord Winston, said, there is a requirement for an opportunity for counselling, as well as relevant information, to be provided before consent is given. That is most important because it provides an opportunity for the person whose gametes are to be used to consider all the implications of the proposed course; namely, to create a new human life with all the responsibilities that that entails. The Act requires counselling to be offered to both where they are to be treated together.
If a person other than the person providing the gametes is to give the consent, should this be restricted to the partner of a married or unmarried couple, or relatives? Should the doctor or other health professional give consent; and what if the relatives disagree about the incapacitated person's wishes? The possibilities are numerous and illustrate the complexity of amending the legislation.
A further consideration is timing, an issue addressed by the noble Lord, Lord Kennet. Under the provisions of the noble Lord's Bill, what is to happen to the incapacitated, or even dead, person while a partner seeks the views of the authority as to whether the gametes may be taken and whether the requirement for written consent to the use of his or her gametes may be waived? Apart from my concerns about taking gametes from people without their consent—and I shall come on to this point in a moment—I am disturbed by the thought that people who are clinically dead may be kept on life-support machines for an undefined period while these questions are considered, or that such decisions may affect the treatment they receive in some way.
The noble Lord's Bill also includes a reference to the provision of gametes. The taking of eggs or sperm is not covered by the Act and this would introduce something entirely new into the Act without any form of public consultation or wider consideration. To take a person's gametes without their consent would represent a most fundamental change in our law on healthcare interventions. At present such interventions can be made only in the best interests of that person.
The noble Lord, Lord Walton, suggested that there is a comparison in Mrs. Blood's case with the decision to donate organs after death. But persons can make a written request during their lifetime—for example, using an organ donor card—or can make an oral request in the
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presence of two witnesses in the course of their last illness. If they have done neither of these the person lawfully in possession of the body, usually an NHS trust, can authorise the use of organs if it has no reason to believe that the deceased had objected to this, or that the spouse or surviving relative objected. In other words, the relative does not have a role in consenting; rather he or she is entitled to object. But, in any case, there is a world of difference between using organs to preserve the life or health of another person and using someone's genetic material to create a new life.
The noble and right reverend Lord, Lord Habgood, the noble Baroness, Lady Warnock, and other noble Lords have shown real concern about the welfare of the child. There was clearly no consensus. However, I am sure all your Lordships would agree with the 1990 Act which quite rightly attaches considerable importance to children born through in vitro fertilisation. Section 13(5) provides:
"A woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may he born as a result of the treatment (including the need of that child for a father), and of any other child who may he affected by the birth".
This requirement is reflected in the Bill. However, these inquiries are usually left to the clinicians concerned, because they are in the best position to know of the patient's background and to have access to their medical records. It is difficult to see how the HFEA could satisfy itself about this requirement in individual cases and how it could resolve any conflicts, such as those that may arise between clinicians and relatives, in the evidence it would be required to consider.
Our debate today has touched on fundamental issues of life and death. I consider the review will provide an opportunity for everyone to explore these complex legal, ethical, practical issues and their implications in depth. I hope that it will be conducted in a measured way, as advocated by the noble Lord, Lord McGregor, and that it will provide a sound basis from which Parliament will be able to consider whether there is a need to amend the 1990 Act.
7 p.m.
Lord Winston: My Lords, there is a fine tradition in this House of the best kind of debate, of informed, temperate and careful judgment of the issue, and this debate has been in the very best traditions of your Lordships' House. It has been augmented particularly by the distinguished maiden speaker, the noble and learned Lord, Lord Clyde, and his outstanding maiden speech. We are grateful for that. I am grateful, without exception, for all the contributions. I was pleased to see the Chamber reasonably full, given that this debate is on a rather inconvenient day, and I am grateful that so many speeches were so thoughtfully produced. I do not want to delay the House any further at this late hour. However, I should like briefly to raise one or two points, and particularly to thank the Minister for being available and for saying that this matter would be looked into. We are grateful for that.

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It is clear that the Bill needs better drafting. As has been pointed out, it is my maiden Bill. It is only a little Bill—I do not have much parliamentary experience—and although there may be one or two deficiencies, I believe that they can be sorted out.
Perhaps I may say to the right reverend Prelate the Bishop of Oxford that we must not lay too much emphasis on written consent. It is not infallible. Indeed, it is only a snapshot. People can forget that they have given their written consent. Gametes can still be used with written consent and without any more validity than the proper verbal consent that we are trying to introduce with this modification to the legislation.
Although I do not want to introduce a new subject into the debate, I should say briefly that the benefits are not only to childless women, but to women who have had one child by a living father and who may want a second child to complete the family. I can advise noble Lords from my professional experience that one of the biggest problems facing my patients is that of secondary infertility. Women often feel that a one-child family is not adequate and that a second child would help that first child's rearing. That is a positive example of where another person would make the family complete and greatly augment its happiness and well being.
I am grateful to the noble and right reverend Lord, Lord Habgood, although I have some difficulty with what he said about opening the floodgates. I really do not believe that we are going down a slippery slope. Indeed, there is some recognition of that fact in the evidence from America. There are over 200 centres in the United States where, rightly or wrongly, there is no particular problem with written consent. In a country the size of the United States, with a population of over 240 million people, there have been only 36 applications for posthumous insemination, so I really do not believe that there would be many cases in a country such as ours which is one-fifth of its size. People get knocked off motorbikes or killed by motorcars in the United States when they are young—and probably to an even greater extent there than in Great Britain. That point should answer one of the concerns raised by the noble Lord, Lord Kennet, about traffic accidents.
Perhaps I may make just another point to the Minister. The HFEA may not have complete discretion with regard to the nature of consent, but it does have very full discretion over the possible export of gametes for use. The provisions are clearly stated in Section 24(4) of the Act:
"Directions may authorise any person to whom a licence applies to receive gametes or embryos from outside the United Kingdom or to send gametes or embryos outside the United Kingdom in such circumstances and subject to such conditions as may be specified in the directions".
However, those directions are not written into the law. They are a matter for discussion with the HFEA. That may be one possible let-out and should be explored in detail. It is a wide discretion. In addition, if written consent were so crucial, why did Parliament expressly authorise the nature of the export of gametes in such circumstances?
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Finally, I should like to thank noble Lords very much for contributing to the debate on this important matter. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Home Energy Rating Surveys Bill [H.L.]
7.6 p.m.
Lord Ezra: My Lords, I beg to move that this Bill be now read a second time.
The purpose of the Bill is to promote greater energy efficiency in the home. Although many people have already taken steps to achieve this in their homes—no doubt noble Lords who are to speak have done so—all the evidence suggests that the larger proportion of homes in this country are still relatively inefficient in terms of energy. There are two important reasons why this should be put right. First, the threat of global warming is still regarded as serious and the reduction of emissions into the atmosphere, particularly from energy usage, remains a major objective of government policy. Secondly, improvements in energy usage can substantially reduce costs and therefore this is a valid objective in itself. The Energy Efficiency Office estimates that a typical medium-sized semi-detached house without any insulation might cost around £500 a year to heat. With good insulation and heating controls up to half that expenditure could be saved and of course there would be greater comfort and warmth.
The difficulty is that in the present state of the energy market there is reduced incentive for consumers to save. There are abundant supplies of energy available and increased competition has brought prices down. In the wider environmental interest, it is necessary to counteract these market signals. This Bill proposes one way in which that might be done through the more widespread use of the energy rating of homes.
Fortunately, the way in which homes can be energy-rated is now well established. In July 1993 the Government published their standard assessment procedure or SAP. This is the Government's standard system for home energy rating developed by the Building Research Establishment in discussion with other rating professionals. Some time before this, a number of independent home energy rating procedures had been developed. For example, one was initiated by the National Energy Foundation, of which Dr. Mary Archer is chairman. The Government rightly, in my opinion, decided that co-ordination between the different systems was necessary. The SAP provides that co-ordination and enables the other systems, of which there are four main ones, to be readily converted to the SAP rating. Equally, the SAP rating can be used on its own. The SAP assesses the energy efficiency of a home through an energy audit using a scale of one to 100. The higher the score the more energy efficient the home.
If the system were applied widely, as it is in similar form in some other European countries, it would enable potential home buyers to take energy costs into account when choosing a home, make comparison with others

