Lords Sitting of 8 March 1996

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

Recruitment and Assessment Services
The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe)The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe) rose to move, That this House take note of Her Majesty's Government's plans for the future of Recruitment and Assessment Services.
The noble Earl said: My Lords, this debate has arisen from questions raised in your Lordships' House about the Government's plans to privatise Recruitment and Assessment Services, an agency specialising in the recruitment of staff to the Civil Service. The Government's intention to do so has been the subject recently of two short debates in this House, on 25th January and 15th February. It was clear from our exchanges then, in what for an issue of this kind is the rather unsatisfactory medium of Starred Questions, that a number of your Lordships would welcome a wider discussion on these issues. The Motion standing in my name today is a response to that wish.
Recruitment and Assessment Services (which I shall refer to by the more commonly used acronym of RAS) is a next steps agency established nearly five years ago. As its name denotes, and in accordance with its agency status, it is a provider of recruitment, assessment and consultancy services to the public sector. It is perhaps best known for the recruitment of graduates to the fast stream of the Civil Service; but in fact that comprises only about a third of its turnover. Some two thirds of its business relates to appointments, at all grade levels, in other parts of the Civil Service and to wider public sector recruitment.
The role of RAS is essentially operational. Its staff are employed in a variety of roles: providing manpower-consulting services to customers; designing application forms; processing applications; devising tests; supervising the taking of tests; marking, assessing and interviewing. There are currently 140 employees, of whom over half are clerical.
RAS is a provider of those services, but it is not the only such provider. Departments and agencies have for some years been given discretion to meet their own recruitment needs direct or through private sector agencies. In fact, although RAS deals exclusively with the fast stream, the vast bulk of Civil Service recruitment—nearly 90 per cent.—is handled by others. This means that RAS has had to compete for business in a dynamic market place, and it has done so against a background of dramatically falling volumes of Civil Service recruitment. In the three years to 1994–95 new recruits fell from 42,000 to 21,000, a drop of 50 per cent.
RAS responded well to the challenge by reducing its cost base, notably its staffing levels. It also developed a range of new services for its customers. As a result, it has not only managed to hold its own; it now has a well established reputation as a centre of excellence and is trading successfully. By extending its activities into clerical recruitment, it has steadily increased its overall penetration of the Civil Service market from 7 per cent. in 1991 to 12 per cent. today. For the future, new opportunities are likely to arise as departments and agencies increasingly turn to outside agencies to source their staffing requirements.
The expertise of RAS in high calibre graduate recruitment is well known. Indeed, since April 1994 RAS has welcomed representatives from some 24 countries, seeking advice on techniques in this area of its work and in others. Each year for the fast stream RAS recruits between 100 and 150 generalists and over 100 specialists—economists, statisticians, scientists and engineers—from some 12,000 applicants.
The selection process for all the various fast streams is a rigorous and relatively lengthy one. There are three principal stages to the main fast stream scheme: shortlisting; an assessment centre; and the final interview. Shortlisting is based on the initial application form, a so-called biodata test and a cognitive test. The assessment centre stage—the Civil Service selection board—engages candidates in tests, exercises and interviews over two days, designed to give a feel for Civil Service work. Candidates who progress beyond that stage are invited to an interview: the final selection board.
I mention those details to illustrate what RAS is about and to show what it is not about. As I said, its role is essentially an operational one. It is also a commercial enterprise, a business. As a business in the public sector, it is subject to a number of constraints. There are constraints of public expenditure, denying RAS the flexibility that a private sector enterprise has to grow and adapt. It is prevented from raising investment capital or from borrowing; and, perhaps most importantly, it is constrained in selling its services outside the public sector. RAS's inability to capitalise on its professional expertise by servicing the needs of the private sector is not only a brake on its efficiency, but it also represents a lost opportunity to bring those skills into the wider arena at a time when, in the commercial world, the outsourcing of graduate recruitment—in other words, not recruiting in-house—is seen very much as an emerging trend.
Last year Ministers commissioned the consultants Coopers & Lybrand to prepare a feasibility study on the possible privatisation of RAS. Following that report, Ministers came to a twofold conclusion: first, that RAS's expertise, confined to the public sector, was an under-utilised asset; and, secondly, that a move of ownership to the private sector was not only feasible, but would serve to obviate the constraints that I have just described. Freed from those constraints, it was clear that RAS would be able to continue its efforts to widen its customer base in the public and private sectors and would be well placed to beat the competition in doing

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so. The spin-off would be not only greater operating efficiencies, which would offer even better value for money to the Civil Service, but also a benefit, albeit an intangible one, to the community at large. In tandem with that, there might also be a further gain—one which we have seen arise from so many privatisations in the past—that private sector disciplines would make RAS an even more effective organisation than it is today.
I described RAS just now as a business, but of course it is not just any business. A large portion of its activity bears upon an area of our national life about which, rightly, there is great sensitivity: the ethos of the Civil Service. No privatisation of RAS could be contemplated if what we were doing put that ethos at risk. The integrity and impartiality of the British Civil Service are, I venture to say, bywords throughout the world. And therefore any change to the system of recruitment to public sector posts must give us the confidence—indeed, the absolute assurance—that those standards will not thereby be undermined.
The Government take those matters extremely seriously. That is why, in taking forward our ideas, we have been single-minded in insisting on appropriate safeguards. It may be of reassurance to your Lordships if I expatiate a little on what those safeguards consist of. First, there is currently a complete separation, and will continue to be, between RAS and the regulatory functions exercised by the Civil Service Commissioners. The most important features of that regulation are the rules of selection on merit by fair and open competition. Those rules are embodied in the Civil Service Order in Council and are set out in the recruitment code drawn up by the Civil Service Commissioners. The code is mandatory, and the rules of selection govern all recruitment to the Civil Service, regardless of who carries it out, whether it is RAS, departments or businesses in the private sector. And adherence to those requirements is subject to the commissioners' audit.
The second safeguard is that the actual selection decisions, as distinct from the processing and testing of candidates, will remain in the hands of civil servants. The Civil Service, through in-house nominations, will continue to provide assessors for the fast-stream selection boards, and panel members for final selection boards. The decisions on the success or failure of candidates at these stages will therefore remain a public sector responsibility.
Other assessors involved in the fast-stream selection process will also continue to have a key role. They come from a variety of backgrounds in the wider public and private sectors and include psychologists, former civil servants and academics with expertise in assessment procedures or in particular specialist disciplines. The assessor's job is to ensure that the highest standards are maintained in recruitment to public service posts. That task, and the range of people who perform it, will remain exactly the same. The assessors work on behalf of their customers, who are of course government departments, and the customer consortium of
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departments who employ fast-stream entrants will itself approve the arrangements for selecting and training the assessors.
Thirdly, the tests and exercises developed by RAS for the fast-stream process will at all times remain the intellectual property of the Government. All future developments to the schemes by RAS and any changes to the tests will be protected by confidentiality obligations, preventing RAS from compromising the integrity and efficacy of the fast-stream competitions. There will also be continuing involvement of civil servants in the preparation of certain exercises to ensure that they are a true reflection of Civil Service work.
