Lords Sitting of 9 December 1996

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

Gulf War Forces: Medical Confidentiality
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
Under what circumstances solicitor/client privilege and medical practitioner/patient confidentiality may be broken in the case of members of Her Majesty's Armed Forces who served in Operation Granby.
The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe): My Lords, solicitor/client privilege is recognised in law. A solicitor cannot be compelled to disclose information told to him by his client. A medical practitioner is under a legal and ethical duty to respect the confidence of his patient. This duty can, however, be broken in certain circumstances—for example, by a court order—where the interests of justice require it. I am not aware, however, of any circumstances involving Gulf War veterans where either solicitor/client privilege or medical practitioner/patient confidentiality has been broken.
The Countess of Mar: My Lords, I thank the Minister for that reply. Is he aware that the organophosphate pesticide investigation team set up by the MoD in October has been calling sick servicemen for interviews at nine o'clock in the morning; that many of those servicemen have to rise at between four o'clock and five o'clock in the morning to get there; that the investigation team has been grilling them for three hours and then telling them that if they do not hand over what they have handed to their solicitors and medical practitioners, they will be investigated for dereliction of duty? If the MoD is serious in its investigation of the OP question, is it satisfied that it will obtain co-operation from servicemen who are treated in that way? It amounts to bullying.
Earl Howe: My Lords, there should be no question of individuals being pressured or coerced into giving information. That is not the way for these important matters to be taken forward. My clear understanding is that all interviews have been voluntary; witnesses have not in any way been compelled to attend; and evidence has not been taken on oath. Those most concerned about their condition have been interviewed in most detail, and therefore at some length. I stress that none of the interviews was adversarial or hostile, according to the information that I have. I understand that almost all witnesses were keen to talk to the team. I am confident
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that we shall have a sufficient number of ex-servicemen coming forward to enable our research to proceed satisfactorily.
Lord Campbell of Alloway: My Lords, will my noble friend confirm that this confidentiality, as with legal confidentiality, may always be broken at the request of the client—in this case, the patient?
Earl Howe: My Lords, my noble friend is right. What however should not happen is for the doctor or the lawyer to break that confidentiality without the explicit consent of the patient or the client.
Lord Williams of Elvel: My Lords, will the Minister rebut or confirm the allegations made by the noble Countess, Lady Mar? If they are true, and if members of a team inside the MoD have been compelling people under duress, or summoning people at unsocial hours, to give evidence, will he then say whether it is the Government's policy to do that kind of thing? If not, will he then say that he will look into his own department to ensure that it does not happen again?
Earl Howe: My Lords, I have already indicated that the noble Countess's allegations run completely contrary to my understanding. They do not represent government policy. What we must do, of course, is encourage those who believe that they are affected by their Gulf War service to come forward. That is the way that I have understood it to proceed, and I believe that that is the way that it is proceeding. Naturally, I take seriously the noble Countess's allegations and I treat them with the seriousness that I always do. I shall look closely into what she has said.
Baroness Park of Monmouth: My Lords, does my noble friend the Minister agree with me that this is an issue of honour concerning soldiers who have fought, and that it is of the utmost importance that he should be able to assure the House that they have been treated with all fairness? There is an issue here of morale and of a debt of honour.
Earl Howe: My Lords, my noble friend is quite right in all that she says. It would be retrograde were pressure to be brought to bear on ex-servicemen who have served their country well in trying circumstances when the whole object of the exercise is to get to the bottom of the allegations, which have been widespread, and to assist those very servicemen in their suffering.
Lord Bruce of Donington: My Lords, is the Minister aware that I have had the opportunity to examine the correspondence that is in the possession of the noble Countess, Lady Mar, and that in my view it supports the allegations that are contained in her question? Will the Minister give the House an undertaking that her allegations will be examined extremely carefully by those above this particular investigation unit, and that a full report will be made to the House, answering in detail the questions put forward by the noble Baroness?
Earl Howe: My Lords, I am happy to give the noble Lord those assurances. If the noble Countess will furnish me with the information that she has I shall personally look into the matter.
Earl Russell: My Lords, I thank the Minister for that reply. Will he also check whether this might be a case of some interviews being more voluntary than others?
Earl Howe: My Lords, the noble Earl may have a point in the context of the noble Countess's allegations, although I do not accept that pressure has necessarily been brought to bear on anyone.
Lord Williams of Elvel: My Lords, the noble Earl has assured the House that he and his department will investigate fully the noble Countess's allegations. He has also given an assurance that a report will be made and that this House will be informed of its conclusions. May we expect that report before Christmas?
Earl Howe: My Lords, I shall look into the matter with all speed, but clearly I cannot give a specific undertaking about timing. I hope that I shall be able to report to the House prior to the Christmas Recess.
The Countess of Mar: My Lords, I am grateful to the noble Earl for his reply. I am willing to show him what information I have, as he has suggested. Is he aware that all that these people want is the diagnosis and treatment of their problems? If that had been done earlier there would be no case for litigation.
Earl Howe: My Lords, no writs have yet been served on the Ministry of Defence and no allegations of negligence or even causation have been made. I believe that while we all wish for matters to be processed more speedily, the Ministry has acted with speed and efficiency. I hope that they will be resolved sooner rather than later.

The Water Companies
2.45 p.m.
Lord Dubs Lord Dubs asked Her Majesty's Government:
When they will announce extra powers for the Environment Agency to require the water companies to draw up long-term sustainable water resources plans and drought contingency plans.
The Minister of State, Department of the Environment (Earl Ferrers): My Lords, Her Majesty's Government are at present considering proposals from the Environment Agency for new powers to require water companies to draw up and submit drought contingency plans and to publish water resource plans. A consultation paper will be published in due course.
Lord Dubs: My Lords, I thank the Minister for that Answer. Is he aware that today six environmental organisations have published a booklet entitled High and Dry, dealing with the impact on wildlife of taking
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too much water from our environment? Has he had an opportunity to look at that booklet and, if so, what is his response?
Earl Ferrers: My Lords, I am deeply grateful to the noble Lord for asking the penultimate question. I have not had an opportunity to look at the booklet and therefore I am unable to give him a response. I doubt whether, even if I had looked at the booklet, I should have been able to give a considered response at this time. I shall certainly look at the publication.
Lord Beaumont of Whitley: My Lords, will the publications which the Minister promised in reply to the Question include a planning policy guidance note? If not, would it not be a good idea to have such a document on the subject of water resources?
Earl Ferrers: My Lords, after last year's drought my right honourable friend the Secretary of State said that an inquiry would be made into water resources. That was done and the findings were published in a booklet called Water Resources and Supply: Agenda for Action. We stated that the Government would bring forward modifications to the legal framework for water resources and supply if scope for further refinements were to emerge. The Environment Agency has made suggestions and we propose to issue a consultation document on them. As a result of the responses to those suggestions we shall decide what action shall be taken. However, whether that includes guidance or codes of practice remains to be seen.
Lord Crickhowell: My Lords, if new arrangements are to be put in place—and even if they are not but plans emerge from the water companies and the Environment Agency for the better control of water resources in the environment—will my noble friend ensure that the financial regulator is kept fully involved in the discussions and that the steps and measures taken by the regulator do not result in a conflict which prevents essential environmental action being taken?
Earl Ferrers: My Lords, I can assure my noble friend that the regulator will be involved. I cannot, of course, give him an assurance that there will be no conflict. I hope that if there is conflict it will be resolvable.
Lord Cledwyn of Penrhos: My Lords, will Parliament be informed before these powers are put into operation?
Earl Ferrers: My Lords, yes. The whole purpose is to consult and to see whether people believe that there are reasons for altering the existing framework. We believe that the framework is right but that adjustments may be required. We want to discover what the industry as a whole feels.
Lord Williams of Elvel: My Lords, does the regulator have powers to set environmental standards for water companies? If not, why not?
Earl Ferrers: My Lords, that is a matter for the Environment Agency.

Single Parent Families
2.48 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
What assessment they have made of the plight of single-parent families.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, the Government continue to be concerned about the growth in the number of lone parents and the reasons behind this growth. Many lone parents are less well off because they do not work, and the Government have substantially enhanced in-work benefits to help lone parents take up jobs and improve their standards of living. This, together with ensuring that both parents take responsibility for children and that maintenance is properly paid, is seen as the best approach to helping lone parents.
Lord Ashley of Stoke: My Lords, I am grateful for that Answer. Is the Minister aware that the freezing of the benefits and premiums for single parents and the merging of them into child benefits and family premiums will result in a loss of some £270 million for those very vulnerable families? Does he agree that the Government's excuse that they are seeking equal treatment for single and two-parent families is feeble? We cannot have equal treatment when one parent is doing the job of two. Is it not right that the real reason for the manoeuvre is to help with tax-cutting stunts for the general election?
Lord Mackay of Ardbrecknish: My Lords, I am afraid that I cannot agree with the noble Lord, Lord Ashley. Our strategy is that we should move to an even-handed approach between one and two parent families. The majority of people in this country will think that that is quite right. Research has shown that the only substantial extra expense which lone parents have is the cost of childcare. Of course, that comes into play only when the lone parent goes back into work. That is why we have improved help in relation to childcare in the family credit benefit.
Lord Gisborough: My Lords, is my noble friend aware that the plight of some single parent families is exacerbated by fines which they receive in court; for example, very often for having no television licence? Some of those people who are fined have to be sent to prison or some other place of correction because they do not or cannot pay those fines. Has my noble friend
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considered the possibility of D-I-Y punishments in the home for such cases so that people are punished but are not sent to prison?
Lord Mackay of Ardbrecknish: My Lords, I am not sure that those matters are not addressed to the wrong Lord Mackay! However, it is the Government's policy to try to keep mothers out of prison so far as that is humanly possible. In relation to fine default, there is provision to take instalments from weekly benefits in order to pay those fines as a sensible alternative to sending a person to prison, which we all agree is not the best option in those circumstances.
Baroness Hayman: My Lords, will the Minister tell the House exactly what assessment was made by the Government of the impact of the Budget measures on the welfare of children being brought up by single parents? He tells us that the Government intend to be even-handed; but is it not correct that the children of single parents run a far greater risk—something like four times the risk—of being brought up in poverty than those being brought up by two parents? In the light of that, how can the Government justify taking away financial support from those children and thus ensuring that they live in even deeper poverty?
Lord Mackay of Ardbrecknish: My Lords, the situation is that in certain circumstances the single parent can be receiving more income than a married couple with one child. I do not believe that that is correct. That is sending the wrong signals that somehow or other we are prepared to give more to single parents. An even-handed approach is right and proper. As I mentioned, the real problem for many lone parents in this country, unlike their colleagues in other countries, is that they do not work. Through family credit and the new pilot project, Parent Plus, we have attempted to find ways to increase the number of lone parents in work and provide for their own children.
Earl Russell: My Lords, can the Minister name any other country from biblical Israel to the present day which practices the even-handed principle which he is now recommending?
Lord Mackay of Ardbrecknish: My Lords, not being an historian, I really could not tell the noble Earl. He is probably in a better position to know that than I am. But I know that it is a simple fact that compared with most of our colleagues in the European Union, and indeed in the United States, far fewer lone parents in this country seem to think that they ought to work. We believe that by improving family credit and introducing the piloting of Parent Plus, we can encourage lone parents into work which will improve their standard of living.
Baroness Hollis of Heigham: My Lords, does the Minister not accept that 4 per cent. of two parent families live on less than £100 per week, but nearly 50 per cent.—half—of lone parent families live on less than £100 a week? They and their children are

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desperately poor. As the Minister said—and I am sure he is right about that—only opportunities to work will float them off benefit and out of poverty. In that case, why did the Government propose in the Budget to abolish the one lone parent benefit which, because it is not means-tested, actually encourages lone parents into work? Why do the Government persistently denounce lone parents for living on benefit and then, through the Budget, seek to trap them on benefits?
Lord Mackay of Ardbrecknish: My Lords, I have not denounced lone parents for living on benefits. I said that it is a fact that one of the reasons that many of them are in the bottom half of income distribution is that they do not work. That is a simple fact. I dispute the noble Baroness's concept that all lone parents live in poverty because her definition of poverty and mine is probably very different. It is quite difficult to define poverty. But if they do live in poverty, would it not be nice to hear from the noble Baroness some kind of figure as a promise from the party opposite as to what they might spend on the problem? We see this as a problem which should be approached with even-handedness. After all, if there are two parents with one child, that is three mouths to feed, whereas one parent with one child is two mouths to feed. Therefore, inevitably, there may be a difference in income.
Baroness Hollis of Heigham: My Lords, why does the Minister not answer the question? The Government profess to say that they are anxious to encourage lone parents into work. In that case, why in the Budget did they propose to abolish the one benefit which lone parents can take with them into work and which is therefore an incentive for them to go into work?
Lord Mackay of Ardbrecknish: My Lords, I am not entirely sure what the noble Baroness is alluding to; but we are attempting to make sure that anybody with a lone parent premium now who moves into work will not lose the one parent benefit during that move. It will be a very slow transfer, and only those coming into lone parenthood and benefit in the future will not receive the benefits which are available at present, which are greater than the benefits received by two parents. However, it is interesting to note that during the past two or three years we have seen something like 200,000 lone parents going into work thanks to family credit, which is proving extremely successful in that regard.
Lord Ashley of Stoke: My Lords, is the Minister aware that I am surprised that that measure is going through? I thought that the Government were far too busy cutting the pensions of ex-servicemen to find time to cut the income of single parent families.
Lord Mackay of Ardbrecknish: My Lords, I expected more of the noble Lord, Lord Ashley, although I am not surprised because he probably took the distorted view of his Leader. We have no intention to cut, and we are not cutting a single penny from a single war pensioner. I am happy to have been given the
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opportunity by the noble Lord, Lord Ashley, to make that absolutely clear. I hope that he will communicate that to his Leader in the other place, who seems incapable of reading the letters which I send from my department.

The Royal Observatories
2.57 p.m.
Lord Haskel Lord Haskel asked Her Majesty's Government:
What are their plans for the future of the Royal Observatories.
Baroness Miller of Hendon: My Lords, the Government announced that they accepted the recommendations of the prior options review of the Royal Observatories on 25th April 1996. The central recommendation was that the management of the telescopes and the delivery of the instrumentation programme currently provided by the Royal Observatories should be subject to competitive tendering by all competent suppliers.
Lord Haskel: My Lords, I thank the Minister for that reply. Is she aware that on 29th November, in another place, Mr. Ian Taylor gave a reply which virtually said that the attempt to privatise the Royal Observatories has been cancelled? Is the Minister aware also that for this exercise some £0.5 million of the science budget was spent on lawyers and consultants? Will the Minister tell the House whether that expenditure from the science budget has contributed to the advancement of science and will the Royal Observatories be reimbursed?
Baroness Miller of Hendon: My Lords, the noble Lord is correct that the Government announced recently that the current tendering exercise has been formally terminated, although they did not announce that privatisation was not on the bill. They said that the current tendering exercise has been formally terminated due to a series of difficult issues with significant financial and legal implications.
The noble Lord also said that nearly £500,000 had been spent from the science budget. Whatever has been spent in order to prepare for privatisation—of course, with such complex issues there must be costs but I believe that the prior options review accepted that there would be those costs—the DTI has made it absolutely clear that that will not be allowed to damage the science programme.
Lord Phillips of Ellesmere: My Lords, can the Minister tell the House what progress, or otherwise, is being made with the privatisation of other institutes, particularly those on the Norwich Science Park?
Baroness Miller of Hendon: My Lords, the noble Lord's question certainly goes beyond the scope of the Question on the Order Paper. However, I believe it is right to tell the House that certain other reviews are

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taking place, some of which have already been announced and some will be announced in the near future.

Succession to the Crown
3 p.m.
Lord Archer of Weston-Super-Mare Lord Archer of Weston-Super-Mare rose to move, That an Humble Address be presented to Her Majesty praying that Her Majesty may be graciously pleased to allow that Her undoubted Prerogative and interest may not stand in the way of the consideration by Parliament during the present Session of any measure providing for the removal of any distinction between the sexes in determining the succession to the Crown.
The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That an Humble Address be presented to Her Majesty praying that Her Majesty may be graciously pleased to allow that Her undoubted Prerogative and interest may not stand in the way of the consideration by Parliament during the present Session of any measure providing for the removal of any distinction between the sexes in determining the succession to the Crown.—(Lord Archer of Weston-Super-Mare.)
3.3 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 53.

Division No. 1

CONTENTS

Addington, L.

Hilton of Eggardon, B.

Alexander of Tunis, E.

Hollis of Heigham, B.

Anelay of St. Johns, B.

Howie of Troon, L.

Archer of Sandwell, L.

Irvine of Lairg, L.

Archer of Weston-Super-Mare, L. [Teller.]

Jenkins of Putney, L.

Ashley of Stoke, L.

Kilbracken, L.

Banbury of Southam, L.

Liverpool, E.

Barnett, L.

Longford, E.

Berkeley, L.

McCarthy, L.

Borrie, L.

McIntosh of Haringey, L.

Brigstocke, B.

Masham of Ilton, B.

Butterworth, L.

Mason of Barnsley, L.

Byford, B.

Mayhew, L.

Carlisle, Bp.

Mersey, V.

Carter, L.

Methuen, L.

Chapple, L

Milner of Leeds, L.

Chorley, L.

Milverton, L.

Clancarty, E.

Molloy, L.

Currie of Marylebone, L.

Morris of Castle Morris, L.

David, B.

Napier of Magdala, L.

Davidson, V.

Noel-Buxton, L.

Denbigh, E.

Paul, L.

Donaldson of Kingsbridge, L.

Peston, L.

Dormand of Essington, L.

Phillips of Ellesmere, L.

Dubs, L.

Plant of Highfield, L.

Fisher of Rednal, B.

Platt of Writtle. B.

Gainkati, L. [Teller]

Ramsay of Cartvale, B.

Graham of Edmonton, L.

Rathcavan, L.

Haskel, L.

Rodgers of Quarry Bank, L.

Hayman. B.

Sainsbury, L.

Seccombe, B.

872

Serota, B.

Thomas of Gresford, L.

Simon of Glaisdale, L.

Thomson of Monitieth, L.

Strabolgi, L.

Wallace of Coslany, L.

Swinton, E.