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and carry out appropriate improvements. Since July 1995 there has been a requirement under the building regulations for SAP ratings to be applied to new houses and conversions. If the rating falls below 60, the builder has to review the energy efficiency proposal and come up with a better figure. The National Housebuilders Council launched a campaign among its members for achieving SAP ratings of 80 plus in February of this year. We can therefore conclude that effective steps have been taken to achieve energy ratings of 60 per cent. or more in newly built homes.
However, the trouble is that the majority of homes in this country are not new and so far there has been no equivalent regulation to bring about a widespread use of energy ratings in these older properties. A number of initiatives have been taken to stimulate the voluntary application of the system. The Energy Efficiency Office have put out some very effective leaflets describing the system. However, for an individual householder to have a rating made would cost between £50 and £150, depending on the size and nature of the residence. This sum could no doubt be recovered over time when the remedial action was taken and energy savings achieved, but there has so far been relatively little offtake of this service.
The Department of the Environment have been in touch with building societies in an endeavour to see whether they could stimulate the application of energy ratings on a larger scale. Two building societies, the Nationwide and the Halifax, responded positively and carried out exercises in conjunction with the department. In a Written Answer dated 7th November 1996 in another place, it was stated that a total of 4,000 SAP ratings were issued by the Nationwide Building Society in 1995 under a joint initiative with the department, and under a similar initiative with the Halifax Building Society in 1996 6,500 SAP ratings were issued.
The results of these exercises are now being studied by the department. They are not aware of any statistics or estimates indicating the percentage of other mortgage lenders who may be providing SAP ratings. In presenting a home energy rating certificate to two Halifax customers in 1996, Mr. Robert Jones, MP, the Minister for Energy Efficiency, said that the certificates contained the overall energy rating of the home, together with recommendations on energy efficiency improvements. This of course is a very important part of the certificate, which indicates to the purchaser or home owner what steps they can take to improve their home from the energy point of view. Mr. Robert Jones urged other mortgage lenders to follow the lead of the Halifax Building Society.
As I have indicated, unlike new house-build, where energy ratings are mandatory, there are no similar arrangements for the existing housing stock. This Bill attempts to fill that gap. I very much hope that building societies and other mortgage lenders will support this proposal. Building societies in particular have a tradition of serving the community. That is how they started in the 19th century. Here is another way in which they can contribute to the wider interests of the community. As I stated earlier, private individuals who have the energy
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rating surveys made at their own expense could be involved in sums of between £50 and £150. This can act, and has acted, as a major deterrent. On the other hand, if building societies incorporate the energy rating in the valuation surveys which they have to carry out anyway before they make a loan, the additional cost can be very small. Figures as low as £10 to £15 have been mentioned.
Recently I had a discussion with Mr. Peter Hales, who is the chief executive of Countrywide Surveyors. They provide a valuation survey service to mortgage lenders and cover about 200,000 homes a year. They have incorporated the SAP procedure in their surveys, and for an extra cost of £15 can provide a SAP rating and a three—page report on the improvements which could be introduced as a result of that rating. A Which? report found that 60 per cent. of people, in a survey conducted by them, said that they would have liked information on heating when buying their new house. The proposals in this Bill would provide a very simple way of doing that.
I should now like to go through the three clauses of this short Bill. Clause 1 lays down that every mortgage lender, before granting a mortgage, shall as part of or in addition to any valuation, carry out an energy rating survey. A copy of this survey, together with recommendations for improvement, would be handed to the mortgagor. A reasonable charge could be made for this service, although, as I have pointed out, the costs would be very small and some mortgage lenders might simply take it into account in fixing the mortgage terms.
Clause 2 lays down that the Secretary of State shall, as soon as is practicable and not later than six months after the passing of the Act, issue guidance to mortgage lenders to carry out their duties under Clause 1. Clause 3 defines the various terms used, and in particular makes it clear that an energy rating survey means a professional survey and assessment of the energy efficiency of a building using the Government's standard assessment procedure and containing a list of recommendations for cost-effective improvement. This Bill could, with no public cost and very little private cost, contribute substantially to the improved energy efficiency of houses in this country. It would complement the measures already in force under the building regulations affecting newly-built houses and conversions. I commend it to the House.
Moved, That the Bill be now read a second time.—(Lord Ezra.)
7.17 p.m.
Lord Brabazon of Tara: My Lords, I should like briefly to support the Bill moved so ably by the noble Lord, Lord Ezra, and thank him for having introduced it in such a clear way. I should also like to pay tribute to the noble Lord because over the years, as your Lordships will know, he has done so much on energy efficiency matters.
I believe it is a small but sensible Bill, although possibly slightly less controversial than the Bill we have been dealing with up until now. Nevertheless, it will affect many more people in a beneficial way. The noble Lord mentioned that energy prices are probably cheaper

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than they have been for many years in real terms; and they are, I believe, likely to fall even further next year when competition from gas will be available all over the country. The same will apply in the year after when there will be competition from electricity for domestic supply. With the strong pound at the moment, and with many prices being expressed in dollars, I think that we are going to see cheap energy.
Therefore it is an extremely sensible time to do something about energy savings, because the financial incentive to save energy is probably less than it has ever been or than it has been for many, many years. As the noble Lord said, it is not just the cost saving which the consumer can make as a result of these measures; there is also an increase in comfort, warmth and so on, which is extremely useful. I do not believe that the story is all gloom and despondency, because through my London letter box not so long ago I received an offer from London Electricity for a package of energy savings. I did not take them up because I already had most of them. At least the power companies offer that kind of service.
As the noble Lord has said, the cost of the survey should be minimal. It must be minimal if it is to be acceptable to the house buyer. It is no more than a survey that any sensible person would request when intending to buy a property. Nevertheless, not everyone is sensible in these matters. The noble Lord has referred to a survey cost of between £10 and £15. That sum of money could be saved by the prospective house buyer in a short space of time. One is aware that house prices are beginning to rise again. Bearing in mind house prices in London and the south-east, a sum of £10 or £15 is not likely to make much difference to the prospective buyer.
I was interested to hear the remarks of the noble Lord about the standard assessment procedure. I was not aware of that. It sounds a very useful measure. Presumably it covers such matters as loft insulation, hot water tank lagging, cavity wall insulation and other aspects. I do not know whether it covers gas boilers. Perhaps it should do so. If one buys a new gas boiler today, one can recover the cost of replacing an old and inefficient one in a remarkably short space of time. I am sure that a good number of people are unaware of that. I do not suppose that it covers energy-saving light bulbs. One is aware that the last thing some people do when leaving houses they have just sold is to remove light bulbs from sockets.
Lord Graham of Edmonton: Speak for yourself!
Lord Brabazon of Tara: My Lords, I did not hear the remark of the noble Lord opposite! Of course, because energy-saving light bulbs are more expensive, they provide an even greater incentive to the person leaving the house to remove them from light sockets.
In general, when people move into their new homes, they have set aside money to spend on improvements, mainly decoration perhaps. They may intend to put in a new kitchen. If they have money available it is useful
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to devote some of it to energy-saving measures the cost of which can be recovered remarkably quickly. Therefore, I support the Bill.
7.23 p.m.
The Earl of Halsbury: My Lords, at this late hour, prolixity is contra-indicated. When the noble Lord, Lord Ezra, whom I hold in the highest esteem, asked me to support the Bill I had no idea what he was talking about. I obtained a copy of the Bill. Having read it, I congratulate him on his initiative. What he proposes to do is to collect information as a guide to policy-making tomorrow. That is a welcome initiative. Too often when one is asked to make a decision, one cannot take it. The requisite information necessary to do so is not available because the day before yesterday no one set out to collect it. I believe that the initiative of the noble Lord should be a matter for great congratulation, and I wish his Bill good fortune. I hope that it will be supported by the House.
7.24 p.m.
Lord Graham of Edmonton: My Lords, like others who have spoken, noble Lords on these Benches give this initiative a very warm welcome. As the noble Lord, Lord Brabazon has said, the record of the noble Lord, Lord Ezra, in this field is outstanding. I jotted down the question, "Where would we be without him?" There are not many who would have the gumption, foresight or even at times the cheek to challenge the executive by asking them to face up to something which perhaps it is not looking for. I refer to work that is stimulating others to take on very powerful bodies like the Building Societies Association and the Mortgage Lenders Association. Those bodies do a very good job. One can immediately see the advantages of this measure in practical terms, yet it does not play a part in the world of house selling or house maintenance.
The noble Lord, Lord Brabazon, raised obliquely the question of house prices. From my knowledge, the sum of £100,000 may be a modest figure in some parts of the country. For a sum of £15 one can get extra assurance or information. Some years ago, I was very much taken with the idea of each house having a log book. When one bought a house, one would get not only the bricks and mortar but a log book which recorded what had happened to it from the time it was built to the present day. It would record changes of owner and who had done what and how it had been done. On the two or three occasions in my life when I have been involved in house purchase, I have wished that I could be aware of what had been done (or, more importantly, what had not been done) at a particular time.
I look upon this modest measure as an opportunity to stimulate others. It should be very helpful. The noble Lord, Lord Ezra, said that the organisation that he had consulted reported that for £15 three pages of information would be provided. This is all to do with the willingness of people to do certain things at various stages in the chain. I refer to mortgage lenders, estate agents, banks, etc. It is a matter of those bodies, if not surreptitiously, taking for granted this modest extra cost of £15. The £15 is based upon the survey being carried