Underpinning all fast-stream work done by RAS will be a contract. We propose to offer the business for sale with exclusive contracts for the fast-stream services. The contract for the main administrative fast stream is being drawn up in close consultation with the customer consortium of departments. I can tell the House that those departments approved the contract's principal terms and conditions and declared themselves content with the safeguards. Similar arrangements apply to the specialist schemes. Not only will the contracts define carefully the selection process for each fast-stream intake, but departments will actively monitor the contracts as they go along. The Office of Public Service will have a strengthened role to carry out such monitoring. It will not therefore be possible for the new owner to seek to take short cuts in an effort to reduce costs.
What incentive will the owners of RAS have to adhere to the contract? I suggest that there will be several. The desire to win future contracts will be a powerful encouragement to perform well. RAS will also have every reason to maintain the standing of its flagship activity—the Civil Service fast stream—and the wider reputation that it has established for its leading edge recruitment work on behalf of the public sector. And in the background will be the thought that its performance will be subject to periodic audit. Should it fall down on the contract, it will lose it.
Lord Jenkins of Hillhead: My Lords, if it does by chance lose it, what does the noble Earl then see would be the option open to the Civil Service?
Earl Howe: My Lords, I shall be delighted to answer that question. With the leave of the House, if we can go through the procedure that is customary and I can complete my speech, I shall be delighted to answer that question at the end.
The timetable for transferring RAS to the private sector has been set consistent with the need to ensure that the objectives of the sale are met, and to keep the period of uncertainty for RAS staff and customers to a minimum. There is a lot to achieve in this time but we are confident that the sale process can be carried out in this timescale. There is no question of putting speed before quality.
The Government will seek a buyer who will maintain RAS as a single viable business. Under no circumstances will we offer the graduate and wider

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recruitment businesses separately. There are important synergies between these two sides of the business which would be lost if the agency were to be broken up.
RAS's range of highly regarded recruitment and assessment services and its unique position in the public sector market will, we believe, make it attractive to bidders. Indeed, a good number of first-class organisations have already expressed interest. The Government will select a purchaser with a clear commitment to and capacity for maintaining and enhancing the quality of service that customers now enjoy. That purchaser will also need to have demonstrated a full understanding of the rules governing Civil Service recruitment and the ability to run recruitment schemes for customer departments and agencies based on those requirements.
Your Lordships will note the amendment to the Government's Motion standing in the name of the noble Lord, Lord Bancroft. As a former head of the Home Civil Service, it is perhaps natural for him to have concerns. Those concerns would indeed have force if the rules and responsibilities relating to Civil Service recruitment were to be changed by the Government's proposals for RAS. They will not.
I hope I have said enough today to convince the noble Lord and other noble Lords who may have been in doubt that not only is there nothing sinister or objectionable in what the Government are proposing, but there are benefits, both tangible and intangible, for the Civil Service, for the private sector, for the taxpayer and for the nation. I beg to move the Motion.
Moved, That this House take note of Her Majesty's Government's plans for the future of Recruitment and Assessment Services.—(Earl Howe.)
11.22 a.m.
Lord Bancroft Lord Bancroft rose to move, as an amendment to the above Motion, to leave out ("take note") and insert ("calls for the abandonment").
The noble Lord said: My Lords, in moving the amendment I shall be very brief, in accordance with our self-imposed time constraints. I start from the premise that three pillars have sustained Her Majesty's Permanent Civil Service of the state for more than 100 years.
One pillar is a career service whose members can persist in giving frank if unwelcome advice to Ministers without the prospect of their "contracts" being ended or not renewed. The second is a unified service, bound together by a common ethos, where the best talent can be promoted on merit, without regard to departmental boundaries. The third is recruitment through open competition by an independent body, protected against interference from any source whatever. The first two pillars have been chipped away in the past five years. The Government's decision to sell off the RAS will effectively demolish the third and last. We are therefore engaged in an historic debate.
I am grateful to the noble Earl for his speech but, alas, I am genuinely unconvinced. He has protested that the opponents of the sale have misunderstood, and that this last pillar will remain standing. All of us on my side of
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the argument have had experience of government. My Lords, we understand all too well. Our criticisms are not, of course, of the noble Earl, but of those who took the decision. Having taken it, they have sought to evade parliamentary discussion and consultation. Cornered at last, they have imposed a rare Friday debate in the hope that it will attract little public attention and few Peers.
I may be reproached for prolonging uncertainty. I remain unmoved. It was the Government themselves who first pressed the button of uncertainty by their unilateral announcement in November. Thanks to the Government, we have only the sparsest documentation, as the noble Earl acknowledged: a handful of replies to Parliamentary Questions and one ministerial letter to a newspaper. I leave it to others to comment on this furtive arrogance and the reasons for it.
The rationale for the decision consists, I fear, of repetitive assertion alimented by self contradiction. The main arguments, as restated in the noble Earl's speech, are that, first, selling the RAS to a big private sector head-hunter will both improve its service to existing public sector customers and extend its operations to wider markets. How? Why? The noble Earl's arguments were unconvincing and thin. To the extent that it succeeds in the latter, it will be at the expense of the former.
Secondly, we are assured that recruitment will continue to be on merit by fair and open competition, and will be supervised by the Civil Service Commission. What expertise will be left to the commission to act as monitors of the tests? Further, what credible capability will remain to it for ensuring the integrity of the systems used by the mass of departmental recruiters—the vital executive and clerical officers?
For how long will the service be able to keep the big new owner-manager in leading-strings? Precisely what obligations will be laid on him in the contract? For how many years will it run? How will it be enforced? Will it be ended if the new owner falls down on the job? A profit-motivated owner-manager cannot fail to superimpose quantifiable and largely different private sector standards on an unquantifiable and quite distinctive public service ethos. I note with grim foreboding that a deal management unit has been set up.
Thirdly, we are assured that the Civil Service will continue to own the tests. That is risible. With one or two slight amendments they can and will slide across to the new owner-manager and his private sector clients. This leakage is bound to threaten the integrity of the whole public service assessment process.
What can be the real rationale for this misguided and uniquely destructive action? Clearly, it is none of the reasons so far advanced by the Government. Nor is it dissatisfaction with the performance of the existing RAS, which the noble Earl has kindly and gracefully acknowledged. Indeed, the Government single out the RAS for praise. Nor can a reason be benefit to the Exchequer. The noble Earl has told us himself that the sale will not significantly affect the PSBR. Precisely what assets will the purchasing head hunter he buying? Not the tests. This leaves only the staff, or what remains of them before the trap is sprung. I leave it to others to comment on their shabby treatment.
Perhaps, while they scraped the barrel of privatisation ideology, this splinter lodged under a ministerial fingernail. It may be a splinter to them, my Lords, but in the long perspective of Her Majesty's Civil Service it amounts to the flippant destruction of an essential pillar. Is it not ironic that this government of all governments are selling off their fast-stream recruitment agency when virtually every large PLC retains the process in-house?