Wallace of Saltaire, L.

Symons of Vernham Dean, B.

White, B.

Taylor of Blackburn, L.

Williams of Mostyn, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Ackner, L.

Knollys, V.

Ailesbury, M.

Lauderdale, E.

Ailsa, M.

Lowry, L.

Ampthill, L. [Teller.]

Lytton, E.

Beaverbrook, L.

McNally, L.

Belhaven and Stenton, L.

Manton, L.

Beloff, L.

Mar, C.

Bruntisfield, L.

Montgomery of Alamein, V.

Campbell of Alloway, L.

Munster, E.

Charteris of Amisfield, L. [Teller.]

Nickson, L.

Clanwilliam, E.

Norrie, L.

Coleridge, L.

Northboume, L.

Crickhowell, L.

Oliver of Aylmerton, L.

Dixon-Smith, L.

Orkney, E.

Exmouth, V.

Oxfuird, V.

Gisborough, L.

Pender, L.

Hailsham of Saint Marylebone, L.

Rees, L.

Halsbury, E.

Renton, L.

Harding of Petherton, L.

Russell, E.

Hayter, L.

St. Davids, V.

Hylton-Foster, B.

Simon, V.

Ilchester, E.

Strathcona and Mount Royal, L.

Ironside, L.

Swansea, L.

Jenkin of Roding, L.

Taylor of Warwick, L.

Kimball, L.

Thomas of Gwydir, L.

Kinloss, Ly.

Weatherill, L.

Wise, L.

Resolved in the affirmative, and Motion agreed to: the said Address to be presented to Her Majesty by the Lords with White Staves.

Scottish Borders Council (Jim Clark Memorial Rally) Order Confirmation Bill
Read a third time, and passed.
Western Isles Council (Berneray Causeway) Order Confirmation Bill
Read a third time, and passed.
Theft (Amendment) Bill
Report received.

Civil Procedure Bill [H.L.]
3.12 p.m.
Report received.
Clause 1 [Civil Procedure Rules]:
The Lord Chancellor (Lord Mackay of Clashfern)The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 1:
Page 1, line 11, at end insert—

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("( ) The power to make Civil Procedure Rules is to be exercised with a view to securing that the civil justice system is accessible, fair and efficient.").
The noble and learned Lord said: My Lords, this amendment derives from the recommendation of the Select Committee on Delegated Powers that the Bill should contain a purpose clause. It seeks to give a flavour of the aims which will be served by the new rules of court made by the civil procedure rule committee in due course. I think it is quite appropriate that Parliament, when giving these important and wide powers to the rule committee, should be able to enunciate what Parliament's own purpose is in doing so.
Your Lordships will note that the amendment now being tabled differs in certain respects from the amendment tabled in Committee by the noble Lord, Lord Thomas of Gresford. I think that it is quite important that the statement of the aims should not give rise to any unintentional impression that some aims have higher priority than others, or that the stated aims are the only ones which have relevance. The phrase "accessible, fair and efficient" brings together, I believe, the essence of what my noble and learned friend Lord Woolf, has been emphasising; namely, accessibility (which covers the objective of keeping costs down, simplicity and clarity of rules and procedure), fairness (a synonym for justice) and efficiency (which covers, for example, speed and proper use of resources).
It is clear from my noble friend's report that he has taken great care to formulate his statement of justice so as to incorporate aspects other than the obvious one of fairness. I would want, subject to consultation on the rules, to be able to preserve the statement of the overriding objective which is contained in the draft rule 1 which my noble and learned friend has proposed. I beg to move.
Lord Thomas of Gresford: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for including a purpose clause along the lines that I suggested in Committee. Although I say that, as the Lord Chancellor pointed out this was very much the idea of the Select Committee on Delegated Powers. I respectfully agree with the Lord Chancellor that the eight principles set out by the noble and learned Lord, Lord Woolf, in his report are admirably encapsulated in this brief statement of purpose. I commend the drafters of this amendment for their skill.
Lord Irvine of Lairg: My Lords, I, too, support this amendment. It is as anodyne and therefore as good and effective a general purpose clause as one could imagine.
I support it. However, the devil is in the detail.
The Lord Chancellor: My Lords, I am grateful for the support that this purpose clause has received. I hope that we may be able to keep the devil at bay so far as possible.
On Question, amendment agreed to.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 2:
After Clause 1, insert the following new clause—
THE CIVIL JUSTICE COUNCIL
(".—(1) There shall be established a Civil Justice Council, the members of which shall include members of the judiciary and representatives of the Lord Chancellor's Department. the legal professions, court administrators, consumer organisations, advice agencies and other users of the courts.
(2) The functions of the Civil Justice Council shall include—

(a) to keep under review the civil justice system,

(b) to identify changes to the civil justice system directed to enhancing and improving its status and effectiveness,

(c) to commission research into proposed changes to the civil justice system,

(d) to refer proposals for changes to the civil justice system to the Civil Procedure Rule Committee and the Lord Chancellor, and

(e) to assist the Head of Civil Justice in coordinating proposed changes to the civil justice system and in monitoring their impact.").

The noble Lord said: My Lords, this amendment is not the amendment that I moved earlier—that is, Amendment No. 2 in Committee—to establish a civil justice council. On reflection, I preferred Amendment No. 3 in Committee in the names of the noble Lords, Lord Hacking and Lord Thomas of Gresford. As I indicated in Committee, their amendment is a better expression of the general principle of what is required. Therefore, it is that amendment which I have tabled and to which I now speak. It stands also in the names of the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford.
In Committee we had full discussion on the need for a civil justice council. The noble and learned Lord, Lord Woolf, in both his interim and final reports advocated the establishment of a continuing body with responsibility for overseeing and co-ordinating the implementation of his proposals. The noble and learned Lord expressed his disappointment in his final report that that important step had not yet been taken. He repeated his concern in our Second Reading debate on 5th November when he said:
"I see the council as a central plank to my recommendations … It is also the necessary companion to a compact small rules committee".—(Official Report, 5/11/96; col. 622.]
The noble and learned Lord has repeated those views with equal strength in his recent Tom Sergant memorial lecture.
As I said in our discussions in Committee, I found the responses of the Lord Chancellor disappointing. In essence, they amounted to the fact that he appreciated the need for some consultative machinery to drive forward the required reforms of the civil justice system but he was not yet satisfied that a civil justice council as proposed was the most effective way forward. He thought there was much to be said for a co-ordinated structure of the existing court user committees, but that we should await the working through in practice of the proposals of the noble and learned Lord, Lord Woolf, before we could see what sort of structure would be most appropriate. He said, in terms, that there is something to be said for trying to see, as we work through the proposals of my noble and learned friend,

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just what sort of structure would best serve the purpose he has in mind. For me that was a fine application of the law of unripe time. It was a case of "maybe yes, maybe no; what is proposed is not necessarily right, so let us wait and see". I believe the time to be ripe for the establishment of a civil justice council.
The amendment to which I speak appears to me to provide clearly for what is required; to ensure that all interests in the delivery of justice by the civil courts are represented; and to define its functions properly. If the noble and learned Lord on the Woolsack has any specific criticisms of the form of the amendment, I welcome hearing those in his response.
In Committee I sought to put the issue in this way.
"The function of the council would he to maintain a continuous overview of the system, to highlight the need for changes, to commission research, to put ideas to the new rule committee and the Lord Chancellor's Department, to assist the head of civil justice"
that is to say, to offer him assistance by way of advice—
"to co-ordinate initiatives, both through practice directions and practice guides, and to monitor the impact of changes on the ground. An important area should he the development of pre-proceeding protocols, designed to help cases to settle before litigation has started, through the development of alternative dispute resolution approaches, in particular mediation, and through practice directions and guides.
"I see the key point of Lord Woolf's proposal as this: in essence, the civil justice council should take up where the noble and learned Lord, Lord Woolf. leaves off. The way ahead should be a permanent body specifically charged with monitoring and progressively improving the civil justice system. The council would he a vehicle for contributions from all interest groups. It could work with user groups in local courts, and in Divisions of the High Court, to identify problems and to recommend reforms. It should provide a useful source of advice for the noble and learned Lord on the Woolsack, the senior judiciary and the rule committee [and the head of civil justice.] In essence, I suggest, its task would be to ensure that what Lord Woolf has recommended actually happens in practice".—[Official Report, 20/11/96; cols. CWH 9-10-]
I agree with the criticism offered by the noble and learned Lord, Lord Ackner, in Committee of the proposition that what is required is no more than a consultative body or machinery. What is necessary is to have a high-powered body representative of all the relevant interests which monitors the effectiveness of the new rules in practice and measures their success against the objectives which the noble and learned Lord, Lord Woolf, defined in his two reports and which have commanded general acceptance. I beg to move.
Lord Ackner: My Lords, in anticipation that the Master of the Rolls, my noble and learned friend Lord Woolf, might not be able to be present because of pressure of work elsewhere I came well briefed with the speech that he made at the memorial lecture. However, I shall not need to refer to any part of that because he is present. If I had known he were there, I should have asked him to speak before me. Perhaps he would like to do so now.
Lord Woolf: My Lords, I am grateful for the Civil Procedure Bill. 1 acknowledged at Second Reading the debt that I owe to the Lord Chancellor for the way in which he has carried forward the reforms for the civil justice system that I recommended in my report. I believe that they are much needed.
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However, like other noble Lords I was concerned at the absence of a civil justice council. I recognise the reasons that the noble and learned Lord the Lord Chancellor wishes to retain flexibility. It seems to me that an amendment on the lines proposed by the noble Lord, Lord Irvine of Lairg, would meet the needs of the council, and at the same time accommodate the flexibility which the noble and learned Lord the Lord Chancellor seeks to retain.
I am most grateful to my noble and learned friend Lord Ackner for giving way to me and for suggesting that I should refer to a lecture for which I was responsible. I can assure noble Lords that I have no intention of inflicting that lecture upon them. The noble Lord, Lord Irvine of Lairg, summarised the points that I sought to make in the lecture.
Perhaps I may condescend to one matter of detail. It may be that I am particularly remiss, bearing in mind the office that I hold. However, on re-reading the amendment today, it occurred to me that perhaps subsection (2)(e) could support a modest amendment. It is not only the head of civil justice who could be assisted by the civil justice council. I suggest that other members of the senior judiciary would be assisted. Indeed, I apprehend that all heads of divisions and the head of the Court of Appeal would also be assisted. Perhaps at a later stage consideration might be given to deleting the reference to the "Head of Civil Justice", who has yet to be recognised in any statutory form, inserting in its place "the senior judiciary". I hope that that might meet the purpose.
The ability of a justice system to be resistant to reform in ways that cannot be anticipated is astonishing. A council of the kind proposed would have different roles to perform at different times. However, I believe that it would make a substantial contribution, first, by co-ordinating the efforts of many people to move forward our civil justice system and, secondly, in ensuring that the momentum which has already started continues—I would hope at an increasing pace.
Lord Renton: My Lords, before the noble and learned Lord sits down, will he be so good as to inform your Lordships as to the number of times in any year the council may be expected to sit, and how much this new bureaucracy would cost?
Lord Woolf: My Lords, I anticipate that the cost would be modest indeed. I anticipate that the council would probably not have to sit more than four times a year, and probably fewer times than that. The important point is that the council is a focus that can be used by those who wish from time to time to bring forward matters. It is the head for the various comparable bodies which will exist around the country if the proposals that I have made are implemented. It would be affected by needs at any specific time. In giving a figure of four times, I am choosing the maximum. The staffing would be modest indeed.
3.30 p.m.
Lord Ackner: My Lords, I am anxious to spare the blushes of my noble and learned friend the Master of

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the Rolls. However, I wish to quote one piece from his speech which I think encapsulates the anxiety one has if this council is not set up. He said this:
"When I set out on the Inquiry which resulted in my Report, I was very conscious that since 1885 there had already been over 60 Reports each urging reform of the civil justice system yet the situation on which I had to report was one which many commentators described as being in crisis. Why should this be so? It is not because of any callous disregard of their responsibilities by those in charge of the system. It is my belief part of the cause is the absence of a broadly based body which has the clear responsibility for monitoring the justice system as a whole and identifying the areas which are in need of reform—.
That emphasises what a vital part of his proposals this council is.
The proposals made by my noble and learned friend for the civil justice amendments and improvements are indeed radical. They move our system from the adversarial towards the inquisitorial, which many people think is a desirable feature. However, we must bear in mind that the inquisitorial system, as we know from seeing its operation throughout Europe, is considerably more expensive than our system: there are more judges, who sit for less time in court, the better to be able to read the case papers, as a result of which their judicial throughput is far less.
One of the anxieties that I have heard constantly articulated in regard to the proposals of my noble and learned friend Lord Woolf is whether the system would be sufficiently resourced. If it is not sufficiently resourced it will fail. The extra resources required are, I believe, quite considerable. The judges who are presently destined in the majority to undertake the judicial management of cases are the lowest rungs of professional judges. I say that with no disrespect; but the fact of the matter is that the district judge, previously known as the registrar, was not involved in litigation of a very complex kind. It is common ground that he will require extensive training if he is to change his function to that of a case manager. It is bound to be the case that some will be temperamentally not suited to it. In addition, there will be the need for a larger number of such judges. There has already been discussion as to whether there should be a different source from whom the judiciary should be recruited for this job. What is overlooked is that the main thrust of the reform is to make access to justice more popular as a result of its being cheaper and quicker. If it becomes more popular, the caseload will inevitably increase.
I had experience of this some 23 years ago when I was a commercial judge. At that time a commercial judge for the year was not expected to spend more than half his time on commercial work; the rest was spent on ordinary Queen's Bench work. The system was gradually improved, with the result that six full-time commercial judges sit at any one time, with 13 designated in that capacity. The result of improving access to our civil justice procedure, as it should be improved, will inevitably be greater caseloads.
What I anticipate may occur—and this is where I suggest the council is particularly important—is that there will be resistance to providing adequate resources. After all, my noble and learned friend's proposal will
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involve shifting on to the public purse some of the expense hitherto borne by the litigant himself. If this occurs, it is essential for there to be a powerful statutory body which can state firmly and publicly that the system is falling behind its reasonable expectations because of being starved of the necessary funds.
To those who may say that this is all make believe and imaginative, I ask the Lord Chancellor to go back to the Maximum Number of Judges Order of 1993 which increased the number of High Court judges by 10. Before that order was achieved, strong representations had been made over a period of four years by the Lord Chief Justice and the Master of the Rolls. Those representations failed. In 1992 at a Lord Mayor's dinner given for the judges, attended by the Lord Chancellor and by myself, the noble Lord, Lord Lane, had reached such a pitch of exasperation that he went public about it at the banquet and explained the crisis situation that had been reached.
The noble Lord, Lord Mishcon—who I am delighted to see has just resumed his place—caused a Starred Question to be raised on the very subject of the lack of High Court judges and my noble and learned friend Lord Oliver was at pains to point out that there was currently an over use of deputy judges, which was an abuse of power. That got nowhere. Accordingly, the following year, when the new Lord Chief Justice, Lord Taylor, was appointed, the same complaint was again made at the Lord Mayor's annual dinner, though voiced in stronger terms. That, too, got nowhere.
There followed a wholly unusual event, when the Lord Mayor of London led a delegation to the Lord Chancellor because of the City's anxiety about the state to which the commercial list had fallen, it having been the subject matter of a detailed description of its unfortunate shortcomings by the judge then in charge of the list. A year later the 1993 Order was made. It is therefore not imaginative to think that, when one comes to press for more money to be spent on junior judges, the same resistance may well be encountered. I should therefore have thought that the Lord Chancellor would be delighted to have a body of the stature of the proposed council with the statutory duty to take the necessary action, where required, to complain if the new system falls down because of financial starvation. That would take the heat off himself and his department. It is vital that there should be in place an organisation which is capable of performing that function.
3.45 p.m.
Lord Thomas of Gresford: My Lords, on Second Reading the Lord Chancellor said:
"Little did I quite realise how effectively [Lord Woolf] would capture the public imagination and the willingness and desire on all sides for reform of our civil justice system-.—[Official Report, 5/11/96; col. 604.]
The noble and learned Lord, Lord Woolf, has since, in the Tom Sergant lecture, about which he seems a little reluctant to tell your Lordships, referred to this Bill and to the civil justice council as an instrument for maintaining the momentum of change. This is a moment when we can change a system which has run into the ground.