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out by virtually everyone. The noble Lord points out that anyone can have an energy efficiency assessment carried out for between £50 and £150. If one strikes a mean and says that the cost will be £100, that will be £100 well spent. Obviously, if one can obtain the same service for £15, it will be very welcome.
When the noble Lord, Lord Brabazon of Tara, referred to light bulbs—in what I call an enlightened speech—I wrote down, "You speak for yourself'. As someone who has always been concerned about the myth of coal being kept in baths in council houses, it is nice to hear from across the Chamber that someone actually removes bulbs from light sockets when moving house. Council house tenants never do that.
This is a very useful initiative that is fully in keeping with the spirit of the proposal outlined by the noble Lord, Lord Ezra, which is to try, try and try again. While the Minister will raise questions on the possible cost, consultation, parliamentary time and priorities—I certainly hope that she does not have "resist" at the end of her speech—this matter should be given a fair wind. I hope that the Minster will complete the quartet of those who support the Bill so that we can see how far it will get.
7.28 p.m.
Baroness Miller of Hendon: My Lords, I am most grateful to the noble Lord, Lord Ezra, for introducing his Bill so ably this evening. Action to improve the energy efficiency of our housing stock is an important objective. The noble Lord's Bill gives us an opportunity to consider not only home energy ratings but the underlying objective of how to improve the energy efficiency of the country's housing stock. It is important to put our consideration of the Bill into this wider context.
The domestic sector is a substantial energy user. It is therefore a major source of the United Kingdom's emissions of the main greenhouse gas, carbon dioxide, which is now generally regarded as a contribution to the world's changing climate. In 1995 we used about £13 billion worth of energy in our homes for heating, lighting and running domestic appliances. That is equivalent to about 150 million tonnes of carbon dioxide, or 27 per cent. of the United Kingdom's total emissions. The trend in absolute energy consumption in the domestic sector has been steadily upwards for about the past 20 years. We now use about 16 per cent. more energy in our homes compared with 1975. This is partly because the housing stock has grown by 20 per cent.—from around 19.5 million to nearly 24 million over the period—and partly because homes are now much more comfortable—on average about 3 degrees centigrade warmer. The proportion of households with central heating has more than doubled since the early 1970s, and most of us have more domestic appliances in our homes.
Without the significant improvements in energy efficiency which have been encouraged by our successive policies and programmes, that 16 per cent. rise in consumption could have been much worse. The
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Building Research Establishment, which is one of the recognised national centres of expertise in this field, estimates that without the higher standards of insulation, heating systems, controls and more energy efficient appliances, the increase in domestic energy consumption could have been about four times higher over broadly the same period. I agree with my noble friend Lord Brabazon that with low energy prices there could be fewer incentives to save energy. The Government recognise the importance of improving the energy efficiency performance of the housing stock. In that respect, the Bill has merit.
The Government's aim is generally to reduce energy waste and so also to reduce energy bills and emissions of carbon dioxide which are attributable to the domestic sector; and specifically to improve living conditions for people, especially those on low incomes. The Government have therefore developed a wide range of programmes and initiatives in support of those aims. These programmes are carried out in partnership with a large number of organisations, including local authorities, housing associations, lenders, housebuilders, the energy utilities, the Energy Saving Trust and, of course, householders themselves.
Those measures include the Home Energy Conservation Act 1995; the revised building regulations for England and Wales which came into effect last July and which require all new designs to have a home energy rating derived using the Government's standard assessment procedure; the home energy efficiency scheme; government funding for approved Energy Saving Trust projects; a market transformation campaign for household appliances; and the Energy Efficiency Best Practice Programme which has stimulated improvements in domestic energy efficiency worth an estimated £250 million per annum since 1989.
The Government's standard assessment procedure (SAP) is the national standard for home energy rating. It is based on the Building Research Establishment's domestic energy model. It is a detailed and defined set of calculation steps—known as algorithms—which on a systematic basis estimates the annual energy running costs for space and water heating per unit floor area of the dwelling. It expresses the result on a scale of 1, which is poor, to 100, which is good. Excellent may be a better way of describing it.
Standard assessment procedure takes into account the main factors influencing energy efficiency in homes. These include the standard of insulation in the walls, floor and roof; whether the windows are double-glazed or not; whether draught stripping has been applied; the efficiency of the heating system; and the energy type (for example, gas, oil, coal and electricity) and its cost. With regard to he efficiency of the heating system, I am pleased to tell my noble friend Lord Brabazon that it covers condensing boilers and the insulation thereof, but it does not cover light bulbs because SAP does not cover removable items.
The standard assessment procedure is now well established for a wide range of domestic energy efficiency assessments. It is now in the building regulations for England and Wales. It is also specified