Arguing about it with those who cannot or will not see its enormity is akin to seeking a rational discourse with flat-earthers or with sufferers from a collective lobotomy. Surely the least the Government can do in response to the weight of opposition is to allow more time for public and parliamentary consultation. There can be no justification for the raging appetite for a fait accompli which seems to have possessed them thus far. I beg to move.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, the original Motion was, That this House takes note of Her Majesty's Government's plans for the future of Recruitment and Assessment Services, since when an amendment has been moved to leave out "take note" and insert "calls for the abandonment". The Question I now therefore have to put is that this amendment be agreed to.
11.29 a.m.
Lord Callaghan of Cardiff: My Lords, I thank the noble Lord, Lord Bancroft, for calling this matter to our attention and assure him of my full-hearted support. I want to go back to fundamentals. The method of recruitment to the Civil Service, as he reminded us, has been one of the major pillars that has sustained the British Civil Service during the past 150 years. The Northcote-Trevelyan reforms, as all noble Lords know, swept away bribery, favouritism and patronage as the favourite methods of securing a Civil Service post. Instead, the reforms led to the institution of the Civil Service Commission as an independent body, independent of Ministers—I shall come back to that point—of whatever party, or of any other influence. They substituted the fundamental principle that recruitment should be by way of competition, open to all, conducted by means which would give members of the public confidence that in their dealings with government they would be treated with equality, fairness and even-handedness. That has been so successful for a century and a half that the British Civil Service, in its present form, is admired throughout the world for its honesty, integrity and the general absence of corruption that can be too readily found in some other countries. Now, as the noble Lord, Lord Bancroft, said, this pillar is being demolished by the Government's privatisation proposal. The noble Lord said that this may be an historic day, but it is also a sad day. The move owes nothing to necessity and everything to dogma.
My second objection to what is being done—and here I appeal to noble Lords on both sides of the House—is that it breaks the long-standing convention between
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Parliament and Government that major changes in recruitment or structure, or other reforms, of the Civil Service should be made after consideration by Parliament as a whole or by an independent body.
The reason is simple and the precedents over-flowing in number. The reason is that the Civil Service is not the private property of temporary, fleeting Ministers to trifle with as they please. It is the property of us all, and Parliament has always accepted that. It is the property of us all to guarantee its neutrality, independence and integrity and to ensure that they are all maintained. So whenever major historic changes of this sort are thought necessary, as the noble Lord, Lord Bancroft, said, there has always been agreement between Parliament and government to consider, by means of setting up a Select Committee in another place, a Royal Commission or some similar method, the arguments for change and to bring forward recommendations which have nearly always been acceptable to all sides of Parliament. This time there has been nothing of the sort.
I need only remind your Lordships how continuous this approach has been. Following the Northcote—Trevelyan reforms, there was the Playfair Commission, 1874, the Ridley Commission, 1886, the MacDonnell Royal Commission of 1912, the Tomlin Royal Commission of 1929, Priestley in 1955 and Fulton in the late 1960s. Incidentally, Priestley was specifically set up to deal with the problems of recruitment as well as pay. This time there is nothing but an edict from the Government smuggled through by means of a Written Answer to a planted Question. No one can argue that this is a small matter. The methods by which new recruits join the service are the first lesson they absorb of the ethos of the service, to which the noble Earl, Lord Howe, referred.
I wish to make clear what my fundamental objection is to the proposals. The initial method of recruitment by a body of the Crown is in itself a statement to successful candidates that they have become members of a service which expects absolute fairness, integrity and even-handedness in the handling of relations with the public on behalf of the Government. Now that is to be changed. Recruitment will become part of some money-making commercial undertaking whose concern, at the bottom line, will be how much money it can make. The Government hope to alter the whole situation by means of a Written Answer to a planted Question. But the noble Lord, Lord Bancroft has thwarted them.
I believe that Ministers do not understand these underlying issues. I do not know whether it is because they are saturated in the dogma of privatisation. They have been so long in power that they are insensitive to the limits of their responsibilities. Today we have the opportunity to remind them. They must withdraw these proposals and return to the longstanding method of conducting Civil Service reforms of this magnitude by asking a Select Committee of Parliament to consider them first before they are brought forward and, if possible, to see that the reforms are not those of Conservative Party Ministers but reforms which Parliament believes it is right to introduce or some other solution in place of what is now intended to be put into operation without a word from the Government.

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I sometimes wonder what animates the Government in their insensitivity and apparent inability to understand what lies behind these matters. I can only conclude with the words of a former Secretary to the Treasury who, delivering his verdict on the proposal in a letter to the Independent, said how contemptibly we are governed nowadays.
11.36 a.m.
Lord Jenkins of Hillhead: My Lords, in my view the proposal that we are considering today is foolish, damaging and of doubtful constitutional propriet. If that were not enough, even if my fears and those of other noble Lords, including almost unanimously those with a lifetime of experience in the public service, were to prove to be exaggerated, the exercise being put forward today would still be largely pointless. Any likely benefits from the commercialisation of this service are negligible compared with the potential for inflicting damage on a major national asset.
I certainly do not approach this matter from the point of view of a passionate or dogmatic nationaliser. The pursuit of public ownership for its own sake was one of the issues which gradually separated me from the Labour Party in the 1970s. I freely admit that British Telecom and British Airways, for instance, are functioning better in the private sector. But I see no room for dogmatism the other way, either. The performance of the water companies and the antics of British Gas give us pause in that respect. But these wider examples, the good and the bad, are all dealing with material services and quantifiable products. There is no difference of ethos between a comfortable and a less comfortable seat in an aircraft; between one unit of gas and another, in spite of the mysterious and fascinating Question about gas fitters which so absorbed us yesterday afternoon.
In recruiting to the public service we are not dealing with commodities which can be sliced up like grocer's packages. We are not dealing with meeting purely material needs, but with a long and proud tradition of public service and with the maintenance of standards which have long been the envy of many other countries.
The British Civil Service came into being as a result of a report of 1853 and its implementation between then and 1869. It has produced public servants—some at any rate—who are of the highest intelligence, with wide conceptual minds, which gives them the rare gift of being able to see problems in relation to each other and not just in isolation. They have also been not only the loyal servants of properly elected Ministers but also the guardians of a public probity which transcends the interests of one party or the lifetime, however extended, of any one government. The best of those public servants achieve that eminence partly because they set a higher store by public service than by the maximisation of their own rewards.
There has, I fear, already been some deterioration from the highest traditions of the Civil Service, the Civil Service which I was fortunate enough first seriously to encounter in 1964. The deterioration in morale stems partly from the view which some very senior Ministers
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have tended to propagate—that those values of public service over the maximisation of rewards somehow makes civil servants wimpish compared with the standards of, shall we say, Mr. Cedric Brown. It is undoubtedly true, I fear, that the service is less attractive to the brightest of entrants today than it once was.