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During the Committee stage the Lord Chancellor acknowledged that some consultative machinery would be desirable to drive forward, as he put it, the reforms of the civil justice system. He said:
"I certainly do not wish my comments to he taken as implying that I am against a consultative forum—far from it. I wish to ensure that the most effective body possible be established: one that is not unwieldy or bureaucratic; one that has a well defined purpose and role to play and is of sufficient size to be effective—that is, sufficiently small to be effective". (Official Report. 20/11/96; col. CWH 10.)
In Committee, the noble and learned Lord, Lord Donaldson of Lymington, described his experiences of the Supreme Court Rule Committee. First, it never met. Second, although rules were suggested by individuals, the noble and learned Lord, Lord Donaldson, said that in practice they came down from the Lord Chancellor of the day and only if he were prepared to agree would those rules go through. I suggested that that was perhaps a top-down culture that had crept into the making of rules. I repeat today that, although the noble and learned Lord, Lord Woolf, has given the necessary drive and leadership, the success of the proposals in his report derives certainly from him but also from the wide consultation process that in fact took place. Since the noble and learned Lord, the Lord Chancellor, has conceded the principle of some consultative body, we are concerned with two matters: firstly, the model of that body; and, secondly, its form, whether it should be a statutory body or a body that is appointed ad hoc.
First let me talk about the model. The remit of the civil procedure rule committee is set out in Clause 2 of the Bill that is before your Lordships today. It is:
"to make rules which are both simple and simply expressed … land' … signed by at least eight members of the committee".
That is it. There is no express provision that the committee will be a standing committee, although one would assume that it would continue in being. There is no time limit for the appointment of members and no provision for further appointment. There is, therefore, no question of any duplication of function between the rule committee concerned with the formulation of rules and the civil justice council, to which the noble and learned Lord, Lord Woolf, referred.
The "well defined purpose" of such a council is set out in the amendment proposed by the noble and learned Lord, Lord Irvine of Lairg. But the question is who monitors the alterations that are bound to take place during the bedding down process of these reforms and, once they have come into a form with which everyone agrees, who then initiates the reforms to the rules that have been proposed as experience shows them to be necessary? It should not be simply the judiciary. It should not be just the lawyers who, as the noble and learned Lord, Lord Woolf, said, resist reform by and large. It should not be the civil servants of the Lord Chancellor's Department or of a future Ministry of Justice, should that ever come to pass. All court users should be involved in monitoring the effectiveness of the Woolf reforms and in initiating any changes that may be necessary to them.
It is important that your Lordships should bear in mind that the Woolf reforms go well beyond making a single body of rules for county court and High Court.
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The council is concerned with pre-litigation protocols, especially for disclosure of documents, in personal injury cases and medical negligence and housing disputes. It is concerned with the development of alternatives to courts for the resolution of disputes. That is way beyond the remit of any rule committee. It could also be concerned with identifying where practice directions are called for and for discussing their form with the judiciary. A very important part of the reforms of the noble and learned Lord, Lord Woolf, is not simply to set out the framework but to leave it to the judiciary, where it considers it necessary, and to use the procedures already in place to issue practice directions.
It is not an unwieldy and bureaucratic organisation. The model envisaged by the noble and learned Lord the Lord Chancellor would seem to be of a tightly knit committee, meeting with the head of civil justice a few times a year. The idea of a small consultative committee that is appointed ad hoc no doubt derives from the principle of good committee work that a small group is more effective when it comes to taking decisions. But that is not necessarily the best model for the comprehensive overhaul of the civil justice system.
The proposals that are contained in this amendment, on the other hand, would ensure first of all that the proposed justice council would be representative and appointed not simply by the Lord Chancellor but by the various bodies that are concerned in it, such as the Law Society, the Bar Council, citizens advice bureaux and organisations of that nature. Secondly, the proposal is that it should be of sufficient size to permit the formation of sub-groups, which could deal with particular issues: a sub-group on personal injury litigation; on alternative dispute resolution: on research; on information technology; and the formation of practice directions. In the preparation of his report, the noble and learned Lord, Lord Woolf, was assisted by no fewer than 11 working groups, typically of eight to 12 people, headed sometimes by a High Court judge and on other occasions by a very experienced senior solicitor or barrister. Those working groups would be sub-groups of the council that is now proposed, taking a particular issue and discussing it in depth.
Another important function of the civil justice council would be to promote understanding of the system among the people who use it: to get rid of the mystique; to brush away the cobwebs which surround civil litigation and which make the experience of the civil courts such a nightmare for people who go to court to pursue their rights and remedies. That is the model: a civil justice council that is not simply appointed but is representative of sufficient numbers to encompass the necessary areas of work that I have suggested.
Why is there a reluctance that it should be a statutory body? In Committee, the noble and learned Lord the Lord Chancellor said that:
"it would probably work more effectively if it were capable of being changed from time to time in the light of experience".—(Official Report, 20/11/96; col. CWH 11.)
But the amendment of the noble Lord, Lord Irvine of Lairg, gives a wide remit for the proposed council to set its own agenda and procedures and to vary them in the light of experience. Its functions include various

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matters; it is not exclusive. Is there a fear that such a statutory body might become too powerful and perhaps these reforms are too much to take in one go? Has the scope of the report that has emerged become far wider, requiring a wider vision than was initially expected? It may be appropriate for the Lord Chancellor's Department to let slip some of its control and trust the head of civil justice and a civil justice council to get on with the job from their own knowledge.
The noble Lord, Lord Renton, referred to cost. The complaint about the present system is that it is extremely costly. When rules which might have seemed on paper to be appropriate when the rule committee set them up do not work, it becomes hugely costly in judges' time and the time of the Court of Appeal. An example which has been referred to is the automatic strike-out rule introduced into the county court rules, which to some degree has clogged up the Court of Appeal because of the number of appeals that take place.
I cannot go along with the noble and learned Lord, Lord Ackner, in his comments on district judges, though I make this point. I know many of them and have appeared in front of them. They are people who are certainly well capable of dealing with any of the problems which are likely to arise. My last experience in Southend was that I was sent away without costs, having lost the case, and no quarter for seniority was given on that occasion. They are people well able to deal with these matters.
The proposals for pre-trial protocols and the alternative dispute procedures are outside the remit of the proposed rules committee and so the savings of cost on court time, both in the first instance and on appeal, could be immense and far outweigh the cost of servicing what the noble Lord, Lord Renton, referred to as a costly bureaucracy. Roots and branch reform of the system demand resources, time and money. This is an undertaking which is perhaps far more radical than was originally envisaged. It is more than the relatively mechanical task of producing a common set of rules and procedures and I urge the adoption of the civil justice council on the model proposed and on a statutory basis.
Lord Hacking: My Lords, I am greatly flattered that the noble Lord, Lord Irvine, supported by the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas, should have chosen the amendment I tabled in Committee for introducing this debate on the civil justice council this afternoon on Report. It was my intention to move this amendment myself in Committee, but the noble and learned Lord the Lord Chancellor took the precaution of asking me to represent him in the European Parliament on that day and for that reason I was unable to speak to the amendment at that time.
What concerned me when I looked at the other amendment which was then tabled for Committee was that it did not go far enough in defining the intent, as I understood it, of the noble and learned Lord, Lord Woolf, in making this recommendation. After all, at Second Reading he said,
"I see the council as a central plank to my recommendations".— [Official Report. 5/11/96; col. 622.]
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Therefore, in drafting this amendment—drafted somewhat hastily in the Library late one evening—I was seeking to reflect the main roles that the noble and learned Lord, Lord Woolf, saw for the civil justice council. The noble and learned Lord believes that the amendment meets the needs of his proposals but made the point that he would have liked subsection (e) to be expanded further. I believe I am right in saying that I was following his report quite closely when I drafted subsection (e). But if the noble and learned Lord persuades us that it should be on a wider basis, I am happy to go along with that.
It seemed to me—it comes out when your Lordships identify the functions of the civil justice council—that the council had to be a statutory body. That speaks for itself when one looks through the functions and asks whether they can be carried out by an ad hoc body. As the noble Lord, Lord Thomas, said, there is a great flexibility in the functions of the justice council as set out in the amendment.
My noble friend Lord Renton has not yet advanced his arguments on bureaucracy and cost. In tabling the amendment I did not intend to create any burden in that direction, nor did the noble and learned Lord in making the recommendation in the first place.
Lord Renton: My Lords, as I was referred to by my noble friend and by the noble Lord, Lord Thomas of Gresford, perhaps I should rise to my feet. In spite of the phrase that I used when I asked the noble and learned Lord, Lord Woolf, two simple questions, I have not closed my mind on this matter. The noble and learned Lord may think my views are antediluvian because I was called to the Bar before he was born. But I am inclined to think that my views are not without a progressive hint behind them. I speak, as does the noble and learned Lord, from long experience.
Our legal system is already over loaded with supervisory and advisory bodies of various kinds—I have served on some of them. We have the Lord Chancellor and his department. We have the judiciary mentioned in the amendment, which consists of the Master of the Rolls who is responsible for the Court of Appeal, and at the head of each of the divisions is the Lord Chief Justice, the President of the Family Division and the Vice-Chancellor. The High Court judges in each of those divisions, for many years, have met together from time to time to give each other and the Lord Chancellor of the day the benefit of their experience. Sometimes that experience is given to Parliament by noble and learned Lords who hold those positions. The former Lord Chief Justice, the noble and learned Lord, Lord Taylor, was extremely eloquent in giving us the views of the judges of the Queen's Bench Division and of the circuit judges.
We have the four Inns of Court, which have an undoubted responsibility within the Bar. We have the Bar Council and the Law Society. Our system is decentralised and each of the circuits has an elected committee of members whose views are not disregarded by the Lord Chancellor's department or by the members of other circuits. Indeed, now we are to have a statutory civil procedure rules committee.

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My fear is that if we introduce the civil justice council as proposed it will supersede the opinions and responsibilities of the various eminent, experienced and high-powered bodies that already exist within our profession. I should not like to see that happening. We do not need another august body, another quango. I called it a bureaucracy; it could not escape being a bureaucracy. It would need to be staffed because it is given responsibilities which would require a good deal of administration and overlap with some of the administration which already exists within our system. However, I shall keep an open mind until the end of the debate.
Lord Lowry: My Lords, I shall be brief. If I venture to say a few words in support of the amendment it is because in one of my judicial appointments I had a lot of experience of legal administration.
Judicial expertise and a genius for administration are not always—indeed, not often—found combined in one person. Without indulging in flattery, my noble and learned friend Lord Woolf combines those two talents. What I am going to say next is not an argument based on personality but an introduction to the only point I really want to make. The noble and learned Lord, Lord Woolf, was asked to make a report on this very important subject when the legal system had got itself into the state with which many of us are familiar. A great deal of work was done over approximately two years, and a very careful report was produced. Part of that report was the recommendation for a council such as we are now discussing. That in itself is something which should make us pause.
I come now to the point I want to make. It is very pragmatic; it is not very intellectual. I had to preside over quite a lot of committees, including the Supreme Court Rules Committee; judges' meetings every week—which would be rather difficult to hold in England; and various informal groups. What I found from my experience was that if there was an idea for change which commanded the support of a sufficient number of sensible people who knew the subject, I began to adopt the attitude: "It is difficult to say, sitting here; but let us try it". I am able to say from my experience that that method worked rather well. There were not too many ideas (perhaps one or two) that went through that net and were tried which we had to abandon.
I sympathise very much with my noble friend Lord Renton in his vision of overloading because that is in itself an evil which we have to fight against and which the report we are considering is fighting against. My only observation on that would be this: here is a new system being proposed and here is a new weapon being proposed by the proposers of that system as being a very important tool to make it work. My advice on this subject, coming back to the old theme, would be: this looks like a good idea to a lot of very sensible people, let us try it.
4 p.m.
The Lord Chancellor: My Lords, this has been an interesting debate. Before I come to the main issue, I should like to respond to what the noble Lord, Lord
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Thomas of Gresford, said about the proposals that have emerged from the study of the noble and learned Lord, Lord Woolf, as being beyond what was originally envisaged. I could say without fear of contradiction that, having studied some of the earlier lectures of the noble and learned Lord, Lord Woolf, before the Tom Sargant one, some years ago, I was able to form a fairly clear view of the outline of the proposals that would ultimately emerge. They needed a lot of detailed consideration, but the germ of the proposals can be detected in the earlier lectures of my noble and learned friend. Therefore, it was with the greatest of pleasure that I understood that he was willing to undertake this task, and of course it gives me very great pleasure that he has now completed it and obtained for it such a great degree of support.
I have been cautious about the civil justice council as a statutory creation for reasons not dissimilar to those which have been advanced by my noble friend Lord Renton. I am also conscious that a number of bodies are already in existence that have a part to play in this matter. I certainly want to be careful about sweeping aside established organisations in a sudden rush forward, as it were. Therefore, I have sought to ascertain as fully as I could the attitudes of those concerned with these matters as we have proceeded. As I said, I was cautious about the civil justice council for that reason.
I do not believe that my noble and learned friend has ever actually stipulated that it need be a statutory council. He was of the view that it could be a non-statutory council. There are more rigidities about a statutory council than a non-statutory council. However, in the light of the debate that has gone on so far, and in the light of my continuing consultation with those who will be intimately concerned with trying to put this system efficiently into place, I have reached the conclusion that it is now right for me to accept this amendment in principle. I do that.
As has been pointed out, there are details with regard to the drafting of this amendment which we shall have to consider. I would assume that although the body will be representative in the sense of taking people from a fairly wide raft of different organisations, the appointments are appointments to be made by the Lord Chancellor, and that would need to be actually stated.
In case there is any misunderstanding, I should say that I never thought of the civil justice council as a particularly small body. Any observations I was making in that connection were about the rules committee.
The second point has already been mentioned by my noble and learned friend; namely, that the head of civil justice is an appointment, a task, that my noble and learned friend has proposed but, to those who have not fully grasped all that is in the report, the title might be thought to be the top job in the civil justice department. Of course, that is not so. What my noble and learned friend was proposing was a head of civil justice at first instance, because the need for co-ordination at that level is clear; and it is clear also that the senior judge in our system, in the system for England and Wales, in relation to civil justice is the Master of the Rolls as the President of the Civil Division of the Court of Appeal. Therefore, it

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would be right that the person who happened to be the head of civil justice would not be singled out specially to require assistance in this connection, and the assistance should be assistance which is available to the judiciary as a whole who are concerned with civil justice.
There are possibly some other matters that require consideration. I welcome the form of this amendment as an inclusive one. It gives as much flexibility to the civil justice council as is consistent with its being a statutory body, and in view of the arguments that have gone on, I have concluded that it is wise to make it a statutory body but to seek to retain the maximum flexibility in that connection.
The ultimate responsibility of the rules committee for the rules is sufficiently preserved by this amendment. Also, the references to the head of civil justice make it clear that the responsibilities of the judiciary in this matter are not being encroached upon, which is an important aspect, not only in relation to the actual decision of cases, but in relation to the administration which, for example, the presiding judges presently carry out.
I said at Committee, and I repeat, that my understanding is that the Vice-Chancellor, as the head of civil justice, has indicated his intention to make an annual report to the Lord Chancellor on developments in civil justice. I am anxious to avoid any unnecessary bureaucracy or any unnecessary cost because I believe that the money that is available is best spent on the actual work on the ground rather than on any bureaucracy. However, I believe that in principle the amendment gives us sufficient flexibility to arrange matters in such a way as to minimise the overall cost and to have in mind that its ultimate objective is to reduce the cost of the system.
I undertake to bring forward an amendment at Third Reading to incorporate those aspects. In the light of that undertaking, I hope that the noble Lord, Lord Irvine of Lairg, will feel able to withdraw the amendment.
Lord Renton: My Lords, before the noble Lord replies to my noble and learned friend the Lord Chancellor, I wonder whether my noble and learned friend would be so good as to confirm that the new body will be only an advisory body and will not supersede the responsibility of any of the other bodies that I mentioned.
The Lord Chancellor: My Lords, my concern in this matter was to ensure that that would be the case, particularly in relation to the judiciary. My understanding of the matter is that the body is essentially advisory in its character. It would promote the interests of civil justice; it would not allow the profile of civil justice—because the inquiry of my noble and learned friend Lord Woolf had finished—to fall; and it would try to harness the tremendous amount of enthusiasm in all branches of the profession and keep that momentum going. It is certainly not the intention—in accepting the amendment I would not have any intention—that this body should entrench upon the responsibilities of the bodies to which my noble friend referred.
Lord Irvine of Lairg: My Lords, I welcome what has been said by the noble and learned Lord on the Woolsack. He has accepted that there should be a civil justice council resting on statute. He has accepted the principle of the amendment and will bring forward his own amendment at Third Reading. I was also heartened that he had no particular criticisms to make of the proposed amendment and that, on the contrary, he welcomed it as containing as much flexibility as could be given to a statutory body. My understanding is that the council would be advisory in nature.
I have no difficulty with the proposition of the noble and learned Lord, Lord Woolf, that the words "the Head of Civil Justice" would be better replaced by the words "the senior judiciary" or "the judiciary" in Clause 2(2)(e). Furthermore, having regard to what was said by the noble Lord, Lord Renton, it is no part of my intention that the body should either be excessively bureaucratic or excessively costly. On the contrary, I believe that both can be easily avoided.
We now have a very short period of time between Report and Third Reading. It is a fact that the noble and learned Lord is not yet in a position to canvass the terms of the amendment that he will bring forward. I urge him that such an amendment be prepared in draft with the least delay so that it can be made available in good time for consideration in advance of Third Reading by those who have made their useful contributions today. On that basis, I beg leave to withdraw the amendment.
The Lord Chancellor: My Lords, before the noble Lord sits down, I shall certainly do my best to produce my amendment as rapidly as possible to enable as much time for its consideration as is possible before Third Reading.
Amendment, by leave, withdrawn.
Clause 2 [Rule Committee]:
4.15 p.m.
Lord Ackner Lord Ackner moved Amendment No. 3:
Page 1. line 24, leave out ("two') and insert ("three").
The noble and learned Lord said: My Lords, the purpose of this amendment, grouped with the other amendments, is to increase by two the number of practitioner members on the rules committee. The function of the committee is to make rules for the day-to-day working of the courts. It is therefore vital that the rules committee has on its membership sufficient numbers of professionals engaged daily in the conduct of litigation who can be expected to have direct and detailed knowledge of the problems.
My proposals would work as follows: the addition of one extra advocate would enable the Lord Chancellor to appoint an advocate with suitable seniority—probably a QC—with experience of Chancery work in the High Court and in the Court of Appeal. Chancery work, as your Lordships know, embraces a wide field of activity; trusts, real property, wills, intellectual property, copyright and company law, to quote the main titles. There would be one advocate—no doubt of comparable seniority—with experience of common law work in the High Court and in the Court of Appeal. Again, common