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by the Housing Corporation as a criterion for new housing and refurbishment projects submitted by housing associations. It is used by many local authorities to assess the energy efficiency performance of their housing stock. It is used by housing design professionals as one of the tools to help improve the energy efficiency of their designs. And it was used in the analyses for the energy report of the 1991 English House Condition Survey, which was published only last week.
The SAP ratings achieved for new homes paint a good and improving picture of energy efficiency performance. Existing homes are, I regret to say, in not nearly so good a position. The potential for improving energy efficiency in the existing stock is huge. If poorly performing homes were brought up to a reasonable standard—better insulation, better heating systems and controls and better advice on how we can run our homes more energy efficiently—the nation could reduce its energy costs by perhaps £2 billion or more each and every year.
With many households obtaining greater warmth, as well as saving costs, there can also be health benefits from improved energy efficiency. So for both those reasons the existing stock is a high priority area for the Government's domestic energy efficiency programmes.
Energy ratings have two main roles. They are performance benchmarks and design tools for building professionals and they are energy labels for consumers. But they are only one means of informing householders and tenants how energy efficient or otherwise their homes are. On their own, ratings can help to inform, but specific action is needed to raise standards. It is therefore the recommendations which can be derived from an analysis of home energy rating data which are, arguably, more important.
In his Bill the noble Lord, Lord Ezra, proposes that mortgage lenders should be obliged to carry out, or to have carried out, a standard assessment procedure home energy rating survey with every mortgage valuation or other survey and that a copy of the rating survey be given to the mortgagor. While we have some sympathy with the aims of the Bill, the Government cannot agree that this is quite the best way of achieving more energy efficient homes across the nation.
The Government have long recognised the important role which mortgage lenders can play in helping to improve the energy efficiency of the private sector, owner-occupier housing stock. Mortgage lenders are one of the most important players in the house-buying market. Over the past 18 months or so, Department of the Environment Ministers have held meetings with about 20 lenders, including some of the biggest names in the country.
As a result, many lenders, including the Halifax, Nationwide, NatWest Home Loans and Barclay's Bank, have expressed support for the general aim of improving energy efficiency. Some of them have carried out their own trials and others have been involved with joint home energy rating trials, which the Department of the Environment has supported. Those trials have involved over 10,000 prospective mortgagors. The findings, when
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they have been fully analysed, are expected to prove influential in the development of our initiatives with the mortgage lenders.
The initial analysis so far is revealing. There are three main points which are relevant to the noble Lord's Bill: first, once house buyers are given information about what they can do to improve the energy efficiency performance of their homes, the majority of them—over 80 per cent.—welcomed the energy efficiency information provided and indicated that they would be likely to take action in the next two years. That very much confirms what the noble Lord, Lord Ezra, said. Secondly, the time which is required to incorporate the standard assessment procedure into the highly competitive commercial mortgage valuation business is significant. It is equivalent to losing, on average, one mortgage valuation per day on a typical day's work of about five to six valuations per surveyor. Thirdly, the trials have stimulated at least one lender to consider alternative ways of advising mortgagors on energy efficiency improvements—ways which the mortgagor may find better. Whereas we were delighted by the first finding, we were disappointed, but not entirely surprised, by the second.
We have long recognised the commercial environment in which home energy ratings must be designed to operate if they are to become widely used. The noble Lord, Lord Ezra, quite rightly says that individual home energy ratings for owner-occupiers cost typically £50 to £150. Because of that they are rarely requested and we recognised that the one-off market for standard assessment procedure ratings would be very small indeed.
On the other hand, a rating carried out as part of another activity—a mortgage valuation or, better still, a home buyer's report or full structural survey—would cost significantly less, though whether the cost is as low as the £10 quoted by the noble Lord is somewhat doubtful. Much depends on the training and experience of the surveyor and on the respective procedures used by the rating organisations.
That is why we have been encouraging the four rating organisations, which have been licensed by the Government to issue authorised standard assessment procedure home energy ratings, to devise quicker methods of obtaining ratings to the standard laid down by the Department of the Environment. One of these simpler methods was used in the trials which I mentioned. But there is some way to go before we and the rating organisations have a workable procedure which satisfies the criteria set by the lenders for mortgage valuations.
The trials have shown that the standard assessment procedure is still too complicated to deliver ratings at an acceptable cost to the lender. The Department of the Environment will want to consider further with the lenders and the rating organisations whether it can be simplified further for this market application and still have sufficient value for the mortgagor.
The third finding—that the biggest mortgage lender is prepared to look at alternative ways of informing mortgagors about energy efficiency opportunities—is

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perhaps the most valuable. We shall certainly be following up specific ideas with the Halifax and more generally with other mortgage lenders and the Council of Mortgage Lenders. We were pleased to hear about and to welcome the initiative which was taken by Countrywide to offer ratings as part of its service to lenders. We hope that other surveyor organisations will follow suit, thereby allowing the market to encourage the provision of SAP ratings. We were grateful that the noble Lord, Lord Ezra, had the opportunity to speak to Peter Hales earlier.
The noble Lord has proposed that mortgage lenders should be allowed to make a reasonable charge for the preparation and provision of the energy rating survey. I can understand why this might, at first sight, seem to offer a way forward. But I can also see on closer examination why it is unlikely to be the case.
The mortgage industry is a highly competitive one and lenders are understandably reluctant to offer services which they know, one way or another, have to be paid for. Of the approximately 1.2 million mortgage valuations which are commissioned each year, 20 per cent. relate to mortgage applications which do not proceed. About 15 per cent. relate to new homes, where standard assessment procedure rating information is available through other sources, and about 40 per cent. relate to re-mortgages. Only about 25 per cent. relate to new mortgages on existing homes. So most mortgagors would, one way or another, be asked to pay for a service which they did not need.
As I said earlier, the Government have some sympathy with the aims of this Bill. We both agree that there is a substantial interest from householders in having easy to follow information on energy efficiency which they can use, not to alter their decision on their chosen home but to help make that home better and cheaper to heat.
However, we regard home energy ratings for the owner-occupier market as one means to an end and not an end in itself. As it is drafted, the Bill runs some risk that the ratings will indeed be perceived as an end in themselves. If the commercial rating organisations can devise standard assessment procedure rating services which are attractive to the mortgage lenders, we would be happy to encourage the market process. The commercial rating organisations have been encouraged and are vigorously exploring ways to deliver ratings more cheaply while meeting our quality standard. But, as things stand, they have not yet achieved their, and our, objective.
The Government will follow up the interest which has been expressed in the home energy rating studies involving the Halifax and the Nationwide. We will explore with them and others, including the Council of Mortgage Lenders, how we can best work together to make reliable and worthwhile energy efficiency information available to borrowers. That will also draw on the knowledge gained from the standard assessment procedure and other sources.
While the Government cannot support this Bill, we shall not oppose it being given its Second Reading today.
7.45 p.m.
Lord Ezra: My Lords, I thank noble Lords who have taken part in the debate. The noble Lords, Lord Brabazon and Lord Graham of Edmonton, and the noble Earl, Lord Halsbury, were kind enough to support the Bill. We represent all the party affiliations in this House and therefore we can say that the Bill has all-party support. I hope that that is duly noted.
I listened with great interest to the noble Baroness as she gave us a well informed statement on the subject. I am grateful for that. When in her peroration she indicated the vast sums of money and amount of emissions which could be saved as a result of the wider application of energy saving methods in the existing housing stock I thought that she was going to conclude by saying, "And we wholeheartedly support this Bill". But of course that was not to be. For some reason, which I find totally illogical, she said, "Yes, but we cannot support the Bill". It is intended precisely to achieve the savings which she wants to achieve.
I found the reasoning why the Bill cannot be adopted to be very odd. First, the cost of the rating would be reduced to the individual householder from about £100 to £15, as the Government agreed. Fifteen pounds is a prudent figure. Countrywide Surveyors is prepared to make that charge. The figure which the Minister quoted about the loss of one survey per day per surveyor was given to me by the Halifax. All right, perhaps it is not as efficiently organised as the Nationwide. However, Countrywide was firm and said that it carries out 200,000 surveys a year and it was prepared to offer the service for that minimal additional charge. The noble Baroness said that we must see how we can reduce it further. For goodness sake, how much further does one want to go than £15 for a home costing £50,000 or £100,000? The amount is spread over the life of the average mortgage of 25 years and I do not know how many pence per annum it works out at. How can one get lower than that? I found that argument difficult to accept.
The Minister then said that we must not regard the rating as an end in itself. Of course not, but 1 thought that the enormous merit of the rating, which the Government have devised and supported, was that it gives one a basis on which to compare one house with another and to evaluate the nature of the housing stock.
I am one of the few who has had a rating carried out and I was appalled to find how low it was. Although I pride myself on knowing something about these matters, I immediately put in hand a number of measures which I had not carried out efficiently. I have now brought the rating up a little. With the kind of house I have, I cannot get the rating up to 100 per cent. but at least I am over 50 per cent., which I am told is not bad for my property. Therefore, I cannot understand why the noble Baroness says that that is only one way. The Government have very laudably devised this system. Why do they not wish to promote its usage by this very simple mechanism? The Minister said that there are ways in which the lenders can promote energy saving by other means. Of course that is true but that will not have the benefit of carrying this certified figure indicating energy saving.