We have had 17 years of one-party government—I do not blame the Government for that; we should all like as much longevity as we can get—but that is not inherently a healthy environment for non-party servants of the state. However, much of the tradition persists and I believe that the rest of it could still be resuscitated. But we are certainly not fostering that if we turn recruitment into a by-product of a headhunting firm, primarily concerned with recruitment to bottom-line-dominated private business. That is why the proposal is foolish and damaging.
In my view, it is also constitutionally improper for a government clinging on by their eyebrows with, at the most optimistic assessment, only 15 months of the Parliament to go to force through a totally unnecessary change on a subject which goes to the heart of the delicate balance between party government and wider national interest, and which destroys 127 years of successful tradition without any attempt at all-party agreement. Sometimes issues thrust themselves forward for necessary decision which perhaps then has to be taken, if such is the balance, by only one vote or so. That is not remotely the case with the issue before us today. It is just wanton dogmatism which we are considering.
11.42 a.m.
Lord Peyton of Yeovil: My Lords, the noble Lord, Lord Jenkins, concluded his speech with the simple question: why now? I echo that.
I think that I can say without fear of contradiction that my noble friend Lord Howe enjoys the respect and regard of noble Lords on all sides of the House, but today I feel that he must also enjoy—I do not know whether he really wants this—the sympathy of many of your Lordships. It is an open question for me as to whether the speech that he made this morning would have had a better chance of carrying conviction had he been given the opportunity to make it three or four months ago when this idea was first mooted.
Perhaps I may risk boring your Lordships with two blindingly obvious assertions. The first is that understanding is the fruit of explanation. As a means of explanation, a Written Answer by a junior Minister published on a Friday morning is not thought to be ideal. Secondly, the absence of a sufficient explanation at the right time drives people, particularly in times of concern, to reach wrong conclusions. That is particularly so where staff and jobs are concerned. There have been suggestions about White Papers being in the offing and there has been talk of revolving doors, but revolving doors lead in different directions and, apart from leading anywhere else, they sometimes lead out into the street. That must cause concern.
At the beginning of this unhappy saga, two rather bland assertions were made. The first was that existing customers would be given better service. I wonder what

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grounds there are for saying that. My noble friend referred to RAS this morning as a centre of excellence, but to suggest that there is a need for better service carries some indication of present inadequacy. A review is nearing completion. Might it not have been more sensible to await the result of that review?
There is then the question of wider markets. One wonders what prospects of useful success—success useful to the Government or the taxpayer—exist to be exploited by a privatised RAS. We have heard an extraordinary argument which always seems particularly odd coming from Ministers—it might be all right from someone such as myself—that this creature, RAS, will now have the great advantage of being freed from Treasury shackles. As one who has believed for a long time that Treasury shackles have left scars on the ankles of many, I wonder whether that argument comes well from Ministers who, nominally at any rate, have some control over the Treasury. If the Treasury imposes such fearful burdens and exacts such awful penalties from those it controls, surely it is looking for reform. Perhaps that is too difficult a task for Ministers at the present stage of this Government, but if they were to undertake it, I for one would wish them well.
The argument which my noble friend and others have used is that this is just a question of operational mechanics and that there is no need for such a matter to be controlled by the Government. My noble friend and the Government cannot have it both ways. If this is really so small a matter, why bother? If, on the other hand, it is something considerable, it really ought not to be pushed aside as just a matter of "operational mechanics". I fear such phrases because, far from enlightening one, they tend to impose an opaque screen between those who would wish to understand and what is being examined. I entirely agree with the noble Lord, Lord Bancroft, who in moving his amendment said that recruitment and assessment are matters which should be kept in-house.
I end with this single question: given the choice between a dedicated organisation and a contractual relationship in a very vital matter, which would any wise man prefer?
11.50 a.m.
Lord Moore of Wolvercote: My Lords, I have to declare an interest: 95 years ago in 1901, my father sat the examination for the Home Civil Service and the Indian Civil Service—the ICS as it was called then, and still is. Already, following the Northcote-Trevelyan Report 30 years previously, the examination was highly respected as being genuinely competitive without any patronage involved.
In those days, the plum jobs were in the ICS. In my father's year, seven of the first 10 in the examination, including my father, opted for the ICS. Then, 45 years later, in 1946, I sat the examination for the administrative class of the Home Civil Service. The ICS was no longer an option with the independence of India being imminent. To my delight, and I suspect rather to the surprise of my tutor at Oxford, I was accepted.
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I might add also that my grandfather and two uncles were also in the ICS. So your Lordships will see that a member of the Moore family is rather bound to think that there is nothing much wrong with the selection process.
In the half century since then, I have been able to get to know the Home Civil Service as well as most people: first, for 20 years as a member of the service, then for the next 20 years from the viewpoint of the Palace, and for the last 10 years as a Member of your Lordships' House. Since I left the service, I have made a point of asking Ministers of both parties, and senior civil servants, whether the high standards are being maintained. The answer on all sides has been most reassuring.
Even when Ministers have been critical of the excessive role of the bureaucracy in our life, they have been at pains to stress the high quality of the individuals in the Home Civil Service. I was glad to hear that three of the noble Lords who have spoken before me have confirmed that high opinion.
I have also questioned politicians and government servants in countries all over the world about their machinery of government and how it compares with ours in the UK. I found that universally our Civil Service is respected and, indeed, envied, for its integrity and its effectiveness.
The conclusion I have come to is that we probably have the best Civil Service in the world. So why change the whole system of selection? I listened carefully to what the Minister said, and I do not believe that the Government have given adequate reasons for privatising the recruitment organisation. Here we have a selection process which has produced this superb Civil Service, and the Government want to change it; to hand over to private enterprise the responsibility for recruiting the people who form the very fabric of our machinery of government in this country. It really does not make sense. I most earnestly ask the Government to think again.
11.54 a.m.
Lord Kennet: My Lords, I am sure that the Government will reflect seriously on the last speech considering from where it came, if I may put it that way. The Minister's speech was mostly about how close will be the control of the Civil Service over the recruitment agency when sold. The more he said that, the more I thought, "Well, if that is so important", and it is, "why are they selling it in the first place when control is best maintained by keeping something you have?"
The Minister quoted the opinion of Coopers & Lybrand on the deal. It of course used the phrase, "under-used asset". All right, so it is an under-used asset, and there will be many who will say, "a good thing to". Because an accountant advises someone that he owns an under-used asset, he is not bound therefore to sell it.
The Minister said that if the service is privatised it will be well placed to beat the opposition. What do we care about that? What do the British people care about

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that? Who is the opposition? Is it the duty of our government to ensure that one private head-hunting firm beats the opposition in the private sector market?
Further, what is the deal? That has not been explained. Is it a once-and-for-all sale, to be followed by annual payment adjustments, or will there be annual contracts? If there will not be some such follow-through structure, will the buyer be expected to guess the volume of work which will crop up each year for the Civil Service for ever more? Will it have to plan in advance to carry any shrinkages in volume on the back of private sector contracts? If it will, what effect do the Government think that that will have on its mode of operation?
