Lords Sitting of 15 July 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 Lincoln.

Lottery Funding: Community Projects
Lord Hacking Lord Hacking asked Her Majesty's Government:
Whether lottery funds are being denied to community projects, in favour of national projects, in the inner London boroughs.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): No, my Lords. Applications for community-based projects are treated on their own merits and are not assessed by reference to the success or failure of applications for national projects.
Lord Hacking: My Lords, I am grateful to my noble friend for that reply. Will he confirm that there are important, and indeed big, community projects which are not currently getting national funds? Does my noble friend agree that generally in the London area community projects are not doing very well in getting lottery funds? Is it not correct that, on figures issued by my noble friend's department, community projects in the borough of Southwark are receiving only 2 per cent. of lottery funds as against national projects; in Islington, 3 per cent; in Camden, 3.4 per cent; and in Lambeth, 5 per cent? What advice can my noble friend give to those who are putting forward those community projects?
Lord Inglewood: My Lords, at the risk of stating the obvious, the key to receiving lottery grants is to apply for them. That is the essential first step. The kinds of points that my noble friend raised have caused concern. I understand that the London Pride Partnership is making contact with the distribution bodies to see whether there is scope for maximising lottery opportunities in London.
Lord Morris of Castle Morris: My Lords, is the Minister aware of the report that far too few inner city sports projects have so far come forward for lottery support? Is there any explanation for that, if it is a fact; and does it matter anyway?
Lord Inglewood: My Lords, I am not aware of the report to which the noble Lord refers. The purpose of the lottery is to try to ensure an appropriately even spread of distribution across the country as a whole, taking account of the particular circumstances and contexts that pertain. If it is the case that there is such a
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substantial shortfall as that to which the noble Lord refers, the steps taken by the London Pride Partnership should perhaps be taken by those who are concerned.
Lord Molloy: My Lords, would it be possible, bearing in mind the Minister's practical reply, for the results of any inquiries to be made known to the House?
Lord Inglewood: My Lords, I am sure that the results of any inquiries made of the distribution bodies will be generally available. If I have any information that would be of particular interest to the noble Lord, I hope he will be assured that I shall contact him.
Lord Skelmersdale: My Lords, my noble friend said that the first step is to apply to the National Lottery Board. Surely the second step is to make sure that you have a very well thought out and costed project. Is it a fact that some applications are not sufficiently well thought out and constituted?
Lord Inglewood: My Lords, there must be examples to which my noble friend refers. However, in certain circumstances the distribution bodies are prepared to provide funds for feasibility studies to enable those who are perhaps less well placed to bring forward a proposal in a properly worked out form.
Lord Strabolgi: My Lords, can consideration be given to changing the rules relating to lottery grants so that the amount given does not have to be balanced by an equivalent amount raised from charity? Are the Government aware that it is very difficult for a museum, for example, that is to be awarded £5 million to have to raise the equivalent amount from charity? Charity resources are finite and limited. I receive complaints from everywhere. Will the Government consider this matter?
Lord Inglewood: My Lords, right from the outset matching funding has been a matter for the distribution bodies. My right honourable friend the Secretary of State has encouraged the distributors to be flexible in that regard for the kind of reasons mentioned by the noble Lord.
Lord Elton: My Lords, in his reply to the noble Lord, Lord Morris of Castle Morris, my noble friend said that it was necessary that there should be an even spread of the yield of the lottery across the country. Is he aware that there is an even spread of schools across the country, and a very widely shared perception that there should be an increase in the encouragement of sport played in and between schools? Could the bodies responsible for distributing the money be reminded of the need to enable teachers to supervise that sport at the cost of replacement teacher time, which is expensive?
Lord Inglewood: My Lords, my noble friend's point is a trifle wide of the Question. It is the case that one of the distributing bodies is the Sports Council, which is interested in the promotion of sport in its widest context. School sport is particularly important.

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As regards the first part of my noble friend's question, in referring to the even spread of lottery distributions I specifically said that it was important to see them in the context of the circumstances that pertain. In the case of national projects, clearly if there is only one such project it will be very expensive and will have to be in only one place.

Air Safety Standards: Foreign Aircraft
2.43 p.m.
Lord Gainford Lord Gainford asked Her Majesty's Government:
How many foreign airline operators have had their aircraft or operations surveyed in view of increased safety surveillance now being undertaken in the United Kingdom.
The Parliamentary Under-Sectary of State, Department of Transport (Viscount Goschen): My Lords, in January, the Government announced a package of measures to strengthen the oversight of safety standards of foreign aircraft operating to the United Kingdom. Since then the Civil Aviation Authority has carried out nine checks on such aircraft at our request. An audit of the aviation authority in Bulgaria has also been undertaken to measure that state's compliance with International Civil Aviation Organisation standards.
Lord Gainford: My Lords, I thank my noble friend for that Answer. Can he say whether Her Majesty's Government will encourage the publication of names of airlines whose aircraft fall below the required safety requirements, as is done in other countries, particularly the USA?
Viscount Goschen: My Lords, the first point to make is that the aviation industry has been extremely successful but extremely safe. We undertake random checks of foreign aircraft in this country where we have reason to doubt that states are not complying with International Civil Aviation Organisation standards. In those circumstances, we shall invite the CAA to inspect those aircraft. Fortunately, those circumstances are very few. The results of such inspections are usually either that the aircraft are not in the condition that some people might expect in terms of the safety standards—in other words the check was satisfactory—or that measures are quickly taken to put things right. If measures are not taken to put matters right, we shall take action and possibly ban aircraft from that company.
Lord Boyd-Carpenter: My Lords, can my noble friend say how many foreign airlines have been supervised in this way and how many have been adversely reported upon?
Viscount Goschen: My Lords, I can give the figure for the number of inspections carried out since we announced the package of new measures in January. So far, nine inspections have taken place. Where we have
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had specific doubts about the safety condition of aircraft from other countries, the results have been largely satisfactory.
Lord Clinton-Davis: My Lords, can the Minister tell the House what has been the result of those nine inspections? Have there been breaches of the minimum ICAO standards? If so, what sanctions are being applied?
Viscount Goschen: My Lords, I believe I have answered that question. For the nine inspections that have taken place, the results have been largely satisfactory. There have been some minor safety questions raised and in those circumstances the national authorities have taken action to address those questions. I shall be happy to write to the noble Lord with a list of the inspections, the dates and safety concerns that were originally raised and any problems that are outstanding.
Lord Clinton-Davis: My Lords, I am grateful to the Minister for deciding to do that. However, is he aware that there is an increasing practice of foreign airlines being used by UK operators where there is a need to bring in some additional help because of shortage of capacity and that frequently those foreign aircraft do not return to their home base? Does he believe that that is giving rise to some abuse and some considerable difficulty in being able to carry out the necessary inspections to which he alluded?
Viscount Goschen: My Lords, first, the inspections to which I alluded are the exception. They take place when specific doubts are raised about the safety standards of a particular airline or country's administration. Secondly, I recognise that in the charter airline sector some charters—so-called fifth freedom charters—are undertaken by aircraft to a third country. But that is a relatively small proportion of the charters undertaken—some 5 per cent. or under. We recognise that UK charter carriers should be given a fair competition basis on which to operate. That is why I announced approximately one month ago some tightening of the measures relating to charter aircraft. To address the specific issued raised by the noble Lord, we have introduced a measure which will mean that particular charter carriers can only undertake a certain number of charters, thus preventing them from being based over here. That number is 10.
Lord Avebury: My Lords, can the Minister say whether there is any research on the relative safety of former Soviet aircraft and western aircraft respectively? If no such research has been undertaken, do the Government believe that it would be a useful idea to commission such research, in view of the anecdotal evidence that some of those Russian aircraft are less than safe?
Viscount Goschen: My Lords, the first point to make is that Russia and the former states of the Soviet Union are signatories to the Chicago Convention. They are members of the International Civil Aviation

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Organisation. The principle of the regulation of these international industries is that we mutually recognise each other's certification. We have undertaken checks from time to time on aircraft from countries of the former Soviet Union. I understand that the American federal administration has also participated in a programme. We believe that this is best done internationally on the basis of ICAO work. We are co-operating with its programme and indeed have contributed the use of some CAA experts towards that.
Lord Desai: My Lords, I welcome the Minister's promise that he will give information to my noble friend on the Front Bench. However, is it not proper that such information about safety should be available to everybody, especially those passengers who have some kind of citizen's charter in this area?
Viscount Goschen: My Lords, the information requested by the noble Lord is largely technical. I can give some examples. There was the aircraft from Venezuela which was inspected and checked on 25th June. Nine items only were noted and no detention was warranted. An aircraft from Zimbabwe was checked on 30th April and there were no safety problems. I could read out details of the nine inspections, but it might try the patience of the House.
Lord Whaddon: My Lords, are the Government able to satisfy themselves that the pilots of the aircrafts are competent and physically fit, as distinct from the machines?
Viscount Goschen: My Lords, that goes back to what I said earlier: that we are part of an international civil aviation industry regulated on an international basis but specifically by the member states. It is not possible for any one country to be the world's policeman. It is not possible for our Civil Aviation Authority to check every foreign pilot in the world, nor for other countries to check every English pilot. The system must work on mutual recognition. Where problems arise or where there has been an accident and that reveals difficulties, we must take action on that basis.
Lord Finsberg: My Lords, will my noble friend look again at the Answer he gave to our noble friend Lord Gainford? As one who travels at lot in east and central Europe, at one stage various government departments advised us not to fly with certain airlines. Can my noble friend say whether such advice is still extant and, if so, which airlines?
Viscount Goschen: My Lords, advice is given on the basis of a number of factors. For instance, in some areas of the world we may give advice because we believe that there are security threats. We are talking of aviation services to and from the United Kingdom run by specific airlines. I stress the importance that we place on aviation safety. If we have doubts about a specific airline operating to and from this country, we will inspect it. If difficulties are found that cannot be overcome, we will not allow that airline to operate to this country.

ODA: Reproductive Health Initiatives
2.51 p.m.
Viscount Craigavon Viscount Craigavon asked Her Majesty's Government:
What new initiatives the Overseas Development Administration has taken in the field of reproductive health following the recommendations of recent international conferences.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, in Cairo I said I hoped to commit more than £100 million to reproductive health work in 1994 and 1995. We actually committed £184 million. Our spend has increased from £24 million in 1990 to £62 million in 1995—some 3 per cent. of the aid programme. New developments include our Seedcorn Fund to support innovative work. ODA and the Medical Research Council are co-funding the development of new methods of contraception.
Viscount Craigavon: My Lords, I thank the noble Baroness for that Answer. Will she accept that her response indicated welcome examples of the considerable achievements of her department and herself in recent years, reflected in the enormous increased resources allocated? However, does she agree that there is still a large expressed need in the area of reproductive health in the developing countries—something of the order of 200 million people? Will she continue therefore to set an example to other donor countries by giving high priority to this subject in her department?
Baroness Chalker of Wallasey: My Lords, I am grateful to the noble Viscount. It is vital that not only we, but also other donor countries, help the development of the growing world by assisting families to decide on the size and spacing of their children. The world population is currently 5.6 billion. It is growing by 1 billion people every decade and could double or triple in the next century. That is why we are committed to giving access to families so that they may choose what size of family they want and its spacing. And that is why we have more than doubled our programme in the past five years.
Lord Renton: My Lords, I acknowledge the splendid work which the Government, with the help of my noble friend, have done to help the world in that way. As my noble friend recently agreed that overpopulation is a principal cause of poverty, will she agree also that it leads to relentless urbanisation and too much damage to the environment? Will the Government therefore continue with their policy as relentlessly as they can?
Baroness Chalker of Wallasey: My Lords, I am grateful to my noble friend. He is right that urbanisation does not bring relief to families that are growing faster than the economies of the countries to which they belong. The difficulty for those families is often that they have no access to good family planning advice and no access to sound reproductive health assistance.

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We want to give them that access so that they can choose. In the British programme there will never be any coercion and support for abortion.
Lord Robertson of Oakridge: My Lords, I wish to raise two points: first, that the term "reproductive health" includes access to abortion on demand; and, secondly, that the declaration of the United Nations Conference on Population and Development in Cairo last year stated that abortion should never be used as a method of family planning. That was confirmed at a recent conference in Istanbul. I would ask the Minister to assure the House that Her Majesty's Government will not support any initiative that involves abortion.
Baroness Chalker of Wallasey: My Lords, I repeat what I said to my noble friend. We have been opposed throughout to abortion as a method of family planning. My team and I argued for that to be included in the Cairo programme of action; we argued for it in the Beijing platform of action; and will not support any organisation that permits or condones abortion as a method of family planning.
Baroness Flather: My Lords, my noble friend said that population increase is the single most serious problem facing developing countries. Will she agree to help to remove opposition to family planning which still exists in some quarters in this country and throughout the world? That is essential to the developing countries. Will my noble friend do her utmost to remove that opposition and lay to rest the fears that are quite unjustified?
Baroness Chalker of Wallasey: My Lords, I will do my best. It is sensible to set out these matters in a factual and non-emotional way. We know from long experience in development that many families across the world are desperate for help in containing the number of children that they have. I have seen many thoroughly exhausted young women in their late 20s and early 30s who have already been through more than 10 pregnancies. That has so exhausted them that they are no longer able to look after their families. It is important to work in a practical, common-sense way to get rid of some of the emotion and some of the fears that arise in relation to this difficult and sensitive subject.
Lord Rea: My Lords, the Minister is aware that the all-party group on this issue gives equal weight to the words "population" and "development". Does she agree that her successful population programmes go hand in hand with social or human development, particularly the development of primary care and education, especially of girls? Does she agree also that population activities which neglect that aspect and are funded at the expense of such programmes are likely to be ineffective?
Baroness Chalker of Wallasey: My Lords, not for the first time on this important subject the noble Lord, Lord Rea, and I are in a considerable degree of agreement. It is critical that, in addition to making available access to family planning advice, we ensure
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that all people, especially women, have access to better opportunities for education so that they can make and maintain responsible choices. We know that we cannot be as successful in helping families without education and the ability to read to choose and determine the number of children that they have.
Lord Winston: My Lords, I congratulate the Government on their commendable record with population control in the world generally. However, is not the Minister concerned that we give proportionately more of our gross national product than any other country? Is it possible that we can persuade the Americans to be as generous as we are in helping this problem which, out of self-interest, they should consider seriously?
Baroness Chalker of Wallasey: My Lords, I hope that the noble Lord will not use the word "control" again because nothing in our policy smacks of it. We talk about children by choice and not chance. There is a real reason for that: that couples should decide how many children they are going to have; they should never be controlled by any government. As regards the United States, we very much hope that it will be more realistic. We know full well that all the most successful programmes to look after the needs of women in the developing world begin in the villages. They are very much based where the family is situated. If more of that work can be done through USAID, I believe that the United States will see the value of the sort of work of which we know the complete value.
The Countess of Mar: My Lords, is the Minister aware that there is a large body of scientific evidence available now indicating that perhaps the women involved will not need to have the choice? There are something like 25 million pesticide poisoning incidents in the undeveloped countries each year. There is an increasing body of evidence that pesticides in small quantities are affecting the reproductive health of these young women and that eventually they will be unable to have babies. Many of the pesticides have been found in the United Kingdom—
Noble Lords: Order!
The Countess of Mar:—and other developed countries. Can the noble Baroness say what she proposes to do about it?
Baroness Chalker of Wallasey: My Lords, this matter is very wide of the Question. I shall look at what the noble Countess has said. We try to improve health wherever we are working.
The Duke of Norfolk: My Lords—
Noble Lords: Next Question!
The Lord Privy Seal (Viscount Cranborne): My Lords, I wonder whether we might proceed to the next Question. I apologise to my noble friend. With the leave of the House, I believe that we should give time to the final Question.

ME Sufferers: Treatment
3.1 p.m.
Lord Archer of Weston-Super-Mare Lord Archer of Weston-Super-Mare asked Her Majesty's Government:
What steps they will take to ensure consistent and adequate treatment for the 150,000 men, women and children in Britain who suffer from the debilitating illness ME.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the Government have commissioned the Academy of Medical Royal Colleges to provide us with advice about the nature and wider clinical aspects of the condition. The chapter on chronic fatigue syndrome in the Disability Handbook is being revised and will be published in September this year. The Chief Medical Adviser to the Department of Social Security has set up an expert group to advise on chronic fatigue syndrome.
Lord Archer of Weston-Super-Mare: My Lords, I thank the Minister for that reply. Will she ask her department to consider distributing the report that has been brought out by the national task force to doctors and the Department for Social Security so that people who suffer from this terrible disease may discover whether they are eligible for a disability living allowance?
Baroness Cumberlege: My Lords, yes. I understand that this report came out in 1994. It was distributed to the Department for Social Security and all family health service authorities. Copies were sent to health professionals in hospitals and universities. They were also made available free of charge to those who asked for them.
Earl Baldwin of Bewdley: My Lords, the national task force has been referred to and also the report of the Royal Colleges. Can the noble Baroness tell us when the report of the Royal Colleges is expected, and when we are likely to be able to read it? Will she also join in condemning the kind of ill-informed press report that appeared in the Daily Mirror on 11th May under the heading,
"It is just posh bosh",
which can only add to the pain of ME sufferers?
Baroness Cumberlege: My Lords, we expect to receive the report of the Academy of Medical Royal Colleges soon. As to its publication, that will depend on the Chief Medical Officer. He is a very open person who on the whole likes to publish reports.
I did not see the press report of 11th May. However, I know that there is a consensus in the country that there is this condition which is called either ME or CFS. It is not fully understood and more research needs to be done into its causes, its diagnosis and its treatment.
Baroness Jay of Paddington: My Lords, on Thursday the Minister announced that she was convening a special group to study people suffering from organophosphate poisoning, which is another
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condition where treatment is often said to be somewhat inappropriate and inconsistent. Will she take similar action as regards ME? Does she agree that if the internal market did not prevent the pooling of specialist knowledge between consultants and hospitals, the need for these specific initiatives would be much less?
Baroness Cumberlege: My Lords, before another group is set up we need to see the report from the Academy of Medical Royal Colleges and from the group set up by the Chief Medical Adviser. As regards the internal market, there is no setback at all in pooling information, advice and research.
The Countess of Mar: My Lords, is the noble Baroness aware that the Department for Social Security is taking the problem of ME and chronic fatigue syndrome very seriously and now has a committee looking into the problem with a view to informing the doctors in the medical service of the Benefits Agency of the symptoms and the signs to look for?
Baroness Cumberlege: My Lords, I did refer to that in my initial Answer.

Business
3.5 p.m.
Lord Strathclyde: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lady Denton of Wakefield will, with the leave of the House, repeat a Statement that is to be made in another place on the recent events in Northern Ireland.

Henry Johnson, Sons & Co., Limited Bill
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(The Chairman of Committees.)
Lord Bruce of Donington: My Lords, I am sorry to delay the House on what I believe to be a comparatively minor matter, although it has the importance of appearing on your Lordships' Order Paper and it asks for the consent of your Lordships to pass it. But can the noble Lord give us some idea of what this Bill is about?
I observe that at paragraph (4) it says:
"Having regard to the fact that the area of operation of the Company is and has been for many years wholly in the Republic of France, certain advantages would accrue to the company if it were incorporated under the laws of the Republic of France instead of under the laws of England".
We are talking at a time when the advantages of being in the United Kingdom, owing largely to the photogenic qualities of the Chancellor of the Exchequer, have been widely advertised. Therefore, it is a little unusual to find a company that wants to leave these shores.
This company is on the shipping and forwarding agency side of commercial transactions. It was incorporated in the United Kingdom in 1907. From the

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inquiries I have made it has net assets at the moment of between 50 million and 60 million dollars, which is not an inconsiderable amount. There may be a perfectly good reason why this company should decide to be incorporated in France. Can the noble Lord tell me what advantages are anticipated, because, as I say, they are mentioned in the Bill? In particular, are there any taxation implications in this matter, not only for the company itself but for the subsidiary companies and as regards the interests of the directors, the names of whom I have here and who appear to be associated with English companies or companies which have not yet applied to go abroad? These are Three Keys Properties Limited, Leasecon Engineering Associates Ltd., Five Oak Leisure Ltd., Climax Chemicals Ltd. and Tele-Units (Service) Limited.
As I say, I am quite sure that all is in order, but I would like to be reassured on the various matters that I have raised, following which I have no doubt that, unless there is something which obviously requires further inquiry, the House will be pleased to allow the matter to proceed in the normal manner.
The Chairman of Committees: My Lords, as I hope that your Lordships will know, I am always anxious to assist noble Lords, and not least the noble Lord, Lord Bruce of Donington. However, your Lordships will also know that I am bound by the practice and procedure of the House and the first point to which I ought to draw your Lordships' attention—quite unnecessarily, I am sure—is a point with which your Lordships will be familiar, not least because the noble Viscount the Leader of the House had occasion to remind your Lordships of it only last week. I refer to the fact that a Third Reading is to be taken formally and any debate which arises at that stage should take place on the Motion that the Bill do now pass.
There is a second procedural point to which I should draw your Lordships' attention. It will be less familiar to some of your Lordships than to others. It is a point which I had the occasion to draw to your Lordships' attention only a few weeks ago. I refer to the fact that the practice and procedure of your Lordships on private Bills—this is a private Bill—are such that if points are to be raised at various stages, notice is to be given and a sponsor appointed from the Back Benches.
As I have said, I am always anxious to try to assist if I can. Had such notice been given and had a sponsor been appointed, I am sure that the first thing that that sponsor would have noted was that he or she would not have been at all surprised had the noble Lord, Lord Bruce of Donington, wanted to raise a matter which has European implications, as has this Bill.
Had I been permitted by the rules of procedure of your Lordships' House to assist, I should have pointed out that the company has been incorporated in this country, but the whole of its business is, and has been for a very long time now, in France. Therefore, it is of assistance to the company and no doubt to its customers that that company should no longer be incorporated in this country but in France where it can carry out its practices all the more efficiently. As the noble Lord,
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Lord Bruce of Donington, who is a distinguished accountant, will know, there is no procedure under the United Kingdom Companies Acts for a company's incorporation to be transferred to another country. The Bill is needed to effect that transfer.
I hope that I have assisted to some extent, but I do not think that I should transgress upon your Lordships' sense of order by attempting to assist further. However, if there is any way in which I can help, I shall seek to do so outside the Chamber.
On Question, Bill read a third time.
The Chairman of Committees: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Chairman of Committees.)
Lord Bruce of Donington: My Lords, I should like at once to apologise to the House and to the noble Lord the Chairman of Committees for having raised such a matter on Third Reading rather than on the Motion that the Bill do now pass. My curiosity has been perfectly well satisfied. I accept the noble Lord's rebuke, but I can assure him that next time I shall be spot on the procedure and that I may possibly require further information than the noble Lord found it proper to give this afternoon.
The Chairman of Committees: My Lords, I am much obliged to the noble Lord and I doubt not one word of what he has told your Lordships.
On Question, Bill passed.

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

Railway Heritage Bill
Read a third time.
Lord Finsberg: My Lords, I beg to move that the Bill do now pass.
In moving this Motion, perhaps I may pay tribute to my honourable friend Mark Robinson in another place, whose idea this was, and to those officials at the Department of Transport who have helped me to get the Bill to this point in your Lordships' House. I trust that the Bill will now be given the correct green light and allowed to reach its terminus.
Moved, That the Bill do now pass.—(Lord Finsberg.)
On Question, Bill passed.

Nursery Education and Grant-Maintained Schools Bill
3.15 p.m.
Read a third time.
Clause 1 [Arrangements for making grants]:
Earl Baldwin of Bewdley Earl Baldwin of Bewdley moved Amendment No. 1:
Page 1, line 7, at end insert ("subject to the provisions of subsection (4) below and after the making of an order having effect for a period of up to twelve months").
The noble Earl said: My Lords, this group of amendments is designed to secure the best of both worlds in an area where there is still a great deal of public concern, and which is perhaps the weakest part of the Bill as it stands. So far are they from being wrecking amendments that I would hope the Government might welcome them as a constructive means of targeting expansion in the direction and through the structures which the Government have in mind, while at the same time allaying the worries of those parents and providers who have greatest involvement in nursery education.
The problem, as noble Lords are by now well aware, lies in those authorities, some of them Conservative-controlled like Solihull, where there is already high LEA provision. I need not repeat the arguments in detail. The way in which the resourcing is intended to work, by the convoluted clawing back of money from LEAs only to give most of it back later, means that, to put it no higher, where nursery provision is already at near-universality, the LEA cannot gain and there is a likelihood that it will lose financially. It is surely quite wrong that those who have worked in the past to build up good nursery provision should now have this provision threatened. On top of this we have the attendant uncertainty in planning future LEA provision, to say nothing of the rigmarole of the administrative paperchase—was it eight different steps that the noble Baroness, Lady Farrington, referred to in Committee?—to enable nursery school parents to reclaim what they have already.
I think we can do better than that. In Committee we put forward an amendment which would have allowed a whole LEA area to opt out of the voucher scheme. Where that was something of a blunt instrument and involved the complication of parental ballots, what we are bringing forward today is much more focused.
The effect of this group of amendments, of which Amendment No. 5 is the operative one, will be to remove all local authority nursery provision from the ambit of the voucher scheme. The scheme will apply only to places in the voluntary and private sectors. Grants, however, may still be made to LEAs for any new provision they may want to make.
This will come about as follows. Sub-paragraph (i) of Amendment No. 5 provides for such grants to authorities for any new nursery provision—the relevant words here are "for the first time". Nothing should be done to discourage authorities from bidding to government through the mechanisms that exist to expand their own provision if they want to. I will deal with the bit about the order made under subsection (1) in a moment.
Sub-paragraph (ii) in effect insulates the maintained sector from the voucher arrangements—and note that this can involve other departments in addition to education, for example, social services. A parent or guardian will not be able to present a voucher and through it obtain a local authority place. This is the crux, together with sub-paragraph (iii), which prevents local authorities' revenue support grants from being raided to fund the voucher scheme. Together these are designed to lift local authority places out of the scheme and so prevent the financial and administrative disruption to existing provision which is the major drawback to the Bill as drafted.
Subsection (4A), still under Amendment No. 5, gives a necessary definition of the word "voucher" in sub-paragraph (ii) which has otherwise not appeared in the Bill.
Amendment No. 1 cross-refers to the subject of Amendment No. 5 from the Secretary of State's enabling power to make arrangements at the beginning, and stipulates the making of an order for a period of up to 12 months. This is to give flexibility in the light of Amendment No. 13, which your Lordships agreed to in Committee, on the question of full evaluation of the pilot scheme; the first order could come into effect after the evaluation, for the period up to the end of March 1998, giving the Government the choice thereafter whether to continue with a cycle based on financial years or to revert to the academic year cycle. We feel it is appropriate that there should be a chance for a review of the scheme on a regular basis, and Amendments Nos. 1 and 11 provide for this to be done through an order made under the negative resolution procedure.
If these amendments are agreed to, the voucher agency would still send an application form to all parents who were eligible. Instead of merely offering a voucher, the form would ask parents to choose between seeking a place for their child in a maintained school or taking up a voucher for the voluntary or private sector. According to their choice, the full system which the Government are proposing in this Bill would either apply or not. Parents could not unscrupulously try to secure a voucher as well as a free place if they had been required to commit themselves to a choice of one or the other on the form.
There is much to gain and little to lose in agreeing to these amendments. There is no loss of choice involved. Parents can exercise just the same preferences as they could under the Government's proposed scheme, but in a more direct and less confusing way. What is different is that the new money which the Government are providing will go straight where it is needed, and LEA resources will not be redirected round the houses in an elephantine exercise of energy-sapping bureaucracy, while much of the estimated £20 million administration costs of the scheme will be saved and thus available for actual nursery education.
Since the evidence which has come in so far indicates that it is the extra money, not surprisingly, that is producing the expansion (such as it is), for goodness sake let us maximise it. And since these amendments are targeting vouchers on precisely those sectors—

623
the voluntary and the private—where the Government themselves wish to see the greatest expansion, I can commend them confidently to the House. I beg to move.
Baroness Farrington of Ribbleton: My Lords, we on these Benches support the amendment. It may be helpful to take as an example the circumstances in Wales. In Wales over 92 per cent. of four year-old children already attend schools in their local authority areas, some in church schools and some in county-maintained schools. That is the parental wish. Without this amendment the money for the education of those children would have to go through eight different additional administrative loops. There can be no justification for that. The same would be true in Northern Ireland, if the result of the Government's consultation was a Northern Ireland order. The same is true for Solihull and many areas of the country. If one takes Solihull as an example, that is not by any means an inner city deprived area; nor is it an authority in receipt of high levels of revenue support grant. The Conservative authority in Solihull, which was in power until a little over a year ago, made direct provision with money which came primarily from the local community charge and local council tax to build up the service. It seems a rather odd irony that in those circumstances governors of church schools and non-church schools will face uncertainty as a result of the Government's plans in the Bill before your Lordships today and will have to go through the loops to get back the money.
The Minister might be minded to reply that in some way the amendment would diminish parental choice. The amendment reduces parental choice not one wit. The amendment offers to parents the choice between available local authority-funded nursery provision for four year-olds and opting for a voucher to purchase provision in the voluntary or private sector. As the noble Earl, Lord Baldwin of Bewdley, said at the beginning, the amendment ensures that the money which would otherwise be spent on administration and re-routeing funds through eight different loops, for example in Wales, in order to put it back where it started from, would be available to spend elsewhere.
At Report stage I asked the Minister whether or not additional capital funding—there is no proposal for capital funding in the provisions of the Bill—had been available to any of the authorities in the pilot study. I have since ascertained that such funding was made available in Norfolk in order that bids and new provision could be made. Surely, it is better to spend the money if there is a church school in a rural community which, but for the want of a small amount of capital, could meet parental demand. Surely, it is better that that capital is made available to the system and finance is released, small though the amount may be, rather than that it should be wasted on bureaucracy.
At previous stages the noble Baroness, Lady Young, referred to the popularity of the voucher scheme. She prayed in aid the fact that the voucher scheme was possible if parents applied for a voucher. What a nonsense. To say that people who currently get a service and wish to continue to use it now have to apply for a
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voucher to continue to use it, and that they must pay for the bureaucracy involved in getting the money redeemed, is a nonsense.
Finally, if the Government do not believe that parents faced with a choice will continue to use local authority provision, all local authority assumptions about the actual number of children in schools are retrospective. That applies to five, six and seven year-olds. There is nothing to stop the Government using the figures for four year-olds in the schools to ensure that the funding is commensurate with the continuation or variation in parental choice. There can be no real support from any quarter. Parents in Solihull have expressed their views strongly, clearly and often. Those in the voluntary sector express concern that, as a result of remarks by the Minister and his friends in another place, the proposals before your Lordships will not protect their access to new funds. This amendment protects that new money from an increase in bureaucratic paper chases which use up scarce resources. We support the amendment.
Lord Tope: My Lords, I rise to give warm support to this amendment from the Liberal Democrat Benches. As the noble Earl, Lord Baldwin of Bewdley, has said, the amendment comes close to giving us the best of all worlds. On that basis, he indicated confidence that the Minister would be likely to accept the amendment. Sitting where I am, the look on the Minister's face at that point indicated that the noble Earl's confidence might have been misplaced. It is to be hoped that we can still persuade the Minister.
This comes close to giving the best of all worlds. First, it retains what I think should be and I hope is the central purpose of the Government, which is to provide parental choice and an expansion in the provision of nursery education initially for four year-olds. More than that, it seeks to address the many concerns which have been raised about the nursery voucher scheme. At every stage of the Bill many of us have expressed surprise at and certainly commented on the volume of post which we have received from all quarters of the country expressing grave concerns about the likely and, I believe, unintended effects of this scheme.
As previous speakers have said, this amendment tries to address those concerns. It proposes to take the existing provision in the maintained sector out of the voucher scheme. That means that we shall no longer have what has come to be called the long paper chase. In the Second Reading debate I itemised the eight stages which follow this voucher from the first move from the Child Benefit Agency right through this long loop until eventually we come back to where we started for the majority of children who already have existing provision. One effect of this is to cut out that long paper chase for the vast majority of parents and providers.
That alone should lead to a significant cut in administrative costs. At earlier stages we have expressed some doubts about whether those administrative costs could be kept within the £20 million suggested by cutting down so hugely the paper chase of the administration. We certainly should be able to keep well

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within that figure and indeed to have some money over which could be spent not on more administration but on more and better provision.
That provision would be targeted on the voluntary and private sector, and that surely must be one of the Government's wishes. It certainly gives a better opportunity to target these resources—something that we must all be in favour of in relation to scarce resources, and resources are always scarce. They need to be targeted where they will have the best effect. That may well be the private and voluntary sector.
The provision would give a greater degree of certainty to the maintained sector, both in its budget flat planning and in its provision planning. That too must be a good thing. Indeed, there is so much in favour of this amendment that I find it hard to imagine what the Minister will say against it, although I suspect, from the look on his face, that he will find something to say.
Finally, the test of the voucher scheme, as the noble Baroness, Lady Farrington of Ribbleton, has said, is not actually its take-up rate. If the only way in which parents can obtain nursery education for their children is by having vouchers, then of course they will go for vouchers. The take-up rate, whatever it may be, is not a test, although we have some concern about those who do not seize that opportunity and why.
The test of the success of the voucher scheme must be the new provision which it brings. At Report stage the letter which some of us received from the Kensington and Chelsea Pre-School Learning Alliance, one of the pilot scheme areas, was mentioned. The alliance expressed its concern in that letter, and I quote from it:
"This has had a great effect on the local Pre-School as the 4 year olds have been filtered away to the school they were planning on entering in a year's time. Therefore we have lost their voucher money. The authority have suggested that they will be withdrawing the funding equivalent to the vouchers we have received".
It seems to be having the opposite effect from that which is intended. The amendment will make it much more likely that we can target the scarce and valuable resources where they are needed; we shall be able to cut out much administration and a long paper chase; and we shall actually be seeing the money best used as it should be used, to provide additional provision for four year-olds and we hope in due course, three year-olds. I beg to support the amendment.
The Lord Bishop of Ripon: My Lords, in the final exchange on the Report stage of the Bill the Minister commiserated with me for having apparently taken a vow of silence not to speak on any amendment except those to which my name was put. I should like to assure him that, in standing to speak on this amendment, such a vow can in fact be rescinded.
I wish to support the general thrust of these amendments, and the major reasons for doing so have already been made clear by those noble Lords who have already spoken. These amendments do not disturb the central thrust of the Bill: that parental choice is still allowed and that a parent who has a child in nursery provision made available by the local authority could, if he or she wished, withdraw the child and place him or
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her with the voluntary or private sector. There is therefore no undermining of the central thrust of parental choice.
However, I want to underline what other noble Lords have already said. While I was turning over in my mind what to say, I recollected that during the Second Reading a number of us had talked about the nonsense of the long road along which money has to go in order to arrive at its final destination. As I was remembering that, the noble Baroness, Lady Farrington of Ribbleton, made exactly the same comment. I think it is also a nonsense that so much money has to be spent on administration when in fact it could be made available for new provision.
Like other noble Lords, I have been somewhat surprised at the volume of correspondence and particularly at the way in which it has continued to pour in. It did not come in only at the Second Reading stage. Many people, and indeed many parents, have written personal letters to me (as I know they have to other noble Lords) to express their concerns; and I would have thought that the Government might be concerned about the public relations effect of the Bill. I want to express my support for the general thrust of the amendments. I am by no means clear, however, that technically they would achieve what they set out to do. I have no doubt that the Minister will have points to make in that regard.
One point I would like to make is that the word "voucher" does not appear elsewhere in the Bill. Although it is an enabling Bill, and it simply enables grants to be made, the means by which they are made is indicated elsewhere. We are presuming it will be by voucher, but that is not on the face of the Bill. Therefore it seems a little odd that it should appear in this one place only, supposing that this amendment is agreed. If the Minister says that this amendment is technically flawed, I hope that he will take account of our anxieties and go some small way towards recognising the great concern there is about the Bill, not only in this House but throughout the country.
Baroness Perry of Southwark: My Lords, I am the first to wish to cut down on bureaucracy and I think there are real concerns about the paper chase that is implied by the enactment of the Bill. Nevertheless, it seems to me that there is a major problem with these amendments as they are proposed which I consider would have a very unfortunate effect. They could put a real brake on the opportunity for expansion of any local authority provision.
If the grants were to be made only in respect of voluntary and private provision, and if a local authority were to decide (as it would be quite free to decide) not to expand its nursery provision, then parents who wished to send their child to a good local nursery school would be unable to do so. It is all very well to protect the position of those parents whose children are already in local authority nursery education, but those new parents who might decide that they want their children to go would not be able to use a voucher to do so. Therefore the extraordinary effect of these amendments would be to make all the expansion happen in the voluntary and private sector and no expansion in the