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law now embraces commercial, construction, personal injuries, professional negligence and judicial review. The third practitioner, who need not be of the same seniority as the former two, would have particular experience of county court advocacy. Similarly, the extra appointment to the committee of a litigator would bring in a solicitor of suitable seniority with experience of Chancery work in the High Court and the Court of Appeal, a solicitor of suitable seniority with experience of common law work in the High Court and the Court of Appeal, and one solicitor or litigator with particular experience of the county court. The three new members would be expected to have collective experience of most types of cases heard in the Supreme Court and the county courts.
An amendment grouped with my amendment suggests that there should be two extra but the two would be the litigators or the solicitors. I should have thought that that would create an imbalance. I beg to move.
The Lord Chancellor: My Lords, my attitude to the rules committee is that it should be as small as is practicable so that the work is carried on efficiently. It is true that one can think of a variety of different experiences, all of which are relevant to this situation. However, I would hope that those appointed to the rules committee would have a sufficiently general appreciation of the nature of court procedure and the overall thrust of the rules to be able to carry out the function as the rule-making body with appropriate consultation—I accept the amendment in relation to consultation—with all those who have particular skills. I am anxious not to make this rule committee larger than is necessary to achieve the task.
It depends on who else wants to come into this body. It is the overall result that in a way determines the matter. A number of amendments have been grouped with this amendment. I should like to gain some impression of the overall view on this matter before reaching a final decision on the amendments. At the moment I am not convinced that it is wise to proceed on the basis of the different specialties and areas of expertise which have underlain the proposals of my noble and learned friend Lord Ackner. After all, if one takes the expertise down to a sufficiently fine level, there are a very large number of areas of expertise in our system at the present time. So it is a question of where one stops in this matter.
The other amendments which have been grouped with this amendment raise these matters as well as the question of the appointments. We shall come to the method of appointment later.
Lord Irvine of Lairg: My Lords, perhaps we should make our position plain with regard to Amendments No. 3 to 7, 11 and 13. We support Amendments Nos. 3 to 7 in the name of the noble and learned Lord, Lord Ackner. I shall not move Amendment No. 6 in my name, which proposes that "two" shall be increased to "four" at page 2, line 1, of the Bill. I am content with Amendment No. 5, which would increase "two" to "three". I remind your Lordships that there is not before
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us today, as there was at Committee stage, an amendment proposing that the representation from the advice sector and the consumer sector should be increased from two to four. Therefore, the noble and learned Lord's amendments for an increase in size appear to us to be modest, while I am conscious of the force of the argument, which I do not believe that these amendments infringe at all, that the rule committee must not be so large as to be unwieldy. Also in this group of amendments are Amendments Nos. 11 and 13 in my name. I shall not move either of them. I hope that clarifies the position.
The Lord Chancellor: My Lords, I am extremely grateful for that clarification. In the light of those observations I am disposed to accept the amendments which my noble and learned friend Lord Ackner has proposed to increase the number to three. That relates to the amendment which he is presently moving and, I assume, Amendment No. 5, which would increase the number of litigators as well.
As regards Amendment No. 4, I hope that my noble and learned friend will be prepared to leave that on the basis that we shall seek as broad a level of experience as possible in the rule committee. It is obvious, for example, that we would wish particular experience of the High Court to be available to the committee. So I hope that it is right to leave it to the good sense of the appointing authority to try to achieve a balance between the county court and the High Court and the various types of expertise. So if my noble and learned friend will go that distance with me, I shall be content to accept Amendments Nos. 3 and 5 on the understanding that Amendment No. 6 will not be pressed.
Lord Ackner: My Lords, I am grateful to my noble and learned friend the Lord Chancellor. I would like him to ponder once again Amendments Nos. 4 and 7. The county court looms particularly large in litigation nowadays because its jurisdiction has been so substantially extended. The practitioners who cover the High Court are likely to have left their county court days some years behind them. I appreciate that there is to be a wide measure of consultation, but those who consult must be in a position to evaluate the advice that they receive. If they are not adequately experienced they will be unable to do so. That is why the amendment was put forward on the basis that it was balanced; that there would be two advocates and litigators who would cover the field of the High Court and only one advocate and litigator who would cover the field of the county court. If that is not so provided there is a risk that the county court might be overlooked to an extent which is undesirable and the balance that we have rather carefully put forward and which, I believe, is supported by my noble friend Lord Irvine of Lairg, would be upset. I wonder whether my noble and learned friend the Lord Chancellor would ponder this matter again.
The Lord Chancellor: My Lords, I am certainly prepared to ponder. I am very willing to undertake that the concerns of the county court will by no means be overlooked. I am very conscious of the need to appoint

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at least one person with experience of the county court. What I am saying to my noble and learned friend—and I am very willing to consider the matter further—is that I doubt whether it is necessary to do that any more than it is necessary to say, "And some of them will have High Court experience". It is clear that a fairly wide level of experience is required to be mustered among the three that we have now agreed should be in each of the classes. I certainly undertake to consider the matter further, but that is how I see the matter at the moment. In the meantime I am content to agree to Amendment No.3.
On Question, amendment agreed to.
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No. 4:
Page 1, line 25, at end insert ("at least one of whom has particular experience of practice in the County Court,").
The noble and learned Lord said: My Lords, on the basis of what my noble and learned friend has said about thinking about the matter again, I shall not move this amendment. I noticed that he said that it was not intended to ignore the county court and that at least one member will be particularly experienced. That sounds as if on occasions there may be two members from the county court. That would immediately create an imbalance with the High Court. That is why we have suggested, by the way in which we have put forward the amendment, that the balance would be adhered to. But, on the basis that further thought might be productive of greater harmony, I shall not move the amendment.
[Amendment No. 4 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 5:
Page 2, line 1, leave out ("two") and insert ("three").
On Question, amendment agreed to.
[Amendment No. 6 not moved.]
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No. 7:
Page 2, line 3, after ("Court,") insert ("at least one of whom has particular experience of practice in the County Court.").
The noble and learned Lord said: My Lords, on the same basis as I dealt with Amendment No. 4, I do not propose to move this amendment.
[Amendment No. 7 not moved.]
4.30 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 8:
Page 2, line 3, leave out from ("Court") to end of line 4 and insert—

("(g) one person with experience in and knowledge of consumer affairs, and

(h) one person with experience in and knowledge of the lay advice sector.").

The noble and learned Lord said: My Lords, this amendment is self-explanatory. I have accepted the amendments proposed in respect of this matter following our Committee stage. My noble friend Lady Wilcox had a particular interest in this matter, as did the
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noble Lord, Lord Irvine of Lairg. I believe that we have achieved a reasonable basis for going forward and I am therefore glad to accept the position that was put to me, which is now exemplified in Amendment No. 8. I beg to move.
Lord Irvine of Lairg: My Lords, I welcome the amendment. It responds positively to an amendment which I moved in Committee. As I acknowledged then, the noble and learned Lord on the Woolsack may well have intended by the expression in Clause 2(2)(g)—
"two persons with knowledge of the working of the courts"—
to include persons whose experience derives from the consumer and advice sectors. That is now made express by Amendment No. 8, which the noble and learned Lord has just moved, and I therefore support it. As I said in Committee, I would have been happier if there had been four representatives of those sectors, not merely two. The noble and learned Lord has not agreed with that. Although I retain a concern that the rule committee, as defined by Clause 2(2), is too lawyer-dominated—as I said, however, I appreciate the arguments in favour of not having a committee of excessive size—I welcome the amendment and we support it.
Baroness Wilcox: My Lords, like the noble Lord, Lord Irvine, I too support the noble and learned Lord's amendment given that his amendment achieves a key goal which the amendment that I tabled in Committee would have realised; namely, to ensure a designated place for a consumer representative and one for someone from the lay advice sector. This provision is significant in the civil justice world. It is important that users of the courts have a voice in decisions about how the courts are run. It is in everyone's interest that we have a legal system that ordinary people no longer find remote, bewildering, off-putting and incomprehensible. We should have a system in which everyone can participate as fully as possible. We seem to be moving towards achieving that, and I am happy to support the amendment.
Lord Thomas of Gresford: My Lords, the noble Baroness, Lady Wilcox, has said everything that I wanted to say. We support and welcome the amendment.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 9:
Page 2, line 12, at end insert—
("( ) The Civil Procedure Rule Committee must, before making or amending Civil Procedure Rules, consult such persons as they consider appropriate.").
The noble and learned Lord said: My Lords, again I have sought to respond to what was said in Committee by the noble Lord, Lord Irvine of Lairg. I think that that view was generally shared. Indeed, I had rather assumed that that would be the effect of the provisions, but there is no harm in putting them this way and on the face of the statute. That is why I have tabled Amendment No. 9, which I commend to your Lordships. I beg to move.
Lord Irvine of Lairg: My Lords, it is important to note the precise language of this amendment. The amendment seeks to insert at the end of page 2, line 12:
"The Civil Procedure Rule Committee must, before making or amending Civil Procedure Rules, consult such persons as they consider appropriate".
Your Lordships will note that we are next to consider Amendment No. 10, which stands in my name, and which would make a different amendment to this effect. It states:
"Before appointing a person under (g) subsection (2)(g) the Lord Chancellor must consult those organisations which are members of the Advice Services Alliance, the National Consumer Council and other appropriate organisations representing the interests of consumers".
In Committee, the noble and learned Lord indicated that, subject to the drafting, he was happy to accept an amendment along the lines of what was Amendment No. 13 in Committee. I understand that Amendment No. 9, which the noble and learned Lord has just moved, is intended to achieve the same effect. In Committee I expressed a preference for what was then my amendment, Amendment No. 18 and which is now Amendment No. 10 standing in my name. That amendment makes specific reference to the interest groups and organisations which ought to be consulted.
I have a preference for the provisions of Amendment No. 10 because they expressly involve consumer groups and advice agencies in consultation, thus recognising on the face of the statute their very important role. If what is intended is that the rule committee should consult those bodies, I really do not see why the statute should not say that clearly and expressly. However, if the noble and learned Lord will confirm that in terms of his Amendment No. 9 he intends that the rule committee should consult the kind of bodies referred to in my Amendment No. 10, on the footing that they are bodies obviously appropriate to be consulted, I would be minded in due course not to move Amendment No. 10 and, on that basis, to support Amendment No. 9.
The Lord Chancellor: My Lords, as the noble Lord, Lord Irvine, said, Amendment No. 10 relates to consultation before making the appointment whereas Amendment No. 9 relates to consultation in respect of rules once the rule committee is in position. On Amendment No. 10, I am content to undertake in relation to paragraph (g) of Amendment No. 8 to consult bodies which seem appropriate in the consumer area and, in relation to paragraph (h), to consult bodies that are appropriate in the lay advice sector. I undertake that such consultation will be carried out in relation to the appointments.
Amendment No. 9 relates to the making of the rules. The position may depend a great deal on the nature of the rule. If the committee is considering amending a rule in relation to patents, it might be that consultation is required with a different group from that involved in more general amendments on, for example, the question of in which court particular matters should first be heard.
Additionally, bodies such as those specified in Amendment No. 10 are apt to change their names. If a fixed name is part of the statute, the provisions may be
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deprived of content in due course. That is why I believe that an amendment along the lines of Amendment No. 9 is more appropriate—if I may use that word once more, having used it in the amendment—to this situation. With regard to Amendment No. 10, I undertake to ensure that consultation with the appropriate bodies will take place in relation to the making of the appointments of the persons required (under paragraphs (g) and (h)) to serve on the rule committee. I hope that that will meet the concerns expressed by the noble Lord, Lord Irvine of Lairg.
Lord Ackner: My Lords, before my noble and learned friend sits down, I wonder whether he can help me on a small matter relating to Amendment No. 9. Is not the test under Amendment No. 9 a subjective test, given that the provisions refer to,
"such persons as they consider appropriate"?
Should not the test be objective and the provisions refer to,
"such persons as are appropriate"?
The Lord Chancellor: My Lords, it is possible to do that, but one has to have confidence in the rule committee to try to make the best job that it can of the matter. The way to reach that is for it to look at the rule in question and consider it. If it came to a totally unreasonable decision, under the rules of judicial review, as I understand them, there would be a redress. I hope that that would never arise, because I am sure that a rule committee appointed under this authority would have the necessary responsibility to do that appropriately. However, strictly speaking, as framed, the amendment is one which makes the matter subjective, but the overriding duty in performing a public law duty of this kind is to act reasonably.
Lord Ackner: My Lords, if that is the case, and we are to have confidence in the committee, do we need the amendment at all?
The Lord Chancellor: My Lords, I started off without it, but in the light of the views expressed, I decided to put it in. Any rule committee operating in the present circumstances would certainly wish to consult. We want a rule committee that will work. It was thought wise to make it clear; and, in the light of the wisdom displayed to me in Committee, I accepted that advice, and here I am. So I am content with the amendment as it is expressed, and I hope that your Lordships will be, too.
On Question, amendment agreed to.
Lord Irvine of Lairg Lord Irvine of Lairg had given notice of his intention to move Amendment No. 10:
Page 2, line 12, at end insert—
("( ) Before appointing a person under (g) subsection (2)(g) the Lord Chancellor must consult those organisations which are members of the Advice Services Alliance, the National Consumer Council and other appropriate organisations representing the interests of consumers.").
The noble Lord said: My Lords, in the light of the undertakings given by the noble and learned Lord on the Woolsack in relation to Amendment No. 10 to which I sought your Lordships' leave to speak on Amendment No. 9, I shall not move the amendment.
[Amendment No. 10 not moved.]
[Amendment No. 11 not moved.]
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 12:
Page 2, line 15, at end insert—
("( ) The Civil Procedure Rule Committee must, when making civil procedure rules, meet to discuss and agree these rules.").
The noble Lord said: My Lords, Amendment No. 12 is in line with Amendment No. 17 to which I spoke in Committee under that number. The noble and learned Lord on the Woolsack will well recollect what is its subject matter. It is designed to oblige the rule committee, when making rules, actually to meet to discuss and agree them. As I observed in Committee, any member of the public who was told that the rule committee was not under any such obligation would be very surprised. In reality, the present Supreme Court Rule Committee does not meet; it conducts its business solely by post, as I understand it. In effect, it is not a committee, but it may well be a group of individuals who are invited to endorse proposed rule changes put forward by others.
It would be neither onerous nor expensive for the proposed rule committee to meet a few times a year to discuss and agree rule changes. In Committee, the noble and learned Lord on the Woolsack said:
"I have found the method of working on the Supreme Court Rule Committee somewhat unsatisfactory. On the other hand the County Court Rule Committee has worked because it can and because it is reasonably small. That has something to do with the membership and the size of the committee that consists of all the top judges. They have other responsibilities and it is difficult to arrange meetings. This goes back to the point of the size of the committee, which was discussed. I am entirely in favour of a committee that meets to discuss those matters; that is what I am aiming at, and I believe that that is what we shall get".—[Official Report, 20/11/96; col.CWH24.]
In the light of that statement by the noble and learned Lord in which he said he said that he favours a committee which meets to discuss these matters; that is what he is aiming at, and that is what he believes we shall get, I invite him to accept the amendment on the basis that a statutory obligation should be imposed on the new rule committee to meet. I would add that a statutory duty to meet is all the more necessary because of the experience of the present Supreme Court Rule Committee, which we know does not meet. I beg to move.
4.45 p.m.
Lord Ackner: My Lords, I support the amendment. It seems that what is proposed is not what happens at the moment, necessarily. It is desirable that it should happen. I believe that it should therefore be clearly stated.
Viscount Bledisloe: My Lords, the amendment goes too far. I can see the desirability of the committee
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meeting to discuss the rules, but that it should only be able to agree them by meeting is surely inconvenient. It often happens at meetings—for example, board meetings—that there has been a discussion and something is not known or is not right. So someone says, "Let us send people away. They can draft the final result, and that can then be circulated". On the basis of this amendment, that could not be done even though everyone was agreed. The redraft would have to come back to a further and subsequent meeting, but could only be agreed at a meeting.
There must often be cases when it is appropriate for things to be done by circulation; for example, someone suddenly realises after the meeting that if one rule is to be amended, another has also to be amended. The date has to be changed in that one as well. To say that can be done only by a further meeting makes the task enormously onerous.
Lord Thomas of Gresford: My Lords, I support the amendment. It would be easy to slip into the same way as the Supreme Court Rule Committee has slipped—that is to say, never to meet at all. I take the point that the noble Viscount has just made; where eight members of the committee are required to sign their consent to a rule, they should at least meet to discuss it to ensure that they all agree.
Lord Mishcon: My Lords, there was a dramatic moment in the history of this House when the noble and learned Lord, Lord Hailsham, recorded to the House the decision that had been made by the rule committee: that no longer should defendants be addressed by Her Majesty on a writ, but that the whole of the writ should be reworded with any reference to Her Majesty being omitted. I took the liberty on that occasion of trying to move an annulment of an order, which, if I may say so, was a brave thing to do. I can remember so well the noble and learned Lord, with his customary elegance and courtesy, telling the House that after great consideration, the rule committee had made that decision, and it was recommended therefore to the House and to the legal profession.
I dared—that was even more courageous, in my view—to ask the noble and learned Lord whether that committee had met frequently to discuss that extreme alteration in our procedure, and the removal (which in my view was a historic one) in this address to a defendant at the commencement of a civil action. There was some hesitation before the noble and learned Lord replied. That is not usual with the noble and learned Lord, Lord Hailsham. But when he did reply he frankly admitted that there had not been a meeting of the rule committee—if my memory is correct—for some two years; but he undertook that there would then be a meeting to consider the debate which had taken place in your Lordships' House. That was not a very favourable reference to the rule committee, with all the power that it was exercising on that occasion. Therefore, it is a salutary experience to have these words suggested by the amendment in the Bill.
The Lord Chancellor: My Lords, there is little difference in principle between us. I believe that it is