We know that the project applies to "The Civil Service", but what is the frontier of the Civil Service? Does it apply to the secret services? Does it apply—I think we may ask this above all—to the Clerks of this House and the other place?
The purchaser will no doubt be taken over in due course. Virtually everything that the Government privatise is taken over as soon as their back is turned, probably by some foreign enterprise. It may possibly be taken over by a foreign enterprise for which the contract in question with our Civil Service will be a fairly small part of its business. Our Civil Service would then take its place in the queue along with the staff needs of who knows what corporations here and abroad, and who knows what other governments.
I ask myself—I believe that many other noble Lords have been doing the same—what has the Civil Service done to deserve the punishment of being deprived of the right to choose its own trainee members; that is, deprived of the right not just to exercise its own functions but to own its own substance, because that is what its staff is.
The Civil and Foreign Services are the state—our state, of which today's government are temporarily in charge. Recruitment to those services is the maintenance and continuity of the state. It is thus our continuity and maintenance, in a sense, which the Government are proposing to sell.
11.58 a.m.
Lord Hunt of Tanworth: My Lords, I listened carefully to the Minister when he introduced the original Motion, not just because of the respect in which he is held, but because this was the first time that the House has ever been given any proper explanation of the Government's proposals. But, hard though I listened, I could not detect in what he said any criticism of the performance of RAS hitherto. As a former First Commissioner, I was naturally glad about that.
But this is not a case where the Government are saying, "Here is a body which is under-performing, needs shaking up, needs private sector expertise brought in to do it". No, it is an organisation of which we are all proud, which has performed very satisfactorily, and to which I believe the Minister paid tribute. The argument for change is not connected with performance, it is solely a financial one, and I believe a dubious one at that.
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The Minister sought to distinguish between policy and process. That is a difficult distinction to make not only because I believe that the Civil Service Commission will inevitably become drawn into a monitoring process of what is going on in a privatised RAS, which would be expensive and confusing, but also because I do not believe that the work done by RAS is solely a process. It stands for the standards which it seeks to recruit.
I believe that the proposal will be questionable at the best of times and would need a great deal of consideration and discussion, which has not happened. But I wonder whether these are the best of times. It is proposed to make the change at a time when the whole question of public service ethos is under discussion in the light of the Scott Report and so forth, and is in some quarters under attack. No one suggests that if RAS is privatised it will go party political, but it seems to me to be crazy to abandon something which flows directly from the principles of the Northcote-Trevelyan Report in favour of something where the temptation and incentive to shave costs by lowering the objectivity and more particularly the rigour of the tests is likely to be irresistible.
Although we are having the debate today, there has been insufficient discussion about such a major departure which is of greater importance than the privatising of a process, as the Minister described it. I was going to say that he dismissed it as a process, but one had a feeling that it was something mechanical which a privatised RAS could undertake. I believe that it is much more important than that. I hope therefore that the Government will think again.
12.2 p.m.
Baroness O'Cathain Baroness O'Cathain My Lords, I am in favour of the Government's plans; namely, the privatisation of the Recruitment and Assessment Services. As I am only too well aware, that is not the popular line today. However, I hope that my reasons for taking that line will be considered for what they are; namely, the conclusions I have reached weighing up the pros and cons from the perspective of experience in the recruitment and assessment sector both as a user and as a manager of such a function within the normal functions of a commercial business.
I believe that the prime reason for my stance relates directly to that experience and its contrast to the function of the Civil Service. Of course we have, as everyone knows, a marvellous Civil Service. As the daughter of a career senior civil servant, I have a very good idea of the calibre, commitment and integrity of civil servants. Indeed, I have often said that I enjoy very much the cut and thrust of the commercial world, but when it comes to intellectual robustness and utter honesty there is no band of people who can match the civil servants.
But that does not mean that we should expect, or indeed require, that the Civil Service staff should have the same skills as those in other occupations. In fact, there is a strong case for saying that the skills requirement for the policy formers, the servants of

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government, the administrators of the country, are so special that they should not be diluted by attempting to be jacks of all trades. I believe that the basic skills involved in the running of RAS fall into the category of skills that are not necessarily required by the civil service staff.
The Civil Service has enough mind-stretching, time-consuming tasks to do within its own special competence. I suggest that the mechanics involved in the modern approach to recruitment and assessment should not be perceived to be an area of specific competence which falls into the "must have" category for the Civil Service.
I believe that the issue we are addressing today has been a victim of misunderstanding. There seems to be a misunderstanding as to what the functions of RAS really are. There is certainly misunderstanding about where RAS fits into the overall recruitment and assessment field within the task of employing the best possible people for the Civil Service.
RAS is just one of the three legs of the overall recruitment into our Civil Service. The individual departments make the final decision as to who should be employed. The Civil Service Commissioners set the standards and monitor them. RAS is the operational agency which currently effects about 12 per cent. of the recruitment—only 12 per cent.
What RAS does, and does most efficiently, is to provide the basic service of discussing job descriptions with departments, drafting advertisements, placing advertisements, acknowledging replies to advertisements, sifting through applications—"weeding", as we used to call it—drawing up short lists, processing first interviews, making assessments and psychological profiling and completing pre-employment enquiries.
That is specialised and valuable work. It is an area that is adopting new techniques and adapting to changes in the job market on a continuous basis. It is an area that requires special skills, but not necessarily the skills that one needs within the mainstream Civil Service.
I found that the latest annual report of RAS made fascinating reading. First, it was beautifully produced, clear, concise and utterly professional. And that was only the appearance! The content was most encouraging. Here is a business which has met its tough targets in a declining market; its "market share" of Civil Service recruitment increased from 7 per cent. in 1991 to a figure of 12 per cent. today. In 1994–95 it filled some 2,300 posts. New areas of business were explored and undertaken; for example, recruitment for health authorities and NHS trusts. All of that activity must have resulted in an increase in the skills base of RAS and those skills could well be utilised outside the public sector.
However, such natural extension is not possible while it is still under the control of government. It is not the function of government, I suggest, to thwart the natural development of any business—even one which they own. My noble friend the Minister detailed some of the constraints under which RAS currently operates. Those
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constraints must have a detrimental effect on the natural commercial vigour of such an obviously successful business. Let us remind ourselves of the tough financial targets that were imposed on RAS. It was asked to plan for a surplus of £5,900 and in the past year it achieved a surplus of £415,000. Similarly, a planned productivity increase of 2 per cent. became an actual productivity increase of 15 per cent.
We should not stunt the development of such an achieving business. However, I do understand the concerns. Naturally people are worried that there could be a falling off in standards. But RAS has its standards imposed upon it by the Civil Service Commissioners. The newly-privatised business is unlikely to ignore those standards. There are plenty of other recruitment businesses which would be only too willing to take its place if it did. So we are still talking about only 12 per cent.