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good nursery schools and classes which exist in the local authorities. I am sure that that is not the effect that noble Lords who have proposed these amendments would wish them to have, but I cannot see how it could be gainsaid.
At present, as we know, many local authorities have cut back on their nursery provision and there is no guarantee in the future that they would not continue to do so. The small extra amount of money which would become available to them because of the reduction in bureaucracy would not necessarily be spent on expanding their nursery education. Even in the first case, and certainly in the future, there would be no guarantee of expansion there. This seems to me more like the kind of provision one sees in a developing country, not in an advanced and civilised country like our own. We want to see our local authority provision expand as well as our private and voluntary provision.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, we have had some beguiling words from noble Lords who tabled this group of amendments. It is important to assure the House that this is yet another attempt to delay implementation of the scheme and to exclude existing provision from the scope of the scheme—existing local authority provision, of course, rather than existing private and voluntary sector provision. So, in essence, this is a series of amendments about delay and about preferential treatment for the existing local authority provision. Parental choice is set aside.
It was right for the right reverend Prelate to draw attention to some of the technical defects of these amendments. We should remind ourselves that as a revising Chamber it is not right on Third Reading to bring forward amendments which do not achieve what the proposers of those amendments have set out to achieve. I have to make it clear to the noble Earl, Lord Baldwin, that his claim that they do not set aside parental choice is wrong. If his intention is that there should be total freedom of parental choice, the amendments do not achieve that aim. It would not be right for us to pass them.
We must address what noble Lords opposite and local authorities are frightened of. On the one hand, noble Lords, together with a number of local authorities, tell me how good their provision is, how it meets the needs of the local community, how it is of good quality, and how parents are completely satisfied with it. But on the other hand, noble Lords and the same local authorities tell me that they are frightened that parents, with the new found mechanism that the Bill will provide to express their choice, might flee the maintained sector. We cannot have it both ways. If, and I appreciate that is a big if, local authorities are providing what parents want, and parents continue to choose local authority provision, what have they to fear? I contend that if local authorities are making the right provision, they have nothing to fear.
It would be right for me to say a little about how the money will be deducted. Central government are providing a significant amount of new money to meet
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the costs of giving a voucher to every four year-old whose parents want it. But it is obvious that in order to avoid double funding, some money has also to come from local education authorities' existing funding for four year-olds.
There has been much misrepresentation of the way in which the amount to be taken from each LEA's funding will be calculated. I shall therefore explain the proposal in straightforward terms. Local authorities currently receive funding from the Government for educating children under five. When the nursery education voucher scheme starts, the amount of funding coming through the present route will be reduced. The amount it will be reduced by is the number of four year-olds currently attending state schools in the LEA, multiplied by the voucher value.
That means that if a four year-old is attending a state school in this school year, the LEA's funding in the first year of the voucher scheme will be reduced by a certain amount for that pupil. But if that four year-old's place is filled again under the voucher scheme, then the LEA will get back that same amount of money through the voucher. If the LEA creates a new place, then it will get the voucher money even though it has not had any funding deducted for that place.
So the only LEA provision which is threatened by the voucher scheme is poor provision—provision to which parents do not choose to send their children. I can only assume that those who talk about schools "losing" funding have very little faith in the quality of those schools.
The amendments have two purposes: to deny parents the choice we seek to give them; and to shield local authority provision from any chance of losing funding. Parents deserve choice. They know best what suits them and their children. Through their vouchers they can demand over time the provision of new places that meet their needs in local authority maintained schools or the private or voluntary sectors. Local authority providers, too, can modify what they do to suit parents and their children. But the amendment cuts across all that, and leaves the providers in charge. That will not do.
Subsection (4A) of Amendment No. 5 attempts to define the nursery voucher in statute—a point made by the right reverend Prelate. I suspect that a close examination would show that the attempt is not entirely successful. Defining the voucher in primary legislation would be extremely cumbersome, and it is for precisely that reason that the word "voucher" does not appear on the face of the Bill.
Further, much has been made of the £20 million alleged to be wasted on administration. The vast majority of that money is to go on inspection. The lion's share is for that new education inspection regime—one that does not exist in the private and voluntary sector. I am sure that that is something that the noble Baroness, Lady Farrington, will greatly welcome. She also alleged that the scheme was unpopular. Perhaps I may assure her that a survey conducted by my department showed that 60 per cent. of parents was in favour of the scheme. Its very popularity may be why noble Lords opposite so

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fear it. That is two and a half times as many as who were against it; and 87 per cent. of parents in Norfolk said that they were in favour of it.
As I said, the amendments cut across the purpose of the Bill. All I can recommend to the House is that the amendments be rejected. They are, as I said, defective. They do not achieve what is wanted. Even if they did, we do not believe that they are right way forward. I hope that the noble Earl will listen to my words and consider withdrawing his amendment. If not, I ask my noble friends and other Members of the House to reject the amendments.
The Lord Bishop of Ripon: My Lords, before the Minister sits down, will he correct my lack of understanding of one matter? I believe I heard him say that parental choice would be undermined by the amendment, but my reading of it is that even if the amendment were passed parents would still have the choice of withdrawing their children from existing local authority nursery provision and going elsewhere if they wished. Nursery schools would thereby lose income. Therefore I do not see how the amendment protects local authorities or undermines parental choice.
3.45 p.m.
Lord Henley: My Lords, with the leave of the House, I must remind the right reverend Prelate that we are at Third Reading. That is why it is undesirable to debate such an amendment at such a late stage. My advice is that the amendment would not achieve that and would deny parents the choice that we wish to give them. For that reason, the House should reject the amendment. The amendment does not achieve what the noble Earl claims; that is, protecting local authorities while maintaining choice for all parents.
The Earl of Mar and Kellie: My Lords, before the Minister sits down, does he agree that when a voucher is not applied for or is not placed because parents cannot find a suitable nursery, or is lost, that funding disappears?
Lord Henley: My Lords, again, perhaps I may remind the House that we are on Third Reading. That is not a valid point. The surveys we have conducted show that the vast majority of parents, particularly in Norfolk, can obtain vouchers. Obviously not all of them want vouchers. We are also seeing new provision occurring. We never said that there would be an automatic entitlement to a place the minute the Bill came into effect. We have always said that we look for growth in provision over time.
Earl Baldwin of Bewdley: My Lords, I did listen carefully to what the Minister said. I have to say that I disagree with him on most of the points that he put forward. I cannot for the life of me see how this restrains parental choice or alters the position. The right reverend Prelate made that point very well. It leaves choice just as it would have been under the Government's own scheme.
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The Minister asked what the LEAs have to fear. I thought that we had explained at great length that we fear this enormous rigmarole of administrative hoops that everything has to go through, in many cases to produce the situation that existed before. It is precisely that, and that only, which has led us to bring forward these shorter and more sensible routes to achieve the desired result.
Nor do I believe that it is right to invoke my noble friend Lord Weatherill's law of unintended consequences which he promulgated during our constitutional debate. I do not think that that applies here, except possibly in the Government's case, when it is this rigmarole of which I have already spoken. The noble Baroness, Lady Perry, said that this could be a brake on LEA provision, but as I said in my introduction, and as is in the amendment, LEAs can perfectly well bid for new provision under the schemes that exist at the moment. Nothing has taken that away from them. Therefore, the LEAs are in with as good a chance as anyone else. I firmly believe that that is the case. The noble Baroness shakes her head, but there is nothing to prevent them doing that. So for once the playing field is as level as we would all like it to be.
As regards the word "voucher", I have heard nothing to convince me that it is wrong. It may not be the best possible wording but it is a possible wording to have on the face of the Bill. I do not believe that it is fatal to our purposes to have it there and I am quite happy that it should be there in the form that it is.
In short, I have heard no argument which would persuade me that we are on the wrong tack with the amendments that we are putting forward. I am afraid that I must disappoint the noble Lord and ask the opinion of the House.
3.50 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 124; Not-Contents, 138.

Division No. 1

CONTENTS

Addington, L.

Carmichael of Kelvingrove, L.

Allen of Abbeydale, L.

Castle of Blackburn, B.

Annan, L.

Clancarty, E.

Archer of Sandwell, L.

Cledwyn of Penrhos, L.

Ashley of Stoke, L.

Clinton-Davis, L.

Baldwin of Bewdley, E. [Teller.]

Cocks of Hartcliffe, L.

Bancroft, L.

Craigavon, V.

Barnett, L.

Croham, L.

Beaumont of Whitley, L.

David, B.

Berkeley, L.

Davies, L.

Birk, B.

Desai, L.

Blackstone, B.

Diamond, L.

Bledisloe, V.

Donaldson of Kingsbridge, L.

Borrie, L.

Dormand of Easington, L.

Brightman, L.

Dubs, L

Broadbridge, L.

Eatwell, L.

Brooks of Tremorfa, L.

Elis-Thomas, L.

Bruce of Donington, L.

Ezra, L.

Callaghan of Cardiff, L.

Falkender, B.

Carlisle, E.

Falkland, V.

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Farrington of Ribbleton, B.

Milner of Leeds, L.

Fisher of Rednal, B.

Molloy, L.

Gallacher, L.

Monkswell, L.

Geraint, L.

Morris of Castle Morris, L.

Gladwin of Clee, L.

Murray of Epping Forest, L

Graham of Edmonton, L.

Nicol, B.

Greene of Harrow Weald, L.

Ogmore, L.

Greenhill of Harrow, L.

Palmer, L.

Grey, E.

Peston, L.

Hamwee, B.

Plant of Highfield, L.

Harris of Greenwich, L.

Ponsonby of Shulbrede, L.

Hayman, B.

Porter of Luddenham, L.

Healey, L.

Prys-Davies, L.

Henderson of Brompton, L.

Rea, L.

Hilton of Eggardon, B.

Redesdale, L.

Hollis of Heigham, B.

Ripon, Bp.

Holme of Cheltenham, L.

Ritchie of Dundee, L.

Howell, L.

Robertson of Oakridge, L.

Howie of Troon, L.

Rochester, L.

Hughes, L.

Rodgers of Quarry Bank, L.

Irvine of Lairg, L.

Russell, E.

Jay of Paddington, B.

Scanlon, L.

Jeger, B.

Serota, B.

Jenkins of Hillhead, L.

Shepherd, L.

Jenkins of Putney, L.

Stallard, L.

Kennet, L.

Stoddart of Swindon, L.

Kinloss, Ly.

Strabolgi, L.

Kitchener, E.

Stafford, E.

Lester of Herne Hill, L.

Taylor of Blackburn, L.

Lincoln, Bp.

Thomson of Monifieth, L.

Lockwood, B.

Thurso, V.

Longford, E.

Tonypandy, V.

Lovell-Davis, L.

Tope, L. [Teller.]

McCarthy, L.

Tordoff, L.

McGregor of Durris, L.

Varley, L.

Mackie of Benshie, L.

Wallace of Saltaire, L.

McNair, L.

White, B.

Mallalieu, B.

Wigoder, L.

Mar, C.

Williams of Crosby, B.

Mar and Kellie, E.

Williams of Elvel, L.

Mason of Barnsley, L.

Williams of Mostyn, L.

Mayhew, L.

Wilson of Tillyorn, L.

NOT-CONTENTS

Addison, V.

Courtown, E.

Ailesbury, M.

Cox, B.

Ailsa, M.

Craig of Radley, L.

Aldington, L.

Cranborne, V. [Lord Privy Seal.]

Alexander of Tunis, E.

Cuckney, L.

Allenby of Megiddo, V.

Cullen of Ashbourne, L.

Archer of Weston-Super-Mare, L.

Cumberlege, B.

Ashbourne, L.

Davidson, V.

Balfour, E.

De Freyne, L.

Belhaven and Stenton, L.

Denham, L.

Beloff, L.

Denton of Wakefield, B.

Berners, B.

Devonport, V.

Blaker, L.

Dixon-Smith, L.

Blatch, B.

Downshire, M.

Boardman, L.

Ellenborough, L.

Bowness, L.

Elles, B.

Boyd-Carpenter, L.

Elliott of Morpeth, L.

Brabazon of Tara, L.

Finsberg, L.

Bruntisfield, L.

Flather, B.

Butterworth, L.

Fraser of Carmyllie, L.

Campbell of Alloway, L.

Gainford, L.

Campbell of Croy, L.

Geddes, L.

Carnegy of Lour, B.

Gisborough, L.

Carnock, L.

Goschen, V.

Cayzer, L.

Gray of Contin, L.

Chalker of Wallasey, B.

Hailsham of Saint Marylebone, L

Chelmsford, V.

Hayhoe, L.

Chesham, L. [Teller.]

Hemphill, L.

Cockfield, L.

Henley, L.

Coleridge, L.

Holderness, L.

Constantine of Stanmore, L.

Hooper, B.

632

Hylton-Foster, B.

Pender, L.

Inglewood, L.

Perry of Southwark, B.

Ironside, L.

Peyton of Yeovil, L.

Jenkin of Roding, L.

Pilkington of Oxenford, L.

Johnston of Rockport, L.

Quinton, L.

Kilpatrick of Kincraig, L.

Rankeillour, L.

Kintore, E.

Rawlinson of Ewell, L.

Knollys, V.

Rees, L.

Lane of Horsell, L.

Rennell, L.

Lindsay, E.

Renwick, L.

Lindsey and Abingdon, E.

Richardson, L.

Liverpool, E.

Romney, E.

Long, V.

St Davids, V.

Lucas, L.

Saltoun of Abernethy, Ly.

McColl of Dulwich, L.

Seccombe, B.

McConnell, L.

Shannon, E.

Mackay of Ardbrecknish, L.

Sharples, B.

Mackay of Clashfern, L. [Lord Chancellor.]

Shaw of Northstead, L.

Sherfield, L.

Mackay of Drumadoon, L.

Simon of Glaisdale, L.

Macleod of Borve, B.

Skelmersdale, L.

Mansfield, E.

Slim, V.

Manton, L.

Stewartby, L.

Marlesford, L.

Strange, B.

Merrivale, L.

Strathcarron, L.

Mersey, V.

Strathclyde, L.[Teller.]

Monteagle of Brandon, L.

Sudeley, L.

Montgomery of Alamein, V.

Swinfen, L.

Mountevans, L.

Terrington, L.

Mowbray and Stourton, L.

Teviot, L.

Moyne, L.

Thomas of Gwydir, L.

Munster, E.

Thomas of Swynnerton, L.

Murton of Lindisfarne, L.

Trefgarne, L.

Newall, L.

Vivian, L.

Norfolk, D.

Westbury, L.

Northesk, E.

Wigram, L.

O'Cathain, B.

Wilcox, B.

Oxfuird, V.

Wise, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

Northern Ireland
4 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield): My Lords, with the leave of the House I shall now repeat the Statement on Northern Ireland which has been made in another place by my right honourable and learned friend Sir Patrick Mayhew. The Statement is as follows:
"With permission, Madam Speaker, I will make a Statement about the events of the past 10 days in Northern Ireland. Throughout this period massive and completely unacceptable civil disorder has occurred on both sides of the community, totally wrongful in character and unjust in its consequences for all its victims.
"In the course of this period two men have tragically lost their lives. The RUC has been stretched to the limit of its ability to maintain order and preserve life. Violent manifestations of sectarian antagonism have occurred. Intimidation, including intimidation of RUC officers and their families, has been rife. The Killyhevlin Hotel at Enniskillen has been gravely damaged by a bomb, with many people shocked and injured.

633
"All this represents, without doubt, the worst set-back for many years: a return to what so many people in Northern Ireland, and far beyond, had prayed was over for good. This has been a black period for Northern Ireland, with deep fears and anxieties generated on all sides. Trust and confidence have suffered greatly.
"In this Statement I will examine briefly with the House what has happened and what the way forward from here now should be. At the outset, however, I wish to say three things.
"First, I warmly commend, as I think the whole House will, the maintenance by the loyalist paramilitary organisations of their ceasefire. It is of critical importance that this should be sustained.
"Secondly, if the people of Northern Ireland are to be helped to move back from the abyss and forward to a better future, all of us who claim a right to speak on these matters must seek to be objective and fair. To seize on what is no more than a partisan perception and to proclaim it as an established truth without examination is immensely dangerous and damaging.
"Lastly, I want to say that the scene, grave though it undoubtedly is, does have a crucially positive element. We have in place a democratic process of political talks, for which a large majority of the electorate has voted. I shall return to this and to its paramount importance.
"Sir Hugh Annesley, the chief constable, yesterday gave an extensive interview to the BBC. He described the background to these events and the events themselves. I have placed a transcript of that interview in the Library. I commend it strongly to the House. It sets out the facts.
"Unprecedented efforts had been made by the Government, by Church leaders, by the RUC and by others, to secure an accommodation at Portadown. The chief constable makes it clear that ever since January he personally, and his Deputy Chief Constable, Mr. Flannigan, had tried with both sides at Portadown to negotiate a compromise. I pay special tribute to the entirely independent efforts of the Church leaders, who strove for two days and two nights to bring the two sides together, sadly without achieving success.
"The chief constable is required by law to consider the likelihood of serious disorder if a notified march proceeds. He has to make an operational, professional and impartial judgment. That judgment, under our clearly established constitutional arrangements, is for him alone.
"On Saturday 6th July the chief constable had duly decided to order that the return stage of the Orange Order parade at Portadown, to take place the following day, should be re-routed away from the Garvaghy Road. A lawful order was accordingly made to that effect. That decision was made because he anticipated serious organised disorder, not limited to Portadown protesters, if the intended return stage of the march went ahead. A counter march planned by the Garvaghy Road residents also had restrictions
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placed upon it, although in the event it did not take place. I wish to make it clear that in taking that operational decision at that time and in those circumstances the chief constable had, and retains, the full support of the Government.
"Over the next four days there occurred serious disorder both at Drumcree and in many other parts of the Province. There was a clear and reprehensible intention to overstretch the capacity of the RUC to maintain public order.
At Drumcree itself the chief constable has said, in his own language, that the most insidious, despicable and disgusting threats to his officers in the front line were made, to the effect that their wives or families would be got at. Elsewhere the RUC were fiercely engaged. There was intimidation of their families and other civilians, with widespread blocking of roads and attacks upon property.
"The RUC, with full support from the Army, did its duty with great resolution in responding to this critical situation. At the request of the chief constable, two further battalions were brought into the Province in support of his force. However, despite the sustained efforts to which I have referred, it proved impossible for the two sides within the local community at Drumcree to reach an agreement.
"On the morning of 11th July, after considering a number of options and having awaited the outcome of the ongoing attempts at mediation, the chief constable decided that a limited parade down the Garvaghy Road was the option most likely to prevent loss of life. He has made clear that it was foreseeable that by the night of the 11th July some 60,000 to 70,000 Orange marchers would be invited by the Orange Order to converge on Drumcree, and an attempt had already been made to get through the fence. In that event he foresaw that they would overrun the wire, obliging the police and the military to withdraw and to attempt to protect the Garvaghy Road estate.
"He concluded that there would be serious risk of lives being lost, including on the Garvaghy Estate, and he has said that he would not in any circumstances have 'traded one life for the Garvaghy Road'. In that decision also the Chief Constable has the full support of the Government. We also share his regret at what he has described as an outrageous attempt by one side to impose its will on the other by the sheer weight of force.
"I recognise, of course, that the nationalist community, or many of them, are bitterly critical of this decision, but it was taken very much with the safety of the Garvaghy Road residents in mind. I am in no doubt, however, that under the circumstances it was the right one. The violence which followed in many nationalist areas was no more justified or acceptable than that fomented by loyalists earlier in the week.
"Once again, the security forces came under intense attack, from gun fire as well as petrol bombs and other missiles. The police have responded proportionately and with great courage and professionalism to these attacks.

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"The police investigation into the bomb attack on the Killyhevlin Hotel is now under way. While it is too early to say which organisation was responsible, it seems clear that preparations for this attack began well before the events of Drumcree.
"These events surrounding Drumcree, and those surrounding the march on the Lower Ormeau Road in Belfast on 12th July, have underscored the potential destabilising effect of controversial parades. There are no immediately obvious answers. My right honourable friend the Minister of State, the Member for Westminster, North, has over many months been seeking to help the avoidance of conflict in this year's marching season. As I said in the House last week, I now have in mind a general review that will make recommendations about the better management of future controversial parades. I therefore confirm today that the Government intend to establish a review based on evidence which any interested party will be free to submit. I envisage that the review would examine the current arrangements for handling parades and marches in Northern Ireland. I shall announce later further details of the review, including the name of the chairman and detailed terms of reference.
"Recent events are, however, but a symptom of the much deeper divisions which plague Northern Ireland. We must, along with all politicians committed to a peaceful solution, continue to seek to overcome those. This can be done only in a talks process in which all these issues can be addressed and which is committed to securing an agreed outcome which respects the aspirations and principles of both parts of the community. I referred earlier to the democratic process of talks which is in place. It is now more imperative than ever that it begins to address the substantive issues that lie at the heart of the divisions which have had such terrible consequences. I am pleased that this process continues tomorrow.
"For our part the Government are fully committed to the talks process. I and the Prime Minister will be meeting with the leaders of each of the parties involved over the coming days to hear their views of the way forward and to emphasise our commitment to the talks process.
"I shall also be making arrangements in consultation with the Irish Government to meet them in an intergovernmental conference to discuss the mutual security interests between our two countries and to demonstrate the reasons behind the decisions taken last week. We intend on this basis to rebut very firmly quite unjustified and unwarranted criticism which has been made of the Government and of the RUC. In particular my purpose will be in the presence of the chief constable to rebut any suggestion of political interference in his operational decisions.
"All those who wish to lead Northern Ireland towards a more peaceful future—and they certainly include the Government—must now work together to re-establish trust and dialogue. None of us can accept
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a return to the violence of the past 25 years. All of us have a responsibility to do what we can to avoid that and to demonstrate beyond all doubt that it is truly possible to find political and peaceful means of resolving Northern Ireland's profound problems. That is the challenge that confronts us now."
My Lords, that concludes the Statement.
4.13 p.m.
Lord Williams of Mostyn: My Lords, as always on these occasions, I thank the Minister for repeating the Statement. This is a profoundly depressing occasion for us all and I believe it to be a time of potential great danger in Northern Ireland and elsewhere.
We all condemn the murder of a taxi-driver, killed for no greater sin than being a Roman Catholic; the destruction of the hotel in Enniskillen; and the mindless violence and intimidation of these past days. We particularly congratulate those responsible for this morning's success in discovering what seems to be a bomb factory as close to us as south London.
It all seems to be so sad—the hopes and dreams of thousands shattered in just a week of madness. I agree as emphatically as I can over the importance of trying to secure the continued ceasefire by the loyalist paramilitaries.
It was only on Tuesday last week in this House that the noble Baroness, Lady Denton, answered a Starred Question on Northern Ireland. As the House will recall, I assured her of our bipartisan support, and she very generously, as always, recognised that. It was only Tuesday. I asked her whether Her Majesty's Government were content with the arrangements for security and peacekeeping at Drumcree and Portadown. Something went very badly wrong. The threat of violence succeeded. The chief constable, in the quotation which the Minister herself adopted, described this as "outrageous". I agree.
The honourable Member who speaks on these matters in another place, Dr. Mowlam, and I have been deeply concerned about the flashpoint which we knew would come. Because of that, we started discussions about what should be done in July of last year. This is a bleak and unfortunate story. Dr. Mowlam wrote to the Secretary of State on 17th July 1995 saying:
"Could you let me know what preparations are being made to establish a mechanism for discussions between the community groups in advance of the marches next year?".
That was a year ago. She wrote again on 19th February of this year. The Secretary of State replied that the operational handling of parades was for the chief constable. On 1st April of this year, Dr. Mowlam wrote:
"The Northern Ireland Secretary should, as a matter of great urgency, seek advice on mediating local solutions rather than landing the RUC with the problem".
What she foresaw is exactly, I regret to say, what happened: the RUC were landed with the problem. As the chief constable said, he is sick of being between a rock and a hard place.

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Dr. Mowlam wrote again on 10th June of this year, when she said:
"You may recall I proposed the establishment of an independent commission to take in the wider views of the communities living where marches take place; to advise on possible ways to reduce tensions. Both Archbishop Eames and Sir Hugh Annesley, the Chief Constable, have indicated their support for independent advice".
On 25th June Dr. Mowlam wrote again saying:
"I am concerned that unless the questions are tackled on a larger scale, the potential for these situations to deteriorate each year will escalate".
She asked for a commission to look at guidelines for the conduct of parades; how to ensure that decisions about the routing of parades should be fair and consistent; and an inquiry about how effective is the existing law relating to parades.
The Secretary of State said that he had accepted advice that the disadvantages of such a commission outweighed the advantages. That was his view on 26th June 1996. I am sorry to say that I believe the advice was wrong and the acceptance of it deeply mistaken.
There are at least three important aspects on which we must focus our minds. I am grateful to see that the Secretary of State, in the Statement which was repeated, is now going to appoint a commission. It seems to us that that must report before the end of this year at the very latest.
Secondly, the closest co-operation is called for between Her Majesty's Government and the Government of the Irish Republic. Of course I welcome the Secretary of State's decision to meet the Irish Foreign Minister tomorrow. We welcome the intergovernmental proposals referred to in the Statement. I shall be grateful if the Minister will indicate what sort of timescale the Government have in mind.
I repeat that no terrorist or malcontent will get any opportunity to destroy our bipartisan support. But if this weekend's events have demonstrated anything, it is that imaginative forward thinking and planning on a political basis is the only key. I believe that no one can blame the Chief Constable; but there are questions about the political decisions which were made as a background to the disasters that have befallen us. I entirely agree with the Minister. Although this is a dark time, there is some light. However, the problems are becoming more difficult by the day.
Lord Holme of Cheltenham: My Lords, the last time that I addressed the House on a ministerial Statement on Northern Ireland, I warned that it would be a long and bumpy road and that there would be hopeful times and bleak times. This is certainly a bleak time. We have just gone over the most enormous bump. All Members of your Lordships' House will share the sadness that so many hopes have been dashed and so many good efforts thrown away. In that context, and in view of the painstaking work that she has put in on economic progress in Northern Ireland, I am sure that the noble Baroness will be particularly saddened today.
It is terrible to see old bitterness which had been silenced for nearly 24 months freely expressed again with bombs exploding and fires burning in Northern
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Ireland. We should not delude ourselves: what we are seeing here is not the peace process at risk, but the very ceasefire itself. I do not believe that it is a time for recrimination because, like those on the Benches to our left, we have tried and have not found it too difficult throughout the developing peace process to adopt a bipartisan approach.
However, we must ask ourselves how we came to this pass. It is possible to discern some things that have gone wrong over the past few months. There is no doubt that the excessive attention to the demands of the IRA over a long period—a squeaky wheel which has had all the grease of political effort applied to it—has created significant resentment and tension in the Unionist community. But, at the same time, I am amazed that responsible constitutional Unionist leadership should have chosen to inflame rather than to reduce tension over the days of the march. How much of what the Statement describes as,
"an outrageous attempt by one side to impose their will on the other by sheer weight of force",
has been due to the role played by those who purport to be leaders but who, sadly, have behaved more like followers? I am also surprised that we are now proposing to set up a review of marching and parades. As the Labour Party has said, surely the time to have done so would have been after the clearly signalled trouble at Drumcree last year, and on other marches, rather than now.
Then there is the question of the operational nature of the decision made by the chief constable. How can it any longer be a local operational matter when it has become massively politicised with the prospect of a breach of the rule of law that threatens the basis of civilised life in the British Isles? There is also the question of the exchange of discourtesies with the Irish Government which has now, mercifully, stopped. As I am sure most noble Lords in this House will agree, I believe that the Taoiseach expressed himself over-forcefully and, perhaps, imprudently. However, we could hardly dare hope for a Prime Minister in Dublin who is a greater friend of Britain and a greater enemy of terrorism than Mr. John Bruton. This is the time to respond to him in a more generous spirit.
I turn now to the future which is the important matter. It is vitally important that the Governments get together. Can the Minister say when that will happen and at what level? There is a slight vagueness in the Statement in terms of the IGC being reconvened. That is extraordinarily urgent. Whenever the two Governments are apart, we have all observed that the terrorists and men of violence thrive. The centre must hold; and the only centre that we have in this situation consists of the two Governments.
Further—and the Government have done this very wisely in the Statement—perhaps I, like the noble Baroness, may appeal to the former leadership of the loyalist paramilitaries—Mr. Gary McMichael, Mr. David Ervine, Mr. Billy Hutchinson, and others. I have got to know them as, indeed, have government Ministers. I appeal to them for continuing restraint. They now hold the key to this issue not becoming a wider conflict.

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I should like to ask the Minister about the proposed review. Will it go beyond the technical question of how and where marches are conducted and deal with the fundamental issue of whether those marches are a perfectly legitimate cultural and historical celebration; or whether they are, as they seemed to be last week, the assertion of the supremacy of one community over the other?
Finally, let us try to ensure that we do not neglect the people of Northern Ireland in the equation. They still will for peace. Indeed, the people whom we saw on the streets last week do not represent them: they are being betrayed by the loud voices and the bully-boys. Above all, there is a special responsibility on the constitutional leadership of Unionism. After all, the Anglo-Irish Agreement, the Downing Street declaration and the framework document all show that Northern Ireland will not, as many Unionists feared, be merged against its will into a united Ireland.
I ask my Unionist friends what they are going to contribute in terms of positive goodwill and movement now that they have the assurance which matters most to them. It is no good them calling on their gracious Queen and on their British identity unless they, too, are prepared to respect the rule of law and behave like Britons.
Baroness Denton of Wakefield: My Lords, I thank both noble Lords for expressing much of the concern that I feel the whole House is experiencing. These were not good days in Northern Ireland. There is no pride to be taken by anyone other than by those people who called for sensibility and for an end to violence. That included many people—for example, families of people who were killed, and others—who sought to build a future. The noble Lord, Lord Holme, rightly praised the people of Northern Ireland. I should like to add that those people went to work and continued to try to do so, despite five diversions on the way. The aim of most of the people in Northern Ireland is to build a future.
Those people were doing just that and, indeed, were leading a normal life. For example, the Catholic couple who were celebrating their wedding in a hotel owned by a Protestant had no thought of what might happen. They were thinking about their future. There were also people who were aiming to bring up their grandchildren at home in Northern Ireland and who had invested much in that peaceful future. We, as Government, continue to do just that.
I join the noble Lord, Lord Williams, in praising the work of the police in discovering the arms cache in south London today. I hope that that reassures the House that the fight against terrorism will be ceaseless and that it will continue day and night. There is a need for mediation; and, indeed, there is a need for people to talk to each other. I hope that the Statement made clear that the Government believe that dialogue is the path to the future.
The noble Lord, Lord Williams, listed some of the correspondence between the Secretary of State and his honourable friend who speaks on Northern Ireland
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issues in the Shadow Cabinet in the other place. Perhaps I may, first, absolutely reject any suggestion that the Government have sat on their hands and done nothing for the past year. The suggestion made by the honourable lady in July of last year was a mechanism for discussions between community groups. Both mediation groups and the RUC at Drumcree were already well down that road trying to find an accommodation.
The suggestion made in February of this year of an arbitrating or executive body raised a number of difficulties. However, it is hoped that the forthcoming review will have the opportunity to look at the matter. I can assure the noble Lord, Lord Holme, that the review will look at the overall issue. We doubt that a commission which said, "Thou shalt use the rerouted march", would have been any more effective than any of the statutory and constitutional methods already in place.
In reply to the noble Lord's question on the role of a chief constable and the Government, we believe that in this democracy, following our constitutional arrangement, one does not direct the police as to their operational decisions. Public confidence will not accept a Minister taking a decision as to whether a march goes ahead. But we believe that the review should cover all those issues.
I am pleased to reassure noble Lords that the next meeting of the intergovernmental conference is planned for Thursday; and, of course, it is planned that there will be an Irish Minister at the talks tomorrow. We rightly believe and share the views expressed that the two Governments working closely together, shoulder to shoulder, is the best way to build a peaceful process.
We continue to aim in the future to represent a consensus of the views of people who live in Northern Ireland. There is no question that by talking, by learning about those views, by the elective process which showed that so many people in Northern Ireland wished for the dialogue route, we can work to the future. But we work with the help of our many friends in this House, and with the support we have received from the Opposition Benches for many months now. That enables us to look towards the future with hope—because that is what we must do.
4.31 p.m.
Lord Marsh: My Lords, will the Minister, accept, sad though it may be, that after so many deaths and so many years it is at least possible that there is no compromise solution available? Everybody wishes the Government every success in seeking to negotiate. We have now been a long time doing so. Will the commission be able at least to consider this possibility if it so wishes?
Baroness Denton of Wakefield: My Lords, the review will consider the role of the marching process in this matter. I would remind the noble Lord, Lord Marsh, that over many months in Northern Ireland in the past two years there has been a lack of violence. People have led a normal life, building for their children and for future generations. I am afraid I cannot share his

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depressing thought that there is no solution. I believe that in the past two years we have seen a desire by the majority of people to walk towards this solution although, as the noble Lord, Lord Holme, said, it was always known it would be bumpy.
Lord Healey: My Lords, the noble Baroness has made it crystal clear that the tragic dangers now faced by the peace process were brought about by an operational decision of the chief constable to reverse a clear decision he had previously taken—because of the threat of violence from the Unionists in the area, indeed, throughout Northern Ireland as she has now told us.
That decision was seen by the Catholic community throughout Northern Ireland, represented by the head of the Roman Catholic Church there, as a reversion by the police to its traditional role as the supporter of the Unionist community in Northern Ireland. I am living in the past to this extent. Twenty-seven years ago I was Secretary of State for Defence when the sectarian behaviour of the B Special police compelled the Government of the day to put security under the British Army and to reform all the local police forces in Northern Ireland.
This was the clearest possible demonstration that the use of police forces in Northern Ireland is not automatically always simply an operational matter. It may have profound political implications, even for our relations with foreign governments, and those political implications require consideration and decision by a Minister. Incidentally, I found that this was equally true of our Armed Forces in Aden and Borneo, as several of my noble colleagues here may remember.
Last week's tragedy stems essentially from Ministers forgetting this central fact as regards the situation in Northern Ireland. If we are to get the peace process going again, they must never forget that fact again. The use of police forces in Northern Ireland, in situations such as occurred last week, must be for decision by political Ministers.
Baroness Denton of Wakefield: My Lords, a situation likely to occur in your Lordships' House is that one finds oneself in disagreement with someone who has many years' experience and knowledge. However, I believe that it is important to maintain a constitutional situation in which the decision on such matters as maintenance of order is for the chief constable.
When the chief constable required further troops to support him, the Government were happy to ensure that that happened. The battalions were provided, as was required. But it is important that the law which Parliament has provided to guide the chief constable is maintained. I would suggest that the responsibility for the violence of Northern Ireland in the past days was entirely that of those people who rioted and challenged the rule of law.
Lord Skelmersdale: My Lords, these are dire days for Northern Ireland and it is quite right that we should weep for all the people in Northern Ireland, whether they be members of the public, members of the RUC or indeed, anybody else.
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I am particularly glad that this review will now take place. But I notice that there have been several very strange articles in the press recently, both in this country and, indeed, in the Irish Republic. Will the review be able to take account of the activities of the press which, of course, have an effect both in Northern Ireland and on thinking over this side of the water? Headlines such as "Government orders RUC volte-face" simply do not help in any of these situations.
Baroness Denton of Wakefield: My Lords, I am pleased to agree with my noble friend that the media brings little help in these situations. The images that were flashed round the world in the past week will have a tremendously detrimental effect on the economic future of Northern Ireland and on the impression of the people of Northern Ireland, because it is a warm nation who welcome strangers and we saw transmitted pictures of that minority who do not.
I believe that the issue is not the media in this instance; it is to cure the problem. The review will concentrate on ensuring that there is no repetition of the incidents that happened throughout the Province on this occasion.
Lord Mason of Barnsley: My Lords, is the Minister aware that I agree with much of the Statement? I also agree with the decision of the chief constable. I thought at the time that he was in a very difficult, dangerous position. However, he decided, in order to save life, that he had to be responsible for a volte-face. I backed him.
Is the Minister aware that it is essential, first, that the Stormont peace talks continue because they are holding the ring between most of the political parties? Secondly, we must strive to restore the ceasefire. Those are the two imperatives.
However, we must remind ourselves that the Provisional IRA shattered the ceasefire with the Docklands bomb, the Manchester bomb, and the bomb on a London bridge. It has even been shattered in Northern Ireland in the past 48 hours. The so-called Republican Sinn Fein is still part of the Provisional IRA. Is the Minister aware that the Protestant paramilitaries are now teetering on the brink of revenge? Noble Lords who have already spoken have appealed to them for restraint, for one incident by them could be the last straw before the outbreak of civil war in the Province.
Is the Government aware that I and, I think, the majority in the Province, feel that they have gone too far in speech and deeds, alarming the Protestant community? They feel that their link with Great Britain is being totally eroded by the constant whittling down of what was the position prior to the Anglo-Irish Agreement. They are also worried that there is too much Republican interference in Northern Ireland affairs. Of course the comments made by the Taoiseach this weekend did not help. The majority community in the Province needs to be reassured and calmed. If only the Government would convey the message that there will not be a united Ireland; that there is no surrender to the South; and that there will be no more concessions to the IRA, the tension in the Province might be eased.