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right to preserve to the committee the opportunity of agreeing rules by post. However, it is highly desirable that it should meet sufficiently. That can be achieved by the terms on which it is appointed. Perhaps the easiest way of achieving that is if I give an undertaking that the conditions under which people are appointed shall include the requirement to attend a minimum number of meetings. The members could have more meetings if they wished, but the procedure would ensure that this was a meeting committee rather than one operating only by correspondence.
The noble Lord, Lord Thomas of Gresford, pointed to the existing situation with the Supreme Court Rule Committee. I must point to the existing situation with the County Court Rule Committee. To an extent, the difference is due to the size of the committee. It is very much easier for the members to meet, whereas the Supreme Court Rule Committee comprised such an array of high-powered talent that it was extremely difficult to get their diaries together, as my noble and learned friend Lord Hailsham discovered.
If your Lordships believed that a clause was required, I should not be adverse to including one. However, we must keep open the possibility of agreeing by post amendments in the discretion of the committee. As the noble Lord, Lord Meston, mentioned previously, often matters are left to be dealt with in detail. It would be impossible to say that at the moment of the conclusion of the meeting a precise agreement on the rules had been reached but there could be sufficient understanding to make it likely that agreement would be reached and the detailed rule then presented. Subject to that, I am content to accept the provision if it is insisted upon.
Lord Irvine of Lairg: My Lords, of course I am not opposed to rule changes which have been discussed in meetings but perhaps not finalised being subsequently agreed and resolved by post. That is only sensible. However, the need to recognise that does not lead to the elimination of the need for any meetings at all. The primary means of the committee proceeding, if it is to operate as a meaningful committee, is by actual meeting. I am not satisfied that an obligation on persons to attend a minimum number of meetings as part of their terms of appointment greatly helps if no meetings are being held. I should have thought that the terms of their appointment must yield to the fact that there are no meetings for them to attend. I should prefer the noble and learned Lord to undertake to consider Amendment No. 12, if he can say that he supports it in principle, with a view to seeing whether it can be approved. It could, for example, be drafted to read:
"The Civil Procedure Rule Committee must, when making civil procedure rules, meet to discuss these rules with a view to agreeing them".
That form of language would not run into the problem to which the noble Earl, Lord Bathurst, drew attention. Before reaching a final view on whether to test the opinion of the House, I invite the noble and learned Lord the Lord Chancellor to respond.
The Lord Chancellor: My Lords, there is no difference between us on this issue. Certainly it is not
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the kind of issue that I should wish to have a great problem about. I anticipate the difficulty mentioned by the noble Lord, Lord Irvine of Lairg, about the terms of appointment by requiring the chairman to deal with the matter. However, if that is not thought to be satisfactory I am perfectly content to see whether we can produce a workable amendment which carries the sense that the committee will be a meeting committee and not one which discharges its business entirely by post. Perhaps with that undertaking the noble Lord will feel able to proceed.
Lord Irvine of Lairg: My Lords, on the basis that the noble and learned Lord will give thought to the matter between now and Third Reading and will bring forward an amendment which in his judgment meets the sense of what has been said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Clause 4 [Power to make consequential amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 14:
Page 2, line 32, leave out subsection (2) and insert—
("(2) The Lord Chancellor may by order amend, repeal or revoke any enactment passed or made before the commencement of this section to the extent he considers necessary or desirable in order to facilitate the making of Civil Procedure Rules.
(3) Any power to make an order under this section is exercisable by statutory instrument.
(4) A statutory instrument containing an order under subsection (I) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(5) No order may be made under subsection (2) unless a draft of it has been laid before and approved by resolution of each House of Parliament.").
The noble and learned Lord said: My Lords, I shall speak also to Amendment No. 31. Amendment No. 14 is designed to give effect to what I said in relation to the Government's response to the recommendations made by the Delegated Powers Scrutiny Committee. The amendment addresses the point as follows. If the rule committee is minded to make a rule which would override an enactment, the enactments would have to be identified and the necessary amendments made to those enactments. I would lay a draft order containing those amendments before the rules were made and that order would then be subject to the affirmative procedure. Once the order is approved, the rule committee would make the relevant rules.
The amendment builds on the order-making power already contained in Clause 4(1) which provides for consequential amendments to be made via the negative resolution procedure. The new subsection (2) then makes provision for an affirmative procedure to apply to amendments which are other than consequential. It will have the effect of ensuring, as I have said, that Parliament's approval is obtained before the committee makes the rule which overrides a statutory provision. The matters which would go into an affirmative order would include any rules flowing from paragraphs 2 to 4 of the schedule which overrides an enactment.
The amendment to Clause 4 renders paragraph 8 of the schedule unnecessary as I also agree that paragraph 8 ought not to be interpreted as applying to future enactments. I beg to move.
Lord Ackner: My Lords, does the amendment have any impact on Amendment No. 33, which is the last amendment on the Marshalled List? That amendment is designed to deal with the allocation of business between the High Court and the county court and seeks to preserve the present position which requires the affirmative resolution before such orders are made. If it does affect it perhaps I ought to deal with the merits of my amendment.
The Lord Chancellor: My Lords, my understanding is that the provisions are quite independent. Amendment No. 14 deals with the activities of the Civil Procedure Rule Committee. Amendment No. 33 in the name of my noble and learned friend deals with the allocation of jurisdiction as between the county court and the High Court, which is not a matter subject to the civil procedure rules.
Lord Ackner: My Lords, I am grateful.
On Question, amendment agreed to.
5 p.m.
Clause 6 [Power of courts to make orders for preserving evidence, etc.]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 15:
Page 3. line 18, at end insert ("or
(c) the delivery up of property which is or may be the subject-matter of the proceedings or as to which any question arises or may arise in the proceedings.").
The noble Lord said: My Lords, I moved this amendment in Committee as Amendment No. 21. The noble and learned Lord on the Woolsack and I have been in helpful correspondence between Committee stage and today on the subject of these amendments which I moved in Committee concerning the Anton Piller jurisdiction. I desire to mention now that the noble and learned Lord has taken a favourable view of Amendments Nos. 24, 28 and 29 which I moved in Committee and has responded to them with his own amendments.
Amendments Nos. 21 and 26 which I moved in Committee correspond to today's Amendments Nos. 15 and 19. What I sought to achieve in tabling those two amendments in Committee, and what I seek today, is to address a particular problem which practitioners have drawn to my attention and which, in Committee, the noble Lord, Lord Meston, was able to confirm from his own experience in practice.
Under the existing Anton Piller jurisdiction, any property recovered from a respondent—and I emphasise these words,
"must be held for safekeeping by the applicant's solicitors".
That is what the order says. There are an increasing number of cases where the property recovered is needed immediately by the applicant for the purposes of his business. My concern was that, as the law presently stands, an applicant might find that the Anton Piller jurisdiction operates to interfere and obstruct his recovery of urgently needed property and to that extent would operate to defeat the objective of Parliament in its provision of the right to require an interim delivery up of property.
I emphasise "interim delivery up of property" because it is quite clear that Section 4 of the 1977 Act and the relevant rules of court contemplate that the delivery up of property can and should be as much an interim as a final measure.
In the correspondence to which I have referred, the noble and learned Lord on the Woolsack assured me that Clause 6 is not intended to limit in any way the existing jurisdiction of the court under Section 4 of the Torts (Interference with Goods) Act 1977 and Order 29, Rule 2A RSC to make interim orders for the delivery up of property as distinct from the mere preservation of property.
I shall press these amendments but if the noble and learned Lord confirms that it is his understanding that a party seeking Anton Piller relief is entitled also at the same time to move the court for other relief such as the interim delivery up of property under Section 4 of the 1977 Act, then I shall beg leave to withdraw them. I beg to move.
The Lord Chancellor: My Lords, I am grateful to the noble Lord, Lord Irvine of Lairg, for engaging in correspondence with me, which I believe was copied to other noble Lords who took part in our discussions about Anton Piller orders on which I have also had the great benefit of the very rapid and thorough advice of the Vice-Chancellor in whose division most of the orders are granted. By that, I do not mean that all applications are granted but that when orders are granted they are often granted in his division.
The situation is that Clause 6 is intended to confer a new jurisdiction on the court in relation to the statutory position in order to confirm what the court has done in exercise of its inherent powers in the past in relation to the entry of property and obtaining possession of the property.
My understanding is clear. The power to make an interim delivery order exists separately under the Torts (Interference with Goods) Act 1977 and is unaffected by this clause. There is no question of the court not being able to make an interim order under that Act as well as under this clause. Of course, the precise terms in which the Section 6 jurisdiction is exercised might well be affected by the application for the other order; for example, if the order were made in the terms indicated by the noble Lord, Lord Irvine of Lairg, in respect of the Anton Piller order, that would not fit very well with the sort of situation he mentioned. But I have no doubt that the court has the power to make the appropriate order using, as appropriate, the different jurisdictions which it has. I want to make it clear that

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my understanding—and I think that I can safely say that it is the understanding also of the Vice-Chancellor—is that those are distinct jurisdictions and that the power to exercise more than one of them at the same time is not in any way affected and it would be a matter for the court to consider.
As the noble Lord said, the ordinary rule is that when property comes forward, or is taken possession of under an Anton Piller order, an independent person is usually authorised to hold it. That is the normal situation that would need to be varied in the particular situation to which the noble Lord referred. I believe that that does happen in practice. Therefore, I hope that I am able to give in clear terms the assurance for which the noble Lord asked; namely, that the Anton Piller jurisdiction conferred by Clause 6 will be in addition to, and exercisable at the same time as, the other jurisdictions which the court presently has; subject, of course, to the court considering the appropriateness of that exercise and the terms in which it should occur.
Lord Irvine of Lairg: My Lords, on the basis of that explanation, which is admirably clear, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 16:
Page 3, line 21, leave out ("("the respondent")").
The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 17 and 18 and 20 to 24 inclusive, since they are all linked.
These amendments relate to a matter which was raised by the noble Lord, Lord Irvine of Lairg, in Committee and supported by other noble Lords. I have considered them in some detail, as I mentioned earlier, with my learned friend the Vice-Chancellor and I am grateful to him for his assistance on this point, which was given very clearly and speedily.
The main purpose of Clause 6 is to dispense with the fiction that the entry on the premises is with the consent of the owner/respondent. At present, the standard form of Anton Piller order refers to "the respondent" and others such as "employees" or others,
"appearing to have control of the premises".
However, this clause will have the effect that in future it is more clearly the court order which is the basis of the requirement to permit entry, not the implied consent of the owner. It will no longer be desirable to imply that the execution of the Anton Piller order is dependent upon the consent of the owner or a person whom he might have authorised to give consent on his behalf.
I understand also from the Vice-Chancellor that it is not always the practice that all the persons who are authorised to enter the premises under the order will actually be named in the order. They will be described in some cases by their function—for example, the supervising solicitor—or by reference to the numbers of those who are authorised to enter. The linked amendments make the necessary changes to a terminology and for clarification purposes.
Therefore, I believe that the noble Lord's amendment was well taken and that the changes which are made by these amendments meet the point completely and clearly. I beg to move.
Lord Irvine of Lairg: My Lords, I welcome the amendment which, as the noble and learned Lord has just explained, removes the word "respondent" from Clause 6(2). It makes clear the power to require any person to assist entry, and so on, who might be in a position to do so. I am grateful to the noble and learned Lord for observing that this amendment is directly responsive to an amendment which I moved in Committee as Amendment No. 24.
The intention of that amendment was to make it clear that the persons obliged to comply with an order were not only the respondent to the application itself but also other persons, such as employees and those in control of premises in the absence of the respondent. I believe that it is wise to leave out the word "respondent" because it implies a specific, named person. I therefore support the amendment, as I do the other amendments in the group which are linked. I should like to record the appreciation of these Benches for the fact that the Vice Chancellor, Sir Richard Scott, has so promptly provided his assistance on the points in relation to the Anton Piller jurisdiction raised in Committee.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 17 and 18:
Page 3, line 22, leave out first ("named") and insert ("described").
Page 3, line 22, leave out from second ("person") to ("is") and insert ("so described").
On Question, amendments agreed to.
[Amendment No. 19 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 20 to 24:
Page 3, line 32, leave out ("respondent") and insert ("person concerned").
Page 3, line 33, leave out ("named") and insert ("described").
Page 3, line 34, leave out ("named in the order") and insert ("so described").
Page 3, line 36, leave out from first ("any") to ("or") and insert ("person described in the order").
Page 3, line 36, leave out from second ("any") to ("is") and insert ("person so described").
The noble and learned Lord said: My Lords, I spoke to these amendments when dealing with Amendment No. 16. With your Lordships' leave, I beg to move.
On Question, amendments agreed to.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 25:
Page 3, line 38, leave out subsection (6) and insert—
("( ) An order under this section—

(a) is to have effect subject to such conditions as are specified in the order, and

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(b) may include, in addition to any relief specified in this section, any other order or direction which the Court has jurisdiction to make relating to the preservation or delivery up of evidence or property or any other subject-matter of the proceedings or as to which any question arises or may arise in the proceedings.").

The noble Lord said: My Lords, such an amendment was moved by me in Committee as Amendment No. 27. I move it again today. I believe the noble and learned Lord on the Woolsack to be of the view that the amendment is unnecessary because the court will retain its jurisdiction to make any other order which it now has power to make. In reply, no doubt the noble and learned Lord will wish to confirm that that is his understanding.
I would also ask the noble and learned Lord to confirm that it is his understanding that the court presently has power—and I believe that he has already in effect said so—in conjunction with, or as an ancillary to, an Anton Piller order to order the interim delivery up of goods to the applicant for immediate use by him. It is a fact that, in practice, an increasing number of cases are coming before the courts where the claimant requires, for the purpose of conducting his own business, documents, disks or dies which have been removed, say, by an employee for use in a rival business.
It would, therefore, be helpful if the noble and learned Lord would confirm, as I believe he has already done in substance, that, in the context of this amendment, the court does have power in an appropriate case to order, at the same time as making an Anton Piller order, the interim delivery of goods to the applicant for immediate use by him. That is to say that the court, subject to an appropriate application, can make an order appropriate to the circumstances of the case where the applicant has invoked a jurisdiction of the court. I beg to move.
The Lord Chancellor: My Lords, I believe that I have answered the question in substance, but I am happy to do so again in relation to the amendment now before the House. The purpose of the clause is to confer a jurisdiction on the court. The exercise of the jurisdiction conferred by this clause may be combined with the exercise of any other jurisdiction that the court has which it is appropriate to exercise at the same time. I certainly understand that to be the present position; namely, that the court has power. Where it has jurisdiction to make orders under more than one jurisdiction at a time, the terms of the order will need to be consistent with the exercise of those jurisdictions.
Accordingly, in my view the proposed clause is unnecessary; indeed, it might have another effect in that it could suggest that this jurisdiction was somewhat special in that it could be used in association with others. I believe that the general position is that jurisdictions which the courts have can, in suitable circumstances, be the basis of an order, even if more than one jurisdiction is invoked should the court think that suitable in the circumstances of the case.
Lord Irvine of Lairg: My Lords, on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 26:
Page 3, line 39, at end insert—
("( ) This section does not affect any right of a person to refuse to do anything on the ground that to do so might tend to expose him or his spouse to proceedings for an offence or for the recovery of a penalty.").
The noble and learned Lord said: My Lords, in moving the amendment I shall, with the leave of the House, speak also to Amendment No. 27. In Committee, the noble Lord, Lord Irvine of Lairg, and others, raised the question of whether there was any intention through this clause of changing the law on privilege against self-incrimination. I took the view then, as I do now, that there was no such intention; indeed, I certainly never had such an intention. However, it was thought sufficiently important in Committee that that should be made plain. Therefore, Amendment No. 26 addresses that point both plainly and clearly.
Amendment No. 27 deals with a slightly different point, but it is important and convenient to take both amendments together because, again, it is a question of what was intended by the clause. The question was whether the purpose of subsection (7) was to render the primary legislation subject to subordinate legislation. That was certainly not the intention. I would wish it to be plain that the purpose of the rules would simply be to supplement the statutory provision on points of practice and procedure. That being the case, and having reconsidered the matter, I now consider that the clause does not need to make any specific reference to the power to make rules. The amendment would cut out the provision which gave rise to concern in Committee. I beg to move.
Lord Irvine of Lairg: My Lords, we strongly support the amendments. They are responsive to the concerns I expressed in Committee, which I believe were supported by others, when moving Amendments Nos. 28 and 29 at that time. The effect of the amendments is to make it absolutely clear that Clause 6 is not to be taken as altering the law on self-incrimination. I desire to put on record again the fact that I entirely accept—as I did in Committee—that the noble and learned Lord on the Woolsack had no intention whatever to alter the law in relation to self-incrimination. I am happy to support the amendments which put the matter beyond any doubt.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 27:
Page 3, line 40, leave out subsection (7).
On Question, amendment agreed to.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 28:
Page 3, line 43, after second ("Court") insert—
("inspection" includes the inspection of data stored in computer readable form, and references to permitting inspection include permitting access to any such data,").
The noble Lord said: My Lords, in moving the amendment, I shall, with the leave of the House, speak also to Amendment No. 29 which is tabled in my name. I moved such amendments in Committee (as Amendments Nos. 30 and 31). I can assure your Lordships that I was well intentioned in moving the amendments at that time. I was proposing a definition of the word "inspection" so as to clarify the position concerning information stored in computer systems or otherwise in computer readable form, in order to ensure that a respondent or other person could be required to give access to any such information.
The second definition—that of the word "record"—was also aimed at clarifying the rights of an applicant. However, I know that case law already exists as regards the meaning of these terms and that the advice of the noble and learned Lord the Lord Chancellor is that it is desirable to leave room for development of the meanings of these expressions by the courts, without fixing any precise definitions, should the development of technology render that desirable. Nor would I have any desire to cast doubt on the use of those terms in other statutes where they are not defined in the manner proposed in these amendments.
Certainly, I would not wish to be the cause of any confusion about the meaning of "inspection" or of "record"; far less would I wish to put a brake on the meaning of these terms as expounded by the courts. However, I invite the noble and learned Lord, in responding to these amendments, to assure me, if he feels able, that Clause 6 in its present form enables a court to order a person to provide another with access to a computer system and to enable that other to make print outs or to copy data on to disks. I beg to move.
The Lord Chancellor: My Lords, I am grateful to the noble Lord for the way in which he has explained the amendment. I take the view that the meaning of "inspection" and "records" has grown over time to embrace the meaning which those terms have in a computerised context. I would also wish to avoid creating any remote impression that other statutory references to such terms do not extend to computerised data or records, or to data held on information systems called by some name other than "computers". Technology is developing all the time; language has to grow with it and so, too, the meaning which the courts give to such terms. I would consider that it is a necessary implication of the conferral of the powers granted by this clause that it would extend to enabling a court to order a person to provide another with access to a computer system and to enable that other to make print outs or to copy data onto disks. It is a necessary implication because the clause would be rendered ineffectual without it. I hope that in the light of that explanation the noble Lord will feel able to withdraw this amendment and that he will not wish to move Amendment No. 29, which this explanation is intended to cover.
Lord Irvine of Lairg: My Lords, on that basis I am content to withdraw Amendment No. 28. I shall not move Amendment No. 29. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 29 not moved.]
Schedule 1 [Civil Procedure Rules]:
[Amendment No. 30 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 31:
Page 6, leave out lines 10 and 11.
The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 14. I beg to move.
On Question, amendment agreed to.
Schedule 2 [Minor and consequential amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 32:
Page 7, line 37, after ("rules)") insert—
("(a) after subsection (3) there is inserted—
"(3A) Rules made under this section may make different provision for different cases or different areas, including different provision—

(a) for a specific court, or

(b) for specific proceedings, or a specific jurisdiction, specified in the rules.",.

and
(b) ")
The noble and learned Lord said: My Lords, the power to make rules of court in relation to family proceedings in the High Court and county courts is contained in Section 40 of the Matrimonial and Family Proceedings Act 1984. This amendment inserts a new subsection into that section which provides that such rules may make different provision for different areas or for specific proceedings or specific courts. This would allow the rules to provide for future pilot projects and would bring them in line with the civil procedure rules in respect of which a similar power is contained in paragraph 7 of Schedule 1 to the Bill. My learned friend the President of the Family Division has indicated his support for such pilots. It is desirable to provide express power for such pilots. I think we probably all agree on the value of pilots in some situations. I beg to move.
On Question, amendment agreed to.
Lord Ackner Lord Ackner moved Amendment No. 33:
Page 7, leave out lines 39 to 41.
The noble and learned Lord said: My Lords, this, happily, is the last of the amendments. It is concerned with the allocation of business between the High Court and the county courts. The effect of paragraph 4 to Schedule 2—which I seek to excise—which is headed "Minor and consequential amendments" is, as the explanatory memorandum indicates, to provide for the,
"negative resolution procedure to apply to orders made under section 1(1) of the Courts and Legal Services Act 1990 regarding the allocation of business between the High Court and county courts".
I remind your Lordships of the provisions of Section 1 of the Courts and Legal Services Act 1990. It provides that the Lord Chancellor,
"may by order make provision:—

(a) conferring jurisdiction on the High Court in relation to proceedings in which county courts have jurisdiction;

(b) conferring jurisdiction on county courts in relation to proceedings in which the High Court has jurisdiction:

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(c) allocating proceedings to the High Court or to county courts;

(d) specifying proceedings which may be commenced only in the High Court:

(c) specifying proceedings which may be commenced only in a county court;

(f) specifying proceedings which may be taken only in the High Court;

(g) specifying proceedings which may be taken only in a county court".