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I am indebted to the noble Baroness for saying that she will not oppose the Second Reading of the Bill. As she was reaching the end of her speech, I thought that that was precisely what she was going to say but she is not going to do that. Therefore, the Bill will receive its Second Reading and I hope that in our subsequent considerations of the Bill, we shall make some progress and try to persuade her to support it, although she is reluctant to do so at the moment. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

DSS Benefit Offices: Proposed Sale
7.51 p.m.
Earl Russell Earl Russell rose to move to resolve, That the proposed sale of Department of Social Security benefit offices shall not proceed until the House is satisfied that adequate arrangements are in place to preserve ministerial accountability for the delivery of benefits.
The noble Earl said: I am tempted to begin with A E Housman's Fragment of a Greek Tragedy: my purpose in asking is to know. It is no part of my intention at the moment to make a party political speech. Whether I can say the same for my reply depends on the reply that I receive from the Minister.
I should like to understand a great deal more than I do at present about the proposal for the privatisation or lease-back of the Benefits Agency which was announced briefly just before the Summer Recess. I should like to know what exactly the Government are doing and if they cannot give us that information now, I should like to know whether they can give it to us well before any irrevocable decisions are taken.
I begin with a few basic questions about the "prime project", as I understand it is known in departmental circles. First, shall we be able to ask parliamentary Questions about delivery? I appreciate that the Minister will not be able to answer in person but shall we be able to use the same system as we use for matters relating to the Benefits Agency? That is a fairly basic question and, for me, a good deal hangs on the answer.
I want to know whether the department is contemplating a sale or an example of the private finance initiative. My latest intelligence suggests that it is the PEI with which we are dealing, but one way or another I should like to know. If it is the PFI, I should like to know, as I always do, whether we can be told before any contract is concluded what the long-term costs to public funds of the PFI agreement will be. Without knowing that, I cannot see that we can ever judge adequately a PFI project. And because even in this House we have a legitimate interest in the proper use of public money, I think that we are entitled to that information.
I should like to know what is envisaged as the contractor's source of profit because in the private sector, there must always be a legitimate profit. If that does not exist, from the contractor's point of view, it is useless. Is the profit envisaged to be made through
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savings on service delivery and if so, can we be told how and in what way those savings will be made? I ask for an assurance that that will not be at the expense of the interests of claimants. Alternatively, is the saving to be made by reducing the Benefits Agency's estate, as has been suggested? If so, I should like to know what criteria are being used to judge what estate is and is not necessary and perhaps even more important, who is using those criteria. Are the criteria to be used only by the contracting firms deciding whether the estate is necessary to its commercial interest or, in a matter which involves both the administration of public money and the rights of citizens to entitlements, will there be any public interest input into deciding whether it is necessary for a particular outlet to be preserved? I imagine that a number of Members of another place representing rural constituencies will be fairly interested in the Minister's answers to those questions.
Is it to be done by cutting down on outlets? Again, if so, I should like to know who will make those decisions. Is there to be any scope, before decisions are finally taken, for parliamentary approbation in relation to any decisions about which outlets are to be cut down because in an issue which concerns the citizens, there is legitimate scope for parliamentary input. If there are no answers, I hope that we shall have an assurance that nothing will be done until we do have some answers.
Also, I recall that the Minister said last July that we are dealing with a 20-year arrangement after which the leases of DSS properties came to an end. I hope that that is a correct recollection. If the Minister said that, what will happen at the end of the 20 years because we cannot hope that we shall be so far into the withering away of the state that the need for a benefits agency will have disappeared?
I turn from that to consider some of the criteria which we should use. I hope that the Minister will not turn this debate into one between public service and privatisation because I hope that none of us here would believe that the boundaries between the public and private sectors should be set in stone where they are now. If we agree on that position, then we need to consider any future question empirically in deciding what should be public and what should be private.
I want to suggest a few of those criteria and ask whether the Minister agrees with them; and if he does, whether his proposed plan of action can meet them. In the course of doing that, I should like to look, at least cursorily, at the proposed contracting-out of the child benefit service and at some of the proposals which are being made for privatisation inside the CSA.
First, clearly there must be a way in which to avoid conflict of interest. We must have a situation where the making of profit does not conflict with the need to deliver the service because if that conflict of interest exists, we cannot be sure that we shall be adequately served.
That is a long-term problem. When we were dealing with the Spanish Armada, the fleet was kept together at night by flying a poop lantern on the leading ship. One night that task was given to Sir Francis Drake. Those were in the days when warfare was still a privatised

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business. It was conducted for profit, for booty, plunder and ransoms. When dawn broke, Sir Francis Drake was nowhere to be seen and the English fleet was sailing right under the poop lantern of the Spanish flagship, to their considerable alarm. Drake was discovered several miles away boarding a dismasted Spanish galleon which contained all the money for paying the Spanish soldiers. Drake Enterprises was still in business.
I understand that but I hope that the Minister understands equally that that created a conflict of interest. It is that type of problem with which I am concerned.
In that context, I am interested in how monitoring is to take place and by whom. What sort of penalty clauses will there be in the contracts for failure to deliver an adequate service? If the penalties are sufficiently large to deter, may that not constitute an incentive to conceal failures in service delivery? As always happened in towns which used to have the plague, they went to great lengths to conceal it because if people discovered it, that was bad for their trade; naturally, no one much felt like trading there.
In the case of in-house bids, is there any problem about them having superior information? In cases of IT, let us suppose that the firm which bids successfully is an IT firm. It will have a financial incentive to use its own equipment but, of course, there will be a problem of computer compatibility because it will need to have access to other parts of the DSS service. It will need to have access to the central DSS records, to the national insurance computer, and in the case of child benefit, to the national insurance contributions records. If the profit incentive to use its own equipment conflicts with the incentive to have compatibility of computers, I see that there could be a problem. There could also be a problem with the CSA in terms of gaining access to highly confidential and extremely sensitive records.
I am concerned that there should be an incentive to effectiveness as well as to efficiency. The conventional answer has always been that regulation will meet this point. That conventional answer is centuries old but has usually failed. Take, for example, the 17th century provision of saltpetre. That used to be privately carried out for profit. As saltpetre results from urine there was always a great temptation to dig right round and even under or in occupied dwellings. There was no end of regulation to control that but despite all the regulation a saltpetre firm was once discovered, which, by its own confession, was digging underneath a church because it said that the "longsomeness" of the service and the women pissing in their seats made the most excellent saltpetre. The House of Commons was not impressed. It took the House of Commons to put the matter right, not a commercial incentive. That makes again the basic point about accountability.
Incidentally, we should not let go without question the claim that private firms are always more efficient. The efficiency unit has recently cast doubt on this. It suggests that there may be more conflict at the interface between service users and the provider, and that that may create costs which are not included in the calculation. Therefore I do not concede ex hypothesi that
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private firms are always more efficient. But even if I did, they need to be effective as well. Regulation, which is meant to work, tends to conflict with freedom to manage and tends to interfere with business autonomy. It is not always very effective. I was distressed to learn of the suggestion that the Government might privatise the adjudication of the Benefits Agency medical service. Justice and profit are like oil and water; they really do not mix. The Minister cannot be certain that any attempt to mix them would not fall foul of judicial review as being in breach of the principles of natural justice by creating a possibility of being judge and party in their own cause. I hope that matter has been given thought.
Decisions on entitlement should not be made for financial reasons. We are here dealing with a right, like the right to vote. One would not wish to have decisions such as whether to provide remote rural polling stations made on grounds of commercial interest. Accountability, which is the subject of this Motion, because it is the most particular parliamentary concern, raises the question: shall we have a sight of the contract before it is signed, all considerations of commercial confidentiality notwithstanding? If not, I do not see how we can judge whether it is in the public interest. Where both public money and citizens' rights are concerned, I think we must make a judgment. Will the private firm be accountable to Parliament for failure to deliver the basic service through the Secretary of State? Will it be accountable for decisions on its staffing levels, and will those be judged on grounds of efficiency, or of effectiveness, or both? That is an area where there may be an acute conflict.
A contract, of course, can hold people accountable only in those criteria which have been foreseen. How are they to be held accountable for a failure of service we have not foreseen? How can the Secretary of State be accountable where he does not have control? How can the business be private if he has control? I hope the Minister has answers to those questions. I shall listen to them with interest.
Another criterion is that I do not think we can privatise anything which is a natural monopoly, or which cannot be allowed to go bankrupt. Those two relate closely, as the case of Eurostar topically illustrates. I do not see how there can be competition in the delivery of benefit. There is in the most literal sense a captive market. I do not know what would happen if the firm undertaking the service went bankrupt. I should be glad to know whether there are some answers to that point.
I should like to know whether we can have transparency in the financial provisions. Again, we have here a long-term problem. In the days of the first Earl of Salisbury, a man of affairs once wrote to him explaining that he had discovered some Crown land valued at £600 which was worth £6,000, and if Salisbury would allow him to buy it from the Crown, he could then re-sell it at enormous profit and he would go halves with Salisbury in the profit. Salisbury being a prudent man did not answer that letter—or, at least if he did, no answer survives. However, that possibility of conflict of interest still remains. In the case of the PSA,