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If there is another bomb outrage, would the Government not consider, in view of the anger of the nation in its wake—that was certainly true of Manchester—carrying out a sweep of arrests of suspects in Northern Ireland, in Great Britain, and, with the assistance of the Taoiseach, in the Republic, to shatter their system, their command structure, their proposals and their plans? We can hold them, and within the law. I believe we just cannot continue to sit back waiting for bombs and deaths. A round up ought to be considered.
Baroness Denton of Wakefield: My Lords, like all of us who have been Ministers in Northern Ireland, the noble Lord, Lord Mason, has suffered the frustration of trying to work towards peace, but failing so far to attain it. He asks us to make it clear that there is no role for the violence of the IRA. I should have hoped that was entirely clear. There has been no negotiation by Ministers with it since the breaking of the ceasefire in the aftermath of the Docklands bomb. We could have asked for no greater support than we received from the Taoiseach in Ireland and from the President of the United States in condemning the IRA's violence. No one was allowed to continue discussions while the ceasefire was broken. The noble Lord asked us to reassure the Unionists that there is no intention to break up the Province. My right honourable friend the Prime Minister, my right honourable friend the Secretary of State, and all of us who represent the Government, have made it clear time and time again that the future of Northern Ireland is in the hands of the people in Northern Ireland. There is a triple lock on that process.
The noble Lord commented on our security activity, should there be a further bomb. We must hope and pray that that situation will not arise. I am grateful to your Lordships who, with Members of another place, have made it possible to retain on the statute book the possibility for the security forces to take the appropriate action, should that be necessary.
Baroness Williams of Crosby: My Lords, I add my tribute to those paid to the noble Baroness, Lady Denton, for the work that she has done in a most detailed and painstaking way to try to create links for peace in Northern Ireland. I have appreciated the tremendous efforts that she has made to bring the communities together. I thank her for the clear Statement. I should have thought that Her Majesty's Government have made it clear time and time again that no decision about the future of Northern Ireland will be made which is contrary to the wishes of the majority of the people of Northern Ireland. If I may say so, I was a little surprised at the comments of the noble Lord, Lord Mason, because I cannot think that anything could have been more clearly stated than that. I think the noble Baroness might agree that the problem with Northern Ireland is to try to persuade both communities that neither triumphalism on the one side nor terrorism on the other will lead to a successful move towards peace. When the review considers the routeing of marches, will it also consider whether the whole role of marches does not express more about the history of Northern Ireland than about its future? Will the noble
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Baroness once again advocate the significance and importance of sharing responsibility and power between both the communities that together make Northern Ireland both the difficult but also the remarkable place that it is?
Baroness Denton of Wakefield: My Lords, I thank the noble Baroness for those comments. Living together, working together and sharing together is the future for Northern Ireland. It is quite obvious that much work needs to be done. Perhaps the most frightening aspect of the past few days was to note how close to the surface the bitterness still was. I agree that living in the past and taking too much account of history means that history becomes the future. We must avoid that. It is worth considering that last week was also the week that President Mandela paid a visit. We can all learn much from him as regards looking forwards rather than backwards. I believe the noble Baroness will agree with me that we need to bring more women's voices to these discussions.
Lord McConnell: My Lords, I begin by saying that I deplore violence and terrorism in all its forms, no matter by whom it is committed. There has been great resentment over the past few days about the part that the Prime Minister of the Irish Republic has played in interfering in Northern Ireland, and—if newspaper reports are correct—of being somewhat abusive to our own Prime Minister. The Prime Minister has said—again I go by press reports—that Northern Ireland is as much a part of the United Kingdom as Surrey. Would he like Mr. Bruton, or any other prime minister, to interfere in things that happen in Surrey? It should be made plain that that kind of interference should not be tolerated in the future, despite the notorious Anglo-Irish Agreement. I agree with what has been said by two noble Lords; namely, that great resentment is felt at concessions being made to the excessive demands of the IRA. That destabilises the majority population in Northern Ireland. I also felt rather ashamed when I noted that the Government said that they could not do anything about the events of the past few days or the past week because that constituted an operational decision of the chief constable. Admittedly there are many events that call for operational decisions but, when a situation becomes so grave, the Government have to take responsibility for governing the country.
Baroness Denton of Wakefield: My Lords, I stress to the noble Lord that part of the Statement where my right honourable and learned friend said that he intended to take the next meeting with the Irish Government as an opportunity to rebut very firmly the quite unjustified and unwarranted criticism of the Government and the RUC. There can be no doubt that in the past we have seen co-operation between the security forces of north and south and the support of the Taoiseach in condemning violence and taking all the necessary steps to ensure that the situation is kept in that way. I say to the noble Lord that concessions are not being made to the IRA. We are trying to work for the people of Northern Ireland to bring forward their own solution to their future.
Lord Stallard: My Lords, I recognise that time is running short. I welcome the Statement and I sympathise with those who expressed concern about the victims killed and injured in the upset of the past few days. However, I should like to have heard a little more self-criticism in relation to the major obstacles to whatever progress will be made. In relation to progress on peace, we ought to be critical of our own Government and ourselves for frittering away 18 months of a ceasefire when we were told at the very beginning that if it lasted three months there would be peace talks. It lasted 18 months before there was any move. But in between, one obstacle after another had been raised to make sure that the peace talks did not take place. We were then faced with the current situation.
On the recent events in Drumcree, the whole world saw on television how the Orange Order gradually overruled whatever decisions were made by chief constables or governments, resulting in the surrender at Drumcree. The whole world saw how the RUC then lashed into the Catholic population of men, women and children with batons and other weapons to make sure that the Orange Order's decision was maintained. That was a disgraceful state of affairs. We ought to be critical of it and not try to excuse it.
Thirdly, I welcome the Taoiseach's remarks in southern Ireland. I understand his frustration and the anger that is felt among the Catholic population in the whole island. Of the 32 counties, he governs 26 counties where Protestants and Catholics live and work in peace together. Noble Lords on the other side shake their heads. I have forgotten more than they will ever know about the situation. It is about time that we were a little more self-critical. Then, we could become constructive.
Baroness Denton of Wakefield: My Lords, it is possible for Catholics and Protestants to live together. It is possible for people who do not box themselves in by their religion but treat each other as people to live together. We have not frittered away the time. We have taken many actions in the 18 months of peace which we hope will stand in good stead. We have treasured that. We do not wish to see the efforts now ruined by intemperate language and criticism. We build for the future.

Nursery Education and Grant-Maintained Schools Bill
Proceedings after Third Reading resumed on Clause 1.
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No.2:
Page 1, line 7, at end insert (", and where such arrangements are made, the Secretary of State, or a person exercising functions under section 2, shall take all practicable steps in liaison with persons to whom grants are payable to secure that parents about whom information is not available through the use of social security information to which Schedule 2 applies are contacted, to enable their children to have the opportunity to benefit from such education.").
The noble Lord said: My Lords, the purpose of this amendment is to place a duty on the Government or agency to find parents who are not on the DSS database and to ensure that they receive full nursery vouchers. There is widespread concern that many of the most vulnerable children will not receive nursery education as a result of this legislation because their parents are not registered with the Child Benefit Agency and so will not receive an offer to apply for a voucher.
Reference was made earlier to the research done by the DfEE. It showed that, despite the large amount of publicity, including posters, leaflets, advertisements in the local press, advertisements on supermarket trolleys and a helpline number, the main source of information about the voucher scheme was the provider itself, and the main burden was on the provider. That research went on to find that some 60 per cent. of parents believed they had too little information. In the case of Westminster, it was 73 per cent. of parents. Parents also believed that the information was at the wrong level.
This weekend I received a helpful letter from the noble Lord, Lord Henley, in which he made it clear that every effort would be made to ensure that eligible children do receive a voucher. He made clear his intention; however, the purpose of the amendment is to place an obligation on the face of the Bill to ensure that all children receive a nursery voucher.
We are talking about the most vulnerable children. It is likely that those who do not receive a voucher are the children of feckless parents, of parents seeking asylum or of parents who may recently have moved. Such children are likely to be very vulnerable. It is right to place an obligation on the face of the Bill to require the Government, through their agencies, to ensure that all children have the opportunity of nursery education. I beg to move.
Lord Henley: My Lords, I agree that it is vitally important that parents, should they wish, apply for vouchers for their children and that children benefit from the scheme. It is also important that schools, nurseries and playgroups receive the grant to which they are entitled.
However, I do not believe that it is necessary or workable to place on the face of the Bill the requirement that contractors and providers must pursue those parents who do not apply for vouchers, as the amendment suggests.
It may be useful, since I wrote to the noble Lord, to remind the House of the measures the department and the contractor have already taken to ensure that eligible children receive vouchers. The vast majority of parents in phase 1 areas received an application form automatically from the child benefit database. I think the House will agree that most children will be on that database, as most parents will be claiming child benefit. Those who did not have been made aware of the opportunity to apply for vouchers through an effective information campaign in the phase 1 LEAs using a range of media.

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Most parents who want their child to attend a nursery provider will seek guidance from a local provider and we have ensured that all providers in the scheme have both general information about the scheme and information about how parents should apply for vouchers. And the information we publish for parents stresses the need for them to apply for vouchers and submit them to their chosen provider.
On the whole, these measures have been highly successful. In Norfolk, 97 per cent. of the estimated number of parents with eligible children have applied for a voucher. In Wandsworth, the figure is 95 per cent., and overall it is 91 per cent. For various other reasons I accept that it is somewhat lower in the other two areas, Kensington and Chelsea and Westminster. But we can learn from the pilot in the phase 1 areas and make sure that we reach the Norfolk levels in phase 2. In the exceptional cases where these measures fail, headteachers of maintained schools are able to apply for vouchers on behalf of children whose parents have been unable to do so.
To return to the meaning of the noble Lord's amendment, it would be helpful if he had indicated how voucher contractors are to contact parents they know nothing about. It would also be helpful if we could hear how providers are to discover these unknown parents to fulfil their role under this amendment. Surely advertising, on the one hand, and informing providers, on the other, are the most effective ways of contacting such parents if they are not on the child benefit database. Obviously, if they are not on the database, it cannot be used in order to contact them.
Bearing those difficulties in mind, and bearing in mind the assurances I gave in my letter to the noble Lord and the assurances I have given on earlier occasions and this afternoon in the House, I hope the noble Lord will agree that the amendment is unworkable and unnecessary. I hope he will feel able to withdraw it.
Lord Dormand of Easington: My Lords, before the Minister sits down, will he comment further on the figures he gave? They were all in the nineties, which sounds very impressive. However, I believe he used the word "estimated". Will he tell the House how they were estimated?
Lord Henley: My Lords, again with the leave of the House—we are at Third Reading—I should prefer to write to the noble Lord in greater detail on the precise methodology used by the department in obtaining those figures. So far as I can make out, we are getting to the vast majority of parents in the areas that I mentioned: 97 per cent. in Norfolk is a very impressive figure and 91 per cent. overall is good. I hope that we can improve on that and learn from the pilot. That is why I said I thought that the amendment was unnecessary, that we can make further progress and that we shall continue in phase 2.
Lord Ponsonby of Shulbrede: My Lords, I am disappointed with the Minister's answer. He said that the amendment was not necessary or workable and went
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on to try to justify that statement by giving statistics saying that something like an average of 91 per cent. of people had taken up their voucher entitlement. The whole point of my amendment is to address that minority of children whose parents have failed to apply for a voucher. I submit that it is not so impressive that something like one in 20 children have failed to take up the voucher. More to the point, the agency does not know why that small minority failed to take it up.
The purpose of the amendment is to provide that the Government "shall take all practical steps" to ensure that contact is made. I should have thought a simple example of that would be a telephone call just to ensure that a contact is made and the parents are aware of the voucher system. The amendment seeks a duty to contact to be with the agency itself. I am sure that the noble Lord has good wishes but it is not the same as a duty. For that reason, I feel that I must ask the opinion of the House.
5.2 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 101; Not-Contents, 153.

Division No. 2

CONTENTS

Addington, L.

Howie of Troon, L.

Archer of Sandwell, L.

Hughes, L.

Baldwin of Bewdley, E.

Irvine of Lairg, L.

Barnett, L.

Jay of Paddington, B.

Beaumont of Whitley, L.

Jeger, B.

Berkeley, L. [Teller]

Jenkins of Hillhead, L.

Birk, B.

Jenkins of Putney, L.

Blackstone, B.

Judd, L.

Borrie, L.

Kennet, L.

Brooks of Tremorfa, L.

Kirkhill, L.

Bruce of Donington, L.

Lester of Herne Hill, L.

Carlisle, E.

Lincoln, Bp.

Carmichael of Kelvingrove, L.

Lockwood, B.

Castle of Blackburn, B.

Lovell-Davis, L.

Cledwyn of Penrhos, L.

McIntosh of Haringey, L.

Clinton-Davis, L.

Mackie of Benshie, L.

Cocks of Hartcliffe, L.

McNair, L.

David, B.

Mallalieu, B.

Davies, L.

Mar and Kellie, E.

Desai, L.

Masham of Ilton, B.

Diamond, L.

Mason of Barnsley, L.

Donaldson of Kingsbridge, L.

Mayhew, L.

Dormand of Easington, L.

Methuen, L.

Elis-Thomas, L.

Monkswell, L.

Falkender, B.

Monson, L.

Falkland, V.

Morris of Castle Morris, L.

Farrington of Ribbleton, B.

Nicol, B.

Fisher of Rednal, B.

Ogmore, L.

Gladwin of Clee, L. [Teller.]

Palmer, L.

Graham of Edmonton, L.

Peston, L.

Greene of Harrow Weald, L.

Plant of Highfield, L.

Grey, E.

Ponsonby of Shulbrede, L.

Hamwee, B.

Porter of Luddenham, L.

Harris of Greenwich, L.

Prys-Davies, L.

Hayman, B.

Redesdale, L.

Healey, L.

Richard, L.

Henderson of Brompton, L.

Ripon, Bp.

Hilton of Eggardon, B.

Ritchie of Dundee, L.

Hollis of Heigham, B.

Robson of Kiddington, B.

Hooson, L.

Rochester, L.

Howell, L.

Rodgers of Quarry Bank, L

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Russell, E

Thomson of Monifieth, L.

Sandwich, E.

Thurso, V.

Serota, B.

Tonypandy, V.

Shepherd, L.

Tope, L.

Stoddart of Swindon, L.

Tordoff, L.

Turner of Camden, B.

Strabolgi, L.

Varley, L.

Taverne, L.

Williams of Crosby, B.

Taylor of Blackburn, L.

Williams of Mostyn, L.

Thomas of Walliswood, B.

Winston, L.

NOT-CONTENTS

Addison, V.

Fraser of Carmyllie, L.

Ailsa, M.

Gage, V.

Aldington, L.

Gardner of Parkes, B.

Alexander of Tunis, E.

Geddes, L.

Allenby of Megiddo, V.

Gilmour of Craigmillar, L.

Annaly, L.

Gisborough, L.

Archer of Weston-Super-Mare, L.

Glenarthur, L.

Ashbourne, L.

Goold, L.

Astor of Hever, L.

Goschen, V.

Balfour, E.

Gray of Contin, L.

Belhaven and Stenton, L.

Hailsham of Saint Marylebone, L.

Beloff, L.

Hayhoe, L.

Berners, B.

Hemphill, L.

Birdwood, L.

Henley, L.

Blaker, L.

Holdemess, L.

Blatch, B.

Hooper, B.

Boardman, L.

Inglewood, L.

Bowness, L.

Ironside, L.

Boyd-Carpenter, L.

Jenkin of Roding, L.

Brabazon of Tara, L.

Johnston of Rockport, L.

Braine of Wheatley, L.

Kinnoull, E.

Brentford, V.

Kintore, E.

Brougham and Vaux, L.

Kitchener, E.

Bruntisfield, L.

Knollys, V.

Burnham,L.

Lane of Horsell, L.

Butterworth, L.

Leigh, L.

Cadman, L.

Lindsay, E.

Campbell of Alloway, L.

Lindsey and Abingdon, E.

Campbell of Cray, L.

Liverpool, E.

Carlisle of Bucklow, L.

Long, V.

Carnegy of Lour, B.

Lucas, L.

Camock, L.

Lucas of Chilworth, L.

Chalker of Wallasey, B.

McColl of Dulwich, L.

Chelmsford, V.

McConnell, L.

Chesham, L. [Teller.]

Mackay of Ardbrecknish, L.

Clark of Kempston, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Coleraine, L.

Coleridge, L.

Mackay of Drumadoon, L.

Cornwallis, L.

MacLehose of Beoch, L.

Courtown, E.

Macleod of Borve, B.

Cox, B.

Marlesford, L.

Cranborne, V. [Lord Privy Seal.]

Merrivale, L.

Cuckney, L.

Mersey, V.

Cumberlege, B.

Monckton of Brenchley, V.

Davidson, V.

Monteagle of Brandon, L.

De Freyne, L.

Montgomery of Alamein, V.

De L'Isle, V.

Mottistone, L.

Dean of Harptree, L.

Mountevans, L.

Denham, L.

Mowbray and Stourton, L.

Demon of Wakefield, B.

Munster, E.

Devonport, V.

Murton of Lindisfame, L.

Dixon-Smith, L.

Newall, L.

Downshire, M.

Noel-Buxton, L.

Ellenborough, L.

Norfolk, D.

Elles, B.

Northesk, E.

Elliott of Morpeth, L.

O'Cathain, B.

Eme, E.

Orkney, E.

Erroll, E.

Orr-Ewing, L.

Fanshawe of Richmond, L.

Oxfuird, V.

Feldman, L.

Pender, L.

Ferrers, E.

Perry of Southwark, B.

Fiasberg, L.

Peyton of Yeovil, L.

Flather, B.

Pilkington of Oxenford, L.

650

Quinton, L.

Simon of Glaisdale, L.

Rankeillour, L.

Skelmersdale, L

Rees, L.

Stewartby, L.

Rennell, L.

Strange, B.

Renton, L.

Strathclyde, L. [Teller.]

Renwick, L.

Sudeley, L.

Romney, E.

Teviot, L.

St. Davids, V.

Thomas of Gwydir, L.

Saltoun of Abernethy, Ly.

Trefgarne, L.

Sanderson of Bowden, L.

Vivian, L.

Seccombe, B.

Westbury, L.

Sharples, B.

Wigram, L.

Shaw of Northstead, L.

Wise, L.

Sherfield, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.10 p.m.
Lord Tope Lord Tope moved Amendment No. 3:
Page 1, line 19, at end insert—
("( ) Education in respect of which grants are payable under this section shall be given in premises conforming to such standards as to space and facilities as the Secretary of State shall by regulations specify.").
The noble Lord said: My Lords, the purpose of Amendment No. 3 is to require institutions in receipt of nursery vouchers to conform to indoor and outdoor space standards. We have debated this subject extensively on previous occasions during the passage of the Bill and I shall try not to detain the House too long. However, I make no apology for returning to the subject because it is important and this is our last attempt to try to get something in the Bill which lays down requirements as to standards of teaching accommodation and recreation areas.
All of us believe and accept that children require space in which to learn, play and develop; that overcrowding cannot be in anyone's interest; and most of all that it cannot be in the interest of children, whether in the classroom or the playground. I have expressed anxiety previously that because the value of the nursery voucher in many cases will not meet the full cost of nursery provision, there will inevitably be pressure upon some providers at least to obtain as near as possible the value of the voucher. Part of that pressure is likely to have an effect on the space provisions. That may be mostly so with new providers who will have to meet capital and other costs necessary to starting up and they will be under pressure not to meet acceptable standards. It is also an important health and safety issue.
Amendment No. 3, unlike previous amendments, takes account of the worries expressed by the Minister at earlier stages. It recognises that different types of provider may need varying standards of provision. It meets his objection, also expressed at earlier stages, that it would bind all providers to restrictive requirements and therefore in this case it restricts requirements only to those providers in receipt of nursery vouchers.
The amendment leaves it to the Secretary of State to decide what the standards should be. It makes no prescription as to what they should be; simply that they should be prescribed. It is likely that the standards will be those that would otherwise be contained in the guidance and therefore the only difference between us

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is whether it should best be done by guidance or regulation. We believe that it is better done by regulation because that has a stronger effect. It means that the providers "must" comply rather than "should" comply. That is important for that small minority which has previously been described as "cowboys"—those out to make a quick buck. But, more importantly, it is fair that genuine providers who are trying to meet and wish to meet the standards know that others must meet the standards as well; in other words, that it is a fair competition.
The amendment meets all the previous objections from the Minister. I am reasonably confident therefore that he will accept it; I hope that he will and I beg to move.
Baroness Farrington of Ribbleton: My Lords, we on these Benches fully support the amendment. We can add nothing to what was said by the noble Lord, Lord Tope, in his admirable description of the need for the provision.
Lord Henley: My Lords, I hate to pour a bucket of cold water over these matters but we cannot accept the amendment. As the noble Lord made clear, it requires the Secretary of State to specify in regulations standards for space and facilities to which all voucher-redeeming pre-school providers of nursery education must conform.
As the noble Lord, Lord Tope, said, we have been over this ground before both at Committee and at Report stages, and perhaps I can explain once again why we have different regulations and requirements for different settings.
We believe that there are some important differences between the maintained and non-maintained sectors. The former offers education; the latter offers day-care facilities as well as education and can cater for very young children. Those differences require different regulations prescribing different standards and requirements.
The new school premises regulations (which come into force in September this year) will not specify minimum requirements for teaching accommodation or recreation areas. That is because we believe that LEAs and school governors are in the best position to decide how to administer their school premises. The new regulations will give governors and LEAs increased flexibility over their accommodation arrangements. The guidance we shall be publishing later this year will help schools and LEAs make informed decisions.
Perhaps I can make it clear to the House that both the revised school premises regulations and the relevant Children Act guidance contain important requirements for essential areas of health and safety—a point raised by the noble Lord, Lord Tope. Our policies fully address the issue of premises' standards for institutions that will redeem nursery vouchers while recognising the important differences between sectors. I hope therefore that on this occasion the noble Lord, slightly happier than on previous occasions, will feel able to withdraw his amendment.
Lord Tope: My Lords, I cannot claim to be any happier than I was on previous occasions. However, we have gone as far as we reasonably can in trying to reach a compromise with the Minister's concerns. I have said—on too many occasions now—that guidance, though useful, is not a requirement as such.
We have expressed our anxieties. I am sorry that the Minister has not seen fit to include on the face of the Bill anything other than that which is already there in relation to this extremely important issue. I do not intend to take the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 4:
Page 1, line 19, at end insert—
("( ) No arrangements for the issue of vouchers in respect of nursery education shall be made in relation to Wales until the Secretary of State has consulted the Welsh Joint Education Committee on the arrangements and on the implications of the report of the Secretary of State evaluating the operation of any grants for nursery education made during the financial year 1996/7.)"
The noble Lord said: My Lords, in the course of our debates on the relevance of the Bill to the Welsh education system, my honourable friend and myself moved a series of amendments where we sought to include on the face of the Bill assurances about the implementation of the scheme in relation to Wales. So far we have not succeeded. But being an optimistic nation we never give up hope and it is with those thoughts that I tabled Amendment No. 4.
This is a simple attempt to put on the face of the Bill the indication that we were given both at Report stage and by letter from Mr. Jonathan Evans, the Under-Secretary of State for the Welsh Office—the MP in another place—on 11th July, that the department is prepared to consult with the Welsh Education Committee on the implementation of the scheme in Wales.
The reason for putting the provision on the face of the Bill is simple. We have failed to have any success in obtaining from Ministers, apart from a few cursory references, a recognition of the distinctive expression of education policy in relation to the current nursery system in Wales. We have also failed to obtain from the Minister and the department an indication that they will seriously and independently monitor the effects of the scheme.
We make the next point as strongly as we can in view of the petition that was presented again last week to the Welsh Office by supporters of the current system of nursery education. This scheme is being implemented with the universal hostility of the teaching profession, parents, school governors and communities throughout Wales. There has been no demand in Wales for this scheme and there is still no demand for it. My concern is that we have got to a position where the Government are prepared to legislate on this issue without regard for public opinion in Wales. That is not normal, even for Conservative Governments, which have not had a majority in Wales in living memory.
In moving this amendment I request that even at this late stage the Government have a full review of the operation of the nursery voucher scheme and not the kind of review indicated in the letter from Mr. Jonathan Evans to me and what he described as "an on-going review" of the development of the nursery voucher scheme being the right one. An on-going review is of course necessary and we expect the department to do that. But we want a full review, with an interim report at the end of the first year and a more detailed, final report at the end of the second year. That review should be a formal exercise. We say that because there has been no pilot scheme. The Government will explain that away by saying that nobody volunteered. But that is not sufficient justification for not having one. Therefore, we argue that a review should be undertaken by the office of Her Majesty's chief inspector in full consultation with ACAC, the curriculum assessment body, the WJEC and the Welsh Language Board in which I have an interest and which I now declare.
That review requires that the scheme should be evaluated from the point of view of whether it has ensured an increase on the current figures in the numbers receiving nursery education; whether the system established to administer the scheme in Wales is both effective and efficient; and whether the new system does not adversely affect the provision of quality nursery education throughout Wales, and in particular the value and quality of Welsh bilingual education.
Not to do that would be to put at risk the achievements that have already been recorded in the nursery sector in Wales, and in particular the achievement recorded by Mudiad Ysgolion Meithvin, the voluntary body concerned with the pre-school age and the Pre-School Playgroups Association in Wales, and all those who have been involved in the statutory sector of reception classes in developing the very effective language teaching and bilingual policy. More than anything else, it has effected a turn around in the numbers who speak Welsh among the cohort of school age and enabled us to talk realistically of having a bilingual nation within the foreseeable future.
Nothing should jeopardise these achievements. I am not assured that the Government's response so far has indicated their concern for that. Therefore, I ask the Minister to ensure that, either here at this late stage or in the other place at an even later stage, in his response to the representations made to him he will announce the Government's intention to organise a proper review of the implementation of the scheme. I ask the Minister to tell his honourable friend in the other place, Mr. Jonathan Evans, that, although we like to receive letters from him, they have to be a little bit better than the one of 11th July. We welcome him to the Welsh Office as a Minister and we hope that he will do better. To tell me and my noble friends, the noble Lords, Lord Prys-Davies and Lord Hooson, as he did on the 11th July, that,
"the Welsh Office is taking steps to ensure that the Welsh dimension is taken fully into account",
is no more than it should do. It is one of the functions of the department, and that is within government policy. But that is not what we are talking about. We are talking about the implementation of that so-called dimension being taken into account as regards this scheme.
For those reasons, it is high time that we had a clear indication from the Government that they are going to respond to Welsh public opinion on this issue. It is not enough to give us assurances that legislation has flexibility and that the Welsh Office may or may not introduce separate arrangements and regulations. It should be on the face of the Bill that we have here a distinctive education system, with its own distinctive provision. The publication of the results of the effects of nursery education in the annual report of the chief inspector is not enough, even though over the years they have provided a strong and independent voice in assessing the education system. We need a proper and clear independent review. I beg to move.
Lord Prys-Davies: My Lords, I speak to this amendment, although I shall not go over the ground that has been so ably covered by the noble Lord, Lord Elis-Thomas.
The Bill has two objectives. We heard about them at Second Reading. They are to extend nursery education to all four year-olds whose parents want it and to enhance parental choice. In Wales we start with the fact that the investment in nursery education is well advanced, although it is not without shortcomings. But instead of building on the best of existing Welsh experience, with an eye particularly to remedying the defects that there may be in the system, the Welsh Office has pressed the facts of Welsh life into the Department for Education mould and emerged with a model that does not fit the Welsh situation or meet the needs of Wales.
In Wales it appears that the overriding objective of the Bill is to enhance parental choice. That comes out very strongly in the evidence of the House of Commons Select Committee on Welsh Affairs. I shall not weary the House with reading extracts from the report, which can be found between pages 3 to 21. But if we concede just for the moment that the wider policy—it is described as such—succeeds in giving more opportunities for some parents to exercise choice in nursery education, what will be the price? That is the question being asked in Wales.
It was a unanimous report from the Select Committee. It did not divide on party lines. The report concluded that the application of the scheme could do a great deal of damage to existing nursery provision in Wales and impede the development of nursery provision for three year-olds. That provision is now available to 40 per cent. of three year-olds. That is the fear that has been expressed in countless letters which I and other noble Lords from Wales have received from parents, teachers, governors and their representative organisations.
If the Bill is introduced and applied in Wales, Welsh nursery education, which has been built up for many decades by Welsh local authorities, will become vulnerable. That risk deserves special consideration, yet nowhere in the evidence from the Welsh Office to the Select Committee or from elsewhere is there any reference to this risk. It appears to us that it has just been ignored.
The Welsh Office Minister, Mr. Jonathan Evans, in his letter of 11th July to the noble Lord, Lord Elis-Thomas, refers to the on-going review of the