Another concern is that perhaps RAS could develop a monopoly position. I suggest that 12 per cent, is a long way from a monopoly position. A further concern, but not held by me, is the possible dilution of existing skills. Perhaps the specific skills developed for the specific job of recruitment solely for the public sector could become diluted by involvement in the private sector. I suggest that RAS could only benefit by exposure to the differing requirements of the private sector. Skills developed in recruitment and assessment for the private sector could well have an advantageous spin-off for the public-sector recruitment.
There is one area in which I have a minor concern and I would be happy if my noble friend the Minister could allay that anxiety when he winds up. It involves the fast-stream recruitment. RAS currently gets involved in what one calls the "milk round"—the scouring of universities for the cream of new graduates for fast-stream recruitment into the service. Could it be possible that there might be a conflict between looking for the brightest and best for the Civil Service while at the same time looking for the brightest and best for plum jobs in the private sector? Much has already been said, but what has not been said, or repeated, is the understanding given in this House by my noble friend Lord Howe. He stated:
"Recruitment to the fast stream of the Civil Service must be handled with the utmost propriety. I stress also that that principle is in no way affected by the Government's proposals for RAS".—[Official Report, 25/1/96; col. 1122.]
On the subject of the "milk round", I sincerely believe that this is an area in which techniques ranging from mounting exhibitions to attract potential employees to answering the somewhat demanding questions of gilded youth, who believe that they can change the world, are highly specialised. Those skills can be developed only by years of working hard at the task. The people who go on the "milk rounds" are not policy formers and they are not diplomats. In the main, they are young people—actually, they are market hustlers—who are attuned to the aspirations of the young. They are not necessarily what we are looking for as mainstream civil servants. The people who carry out the recruitment and assessment are not necessarily the people we need for the service as a whole. To get the best in this specialised

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area we need to employ the best recruiters. The best recruiters are those who develop their techniques over many years in their own niche market of business. This really is not a business that the Civil Service ought to be in.
12.10 p.m.
Lord Allen of Abbeydale: My Lords, in listening to the speech which the noble Baroness has just made I could not help but think what a great comfort it must be to the Minister at last to hear a speech in support of the Government's proposals. Looking at the list of speakers to follow, I do not believe that there will be many more and I am afraid that my speech is not designed to be of comfort to the Minister.
Recently I read again the Northcote-Trevelyan Report to which so much reference has been made. I found it a rather depressing experience because it reminded me that much of what the report recommended as the foundation of the modern Civil Service has already gone; for example, the concept of a unified service. The Government have waited until they are almost in sight of a general election to launch this major change on the central issue of recruiting the future leaders of the service.
At no time have the Government suggested that RAS has failed to meet its objectives or that there has been any problem as a result of a shortfall in investment or that its sale would affect significantly the public sector borrowing requirement. I know that I am not alone in having found some difficulty in marshalling arguments against the Government's proposals when I simply could not make out the reasoning behind them.
We have had two exchanges at Question Time without achieving much by way of clarification. Although all might have been made clear had I been able to attend a briefing meeting laid on at short notice yesterday evening I rather doubt it, having listened carefully to what the Minister told the House today.
I shall not go over again the considerations which have already been put so clearly by my noble friend Lord Bancroft but I should like to say a few additional words about the way in which the proposal has been handled. As has been recalled, the Government's proposal was announced as a decision already taken in reply to an arranged Question in another place last November. The reply covered the Occupational Health and Safety Agency as well as RAS and gave the impression that here were a couple of minor activities which might just as well be added to the privatised list without any need for lengthy explanation or outside consultation, notwithstanding the traditions referred to by the noble Lords, Lord Callaghan of Cardiff and Lord Jenkins of Hillhead.
It was entirely in keeping that no similar Question was arranged here, although it would not have called for any great flight of the imagination to know that a number of Members of this House would be keenly interested in the fate of the RAS. If the Government failed to realise that at the time, to adapt a well-known phrase used by the late Ernie Bevin, "they now know different".
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I am somewhat concerned about the staff. The November Answer said nothing about their fate and it took a Question for Written Answer here to ascertain that members of staff would be unlikely to be released for transfer to another post before the sale and probably unable to get back into the Civil Service after privatisation. Just to round it off, the Minister said in reply to a supplementary question from the noble Lord, Lord Campbell of Alloway, that the staff had not been consulted before the decision to privatise had been taken. That is not a very comforting piece of history.
I suppose that a prime asset in the eyes of a purchaser must indeed be the skill and experience of the existing staff. But as time goes on, those people will gradually go and will be replaced by individuals who have no acquaintance with the ethos of the public service and who will be the employees of a company whose main aim is to make a profit. Like other speakers, I feel grave doubt as to whether the safeguards about which the Government talk—the ownership of the tests and so on—will prove effective, looking to the long term. This is essentially a long-term rather than a short-term matter.
Although we do not know the length of the original contract, nor do we know how the monitoring to which the Minister referred would be carried out, we know that it will take 20 years or more, as the careers of the new recruits mature, before there can be a really worthwhile assessment of the working of the new arrangements. By then, it may be too late.
I am sorry to say it but I, too, am not persuaded by the arguments put forward by the Government for this very important change and I add my voice to those who implore them to think again.
2.16 p.m.
Lord Wallace of Saltaire: My Lords, I declare a total lack of interest in this issue! I have never been a civil servant and, as far as I know, none of my ancestors was ever a civil servant. I put my name down to speak in the debate because I was puzzled. I had seen the first edition of the fast-stream newsletter and I found its language odd, to say the least.
Having heard the Minister's speech, I am totally unpersuaded that there is a case for privatisation. I feel that the Minister found himself using the language of a management consultancy in a way which is extremely inappropriate for a Minister of the Crown. After all, we are talking about the Crown and the British state.
The Minister tells us that there will be benefits for the taxpayer from this privatisation. He gave no evidence of that. I assume—and I declare one small past interest in that I was an assessor, which I did as a matter of public service—that the new commercial market-tested operation assessors will be paid on a proper commercial basis. Therefore, the net outcome of that entire operation will be a net cost to the taxpayer. Indeed, the fast-stream newsletter tells me that KPMG has been appointed as the official financial adviser to the RAS privatisation process by the Cabinet Office, the vendor, and Berwin Leighton are the corporate lawyers. I assume that that is also part of the additional cost of privatisation.

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I am extremely uneasy about the idea that one has a further spread of private monopoly countered by Civil Service regulation. I have been trying to think of a name for the new regulatory unit which will provide that audit. Will it be "Ofsiv" or "Ofgov" or, as it is to do with recruitment, will it be "Ofrec"?
However, I am concerned about the blurring of the division between private and public and between the state and civil society. At present I spend a lot of my time in central and eastern Europe helping to reconstruct the relationship between the state and civil society in what have previously been authoritarian societies. It is very important to establish a firm distinction between what is public and what is private; it is the basis of constitutional democracy. I have been trying to think which states in Europe most blur that distinction. Of course, in western Europe it is Italy. In eastern Europe it is Bulgaria and Russia.