Section 120 of the Courts and Legal Services Act 1990 provides:
(I) Any power to make orders or regulations conferred by this Act shall be exercisable by statutory instrument …
(4) No instrument shall be made under section 1(1) … unless a draft of the instrument has been approved by both Houses of Parliament".
The affirmative resolution procedure required for orders under Section 1 of the Courts and Legal Services Act 1990 should—this is the purpose of the amendment—remain and not be removed. There are two main reasons for this. The powers given by Section 1 to which I have referred are far wider than either the existing rule making powers of the Supreme Court Rule Committee or the proposed rule making powers of the proposed unified rule committee. In particular, under Section 1 the Lord Chancellor may make provision conferring jurisdiction on county courts in relation to proceedings in which the High Court has jurisdiction; allocating proceedings to the High Court or to county courts; and specifying proceedings which may be commenced or taken only in a county court.
I have the support of the Bar Council in this measure. It is the belief of the Bar that any litigants and potential litigants would be concerned at any erosion of their right to a High Court trial. It is in the public interest that the affirmative resolution procedure be retained. Further, Section 120(4) providing for the affirmative procedure was enacted in November 1990; that is just over six years ago. We do not consider that there has been any sufficient change of circumstance in the past five or six years to justify an amendment.
I appreciate that it may be claimed by the Government that the minor additions to the jurisdictional arrangements effected by the increase of the small claims limit to £3,000 for all but personal injury cases attracted no parliamentary interest. That was no doubt because they were both minor in nature and not particularly controversial. Anything more significant would be a proper matter for public and parliamentary debate. I beg to move.
The Lord Chancellor: My Lords, as my noble and learned friend Lord Ackner indicated earlier, there was a major increase in the jurisdiction of the county courts following the 1990 Act and the use of the power in question. Since then the amendments have been comparatively minor and have attracted little attention. The Hansard report of the debate in this House on 16th December 1994 to the most recent amending order took two minutes of the House's time and provoked no questions. That does not seem a good use of Parliament's time. If people have questions, the negative resolution procedure is available.
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The power to make such orders is vested in the Lord Chancellor, not the rule committee, and this change is not related to the amendments regarding laws of court overriding enactments which I have tabled.
The Select Committee on Delegated Powers and Deregulation supported the justification for the change from affirmative to negative procedure. Its report expressly deals with the matter; and it is familiar with the conditions under which these matters should be either affirmative or negative. It does not foreclose a decision to the other effect by the House. However, in my submission to your Lordships, the fact that the major change has taken place and that if any change in the future were controversial it would certainly attract attention is sufficient safeguard. In the meantime, the sort of orders that we propose are unlikely to require the attention of an affirmative resolution. That being supported by the committee in charge of considering the matter from the point of view of your Lordships' House, I venture to suggest that the amendment should not be given effect.
Lord Ackner: My Lords, I am bound to say that I am somewhat disappointed in my noble and learned friend's reply. However, in the circumstances, I do not propose to press the amendment, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

High Court and County Courts Jurisdiction (Amendment) Order 1996
5.35 p.m.
The Lord Chancellor The Lord Chancellor rose to move, That the draft order laid before the House on 25th November be approved [5th Report from the Joint Committee].
The noble and learned Lord said: My Lords, the draft order contains three amendments to the High Court and County Courts Jurisdiction Order.
The first amendment, Article 2, will give the county courts jurisdiction to determine applications under Sections 13 and 14 of the Trusts of Land and Appointment of Trustees Act 1996. This will not confer a new area of jurisdiction on the county courts, but will maintain their current jurisdiction. The amendment is necessary because in January 1997, Section 14 of the Trusts of Land and Appointment of Trustees Act 1996 will replace Section 30 of the Law of Property Act 1925, under which the county courts currently have a jurisdiction not limited by the value of the property. I wish to retain this unlimited jurisdiction for the county court in these matters.
Section 30 concerns applications to the court in the event of a dispute about the exercise of their powers by trustees for sale. Section 14 of the Trusts of Land and Appointment of Trustees Act 1996 directly replaces Section 30. Section 13 of the 1996 Act enables the court to approve the regulations by trustees of land of the right to occupy any land subject to the trust conferred by Section 12 of the Act. There will frequently be a great deal of overlap between an application under this section

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and an application under Section 14. It would be appropriate, therefore, for the county court to have the same jurisdiction.
The second amendment, Article 3, will enable a larger proportion of county court creditors to opt for enforcement by sheriffs. At present, only creditors with a county court judgment for more than £2,000 may currently transfer to the High Court for execution against goods to be carried out by the sheriffs, rather than the county court bailiffs. Article 3 reduces the limit for such transfers to £1,000.
The third amendment, Article 4, relates to the county courts' jurisdiction in road traffic debt cases. This involves the registration of parking penalty charges in the county court for enforcement. The Road Traffic Act 1991 provides for the resolution of any disputes about the penalty charges, which require the personal attendance of the vehicle owner, to be dealt with not by the county courts but by a separate adjudication system. This scheme was initially confined to the London boroughs, but has now been extended to areas outside London. The jurisdiction order currently confers jurisdiction only on Cardiff County Court for the registration and recovery of parking penalty charges. Registration is a process facilitated by a computer system which many participating local authorities use. That computer system was located in Cardiff County Court but is now in Northampton County Court which houses the Court Service's other centralised county court computer systems. Article 4 allows this system to issue proceedings in the name of Northampton County Court in order to bring together the judicial and administrative functions.
Article 1 cites the dates when the amendments I have outlined shall come into force. I commend this measure to your Lordships. I beg to move.
Moved, That the draft order laid before the House on 25th November be approved [5th Report from the Joint Committee].—(The Lord Chancellor.)
On Question, Motion agreed to.

Hong Kong Economic and Trade Office Bill
5.38 p.m.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Baroness Chalker of Wallasey.)
On Question, Motion agreed to.

European Police Office (Legal Capacities) Order 1996
Baroness Chalker of Wallasey Baroness Chalker of Wallasey rose to move, that the draft order laid before the House on 13th November be approved [4th Report from the Joint Committee].
The noble Baroness said: My Lords, first, I take this opportunity to remind the House that in July 1995 European Union member states signed a draft convention based on Article K.3 of the Treaty on European Union on the Establishment of a European Police Office; or familiarly, the "Europol Convention". This convention was published as a Command paper (Cm 3050) and laid before Parliament on 8th December 1995.
Under the convention, Europol staff will have no operational powers, but will focus on the exchange and analysis of intelligence relating to serious international crime. A single national unit in each member state will be responsible for providing Europol with relevant intelligence and for acting as the link to law enforcement agencies in the member state. The National Criminal Intelligence Service will undertake this role in the United Kingdom. Europol staff, assisted by national liaison officers, will be responsible for centralised analysis of information obtained and for disseminating the results of this work. The national units will remain under national control. The Director of Europol will be its legal representative and he will report to a management board comprised of representatives from all member states.
The convention also makes detailed provision for the protection of data held by Europol and will establish an independent joint supervisory body drawn from national data protection supervisory bodies.
These terms are confusing and questions were raised in another place as to their meaning. Therefore, perhaps I may explain. The national unit is the sole contact point in each member state for communicating with Europol. The UK's national unit will be the National Criminal Intelligence Service (NCIS) with which this House will be familiar from the Police Bill currently in Committee. Each member state shall also have a national supervisory body. This shall monitor the data exchange between the national unit and Europol. We intend to designate the data protection registrar as the UK's national supervisory body. A nominee from each member state's national supervisory body shall make up the joint supervisory body. This shall have the task of monitoring Europol's compliance with the data protection regime set out in the convention. I hope that that explanation is of some help. I thought it important to tackle it at the outset.
The convention will come into force when ratified by all EU member states. The United Kingdom fully supports the establishment of Europol and is committed to creating an organisation that can work effectively and add real value to existing European police and customers co-operation. To emphasise this support we wish to be among the first member states to ratify the

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convention and to make an announcement to that effect at the forthcoming European Council in Dublin on 13th-14th December 1996.
To do so, however, we must first make an Order in Council under Section 1 of the International Organisations Act 1968 to enable us to give effect in UK law to Article 26 of the convention which provides that Europol shall enjoy legal personality in each member state. We propose to do so my means of the European Police Office (Legal Capacities) Order 1996, which is the sole purpose of the draft order before the House today.
I very much hope that your Lordships will approve this draft order, enabling us to achieve earlier ratification of the convention, and thereby underlining our commitment to Europol. I commend the draft order to your Lordships' House.
Moved, That the draft order laid before the House on 13th November be approved [4th Report from the Joint Committee].—(Baroness Chalker of Wallasey.)
Lord McIntosh of Haringey: My Lords, the House will be grateful to the Minister for that introduction and particularly for the way in which she extended the introduction to clear up some of the questions which were raised in another place. As she knows, we fully support the objectives of the order; we support Europol and British participation in it, and we support the intention of the Government to act quickly enough to be able to be the first member state to ratify membership of Europol at the Dublin Summit.
The Minister will also know that we support the proposal that the National Criminal Intelligence Service should be the national unit for this purpose and that the Data Protection Registrar should be the national supervisory body for that purpose. She may also have been instructed that there was debate on this issue when the Police Bill was considered in Committee at the beginning of last week, when an Opposition amendment which I moved sought to clarify the role of the Data Protection Registrar and to clear up what appears to us to be a fault line between the role of the Data Protection Registrar and the criminal records agency which is to be set up under Part V of the Police Bill. It is our view that the role of the Data Protection Registrar, as the national supervisory body, should be brought into line with the role of the criminal records agency. The Police Bill provides that there shall be a criminal conviction certificate—that is the simplest form—which will in certain circumstances make it possible for employers of any kind to require applicants for jobs to produce a certificate setting out their unspent criminal record. The problem with the data protection registry is that what is called enforced subject access applies and allows employers to force employees to use their rights under the Data Protection Act 1984 to gain access to their own criminal records and thereby reveal them to prospective employers. The problem which in turn arises from that is that the records which are available under enforced subject access go wider than the information which is to be provided by a criminal conviction certificate. The difficulty is that we have these two provisions side by
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side: enforced subject access under the Data Protection Act and the criminal conviction certificate proposed under the Police Bill.
I appreciate that this is not her area, but I hope that the Minister will not mind my saying that this is an unsatisfactory state of affairs. If the Police Bill were to get rid of enforced subject access—as it is the view of the Data Protection Registrar and indeed the view of the Home Affairs Select Committee of the House of Commons that it should be got rid of—then the situation would be much clearer. I have taken advantage of this order, perhaps unfairly, which we support, to raise again the issue of potential conflict between the responsibilities of the Data Protection Registrar and those of the Home Office, as the home of the criminal records authority. With that proviso, we support the order.
Lord Wallace of Saltaire: My Lords, my party welcomes and supports this order, while making two caveats and notes. This is a further pooling of British sovereignty. I note that various Members of this House, who perhaps ought to be in their place to oppose it, are, oddly, not here on this occasion. There has been very extensive growth of co-operation between police forces, customs services and others over the past 25 years across Europe, largely without any means of accountability or reporting to national parliaments. I welcome this regularisation of what was already taking place.
The problems of accountability and transparency are not entirely resolved in this convention as it stands. As the Minister will know, we were strongly in favour of the European Court of Justice being more closely associated with Europol. What will evolve under the Europol Convention may still leave a very considerable gap between what happens and what may be reported to this House and other national parliaments. With the Government's preference for intergovernmental co-operation, this may fall between national accountability and European accountability.
Baroness Chalker of Wallasey: My Lords, I am grateful to both noble Lords for the welcome they have given to this order this evening. We should recognise that it is an important step forward for Europol. Criminal activity has never been constrained by national boundaries, and, as time goes by, the techniques utilised become more and more sophisticated. That is why we need effective joint action to deal with these problems. That is the real opportunity which Europol itself provides.
The United Kingdom along with, so far as I know, only one other European country—namely, the Netherlands—and a few others in the rest of the world, has already developed its own advanced criminal intelligence system. Europol was essentially our idea; we wrote the very first draft of the convention. Why? First, because in the fight against international organised crime the key to success lies in targeted action, based on effective intelligence; and, secondly, because it is enormously important to ensure that the experience and expertise we have gained in crime analysis and the

911
benefits to be derived from it are not limited by our national boundaries or, perhaps more to the point, those of any other country, especially when it comes to our near geographical neighbours.
It is equally important to say that I emphatically share the view that the benefits which come from this type of co-operation in tackling serious transnational crime must be balanced by real protection of the rights of the individual and proper democratic accountability.
I understand very well the points that the noble Lord, Lord McIntosh, made. Regarding enforced subject access my noble friend Baroness Blatch has agreed to look at this matter at the Report stage of the Police Bill.
I should add, in view of the comments of the noble Lord, Lord Wallace, that, throughout the negotiations leading to the signature of the convention and the present negotiations over implementing measures, we have never ceased to emphasise the need for effective avenues of redress through national courts where an innocent individual has suffered injury. That is the very purpose of the order we are debating today. I know that this has been a matter of concern, perhaps to others outside your Lordships' House, but I think it is worth underlining the point in this short debate.
Maintaining the balance of operational effectiveness and protection of the individual is a proud tradition of our British criminal justice system. I can assure your Lordships that we are maintaining and promoting that tradition in the important work that we are undertaking. We are doing so with other member states because we want to promote more effective police co-operation, which will help us to defeat international crime. We shall do so in the subsequent supervision and regulation of the activities and development of Europol. My colleagues and I will be answerable to this House for the activities of Europol as we are for our own National Criminal Intelligence Service and our police services.
This has been a useful short debate. I am grateful to both noble Lords for their comments. I hope that I have adequately addressed the points that they made. I commend the order to your Lordships.
On Question, Motion agreed to.

European Communities (Definition of Treaties) (Europe Agreement establishing an Association between the European Communities and their Member States and the Republic of Latvia) Order 1996
5.50 p.m.
Baroness Chalker of Wallasey Baroness Chalker of Wallasey rose to move, That the draft order laid before the House on 26th November be approved [5th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move the draft order in Council concerning the Europe Agreement establishing an association between the European Community on the one hand and Latvia on the other; and thereafter similar orders with Lithuania and Estonia. I shall speak to all three orders together
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because they cover essentially the same purposes, but of course I shall separate the answers to any questions that the noble Baroness may have on these orders when I come to reply.
These three orders specify the agreements as European treaties under Section 1(3) of the European Communities Act 1972. They are mixed competence agreements: that is to say, some of their provisions fall within Community competence and others fall within the competence of member states. They therefore require ratification by each and every European Union member state and the assent of the European Parliament before they may enter into force. In the case of the United Kingdom, the draft orders need to be approved by both Houses so that we may ratify the agreements.
The collapse of the Iron Curtain in 1989 led to an historic opportunity to bring together again the whole family of Europe. The European Union has, since then, been pursuing new relationships with the countries which have emerged from the collapse of the monolithic Soviet system as well as with the nations of central Europe. The Baltic states have regained their independence. They have worked hard and fast to establish their position as European nations. The United Kingdom has been one of their strongest supporters, offering through the Know-How Fund a valuable contribution to the transition process. Within the European Union we have worked hard to create the conditions which will lead, through the pre-accession strategy agreed by the European Council at Essen in December 1994 and through the support of the PHARE programme, towards membership for all countries with Europe Agreements.
The agreements before your Lordships today are vital to the process of European Union enlargement. Through these agreements, the European Union and its member states will build a closer relationship with the Baltic states, increasing trade and economic co-operation, engaging in political dialogue and opening up co-operation across the whole range of the European Union's business.
As with the six central European countries whose Europe Agreements are already in force, we look forward to building through the Europe Agreements a path for the Baltic states to full and active membership of the European Union. We shall continue to support and assist Estonia, Latvia and Lithuania along the way.
This is a debate which is good news: good news for us, good news for the European Union and very good news for the three countries of Latvia, Lithuania and Estonia. The agreements before your Lordships' House, beginning with the agreement for Latvia, are vital to that process. I commend first the order on Latvia to your Lordships.
Moved, That the draft order laid before the House on 26th November be approved [5th Report from the Joint Committee].—(Baroness Chalker of Wallasey.)
Baroness Blackstone: My Lords, I am most grateful to the Minister for introducing the orders.