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development of the scheme. One might concede that it is a very small step in the right direction, but it does not satisfy the representative organisations I have spoken to and I hope that it will not satisfy your Lordships.
The Welsh Office failed to evaluate the risk inherent in the Bill. We say that the Bill must now reflect that risk. That is what the amendment is about. The letter from Mr. Jonathan Evans says that there will be an ongoing review undertaken by Welsh Office education officials—with their present convictions. That in no way allays our anxiety. There is no undertaking that there will be a report within 12 months of the completion of the 1996–97 schemes. If we are to place any reliance at all on that letter, we must press for an independent review and for the involvement of the Welsh Joint Education Committee in the task of evaluating the grants made during the 1996–97 financial year.
Members of the House who come from Wales will know that the WJEC has had a fine record of service to Welsh education for the past 50 years. It has detailed knowledge and experience of the Welsh education service and it is independent of the Welsh Office. More importantly still, it enjoys the confidence of the Welsh public. We ask the Government to accept the amendment and to allow the WJEC to undertake a review of the scheme before it is applied in Wales. It is a small concession and I trust that the Minister will be able to accept it.
5.30 p.m.
Viscount St. Davids: My Lords, one of the great virtues of Welsh culture is the high regard in which education is held. That includes pre-school education. As I have said before in your Lordships' House, we have long known that the route to the classless society is through the classroom. We have long known that the pathway to personal fulfilment is through academic achievement. Nothing must be done to endanger that.
I ask my noble friend why the Government insist on a common provision across England and Wales when the conditions that prevail in England are very different from those in Wales. I find quite a lot to commend in the amendment, but I await my noble friend's reply.
Lord Hooson: My Lords, I am pleased to support the amendment, which seems to be about the minimum that could be requested. If the Government resist this amendment, they will be seen entirely to have given up any pragmatic approach to education. After all, when the Prime Minister adumbrated this scheme in the first place, the targets that he set out had already been achieved in Wales. Why should all that be prejudiced? There was no volunteer for an experimental scheme in Wales because nobody wanted such a scheme. There was not sufficient impulse in even the most Conservative part of Wales for there to be any volunteers for such an experimental scheme.
I should like to deal with one particular point. As I said in Committee, we had the pleasure of meeting the Parliamentary Under-Secretary of State for Wales, Mr. Jonathan Evans, at Gwydyr House before our previous
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debates on this. He listened carefully and courteously to us, but I am bound to say that one point in his letter to the noble Lord, Lord Elis-Thomas, is causing great concern in Wales. Mr. Evans wrote:
"Lord Hooson during both Committee and Report Stage made the point that schools will have to move from full-time to part-time provision under the voucher scheme. That is not the case. There is nothing in the scheme to prevent schools from continuing to provide exactly the same sort of provision as at present, eg if schools are currently funded to provide full-time places, there is no reason why that should change because of vouchers … It is important to remember that the transfer from the local authority sector will be no more than £1100 (even though authorities may spend more than this per four year old place) and will not take account of expenditure on provision for three year olds".
The real concern in Wales is that voucher funding is based on part-time education, whereas 92 per cent. of four to five year-olds in Wales already have either full-time or part-time education and over 70 per cent. of those four to five year-olds have full-time education. It is the hope in Wales that the rest of Wales can move up from providing part-time education to providing full-time education. What will be the effect of the Bill on that? Will such provision be funded in the future? That is an important point.
Perhaps I may comment on the background to the concern in Wales. There have been squeezes on the inspectorate in Wales. There are now fewer inspectors than there were. We are told that the scheme will be reviewed from time to time and inspected. However, a lady from Chirk, which is on the Welsh side of the border, wrote to me about her concern over her children's education. She told me how pleased she was about educational provision not only for four and five year-olds, but also for three year-olds, in Wales. When she moved to the area she was fearful about what the state education system might provide because she had moved from an area where state-provided education did not have such a good reputation. She said that, had there been a small private school, she might have been tempted by its self-promotion and sent her children to it. She wrote that that would have been a mistake.
Obviously, there are deficiencies in some parts of Wales but, by and large, I am sure that in relation to nursery education England wishes that it was in the same advanced state as Wales. Why jeopardise all that now? If the Government cannot accept this amendment, that will show that they have lost all semblance of a pragmatic approach.
Baroness Farrington of Ribbleton: My Lords, we on these Benches support the amendment. I support it because over 100 years ago my grandfather went to school in Wales at the age of three-and-a-half. He was punished for speaking Welsh—a policy imposed by the English and possibly adopted in England at that time. However, nursery education was available then in Wales.
During the passage of this Bill we have not received a single concession to consensus. The Minister has been unable, has felt unable or has been constrained to be unable to make any concessions in favour of consensus. The Government cannot point to one single decision that they have taken since 1979 which has affected local

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government finance which has not had unexpected financial repercussions, complications and problems. How dare people in England, based on the experience of what happens in Whitehall, make a judgment and then impose it on the people of the Principality?
If the Government believe that this is merely the view of the Labour Party in Wales, obviously they are not aware that there are some extremely independent Independents the length and breadth of Wales. If there had been one whiff of support for the Government's proposals (either from a minority or the majority), we would have received letters about it. I say that as somebody who has over 10 years' experience of working with Welsh Independents as well as with Welsh colleagues in the Labour Party.
I should like to concentrate now on the Government's imposition of totally centralised decision-making. If I were in favour of the conspiracy theory, I would welcome this because I think that the Government are putting up yet another flag behind which the people of Wales can rally in favour of a Welsh assembly. It is my experience that, from small villages in North Wales to the schools in the large urban communities of Cardiff, nobody wants what the Government are imposing; or are the Government frightened of the result of the evaluation to the point where they are not prepared to wait and see and then argue their case from a position of strength? Teachers, parents, Church leaders, voluntary organisations and school governors—people the length and breadth of the Principality—are telling the Government that they have got it wrong. Is it beyond the capacity of even this Government occasionally to admit that consensus is a better model than railroading and driving roughshod over the people of Wales and what they believe? Is it just possible that for once the Minister is able to reply not with a bucket of cold water but with the hand of co-operation so that we may achieve more and not end up with so many tragic wrecks of government mistaken and arrogant impositions on people?
Why do people in England believe that when it has taken them so long to achieve the Government's targets the Government have the right to look at someone who has achieved in Wales what the Prime Minister said he was setting out to achieve and then seek to undermine it? They are not my words but the words of the people of Wales. I hope that for once the Minister will be able to say that the Government are in favour of consensus and do not want to impose on the people of the Principality yet again something that they have not voted for and have not asked for, bearing in mind that the Government do not have the courage to wait and demonstrate whether there are any benefits.
Lord Henley: My Lords, I am rather pained by the allegation made by the noble Baroness in her speech—which sounded more like a Bill do now pass speech—that I have not moved at all at any stage in this Bill. I would have thought that the concessions that I brought forward on the SEN code of practice were fairly major and fundamental and generally welcomed by the House. To suggest that I have resisted and rejected all the way through is unfair. I hope that the noble Baroness will reconsider her words on another occasion.
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The intention of the amendment, rather than what the noble Lord, Lord Elis-Thomas sought, calls for consultation by the Secretary of State for Wales with the Welsh Joint Education Committee in respect of the evaluation of phase 1 of the scheme. It is important that the noble Lord recognises that it will not deliver the full review that he appears to seek. It would only require consultation with the Welsh Joint Education Committee for implementation of the scheme in Wales. It would not achieve the objectives which I believe the noble Lord set out. The review promised by my honourable friend in another place and in his letter would do just that.
I do not believe that there is very much more I can say that we have not already debated at considerable length at both Committee and Report stages about the position in Wales. As my right honourable friend has made clear, he and the Welsh Office firmly intend to keep the scheme under review and to make sure that full account is given to the Welsh dimension. I can assure noble Lords that both I and my right honourable friend in the Welsh Office recognise that there is very much a Welsh dimension.
The Welsh Office is ensuring that providers in Wales work to specific educational outcomes agreed for Wales. All establishments will be inspected according to the framework for inspection devised by the Office of Her Majesty's Chief Inspector of Schools in Wales. The contractor for the scheme will be required to ensure that a bilingual service is provided. We have made clear all along that phase 1 will help inform implementation in Wales. Welsh Office Ministers and officials will liaise very closely with Ministers and officials in my department.
The Welsh Office wants to involve LEAs in Wales in this process. In a letter to the WJEC earlier this year my right honourable friend the Secretary of State for Wales said that he hoped constructive dialogue with officials would continue in the run-up to introduction of the scheme. Indeed, officials have been in touch with the Association of Directors of Education in Wales as recently as last week about arrangements for meetings to discuss the detailed implementation of the scheme. Had it not been for a local authority boycott of meetings with the Welsh Office, dialogue might have been possible much earlier.
Colleagues in the Welsh Office very much want to discuss the detailed operation of the scheme in Wales with local authorities and the WJEC both before its start and during its operation. Welsh Ministers have made it clear that they want to involve all the key players—local authorities, WJEC, voluntary sector, the inspectorate and parents—and ensure that there is an objective view of the impact of the scheme in Wales. If at any time it seems that the arrangements in Wales warrant modification, Welsh Office Ministers have made it clear that they will not hesitate to do so. The legislation offers this flexibility.
I give an assurance that the Welsh Office is committed to full monitoring of the scheme in Wales and will include any effects on current provision and the value added element. On-going monitoring, including dialogue with local authorities, will allow the Welsh

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Office to implement a scheme which will fully reflect the particular circumstances of Wales. But what we cannot contemplate is a delay to the scheme in Wales and a situation where parents in Wales do not have the same opportunities as their counterparts in England. As the noble Baroness, Lady Farrington, seemed to imply, that is not centralising but giving power to parents.
In the light of the assurances that I have given of the intentions of my right honourable and honourable friends in the Welsh Office about involving the Welsh Joint Education Committee in discussions on the detailed operation of the scheme in the run-up to implementation in Wales, I hope that the noble Lord, Lord Elis-Thomas, will feel able to withdraw his amendment.
Lord Elis-Thomas: My Lords, I am in a little difficulty. We are chastised for moving amendments that are too radical. Apparently we are now chastised for moving amendments which will not make much difference. On that basis, I have no alternative but to test the opinion of the House.
5.46 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 101; Not-Contents, 137.

Division No. 3

CONTENTS

Baldwin of Bewdley, E.

Howie of Troon, L.

Barnett, L.

Hughes, L.

Beaumont of Whitley, L.

Hylton-Foster, B.

Birk, B.

Inchyra, L.

Brooks of Tremorfa, L.

Jeger, B.

Bruce of Donington, L.

Jenkins of Hillhead, L.

Carlisle, E.

Jenkins of Putney, L.

Carmichael of Kelvingrove, L.

Judd, L.

Carter, L.

Kennet, L.

Clinton-Davis, L.

Kilbracken, L.

Craigavon, V.

Kintore, E.

David, B.

Kirkhill, L.

Davies, L.

Lester of Herne Hill, L.

Dean of Beswick, L.

Lincoln, Bp.

Desai, L.

Lockwood, E.

Dormand of Easington, L.

Longford, E.

Dubs, L.

Lovell-Davis, L.

Elis-Thomas, L. [Teller.]

McIntosh of Haringey, L.

Falkender, B.

Mackie of Benshie, L.

Falkland, V.

McNair, L.

Farrington of Ribbleton, B.

Mallalieu, B.

Fisher of Rednal, B.

Mar and Kellie, E.

Fitt, L.

Masham of Ilton, B.

Gladwin of Clee, L.

Mason of Barnsley, L.

Graham of Edmonton, L. [Teller.]

Mayhew, L.

Greene of Harrow Weald, L.

Meston, L.

Grey, E.

Methuen, L.

Hamwee, B.

Monkswell, L.

Harris of Greenwich, L.

Morris of Castle Morris, L.

Haskel, L.

Nicol, B.

Hayman, B.

Ogmore, L.

Healey, L.

Peston, L.

Hilton of Eggardon, B.

Plant of Highfield, L.

Hollis of Heigham, B.

Ponsonby of Shulbrede, L.

Hooson, L.

Prys-Davies, L.

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Redesdale, L.

Strabolgi, L.

Richard, L.

Taverne, L.

Ripon, Bp.

Taylor of Blackburn, L.

Ritchie of Dundee, L.

Thomas of Walliswood, B.

Robson of Kiddington, B.

Thomson of Monifieth, L.

Rochester, L.

Thurso, V.

Rodgers of Quarry Bank L.

Tonypandy, V.

Russell, E.

Tope, L.

Tordoff, L.

St. Davids, V.

Turner of Camden, B.

St. John of Bletso, L.

Wallace of Saltaire, L.

Sandwich, E.

Wharton, B.

Serota, B.

White, B.

Shepherd, L.

Williams of Crosby, B.

Stafford, L.

Williams of Elvel, L.

Stoddart of Swindon, L.

Winston, L.

NOT-CONTENTS

Addison, V.

Geddes, L.

Aldington, L.

Gilmour of Craigmillar, L.

Allenby of Megiddo, V.

Gisborough, L.

Annaly, L.

Glenarthur, L.

Ashboume, L.

Goold, L.

Astor of Hever, L.

Goschen, V.

Balfour, E.

Gray of Contin, L.

Barber of Tewkesbury, L.

Greenway, L.

Belhaven and Stenton, L.

Hardwicke, E.

Berners, B.

Hayhoe, L.

Birdwood, L.

Hemphill, L.

Blaker, L.

Henley, L.

Blatch, B.

Hesketh, L.

Boardman, L.

Holderness, L.

Bowness, L.

HolmPatrick, L.

Boyd-Carpenter, L.

Inglewood, L.

Brabazon of Tara, L.

Ironside, L.

Braine of Wheatley, L.

Jenkin of Roding, L.

Brougham and Vaux, L.

Kinnoull, E.

Bruntisfield, L.

Lane of Horsell, L.

Bumham, L.

Leigh, L.

Butterworth, L.

Lindsay, E.

Cadman, L.

Lindsey and Abingdon, E.

Campbell of Alloway, L.

Liverpool, E.

Carlisle of Bucklow, L.

Long, V.

Carnegy of Lour, B.

Lucas, L.

Carnock, L.

Lucas of Chilworth, L.

Chalker of Wallasey, B.

McColl of Dulwich, L.

Chelmsford, V.

McConnell, L.

Chesham, L. [Teller.]

Mackay of Ardbrecknish, L.

Clark of Kempston, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Coleridge, L.

Colwyn, L.

Macleod of Borve, B.

Cornwallis, L.

Marlesford, L.

Courtown, E.

Merrivale, L.

Cranbome, V. [Lord Privy Seal.]

Mersey, V.

Cuckney, L.

Monteagle of Brandon, L.

Cumberlege, B.

Montgomery of Alamein, V.

Davidson, V.

Mottistone, L.

De L'Isle, V.

Mountevans, L.

Dean of Harptree, L.

Mowbray and Stourton, L.

Denham, L.

Murton of Lindisfame, L.

Demon of Wakefield, B.

Napier and Ettrick, L.

Dixon-Smith, L.

Norfolk, D.

Downshire, M.

Northesk, E.

Ellenborough, L.

O'Cathain, B.

Elles, B.

Orr-Ewing, L.

Elliott of Morpeth, L.

Oxfuird, V.

Elton, L.

Palmer, L.

Falmouth, V.

Pearson of Rannoch, L.

Feldman, L.

Pender, L.

Ferrers, E.

Perry of Southwark, B.

Finsberg, L.

Peyton of Yeovil, L.

Flather, B.

Pike, B.

Fraser of Carmyllie, L.

Pilkington of Oxenford, L.

Gage, V.

Prior, L.

Gardner of Parkes, B.

Quinton, L.

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Rankeillour, L.

Stewartby, L.

Rees, L.

Strange, B.

Rennell, L.

Strathclyde, L.[Teller.]

Renwick, L.

Sudeley, L.

Romney, E.

Teviot, L.

Saint Albans, D.

Thomas of Gwydir, L.

Saltoun of Abernethy, Ly.

Trefgarne, L.

Sanderson of Bowden, L.

Vivian, L.

Seccombe, B.

Westbury, L.

Sharples, B.

Wigram, L.

Shaw of Northstead, L.

Wise, L.

Skelmersdale, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.54 p.m.
[Amendment No. 5 not moved.]
Lord Tope Lord Tope moved Amendment No. 6:
Page 1, line 24, at end insert—
("provided that in the case of a person who has not previously been a provider of nursery education subject to inspection by him, the Chief Inspector has placed that person on a public register maintained by him of such persons who provide or can reasonably be expected to provide nursery education of a satisfactory quality and standard.")
The noble Lord said: My Lords, I rise to move this amendment which stands in the name of the noble Baroness, Lady David, and myself. I should say first that the noble Baroness is detained on business elsewhere in the House and has asked me to move it on her behalf as well as my own, which of course I do with pleasure.
The purpose of this amendment is to place a duty on the chief inspector to maintain a public register of those persons who can provide, or who can reasonably be expected to provide, nursery education of a satisfactory quality and standard. This amendment would have the effect of providing what might be called a provisional licence until, following final inspection, a validation is granted. The tightening up on scrutiny of new providers is needed to prove that they too will be capable of providing a service which is of sufficient standard to meet the meagre curriculum requirements in the SCAA desirable learning outcomes document.
The amendment would require the chief inspector at least to provide a reasonable safeguard against rogue providers whose aims may be to make a financial killing and then move on. It will also guard against the well-meaning amateur potential providers who simply do not have sufficient resourcefulness with which to establish an effective programme of teaching and learning.
The Minister in his reply may again claim that all is well, because no provider may be allowed to be funded from nursery voucher income unless he or she meets the registration requirements of the Children Act 1989. That is all very well, but the Children Act does no more than charge the social services department of the local authority to satisfy it that the person is fit to look after the under-eights. It says nothing about their education. It provides some guidance and some indication of where it may seek advice before making that decision, but in practice those powers are at best advisory and will be
662
constrained by available resources which are set against the many statutory duties with which the social services departments are charged.
During Committee stage the Minister hinted at the possibility of making better use of the self-assessment schedule. At least in principle he conceded that there should be an initial screening of new providers to test their calibre prior to awarding grant. He may again expand a little further on that when he replies. There is little doubt that completing a self-assessment schedule may reveal only that which the individual is either capable of understanding and knowing or is willing to admit. The trained eye of an inspector, even at some distance removed from the nursery setting, will be able to gain a view as to the suitability of the person applying for grant.
This process may, if taken together with the registration under the Children Act, strengthen the requirements for high standards and quality in nursery education which we are all seeking. The effect of scrutinising such initial providers and authorising their inclusion on a public register will add considerably to public confidence in a scheme which, as far as new providers are concerned, stands untested by the pilot scheme and is therefore not even subject to evaluation, let alone open to a professional once-over prior to the phase 2 implementation. I beg to move.
6 p.m.
Lord Henley: My Lords, as I think I explained at an earlier stage, we have already made arrangements for a register of eligible providers to be maintained by the voucher company. The company will make that register available free of charge on request. Again, as I explained I think in some depth on Report, to which the noble Lord referred—I shall return to that point later—we have in place robust arrangements to ensure that all participating providers placed on the register, including private and voluntary sector providers, provide education of a consistently high standard.
Again, I stress that there is no risk of the cowboy outfits joining the register. Under the quality assurance arrangements, all private and voluntary sector providers will need to be registered under the Children Act. I have no qualms about mentioning that again because it is important. That means that they will have to pass, as the noble Lord, Lord Tope, put it, inspection by the social service department in which the inspectors have to satisfy themselves that the staff are fit persons to work with children; that the premises are suitable; and they will also need, for the first time, to work towards a set of goals for children's learning development, developed by SCAA, and publish information for parents.
There are already many four year-olds in private and voluntary sector establishments. Such establishments do not currently have to adhere to any requirements in relation to the quality and standards of education. It will be to the benefit of children in such establishments that the voucher scheme starts as soon as possible so that we can have inspections as soon as possible.
The noble Lord asked me to say a little more about the self-assessment schedule. It too will act as an important tool for providers to identify their strengths and

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weaknesses and will act as stimuli to improve quality and standards of education. Again, as I said on Report, we shall consider with interested outsiders and experts whether to require providers to complete and submit the schedule within a certain timescale. The schedule could then be passed to an inspector in advance of the first inspection. I can assure the House that we shall give serious consideration to that option before phase 2. I hope that the noble Lord will therefore feel that his amendment is unnecessary and be able to withdraw it.
Lord Tope: My Lords, I am grateful to the Minister for his reply and the assurances that he has given. I wish him well with that. I remain to be convinced, particularly with regard to new providers, which by definition must have an untested record. Existing providers have at least some record. Parents have something against which to judge their performance, standards and quality. That cannot of course be the case with new providers. On the basis of the assurances that the Minister has given, at which we shall look with interest, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 7:
After Clause 1, insert the following new clause—
PARTNERSHIP IN DEVELOPMENT PLANS
(".—(1) Arrangements made under section 1 above shall be made in accordance with a strategy for nursery education published or revised in accordance with this section.
(2) A local education authority shall publish, and from time to time revise, a strategy for the provision of nursery education within its area.
(3) In drawing up or revising a strategy under this section, a local education authority shall have regard to—

(a) the needs of children aged three and four in its area;

(b) the quality and range of educational provision for such children;

(c) the desirability of involving parents of such children in the provision of nursery education;

(d) the efficiency and effectiveness of different types of educational provision for such children and the desirability in relation to the needs of the area of securing the most effective distribution of resources among those types.

(4) Before publishing or revising a strategy under this section a local education authority shall consult persons within its area who appear to it to be concerned, including persons representative of parents, voluntary organisations and such persons as may have been prescribed under section 1(4)(b) above.
(5) In drawing up, revising or implementing a strategy under this section, a local education authority shall have regard to any guidance which the Secretary of State may issue.").
The noble Baroness said: My Lords, the amendment is important as it provides a framework for a partnership at local level to ensure that the needs of all children in the locality are met. In drawing up its strategy, an LEA is to have regard to a number of factors designed to underpin the commitment to partnership working and the creation of a mixed economy of nursery education within a development plan. Thus, under subsection (3) of the new clause, the LEA is to have regard to the needs of children aged three and four in its area and to secure the best quality and range of nursery education for such children.
With regard to the needs of three year-olds, I refer to the need to ensure that the needs of three year-olds with special educational needs, including behavioural and social difficulties and moderate learning difficulties, are recognised as important. The LEA is required to look also at the effectiveness of different types of provision to meet the needs of all children in the area. So a LEA may well find that high quality, good value education may be provided through the encouragement of pre-school education in a particular area.
During the passage of the Bill, many speakers referred to the unique circumstances that exist in some rural communities. I think of my county of Lancashire where in some small villages there is a small Anglican primary school and a small Catholic primary school to serve the needs of a small scattered community. In those circumstances, leaving the matter to the marketplace will not necessarily guarantee that the needs of those children are met. Before publishing or revising its development plan, an LEA would be required to consult people in the area who appear to be representative of parents, the voluntary sector and private providers, and to pay due regard to any guidance which the Secretary of State may wish to issue as to how a development plan should be drawn up.
The new clause aims to set out a coherent framework within which the power of the Secretary of State to make grants could be used in relation to some or all of the sectors involved so as to secure the best possible expansion of nursery education within the resources available. It could be tailored to suit local circumstances. That is important, because circumstances in different parts of England and Wales vary enormously. There needs to be more than just a reference to the haphazard nature of the market system through the use of vouchers.
The important issue here is to ensure that all sections of the community, in particular parents, are given an opportunity to contribute to debating the needs of the community. I spent part of my childhood in a small rural community with few children of school age. There was a child who had a withdrawn mother who did not develop contacts with the rest of the community. Her husband was an agricultural worker and they lived a long way from the village. When that child started school at the age of five he could not speak. That was a fairly affluent area of Leicestershire. Those needs could have been overlooked. That child would not have been actively sought by any of the providers because to meet the needs of children with special needs may take people more time than is envisaged.
Why cannot we have a commitment to encourage good local planning? That is part of building community respect, and community respect is one of the things which is increasingly missed. I listened carefully to the Minister's response to my views on Wales. It would be churlish of me not to admit that there were concessions with regard to special educational needs and the code of practice. I hope that that was the beginning of a further concession in this area. I beg to move.
Baroness Thomas of Walliswood: My Lords, I support the amendment. Perhaps I may emphasise its importance in terms of the quality and range of educational provision for three and four year-olds and of ensuring that it is done in a way which reflects the needs of the local community. Those points were eloquently made by the noble Baroness, Lady Farrington.
In case the Minister is tempted to respond by saying that this is another example of people wanting big brother to do everything and that the market will provide, perhaps I may make one further point. In local government, irrespective of which party or parties are in control, partnership is the name of the game. That is what we seek, as do the institutions which are not part of local government. They expect to co-operate with local government, which expects to co-operate with them. The private and voluntary sectors and local government find that there is added synergy when that operation takes place.
The new clause seeks to put on the face of the Bill a description of what is happening in many local authorities. We wish to see that in the Bill, which covers an unusual way of funding a publicly provided service. I hope that the Minister will listen to our arguments.
The Lord Bishop of Ripon: My Lords, perhaps I may underline the point made by the noble Baroness, Lady Farrington, in relation to rural areas. Parts of my diocese in Yorkshire are remote; I suspect as remote as any in England. The difficulty of seeing how a market system will respond to the demands in those areas is enormous. Some years ago I visited a county-maintained school, not a church school, in which there were five children at the primary stage. That is the kind of number of children that there are in such remote areas. Without planning and working together, I find it difficult to understand how provision will be made for those children. I hope that the Minister will take that into account.
Lord Henley: My Lords, I can trump the right reverend Prelate's school of only five pupils at the primary stage. When I was a county councillor, in my county council division was a school with only three children. I tried manfully to save it but I have to say that my heart was not in it. Indeed, I doubt whether a school of that size can provide an appropriate education.
We debated the need for an early years strategy during Report stage of the Bill. The noble Baroness made the point during that debate that in her view there is a need for planning and for organisations to work together.
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I have no difficulty with the notion of planning and certainly applaud organisations working together in a common aim. But I do not consider that those factors necessitate local authorities preparing development plans or putting together a strategy. There is little that I can add to what I said before. A key theme of our nursery education voucher initiative is parental choice, as I have made clear on numerous occasions. We want to put power into parents' hands and give them the means to choose a nursery place for their child that best suits their own circumstances and the child's situation. We do not want the expression of that choice limited by the fact that arrangements to pay grant can be made only in accordance with a local authority strategy. That could deny choice to parents. Subsection (1) of the new clause would certainly do so.
We are putting power into parents' hands because we believe that it is parents who understand best the needs of their child and who know what kind of nursery setting is best for their child. We do not believe that either central government or local government should make that choice.
However, as I have said before, none of this prevents a local authority putting together its early years strategy for expansion of nursery education. None of this prevents local authorities working closely with the private and voluntary sectors. None of this prevents local authorities consulting interested parties before expanding their own provision. Any local education authority can put together a development plan, or a strategy, for a particular element of its provision.
I should like to make clear that there is no need for such provision in the Bill. Furthermore, the amendment would limit and undermine the choice of parents. Therefore, I cannot accept it.
Baroness Farrington of Ribbleton: My Lords, it was with great disappointment that I heard the Minister's words. I almost detected two replies; one from the point of view of his experience as a county councillor and another which sounded like a press briefing on parental choice.
No one is speaking against parental choice. We are in favour of it. I am disappointed about the Government's approach but it would be to little avail to press the matter at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
Clause 2 [Delegation]:
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 8:
Page 2, line 30, at end insert—
("(3) Where arrangements are made under section 1 to which subsection (1) above applies, those arrangements shall be such as to ensure that the parent of any child in respect of whose education a grant is made available is advised by the person exercising a function on behalf of the Secretary of State that in the absence of alternative provision being made, the exercise by the parent of a choice not to apply for financial support from monies available by way of grant under this Act represents a choice not to seek nursery education for his child.
(4) The requirements of subsection (3) shall not be considered satisfied unless it is shown that a parent who has failed to seek the benefits of financial support from monies made available by way of grant under this Act has been reminded of his opportunity to do so.").
The noble Lord said: My Lords, Benjamin Franklin, writing his own epitaph, said that though his body would lie, food for worms,
"Yet the work itself shall not be lost,
For it will, as he believed, appear once more
In a new
And more beautiful edition,
Corrected and amended
By its Author!".
Corrected and amended, not by its author but by me after the Report stage, the amendment is briefly resurrected. I hope that this time I get it right.
It means that the voucher agency would be required to carry out a further procedure, such as a telephone call, beyond the normal application and distribution of vouchers in order to remind parents of the consequences of non-application.
I was relieved to hear from the Minister that the voucher agency, Capita, employs,
"staff at the moment who can translate into 20 languages".
His subsequent letter, for which I am also grateful, modified that exuberant 20 to a more sober 15. I was also relieved to hear that his right honourable and honourable friends in the Welsh Office will be considering appropriate translation services in Wales. For those we are grateful.
I understand that the DfEE commissioned the Central Office of Information Research Unit to interview,
"201 parents of eligible four year-olds in the four phase one participating boroughs".
The interviews were conducted before the scheme started in the week of 15th April 1996. The purpose of the survey was,
"to assess the effectiveness of the recent and current publicity campaign, and to provide guidance for the future publicity campaign for the national launch in 1997".
There are more than 16,000 eligible children in the four areas, according to "Countdown to vouchers", in Nursery World of 21st March 1996. If we ignore the small number of four year-olds, twins or triplets, there are likely to be around 16,000 "eligible" parents in the pilot areas. If my sums are correct, that means that only 1.25 per cent. of phase 1 parents were surveyed. Statistically, that is not a convincing sample. I could continue at some length about the survey, which I have studied, but I shall not do so on this occasion. Of those 1.25 per cent. of parents in the four pilot areas, 82 per cent. realised that they were eligible to receive vouchers and 18 per cent. did not. That sounds most creditable, but 18 per cent. of 16,000 is 2,880. Those parents did not know and they are the people in whom we are interested. It is not enough to say that an overwhelming majority did know. We have a duty to search out those who did not.
These figures illustrate that much more work needs to be done to ensure that parents understand this scheme. In accountability terms the voucher agency must make efficient and effective use of this public money. The
668
experience of the scheme so far in phase 1 has shown occasions where this has not always been the case, so I ask the Minister once more, has this issue been properly and fully explored, quantified and costed with Capita Managed Services? If so, what response has been elicited from it about this small percentage that it should be following up? If it has not done so, why has it not done so, and when will it do so? I beg to move.
Baroness Thomas of Walliswood: My Lords, once again I rise in support of this amendment to add a couple of points. There are 18 per cent. of parents who have been proved not to have known what was going on or not to have coped with it very well. When the scheme operates countrywide, how will the agency reach everybody, and what is the cost likely to be? Instead of trying to reach everybody in the same blast of publicity, would it not be better to spend less money on reaching those who prove less responsive than the majority? It seems to me that that would be a more cost-effective way of doing it.
Lord Henley: My Lords, I certainly remember this debate at an earlier stage and I think the noble Lord, Lord Morris of Castle Morris, also remembers it. Having brought forward a defective amendment, he kindly agreed to reflect on its defects. I have to say, with some regret, that the new amendment is little better.
There is no disagreement that it is important that those parents who want to take advantage of the scheme should apply for vouchers for their children and that children should benefit from the opportunities provided. It is also important that schools, nurseries and playgroups know that all parents who want to be, are equipped with vouchers, and that grant funding will flow from that.
But I do not agree with the noble Lord that it is necessary to place on the face of the Bill the requirement that the contractor must explain to parents the need to apply for a voucher and remind them to do so. All those parents of eligible children who appear on the child benefit database were sent an application form. A reminder form was sent to those who had failed to apply a month before the start of term.
The department has mounted, as I mentioned on an earlier amendment moved by the noble Lord, Lord Ponsonby of Shulbrede, an extensive information campaign in the phase 1 authorities to raise awareness among parents, and we plan to carry out a similar campaign on a national scale in phase 2.
The survey involved 200 parents, a number which the independent research company adjudged was necessary to produce a statistically significant result. So it was their choice. We now know from that survey that most parents who want their child to attend a nursery provider will seek guidance from a local provider, and we have ensured that all providers in the scheme have both general information about the scheme and information about how parents should apply for vouchers. The information we publish for parents stresses the need for them to apply for vouchers and submit them to their chosen provider.

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In phase 1 we have demonstrated that the effective ways to contact parents are via the child benefit database, via advertising and via the providers. The amendment proposes one way which I believe is neither sensible nor practical. I hope, therefore, that the noble Lord will feel able to withdraw the amendment on this occasion.
Lord Morris of Castle Morris: My Lords, as there will never be another occasion, I have remarkably little choice. I have either to withdraw it or seek the view of the House, which I shall not do. It is quite clear that we will not get any more from the Minister or from his department on this point. I simply register that we on these Benches are primarily concerned in opposing, as it is our duty to do. It is our duty to oppose, which does not mean to destroy, this Bill; to go into it in great detail with the Minister.
We are concerned that there should be full compassion and responsible government in the care of those people who are perhaps the least fortunate, the most unlovely in our community. There are people who are eligible for this scheme who do not know it. There are people out there with children who are eligible for this scheme who cannot read or write and who will not tell anybody. We on these Benches press for consideration to be given to them. It is hard. It is difficult. It requires a lot of hard work from government departments and their agencies. May I leave with the Minister the thought that that is the kind of work that good people do? I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Requirements]:
Baroness David Baroness David moved Amendment No. 9:
Page 2, line 40, at end insert—
("(4) Requirements imposed under this section shall include a requirement to ensure that corporal punishment is not used in nursery education provided by an authority or other person to whom a grant is made under section 1.").
The noble Baroness said: My Lords, I return yet again to the question of corporal punishment. There is a good deal of confusion because of the Minister's letter not having turned up last time. So I do not make any apology for coming back to this point.
Various Members of the House have encouraged me to table this amendment again because the responses that we have had from the Minister at Committee stage, Report stage and in correspondence are not satisfactory. With respect, they have been both confused and confusing. I shall be brief because the arguments have been set out before.
The purpose of the amendment is to ensure that corporal punishment is prohibited in all voucher-redeeming institutions. This is not a large step from the Government's current position, which is to prohibit corporal punishment from voucher-bearing children in these institutions. It is a step which the Government have so far declined to take but which we hope to persuade them to take tonight.
The Minister has told us:
"It is the policy of Her Majesty's Government to prohibit corporal punishment for all state-funded education".
670
The Department of Health has reiterated its policy that:
"physical punishment of children has no place in the child care environment".
If the Government pursue their current policy it will represent a U-turn on these policies because institutions providing nursery education, both in the private sector and in Children Act institutions, will be permitted to use corporal punishment for non-voucher bearing children, although many of the institutions, as the Minister admitted in his letter to me dated 6th July, receive public funds.
In his replies so far the noble Lord has waltzed around the central issue: do the Government really condone the use of institutional corporal punishment for three and four year-old children? I hope we shall get a clear answer tonight. If they do, they are ignoring not only their own policies but the strongly expressed opinion of all the organisations involved, the NSPCC, Save the Children and a great many institutions which are involved with children's welfare and care, and, of course, international human rights standards and recommendations, which I may leave to others to pursue tonight.
We are asking for a small but principled movement from the Government in line, let me emphasise, with their own policies. If the Government do not wish to protect these very young children from corporal punishment through the use of this Bill, they could give us an assurance that they will do so through regulations issued under the Children Act and the Education (No. 2) Act 1986. I hope that the least we can have from the Government tonight is that reassurance. I beg to move.
Lord Lester of Herne Hill: My Lords, I am glad to speak in support of the amendment, which also stands in my name on the Marshalled List. I am delighted to support the noble Baroness, Lady David, who has returned to a theme for which she has campaigned for some 15 years, to stamp out what is described on the Continent as le vice anglais—the English vice of institutional corporal punishment—to ensure that children in institutions providing early years care education are protected like everybody else.
I have a particular professional interest in that some years ago I represented Karen Warwick in her case against the United Kingdom before the European Commission of Human Rights, which ultimately led to a finding of a breach of Article 3 of the convention: the infliction of degrading corporal punishment on her, on that occasion in a state school.
The Minister has made it clear that it is the policy of the Government, as I am sure that he will make clear yet again in a few minutes, to prohibit corporal punishment in all state-funded education, including education provided in exchange for nursery education vouchers.
As the noble Baroness, Lady David, made clear in Committee and as the Minister confirmed on Report, day nurseries are fully publicly-funded. Playgroups also receive public funds. Yet, as I understand the position, under the Government's proposals, non-voucher-bearing children in those institutions will not be protected from corporal punishment.