In 18th century Britain there was a great blurring of that distinction. Indeed, the public service was, in the language which the Minister has just used, a marketplace in which commissions were bought and sold and in which taxes were farmed. It was the achievement of the 19th century British state to move us away from that towards a state in which the concept of public service was established. As I listened to the Minister's arguments for privatising the recruitment of members for our Civil Service, I wondered what arguments one would put forward against extending those principles to recruiting our military personnel by a similarly privatised commercial operation, whether or not owned by British companies.
I could make a very good case using the same language for privatising the process of tax collection in this country. It could be very much more efficiently done on a commercial basis by debt collecting organisations which would collect debts for banks, mortgage societies and our taxes at the same time. The question of where one stops at this point becomes very difficult to decide.
We have a government who have for the past 17 years talked about the importance of defending British sovereignty against the encroachment on the British state of the European Community. However, here we have a government who are destroying the concept of the British state and the British Crown by bringing closer and closer to the heart of British government commercial, privatising and marketplace principles.
To talk about the Civil Service as a dynamic marketplace or a public sector market is a contradiction in terms. It seems to me that we are talking about ideology taking the place of sensible, practical government. I would very much like the Minister to tell us which further aspects—perhaps, for example, of the service of this House or of the recruitment services for the Government, or whatever—they would wish to ring fence, which I believe is now the correct language, from further privatisation. If one accepts that one takes recruitment for the Civil Service as privatised, it seems to me that there is almost no function of government which is not open to privatisation in the long run.
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It used to be a principle of Conservatism, "If it ain't broke, don't fix it". If something is working quite well, it seems that the principle of our current Government in too many sections now is, "Let's see if we can break it". I add my voice strongly to those who support the amendment.
12.22 p.m.
Lord Wright of Richmond: My Lords, I support the noble Lord, Lord Bancroft, and other noble Lords who have expressed deep concern, if not outrage, at the Government's proposals. My experience throughout my diplomatic career, but particularly as Head of the Diplomatic Service, of the RAS, and of its predecessor, was one of admiration and total satisfaction with the service provided. It has consistently delivered high-calibre recruits who fully meet the needs of the Diplomatic Service for public servants with a high degree of loyalty, integrity, impartiality, stability of character, intelligence and linguistic aptitude and who, incidentally, place the ethos of public service above financial reward—a concept which a private headhunter might find rather strange and unfamiliar.
I support the noble Lord, Lord Bancroft, because I share his concern and that of other noble Lords who have spoken that privatisation should not in any way dilute the quality of the service provided by the Recruitment and Assessment Services. It is some, but not much, consolation to learn that a number of safeguards are to be built into the contract for the purchaser including, first, the continued involvement of departmental representation on CSSB and final selection boards to ensure that the requirements of departments are met; secondly, a very welcome reversal of what I understand was the Government's previous decision to scrap the final selection board altogether but which, I gather, will now be retained for one more year as a quality control measure; and, thirdly, intellectual property provisions to ensure that details of successful applicants are not used elsewhere.
Nevertheless, I remain deeply concerned, despite the safeguards listed by the noble Earl, Lord Howe, that privatisation, apparently for the sake of ideology alone—I have not yet been convinced of any benefits—will over time erode the quality and calibre of our senior public servants both at home and abroad and the integrity, objectivity and high success rate of the selection and recruitment process. Like other noble Lords, I urge the Government to reconsider.
12.25 p.m.
Lord Bruce of Donington: My Lords, I support the amendment moved so ably by the noble Lord, Lord Bancroft. On examining the original Written Answer to a Parliamentary Question, which materialised suddenly and obscurely on a Friday afternoon, I find that there are two main reasons why the Government embarked upon such a course. The first reason appeared in the first paragraph and the second and subsidiary reason is to be found in the second paragraph of the Written Answer. The Government said:
"After further consideration in the light of advice from Coopers and Lybrand".—[Official Report, Commons, 23/11/95; col. 235.]

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That is the first plank of their argument. But what is denied us is any sight of the kind of advice that was sought from Coopers & Lybrand. Very often management consultants, even illustrious ones, are asked what questions should be put in order to give the answer that is required. That is not entirely unknown in the field of management consultancy. Therefore, it would have been most helpful, as a minimum—and especially in the light of today's debate—if we had been provided with a copy of the letter to Coopers & Lybrand in which the Government requested the advice that they received. It would also have been helpful if Members of this House, among whom are some of the most illustrious figures in academic and business life, could have been advised of the precise nature of the reply from Coopers & Lybrand. We must always remember that, being human, Coopers & Lybrand can occasionally make mistakes; they are not God.
The second line of argument adduced by the Government and repeated today is that they are going to rescue the service from the constraints placed upon it by the Government. I have not been cast in the role of Sir Galahad like those on the Front Bench seeking to rescue the organisation from constraints. But, as a matter of common sense, I should have thought that if it is within their power to exercise the constraints under which the enterprise suffers, the easiest way of getting rid of such constraints is to stop exercising them. As I said, it seems a matter of common sense.
We all know that the notion that there is some kind of constraint which remains fixed and immutable is ridiculous nonsense. Indeed, the Government are busily writing off billions every day from privatised assets, forgiving debts, making advances and so on. They are quite capable of doing anything which is fundamentally required by the organisation.
Such arguments simply will not wash. The same applies to the queer notion that private enterprise management and the consultancy firms—or, indeed, headhunter firms—have a specialised intellect and grasp of the realities of life that is denied to civil servants. Again, that is complete nonsense. The noble Baroness, Lady O'Cathain, knows very well that the activities of headhunters have not always been very satisfactory when deployed in the private sector as well as in the public sector. There have occasionally been selections—and I shall not emphasise them unduly—that have landed up in the dock at the Old Bailey. There is no irrefutable line of wisdom in private enterprise.
The Government have to answer this question: if the service is functioning as well as it is, what demands will private enterprise be able to make upon it if it is to remain absolutely unchanged? What is in it for private enterprise? What will private enterprise get out of it? Those are the questions the Government have to answer. My guess is that in due course they will have to bow to the doctrine correctly and succinctly put forward by my noble friend Lord Callaghan. The Government should remember that this is not a government service; it is a service to the nation and a service to Parliament. The quicker the Government realise that the better.
12.30 p.m.
Lord Greenhill of Harrow: My Lords, like the noble Lord, Lord Wright of Richmond, I shall base my views on my experience in the Diplomatic Service. I served from 1946 until 1973, and that included 10 consecutive years in Whitehall under different governments and contrasting Ministers. I believe we served the country reasonably well. We had respect for our own department and that respect was shared by our foreign friends, and indeed some of our enemies.
For the 20 years which followed I was involved with several well-known commercial companies. I did not come away from them with the impression that they recruited their staffs more successfully than we did, or inspired them with more loyalty to their employers. But all that is in the past. Times are fast changing in 1996. We are coming up to an election and whichever party wins will soon face a different country and a different world. Some of the changes cannot now be clearly foreseen. No doubt the Scott Report will—rightly or wrongly—suggest modifications on how departments should be managed. But much more important than the Scott Report is the matter of how our relations with the European Union may soon compel our Government to change. Parliament may become increasingly unrecognisable. Surely we should not in 1996 make the changes now being proposed by the Government. Would it not be more sensible to await the election result and the outcome of our relations and negotiations with Europe?