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it was sold for £11.4 million and resold for £70 million. In a case of profits so immense, one wonders whether it had been a sale at an under value. Where there is a sale at an under value, one always wants to know whether there had been any financial interest in making the sale to that particular person. The question may turn out to be a complete mare's nest, but it is only if we are allowed to ask it that we can stop being suspicious. I beg to move.
Moved, to resolve, That the proposed sale of Department of Social Security benefit offices shall not proceed until the House is satisfied that adequate arrangements are in place to preserve ministerial accountability for the delivery of benefits.—(Earl Russell.)
8.7 p.m.
Lord Addington: My Lords, I shall speak briefly as my noble friend has, as always, outlined the points with considerable clarity and in detail. We are dealing with the Government's privatisation of their social security benefit offices where some of their most basic services are delivered. If that estate is not run properly, the delivery of basic benefits to the most vulnerable in our society may well be endangered. That is essentially what we are concerned with today. The Motion asks for parliamentary accountability as regards the delivery of benefits. If the service breaks down due to a lack of maintenance of the estate—I believe noble Lords in all parts of the House agree that this service is essential—something which is essential to a civilised society in this age will no longer function.
There is a belief that a service can be delivered more efficiently by the private sector. However, in believing that, we make a series of assumptions. First, we believe that the private firm knows more about the service. As has already been pointed out, the private firm will be dealing with what is to it a new area of activity where there is no natural competition. No one other than the Government will pay state benefits. Thus we shall have a private firm operating under a monopoly. There must be parliamentary scrutiny and accountability of that. Someone must supervise this service.
I believe the noble Earl referred to Drake chasing after the Spanish Armada for private gain. I believe I heard someone on the Government Front Bench whisper, "Yes, but he won". He won because the wind dispersed the fleet. If we are waiting for a fair wind to guarantee victory, I suggest that we are taking more risks than we should with a fundamental structure of our society.
8.9 p.m.
Lord Carter: My Lords, the noble Earl, Lord Russell, has done the House a service in tabling this Motion. I can speak briefly because the noble Earl has covered the ground well. I shall ask a number of similar questions although I shall perhaps adopt a slightly different approach. A number of the questions will be fairly technical and the Minister may wish to write to me and place a copy of his reply in the Library. That might save the time of the House.
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The Motion refers to the sale of DSS offices. I presume that that also involves the possibility of the privatisation of the administration and facilities management. In regard to the PRIME project it will be helpful if the Minister can tell the House exactly what the situation is now. I understand that the bidding has been reduced to three consortia which are to be considered. Will the Minister confirm that one, Nomura International, was involved in the successful bid for the sale of MoD married quarters?
What is the structure of the proposed sale? Is it to be the sale of freeholds, leaseholds, or both? As the noble Lord, Lord Lucas, will know, I am involved in discussions regarding the privatisation of ADAS and in that case research farms. In that case it is entirely clear that the Government are to retain the freehold and are selling only the leasehold. Will the Minister give the same sort of detail?
Is the money that is to come from the PRIME project capital money up-front or are there savings in the running costs which are built into the equation? I understand that the department spends £160 million a year in rent. Is that all to go to outside owners, or will some of the rent be transferred internally so that the money is kept in the public sector? What is the structure of the sale, and how will it affect the PRIME project? Is it a matter of straight sale and leaseback of the properties? Are facilities and management involved or, above all, is any shift proposed in the administration of the benefits? Already the administration of child benefit has been put out to tender and one asks why. The cost of the administration of child benefit is only two per cent. of the total bill, compared with 61 per cent. for the administrative cost of the Social Fund.
Given that example, we have to be concerned about questions of confidentiality. How would such matters as collecting from the Post Office be affected? All those matters knock on to the privatisation of the DSS estate and the potential privatisation of the administration of benefit.
We have the example of the privatisation of housing benefit administration in Croydon, Bromley and Wandsworth. A three-year contract was let under BET to run the back offices of the Benefits Agency in Lancashire and Cumbria. I am sure the Minister is aware of the consultant's report, prepared early this year, on the operation of that contract. The report stated:
"BET's brief was to handle typing, open the mail, run the messenger service, ensure stationery supplies were up to demand and operate security for the agencies and the Agency's branches across the region".
The report concluded that the result was a disaster. The Benefits Agency was left without stationery and last September BET failed to meet up to 43 per cent. of the targets set for opening the post from claimants. That is why there is concern when there is an attempt to privatise the administration of benefit. If we set against that the proposals to put out to tender the most efficient part of the Benefits Agency, the administration of child benefit, the Minister will see why we are concerned.
Another important point in relation to the transfer of facilities management as well as property relates to arrangements for staff who are transferred. Is there any

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question of a dowry, as in other privatisation, to cover the pensions, employment contracts and so on? What happens in relation to access to offices for benefit claimants? And there is the point, made extremely well by the noble Earl: who will decide on closures? That is very important for benefit claimants, who will not have the money to travel a long distance. Who will have the final decision on the closures of benefit offices, which are part of the prime project?
I believe a figure of £3 billion has been mentioned, defined as the present net value over 25 years. As I asked before, what proportion will be upfront? What does that mean in terms of initial receipts in proportionate terms as compared to the long-run receipts?
We had the experience of the Bill that dealt with the PFI in the health service. The Government needed an Act of Parliament to put right a glaring anomaly regarding the financial security of the trust hospitals involved in the PFI. Let us suppose that there was a massive shift in the way that DSS benefits are administered, not in the ownership of the administration but in the manner in which benefits are administered. Let us suppose, for instance, that there is an enormous shift in information technology. What happens then to the contracts for the offices? Can the leases be assigned? Who has the final decision? Are they returned to the Government if they are no longer required?
We in the Labour Party are keen to see the efficient administration of the benefit offices, which will lead to an improved service to benefit claimants. There are areas of concern. They include the protection of individual personal information; the future of staff transferred to the private sector; and the potential closure of offices in outlying regions. What provision have the Government made for the protection of personal information when the transfer to the private sector of the ownership and management of offices is completed? To repeat the point made by the noble Earl, will the Minister confirm that he will remain accountable to the House for any breach of confidentiality concerning information on individuals.
The Minister has special responsibility for pensions. I wonder whether he can help the House in regard to the story that appeared in the press today. This is not the time or place to go into a great debate about it; however, I am sure it would help the House, since we are discussing the accountability of Ministers, if he could give any indication of the true figure for the future savings that have been suggested in the way in which war pensions are handled. What are the total costs of the adjustments, which are colloquially known as sweeteners? All that will have to be done in the PES round and the Red Book figures. Some sort of calculation must have been made. I heard the exchanges at Prime Minister's Question Time in the other place today. The Prime Minister did not seem disposed to say what the correct figures are. However, I am sure that the Minister, who has special responsibility for pensions, will be able to share the correct figures with the House. If the figures quoted in the Guardian are wrong, perhaps he will tell us what are the correct figures.
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At the end of the day the debate is about the efficient administration of benefits and the best way to deal with claimants, and particularly with poverty. We know that one child in three is now born to a family receiving benefit. We can all swap statistics on that matter. The other day I heard a graphic illustration of what is happening in some of the most deprived areas of our country. The story was told by Mr Frank Field, MP, who is perhaps one of our most radical thinkers on welfare. It concerned a school in his constituency. As we know, he represents a very deprived area. He said that he was used to entering that school a few years ago and asking the children what their ambition was. He would receive the usual stories: they wanted to be a hairdresser, a bus driver, an engine driver or whatever. He said that he recently went into the same school and asked children of 11 or 12 the same question. There was a sullen silence, until one lad perked up and said, "My ambition is to get my giro". That boy was aged 12. I wonder how that situation will be helped by the privatisation of the DSS estate and the administration of benefits and facilities management.
8.18 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, this has been a fairly astonishing debate for a number of reasons, not least the fact that it has ranged a great deal wider than the Motion on the Order Paper and the subject of the buildings, the estate, occupied by the Benefits Agency.
The noble Lord, Lord Carter, raised the subject of war pensions and the amazing article in the Guardian this morning. The paper cobbled together in a fairly random way from some leaked information a story with very little foundation. A great deal of it was downright untrue. I had a meeting this morning, arranged many months ago, with the central advisory committee of all the organisations representing war pensioners. We had a perfectly satisfactory meeting. We discussed a letter I had sent to them on 26th November—which hardly needed the Guardian to leak it—and also discussed some changes in medical opinion regarding deafness. We had a thoroughly amicable, sensible and businesslike meeting. At the end, the members there expressed their unanimous condemnation of the Guardian for publishing the leaked information; and there was unanimous support for the procedures that I had used in bringing these matters to their attention and the way I discussed the matters with them. That was the correct and appropriate place—the central advisory committee of the war pensions bodies.
I turn to this debate, which is equally remarkable. If noble Lords had been listening, they would have been led to the conclusion that the Benefits Agency owned all its property. I have news for the noble Earl. It is uncharacteristic of him to be so fundamentally flawed in his basic argument. The Benefits Agency does not own all its property—far from it. The department owns only 22 per cent. of the buildings it occupies at the moment. So the private sector appears in the noble