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On Report at col. 245 my noble friend Lady Thomas of Walliswood asked the Minister whether he considered that there was a risk of the Government being in breach of the European Convention on Human Rights. His reply then was that he did not believe that the Government would be at risk in that respect. The Minister said:
"We have always maintained that we will not have corporal punishment within publicly-funded education. It is still open and a number of schools may make use of corporal punishment in the non-maintained sector. That is a matter for them".
The Minister pointed out also that there is guidance in the Children Act 1989,
"which does not support the use of corporal punishment but leaves the decision to individual institutions".—[Official Report, 9/7/96; col. 245.]
In my considered view, there is a real risk that the Government will eventually be held to be in breach of the European Convention on Human Rights unless this amendment is accepted as it stands or unless, at the very least, effective guidance is issued of the kind sought by the noble Baroness, Lady David, when the regulations are made, that corporal punishment should not be used in nursery education provided by a day nursery or by a playgroup receiving public funds.
In its judgment in the case brought by Mrs. Costello-Roberts against the United Kingdom in March 1993, a case concerning school discipline, a narrowly divided European Court of Human Rights decided by five votes to four that there had been no violation of Article 3 of the convention, the article forbidding inhuman or degrading treatment or punishment. The majority of the Court held, as I say by a wafer-thin majority, on the particular facts of the case, that the punishment had not reached the minimum threshold of severity required for a breach of that provision of the convention.
However, the Court pointed out that it had misgivings and said that it was not:
"to be taken to approve in any way of the retention of corporal punishment as part of the disciplinary regime of a school".
In his concurring opinion, Judge Sir John Freeland, the British member of the Court, very significantly—and he had been the agent of the United Kingdom Government in many of the cases brought against them in Strasbourg—said,
"it must be evident, if only from the divisions of opinion in the Court, that the case is at or near the borderline".
The Court agreed with Mrs. Costello-Roberts that the state cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals. It was observed that, although the treatment complained of was the act of a headmaster of an independent school, nevertheless, it was such as might engage the responsibilities of the United Kingdom under the convention if it proved to be incompatible with Article 3 or Article 8, dealing with lack of respect for private life, including a child's physical and moral integrity. For good measure, that view was supported by the dissenting minority led by the very distinguished president of the Court, Judge Rolv Ryssdal.
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In the wake of that judgment in the Costello-Roberts case, Parliament amended the Education (No. 2) Act 1986 to ensure that any remaining school using corporal punishment was not engaging in inhumane or degrading treatment. According to the department, as we have heard, it is the Government's policy to prohibit corporal punishment for all state-funded education. But unfortunately, the Government decided on grounds of parental choice that corporal punishment shall remain available for privately-funded pupils in independent schools.
The matter goes further than that. Not only do we have the benefit of the judgment of the European Court of Human Rights in Costello-Roberts, but the United Nations Committee on the Rights of the Child, in its concluding observations on the UK's initial report about measures taken to comply with the 1989 Convention on the Rights of the Child, had expressed concern at the continued legality of corporal punishment in the private sector.
Nor is that all because the very experienced and extremely authoritative Human Rights Committee which oversees the International Covenant on Civil and Political Rights, in its comments on the UK's fourth periodic report, recommended that:
"corporal punishment administered to privately funded pupils in independent schools be abolished".
Therefore, it is clear that there is a gap in the current legal regime which gives the appearance that the Government really do, in the words of the noble Baroness, Lady David, condone the use of institutional corporal punishment for three and four year-old children if they are not voucher-supported children and if they are in the private sector.
If that is the position, I can only say that in my view, it is likely to lead to further breaches of the European convention and condemnation by the European Court, the UN Human Rights Committee and the UN Committee on the Rights of the Child, putting the UK in quite unnecessary and serious breach of its international obligations.
I should be most grateful if the Minister would make quite clear in his reply how exactly the Government consider that they are complying with their international legal obligations in each of those respects. It is not enough simply to say that the Government are satisfied that they are complying. Parliament needs to be told in exactly which respects and how they consider that there is compliance. How can it be compatible with the spirit and the letter of the judgment in Costello-Roberts that non-voucher-bearing children will remain unprotected against corporal punishment?
Will the Government also agree to give at the very least guidance which makes it quite clear that they disapprove of the infliction of corporal punishment on non-voucher-supported children in the private sector of nursery education? As the European Court has made perfectly plain, the Government cannot simply pass the buck to private educational bodies. The Court has made it quite clear that the Government have positive obligations to protect pupils against corporal punishment in those circumstances.
6.30 p.m.
Lord Henley: My Lords, on the Third Reading of a Bill relating to the funding of nursery education and the borrowing powers of grant-maintained schools, I do not think that it would be appropriate to launch into a long explanation as to why we believe that we are right in terms of our policies and why we feel that we are satisfying the requirements of the European convention.
As I said, the Bill relates to nursery education. As the noble Baroness, Lady David, expressed the matter, the intention behind her amendment is to ban corporal punishment for all children in voucher-redeeming institutions. I believe that I noted her words correctly.
As the noble Baroness will probably be aware, the amendment does not have that effect. Its effect, which is confined to nursery education, as defined by the Bill, can only cover those who would be receiving their funding under the Bill; that is, through vouchers. We cannot take the Bill further to cover the sort of settings which the noble Baroness would like to cover.
I know that the noble Baroness would like to see corporal punishment banned in all daycare and educational settings irrespective of whether state funding is involved. But, equally, she will know, as I made quite clear, that today's debate on corporal punishment must be limited to the scope of the Bill; that is, the prohibition of corporal punishment only in so far as it relates to children funded by nursery education vouchers. The Bill cannot go beyond that. Therefore, it would not be right for me at this stage—dare I say it—on a Third Reading debate to try to answer all the points made by a very distinguished lawyer. I respect the noble Lord's views, but I must tell him that the advice I receive from those who advise the Government is contrary to his. The advice is that we are satisfying the requirements of the European convention.
There is just one small point that I should like to raise with the noble Lord. It relates to the question of non-voucher paying children attending Children Act registered institutions, some of which are subsidised by local authorities. Is that not publicly funded provision? Some playgroups and day nurseries are subsidised by local authorities—usually by the local social services department. As such, the emphasis is very often on daycare provision rather than education. But, as I said before, the Children Act guidance does not support the use of corporal punishment; it leaves decisions about the use of corporal punishment where the child is not in receipt of state-funded education with the parent and the provider. I can go no further. I see that the noble Lord wishes to respond. I give way.
Lord Lester of Herne Hill: My Lords, I am much obliged. Before the Minister moves on, perhaps I may just ask him one simple question. Will the Government at the very least make clear their position that they would not wish corporal punishment to be inflicted in respect of non-voucher children? In other words, while leaving it to the discretion of local providers, will the Minister confirm that in the Government's view it would be undesirable for corporal punishment to be inflicted? That should at least be made clear by the Government.
Lord Henley: My Lords, we have made our view absolutely clear. We wish to ensure that corporal punishment is not administered to children whose nursery places are funded by the nursery voucher scheme. As regards those who are funded in other ways, as I said, that is a matter for the parents and the providers.
However, where I differ from the noble Baroness is how we deliver that objective. The noble Baroness would like to see something on the face of the Bill but, as I made clear earlier, we would prefer to ensure that that objective is secured by making prohibition a requirement of grant. I believe that that method of achieving what we are trying to achieve—indeed, what we are both trying to achieve—is as effective as putting something on the face of the Bill. I say that for no other reason than that I suspect the noble Baroness's amendment would be technically deficient because it has no definition of corporal punishment. I am sure that the noble Baroness will accept that fact. Indeed, when we tried to do that in the proceedings under the Education (No. 2) Bill it amounted to something like two-and-a-half pages of text. To try to get such wording into one small amendment is not the right way forward. Therefore, with the sort of assurances that I have been able to give, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness David: My Lords, before I give my final answer, can the Minister say whether he has given an assurance that there will be guidance to the effect that the Government are against corporal punishment in any institution where there are children receiving vouchers and, indeed, others who are not?
Lord Henley: My Lords, we have given guidance under the Children Act. I do not want to move away from that sort of guidance. I believe that that guidance would be appropriate in the sort of settings about which we are talking.
Baroness David: My Lords, surely providing guidance under the Children Act extends as far as care and does not really cover the education being given. Am I correct in that assumption?
Lord Henley: Yes, my Lords, that is the case. However, as I made clear, I do not believe that any further guidance would be necessary. Again, I should stress that this is a Third Reading debate. I do not think that I could go any further.
Baroness David: My Lords, I am still most amazed that we cannot have that direct assurance. I am most grateful for the support that the noble Lord, Lord Lester of Herne Hill, has given me; indeed, it has been extremely helpful. I repeat: I am amazed that we cannot have that straightforward assurance. It is quite extraordinary. This is a matter of principle and, although I am quite certain of the outcome, I am afraid that I must take the opinion of the House.
6.45 p.m.
On Question, Whether the said amendment (No. 9) shall be agreed to?
Their Lordships divided: Contents, 55; Not-Contents, 113.

Division No. 4

CONTENTS

Addington, L.

McNair, L.

Barnett, L.

Mallalieu, B.

Carlisle, E.

Masham of Ilton, B.

Carmichael of Kelvingrove, L.

Methuen, L.

Carter, L.

Mishcon, L.

Clinton-Davis, L.

Morris of Castle Morris, L.

Cocks of Hartcliffe, L.

Perry of Walton, L.

David, B.

Plant of Highfield, L.

Dormand of Easington, L.

Ponsonby of Shulbrede, L.

Dubs, L.

Prys-Davies, L.

Elis-Thomas, L.

Ripon, Bp.

Falkland, V.

Robson of Kiddington, B.

Farrington of Ribbleton, B.

Rochester, L.

Geraint, L.

Serota, B.

Graham of Edmonton L

Shepherd, L.

Stoddart of Swindon, L.

Hamwee, B,

Taylor of Blackburn, L.

Harris of Greenwich, L.

Thomas of Walliswood, B.

Haskel, L.[Teller.]

Thomson of Monifieth, L.

Henderson of Brompton, L.

Thurso, V.

Hollis of Heigham, B.

Tope, L.

Howell, L.

Tordoff, L.

Jeger, B.

Turner of Camden.B.

Jenkins of Hillhead, L.

Wallace of Saltaire, L.

Kilbracken, L.

White, B.

Lester of Herne Hill, L. [Teller.]

Williams of Elvel, L.

Lockwood, B.

Winchilsea and Nottingham, E.

Mackie of Benshie, L.

Winston, L

NOT-CONTENTS

Addison, V.

Demon of Wakefield, B.

Aldington, L.

Dixon-Smith, L.

Annaly, L.

Downshire, M.

Attlee, E.

Elliott of Morpeth, L.

Balfour, E.

Elton, L.

Belhaven and Stenton, L.

Erroll, E.

Bemers, B.

Falmouth, V.

Biddulph, L.

Feldman, L.

Blaker, L.

Ferrers, E.

Blatch, B.

Flather, B.

Boardman, L.

Fraser of Carmyllie, L.

Bowness, L.

Gardner of Parkes, B.

Boyd-Carpenter, L.

Gisborough, L.

Brabazon of Tara, L.

Goold, L.

Brigstocke, B.

Goschen, V.

Bumham, L.

Griffiths of Fforestfach, L.

Caithness, E.

Hayhoe, L.

Carnegy of Lour, B.

Henley, L.

Chalker of Wallasey, B.

Hertford, M.

Chelmsford, V.

Hesketh, L.

Chesham, L. [Teller.]

Hogg, B.

Clanwilliam, E.

Holderness, L.

Coleridge, L.

HolmPatrick, L.

Colwyn, L.

Inglewood, L.

Comwallis, L.

Jenkin of Roding, L.

Courtown, E.

Kenilworth, L.

Cox, B.

Kimball, L.

Cranbome, V. [Lord Privy Seal.]

Kinnoull, E.

Crickhowell, L.

Lane of Horsell, L.

Cumberlege, B.

Leigh, L.

De L'Isle, V.

Lindsay, E.

Dean of Harptree, L.

Lindsey and Abingdon, E.

Denham, L.

Liverpool, E.

676

Lucas, L.

Prior, L.

Lucas of Chilworth, L.

Rankeillour, L.

Mackay of Ardbrecknish, L.

Rees, L.

Mackay of Clashfem, L. [Lord Chancellor.]

Rennell, L.

Renton, L.

Mackay of Drumadoon, L.

Renwick, L.

Mackintosh of Halifax, V.

Romney, E.

Macleod of Borve, B.

Saltoun of Abemethy, Ly.

Marlesford, L.

Sanderson of Bowden, L.

Merrivale, L.

Seccombe, B.

Monckton of Brenchley, V.

Sharples, B.

Monson, L.

Shaw of Northstead, L.

Mottistone, L.

Skelmersdale, L.

Mountevans, L.

Stewartby, L.

Mowbray and Stourton, L.

Strange, B.

Murton of Lindisfame, L.

Strathclyde, L. [Teller.]

Napier and Ettrick, L.

Sudeley, L.

Northbourne, L.

Thomas of Gwydir, L.

Northesk, E.

Trumpington, B.

O'Cathain, B.

Tugendhat, L.

Palmer, L.

Wedgwood, L.

Pender, L.

Wigram, L.

Peyton of Yeovil, L.

Wise, L.

Pilkington of Oxenford, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.52 p.m.
Clause 7 [Power to borrow]:
Lord Tope Lord Tope moved Amendment No. 10:
Page 3, line 37, leave out from ("given") to ("but") in line 38, and insert ("only where the Secretary of State or a person to whom he delegates the function is satisfied that the land or buildings concerned are not essential to the functioning of the school concerned);").
The noble Lord said: My Lords, I rise to move the amendment standing in my name. We debated the whole subject of core assets fairly briefly, it has to be said, at Committee stage, but at rather greater length on Report. By that time the Minister had written a very helpful letter to me, substantial parts of which I quoted at the Report stage and shall not need to do so again.
The Minister has made it clear, both in his letter and again in his reply at Report stage, that the Government believe it is important and they are fully committed to retain essential school assets. The amendment before us today is simply one last attempt to get something onto the face of the Bill that actually recognises the commitment which the Government have already given. That is the purpose of the amendment.
I think we have debated fairly fully the reasons for this and the need to have a clearer understanding of exactly what is meant by core assets. It is therefore not necessary for me to go into it at any greater length tonight.
However, there are two points that I would like to raise. The Minister said in previous debates that he believed it was best that the Funding Agency for Schools should look at applications on a case-by-case basis and deal with them on their merits. In fact, the Bill allows for a generalised consent:
"which may be given for particular borrowing or for borrowing of a particular class".

677
In another place there was some debate on when generalised consent might operate and the Government indicated that they did not foresee it applying until the new arrangements had bedded down. I wonder whether the Minister could tell us how well generalised consent and the need for administrative discretion for the FAS to consider applications from individual schools fit together.
My final point on this subject is one which, again, we considered at Report stage. It is the question of further consultation on the remit letter. I made the point that during the passage of the Bill, particularly in your Lordships' House, it has become much clearer what the Government regard as being core assets and what are not core assets.
Many factors have emerged since the original consultation. I asked the Minister at Report stage whether he would consider having a further brief consultation with interested parties on the content and meaning of the actual remit letter before it is published. I do not want to press the Minister too hard. It is only a few days since he undertook to give such a consideration, but I wonder in which direction that consideration might be moving. I urge upon him that it can only be helpful to clarify some of these points before the letter is published rather than to have them left unclear after publication. On that basis, I beg to move.
Baroness Farrington of Ribbleton: My Lords, we support this amendment. All I would add to the points made comprehensively by the noble Lord, Lord Tope, is the question of whether the FAS is reasonably placed, in terms of geography and resources, to be able to look in detail at applications from individual schools; and whether it is not also important, from the point of view of those schools, for it to issue guidance directly to the schools on the sort of remit that would be given on this matter in order to help them frame applications which are likely to be approved and not to submit applications which are unlikely to be approved.
Perhaps I may reiterate and strengthen the point about the need for further consultation on this matter. We are not seeking to regulate for every detail. We are not seeking to put obstacles in the way. But we do believe it is important that everyone is clear about the circumstances in which the provisions in the Bill would be applied, were it to become an Act.
Lord Henley: My Lords, I do not think it would be necessary or desirable for me at this time to rehearse all the arguments that I went through at Report stage on the main part of the noble Lord's amendment. I believe that we are both looking in the same direction but have different ways of going about it. I think it would serve little purpose to rehearse my arguments again other than to say that I think we can agree to disagree.
However, the second effect of the amendment is something which I ought to address in that it would prevent the funding agency from consenting to classes of borrowing. As the noble Lord made clear, this is not something that we have debated before and I would like to try to explain our position and to give some
678
reassurances to both the noble Lord and the noble Baroness, Lady Farrington. This will be covered in the remit letter which my right honourable friend intends to send to the funding agency.
In the first instance, the Funding Agency for Schools will give its consent to borrowing only on a case-by-case basis. This is to monitor borrowing in its early stages and to make doubly sure, while borrowing is new, that schools do not overstretch themselves and that publicly-funded assets are protected. So initially consent will not be given by particular class.
Once the arrangements are well-established, however, it should be possible to introduce more flexible arrangements whereby consent would be given by particular class. This might be consent for loans below a certain value or for particular types of loan.
I am sure that the noble Lord would not want to tie up schools in red tape by requiring them to seek consent for every loan just to reglaze the science block or to put up a bike shed. But the Government are committed to cutting red tape and we think that the proposed arrangements for borrowing provide the right balance.
To underline our position, consenting to borrowing by particular class is a very useful flexibility which will be used only where it is appropriate. And in the first instance consent, as I said, will be given only on a case-by-case basis until we have gained experience. This is in no way intended to circumvent the necessary protection for schools and their assets which the Secretary of State's consent provides.
The noble Lord also asked whether there would be further consultation. I think I made it quite clear that there has already been a great deal of consultation. I made it clear that I thought consultation was possibly coming out of our ears more generally speaking, in terms of departmental policy. I am not sure there is a case for further consultation on this issue, but I have no doubt that many interested parties will probably still seek to submit their views. They would be taken note of in drafting the remit letter.
Finally, the noble Baroness, Lady Farrington, asked us whether we were satisfied that the Funding Agency for Schools had sufficient geographical cover and sufficient resources to perform its job effectively. We are so satisfied and if the Funding Agency for Schools were not so satisfied, I am sure that it would be the first to let us know. I hope, therefore, that the noble Lord will feel able on this occasion to withdraw this amendment.
7 p.m.
Lord Tope: My Lords, I am grateful to the Minister for his reply; I am also deeply disappointed by it. I had hoped that as we come almost to the end of this process we had at last found an amendment which he might feel able to accept. It is sad that even at this late stage we shall not achieve that small amount of consensus.
On the question of further consultation, I echo the words of the noble Baroness, Lady Farrington. In requesting that further consultation we are not seeking great detail and over- regulation in the remit letter. We seek clarity. I have acknowledged on previous occasions that consultation has taken place, but it occurred before

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the passage of this Bill. Much has emerged during the passage of the Bill, in the other place and in particular here. It would be common sense to consult with interested parties, in particular the funding agency and the local authority associations, on the draft remit letter. Whether or not they agree with it is not an issue at that stage. It is to ensure simply that those bodies understand the measures that they think it is clear, and that it cannot be drafted in a way to make it clearer. I do not believe that that would be a lengthy and formal consultation process but a necessary, comparatively informal and quick process which could well avoid much greater difficulties at a later stage when it is harder to deal with them. I hope that the Minister's consideration of this point is not finally concluded and that his mind is not finally set upon it. I shall not press him further on that point, nor shall I press the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Orders and regulations]:
[Amendment No. 11 not moved.]
Schedule 3 [Consequential amendments]:
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 12:
Page 11, line 36, leave out ("first") and insert ("second").
The noble Lord said: My Lords, I hope that all noble Lords will pay close attention to this highly technical amendment. I shall say this once, and once only. Schedule 3, paragraph 9 amends the local authority capping provisions to take account of local authority budgets following the removal of resources to fund the voucher scheme. Local authorities will not know at the start of a financial year what their expenditure will be because voucher income is not known. Authorities may exceed their cap if education is provided for more children than expected.
Paragraph 9(3) makes separate provision for the first financial year, and either or both of the next two financial years. I hope that is quite clear. The intention is that the first financial year should commence on 1st April 1997 when the "roll out" phase starts. The first financial year is tied to the use of Clause 1 of the Bill; that is, the grant-making powers.
It appears that the Government wish to use Clause 1 to fund inspections of private and voluntary sector providers in phase 1 authorities this financial year, 1996–97. As the Bill stands, if Clause 1 is used this financial year, then the capping provisions would also start, whereas the intention is that they should first apply in the following year. The government amendment ties the start of the capping provisions to the first financial year in which local authorities are funded, and not the first year in which Clause 1(1) is used.
There is a problem with the government amendment as it will make the Bill inconsistent in our view as between Schedule 3 and Clause 1(3), which the Government have not changed in the Lords. The Government should uphold the Bill rather than introduce
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ambiguities. The government amendment raises a doubt about the Government's view of the Lords' amendment which is new Clause 1(3).
My amendment achieves the technical objective of the Government's amendment without causing this inconsistency. It has the effect of renumbering the financial years for which the capping provisions apply and so enables inspections to continue after 1st April 1997. This, I submit, will leave the Bill in tidier shape on leaving your Lordships' House than the government amendment would, and it would not bring inspections to a halt. My amendment will make the Bill internally consistent. I hope that that is all clearly understood. I hope that the Government will accept it. I beg to move.
Lord Henley: My Lords, all I can say is that I am grateful that the complexities of local authority finance and capping arrangements did not come up at one o'clock in the morning at Committee stage; at seven o'clock it is bad enough. I intend briefly to explain why we do not feel that the noble Lord's amendment is appropriate. I ask if he would bear with me and listen to my words carefully. Then, if I may—I appreciate the amendments are not grouped—I shall speak to my amendment. That might be for the ease of the House, and we can then formally move the amendment later.
The noble Lord's amendment would delay the operation of the capping power in sub-paragraph (a) of paragraph 9 of Schedule 3 until the second year in which grants were made to providers in any sector. As I said, I shall shortly move the government amendment. I shall go into that in greater detail.
Like the government amendment, this amendment attempts to ensure that the capping power in sub-paragraph (a) of paragraph 9 will not be brought into force too early as a result of payment of grant under Clause 1 of this Bill to private and voluntary sector providers in phase 1.
However, unlike the government amendment, this amendment is not linked specifically to the changes in local authority funding which will make the capping power necessary. This means that the proper functioning of the capping power will continue to be dependent on the nature and timing of payments to providers in sectors other than the maintained sector.
The formulation of the government amendment, on the other hand, avoids all risk of the power being brought into force at a time when local authority funding should not be affected, and so allows for far greater flexibility in determining appropriate payment arrangements for providers in all sectors.
I shall now speak to my amendment. Paragraph 9 makes the necessary adjustments to existing capping legislation to reflect changes in local authority funding as a result of nursery education grants.
It is intended to provide for a reduction in local authorities' base budgets for capping purposes to reflect changes in their funding for four year-olds as it is switched from revenue support grant to grant under Clause 1 of this Bill. It is not a general widening of the existing capping regime, and will not disadvantage local authorities. The government amendment would provide

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that the changes to capping limits can take place in the first year in which nursery education grant under Clause 1 is paid to any local authority.
I know how much importance the House attaches to early inspection. In order to inspect phase 1 private and voluntary sector providers under Schedule 1 to this Bill, it will be necessary to use the grant-making powers under Clause 1 to fund those providers. But without the amendment to paragraph 9, which we propose, making grants to private and voluntary sector providers in phase 1 would bring sub-paragraph (a) of paragraph 9 into force a year too early. The amendment tabled by the noble Lord, Lord Morris, as I said, would delay the operation of the capping power in sub-paragraph (a) by one year. However, it does not link the capping power specifically to the payment of nursery education grant to local authorities and the resultant changes to their funding, as my own amendment does.
Paragraph 9 of Schedule 3 applies only to local authorities. We have already seen that the need to pay grant under Clause 1 to some private and voluntary sector providers in this financial year has made this technical amendment to the capping power necessary. For the avoidance of any future doubt or complications it is best to tie the operation of the capping power to the timing of changes in local authority funding which will make it necessary. This government amendment will ensure that the capping power refers to the first year of full implementation of the voucher scheme, as we have always intended. This will be the case irrespective of the year in which the voucher scheme is fully implemented and irrespective of any previous funding arrangements for private and voluntary sector providers. I hope that that explanation as to why we believe our amendment is better than the noble Lord's amendment is comprehensible to him. I appreciate that it is rather technical stuff at this time of night. However, I hope that the noble Lord will consider withdrawing his amendment in favour of the government amendment.
Lord Morris of Castle Morris: My Lords, it is transpicuously clear for the moment. I cannot believe that I shall remember it with anything like that detail tomorrow morning when I read what the noble Lord said and what I have said in the official record. It seems to me that the government amendment may give extra flexibility but it has not addressed the Clause 1(3) issue, and that still remains. We feel that our amendment does exactly the same as the government amendment; but the glory of ours is that it comes for free. However, I understand that the Minister may feel that there is no such thing as a free amendment. In the light of that, and hoping that his officials and our advisers will have a careful look at this matter to see whether we have it completely right this time—I agree with the Minister that it is a very technical matter, best fought out in Committee rather than at this late stage of the Bill—I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 13:
Page 11, line 36, after ("made") insert ("to any authority").
The noble Lord said: My Lords, I have already spoken to this amendment. I give an assurance, however, that I will examine again very carefully the remarks of the noble Lord, Lord Morris, in relation to the allegedly superior virtues of his amendment. I believe that we have got ours right. I beg to move.
On Question, amendment agreed to.
Lord Henley: My Lords, I beg to move, That the Bill do now pass.
We have now completed our consideration of the Nursery Education and Grant-Maintained Schools Bill. It is a short and straightforward Bill. Those noble Lords who have devoted so much time and attention to rather larger education Acts in recent years may not regret its size. Your Lordships have, nonetheless, put a good deal of care and attention into scrutiny of the Bill, in the finest tradition of this House.
At Second Reading of the Bill I had one main message that I wished to convey to the House. The Bill builds on the themes that have underpinned all the Government's education reforms: choice, diversity and quality. Although modest in size, the Bill will be far-reaching in effect—far-reaching for parents, who will have new and unprecedented choice in respect of their four year-olds' education; and important, too, for governing bodies of GM schools, which will have far greater flexibility to address their schools' capital needs.
It has been a disappointment that so much time has been spent on efforts to delay the implementation of our nursery education scheme. That has been an unfortunate approach. It will be particularly unfortunate for parents whose four year-olds may lose out on nursery education as a result. Many noble Lords mentioned the number of letters received from parents. I have received similar representations and I do not discount parents' anxieties.
However, we now have the results of an independent study of the views of parents in the phase 1 areas. We know, for example, that six in 10 parents have rated the scheme positively. The positive rating for Norfolk was a very heartening 87 per cent. We know that 72 per cent. of parents said that they found the application forms very easy to use; and almost all those who had used their vouchers had experienced no difficulty. The picture is brighter than has sometimes been painted.
I was accused earlier today of being somewhat unmoving in my acceptance of amendments. The Bill has been distinguished by its examination by the Delegated Powers Scrutiny Committee under the chairmanship of my noble friend Lord Alexander of Weedon. I am most grateful to him and his committee for their constructive contribution to our proceedings. Following the committee's helpful report, we have provided the example for the amount of grant that is to be paid under the nursery scheme to be put in regulations. We did move. There have been other amendments. Government amendments have been made in response to concerns both in this House and the other place. We amended the Bill to meet concerns expressed by local education authorities on the question of admissions to reception classes. We have included a requirement for all providers outside the maintained

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sector to have regard to the special educational needs code of practice. I pay tribute to the noble Lord, Lord Rix, and am sad that he was not able to be here later on this afternoon. He brought those matters to our special attention. Special educational needs is one of the areas in which this House has developed a special expertise.
I end by offering my thanks to all those who have advised me, both here and in the department. I offer my thanks to my Whip, my noble friend, Lady Miller. I am afraid she is ill today, and I hope she returns feeling better. I also pay tribute to my noble friend Lady Young and others on my own Benches. I pay tribute to all the work put in by the noble Lord, Lord Morris of Castle Morris, the noble Baroness, Lady Farrington, and all their team; to the noble Lord, Lord Tope, the noble Baroness, Lady Thomas of Walliswood, and their team. I also pay tribute to those on the Cross-Benches, and to the right reverend Prelate.
Our debates have been by and large conducted with an air of general good humour and without acrimony in a field where, I appreciate, feelings are very strong indeed. That in itself is some achievement. Perhaps I may now say goodbye to the Nursery Education and Grant-Maintained Schools Bill, as I prepare for a different form of nursery. I commend the Bill to the House.
Moved, That the Bill do now pass.—(Lord Henley.)
7.15 p.m.
Lord Morris of Castle Morris: My Lords, let it be clearly understood as we come to the end of this debate and our consideration of the Bill that we on these Benches are wholly, totally and utterly opposed to nursery vouchers in every form in which they might be put forward. We consider them to be a waste of effort, a waste of time and a waste of money. Nothing that has been said throughout all the stages of this Bill will convince me, or has even come anywhere near convincing me, to the contrary.
That having been said (if your Lordships will permit the passive participle to be used in this way), I have a lot of people to thank and I will do so quickly. There were a number of noble Lords who spoke on our side of this argument. I refer to the fearless noble Baroness, Lady Farrington; to the determined and dauntless noble Baroness, Lady David; to the noble Lord, Lord Ponsonby, who always appears to come straight from Moscow, sometimes with snow on his boots; to the noble Lord, Lord Sewel, who gave us the Scottish dimension; to the noble Baroness, Lady Hayman, who once described herself in this House as "a retread". We found her absolutely tireless!
I was most impressed with the timely and thoughtful interventions of the noble Lord, Lord Monkswell; and by the precise and perfect professionalism of the noble Lord, Lord Prys-Davies; the noble Lord, Lord Parry, was a great help, bringing with him all the power of Pembroke. There was the doughty noble Lord, Lord Dormand; the noble Lord, Lord Williams of Mostyn; the noble Baroness, Lady Fisher of Rednal; and the noble Lord, Lord Merlyn-Rees.
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Among our colleagues—and on this occasion our allies—on the Liberal Democrat Benches, I was staggered by the sheer knowledge of the noble Lord, Lord Tope, and the noble Baroness, Lady Thomas. It was a pleasure to listen to them, and I have learnt a great deal. I am used to the formidable contributions of the noble Baroness, Lady Seear. I wish we had heard more from her. There was the solid good sense of the noble Viscount, Lord Addington; the brief but trenchant intervention of the noble Lord, Lord Ogmore; the fearsome forensic skills of the noble Lord, Lord Hooson; and the fine analytic mind of the noble Lord, Lord Lester of Herne Hill.
Among the Cross-Benchers, we had the aid of the philosopher, the noble Baroness, Lady Warnock; the noble Earl, Lord Baldwin of Bewdley, with a lifetime in education; the strange alliance of the noble Lord, Lord Elis-Thomas and the noble Viscount, Lord St Davids. I should never have thought it could happen, but Wales is the better for it. We benefited from the thoughtful interventions of the right reverend Prelate the Bishop of Ripon, who watches over far more than simply Church matters. I, too, wish to thank the noble Lord, Lord Rix, and the noble Baroness, Lady Darcy (de Knayth), each of them careful, cheerful champions of special educational needs; and the noble Lord, Lord Walton of Detchant, who helped us a great deal at the beginning and whose wisdom we have missed in these later stages.
Some noble Lords were not quite as supportive of us as I could have wished. There was the noble Lord, Lord Northbourne, always independent but quite frequently helpful; and the noble Lord, Lord Campbell of Alloway, who always listens and makes up his own mind. There was the noble Baroness, Lady Young, for whose support the Government should be truly grateful whenever they get it. They do not always get it, but they got it on this occasion, and we got it, too—in the neck! And there were lesser interventions from the noble Lord, Lord Pilkington, the noble Baroness, Lady O'Cathain; the noble Baroness, Lady Seccombe; the noble Lord, Lord Dixon-Smith; the noble Lord, Lord Bowness; the noble Lord, Lord Skidelsky, a fellow academic who contributed very much as a thinker; the noble Lord, Lord Elton; the noble Baroness, Lady Carnegy of Lour; the noble Baroness, Lady Perry of Southwark, whose expert knowledge adds so much to our education debates; and the noble Lord, Lord Pearson of Rannoch. To all, I offer my grateful thanks.
My thanks go, too, to the organisations which have advised us: the AMA, especially Mr. Damien Welfare, who did so much to help us; the ALG; the ACC; the NUT; the SEC; and CASE, the coalition of children's charities. I thank too, all the correspondents. There were well over 700 letters to me alone. Finally, I thank our researchers, Jessica Bawden and Clare Cozens, who worked indefatigably.
I turn to the noble Lord the Minister, who has been here from start to finish—from the beginning of Second Reading, even until now, alone very often on the Bench, apart from his Whip. He has taken the full burden of this Bill. When I thank him my mind is drawn to some words of a writer whom he may care to try to identify, if he cannot already do so straightaway:

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"I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed … where that immortal garland is to be run for, not without dust and heat".
The noble Lord has endured the dust and heat. That particular passage ends:
"that which purifies us is trial, and trial is by what is contrary".
In that sense I have certainly tried to purify the noble Lord. I thank him for his patience and courtesy. I apologise for any inconvenience that we may have caused him and I hope that any further troubles that he may have this week will be little ones.
Lord Tope: My Lords, not for the first time I have to follow the noble Lord, Lord Morris of Castle Morris, and I think to myself, "Now follow that". The only way I can compete with him on this occasion perhaps is to read out the names of all the parents who have written to me during the passage of this Bill. But I shall spare your Lordships.
I started the process of this Bill during the Second Reading debate by stating very strongly the Liberal Democrat commitment not just to a high priority but to the highest priority for the funding of early years learning and increased provision for nursery education for all three and four year-olds whose parents want it. It is therefore appropriate that I end on the same note and reiterate that very strong commitment from my party. If I thought that the Bill would in any way help toward that, I might at least at this stage of the conclusion be willing to wish it at least some qualified success. But I share the view, so strongly expressed by the noble Lord, Lord Morris, that this Bill and the scheme it will allow will not do it. It will be likely to raise expectations which too often will not be fulfilled. Above all, it is almost the least effective way of targeting resources to increasing provision for early years learning. For those reasons, we feel that fundamentally the Bill and the scheme that it will allow are flawed.
We have sought during its passage through this House to make it a less bad Bill. I think we have succeeded in one important area. If phase 1 is the success that the Minister believes, the Government have nothing to fear from the evaluation. The evaluation presumably will demonstrate that; we shall accept that we were wrong; and the scheme will go ahead. If he believes that, he should be content with our amendment. It is not my view of what an evaluation will show; nor do I believe that it will be the best way to extend early years learning.
We have had very long sessions on what the Minister quite rightly described as a very short Bill. I should like to feel that apart from a few important areas it will leave us as a better Bill. But I fear that it does not. It is better for the amendment which your Lordships agreed; it is certainly better for the amendment on special needs which the Minister introduced. We all welcome that and, since I have not spoken before on that subject, let me put on record that I and my party welcome it. That makes it a less bad Bill but it does not make it a good Bill. Most of all, I regret an opportunity lost.
Having said that, I move on to my thanks. I should not dream of competing—I do not think I could—with the noble Lord, Lord Morris. I may check at a later
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stage, perhaps during the summer holidays, whether he missed anyone from his list, but I doubt it. I assume that he did not and so I simply join him in expressing all the thanks that he offered to all those people. I particularly want to thank and pay tribute to my noble friend Lady Thomas, who has given me great support on all occasions, sometimes under difficult circumstances for her—at Committee stage under difficult circumstances for me. I did at least learn that a nine-hour Committee stage is best not undertaken immediately after getting off a plane from China. At one stage in the evening my noble friend Lady Thomas thought that I had been resting my eyes for rather too long and she advised me to go out and take a walk in the fresh air. As always, I took her advice and it was beneficial. Of course I want to thank my colleagues who have contributed, and in particular the noble Lord, Lord Addington, whom the noble Lord, Lord Morris, recently promoted, for his help and support.
I join the noble Lord in thanking the associations which have advised us very well indeed. This has been the first Bill that I have been able to take right through from start to finish. Certainly I appreciated the help and advice from the local authority associations. I also pay tribute to and thank my research assistant in our Whips Office—Carolyn Rampton, for whom this was also her first Bill from start to finish and so we learned together, I hope successfully.
Perhaps I may conclude with the Minister. If I had the time, I should wish to count up the number of times that he said, "My Lords, this is an unnecessary amendment". At times, it is a little dispiriting to be told that on amendment after amendment. Nevertheless, on the whole he has treated us with great patience and some tolerance and sought to explain—not always convincingly, I must say—why amendments are unnecessary. He told us earlier that it was possible he might not be with us today. I am pleased that he is with us. I hope that now the matter is concluded, he will not have to wait very much longer before having an even more personal interest in the subject matter before us.
The Lord Bishop of Ripon: My Lords, before we take leave of the Bill, I rise briefly to add my thanks to those already expressed in your Lordships' House. I have expressed from these Benches my hesitations about various aspects of the Bill and feel, with the noble Lord, Lord Tope, that we have made modest amendments which have improved it. I join him in expressing my appreciation of the amendments on special educational needs which have been moved and agreed.
I enjoyed taking part in the debates of the Bill. I cannot possibly match the comprehensiveness of the thanks which the noble Lord, Lord Morris of Castle Morris, has already offered—biblical in their range, but we have noticed that the noble Lord is frequently biblical in his references and we are grateful to him for it. I offer a word of thanks to the noble Baroness, Lady Farrington, not least for her untiring championship of church schools, which she mentioned on many occasions throughout the debates. Finally, I thank the

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noble Lord the Minister for his patience and courtesy. I join others in hoping that the rest of his week is a highly enjoyable one.
Lord Henley: My Lords, I commend the Bill to the House.
On Question, Bill passed, and returned to the Commons with amendments.