913
The agreements seem to be broadly similar to those that we discussed earlier this year on a number of other former republics of the Soviet Union, at which time I raised a number of detailed questions about them and was very glad to receive satisfactory answers. So I do not intend to ask any detailed questions on these particular orders.
However, I shall make one comment to the Minister. It is the case, of course, that some Eurosceptics, particularly in her party—there are very many more in the Minister's party than there are on this side of the House—seem to have the view that widening is a way of avoiding deepening. I am sure the Minister would want to resist any such interpretation as the purpose of these agreements. That is not what they are about.
Let me also say that I am extremely glad that the United Kingdom Government have been such a strong supporter of the Baltic states. As the Minister said, they are countries which have recently gained their independence and escaped from the somewhat repressive and monolithic rule to which they were subjected under the former Soviet Union. They are countries which are both geographically and culturally very much part of northern Europe and have close links especially with Sweden and Finland, which are now members of the European Union.
The Minister mentioned the Know-How Fund and the extent to which it had been used to support developments in Latvia, Estonia and Lithuania. Can she perhaps tell the House whether there are any new proposals under the Know-How Fund which will help to take further forward the proposals in these agreements?
On this side of the House we very much look forward to the eventual enlargement of the European Union to include all three Baltic states. We certainly owe it to all three countries to do all that we can to help them develop a market economy and sustain a strong and healthy democracy.
We also welcome the fact that the agreements cover social and cultural co-operation as well as economic and financial co-operation. That means that there ought to be new opportunities for British business. I do not know whether the Minister can comment on whether she is aware of those opportunities now being taken up in any particular sectors, but I hope that they will lead to new joint ventures and more investment by UK companies in the Baltic states as well as an increase in exports.
Membership of the European Union is particularly important to the Baltic states, since any decision to enlarge NATO which may be taken next year or the following year is extremely unlikely to include them. Perhaps the Minister would like to confirm that. As I understand it, that is the position.
Finally, perhaps the Minister can give some indication as to the timing of the ratification of the agreements by both the European Parliament and other member states.
I end by very much welcoming the agreements and the proposals that they contain.
6 p.m
Lord Wallace of Saltaire: My Lords, on behalf of my party I welcome these agreements. I believe this takes us up to 10—I have not yet checked whether we have to ratify the Slovene agreement. It also takes us along the road towards substantial further enlargement of the European Union. I too underline the strong statement in the Europe Agreements of commitment and conditionality on political and civil rights in those countries which is causing some difficulty for Slovakia as another Europe-associated state.
I underline what the noble Baroness, Lady Blackstone, said in regard to the level of confusion over enlargement that we see in many governments, and certainly the considerable confusion over the relationship between enlargement of NATO—now moving ahead rather rapidly—and enlargement of the European Union. Ten days ago in Brussels I heard a senior American diplomat say vigorously that the United States expects the European Union to move ahead rapidly with enlargement to the three Baltic states precisely because they cannot be considered as members of NATO. That is a recipe for a poor approach to enlargement. Perhaps the Minister can assure us that the Government will keep us informed as often as possible of that disjointed approach towards opening up the western European institutions to eastern Europe.
I was disturbed to see the President of the Commission quoted in the Financial Times last week as saying that we may see one or two east European states joining in the year 2003. That is one occasion on which I shall be happy to know that the British Government protested to the Commission about the statement he made, which was not contradicted by members of his Cabinet.
Of the three states, Estonia is the most advanced. It has a good case for being within the first group to join the European Union, and I hope that Her Majesty's Government are pressing its case to be alongside Poland, the Czech Republic and Hungary as those that will be moving towards early membership.
Baroness Chalker of Wallasey: My Lords, I thank the noble Baroness, Lady Blackstone, and the noble Lord, Lord Wallace, for their remarks. As with previous orders that we have debated in your Lordships' House, we all know that these orders are not only in the interests of the three countries—Latvia, Lithuania and Estonia—but also very much in the interests of the UK and the European Union as a whole.
A few questions were asked of me during this short debate and perhaps I can seek to explain what is going on and say a little about timing. The interim agreements for the Baltic states are already in force, as your Lordships will know. They give early effect to the trade provisions of the Europe Agreements, and all other provisions of Europe Agreements, falling within sole Community competence, pending the ratification and coming into force of the latter. Those

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provisions do not require ratification. The associates can benefit quickly from trade liberalisation, and it is clear that they have done so.
The noble Baroness, Lady Blackstone, spoke about trade. Trade with Estonia, to which the noble Lord, Lord Wallace, alluded, is growing rapidly. Our exports to Estonia are up 105 per cent. to £39 million this year so far, and those figures are now three months old. Imports are up 48 per cent. to £113 million. Trade is growing rapidly with Latvia, too: exports are up 170 per cent. to £56 million so far this year and imports up 66 per cent. to £199 million. It is of note that the United Kingdom is the largest foreign investor in Latvia, in the modernisation of the Latvia telecom system which is being carried out by Cable & Wireless with Telecom Finland. In Lithuania, again trade is growing rapidly: exports are up 135 per cent. to £57 million so far this year and imports up rather less-2 per cent.—to £124 million this year. Trade is therefore beginning to roll nicely, which is good both for us and for the three Baltic states individually.
The noble Baroness, Lady Blackstone, asked whether we had new proposals for the Know-How Fund, which has already been doing great work in helping all three Baltic states to prepare for eventual access to the European Union. That is the new priority sector for the Know-How Fund. Some projects, such as the training of lawyers, giving advice and assistance to the judiciary, are already underway. A number of other projects are in the preparation stage. Since none of them have been decided one way or the other, it is perhaps better that I write to the noble Baroness when there is any advance on the current situation. However, I can assure her that they look at different aspects of European Union integration, and the Baltic states are benefiting from specific applications of the Know-How Fund just as other applicant states have already benefited. The priority in the "non sectors", as they are called, are agriculture, financial services, small and medium enterprise development, energy and good government. Those are continuing well. There will be more to say about them eventually.
As to when the three Baltic states may eventually join, I am not in a position to give any undertakings. We know, as the noble Lord, Lord Wallace of Saltaire, said, that Estonia is preparing speedily. Whether or not it will be in the first wave I cannot say at this moment. The fact that it is preparing so thoroughly is good news and should encourage our partners in the European Union to give it as much help as we are seeking to do.
The noble Lord, Lord Wallace, also asked about defence matters—security is obviously essential for the Baltic states. It has not yet been decided whether or not the Baltic states will join NATO. There are a number of countries also eager to join NATO. The guiding principle is that the alliance should be strengthened by enlargement. That is the consideration taken in the North Atlantic Council whenever the future is discussed. There will be continual encouragement, but NATO is determined that the admission of new members must not mean less security for those not invited, nor must it mean new
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dividing lines in Europe—a philosophy with which I know the noble Lord, Lord Wallace, agrees. We are committed to NATO's work to broaden and deepen the military and political dimensions of Partnerships for Peace. That will be an integral part of the European architecture, not a consolation prize for those who do not happen to join NATO.
The noble Baroness, Lady Blackstone, could not resist a little tease when she rose to her feet. The difference between her party and mine is that when people in this party disagree they speak up all the time; in her party they are hiding it away until sometime next year. If she were as sure as I am of what some of her Back-Benchers were up to she would not look as happy and contented as she does. However, that is a long way from these excellent orders. I commend the order to the House.
On Question, Motion agreed to.

European Communities (Definition of Treaties) (Europe Agreement establishing an Association between the European Communities and their Member States and the Republic of Lithuania) Order 1996
6.9 p.m.
Baroness Chalker of Wallasey: My Lords, I beg to move.
Moved, That the draft order laid before the House on 26th November be approved [5th Report from the Joint Committee].—(Baroness Chalker of Wallasey.) On Question, Motion agreed to.

European Communities (Definition of Treaties) (Europe Agreement establishing an Association between the European Communities and their Member States and the Republic of Estonia) Order 1996
Baroness Chalker of Wallasey: My Lords, I beg to move.
Moved, That the draft order laid before the House on 26th November be approved [5th Report from the Joint Committee].—(Baroness Chalker of Wallasey.)
On Question, Motion agreed to.

Statement of Changes in Immigration Rules
Lord Dubs Lord Dubs rose to move, That the Statement, laid before the House on 31st October, be disapproved.
The noble Lord said: My Lords, on examining the changes in Immigration Rules, at first sight they seem reasonably straightforward, but on closer examination the implications are more complex than that. I have to say that it is not always clear in respect of some of the

917
provisions whether we are dealing with an entirely new provision or whether we are dealing with a tidying-up based on many of the discussions we have had in this House and in the other place earlier this year. In one sense, we have already had a good deal of debate about income support and other measures for asylum seekers. Therefore, if by some chance in this debate noble Lords—myself included—make points which are not new I am sure that the Minister will be the first to clarify the matter.
It seems to me that these provisions clearly affect asylum seekers. That is to say, they affect those asylum seekers who would like to claim child benefit and who did not apply for asylum on first entering the country. In other words, they are defined as individuals who entered the country, possibly with a visa as a visitor; possibly they did not require a visa and went to the country and then claimed asylum and, on the arguments of the Government, by implication they came in on the understanding that they would not have recourse to public funds. Therefore, as these rules change the definition of "recourse to public funds", it means that they will in future be denied child benefit.
Similarly—and I know that we had this discussion a few months ago—any individual who claims asylum at the port of entry who, some months or years later, is then refused asylum and wishes to appeal will also be in the position of not being entitled to child benefit as well as other benefits. If that argument is correct it seems to me that because children, by definition, are involved in claims for child benefit there will be a pretty heavy additional burden on local authorities.
The Government have already announced that some additional funds will be made available to local authorities, but it appears that we are in a rather confused situation, given that the Government are appealing against some of these matters in the Court of Appeal. I understand that will be in the middle of January next year.
We are in the position, therefore, where we are asked to approve changes in the Immigration Rules which affect children, but in one sense it is not clear what the effects will be if the Court of Appeal does not uphold the Government's appeal next month. In any case, perhaps the Minister could say a little more about the effects of these rule changes on local authorities; that is, whether this will impose an additional burden on local authorities or whether that has already been taken into account by the extra money that the Government have given, although I know that the extra money is only to meet part of the cost.
We have some other changes in the Immigration Rules, which were laid in August. We are not able to deal with them this evening, although they did affect spouses. The new wording of the rule changes under discussion this evening affects postgraduate doctors and dentists, au pairs, seasonal workers and family members of these individuals. One difficulty, as I see it, is that the Home Office would have no discretion even in the most compassionate cases to enable child benefit to be legally claimed.
Perhaps I may put two hypothetical examples to the Minister. Let us take the case of a man who is a British citizen with a wife and child who are not British citizens. The wife and child enter the country together in order to join the British citizen father and are given 12 months' leave to enter. The father claims child benefit, as he is entitled to do. At the end of 12 months' limited leave the mother and child apply for indefinite leave to remain, as would be normal. A requirement of obtaining such limited leave is that the child can and will be maintained and accommodated adequately without recourse to public funds.
In the case of the spouse's application the wording of the requirement is,
"the parties will be able to maintain themselves and any dependants adequately without recourse to public funds".
The difficulty here, if I understand the new rule changes, is this: can the requirement be met if the father has already been claiming child benefit, or will child benefit be disallowed from the date that the wife and child apply for indefinite leave to remain?
Perhaps I may give another example. It is a slightly simpler one. Let us take the situation of a married couple, the husband having been given permission to enter the UK temporarily. Let us suppose that, for family reasons, he leaves the UK for a period exceeding eight weeks, leaving his wife, who is not a British citizen, behind, but the wife has not obtained indefinite leave to remain. In that situation, if this provision is enacted could the wife's entitlement to child benefit be challenged? In other words, would she lose the right to child benefit because of the way in which these rules are drafted?
I hope that those examples are not too abstract. I believe that they could apply to real situations and I am concerned as to the effect that the rule changes may have.
My third question is simply this. Can we have an assurance that people who properly claim child benefit at the present time will not have that entitlement altered by the passage of these changes in the Immigration Rules? Is there a straightforward exemption from any of the provisions if people are already getting child benefit and nothing changes except that these rules have been enacted? They have already been enacted because I understand that they came into effect on 1st November.
Finally, perhaps I may deal with another aspect of the changes in the rules relating to the revocation of entry clearance. In the second paragraph of the rule changes an entry clearance may be revoked under certain circumstances by the entry clearance officer. One situation is where the holder's exclusion would be conducive to the public good. I am not concerned with that aspect but with two others. One is where the entry clearance officer is satisfied that false representations were employed or material facts not disclosed for the purpose of obtaining the entry clearance. It is rather difficult to see how an entry clearance officer at the port of entry could possibly discover that false representations had been made at the time that entry clearance was sought. That seems to be a difficult

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process. If it never happens in practice and it is a theoretical safeguard, well and good, but it is difficult to envisage circumstances in which this could clearly and effectively be applied.
Similarly, I am concerned about the other condition referring to a change of circumstances since entry clearance was issued. Perhaps there is a way in which the entry clearance officer could discover that at the desk at Heathrow or at Dover, but I find it hard to see how. This is important because I understand that if entry clearance is revoked it is as if entry clearance had never been granted. Therefore, there is no right of appeal against such a decision by the person wishing to enter the country. A decision made in these circumstances by an entry clearance officer ought at the very least to be subject to some form of scrutiny rather than an immediate decision, possibly made at the entry desks at Heathrow Airport after an all-night flight. It is pretty onerous to say "You have no recourse at all; you have no safeguards against such a refusal."
I appreciate that there are other issues in these rules and I am concerned that we should scrutinise them adequately. I hope that the Minister will be able to meet some of my anxieties.
Moved, That the Statement, laid before the House on 31st October, be disapproved.—(Lord Dubs.)
6.19 p.m.
Lord McIntosh of Haringey: My Lords, the House should be grateful to my noble friend Lord Dubs for raising these issues today and for the care he has taken to expose some of the problems which arise from the changes in the Immigration Rules, which, as he said, have already come into effect. He covered quite a number of the substantive points which give cause for concern but I have a number of others which I should like to raise with the Minister. Changes have been made and further changes could be made. Therefore, any opportunity for parliamentary scrutiny to produce better rules would be to the benefit of this country as well as of people coming to this country.
The basic starting point is that those who have leave to enter this country as visitors or to study and work have to convince the authorities that they will maintain and accommodate themselves and any dependants without recourse to public funds. That has always been interpreted as meaning that they will not have access to housing, income support, family credit, council tax benefit or housing benefit. The changes to the rules mean that two categories of benefit are added to the list of what is called public funds; first, child benefit, to which my noble friend has referred and which I do not need to cover again, and, secondly, disability benefits, including attendance allowance, severe disablement allowance, invalid care allowance, disability living allowance and the non-means tested benefit and disability working allowance. They have also added the income-based job seeker's allowance.
The argument for increasing the definition of "public funds" is no doubt the cost to the public of claims on public funds, but the existing categories of public funds have all been in effect basic survival benefits—those
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which apply to everyone and which are supposed to be saved by pledges of self sufficiency when people come to the United Kingdom. On grounds of cost, I should have thought it less reasonable to add to them the categories of disability allowance and child benefit which apply only to severely disabled people or to people with children. In any case, disability attendance allowance and disability living allowance are available by the existing rules only to people who are ordinarily resident in the United Kingdom and have been here for not less than 26 out of the past 52 weeks. That must exclude a very substantial number of those people who would be affected by these changes in the rules.
We are talking here about people who have been admitted to the United Kingdom and whose circumstances change; for example, those who become disabled after entry to the United Kingdom. Surely those people should not be penalised. They have convinced the authorities that they are self-sufficient but for particular reasons—in particular, disability—they are in need of a small amount of extra help. Surely it is wrong to extend the definition of "public funds" in this way. Surely the cost of not doing so would not be excessive.
My noble friend referred to the new power to revoke entry clearance. Presumably, the intention is to revoke entry clearance where false representations were employed, where a change in circumstances has removed the base of the claim or when, to use the words of the Asylum and Immigration Act,
"the holder's exclusion would be conducive to the public good".
These changes can apply only to the period between the grant of entry clearance and the period of travel. The criticisms that we had of these provisions at the time of the passage of the Asylum and Immigration Bill still apply now. It is unfair that revocation can be made whether or not the holder of the entry clearance was aware that false representations had been made or that there had been material non-disclosure. If it was wrong then, it is wrong to extend it in the way that has been done now.
In any case, even if someone has come in as a result of poor advice or untruths told by his sponsor and the sponsor has made false representations, he ought to have an opportunity to make the position clear at the time of entry. The additional problem with this is that there is no appeal against revocation. We are in the position that we debated at the time of the passage of the Asylum and Immigration Bill that the lack of an appeal structure is not only unfair in itself but is likely to lead to appeals to the High Court in the form of judicial review which could be avoided if there were an effective appeal structure.
I do not think I have anything much more to add to what my noble friend said about the categories of maintenance and accommodation requirements. As he said, it is extended beyond visitors, students and student nurses to a wide range of other people, including postgraduate dentists and doctors, au pairs, seasonal workers and prospective students. What is happening here is that the process of criminalising these temporary categories which was introduced in the Asylum and Immigration Act 1996 is being extended. That is thoroughly undesirable.