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Earl's view to be pernicious, evil and untrustworthy, but it already owns three-quarters of the properties we occupy.
Earl Russell: My Lords, may I ask the Minister to withdraw the charge that I said that the private sector was pernicious and untrustworthy? I merely attempted to assess in what circumstances it was suitable to have it involved. That is a very different question.
Lord Mackay of Ardbrecknish: My Lords, I am always puzzled at some of the interpretations the noble Earl puts on his remarks and the interpretations that I put on them. He appeared to say that the private sector was not a fit organisation to own the property we use. If that is not what his speech was all about, then I listened in vain. I failed miserably to understand what he was saying.
Earl Russell: My Lords, perhaps I may assist the Minister. I was trying to assess whether or not it would be out of its element.
Lord Mackay of Ardbrecknish: My Lords, it is not out of its element. It already owns three-quarters of the property we occupy. That is the fundamental flaw beneath the whole of the noble Earl's argument today. He seemed to me to postulate his whole argument on the basis that we own all our property. We do not. As I explained, we own 22 per cent. of the buildings. The principle remains the same. I shall come to the details about owning, renting and how we shall proceed, but operational matters are the responsibility of chief executives. They remain accountable to Ministers, who are accountable to Parliament for all aspects of performance. My accountability and that of my colleagues is not just for the 22 per cent. we own but for 100 per cent. of the estate, including the 78 per cent. which we do not own but rent from the private sector. Ministers have been involved in every stage of the projects and we are accountable for the final decision.
It might be helpful to the noble Earl if I try to explain exactly what we are attempting to do. The objectives of project PRIME (an acronym for the Private Sector Resource Initiative for Management of the Estate) are to meet the business needs of the Department of Social Security estate at a lower cost. In particular, we need to ensure sufficient flexibility to meet the changing needs of the business; to remove the burden of surplus space; to provide a capital development programme and to involve private sector expertise and investment in the ownership and management of the estate. Particular emphasis will be placed on the transfer of risk. That will allow the department simply to be an occupier of the space it needs to deliver its core business.
We are talking about the estate, not at all about the delivery of benefits. We are also talking about the services surrounding the provision of that estate. The Department of Social Security now has the largest civil estate in government, equivalent to one of the largest property companies in the UK. It covers nearly 2 million square metres in over 700 buildings of varying size, spread throughout England, Scotland and
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Wales, with major concentrations in Leeds, Newcastle, Fylde and central London. But we only own the freehold on 38 per cent. of the total space, or 22 per cent. of the buildings. The rest is leasehold accommodation, with many leases of a modern nature, typically with a five-year rent review. So some of our tenancies come up for review all the time. It is not a new problem for the department. We are well aware of it and deal with it. No one has found that a problem. Some are historic leases with an extended review pattern.
We have over 300 different landlords. As many noble Lords know, the existing estate consists mainly of traditional office buildings—far too many, I regret to say, built in the 1960s when I would not have given too many prizes for architectural design. Our buildings vary in age and size and are not always located in the best place for the public. The cost of maintaining our portfolio is large. Market rental is £160 million per annum. In 1995-96 we spent £80 million on capital works, £50 million on building management, £85 million on total facilities management and £41 million on rates. The mixture of freehold and leasehold accommodation also means that opportunities to change the estate to meet business needs are very much tied to the state of the market, the timing of lease breaks and availability of capital.
Over the past 20 years or so, the rate of disposal of surplus accommodation has not kept pace with the improvements that have been made to the efficiency of the department through changes in business processes and rapid development in information technology. That is not unique to the public sector. It is true across the whole service industry. The result is that the taxpayer is funding over 100,000 square metres of vacant space.
Perhaps I may illustrate the point. The DSS office at Acton in north London has 31,000 square metres of surplus space. That is bigger than the Home Office building in Queen Anne's Gate. The Five Ways site in Birmingham has 19,000 square metres of surplus space, 45 per cent. of the total. Heron House in Reading, with 5,000 square metres, has been completely empty for some years. I saw at the benefits office in Shetland that the bottom floor was empty and was not necessary for our requirements. That cannot be acceptable.
The department therefore undertook a feasibility study which reported in May this year. The study showed that there was potential to move from direct responsibility for management of our estate to buying serviced accommodation from the private sector in line with our business needs. The study found that there was a clear market interest for such a deal—one which is not a traditional sale and leaseback but a major private finance initiative involving related facilities management services and appropriate risk transfer.
We have already started this process with the award of a contract for our estate in Newcastle, where a private sector consortium, the Newcastle Estate Partnership, is currently drawing up detailed plans for a new estate using the private finance initiative. The project which I announced on 20th June will provide modern serviced office accommodation for 11,000 staff in the area under a 25-year contract. The private sector partner will

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construct and maintain the new estate for this period. Surplus land will be used for a variety of commercial ventures, including retail, housing and a hotel leisure complex.
Noble Lords who know what the accommodation is like on the Longbenton estate in Newcastle will echo the words I used when I went there in June. I said that it was not a moment too soon to move our staff out of the old wartime accommodation into modern, properly serviced office accommodation. The scheme in Newcastle will allow us to improve our accommodation while harnessing the skills and expertise of the private sector in a long-term partnership arrangement.
The noble Lord, Lord Carter, asked a number of questions about such projects. When it comes to the maintenance and facilities management services used in the projects, the facilities management services related to the accommodation are included in the reference bid which is required. Much of the facilities management has already been subject to market testing and is managed through private sector contracts in many areas. But no benefit delivery or administration is included in that. It is envisaged that certain staff delivering maintenance and facilities management services will transfer under TUPE regulations, but it will be left to the bidders to make proposals in those areas.
The noble Lord, Lord Carter, mentioned the BET project in Lancashire. He is quite right that the contract did not work well in the beginning. However, I am happy to say that it is working a great deal better now, following discussions with the company. It is meeting its requirements and we are reasonably satisfied that, after bedding down time, it is giving us the service we require.
The aim of social security is to deliver a high quality service more efficiently. That has to be right for our customers and taxpayers. It is not necessarily organised in a way that suits the department. We wish to organise it in a way that suits our customers. Increasingly, our customers wish to talk to us by letter and telephone, and we want to use all the advantages of IT and streamlining of operations which we believe modern management techniques can bring.
The introduction of the Jobseekers' Allowance has had a significant effect on our business, in that the JSA is, in the main, available from over 1,000 jobcentres across the country. As I said, many of our customers, instead of having to go to the jobcentre as they once did and then go to the benefits agency, have to go only to the jobcentre. I think that that is a major improvement in the service that we give to people rather than asking them to go from one office to the other.
As I mentioned, the increased use of the telephone, which we have already seen, will have an impact on the number of people who currently need to call at DSS offices. Our National Customer Survey has consistently found that a significant number of our customers prefer to carry out their business on the telephone or by post. While that is a general finding and cannot be applied in every locality, it will be one of the factors that we take into account when assessing the suitability of an office for closure.
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We still envisage a large number of offices across the country, but opportunities through the change programme and other developments, such as the roll-out of the benefit payment card, will mean changes to our total estate. The new IT strategy will have at its heart a single source of uniform customer information. That will be underpinned by computer systems in front line offices that give much more flexibility to organise in a more efficient way. Our review of income support has also shown considerable scope for greater efficiency by reorganising the processing, and cutting out clerical work and duplication.
I mentioned the benefit payment card. One of the reasons why many people call at their DSS office is because of the current system of delivering benefit—the Giro cheque which goes missing or does not appear in time. These things will be behind us when we go to the payment card in the later years of this decade. So there are considerable changes that will happen in the demand for Benefit Agency services out there by the public.
I expect the number of staff to reduce over coming years and flexibility in accommodation usage will be crucial to maximising opportunities for reducing the cost to taxpayers. Of course, the Benefits Agency is not just the front-of-house that delivers the benefit. In fact, it is largely made up of the back-of-house which administers systems and does not deal directly with the public. As I said, we already have considerable empty space when it comes to many of these things.
The DSS agencies have therefore reviewed in detail their estates strategies. They have been asked to identify three things: core, flexible and surplus buildings. We believe that this system will provide the flexibility for managers to commit under PRIME only to accommodation which meets business need and to continue to plan flexibly.
I should stress that PRIME is designed to make the management of our estate as efficient as possible, at a time when, quite rightly, the expenditure of public funds is under very close examination, while at the same time the management of PRIME will be supporting our ability to deliver a high level of service to all our customers.
The business case for the project has identified significant opportunities for efficiencies. When I was asked about this matter I was asked where the profit would come from. We believe that there are such opportunities. First, there is the perfectly clear one through the private sector's ability to use the surplus space far better than we can do. We are not—I hope that the noble Earl agrees—in the business of being an estate agent and being out and looking for customers for our empty space. Our business is to deliver benefits to the people who need them. So that is the first thing: the transfer of surplus space to the private sector.
Secondly, there is simply the commercial management of flexible space, as I mentioned. Then there are development opportunities that can arise from some of the properties. There are cost reductions in the provision of services and potential for private sector capital investment. There is also a reduction in the