Kent (Borough of Gillingham and City of Rochester upon Medway) (Structural Change) Order 1996
7.27 p.m.
Lord Aldington Lord Aldington rose to move to resolve, That this House declines to approve the draft Kent (Borough of Gillingham and City of Rochester upon Medway) (Structural Change) Order 1996 and invites Her Majesty's Government, first, to reconsider what is necessary to ensure the provision of efficient local government services throughout Kent without additional administrative costs falling on the taxpayer; secondly, to take full account of researches ascertaining the clear wishes of the local people; and, thirdly, in any order affecting the structure of local government in Kent, to make mandatory the establishment of a procedure for the future of a county-wide structure plan for Kent in accordance with the recommendation of the Local Government Commission.
The noble Lord said: My Lords, I rise to move the Motion in my name on the Order Paper. The purpose of the Motion, which has the support of Peers from Kent of all parties and on the Cross Benches—many of them have told me that they are unable to be present tonight for good reasons, but I regret their absence—is to persuade the Government not to proceed with this mistaken and damaging order and to think again about their policies on Kent local government structure. Our debate will enable this House to consider important subordinate legislation to which the other place was not able to give more than a short time. We cannot amend the draft order but we can and should give the Government and the other place a chance to have second thoughts. That is what I am about tonight.
If passed, the order will take out of the County of Kent the present districts of Rochester upon Medway and Gillingham, merge them and give them a unitary district council. The order goes further and would create a new county—if you please—given the name of the County of the Medway Towns. The district would no longer be in Kent; it would be in the new county. Chatham, with all the historic associations of its dockyards, would no longer be part of Kent; nor would the City of Rochester, with its cathedral, the historic centre of the diocese covering north and north-west Kent, I wonder how the Secretary of State has become so powerful that he can, by order, create new counties in England. I am told that he has that power but I have not yet been able to discover from where the power comes. I do not believe that the commission in its report recommended the creation of a new county.
Be that as it may, implications arise from the setting up of the new county in Kent. My honourable friend the Member for Gillingham asked pertinent questions in another place in that regard on 4th July but time did not allow for him to be given an Answer. One thing is clear: nobody who is living in and is a citizen of the Medway towns can also be a citizen of Kent; perhaps we shall be enlightened on that later.
My Motion is concerned with three points arising from the order and they are clearly set out. Before I come to them I want to remind the House of the inevitable effects that this change in Kent's constitution will have. Kent's local government services have been developed by boroughs, districts and counties over a long period, the method of delivering them changing over the years and partnerships being developed between county, district and others.
Everyone has gained from the experienced and skilled leadership of the teams that have been formed, as they gained, too, from the economies of scale, particularly in specialist services. The proposed change will inevitably cause disruption and loss of economies of scale, both for the new unitary authority and for the residual Kent. There is no evidence that any of those services suffered because of the structure. Indeed, both commissions—there were two: one in 1994 and one in 1995—acknowledged that the present two-tier structure is well capable of meeting the needs of the people. Of course, there will be improvements, but people, not structures, evolve improvements.
Kent has much experience, too, and a good record in the encouragement and co-ordination of economic development county-wide and tackling economic change. A good example was the closing of the Chatham Dockyard and the difficult consequences that followed. Another good example of the way in which economic development problems are tackled in Kent between the districts and the county is the Thames Gateway project. That is a great project which includes areas on both sides of the River Thames and in Kent which go far outside the Medway towns, covering Dartford and Gravesham and parts of the Swale to the east.
It was the importance of the Thames Gateway project that led my right honourable friend Mr. Gummer to call for a second review of the proposal for unitaries in North Kent which the 1994 commission specifically rejected. The 1995 commission said of the Thames Gateway, at page 55 of its final report:
"Although the area [of the Medway towns] is in the Thames gateway, the developments taking place in the Medway are not on the same scale as in the Kent Thamesside and such issues were judged to be supplementary rather than central to the arguments for unitary status".
In its earlier report giving draft recommendations it said the same thing, but more decisively:
"The Gateway is not in itself a sufficient reason for recommending change to local government structure".
That is what the commission recommended to the Secretary of State.
What did the Secretary of State in the other place say in recommending the order on 4th July (Hansard, col. 1067)? He singled out once again the Thames

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Gateway as one of the two points he wanted to make in support of the order. The other point was the desirability, in his view, of a forced marriage between Rochester and Gillingham because they were squabbling too much. I commend to him the same "Whitehall knows best what is good for you" policy, but I commend to the House the opposite.
Within the present two-tier structure there is the undoubted advantage of a county-wide structural plan which the order would maintain for any plan made before 1998 but not for any plan made after that date. Also, there is the advantage to local people of having the county council championing their cause in Whitehall and co-ordinating strategy that affects where they live, their environment and their jobs.
It is not reality but theory—academic and/or political—that led to the introduction of unitary ideas for Kent—ideas that may well be supported by ideas and opinion in other parts of England. I do not quarrel with that. But in Kent, "If it ain't broke, don't fix it", is a saying born of much experience, and the sensible people of Kent, by a large majority, believe that that is fully applicable to their local government set-up. They have twice—in 1994 and again in 1995—been able to say what their wishes were, not just through letters and MORI polls, but through business and other organisations in which they are represented.
What are the consequences for them? First, there is the financial consequence. They would have to pay the cost through council tax—a considerable cost to the taxpayers in the new County of the Medway Towns and a smaller one for the rest of Kent, but nevertheless a cost. Transitional costs are inevitable. We are told it will be between £8 million and £10 million. It is wiser to take the higher figure and add to it, as reported experience of new unitaries show, for example, in Hampshire and Cleveland; there is experience also in Wales.
More significant figures relate to the additional ongoing costs and their continuing effect on the council taxpayer. The best estimate I can give is for an addition each year to the council tax, Band D, in the new Medway district of £190 per household and of £23 per household in the rest of Kent as a reward for losing Rochester and Gillingham. I know it has been said—it has been said to me—that those are small figures that can be speedily offset by savings. But they are not small figures; no increase in tax is small and no reduction in tax is so small that it is not welcome.
If savings are to be made either in the Kent County Council or in any council by greater efficiency, those savings should be available to add to or improve services or to reduce taxes. They should not be used to cover the costs of unwanted reorganisation. That in itself leads to no savings and no improvements. It may interest the House to know that in the past three years Kent County Council has made efficiency savings of the enormous figure of £80 million. I hope that those figures are not challenged by the Government; they have been in the public domain for some weeks and have not been contradicted. I am greatly troubled to work out in my mind how my noble friend can conceivably justify
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imposing those reorganisation and administrative costs on the unwilling citizens of Kent against the wishes of the great majority.
The great majority have said that they would prefer the structure of local government in Kent to stay as it is; that is, no change. That is the majority view of both the Medway towns and in the rest of Kent. The commission's report shows that. The report of October 1994 gave the figures for 1994 and the November 1995 report in relation to the Medway towns shows the figure to have increased in favour of no change in the course of that year despite the Secretary of State's reference back.
The commission's 1994 report ends with a summary which I believe caused some annoyance to the Secretary of State. It stated:
"There is at present no overall support in the county for a change in local government structure. [The commission] is also satisfied from the huge volume of further evidence and arguments that it has received from special interests as well as from the public at large that the existing structure [Kent County Council and its districts] has the capacity to secure the strategic overview that the county as a whole requires, while reflecting the variety of different communities it comprises".
That is why the Government rejected the idea that had been put out to consultation, of the Medway Town unitary authority and the Dartford and Gravesham unitary authority.
The 1995 report produced no evidence to contradict that clear conclusion. At page 59 of the report the commission contented itself with saying that, although there was an overall preference for the two-tier structure, there was a reasonable measure of support for unitary status. But that disregards the majority altogether, which was 60 per cent. as opposed to 30 per cent. That is a funny conclusion for the commission to reach and it is an even funnier one for the Government to accept.
The MORI poll sets out a number of detailed points on which the citizens of Kent had been asked to give their views, but it is quite clear from that that it is the Kent districts which are more in favour of having a county council than anywhere else in England which was reviewed, just as they reject the idea that a unitary authority would be more in touch more decisively than elsewhere
My noble friend made us all laugh a little the other day at Question Time when he dismissed MORI polls with a mighty sweep. I did not take him seriously and I hope nobody else did. If we do not have MORI polls, how else can we expect the commissioners to make a judgment as to how people feel? I remind the House that they took the MORI poll, and those of us who believe in "Keep Kent" had nothing to do with it.
I wish to detain the House for only a few more minutes. During the reviews following the 1992 Act, "the wishes of the people" were to be a dominant consideration. I have letters assuring me of that. On winding up for the Government in the debate on 30th March 1994, my noble friend Lord Arran used these words at the end of his speech in reply to a typically pointed intervention by my noble friend Lord Peyton, who was reminding him of the tenor of your Lordships' cogent speeches. He said:

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"Our aim remains to give local people a structure of local government which meets their needs and wishes".—[Official Report, 30/3/94; col. 1157.]
In ordering the second review of a number of districts, I know that the Secretary of State altered the guidelines and moved some of the original commissioners, but I did not know that he decided to move one of the goalposts and to abandon that government undertaking. I cannot believe that he did, because it has been put so very clearly by my right honourable friend the Prime Minister only very recently in a speech in Newcastle as regards what he thinks about changes in the constitution. I shall read his words to the House:
"Look at the history of this century and the changes there have been—not fundamental but significant nonetheless—in Parliament, our electoral system, the Civil Service, local administration, even the Monarchy and Church. Not change for change's sake. Not the result of some technocratic plan. Not to serve the interests of the institutions themselves. They have been changes to strengthen the links with the individual citizen who they are there to serve. That's the kind of constitutional change I support. Practical change, not grand plans. And above all change that is driven by what people want".
Why have the commission and the Government so manifestly disregarded the evidence of those wishes?
The third point in my Motion relates to the structural plan. It is a very important point that there should be in the British peninsula leading to Europe a county-wide strategic plan. The order makes provision for the pre-1980 plan to continue, but makes no provision for a plan after that date to be mandatorily devised by the county council and the Medway Towns authority together. It is very important that there should be no reliance on a voluntary, joint endeavour there; it should be mandatory.
That is the case against this order, asking the Government to reconsider the matter. The Medway towns are not separated from Kent by the North Downs, as was mentioned in one of the commission's reports as though it was the horse and cart era. They never have been and they are not. Kent is a splendid county of diverse communities and it is important that it stays together. I rest my case there. I beg to move.
Moved, That this House declines to approve the draft Kent (Borough of Gillingham and City of Rochester upon Medway) (Structural Change) Order 1996 and invites Her Majesty's Government, first, to reconsider what is necessary to ensure the provision of efficient local government services throughout Kent without additional administrative costs falling on the taxpayer; secondly, to take full account of researches ascertaining the clear wishes of the local people; and, thirdly, in any order affecting the structure of local government in Kent, to make mandatory the establishment of a procedure for the future of a county-wide structure plan for Kent in accordance with the recommendation of the Local Government Commission.—(Lord Aldington.)
7.46 p.m.
The Minister of State, Department of the Environment (Earl Ferrers): My Lords, my noble friend has made a speech which is characteristic of him
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and in which he rightly defended Kent. It was a speech of pride and we all appreciated that. He asked some telling questions and made some telling points.
He has tabled a Motion which is clearly directly opposed to the purposes of my own Motion, which appears on the Order Paper to be dealt with a little later. My noble friend's Motion says that your Lordships should not approve the order in my name. In due course I hope to persuade your Lordships that that would be a pity. I hope that my noble friend will see the wisdom of not pushing his Motion and seeking the opinion of the House for the order to be reviewed. My Motion is to establish a unitary authority for Gillingham and Rochester.
Perhaps I may first respond to the three points in my noble friend's Motion; and then set out some reasons of my own as to why your Lordships should not be persuaded by my noble friend. I shall first address the question which my noble friend raised as to why we accepted the recommendation of the Local Government Commission for a new authority in Kent when it had recommended no change in the original review.
Your Lordships may recall that under Sir John Banham a review was carried out between 1993 and 1994. That was a county by county review of the structure of local government in England. The overall outcome was that the commission recommended, and we accepted, the creation of a number of unitary authorities.
On the commission's recommendation, many areas, including Kent, remained unchanged. However, some districts within these areas appeared to be very similar in nature to others which were to become unitary authorities. Therefore, we asked the commission, under Sir David Cooksey, to carry out a further review of 21 districts, including, in Kent, Gillingham and Rochester, Dartford and Gravesham, in order to test consistency in this matter.
The main outcome was that the commission, following its independent assessment of each of the districts, recommended the setting up of eight unitary authorities, including one for a merged Gillingham and Rochester. It recommended no change for the remaining 12 districts, including Dartford and Gravesham in Kent.
My noble friend Lord Aldington said that that was all theory and that it may be fine elsewhere, but not in Kent. I can understand why my noble friend took that view. That is a view which, in the common parlance of the day, is often known as NIMBY, which means "not in my back yard". It says, "Anyone else can do it, but we do not want it". Although I can understand that view, I do not think that it is a telling reason as to why this should work everywhere else but not, for some extraordinary reason, in Kent.
My noble friend then referred to the costs which might arise from the setting up of a unitary authority for Gillingham and Rochester. I agree with him—I make no dispute about it—that there will, of course, be some extra costs. The commission estimated that the transitional costs might amount to between £8 million and £11 million and that there might be ongoing costs

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of between £3 million to £9 million. Those transitional costs are once-and-for-all costs. They are not ongoing costs.
Although those figures may appear large, in comparison with the overall budget of Kent County Council, they are not. For this year, 1996–97, the county has set a budget of over £1,000 million. Even after the creation of a new unitary authority in the Medway towns, Kent will still be one of the largest counties in terms of its budget. Furthermore, significant economies of scale could still be made. Indeed, I congratulate Kent on having made such economies already, as my noble friend mentioned. Of course, economies can be made by both Kent County Council and the new unitary districts.
As I have said, one must compare that sum of £1,000 million with the transitional costs of between £8 million and £11 million. The authorities will be able to borrow to cover their transitional costs and, in general, authorities will not have to meet borrowing or interest costs for three years, by which time savings should have been realised. I agree with my noble friend that nobody likes extra costs—of course they do not—but if the change will bring local government in those two areas closer to the people—that is the whole point of this—and if it is possible as a result also to make economies, I think that those transitional costs will in time be absorbed entirely.
Much, of course, will depend on the will of the authorities concerned. Rochester City Council, at least, has expressed the view that a unitary Medway would result in considerable long-term savings and that it would be better placed to provide cost-effective services. That is the view of one of those local authorities.
My noble friend's Motion refers to taking account of the clear wishes of local people. The commission, in its review, gave them opportunity for the expression of local opinion throughout Kent as well as commissioning MORI polls on their recommendations. We also allowed a period for representation on the commission's recommendation for change. I know that the opinion which was expressed in general was against change. But neither the commission nor the Government thought that that was conclusive.
One must accept that it is generally the case that those who oppose change are more likely to express their views than those who agree with it. In addition, a whole range of people tend not to be particularly interested and therefore do not feel motivated to vote or to answer a MORI poll. Furthermore, there was, of course, an orchestrated campaign in Kent to keep the status quo. That is fair enough. If people want to make their views known, they are entitled to do so. However, we must recognise that it is sometimes easier to sign a petition or to send a standard letter than to express an independent view. When a great campaign is under way, it is easy to draw people, like iron filings to a magnet, to the cause célèbre and those who have no particular view or who hold a contrary view do not have such a ready or well-made avenue of expression.
My noble friend asked how else one can find out people's views other than by asking them through a poll undertaken by, for instance, MORI. Great campaigns
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can by themselves sway people's view. Polls are snapshots of opinion on the day when the question was asked or answered. Much depends on the question. It was, of course, up to the commission to find out people's views. It did that. That was part of its responsibilities.
However, local opinion was not the only factor under consideration. The Local Government Act 1992, which set out the framework for the local government review, states that any changes must secure effective and convenient local government which takes account of community identities. Those are fairly complex issues to measure and cannot be judged simply by asking people questions in a poll—important though polls may be.
The third point in my noble friend's Motion concerns the need for adequate structure planning arrangements for Kent. The commission recommended that strategic planning should be retained across the area of the existing county. We have given effect to this in the order, which is laid before your Lordships, by transferring Kent County Council's strategic planning responsibility for this particular area to the new unitary authority. This will enable the two authorities—Kent County Council and the new unitary authority—to make voluntary arrangements for joint working on the structure plan for their combined area.
My noble friend Lord Aldington said that the powers of the Secretary of State are enormous if he can simply make a new county. My noble friend wondered how the Secretary of State got those powers. Parliament gave him those powers. They are explicitly provided for by Section 14 of the Local Government Act 1992 which allows for,
"the constitution of a new local government area of any description".
The provisions go on to make it clear that that could include a new county.
If my noble friend wants the specific details, I can advise him that under Sections 13(1) and 14(3)(b) of the Local Government Act 1992, the Local Government Commission may recommend the constitution of a new local government area of any description by amalgamation or separation of any local government area.
Under Section 28 of the same Act, "local government area" is defined to include a non-metropolitan county in England. Under Section 17(1), the Secretary of State may by order give effect to the Local Government Commission's recommendations. That is what the order does.
These provisions are similar to those which appear in other orders for structural change. They will operate in parallel with recent guidance from the local authorities' associations and our own Circular 4/96 on the matter. There is no need for any further legislation to bring that about.
Perhaps I could turn to the reasons why we have brought forward the Kent order. There are considerable benefits to be gained from the joining of Rochester and Gillingham. With a population over 240,000, these two

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district councils form one of the largest urban areas in the south-east outside London, and they have common physical, economic and community interests.
Putting the area into the hands of one unitary authority, which will have district and county administrative functions, will be simpler and will enable the full range of local services to be provided more efficiently. This area of Kent is just totally different from the remainder of Kent. It is a large urban conurbation. The rest of Kent is not.
The Local Government Commission found that the local rivalry between Gillingham and Rochester is damaging for local interests. It prevents the area from being recognised for what it is: the largest conurbation in the south-east outside London, with all the typical problems of urban areas. In this case, the commission took the view that convenient and effective local government required a merger. Even after the change, Kent County Council will still have one of the largest populations in England, with over 1.3 million people, and it will have the same responsibilities for the county area which, it used to have—other than for Rochester and Gillingham.
The content of the order for Kent is broadly the same as in other orders for structural change which your Lordships have considered in the past. The changes which are proposed by this order—the merging of Gillingham and Rochester and the creation of a new unitary authority to run them—will come into effect on 1st April 1998. It is proposed that at that date the existing Gillingham Borough Council and Rochester City Council will be abolished. The rest of the county of Kent will remain two tier. The authorities concerned will have nearly two years in which to plan for these changes. The order, once it is made—if your Lordships approve that it be made—will confer new powers and duties on the existing district authorities, the county council and the prospective unitary authority, in order that they should co-operate and prepare for the transfer of functions.
The unitary Medway Towns authority will be a new authority. The Kent order allows for elections in May of next year to a shadow authority which will facilitate the changeover, for example, by setting budgets and promoting joint arrangements, during the period until the new Medway Towns authority comes into operation. On 1st April 1998 it will take over as the unitary authority.
The order before you does not deal with ceremonial arrangements which I know tend to be of considerable interest to your Lordships, but we will be making separate provision for this in general regulations in good time for the new arrangements to be in place by no later than 1st April 1998. It is necessary to distinguish between local government and historical purposes. For local government purposes, since the Medway towns will no longer be served by the county council technically that cannot be part of the county. In historical terms nothing has changed. Gillingham and Rochester will still be in Kent. We will be making an order to ensure that the lieutenancy covers both Gillingham and Rochester.
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The provision which we intend to make will clearly show that the new unitary authority will continue to be part of the historic county of Kent, and it will therefore remain within the jurisdiction of both the Lord Lieutenant of Kent and the High Sheriff.
Another matter for which separate provision will be made is the policing of the area. The intention is that the existing Kent County Police Authority will continue to cover both the area of the new Medway Towns authority and the rest of Kent. We also intend to provide for members of the Police Authority to be appointed by both the County Council and the new unitary authority. This provision is to be made by the Home Office at a later date.
The issue before the House today is whether your Lordships should be permitted to accept this order. If my noble friend's Motion were to be approved, it would prevent your Lordships from accepting the order. The recommendation to set up the new authority was made following an independent review. The Local Government Commission put forward good arguments for the change. They were also consistent with the broader picture for creating unitary authorities elsewhere in England. We have therefore accepted them.
I hope that your Lordships will feel that, with that explanation, it would be undesirable to accept my noble friend's Motion. I hope that my noble friend will not feel that it is appropriate to put the matter to the test. After all, this matter has received the approval of another place. There is a long-standing convention that your Lordships do not vote against secondary legislation which has passed another place, for the reason that both Houses have identical powers in respect of secondary legislation. Both Houses can vote for or against an order but cannot amend it. For that reason, over a period of years the convention has been developed not to vote against orders which have been passed by another place in order to avoid deadlock between the Houses. My noble friend may say that he is not asking your Lordships to vote against the order but simply asking the Government not to lay it and inviting your Lordships to vote for it. The effect is the same. I hope that when my noble friend comes to consider that question he will think it prudent to accept the order and not to press his Motion.
8.4 p.m.
Lord Shepherd: My Lords, the House should be grateful to the noble Lord, Lord Aldington, for raising this important constitutional issue. What are the wishes of the people of Kent? How far are their wishes to be brushed aside by a Secretary of State? It is perfectly true that this order was approved in another place. When one considers other orders, plus the one for Berkshire, this matter was dealt with in a most cursory way. Apart from the Secretary of State who spoke at the beginning, and the various speakers called upon by the Deputy Speaker, there was no wind-up and no answer provided to any of the anxieties which were raised in the course of that debate. The noble Lord, Lord Aldington, is allowing Members of this House to look at the order and decide whether it should be delayed—I shall speak mainly to

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that—for further consultation with the people of Kent as a whole and the people who are to be in the new unitary state.
I do not say that I am in any difficulty, but my party has taken a rather robust view on unitary authorities. In principle, I am with my party. But two points are required to be satisfied before it can be said that a unitary authority should be imposed. First, there should be a degree of cohesion between those who are being brought together. Secondly, do the parties to this marriage—the noble Lord, Lord Aldington, used the word "marriage"—agree with it? Surely, there have been enough lessons over the past 30-odd years to indicate that where local government reform has been imposed in the end it has failed. One can think of a number of counties that have been abolished and are now being brought back into being because that is the wish of the people in those areas.
The proposed unitary authority does not have that cohesion which I suggest is necessary for a unitary state. If one considers the statistics relating to how people shop, use their leisure periods and where they work, it is clear that there is no cohesion between the areas to be married. If my memory is correct, most of the people work in Maidstone which will remain part of the old Kent. I suggest to the House that this is not a marriage that is being freely entered into by the people of those two areas. I recall that when this matter was put to the people some 63 per cent. of those in Gillingham voted for the status quo and wished to remain part of Kent as a county; some 53 per cent. of those in Rochester also wished to remain part of Kent as a county. I believe that there are sufficient statistics to show that opinion has hardened.
Whatever the Minister may say, this order is a shotgun marriage. It is not an arranged marriage but a shotgun arrangement to be applied to people within what will be a new unitary state; and it is against the wishes of their confederates (if I may so describe them) who are the people of Kent.
Although I support the unitary state, I have no difficulty in supporting the Motion proposed by the noble Lord, Lord Aldington. The Motion asks the Government to think again. The noble Lord is not rejecting the order. I would not do that myself, having pleaded with the party opposite on so many occasions. This was a device adopted by Conservative Office during my time as a way in which the view of this House could be registered. It was not binding on the Government; it was just asking the Government to consider various issues.
I have listened with the greatest care and attention to the Minister this evening. I could not find one word on the benefits to the people of Gillingham and Rochester of being in the unitary state. All I know is that that will be to the disadvantage of the people of Kent. You cannot take out such a sizeable population and leave the county of Kent as though it had never happened. The people of Kent will still be deeply involved, whether financially with the provision of services, or otherwise, within that new unitary authority. You cannot isolate a unitary authority from the body politic of the county of Kent. Noble Lords who have been listening to this
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debate will not have heard one single word on the advantages of these dramatic changes which have been imposed, shotgun style, upon the county and the people within the proposed unitary state.
It was—was it not?—the Prime Minister only the other day who spoke about legislation in the future and the need for greater consultation in terms of primary legislation. I have enough experience now—I am a member of the Delegated Powers Scrutiny Committee—to say that these orders have greater significance on ordinary people than any primary legislation. It is true that this House has a convention not to vote against the matter. However, it is a perfectly respectable method—it has happened on a number of occasions—by which this House has said, "Government, have another look at it".
In the light of the speech made by the noble Lord, Lord Aldington, believe that this is an occasion when the matter should be referred back. I had a feeling all the way through the Minister's speech that the matter has been rigged. The noble Lord, Lord Aldington, may correct me, but under the proposals of the commission under Sir John Banham, the status quo in terms of Kent had been admitted; it was not an issue to be placed before the people of Kent. Eventually, because of pressure, it was agreed that there should be an alternative, an option. The Minister said that there was a massive public relations exercise to persuade the people of Kent. It was minuscule. With very limited financial resources the noble Lord, Lord Aldington, the noble Lord, Lord Thomson of Monifieth, and a few of us across all the political parties, representing industry, the professions, the unions and the like, sought to explain to the people of Kent the implications of the proposal. The answer was so clear that Sir John Banham in his first commission said, "My Lords, leave it as it is". That is how he reported the matter. But it did not suit the Government, so they sacked Sir John Banham, appointed a new chairman, and made clear, as I understand, what was to be expected. We have those proposals now before us.
I do not think that the Government can rely, therefore, on the report of the second commission. What really matters is what the people of Kent themselves want; and what the people within those two areas who will be subjected to a shot-gun marriage think. As the noble Earl does not wish to have the MORI poll, then it is entirely up to him to decide how to ascertain the wishes of the people.
I support the noble Lord, Lord Aldington. I do so without any question of my allegiance to my party policy because party policy can never have conceived that a unitary state can be set up anywhere at any time. It would require certain issues to be resolved. I hope that the House puts aside all the risks, and what the Minister has said. All the Motion will have done is to say to the Government, "Go away, think about it, consult with the people who really matter in this issue, and then this House will abide by your decision".
8.16 p.m.
Lord Thomson of Monifieth: My Lords, like the noble Lord, Lord Shepherd, I strongly support the noble Lord, Lord Aldington, in the Motion that he has moved

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seeking a delay in the Government's application of this order. Like the noble Lord, Lord Shepherd, I have listened very carefully indeed to what the noble Earl the Minister had to say and I think we are all indebted to him for giving us a certain amount of additional information about government thinking on the order. I am bound to say, as I shall seek to argue in my remarks, that nothing he said in any way convinced me that we were wrong in seeking that the Government should have serious second thoughts about imposing this order.
For my part, I speak as a Kentish Scot, somebody who has lived in Kent now for more than 20 years. Kent seems to me to have a unique geographic position that the Government ought to have taken account of as the main strategic route to the mainland of Europe with the Channel Tunnel and in due course the high-speed line. There was therefore in the case of Kent a special case for the county remaining as an entity with a single county council. I am bound to say that Kent County Council, from what I have seen, has impressed me as being a thoroughly effective and efficient county council, both in reasonably healthy partnership with district councils and, as the noble Lord, Lord Aldington, said, in showing a strong sense of economy in the savings it has been able to make in order to try to produce the most efficient services for its citizens. These views about the geographic position of Kent are reinforced by the need to have for Kent a county council that can act as a really good centre of the kind of strategic planning that is needed both for the Thames estuary and for Kent as a whole.
As has been said by both the noble Lords who have spoken, the first Local Government Commission finally came to the view that I have just been expressing, despite a considerable amount of government pressure to come to a different view, and felt conscientiously that it had to take account of the overwhelming public opinion that was shown in favour of keeping Kent as an entity. There was then the extraordinary episode which I noticed that Mr. Frank Dobson in another place for the official Opposition, in an engaging moment of frankness, called the setting up of an unholy partnership between the Labour Party and the Secretary of State to get rid of the chairman of the commission and other members who had given such an unsatisfactory verdict in the Government's view and to set up a new commission to look afresh at the case for at least two unitary authorities in Kent.
The debate we are having tonight, and the debate that is going to take place tomorrow on a whole series of other orders, will, I hope, be approached on the basis that the question of unitary authorities should not be a matter of principle at this stage, still less a matter almost of ideology, but a matter of what is best for the circumstances of each area.
I am pragmatic or agnostic about unitary authorities. There are areas where I am sure that they are the most appropriate form of government and there are areas where they are not. It is in that spirit that we should approach the matter. I was rather astonished—if I may say this to the noble Earl—to find that he
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was arguing that the government's case for having thrown out the first Local Government Commission report was that, above all, the Government must have consistency. Consistency is the language of the commissar, of the central bureaucrat, not, I should have thought, the language appropriate to the kind of claims made in the splendid quotation from the Prime Minister that the noble Lord, Lord Aldington, produced about putting the people first.
The noble Earl did his best to deal with the point made by the noble Lord, Lord Aldington, about not taking account of the MORI polls. It was a fairly weak position. It seemed to be almost the very essence—coming strangely from the Benches opposite—of that famous phrase:
"The man in Whitehall knows best".
Consistency is everything. Whitehall must have consistency over the whole of England in the pattern of local government.
In the case of Kent, the compromise which finally emerged, and which the Government have adopted, is ludicrous. The enthusiasts for the unitary principle may well have felt originally that there was a case for abolishing the county council and replacing it with a whole series of unitary authorities. As we know, that case was examined carefully by the first commission and dismissed on overwhelming evidence. To end up with a surgical operation, cutting up Kent for the sake of creating a single unitary authority, is the worst of all worlds. It sounds like a sop to a Secretary of State who has been suffering—I like Talleyrand's famous phrase, warning all politicians and diplomats to use not too much zeal—from an excess of zeal.
In fact in another place I noticed that the Secretary of State used three arguments to defend his decision. He made some mention, as the noble Lord, Lord Aldington, said, of the case of the Thames Gateway, to which I shall come in a moment. He had two main arguments. The first was that he lived in the area as a boy. The Secretary of State was a lucky lad to live in such beautiful surroundings in Kent, but 40 years later it is hardly a basis for public policy as a Cabinet Minister. The second, more substantial but not more credible, argument was the claim that disputes about local planning between the two districts of Gillingham and Rochester/Chatham would be improved by what the noble Lord, Lord Shepherd, called a shotgun marriage. Experience of shotgun marriages would not sustain that proposition.
The truth is that on the really important planning issues the new unitary authority will do damage instead of good, both to the people of the unitary area itself and to the people of Kent as a whole. In support of that I call in evidence the commission itself which said in September 1995 in its overview report at paragraph 87:
"The prospects for the Thames Gateway goals in North Kent are probably best achieved through the minimum number of councils, or, if a continuing large number of councils is involved, through the continuation of the two-tier situation, in which the County Council can take an over-arching coordinating role. The problem with establishing large unitary authorities is the lack of coherence amongst some of the North Kent communities".
That is strong advice. It disposes of the noble Earl's argument that we should look forward to relying on voluntary arrangements between the new authority and

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Kent County Council in carrying forward these important planning obligations. Beyond the Thames Gateway, there are the wider considerations of the strategic plan for the whole of Kent which, as the noble Lord, Lord Aldington, pointed out, is being put seriously at risk. In the noble Earl's winding-up speech we need some reply to the point made by the noble Lord about making mandatory some of the provisions in that respect.
As far as concerns the immediate interests of the citizens of the Medway area, the noble Lord, Lord Aldington, made a devastating case with his customary and admirable moderation. I shall not repeat the arguments he advanced. I wish to put forward one particular argument relating to Gillingham and one which relates to our approach to the possibility of delay in imposing this order. In Gillingham about 96 per cent. of those who took the trouble to respond to the commission's inquiries said that they wanted the status quo. I should perhaps add that the only area in the proposed unitary authority in which there has been a local election since the commission reported is in Gillingham, and the view there strongly endorsed the view that the status quo partnership with the two-tier system and the county council should be sustained.
The chairman of the Gillingham council pointed out to me that in determining the electoral wards for the new unitary authority Parliament is being asked by the noble Earl to agree this evening to something that the Government have apparently no intention of implementing. I am not sure whether they have taken this properly on board, but paragraph 9 of the order provides for the next elections in May of next year to be based on existing electoral wards. Separately, I understand that the Government have asked the commission to make a further review of wards for the new authority for a report at the end of December. If that report is going to seek significant changes in the pattern of wards for the new unitary authority, there will be precious little time for the normal decent democratic processes, the selection of candidates and so on, to take place. In any case, as a matter of principle, it is wrong we should be asked to approve an order that apparently the Government do not intend to implement. Provided that the Government are looking for a reasonable way to delay the imposition of the order, that problem may provide them with a way out.
Finally, we have a scheme which is clearly against the wishes of the people throughout Kent, and in particular against the wishes of the people in the area concerned, and which will undoubtedly cost every citizen in Kent increased council tax and reduced services. The noble Earl dealt a little cavalierly, or cheerfully, with the idea that £8 million was just a small sum of money. I do not know how he gets on with that argument when he goes on behalf of his department to meet the Chief Secretary to the Treasury these days.
I notice—if I may say this to the official Front Bench opposite—that Mr. Dobson, on behalf of the Labour Party in another place, admitted that common sense says that a change like this is always costly. He based his support for insisting on that change by asking the Government to ensure that the transition is cushioned by
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adequate funding. I cannot believe that Mr. Dobson had any real belief that in the present atmosphere of the Treasury seeking cuts in public expenditure and local authorities facing cuts in their expenditure there was any hope of that happening.
What we face in this order—if I may say this, lacking the moderation of the noble Lord, Lord Aldington—is a scandalous defiance of local opinion throughout Kent which will damage greatly the effectiveness of one of the best county councils in Britain to serve its citizens. The Government should have second thoughts about this.
Perhaps I may conclude by making some uninformed comments on the noble Earl's constitutional argument. He said that it is a convention of this House that we do not seek to vote against an order which has been passed in another place. He admitted that in the formal sense the two Houses have equal powers in this matter. Can the noble Earl produce any evidence from the Companion showing that such a convention exists? We on these Benches, who sometimes take a more vigorously democratic view of these matters, have on more than one occasion voted against orders—
Baroness Hollis of Heigham: My Lords, I am grateful to the noble Lord for giving way. We had a similar debate relating to the Cleveland order. Members on this Bench were particularly unhappy about the way in which that was handled by the Government. We stated that, were it not for the convention, we should be minded to vote with the rebels, so to speak. We asked the Government what they regarded as the status of that convention and we were assured by either the Deputy Leader or the Leader of the House that it was a convention which operated between the two Front Benches. I know that that is not the view of the minority third party in this House. Nonetheless, the Benches opposite affirmed that that was the practice that they would expect to continue between both Front Benches of this House.
Lord Shepherd: My Lords, despite the convention, it is a fact that noble Lords opposite voted against the Rhodesia order in 1965. There was then no question that noble Lords opposite were contravening the agreement within this House as regards orders.
Lord Thomson of Monifieth: My Lords, not for the first time am I indebted to the noble Lord, Lord Shepherd, who is a former distinguished Leader of the House. I noticed that during his main speech tonight he chose his words carefully.
The noble Baroness is right. Indeed, a short time ago the House was assured by the noble Earl that there is a convention. We on these Benches do not believe that there is such a convention. We believe that there is a proposition which is for the convenience of the Official Opposition, who do not wish to get too much into the habit of voting down provisions with which they disagree because when they come into government they may face the kind of problems which the noble Lord, Lord Shepherd, faced over the Rhodesia order. But that is a different matter.