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It is not even necessary, because there is already provision in the existing rules for ensuring that people coming to the United Kingdom will be self-sufficient. In paragraph 35 the rules provide for a sponsor to give a written undertaking to be responsible for the maintenance and accommodation of a person seeking leave to enter, or variation of leave to enter, or remain in the United Kingdom. Entry clearance officers have a discretionary power to refuse entry clearance where there is a refusal to give such an undertaking. Income support which is paid to a person in respect of whom an undertaking was given can be recovered from the sponsor. Why is not that power more widely used? Is it not a better way of safeguarding public funds than penalising the holder using the criminal law?
My final point is concerned with the definition of "minor" for asylum purposes. The definition in the Asylum and Immigration Act is a person who is under 18 or, in the absence of documentary evidence, appears to be under that age. In other words, the onus is on the applicant to prove that he is under 18. When this matter was debated on 20th June this year at the Report stage of the Asylum and Immigration Bill, the noble Baroness, Lady Blatch, said that she would consult the Department of Health as to whether further guidance concerning the methods of determining a minor's age was needed. Has that happened? Will the Government consult more widely? If not, why has it not happened, and why are we seeing the extension of this unsatisfactory definition to the Immigration Rules?
My noble friend has performed a valuable service. The questions we have raised deserve answers.
6.28 p.m.
Lord Avebury: My Lords, I agree with the noble Lord that it was useful for the noble Lord, Lord Dubs, to put down the Motion to enable us to consider this statement. As he rightly said, many issues are raised which are not clear at first sight. After several days of careful study, there are matters which are not crystal clear in my mind and on which I should like to put questions to the Minister.
We do not object in principle to the idea that people given limited leave to enter the United Kingdom should not be eligible for social security benefits. However, what the Government are saying, as I understand them, is that no one with limited leave to remain or to enter should ever have recourse to public funds. We do not accept that proposition, as the Minister will recall from the debates we had on the Asylum and Immigration Act earlier this year.
We believe that different considerations apply to persons whose limited leave to remain in the United Kingdom extends over a period of several years than to those who come here as short-term visitors who are normally given leave to enter for a maximum of six months in the first instance, extendable to a year at the most. That is not to say that every person who enters in a capacity other than that of visitor should be entitled to benefit, but that there may be some exceptional circumstances in which it would be right for them to be eligible.
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Before commenting on the statement itself, I should like to point out that to be certain of knowing what it means, one has to look at no fewer than seven other documents which are referred to in the first paragraph of the Statement of Changes in Immigration Rules of 23rd May 1994 and the amending statements which are listed there.
Why do not the Government publish consolidated statements each time so that the persons concerned with these matters, and their advisers, as well as the officials, can refer to a current and up to date statement of the rules, as amended, in a single document? Better still (and I gave the noble Baroness notice that I was going to put this question to her) why not publish the consolidated—I notice that the noble Baroness is shaking her head. I telephoned her office to say that I was going to raise this point. I apologise if the message did not get through to her. Why are the consolidated rules not published on the web page which already exists at the address "http://www.open.gov.uk/home_off/ind.htm". I say that so it is on the record, and if anyone wants to look it up they can do so in Hansard.
It is commendable that the Government have started to publish material electronically and to make it available to the public in this form. As the noble Baroness may know, the right honourable Roger Freeman has recently issued a Green Paper asking for comments on the way it has been done so far and the strategy for taking it further. That will be a very good example of the kind of information that ought to be made available electronically on the already existing web page. The amount of work required to do that will be very small.
Under the statement that we are now looking at, together with the changes set out in the earlier statement to which the noble Lord, Lord Dubs, referred (HC 3365) any person who requires leave to enter or remain in the United Kingdom is effectively prohibited from claiming benefits of all kinds. Under that earlier statement, an immigration officer can impose on such a person a condition requiring him or her to maintain and accommodate himself and any dependants without recourse to public funds. The statement that we are now considering extends the meaning of the term "public funds".
Noble Lords may remember that in the Notes on Clauses for the Asylum and Immigration Bill, exceptions to the restrictions on entitlement to child benefit were to be prescribed for refugees, persons granted exceptional leave to remain and the nationals of states party to certain international agreements. That was confirmed by the noble Lord, Lord Mackay of Ardbrecknish, in Hansard of 24th June at col. 736. He remarked,
"it seems logical and consistent to have all the conditions for entitlement to child benefit for people from abroad set down in one place in regulations".
What I have to say about child benefit applies to the other benefits which are dealt with in this statement.
It was also stated in the Notes on Clauses (although not by the Minister) that the restrictions would be applied on an individual basis, so that the effect would

923
be that child benefit would only be denied where both parents were subject to restriction. I believe that that takes care of the first of the cases mentioned by the noble Lord, Lord Dubs. I hope that it does.
I should like confirmation from the Minister concerning the case where one parent was already in the United Kingdom and claiming benefit and the spouse and another child entered. It seems to me that the exceptions mentioned by the noble Lord, Lord Mackay of Ardbrecknish, would have covered that; but, unfortunately, this statement we are now looking at does not spell out those exceptions and neither did the previous one of August 1996.
As I understand it, there is yet another document, the Child Benefit (General) Amendment Regulations 1996, made by the Secretary of State for Social Security under the Social Security Contributions and Benefits Act 1992, which has to be looked at as well. I attempted to get that other statement from the Library but I was not successful in the time available. So it will be useful if the Minister can tell us where the exceptions are spelt out so that we can refer advisers and those who look at these matters to the whole of the documents in one single reference.
As I understand it, neither does the present statement affect the situation of asylum seekers, whether they apply at the port of entry or at some later date. I believe that this will help the noble Lord, Lord Dubs, if my analysis is correct. If they apply at the port of entry, they are technically given temporary admission rather than leave to enter, so that another set of conditions apply which are not dealt with in this statement. However, if they apply after entry—and I believe that this is the case that the noble Lord had in mind more specifically—having come in, say, as visitors, they will have been subject to a condition already; and since they are seeking variation of their leave to remain, that condition would be renewable by the entry certificate officer who considers the application.
The Government have already made their intentions of refusing benefit to this latter class of persons clear, although what the judge had to say in the case of R. v London Borough of Hammersmith (ex parte M and others) is relevant to the case of others apart from asylum seekers. Noble Lords will remember that the judge made the comment,
"I find it impossible to believe that Parliament intended that an asylum seeker, who was lawfully here and who could not lawfully be removed from the country, should be left destitute, starving and at risk of grave illness and even death".
There are always going to be exceptional cases, and the effect of applying blanket conditions to whole categories of persons, without any discretionary power, as 1 understand it, to vary or revoke the conditions, may be very extreme. It would be useful if the noble Baroness can tell us whether that is in fact the case that whatever the circumstances in which the person finds himself or herself, there is no question of the entry certificate officer having any power whatsoever—or indeed the Secretary of State—to revoke or vary the conditions which were imposed on first entry or renewal of the leave to remain.
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An indirect effect of this statement is that a person who makes a claim for child benefit would be liable to prosecution—the noble Lords, Lord Dubs and Lord McIntosh, have already referred to it—because they would be in breach of a condition of entry and they would also be liable to deportation under Section 3(5)(b) of the 1971 Act. Would the Government really prosecute those parents? I agree with the noble Lord, Lord McIntosh, that the extension of the criminal law into these areas is not wise and should not be pursued.
It was provided in Schedule 1 of the Immigration Act that a person who has obtained leave to enter by deception would be liable to deportation under Section 3(5) of the 1971 Act and would have a restricted right of appeal. This statement goes a lot further in that it enables the officer to revoke an entry clearance if he is satisfied that,
"whether or not to the holder's knowledge, false representations were employed or material facts were not disclosed, either in writing or orally, for the purpose of obtaining the entry clearance; or a change of circumstances since the entry clearance was issued has removed the basis of the holder's claim to be admitted to the United Kingdom".
That was also discussed by the noble Lord, Lord Dubs.
As I understand it, it has been the case for a long time that failure to disclose material facts by a third party would render a person liable to deportation. I remember back in the 1970s I represented a young man who came from Lome, Togo, to stay with his mother in London. Unknown to him, his mother had applied for him to be enrolled in the Oxford School of English in Panton Street for a course of study there. On that coming to light, the young man was recommended for deportation. I represented him at the hearing when the adjudicator found against us. The case went to judicial review and I am sure that the young man would have had far longer than the six weeks which he originally sought, waiting for the case to come before the court. What the Government are now saying is that in a case of this sort, where material facts were not disclosed by a third party, the entry clearance could be revoked and the person could be removed without the right of appeal. Such a radical downgrading of people's rights ought not to be enacted in such an obscure piece of secondary legislation. To confer the power of revocation on the entry certificate officer, and to put his decision beyond challenge, is not in accordance with British traditions of fair play.
Finally, reference has been made to the entry clearance officer's power to revoke leave to enter where there has been a change of circumstances so that the basis of the holder's claim to be admitted is removed. I hope that the Minister can give a small explanation of how that provision is to be applied. One can imagine that where a person has been given exceptional leave to remain on the basis of the situation in his country of origin, there could be valid grounds for reassessment, but not by the entry clearance officer, an official who has no qualifications to make such a judgment. Suppose that a political movement is in conflict with the government in a certain country, and a member of the movement has

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been given exceptional leave to remain on that basis; suppose that the internal situation in that country changes, and there is a rapprochement between the government and the group. Should we continue to play host to the members? Such a question ought to be considered at ministerial level, if not by Parliament itself.
6.41 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, the noble Lord, Lord Dubs, brings a particular expertise to this debate as a former director of the Refugee Council. What the noble Lord has said—along with his colleague the noble Lord, Lord McIntosh of Haringey, and the noble Lord, Lord Aveburydisplays a continuing dislike of the Bill that was passed by this House and another place. Therefore, their comments tonight come as absolutely no surprise. However, some interesting points have been raised and I shall address them in a moment.
First, I should like to explain briefly the function of the Immigration Rules that we are debating tonight. The cornerstone of United Kingdom immigration law is the Immigration Act 1971 and various subsequent amending Acts, most recently the Asylum and Immigration Act 1996. The 1971 Act empowers my right honourable friend the Home Secretary to lay before Parliament rules as to the practice to be followed by those who administer the Act. Those rules have been amended and developed over the years to reflect changes in circumstance and policy.
The current Statement of Changes was laid on 31st October and took effect on 1st November. It makes a small number of miscellaneous changes to the rules, including an amended definition of public funds, provision for the revocation of an entry clearance, and other minor changes.
In turning to some of the specific points raised, perhaps I may say that many of them went wide of the regulations, going right back to the definition of "refugee". If noble Lords will forgive me, I shall try to confine my remarks to the points that apply to the regulations that are before the House. If necessary, I shall write to noble Lords on other matters.
The noble Lord, Lord Dubs, gave some specific examples. I first heard of them tonight across the Dispatch Box and I hope that the noble Lord will forgive me if I write to him on the particular detail because he has rightly and understandably set out some particularly complex issues because he wants to test the robustness not only of the regulations but also of the safeguards. Perhaps I may first make an interim response.
The first example was that of a father who was a British citizen and who brought his wife and a child into the country for a period of one year. The question was: at the end of that year, if they applied for further leave to remain, would they be able to claim for the children? I have to make the assumption that they came for one year and applied for temporary leave to remain in the first instance and came in on the basis of "no recourse to public funds". One has to assume that they spent one year with no recourse to public funds, so why
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their circumstances should change for any extension of that year, I do not know. In addition, it would probably be a matter of how the extension was received by the authorities. Again, I shall need to write to the noble Lord on that point.
Another example related to a married couple, again with temporary permission to stay. I believe that in that case the husband left temporarily, the wife remaining behind. Again, the matter probably depends on the conditions under which they were allowed to enter temporarily—presumably, again with no recourse to public funds. If that was the condition under which they entered the country, presumably that would be the condition under which they would be expected to stay in the country for the prescribed limited time.
The third example raised the question of whether people who properly receive child benefit at present will be affected. My understanding is that someone who was receiving child benefit on 7th October 1996, when the relevant new child benefit regulations came into effect, will continue to receive child benefit until the claim is reviewed.
All three noble Lords mentioned the revocation of entry clearance. The measure has been put in place to close a loophole in the law. We do not want to use the power on a regular basis—that was not the intention—but it is right for entry clearance officers to have the power to revoke an entry clearance where it has clearly been obtained by misrepresentation or where the grounds for issuing it have changed. I believe that it was the noble Lord, Lord Dubs, who wanted to know who it was intended to hit. Primarily, the power is being introduced to meet those occasions when someone has quite deliberately misled the entry clearance officer and obtained entry clearance in circumstances under which they would not otherwise have gained it. Again, the noble Lord asked how officials in this country would know of that. If they do not know of it, they cannot exercise the power. However, if, subsequent to entry clearance having been secured in another country through the entry clearance officer, they communicate in one way or another to the receiving authorities in this country, that would be grounds for saying that the power could be used.
I was asked what safeguards have been put in place. Entry clearance officers have been given clear guidance that the power is to be used only in the most clear-cut circumstances of misrepresentation. Any decision will need to be seen and approved by a senior officer. The Migration and Visa Division of the Foreign and Commonwealth Office must be informed—
Lord Avebury: My Lords, but the wording does not say that. It does not state "only misrepresentation"; it also deals with the case where material facts are not disclosed. Will the Minister also address that point and say in what circumstances a person who has already been granted leave to enter for a limited period may have entry clearance revoked on it coming to light that a third party has failed to disclose material facts to the entry clearance officer?
Baroness Blatch: My Lords, it covers cases where the entry clearance has been secured either by

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misrepresentation or by giving false information—that is, where by one means or another entry clearance has been given on the basis that it was bona fide but where it was subsequently discovered that that was not the case. If that is communicated to officials in this country, there is a power for officials to revoke the clearance
Lord Avebury: Without appeal?
Baroness Blatch: Yes, my Lords; I shall deal with that immediately. If there is no fresh evidence, that is the end of it. However, if there is fresh evidence relating to an application, that fresh evidence will be included on the ground that an appeal would be granted if fresh evidence came to light. Entry clearance that is revoked is revoked on the basis that it was secured under false pretences.
I was asked what the Government will do to ensure that those who have been innocently affected will have proper recourse to a reconsideration of their case. In all instances where an entry clearance has been revoked the new facts surrounding the case will be considered—that is the point that I have just made—and a fresh decision will be made. While the decision to revoke an entry clearance will not attract a right of appeal, the Government have decided that any fresh decision will attract a right of appeal; in other words, where the initial decision was one which would have attracted a right of appeal, refusal of a fresh application will also do so. However, in all instances, the grounds for turning down the fresh application will be explained in detail to the applicant. It is not, however, an automatic assumption that a fresh entry clearance will not be granted.
The noble Lords, Lord Dubs, and Lord McIntosh of Haringey, referred to local authorities. In effect, these rule changes deal with changes to funds which are supplied largely by central government. Some of them are administered by local authorities. The changes made here are not connected with the matters covered by the judgment of Mr. Justice Collins.
The definition of "public funds" has been revised to include three additional benefits: housing accommodation and assistance, child benefit, and the jobseekers' allowance. As a result of the scrutiny process, the Secretaries of State for the Environment and for Social Security have recently made provision, as noble Lords know, to prohibit access to those benefits by overseas nationals on limited leave.
A recent rule change to which the noble Lord, Lord McIntosh, referred added certain other benefits: attendance allowance, disability working allowance, disability living allowance, severe disablement allowance and invalid care allowance. The purpose of the definition is that most overseas nationals are admitted to the UK on condition that they can support and accommodate themselves, and any dependants, without recourse to public funds. This definition explains precisely what "public funds" means in that context.
Overseas nationals are entitled to some benefits. The examples would be urgent case payments under income support regulations where someone is temporarily
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without funds; unemployment benefit, where appropriate; and emergency treatment under the NHS. The definition is aimed at those admitted to the UK on limited leave and on condition that they do not have recourse to public funds. So the prohibition on access to benefits would not apply, for example, to those with indefinite leave to enter or remain in the UK; those recognised as refugees; those with exceptional leave to remain; and EEA nationals.
Preventing abuse of public funds is a proper concern of the Government. It is a serious matter, and there are substantial savings to be made. A survey of immigration offenders undertaken as part of the scrutiny on enforcement of immigration laws in 1994 indicated that about 25 per cent. of offenders had received income support or other means-tested benefits. The DSS estimates that savings of about £45 million can be made over the next three years by denying overseas nationals access to child benefit.
The noble Lord, Lord Avebury, was concerned about consolidation of the rules, something with which I have enormous sympathy. As he knows, from time to time rule changes are consolidated into a revised set. I understand that it was last done in October 1994. We are, of course, aware that a further consolidation might be convenient, and we undertake to do that. I cannot say exactly when, but the point is taken.
Again, the noble Lord, Lord Avebury, was concerned about the availability of information on the Internet. I have not received prior notice of that point, but a certain amount of information about immigration—I believe that the noble Lord recognised this—is available on the Internet; for example, the new guidance on the prevention of illegal working. We shall, of course, look at what more we can do in that respect. It seems to be an effective way of reaching a wide audience.
The noble Lord, Lord Avebury, asked where the exceptions to the prohibition on access to child benefit are set out. They are set out in the child benefit regulations of which the noble Lord was unsuccessful in obtaining a copy. They are people recognised as refugees; people with unlimited leave to enter or remain; people with exceptional leave to remain; EEA nationals; nationals of states covered by EC agreements; and people covered by reciprocal agreements with other countries.
The proposed changes to the immigration rules are sensible. They are practical measures which will contribute to the Government's policy of an immigration control which is firm, fair and effective. I commend them to the House.
6.55 p.m.
Lord Dubs: My Lords, I thank noble Lords who have taken part in the debate for their helpful contributions, and I thank the Minister for her clear examination of the rules and her attempt immediately to answer the questions that we put to her.
It is no secret that many of us dislike the original Bill, so the Minister can hardly be surprised that that came out in the debate. I appreciate that I gave her a couple

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of examples which were complicated. I thank her for having a go at them. I look forward to receiving a more detailed explanation from her in due course.
There were two points in what she said about other matters which were not clear to me. One was that, in talking about the High Court decision and the burden on local authorities, despite her attempt to deal with the issue, what was not clear to me was the consequence of the changes of the rules about which we are talking tonight in terms of the possible extra burden on local authorities, whether the Government accepted there would be such an extra burden, and what they were doing to help local authorities to meet it. That is rather different from the High Court decision, although I agree that I linked the two points.
I am also not clear, when entry clearance has been revoked, in what circumstances there is a right of appeal, and in what circumstances there is not. I assumed that revocation of an entry clearance meant that no right of appeal was possible. I believe that the Minister might have been saying that there could be a new application. That is not quite clear.
Perhaps I may agree with the Minister that of course we all want to prevent abuse of public funds. No one would for a moment accept that there should be an abuse of public funds, but equally it is important that people
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who hitherto have been entitled to some benefit, and who will be made destitute if that benefit stops, should have at least some safeguards, or there should be some attempt on our part that there should be some safeguards.s
Finally, perhaps I may make another and a different suggestion to the Minister: I appreciate that we have changes in immigration rules quite frequently. That is understandable. Sometimes they are clear and require no further explanation. Given the number of different regulations and Acts of Parliament to which these changes referred, and with which they were linked, in this instance it might have been helpful were the Government to have produced a short explanation of the effect of the changes in such a way that we could more easily make the link between these changes and previous legislation and regulations. It might have saved time this evening. I know that it is done occasionally with proposals that the Government put forward. I just leave with the Minister the thought whether in future, where changes in immigration rules and other delegated powers are complicated, some simple explanation of their impact and effect might not be helpful. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
House adjourned at two minutes before seven o'clock.