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overall costs of occupation to us. Those will allow managers to concentrate on their core business, which is running a social security system.
So we expect to make significant savings in the costs of our accommodation services, partly through lower ongoing service charges and partly through securing an immediate payment of £250 million, reflecting the value of the assets being transferred. That probably answers one of the points made by the noble Lord, Lord Carter. The requirement for an initial payment simplifies the bidding process and reduces the financial risk to government over the lifetime of the contract. In effect, we shall have taken some of the value of the estate as the up-front capital payment and the balance in lower service charges over the lifetime of the contract.
We are currently in talks with a shortlist of three consortia. I do not want to reveal exactly all the things that we hope to gain from them in terms of running costs savings. That would not be a wise thing to do in a negotiation. The objective is to meet the business needs of the department from its estate at lower cost.
So the project has reached the stage where there are three shortlisted consortia which have been accepted to respond to the invitation to negotiate. I announced the three shortlisted bidders on 1st November. They are: Partnership Property Management Ltd; Mapeley Holdings Ltd; and Opus. Perhaps I can say to the noble Lord, Lord Carter, that Nomura is one of the partners in Opus.
The DSS is retaining the interest of major investors by ensuring that the procurement process is seen to be purposeful and serious. A preferred supplier will be selected in March 1997 and a contract completed by September 1997. The duration of the main contract will be 20 years, with the necessary mechanisms in place within it to ensure continuing competitiveness and value for money during that time. I can say to the noble Earl that Ministers will make the final decision. The National Audit Office, as is its practice, will review these decisions on behalf of the Public Accounts Committee.
The noble Earl and the noble Lord, Lord Carter, asked me about office closures, and perhaps I may say a few words about that matter. Department managers are constantly looking at ways in which we can rationalise our estate as the opportunity arises. As I said a little time ago, most of our space is occupied for administration and backroom processing. Indeed, the major concentrations of accommodation in Leeds, Newcastle and Fylde are only used for that purpose. In future, we want sufficient flexibility to allow managers the option of separating processing from public caller facilities, where that is more cost-effective and delivers a quality service to the public. It also provides the opportunity to examine how best to meet the needs of customers in the light of latest developments.
Managers are compiling estates strategies which identify buildings that will be required long term (more than 15 years) and flexible buildings that may not be required for more than five years. The private sector supplier will not be able to dispose of buildings unless business needs continue to be met and the department shares in any benefit—for example, from development opportunities.
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In every case where an office is identified as a candidate for closure on business grounds, a comprehensive examination of the potential impact on customer service is undertaken, which includes wide consultation with local MPs, staff and customer representative groups. Indeed, in cases where a closure is identified as being potentially controversial, ministerial approval is required before the office can be closed, so that individual representations and any particular problems can be examined individually. That will continue to be the case once PRIME is implemented.
In conclusion, the PRIME project is a major initiative to remove the burden to taxpayers of surplus space and to avoid a repetition in the future by ensuring sufficient flexibility to meet changing needs. It will bring private sector expertise to bear in driving out efficiency savings and in maximising development opportunities, which will benefit both the department and the supplier.
These activities will be undertaken within a long-term contractual framework which will continue to ensure that the department is in control of decisions taken, that options must achieve our core business objectives, including meeting customer needs, and that value for money is proven on a continuing basis. At all times, ministerial accountability for the delivery of benefits will be maintained.
I hope particularly by that last sentence that I have allayed some of the fears of the noble Earl.
8.39 p.m.
Earl Russell: My Lords, I thank the Minister for that reply. I must make my apologies to him as I was not able to give him earlier notice of the main lines of the speech that I intended to make. That, I must confess, was because I had not fully worked them out until it was too late to give the Minister notice.
Perhaps I may begin at the point at which the Minister ended: the accountability for the delivery of benefit. I am extremely grateful for what he said but will we be able to ask questions about such matters as staffing levels? Are we going to be able to ask about individual closures? I am pleased to see the Minister nod. He stresses the existence of a contractual framework. Are we in Parliament going to be able to see that contractual framework and decide whether or not we approve its content? If the Minister were able to answer that it would assist me greatly.
Lord Mackay of Ardbrecknish: My Lords, I realise that I was speaking fairly quickly. If the noble Earl reads Hansard tomorrow, he will see that I answered his question by saying that Ministers will make the decisions, but the National Audit Office will review those decisions on behalf of the Public Accounts Committee. By that route there is parliamentary accountability.
Earl Russell: My Lords, I heard the Minister say that. I thought I heard a silence and now he assures me that I did hear a silence. A matter of parliamentary concern arises in that regard and it may be a matter for further thought.

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At one point in the Minister's speech I became extremely confused about what exactly he was saying. It concerned the control of delivery of benefit. I take his point about the department not owning all its estate. I was perfectly aware of that. I was not, in the first instance, interested in estate management, but in the delivery of benefits. I believe I repeat the Minister's words correctly when he said that they were dealing with "services surrounding the estate". I am not clear what he meant by those words. He referred also to "buying serviced accommodation". Again, I am not sure what those words mean. Is the Minister attempting to give me a categorical assurance that the delivery of benefit will remain under the direct control of the DSS and not under the control of any private sector contractor? If so, it would assist me materially.
Lord Mackay of Ardbrecknish: My Lords, I do not want to keep jumping up and down. The prime project relates to the estate ownership and the estate management facility. That goes into facility management; for example, the maintenance of the buildings. It can go into things like opening post and so forth, as it already does, in many cases perfectly
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satisfactorily. The question of delivering the benefits themselves has nothing to do with the prime project; it has to do entirely with estate management.
Earl Russell: My Lords, I am extremely pleased to hear that. But I am not the only person by a long way to whom that point has not been clear. I am glad that it is clear now. I hope that it will enable a service delivery to continue on an acceptable basis.
The issue of accountability versus commercial confidentiality, on the other hand, is one which stretches a great deal wider than this debate. On that I am not convinced that I have had any satisfactory answers. I would have been surprised if I had. That is a matter about which we will all need to think further.
I will read what the Minister said extremely carefully, but I heard a few silences. I heard a silence on the question of incentives to effectiveness. Again, I hope to hear more on that on a future occasion. But that is all that it is worth saying at this moment. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
House adjourned at sixteen minutes before nine o'clock.