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I may be mistaken. I see the noble Lord, Lord Lucas, has referred to the Companion. If the noble Earl can assure me that in the Companion there is a convention which has been approved by the Procedure Committee of this House, I shall fully recognise that fact. However, we are ready to contest the matter and I believe that unless the noble Earl can show a willingness to delay these provisions, the opinion of the House should be tested.
8.33 p.m.
Lord Bancroft: My Lords, I intervene briefly to support the noble Lord, Lord Aldington. Since 1979 there have been more than 200 Acts of Parliament affecting local government. We must all accept evolution and change but not at this frenzied pace. My approach to the Kent order is to test it on four simple grounds. First, is it needed? Secondly, is it wanted? Thirdly, will it make efficient that which is not efficient? Fourthly, will it save resources or at any rate make better use of them? With the greatest respect to the noble Earl, it fails on every test.
Echoing an earlier debate, for the Government, as they have, to lay claim to the virtues of consistency in local government reform is the most hilarious and outrageous claim since Arthur Askey claimed to be Charlie's aunt. I suggest to the noble Lord, Lord Shepherd, that we have not a shotgun marriage but a Kalashnikov union.
Finally, I advise all concerned to look witheringly at the estimates of extra costs. At the time of the Cleveland reorganisation I was advised by the local officers that the extra costs would be about three times those estimated by the Local Government Commission and by my old home in Marsham Street. And so it has very nearly proved to be the case. I warmly support the noble Lord's Motion.
8.36 p.m.
Lord Peyton of Yeovil: My Lords, not for the first time I have the greatest pleasure in applauding every word spoken by the noble Lord, Lord Bancroft. I am sure that your Lordships will be overjoyed to hear that I shall endeavour exceptionally to follow his notable example in brevity, which is most welcome tonight.
I support and agree with the proposal made by my noble friend Lord Aldington. There is no need for me to repeat in detail the arguments which he put with such skill and force. I am bound to say that, although I listened with interest to everything that my noble friend Lord Ferrers said from the Front Bench, I saw no trace of an open mind, or perhaps I should say in fairness, no trace of an open mind on the part of those for whom he speaks tonight.
I wish to make two comments. First, when the Local Government Commission was appointed I was inclined to welcome it. I thought, quite mistakenly, that it was a genuine attempt on the part of the Government to try to find out what the people wanted. Gradually the welcome that I initially felt deteriorated into suspicion. In due course, as the recommendations and performance of the
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commission became clear, the suspicion was replaced with a downright hostility. That is how I view the Government's proposal before us tonight.
Perhaps I may say in conclusion that it would be an extraordinary doctrine or convention for us to accept that, although we have the affirmative resolution procedure which requires both Houses of Parliament to approve an order, if another place has agreed an order we must be struck dumb and have no right to express dissent. When I say "dissent" I mean effective dissent in the Division Lobby. I would not find it possible to accept that doctrine for one moment.
If my noble friend Lord Aldington wishes to take his Motion to a Division, I should be happy to support him because it is just one more example of the Local Government Commission and the Government, its ultimate master, overlooking, or not making a sufficient attempt to find out, what the people affected feel about the impact of such proposals. This is a process that I have come increasingly to deplore.
8.42 p.m.
Viscount De L'Isle: My Lords, I should like to thank my noble friend Lord Aldington for giving us the opportunity to reconsider the Motion for approval on the proposed changes for a unitary authority in Kent.
It gives me no pleasure to find myself at odds with the Government on their decision to press ahead with their plan, despite the original recommendation by Sir John Banham's Local Government Commission that the status quo should remain. Many noble Lords from all parts of the House expressed their disquiet in the debate that took place on 30th March 1994. The Banham Commission's decision had the overwhelming support of the people of Kent. One is somewhat reminded of the little boy who asked for his ball back when he had kicked it away. If we are bandying about acronyms, I am sure that NODAM—no development after mine—might be said about my noble friend the Minister in another place.
Opinion polls show little support by the residents of Gillingham, Rochester and Chatham for the new authority which is the subject of this order. Support in Gillingham remains steady at 31 per cent., while the opposition has increased from 43 per cent. to 61 per cent. In Rochester and Chatham support has increased from 29 per cent. to 30 per cent., while opposition has increased from 47 per cent. to 53 per cent. Rochester and Chatham council supported maintaining the status quo. The level of opposition to the formation of a unitary authority has grown, despite the commission's and Gillingham's efforts to canvas support for their plan with the residents of Gillingham and Rochester.
It may be of interest to the House that the commission felt that 29 per cent. approval for a unitary authority in Northampton was considered inadequate to warrant one, while in Kent 30.5 per cent. was considered sufficient to press ahead. The district and county councils have been able to review service provision in recent years to make considerable financial savings within the two-tier system, as we have heard other speakers say, through the integration of service provision and economies of

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scale. The creation of the unitary authority will not be able to sustain these savings. The cost of implementation will further exacerbate the problem, with increased costs for both the county council and the new unitary authority. Shared arrangements are unlikely to be a reality, given the concerns of councillors and the differing policy aims.
The commission has had to admit that the cost of service provision will be greater with the split between a unitary and county council rather than the existing two-tier system. As my noble friend Lord Aldington has pointed out, the extra cost to a Band D taxpayer in the new unitary authority is likely to be £190, while the extra cost to a county council taxpayer will be an estimated £23. Conversely, it should be possible to continue making savings through the two-tier system.
The commission has recommended that a county-wide structure plan be put in place. Noble Lords will recall that concerns over the strategic planning were raised on 30th March 1994. If Kent as a whole is to move forward into the next century with strengthening ties to Europe, both in the growing transport links which pass through the county and the proposed unitary authority and the development of the Thames corridor, strategic planning is an essential ingredient of that structure plan. I wish to support my noble friend Lord Aldington.
8.47 p.m.
Lord Cornwallis: My Lords, I, in company with many other Members of your Lordships' House, must be appalled by the Government's decision to implement what my noble friend Lord Shepherd has already adequately described as a shotgun marriage, a marriage which appears to have little contingency for divorce and which, therefore, surely we must seek to abort.
For the Government to make this decision at a time of great change, challenge and commercial pressure, in the face of public opinion, in an area of Kent in which the decision will materially affect both the county and the country, on a very wide basis, must be lunacy. The greatest possible co-ordination and co-operation will be needed in the sensitive and imaginative management of the various high profile, and possibly controversial developments on the horizon in the area.
The Thames Gateway, the Channel Tunnel rail link, the ensuing motorway and other rail communications, and the possibility of a major new cement works in the area, must all require a united front and a unity of purpose to both planning and conservation. Why put all of this at risk now?
The only benefit which would seem to accrue from this exercise is the unification of Chatham Dockyard. Yes, that is a major conservation site which will be put under one authority. The Minister in another place greeted this achievement with such spectacular enthusiasm that I am led to believe that this was the cornerstone of the entire decision: surely, a very large sledgehammer to crack a very small nut, a nut which, in fact, is largely cracked already.
That would be more than enough reason not to proceed with this unitary authority, even before consulting public opinion. Yet on top of all this, public
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opinion from every quarter, business, industry, planning, conservation, and the man in the street, has come out in a ratio of two to one against this proposal, and that ratio is strengthening.
The opinion was, of course, partially ascertained by polls. Polls these days are highly sophisticated accurate assessments with very small margins of variation. They are welcome, particularly if they say what you want to hear. Strangely, if the opposite is the case they become notoriously unreliable and volatile, whatever the result or interpretation.
Of course the Government can say that they have consulted. But have they genuinely consulted? Are they aware of the real tears in Gillingham, that they may be about to be submerged by the will of Rochester, a fear increased by the proposed distribution of seats on the new council: 42 to Rochester and 29 to Gillingham. It is not just Gillingham, of which so much has been made, which finds Rochester City Council difficult to get on with. The city council is a by-word for insensitivity and lack of consultation, and is widely considered the most difficult local authority in the county.
Such is the fear that people in parts of Gillingham are already trying to negotiate their own town councils in order to have some say in their own local affairs. They are only too well aware of how little say is allowed to any one in the outlying areas of Rochester. Can the Government really force this through in the face of so much genuine concern? Do they dismiss that concern as mere opposition to change? I assure your Lordships that it is genuine and deep-rooted. Or do the Government not care anyway?
I am afraid that I have reached the conclusion that that decision was made long before the Local Government Commission reported. The first report was sent back solely to activate this particular decision. In some places I have heard it suggested that the Minister, rejoicing in the happy days of his youth spent in the area, was anxious on behalf of the Government to reward the citizens of Rochester and Gillingham with a very expensive present. That is something in which we all delight to indulge from time to time, but generally it is the donor who pays for the present and not the recipient. In this case, not only the recipient but the whole county will pay harshly for this decision. If the experience of Cleveland is anything by which to go, the costs will have been underestimated three times over.
Doubtless, those citizens who have had 3 per cent. pay rises and 25p on their pensions may find those costs rather excessive, while those who have been more successful in their recent financial arrangements will be able to manage. The difficulties and deficiencies, both financial and administrative, which both the authority and the county will face, have been well rehearsed by previous speakers.
However, if this order goes through, there is a further proposal about which the House may not be aware. It is a proposal by the Boundary Commission to incorporate the parishes of Newington and Boxley into the new authority. Newington is at present in the district of Swale and Boxley in the district of Maidstone, which is some five miles distant from its centre and an area I know well.

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Boxley Valley is a designated area of outstanding natural beauty. It is also the only open space between Maidstone and the Medway towns. It is already threatened with rape by the Channel Tunnel rail link. Plans of 200 years ago compared with aerial photographs of today show clearly that the farming and field pattern in the valley is virtually unchanged over that period. It is a unique piece of unspoilt countryside, the preservation of which is being strongly contested with Union Rail. To hand that over to Rochester would be disastrous. Maidstone can expand to the south. Rochester cannot expand to the north. It would place that wonderful area under even greater threat.
I had always thought that the bedrock of support for the Conservative Party was in the rural areas of England. The fact seems to be that over the past 20 years, the party has done everything in its power to urbanise and suburbanise the countryside. There are a diminishing number of places where the rural voice has any chance of being heard or understood. Local government is almost entirely town-controlled. It is now to the shire counties to which we must look for sane and sensible management of the countryside, and this order will achieve the opposite.
It seems strange to me, as someone who has welcomed at all times the interventions of the noble Earl, that he should spend 17 minutes telling us that the Government are not going to change their mind; they are not listening; and so what are we doing here? I should have thought also that someone would have told him that "Gillingham" is in Dorset, yet "Jillingham" is in Kent.
8.55 p.m.
Lord Pender: My Lords, I wish to support the Motion moved so cogently by my noble friend Lord Aldington. I have a declarable interest, in that my wife is a Kent County Councillor of some 15 years standing. I shall pass on the glowing words of praise of the noble Lord, Lord Thomson of Monifieth, regarding Kent County Council.
The plain fact is that nearly 70 per cent. of Kent residents do not want change; and there is no case for it. The unique challenges and opportunities faced by Kent, as a peninsular county and the main axis between the UK and Europe, emphasise the need for a coherent and consistent structure of local government. The existing structure has the capacity to secure a strategic overview that the county as a whole requires while reflecting its different communities. That has been acknowledged by the commission.
The final recommendations do not meet that requirement. There will be no ongoing savings from the setting up of the new unitary council in Kent. My noble friend Lord Aldington dealt with the costs to taxpayers but the figures are worth repeating. There will be costs to all Kent taxpayers—£190 per Band D council tax payer in Medway towns and an extra £23 per Band D tax payer in the rest of the county. The Local Government Commission's own estimate of the additional cost for changing Kent is between £3.2 and
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£9.4 million. In addition, there will be transitional costs, again estimated by the commission at between £7.8 million and £11.2 million. None of that money will go directly towards improving services. Given the high costs of change, there will be great difficulty in protecting existing levels. Both the county council and the new unitary council will suffer from a loss of economies of scale in relation to services.
In a nutshell, the proposals put to us mean higher rates and a lower level of service for Kent taxpayers. The facts and wishes of the people of Kent beg retention of the existing structure—the status quo.
8.57 p.m.
Lord Renton: My Lords, I believe that I am the only participant in this debate who is a native of north Kent. I was Recorder of Rochester for five years in the 1960s and, when the Second World War started, I was with our territorial unit doing our annual training on Bluebell Hill, which is just within the boundary of what was Chatham and which has a wonderful view over the Medway Valley. When war broke out we moved our regimental headquarters to Gillingham. Therefore, I know that area very intimately.
But I must tell your Lordships that I came here, as I told my noble friend Lord Ferrers, with an open mind. My mind has been influenced a great deal by this debate. It always seemed to me when I was Recorder of Rochester that Rochester, Chatham and Gillingham were a large coterminous urban area where the people had much in common. In fact, sometimes when one wandered through that area, one did not know which of those three towns one was in.
Therefore, it seemed to me for many years that it should form some kind of united urban council. The question in modern terms is whether it should be a district council or a unitary authority. Before I go any further, perhaps I may say how much I appreciated what the noble Lord, Lord Cornwallis, said about the Medway Valley. He spoke about the possible danger involved if it, or much of the part south of that urban area, were incorporated in the unitary authority; namely, that there would be a very great temptation to develop it towards the south. That would be an environmental tragedy.
As Kent is—thank goodness—to remain a county broadly as we know it and not be split into a number of unitary authorities, my strong inclination is towards that group of towns, so to speak, being a district council within Kent. The people of that district would then have the advantage of the excellent work of the Kent Education Authority, which has already been mentioned by the noble Lord, Lord Thomson of Monifieth. Of course, from the point of view of ratepayers, we simply must consider their financial position.
My noble friend Lord Aldington mentioned—and this cannot be contested because, as I understand it, it is stated in the report—that, if the unitary authority proposed were to come into being, each household would have to pay £190 a year. It would not stop there because, as time went on, the improvement of services might lead to an increase. I understand that that £190 is simply a result of transition; indeed, mere transition.

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In my opinion, my noble friend Lord Ferrers had an exceedingly difficult task to perform tonight. All of us on both sides of the House admire his conduct in the many situations in which he has had to advise the House. However, I do not believe that he ever had such a difficult task as the one he had tonight. Of course, he did not mention the question of £190 per household. If he is able to do so in his reply, I am sure that it will be much appreciated.
My noble friend the Minister mentioned that Kent is a big area with a big population. That is very true; so it is. Indeed, as a native of Kent, I have been very sorry to see so much development taking place there. It used to be called the "Garden of England" but it is rapidly becoming a suburban area, as well as having such large towns. We need to be very careful about that aspect.
If Kent is too big an area with too big a population, making this one unitary authority will not help. If anything were to be done along the lines of reducing its size and the responsibilities involved—and I speak as one whose father was on the Kent County Council for many years—the obvious thing would be to divide it into two counties, east and west of the Medway. We would then have Men of Kent and Kentish Men who would be able to understand each other at last! However, I do not think that that is a necessary solution.
I shall not detain your Lordships very much longer because, quite frankly, I have already said the things that need saying. However, I have one comment to make in conclusion. It is a good Conservative principle that I hope all of us on this side of the House will observe; and, indeed, perhaps noble Lords opposite may occasionally do so. I say this: if change is not necessary, it is necessary not to change.
9.5 p.m.
Baroness Farrington of Ribbleton: My Lords, with your Lordships' permission, I should like to speak in the gap. I can speak in support of this Motion. I can declare my interest as I am a member of a county council; namely, Lancashire County Council. Both today and tomorrow there will be debates to varying degrees in your Lordships' House, depending on the extent of representation that there is from different counties, about the proposals that are coming before us.
The history of these proposals leads me to the conclusion that this has been a shoddy, ill-thought-out exercise. It did not begin with finance, functions or democratic accountability; it began when the Bill was first put before Parliament to set up the commission with my honourable friends in another place seeking to require a unitary local authority solution to be brought from the commission. That was refused by the Government. Secretaries of State came and went.
Sir John Banham was asked to chair that commission—a man who has been criticised for doing what he was asked to do by the then Secretary of State; namely, listen to the views of the people at the time. Indeed, the Secretary of State's words were that the views of the people "shall be paramount". Sir John produced reports which the Government did not like, with some exceptions, and they were sent back to a
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newly-constituted commission. We have seen the tragedy brought about by local government reorganisation imposed on people in Scotland, people in Wales and in counties that have been abolished. With the Government failing to fund in order to protect services, what has happened?
Local government is too important to be dealt with in such a way. Democratic accountability is also too important. I speak as one who totally supports a policy of unitary local government with a democratically elected and accountable tier of regional government between Whitehall and people in the English regions and those in Wales, Scotland and Northern Ireland—such a system as was proposed by the Government for Northern Ireland but which, allegedly, is seen by the Government as something that would break up the United Kingdom if it were implemented in England, Scotland and Wales.
I shall not speak and then vote in favour of the Motion. The reason why I shall not vote is that I believe in the conventions of this House. I believe that it is the right amendment that is being put before your Lordships in the wrong Chamber. I believe that the opportunity to do this should have been taken in another place and voted on in another place and that the nonsense of what is happening with this local government reorganisation should have been stopped there.
I think it is a tragedy. I cannot possibly vote in favour of the Government's position. I will abstain and I will not speak on every order before your Lordships' House but obviously I shall speak tomorrow at greater length on the subject of the order affecting Lancashire, of whose county council I am a member.
9.8 p.m.
Earl Attlee: My Lords, I support the views of the noble Baroness on the convention. There has been some debate on the subject of the convention, that we do not vote on the statutory instrument. In the absence of the noble and learned Lord, Lord Simon of Glaisdale, I thought I should make a brief contribution. I suggest that we know very well that we have a convention on the secondary legislation. The noble and learned Lord, Lord Simon, from time to time successfully invites the House to reaffirm his unfettered ability to reject secondary legislation. But I would suggest that that power should only be used if the secondary legislation is ultra vires or otherwise defective and not because it is unattractive. I would therefore always vote in support of approval of secondary legislation unless it appears to be ultra vires. This would even be the case if I spoke against the secondary legislation in the debate. If any noble Lord—unwisely in my opinion—forces a Division, I should have to support the Government.
9.10 p.m.
Lord Taylor of Blackburn: My Lords, I too wish to speak in the gap. I was not going to intervene but I feel it would be right and proper for me to do so because I too intend speaking tomorrow on the Lancashire debate. I intend to support the Government, but that matter will be dealt with tomorrow.

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Tonight, I think that we need to look at each one of these cases on their merit. I too shall not vote. I shall abstain from voting on this because, again, I believe in the traditions of the House and I accept that the House's traditions on this one are the conventions of the House, whether that suits any particular party or not. It is interesting to see how many people have been lobbied to get here tonight, one way or another. I have not lobbied anyone for tomorrow, and I give you notice about that. I shall speak as I feel tomorrow but, my word, it is interesting to see what can be done tonight and I welcome so many people being here so late in the evening on certain Benches.
But, looking at these orders in their merits, if I had been voting, I should have supported the Motion because I think it is quite right in many ways. I know the area very well. The views of the local people are definitely against this. Even though one has three towns together—and I would agree with the noble Lord, Lord Renton, in some ways that there is a likeness—they are different. They are three villages in many ways—yes, three villages, because they have different ideas, different teams, and, of course, if you watch their football, you will find that that is different too. They do not all support Gillingham either.
One has this difference and, therefore, when we are looking at the orders as they come before the House, I think we shall have to look at them on their merits. And in this case I think that it is quite right for your Lordships to think again and go back and look at the matter again. But I shall not vote for the Motion because of the convention.
9.12 p.m.
Baroness Hamwee: My Lords, I declare an interest as a member of a unitary authority—a London authority. I have, sadly, little knowledge of the great county of Kent. It seems to me that the only matter to welcome this evening is an end to uncertainty after reorganisation having been in prospect for six years. Reorganisation in prospect I say, but, of course, there was a period when it seemed that there would be no change. The most important objection—to me the overwhelming objection—is public opinion which, in itself, is overwhelming.
I agree with the noble Lord, Lord Aldington, that we should not dismiss opinion research. The comment has been made that its beauty is rather in the eye of the beholder. I take that point, but good opinion research—and I believe that what has been undertaken in connection with the reviews has been good opinion research—is not a matter of putting an advertisement in the local paper and seeing what responses flow in. It does test opinion properly. That, I believe, is the approach of MORI. We seem to be talking tonight as if MORI research was the only sort of research, MORI the only polling organisation. My noble friend Lord Tope has commented that it seemed to be used in the way that Hoover and Thermos are used. MORI is not the only polling organisation, but it is a reputable one. I do not believe that it would want its findings to be dismissed
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on the basis that it had not undertaken the research thoroughly and sought adverse opinions as well as support. It is clear that the great majority of local people are opposed to the proposal. The Local Government Commission in its first response to this matter—or in its first incarnation, if I may put it that way—took that into account.
Like the noble Lord, Lord Peyton of Yeovil, I, too, had high hopes of this process in its early days. I thought that the commission would undertake to seek opinion and then implement that opinion. It certainly tried to. It stated in its 1995 report:
"There was very clear support for the commission's alternative"
structure of no change. That is, the alternative to its draft recommendation for two unitary authorities and no change in the rest of the county. Therefore its final recommendation at that stage was for no change to the existing arrangements.
The Minister's explanation as regards the second round seems to me to be an admission that either the original guidance to the commission was wrong, or that the outcome was not what the Government wanted. The honourable Member for Holborn and St. Pancras—as my noble friend Lord Thomson of Monifieth said—referred to the unholy partnership when he spoke in another place. He referred to an unholy partnership to put things right. That gives a clue to what underlies the proposal. Your Lordships have heard from the Government that Rochester and Gillingham are different from the rest of Kent. They are urban areas, not rural. I began to wonder whether this was a suggestion that the earlier transfer from Kent of largely rural Bromley into Greater London had been misconceived, but I shall not go down that path.
The Thames Gateway, to which reference has been made, does not in my view require a unitary authority. The Thames Gateway is essentially a partnership—an agglomeration almost—of a large number of authorities. It would not be possible to create one authority to cover the whole of the Thames Gateway. Because of that the logic fails in suggesting that a unitary authority, as proposed tonight, is required for the success of the Gateway project. Certainly the Local Government Commission did not regard it as necessary.
The noble Lord, Lord Aldington, has referred to the additional and continuing costs that will arise as a result of the proposal. The county has done well in keeping cuts to a minimum and in reducing its budget. That, I believe, is the result of good management and economies of scale. The economies of scale will certainly be jeopardised, if not lost. The county will lose SSA out of proportion to its continuing responsibilities. The increase in tax which is projected has been drawn to your Lordships' attention. I agree with the comment that if economies are to be found, they should be found in any event. They are quite a separate matter from structure. All of us involved in local government should continually look for economies.
There came into my mind a comment that I heard yesterday on one of the Sunday television programmes where newspapers are reviewed. The commentator had seen a headline which referred to the need to find

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£17 billion. He thought it must be something to do with the Royal divorce settlement, but then realised it was the amount by which the Chancellor of the Exchequer was adrift.
The electoral arrangements have been referred to by the noble Lords, Lord Thomson of Monifieth and Lord Cornwallis. I ask the Minister to explain how the re-warding—I emphasise that word—will affect the 1997 election. I have heard there are local objections to moving from a system of elections every three years to elections only every four.
Finally, I refer to structure plans. The Minister dismissed the difficulties in his comments on this matter. However, his department has recognised that there is a gap in the legislation. Having admitted there is a gap, sadly it has not taken the opportunity to cure it. In a two-tier authority, as Kent will be if this order is agreed tonight, there is no mechanism for "knocking heads together" if voluntary joint working is not achieved. In an area with the peninsular features that have been described, one where I imagine there is considerable regional significance in the waste and minerals, and in the Medway Valley (this was not a matter that I had appreciated before this evening), noble Lords have very vividly shown what scope for argument there will be between the successor authorities. I repeat my point that under their arrangements the Government have failed to provide the mechanisms for proper structure planning.
Whatever the convention or convenience, my honourable friends in another place required a vote. They voted—and they alone—against what I had regarded before this evening as a shotgun divorce rather than a shotgun marriage, although I see it has aspects of both. I am delighted to have heard the robust speeches from around the Chamber. They were not, I think, the result of lobbying. I have nothing against lobbying; we are here to be lobbied. But I believe they were a result of the interest that noble Lords have in the subject. If the matter is tested, we shall follow the noble Lord into the Lobby.
9.21 p.m.
Baroness Hollis of Heigham: My Lords, we on this side of the House oppose the Motion tabled by the noble Lord, Lord Aldington. We do so on two main grounds.
Let me make the position of the Labour Party quite clear. The Labour Party regards much of the 1974 reorganisation of local government as misguided and misconceived. Since the late 1970s, the Labour Party has sought to reorganise local government and in broad terms has favoured unitary authorities. That is Labour Party policy which has gone through several conferences. We believe it makes local government more streamlined, more accountable, more democratic and more transparent. All the evidence shows that under a two-tier structure people do not know who does what, to what level of service, to what specification, at what cost and under whose authority. Two-tier structures stand in the way of clear and accountable local government.
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Unitary authorities allow for local communities to have their own voice, to be accountable and not to find themselves subsumed in the interests of a larger and wider authority. Such a view is especially important where the county includes several distinctive communities. One of the MPs representing Gillingham and Rochester said that Kent was divided into north Kent, east Kent and what he called "posh Kent".
Like my noble friend Lady Farrington, I support unitary authorities within a democratically elected regional tier of government. I am sure that she is entirely right. However, I am struck that in the other House the two local MPs, with, I presume, the greatest knowledge and the greatest degree of responsibility for the views of their constituents, both supported the order—Mr. James Couchman and Dame Peggy Fenner—not merely by voting but by speaking. I take the views of the Members of Parliament elected to represent those areas very seriously indeed, whatever their party.
The second general point I wish to make is that, as I understand it, for 30 years since the Rhodesia statutory instrument order, which I believe was passed around 1965, this House has respected the convention that we do not vote against statutory instruments; nor do we support any fatal Motions or amendments to them. Let us be very clear. To do so would be for this House, an unelected Chamber, not merely to ask another place to think again. I have no problems with that at all. I should be delighted for us to amend Bills, with this House asking the Commons to think again.
We know that, if the other place, having thought again, overturns what this House has supported, then ultimately—if necessary, with the authority of the Parliament Act behind it should we decide to push it further again—it has the definitive and last word. The elected House has the hegemony in Parliament.
However, if this House votes against and overturns a statutory instrument, the House of Commons cannot vote again. It is unable to think again. That instrument is dead. If Parliament so wills, the whole business has to start all over again.
On many occasions I have found myself entirely in support of every word of Motions or fatal amendments on social security matters moved from the Liberal Front Bench. Though I agreed with every word in that Motion or fatal amendment and agreed with every word spoken very eloquently to it by movers from the Liberal Front Bench, and indeed supported it word for word, we have abstained with respect for that convention. We do not believe it right for an unelected House not merely to ask the other place to think again but to overturn the will of the Commons.
In our two-day debate on the constitution, in which every speaker in the debate in your Lordships' House mentioned the pleasure, the joy, the status and the prestige of this House, that was essentially because we accepted our, so to speak, inferior status in the sense that the elected House has hegemony. We spent two days debating those matters and one week later we appear to be suggesting that we ignore that debate and again threaten to challenge the democratic will of the elected House, including the local Members of

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Parliament. Irrespective of the issue, we on this side of the House will not take part in seeking to overturn a statutory instrument or supporting a Motion which, I have been advised, is effectively fatal. It is not a matter of government convenience—apart from the jibes from the Liberal Benches which I take in the spirit in which they were offered: fatally, I do not doubt. It is in my view a matter of democratic principle.
However, having said that, I do not believe that the local government review has been well handled. The first commission was whimsical and opinionated. The second under Sir David Cooksey was very much more professional. But even so, some of its theories—for example, the difference between periphery and centrality—were deeply implausible to all but paper geographers. This commission has been bedevilled by legal challenges from county councils (which they have every right to make). They were able to make a challenge to the Government because the Government's own legal framework was fallible. That, in turn, if I may say so, was because the Government on a previous occasion resisted amendments from my noble friend Lord McIntosh and me in this House and my honourable friend Mr. Blunkett in another place to make the guidelines legally watertight. The Government rejected our amendment to do so and as a result faced legal challenges. Had the Government accepted those amendments, the commission would not have been derailed and it would not have cost local government a year and much uncertainty.
Nor have the Government been as helpful as they should have been in terms of the situation in respect of staff. They have been nowhere near as helpful as in 1985 when we got rid of the metropolitan counties at that stage. In saying that we shall not oppose the Government, that we shall oppose the Motion of the noble Lord, Lord Aldington, and that the official Labour Party will support the Government on this Motion, we do not in any sense believe that the Government have handled this matter wisely or well.
I turn now to Kent itself. I believe that the Kent reorganisation, like the Berkshire reorganisation that we shall discuss tomorrow, has been especially confusing, in part because the recommendations of the local government commission have changed. The original proposals of the commission were for two pairs of unitary authorities within the county of Kent: Dartford with Gravesham, on the one hand, and Rochester with Gillingham, on the other. In consequence, the MORI polls about which we heard tonight on whether unitary status was desirable have become hopelessly entangled with another issue; namely, whether the merger of two adjacent and sometimes competitive district councils was desirable or popular. In the event and in the face of bitter resistance from Gravesham, the Local Government Commission did not proceed with the Dartford-Gravesham merger into a unitary authority—something that Dartford and Gravesham will come to regret when they see themselves outbatted in economic development by an adjacent large unitary of Rochester with Gillingham.
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In relation to Rochester and Gillingham, the LGC proceeded and the other place supported. First, it supported on the issue of size; that is, that the new unitary authority will be almost 250,000 people. No one in your Lordship's House can say that an authority of 250,000 people is not competent to organise and manage its own affairs.
Secondly, the Local Government Commission said that the area was to the periphery rather than to the centre of Kent and therefore could come out of Kent without in any sense damaging the integrity of Kent County Council. I believe that it was right on that. The Local Government Commission was influenced by the separate economic and geographic identity of the Medway towns, with a green belt to the west, open countryside to the east, the rivers of the Thames and so forth to the north and the North Downs to the south.
The Local Government commission also stated, and the other place agreed, that the new unitary authority shared a common economic framework—one, I am sorry to say, of decline to a degree; that is, of a falling population, the closure of the naval dockyard, the loss of the BP oil refinery and high unemployment. But what the other place believed, and I share that view, is that the three key issues facing local government, not just of the 1980s and 1990s but of the year 2000 and beyond, are care in the community, economic regeneration and the development of physical infrastructure.
In all three key issues facing local government the electors of those authorities will find that they have a more effective and accountable service if the responsibilities are not splintered between two tiers of local government. I refer to care in the community being splintered between district housing and council social services; economic regeneration splintered between district planning and a county education and training service; and physical infrastructure splintered between local planning and a county highways authority.
The noble Lord, Lord Aldington, raised the question not just of economic efficiency but also of cost. I stand to be corrected, but my understanding is that the ongoing cost will represent around 0.5 per cent. of the expenditure involved. That is not an insubstantial sum but in comparison with the total cost it is not a high one either.
There has been wide public consultation and I worry that the proposals do not have majority support. I believe that that may be because the MORI polls inevitably tapped an issue of anxiety about merger as much as they did about unitary status. That confusion was certainly compounded by what the Local Government Commission described as the "particularly voluminous campaigning activity" by Kent County Council. My experience has been that where the authority had been a previous county bearer and had experience of unitary status, the population for the most part has been in favour of returning to that status. Where an authority has grown over the past 30 or 40 years and has not had that experience or assurance of unitary responsibility and county bearer status, those populations are somewhat fearful of change, particularly where the county council—perfectly properly—was aggressive in its campaigning.

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But I am also not persuaded by the argument on the structure plan. Certainly, I believe that what the Local Government Commission and the Minister have said is correct—that they are recommending voluntary joint structure planning. Again, in my experience those joint arrangements which have been entered into voluntarily are very much more effective than statutory ones, which may be a shotgun arrangement. We are assured by the Minister that the department has fallback reserve powers, as he described tonight.
I believe that at the end of the day this new arrangement for Gillingham and Rochester will be welcomed. I accept that it is not yet welcome. I hope that the Local Government Commission and the other place will have been shown to be right. I believe that it will offer the residents of those two towns of the Medway authority clear, coherent and transparent local government. It will give them the competence and the capacity to tackle the problems that they will undoubtedly face over the next quarter of a century. I wish them well, as I am sure do other Members of your Lordships' House.
9.35 p.m.
Earl Ferrers: My Lords, I am deeply grateful to my noble friend Lord Renton who said that I was having a difficult time tonight. He is perfectly right. I do not like having a difficult time. I like being surrounded by my friends and sometimes it is a little difficult to tell where they are. Sometimes one looks across the Dispatch Box and finds one or two over there. Change is always difficult and everyone knows that. Everyone hates it and they would rather have what they have got used to. That is a perfectly natural phenomenon.
I believe that almost everyone who has taken part in this debate is involved with Kent. Obviously, the noble Baronesses, Lady Hamwee and Lady Hollis of Heigham, are not. All speakers have put their cases very plausibly, clearly and very well and not offensively. It has been a good-tempered debate.
My noble friend Lord Peyton was worried. He queried the fact that this measure has been passed in another place. He said that if another place had spoken, then we must be struck dumb. All I can say is, heaven help us when my noble friend finds his tongue! He said that I did not have an open mind. I thought that that was a bit hard. I could have said the same thing to him and almost to every other noble Lord who took part in the debate. Noble Lords had their points of view to put across and I put mine over.
The noble Lord, Lord Bancroft, said that we were going at this at a frenzied pace. He said that it was a Kalashnikov union and not a shotgun union that was being used. That compared with the noble Lord, Lord Cornwallis, who said that the decision was taken long before the commission was set up. You can have one or the other but you cannot have both. The noble Lord, Lord Bancroft, was using slight exaggeration. He said that this matter was being conducted at a frenzied pace. It has taken three years since the start of the review. The first order was introduced in 1994; it is six months since the commission produced recommendations, which we are implementing; and it is going to be almost two years before the changes take place. So it must be a funny old Kalashnikov that the noble Lord uses.
Lord Bancroft: My Lords, I am sure that the noble Earl is not deliberately misunderstanding. My reference to the frenzied pace was the fact that we have had well over 200 Acts of Parliament affecting local government in the past 16 years.
Earl Ferrers: My Lords, I beg the noble Lord's pardon. I thought that he was referring to a frenzied pace over this matter. All those Bills were necessary, and that deals with that.
The noble Lord, Lord Thomson of Monifieth, asked what was so good about consistency and that it was the language of the commissar. That is fairly flamboyant, too. We should not mix up consistency with uniformity. The outcome will not be uniform. We shall have two-tier areas and unitary areas. We are not imposing a master plan on anyone. When the commission under Sir John Banham recommended unitary status for some large urban areas and not others with apparently similar characteristics, we asked it to look again because we did not believe that that was consistent.
The noble Lord, Lord Shepherd, said that there are no benefits. He said that we had not said what benefits there might be. One benefit is that the unitary authority will have greater accountability. There will be less duplication because there will be one authority as opposed to two. There will be greater efficiency and less bureaucracy. The authority will be nearer to the people. There will be one authority for a single contiguous urban area with the same economic and community interests. That should end the current disputes between the two authorities. There will be a new sense of common purpose.
The noble Lord, Lord Shepherd, went on to say that this has all been rigged—
Lord Strathclyde: Rigged?
Earl Ferrers: Yes, my Lords, rigged. That was the word that the noble Lord used. I did not think that that was a very worthy suggestion. Indeed, I thought that it was rather insulting to Sir David Cooksey and his fellow commissioners. Sir John Banham's first review was widely criticised—not just by the Government, but also by the Opposition and most independent commentators. Sir David Cooksey was asked to review 21 districts. He recommended unitary status for only nine, including these two. Nine out of 21 does not sound particularly "rigged" to me.
My noble friend Lord Aldington was also concerned about my right honourable friend's powers to make a new county. Our interpretation of the Local Government Act 1992, which I set out earlier, has been tested by judicial review in a previous case, and upheld.
The noble Lord, Lord Thomson of Monifieth, liked the speech of my noble friend Lord Aldington. He would, wouldn't he? He particularly liked his quotation from what my right honourable friend the Prime Minister said. It is always dangerous to start quoting things. I should now like to quote an extract from the Prime Minister's speech. My right honourable friend said:
"The Conservatives believe in giving citizens the reins wherever possible".

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How do you do that if you do not bring authorities closer to them, as we are doing in this order through a unitary authority?
My right honourable friend the Prime Minister also said:
"We believe in moving power from centralised bureaucracies to smaller structures closer to their local communities and consumers".
That is what we are doing here.
The noble Lord, Lord Thomson, also said that there was no time to reflect on the results of the electoral review. We think that it is important to start the unitary authorities on a sound electoral basis. We expect the result of the commission's further electoral review in time for arrangements to be in place before the shadow elections in May 1997. Local interests have already been alerted to, and have consulted on, the changes through review.
We expect county and unitary authorities to make voluntary arrangements for working together over planning provisions. We consulted the local authority associations on this. The associations themselves took the initiative to produce guidance in support of that approach. The parties interested in planning provisions in other orders are also supportive of the approach. I think that the provisions for the Kent order, with the guidance in our circular, are quite satisfactory.
Baroness Hamwee: My Lords, is the Minister not aware of the very strong representations made by the Association of County Councils which identified a gap in the legislation in the case of hybrid authorities—in other words, those authorities where a county remains and there is a two-tier structure in part, but a unitary structure in another part? Is the Minister not aware of the strong representations that have been made, backed up by arguments which, as I understand it from correspondence that I have seen, are entirely accepted by his department as amounting to a gap in the legislation?
Earl Ferrers: My Lords, I am not sure that there is a gap in the legislation. Clearly, there is an overlap and we have to ensure that the two authorities work together. I hope that we shall.
The noble Lord, Lord Cornwallis, said that polls are reliable. I wonder whether he has witnessed what happens with polls before general elections. If he looks back to the past few general elections, he will find that polls have not been all that reliable—
Lord Cornwallis: My Lords, I said that polls are reliable when they say what you want them to say. They are unreliable when they say what you do not want them to say.
Earl Ferrers: My Lords, I quite agree. But that is the trouble. That is what happened at the last general election. The Labour Party listened to the polls. It listened too hard and the polls were wrong. The noble Lord makes a good point as well as an entertaining one. Of course, when the polls are on one's side, one uses them. When one is trying to deal with the complexity of local government reorganisation one cannot rely only on
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polls. I believe that the noble Lord was slightly unfair when he said that it took me 17 minutes to say that I would not listen. Half of the complaint has been that matters have not been explained in another place. If I had come to this House and not explained what the Government intended to do, the noble Lord, Lord Cornwallis, would have given me stick and, if he had not done, both noble Baronesses would have done so. I thought it only right to try to explain what was intended.
The noble Baroness, Lady Hamwee, was worried about re-warding. The order makes provision for the new authority to have a total of 68 councillors. This is 24 fewer members than at present who serve in the two existing authorities, but it follows the commission's recommendations. The order also makes provision for transitional arrangements to return the new authority for a full four-yearly term, as it at present applies to Rochester City Council.
I know that your Lordships are anxious to come to a conclusion on this matter. I know that your Lordships, particularly those who live in Kent, are very concerned about this. That is perfectly understandable. But your Lordships also have a perfect right to vote for this. Your Lordships have a perfect right to vote against an order.
Lord Shepherd: My Lords, the Motion before the House is not voting against the order. As I suggested earlier, it is a procedural device which was devised by the party opposite to enable the House to express a view and urge the Government to reconsider the matter. We are not voting against the order.
Earl Ferrers: My Lords, I wish that the noble Lord, Lord Shepherd, had listened a little more carefully. I said that your Lordships were perfectly entitled to vote for or against this Motion. Noble Lords are perfectly entitled to vote for and against an order or anything: First Readings, Second Readings, Third Readings, Committee stage, Report stage, amendments—the lot. But there must be some kind of order if we are not to fall foul of the elected Chamber. The noble Baroness was quite right. She said it was funny that we had had a debate on the constitution only about two weeks ago and possibly the first thing we did was to vote against a Motion, which would have the same effect as annulling the order because we could not oppose the order. This is a matter of convention in the House. The noble Lord was quite right to refer to the Rhodesia Order of 1968. That caused such a row that it was decided to have some kind of convention not to vote against orders—I say that this has the same effect—which had been passed by another place, for the very reason given by the noble Baroness: it would overrule another place.
Your Lordships are perfectly entitled to vote for the Motion moved by my noble friend, but, having had such a debate, I believe that we would be testing the patience of another place a great deal if we did that. The noble Baroness laughs. The Liberals are all gung-ho; they do not mind what they do because they are not in government or in opposition. They do what they like—even whip for it, which is a most extraordinary thing to do.

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I come back to the quite surprising speech of the noble Lord, Lord Shepherd. He is an ex-Lord Privy Seal and ex-Leader of the House. When he was Leader of the House he always took great care about the relationship between another place and this House. Even his party says that it will not vote for this Motion but will abstain, for the very reasonable and proper reasons advanced by the noble Baroness. The noble Lord, Lord Shepherd, has, however, slipped the painter and parted from his party in this respect.
Lord Shepherd: My Lords, the noble Earl looks at me and refers to me as an ex-Leader of the House. In a sense it is probably more important that I should be referred to as an ex-Chief Whip. If it was a Motion against the order I would not support it. But this is not a Motion which destroys the order. The order can be re-introduced. We are a revising Chamber. If we think that there is something wrong here, we have a duty to say to the Government, "Think again".
Earl Ferrers: My Lords, the noble Lord, Lord Shepherd, is careful with his words and persuasive. He has said that if this were a vote against the order he would not support it. However, he is quite happy to vote for the Motion which says we may not lay the order. The effect is exactly the same. Another place has passed the order and we in that case will not.
In conclusion, despite the anxieties which your Lordships have expressed and which I understand, I very much hope that my noble friend will not put this Motion to the test for the reasons I have given. It is unsatisfactory and undesirable that we should find ourselves in any form of conflict there. The noble Baroness, Lady Farrington, made a very important point when she said that this is the right amendment but it should have been discussed in another place. I do not know whether it is the right amendment, but that is where it ought to have been discussed and not in this House. I hope that my noble friend will consider very carefully before he presses his Motion.
9.52 p.m.
Lord Aldington: My Lords, my noble friend expects and hopes that I shall consider very carefully. I seem to have two seconds in which to consider very carefully. However, I have been listening very carefully throughout to the debate.
First, let me deal with the arguments about the convention. As I understand it, there is no convention in the book. There is no rule. There is an understanding between the Front Benches and that is all. If the Front Benches want there to be a convention and a rule, let the Procedure Committee consider the matter and let the House debate it, but that has not happened so far.
The noble Lord, Lord Shepherd, for whose support I am always very grateful and whose experience is considerable, is quite right in what he has said about the purpose of my Motion, which I was very careful to put to the House right at the start of my opening speech. It is to give the Government an opportunity to think again and to give the other place an opportunity to think again. There is no reason at all why they should not take the
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order back, have a look at it in the light of what has been said in this House, resubmit it to the other place and resubmit it to us. If there is delay, that time will perhaps have been well used. It seems to me nonsense to say that this is provoking a clash between the two Houses as if we were turning down the Second Reading of a major Bill or the whole of a major Bill. This is just the same as making an amendment to a Bill.
The noble Baroness, Lady Hollis, monopolises the attentions of the House and she wags her head there. She has given me a great lecture today. I have listened to her moving amendments to the House and insisting on them. She must now allow me to propose to the House that we ask the Government to think again. That is what I say about the convention and it seems to me from what the noble Lord, Lord Shepherd, and other noble Lords have said that those of us who are not in on this understanding between the two Front Benches on the matter of the convention have a different view from them on the matter.
I think the same applies to the merits of the Motion. It seems to me that there is a very close link between the two Front Benches as to how you deal with unitary government. There is a feeling expressed by the noble Baroness, Lady Hollis, that there is some particularly strong theoretical merit in it and that this really is more important than the review of the facts of each case. But it is the facts of the case that matter and we say that the facts of each case were looked at by Sir John Banham's commission. That commission came to a conclusion based on what it found and on local opinion. The new commission came to a different conclusion on different guidance, disregarded local opinion altogether, disregarded the cost and disregarded the importance that it had itself attributed to the county-wide strategy. That is a great mistake. If the House believes that it is a mistake, as it manifestly does, because the vast majority of noble Lords who have spoken have kindly supported me today, for us not to show that we think that it is a mistake would be an enormous error, and bad for the House—as bad as breaching a convention. So, I beg to move.
Earl Ferrers: My Lords, perhaps I may ask my noble friend one thing. He said that we had the right to do this. This is not like passing an amendment. It is secondary legislation. If my noble friend thinks that carrying this Motion is just like passing an amendment and that it will have no effect, I can assure him that it will have an effect. I hope that he will think hard before putting this matter to the House, not so much because of the content of the order, but because of the effect that it will have on secondary legislation which has been accepted by another place and which your Lordships might reject. It will have the effect of overturning that which another place has accepted.
Lord Aldington: My Lords, I have thought. I do not want to weary the House. My noble friend has said that on a number of occasions. I understand that the other place has made up its mind. It did so after listening to the Secretary of State for about a quarter of a column of Hansard, and after listening to my honourable friend the Member for Gillingham for about two minutes, with

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an interruption from my honourable friend Dame Peggy Fenner. On that, it made up its mind. If noble Lords look at the Division Lists they will see that practically no other Kent MPs were present. The other place did not pay regard to the county of Kent. This place has. That is why I wish to test the opinion of the House.
9.57 p.m
On Question, Whether the Motion shall be agreed to?
Their Lordships divided: Contents, 33; Not-Contents, 60.

Division No. 5

CONTENTS

Addington, L.

Harris of Greenwich, L.

Aldington, L. [Teller.]

Kintore, E.

Bancroft, L.

Monckton of Brenchley, V.

Beaumont of Whitley, L.

Palmer, L.

Carlisle, E.

Pender, L.

Clanwilliam, E.

Perry of Walton, L.

Cocks of Hartcliffe, L.

Peyton of Yeovil, L.

Colgrain, L.

Redesdale, L.

Cornwallis, L. [Teller.]

Renton, L.

Renwick, L.

Cross, V.

Rochester, L.

De L'Isle, V.

Russell, E.

Falkland, V.

Shepherd, L.

Falmouth, V.

Thomas of Walliswood, B.

Geraint, L.

Thomson of Monifieth, L.

Greenway, L.

Thurso, V.

Hamwee, B.

Tope, L.

NOT-CONTENTS

Addison, V.

Inglewood, L.

Annaly, L.

Jenkin of Roding, L.

Astor, V.

Kingsland, L.

Attlee, E.

Leigh, L.

Balfour, E.

Lindsay, E.

Berners, B.

Long, V.

Biddulph, L.

Lucas, L.

Blaker, L.

Mackay of Ardbrecknish, L.

Blatch, B.

Mackay of Clashfern, L. [Lord Chancellor.]

Bowness, L.

Brigstocke, B.

Mackay of Drumadoon, L.

Butterworth, L.

Marlesford, L.

Carter, L.

Mottistone, L.

Chalker of Wallasey, B.

Mountevans, L.

Chesham, L. [Teller]

Northesk, E.

Clark of Kempston, L.

O'Cathain, B.

Courtown, E.

Pilkington of Oxenford, L.

Cranborne, V. [Lord Privy Seal]

Prior, L

Cumberiege, B.

Sanderson of Bowden, L.

Denton of Wakefield, B.

Seccombe, B.

Selsdon, L.

Elton, L.

Shaw of Northstead, L.

Ferrers, E.

Skelmersdale, L.

Fraser of Carmyllie, L.

Stewartby, L.

Gisborough, L.

Strange, B.

Goschen, V.

Strathclyde, L.[Teller.]

Harris of Peckham, L.

Trumpington, B.

Hayhoe, L.

Ullswater, V.

Henley, L.

Waddington, L.

Hollis of Heigham, B.

Wilcox, B.

HolmPatrick, L.

Wynford, L.

Resolved in the negative, and Motion disagreed to accordingly.

Kent (Borough of Gillingham and City of Rochester upon Medway) (Structural Change) Order 1996
10.05 p.m.
Earl Ferrers Earl Ferrers rose to move, That the draft order laid before the House on 12th June be approved [23rd Report from the Joint Committee].
The noble Earl said: My Lords, I have already spoken to this. I beg to move.
Moved, That the draft order laid before the House on 12th June be approved [23rd Report from the Joint Committee].—(Earl Ferrers.)
On Question, Motion agreed to.

Social Security (Overpayments) Bill
10.06 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that this Bill be now read a second time.
The purpose of this Bill is to provide for the introduction of a measure to amend Sections 71(2) and 71(5) of the Social Security Administration Act 1992, the need for which has arisen following a decision by a Social Security commissioner in a recent appeal case.
The Bill is not a contentious one. The legislation before the House is not for the purposes of amending the direction of policy, but to enable this Government to maintain a longstanding and reasonable practice which has been seriously undermined by the commissioner's decision. The Bill has been motivated by the need to provide legislation for continuing the very practice which this and previous administrations have followed since the Labour Government introduced the National Assistance Act in 1948. While there is little doubt that the commissioner's decision is correct in its interpretation of the statute we have concluded that the Department of Social Security is unable to live with the implications of that decision which has meant that, as a consequence, we must amend the legislation in order to uphold the current practice.
The commissioner's decision has effectively made it impossible, in the short term, to recover new overpayments of social security benefits from claimants who have—whether fraudulently or otherwise—misrepresented the facts of their case or failed to disclose details or changes of personal circumstances which have an impact on the amount of benefit to which they are entitled.
The practice, which has been followed by the Department of Social Security for many years, under Labour Governments as well as Conservative Governments, is a perfectly reasonable one. When an overpayment has been identified the appropriate adjudicating authority corrects the amount of award being paid immediately and, at a later date, will reach a decision on the amount of the overpayment and whether or not it is recoverable. Handling this process in two separate stages is a sensible and practical way of

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proceeding, but in so doing the commissioner has decided that we are not acting according to the statute and must, as a consequence, correct the award and reach a decision on the amount and recoverability of the overpayment concurrently as part of a single process. Failure to do so will, in many cases, lead to the loss of the right to recover the overpayment.
Perhaps I may illustrate by using a hypothetical example. Let us assume that a claimant has been awarded income support on the basis that he or she is without work. If it is later discovered that the claimant has in fact been working and has had earnings sufficient to warrant a reduction of the amount of benefit he or she is legally entitled to then an overpayment has most probably occurred. The amount of award in payment can, of course, be amended to the correct amount immediately to take into account the changed circumstances, but a decision on how much overpayment has been made and whether or not it is recoverable may require further evidence which is not always readily available. It may be necessary, for example, to approach an employer to verify details of earnings and hours worked, and in some cases we may even need to visit that employer to obtain this evidence. Evidence may also be needed to establish whether the claimant deliberately misrepresented the facts or to clarify the particular circumstances which gave rise to a duty to disclose.
In any system there will always be a minority of people who do not play by the rules. I must emphasise that this Bill is not introduced with the specific intention of counteracting fraudulent claims for benefit but with, as I have already stated, the intention of maintaining the status quo of current practice. However, this Bill does serve to protect our rights to recover public money paid erroneously through claimants' misrepresentation and in some cases that misrepresentation will be deliberately fraudulent. Your Lordships will, of course, be gratified to hear that by far the more usual reason for overpayments occurring is due not to fraudulent misrepresentation but to claimants' errors or oversights concerning what it is their duty to disclose. Having said that, however, if this legislation is not carried we are effectively endorsing what will amount to little more than a charter for fraud which leaves our social security system exposed to that element who will deliberately commit acts of fraud knowing that in most instances we shall be unable to recover that money which has been criminally obtained.
The Department of Social Security considered with utmost care the options available to it which would avoid the need for bringing legislation before this House. Legal advice has been that there are no sensible grounds on which to appeal against the commissioner's decision. We have considered whether the decision could be implemented through operational means but have concluded that this cannot be done except at prohibitive cost.
The financial implications and savings arising from this Bill are not trivial: in 1995–96 more than £122 million was recovered from benefit overpayments. In the current financial year we expect to identify £135 million of recoverable overpayments on income support
726
alone. Each month that passes without this legislation in place means a significant loss of recovery of public funds which it is our obligation to avoid. In addition, without this legislation, the necessary changes in working practice to ensure that we retain the right to recover overpayments would increase the Department of Social Security's administrative costs by about £30 million in the first year and by around £25 million in each subsequent year.
However, such a solution could not be implemented immediately, indeed it would take nine months to realise and in that period we would lose approximately £100 million of recoverable overpayments. These costs would arise through the necessary restructuring of the working practices of the Benefits Agency, substantial redesign of the income support computer system and the consequent massive retraining programme. It cannot be just that the taxpayer should bear these costs. I commend this Bill to the House and I beg to move.
Moved, That the Bill be now read a second time.—(Lord Mackay of Ardbrecknish.)
10.13 p.m.
Baroness Hollis of Heigham: My Lords, we shall not oppose the Social Security (Overpayments) Bill. I promise the Government that after two such events in one evening, we do not propose to make such support or abstention a habit.
On this side of the House we accept that overpayments through misrepresentation—that is, through fraud rather than error—should not be tolerated. We accept, as the Minister outlined, that it would be difficult to compress the two decisions into one; that is, the fact of overpayment and its correction and the amount to be recovered. We accept that it is difficult to do that in one stage in view of staff implications and the problems for the computer system. We accept that it would probably make it more difficult for the claimant to appeal. And, as the Minister explained, because of the court cases, we need primary legislation to remedy the situation. Otherwise, the Government may face overpayments of £100 million which are unrecoverable. I am sure that we would all agree that that money should be spent more appropriately elsewhere in the social security system.
We believe that having a two-stage process may very well be beneficial to the claimant as well as to the officer dealing with the claim, rather than seeing both steps compressed into one. However, I have some slight concern about how this may operate in practice. In the other place a distinction was drawn, which was certainly convincing to me, between three kinds of error. The first is innocent misrepresentation—a straightforward error, misunderstanding or whatever. The second I would describe as negligent misrepresentation, to which I shall return. The third I would describe as a fraudulent representation. I believe that I am using the language which the Minister used in the other place. Clearly, innocent misrepresentation is where someone has failed to understand what the forms require and has simply made an error, perhaps by way of memory or whatever.

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However, what I am rather more worried about is the border-line between negligent and fraudulent misrepresentation. As I understand it, at present someone may sign a form and neglect to supply appropriate information which may lead to an overpayment based on negligence. He may then face a huge bill for recovery even though he has spent the money in good faith.
Can the Minister say whether the department expects to make any distinction in its quest to recover overpayment between those three forms of misrepresentation; namely, the innocent, the negligent and the fraudulent? In other words, will the debts be topsliced? How will recovery operate? Will it be a small sum topsliced? How will it stand in terms of the priority of other debts—for example, repayments to the social fund or to other utilities? Further, how long will it go on? Will it be any different from recovery mechanisms where the overpayment has been due to departmental error as opposed to innocent misrepresentation by the claimant?
As I said, we do not oppose the Bill. We recognise that government need to correct a situation and that that correction may well be to the benefit of the claimant. However, we shall be glad to receive some assurance in that respect, especially where the misrepresentation has not been fraudulent. Of course, it may have been negligent; but it was not fraudulent. Such situations often concern people whose literacy skills may not be high or who may be fairly old or frail and seeking disability payments or the like. We need some reassurance that such claimants will not suddenly, out of the blue, receive a bill for a huge sum of money which they would find very difficult to make good in a reasonable time and in a reasonable way. I hope that the Minister can at least reassure us to that extent.
10.17 p.m.
Earl Russell: My Lords, I believe the Minister knows that, when I think he is right, I am prepared to say so. This strikes me as a reasonable Bill to meet a necessary objective. None of us is in favour of money which has been obtained by fraudulent means, by failure to disclose or indeed by misrepresentation, being irrecoverable. If that was the effect of the ruling of Commissioner Mesher, then that effect needs correcting. I take the Minister's point about the need to gather evidence in order to understand and calculate the extent of the overpayment that has taken place. That was a powerful point in favour of a two-stage process and it is well taken.
However, I should like the Minister to consider a point which relates somewhat to those just raised by the noble Baroness; namely, the difference between misrepresentation and failure to disclose. In principle those are two different cases. The threshold of proof which the department carries is different for those two cases. Therefore, can the Minister confirm that, under the Bill, he will ensure that the department is careful not to proceed on misrepresentation when failure to disclose might be more appropriate?
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The Minister is asking us to reverse a court judgment. It is not the first time this month that he has asked us to do so. I am taking very different attitudes to the two cases. Therefore, it might be worth thinking just for a moment about the general principles involved in the reversing of court judgments. First, we should all agree that it is something which should be done reasonably sparingly. Secondly, it is best when it can be done, as is the case on this occasion, by all-party agreement reached behind the scenes before the Bill comes forward. I should like to express my gratitude for the fact that that procedure has been followed on this occasion.
When there is a technical difficulty in the way of a policy intention which all parties agree to be proper but which, nevertheless, cannot be pursued for a purely technical and drafting reason, I believe that a reversal of a judgment need not cause us any misgivings. I believe that to be the case in this particular instance. However, that is a very different case from one where the court has found the policy intention itself to be unlawful. A case where that is found is one which must involve, at the very least, bad drafting. Also, reversal of court judgments in areas where there is very strong party disagreement is again something to be undertaken sparingly. It is a subject about which we all need to think a bit further. But certainly, whatever general principles we arrive at, this case would be likely to be within them.
I have read with a great deal of interest the ruling by Commissioner Mesher which has given us the subject of this Bill. I have no doubt it was correct. I understand that the Government have received advice that it would not be right for them to consider pursuing an appeal. But that case is an interesting one. I do not always agree with everything that Mr. Frank Field says, but on this occasion the circumstances of the case must make us think about some of the points he has been making.
It is a case of housing benefit, where Ms. Mustard, the subject of the case, had been getting money from her brother towards the payment of her rent, trying to scrape money together to pay her brother back and not on all occasions succeeding—just the sort of thing one might have expected and just the sort of sharing of responsibility between members of a family which in other circumstances the Government like to encourage. But, inevitably, it gave rise to a problem on this occasion because it brought her over her applicable amount for income support.
We have here two contradictory policy objectives, and in any long-term review of the social security system, those two objectives will need thought. One of them is the desire—inevitable and necessary in means testing—to ensure that money goes to people in proportion to their means. The other is the desire not to discourage people from helping each other out. I must admit that I cannot yet altogether see my way round that dilemma. But I wonder whether slightly more gentle housing benefit tapers might have solved some of the problems which gave rise to that case in the first place. There is a problem here. I do not see the solution to it and I hope that all of us will give it further thought.

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I also hope when we come to Committee stage of this Bill to put down three small amendments. I understand that the Minister and his officials have only just received notice of these. That is the result of a misunderstanding for which I must make my apologies to the Minister and, through him, to his officials.
These three amendments would provide, first, that overpayments can be recovered only over a period of 12 months. That is the same rule that applies to people claiming arrears of benefit. It is a case of the principle that what is sauce for the goose is sauce for the gander. It would be a reasonable, equitable provision and would make the operation of this provision more manageable, more practical and perhaps more humane than it would overwise have been.
The second amendment, which is perhaps a more interesting one and will perhaps take a little discussion, would be to reverse the judgment in the case of Jones v. Chief Adjudication Officer in 1993; and if reversing one judgment, why not consider reversing another? That is the case that hangs on the point I have touched on before, that the threshold of proof for the department in misrepresentation is a great deal lower than it is in failure to disclose.
What arose from the judgment in Jones is that a person may be found guilty of misrepresentation for failing to disclose a fact of which he was quite unaware. Now that really is a matter of hard cases making bad law. It seems to me that if you are not aware of a fact, then in sheer common sense you cannot be required to disclose it. Maybe when it comes to light it may affect the level of your benefit. Indeed, it should. But we can only disclose what we know. That amendment would also deal with the problems of disclosure in cases of mental impairment of various sorts. It is difficult enough for most of us to find our way through the labyrinth of social security benefit regulations, but if one is suffering from severe mental impairment of one sort or another it can be difficult indeed.
The third amendment I hope to put forward is a purely technical one about the vires for appeal. Now that we are to have a two-stage process it will be inevitable, as Commissioner Mesher pointed out in paragraph 10 of his ruling, that any appeal will have to encompass both stages of the process. It is my understanding that that will require a further amendment to the legislation simply to make that possible, because one cannot appeal against the requirement of overpayment without appealing at the same time against the review which gave rise to the requirement. That, I think, is a simple, practical point. I hope it will so appear to the Minister. With those provisos, I am happy that this Bill should go forward.
10.25 p.m.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Baroness and to the noble Earl for their general support and welcome for the Bill. As I believe I indicated, it is not a contentious Bill. However, I have learnt to know better than even to think for a moment that one contentious Bill will necessarily make a summer, so to speak. There will be others. The Bill
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we are discussing is indeed not contentious. All of us who are concerned with good government and with the proper administration of the department understand the need to ensure that if overpayments are made because of misrepresentation, or, even worse, because of fraud, the department, and hence the taxpayer, can claw back the money lost due to that misrepresentation.
I shall try to answer some of the points that were made by the noble Baroness and the noble Earl. Decisions on whether an overpayment is recoverable are, of course, made by an adjudication officer. In reaching a decision he or she must be satisfied that there has been—fraudulently, or otherwise—a misrepresentation, or failure to disclose a fact. He decides on the amount of overpayment and who made the misrepresentation, or failed to disclose. When an adjudication officer determines that, he also determines whether the Secretary of State is entitled to recover the overpayment, and from whom the recovery should be sought. The Secretary of State then decides whether the repayment is required, and the method of recovery where no suitable offer is forthcoming.
I listened with interest to the noble Earl's suggestion as regards tabling three amendments. It might be sensible not to discuss those this evening if we are not to fall into the trap that we fell into as regards the other Bills which have just finished being a source of disagreement between us. We seemed to talk about the same subject on three, if not four different occasions. I now turn to the vires for the appeal, and what one can appeal against, and how the two appeals relate to each other; that is, the appeal against the decision that there has been an overpayment, and the separate issue, which concerns the decision as to whether it is an overpayment which should be recovered. We can perhaps discuss that matter when the noble Earl moves his amendment. We can also discuss the interesting case of Jones v. The Chief Adjudication Officer. I look forward to discussing those matters.
The noble Earl referred to a third amendment. He discussed whether or not we should stipulate that recovery of the overpayment should occur over at least a 12-month period. I believe that was what he said. We can discuss that matter too. The noble Baroness referred to my next point. The standard rate of recovery from income support is normally £7.20. However, where the overpayment has been caused through fraud, the level is raised to £9.60. No recovery rate is specified for other benefits but guidance suggests that up to one-third of the rate of personal benefit should be deducted. Overpayments below £25 are treated as small overpayments and recovery is not normally pursued as it is estimated that each overpayment recovery, including the adjudication officer's decision, costs at least £25, making the recovery not cost effective.
Baroness Hollis of Heigham: My Lords, is that £7.20 through to £9.20 of the personal allowance? I should know this point but perhaps the Minister will forgive me. Is that the personal allowance only of the

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adult concerned? There is no proportional top-slicing from the children's benefits, for example. I am trying to protect the position of the children.
Lord Mackay of Ardbrecknish: My Lords, I understand that. The figures I am looking at show the maximum reduction from income support in IS cases. I do not know whether that answers the noble Baroness's question. If indeed the figures relate to the personal rate of income support to which the noble Baroness refers, it is £7.20. I imagine that if someone has income support for themselves and their children, he or she has a totality of income support and the maximum is as I have suggested: £7.20 or £9.60. However, I will check on that point before the next stage.
The noble Baroness asked me about the discretion. If recovery is likely to be detrimental to the health or welfare of the debtor or a member of the family, then the Secretary of State exercises discretion to abandon or reduce the rate of recovery. Recovery is automatically waived in the following circumstances: if income support is in payment and if the claimant is 70 or over and is senile or has long-term physical or mental illnesses and does not have capital in excess of £500 and has no disregarded income. The Secretary of State also has the power to waive recovery of an overpayment in exceptional cases where recovery would be harsh or unjust.
Normally, a person is invited to make a voluntary offer to repay. If no offer is forthcoming, or any offer that is forthcoming is not acceptable, the Secretary of State may then make compulsory deductions. Those deductions usually start 28 days after the adjudication officer's decision, so as to allow the claimant time to consider appealing against the overpayment decision. The claimant has the right to appeal for up to three months after the decision is made.
On the question of the order of priority on deductions from weekly entitlement, the recovery of overpayment is tenth on the list. It comes after a fair number of other deductions: mortgage interest direct; housing costs; service charges for fuel and rent; fuel debts; water charges; community charge/council tax; repayment of fines; child support maintenance; and social fund loans. Recovery of overpayments is at the bottom of the list. I hope that that answers the direct question that the noble Baroness put.
Baroness Hollis of Heigham: My Lords, am I therefore right in believing that, if it comes to that, it is not actually repaid, because there is a general cut-off point beyond which no more top-slicing may occur?
Lord Mackay of Ardbrecknish: My Lords, if someone is making some of the payments I listed above
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and the recovery of overpayments reaches the total amount that we allow for deductions, then the recovery of overpayments will have to wait for a better day; or, depending on its size, on the decision of an adjudication officer, the recovery may be waived.
The general policy on recovery is well-established. If an overpayment is determined to be recoverable, we seek to recover it without causing undue financial hardship. Discretion arises on the implementation of this policy, and the Secretary of State may decide not to pursue his right to recover if representations are made either by the customer or by someone on his or her behalf.
Each case is judged on its merits. As a general guide, where recovery of the overpayment is likely to be detrimental to the health or welfare of the debtor, as I explained in one particular example, or is considered excessively harsh or unjust, it is likely that it will be abandoned or mitigated in some way. The policy is pursued in a sensitive way. However, as we have all agreed, it is right and proper that it should be pursued in those cases where it can be and where it is quite clear that fraud or misrepresentation has taken place.
I hope that I have answered the points raised. I look forward to what I trust will be a short Committee stage.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Civil Aviation (Amendment) Bill [H.L.]
Returned from the Commons agreed to.
Hong Kong (War Wives and Widows) (No.2) Bill [H.L.]
Returned from the Commons agreed to.
Party Wall, etc. Bill [H.L.]
Returned from the Commons agreed to.
Energy Conservation Bill
Returned from the Commons with the amendments agreed to.

Noise Bill
Returned from the Commons with the amendments agreed to.
House adjourned at twenty-five minutes before eleven o'clock.