12.32 p.m.
Baroness Park of Monmouth: My Lords, if the Recruitment and Assessment Services were already a small business, and not, as hitherto, part of an increasingly federal, fragmented public service, and I were a part-time director, I would no doubt be pleased by the business plan, the accounts, the statistics and graphs, and the claims of increased market penetration, higher turnover and competitiveness in a dynamic market place. But we are talking about what has hitherto been a vital part of the public service. Behind all the jargon it has been doing well by any standard. Why sell it, and—I should like to know—for how much?
A major section of the report is headed "Customer partnership in a changing market place". We are told that the emphasis—that is, on the nature of the skills being recruited—
"has moved from the traditional generalist policy maker towards more specialist technical and managerial competencies. Indeed, encouraging this trend was one of the factors behind the increased delegation of recruitment responsibility".
But, we are not talking about the business sector; we are talking about how the public service for the next generation will be chosen, and on what criteria. It seems abundantly clear that the move is being made solely to save—and no doubt to make, temporarily—money. The dogma that business methods are best and that management skills and value for money count for more than leadership, rigour, and experience of government, will in due course drive out all the best civil servants from the great departments of state. It will effectively discourage the best graduates from even applying for,

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let alone entering, a career full of short termism, bereft of tradition and leadership, where the only inducement to join will be that it may be useful to have five years in Whitehall on one's CV. Constant mobility throughout the service will destroy experience.
Undergraduates used to say to me that if the public service no longer meant tradition and service but was just like joining Marks & Spencer, then they might as well join Marks & Spencer straight away and get higher pay for doing it. The fragmentation of a once coherent and admired public service into agencies, and now into fully privatised bodies, has already led to the entry at the level of heads of agencies of a sizeable number of no doubt otherwise efficient men and women straight from the world of business and the City with no training or experience in the difficult art of government, or knowledge of how Whitehall works.
The White Paper Taking Forward Continuity and Change forecast the loss to the public service of its most enterprising members—those who should be the permanent secretaries of the future. The Treasury and Civil Service Committee, when considering the paper feared that,
"the value of agency status as an instrument for improving efficiency and quality of service would be considerably reduced if agency status came to be seen principally as a staging post to the private sector".
The Government replied,
"Where there is an intention that an agency should in due course move out of the public sector, this is made clear at the outset".
That is news to me. The Government continued,
"Further, the key tests are whether the function or activity is appropriate to government and which approach is assessed to provide best value for money".
I submit that those two objectives are in any case contradictory. I know that some of the best members of some of these agencies are thinking in just that way at a personal level. They take the view that as they cannot be public servants in the old tradition, why should they not instead take lucrative consultancies? That is what they may well do. So who, then, will be left to do the vital work of recruitment in those splendid new privatised agencies?
No one doubts that there is room for reform and new thinking. There is room for that in even the best organisations. But the great casualties, which the Government seem unable to recognise, are quality, morale, commitment and the cohesion of the service. If we must talk about "customers", then the "customers", the public, will be the losers. Our Civil Service has been the envy of the world. It is career based and highly professional. Must it be turned into several corner grocery shops?
I end with a special plea to the Government who seem to have a natural talent for giving away the best clothes to the Oxfam shop and then being unable to get them back, as one cannot train a generation of experienced and devoted civil servants overnight. Once they are gone, they are gone. I ask my noble friend the Minister; please do not also decide—as I understand the Government may be thinking of doing—to abolish the Civil Service College. That, too, is one of the jewels in
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the crown. Let no one suppose that this will be the end. The Bett Report, which is hovering in the wings, will probably have us selling service recruitment, on the basis of performance related pay, to a really efficient head hunting firm based in, say, Singapore, and recruiting through the Internet.
12.38 p.m.
Lord Henderson of Brompton: My Lords, I believe the best service I can render to the House at this moment is to be brief, and I shall be brief. I have one essential contribution to make. So far no one has mentioned the fact that the Clerks of both Houses are recruited through RAS. They are extremely grateful for the fact that the recruitment base on which to form the final judgment before they are admitted to the service of both Houses is believed to be roughly, but not entirely, the exact equivalent of service in the Civil Service.
I believe that we are a small recruitment. In the case of the House of Lords it is not more than an average of one a year and in the House of Commons perhaps two or three a year. But small though we are, we might have been expected to have been consulted. Of course, I may say that we were not and we much regret that. We have, indeed, some fears for the future because it has been mentioned by the noble Lord, Lord Kennet, for instance, that the new organisation might be taken over with inconceivable consequences to the public service. We do not like the thought of that either.
I have only two or three minor comments to make because most of what I would otherwise have said has already been mentioned in prior speeches. Speaking for the smaller departments—like the two Houses but there are other small departments—I wonder whether the service will suffer when there is no profit motive in those smaller departments, when the profit motive may become more dominant in the privatised RAS. In particular, I wonder what would happen, if as I suppose might happen, some large departments of state choose to opt out from the RAS fast-stream competition and run their own. Where will the smaller departments be left? Can it really be said that they can realistically run their own competitions? They are far too small for that; faced with paying higher charges from commercial organisations for a smaller competition with fewer candidates.
I am also worried about the process of placing candidates being subject to the privatised RAS. It is a potential problem. If the candidates have more than one option—it quite often happens that the candidates in RAS put, as one of their options, service to one or other of the two Houses and service in Civil Service departments—how will that be resolved? I feel it could not be less than deleterious to the process of recruitment which currently exists.
12.42 p.m.
Lord Acton: My Lords, after Zimbabwean independence in 1980 I was for some years a civil servant in that country. Masses of Rhodesian civil servants had left. Thus I found myself part of a largely new and untested civil service. Because of that

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experience I have a special admiration for the RAS. I particularly respect its work of selecting the fast-stream entry, thereby ensuring continuity and a future leadership of outstanding calibre.
In my enthusiasm for the RAS I am far from being a single, lonely former Commonwealth civil servant. All over the globe a great band of public servants regard the organisation as exemplary.
Since 1993 delegations of civil servants, and sometimes Ministers, from 24 countries have visited the RAS in Whitehall and Basingstoke. From Australia to Zimbabwe and from China to Chile they have come. Representatives from vast countries like India and the United States have come. Representatives from countries that have recently seen dramatic change like South Africa, Hungary and Poland have come. Delegations from all five continents have visited the RAS to look, to listen, and to learn. Truly the organisation is an international beacon of excellence. And now the Government seek to privatise it.
The directors of the RAS in their first annual report in 1992 defined its role:
"We offer a broad range of services in the following areas—recruitment, consultancy and advice, training. These services are provided primarily to government departments, executive agencies and the Civil Service Commissioners. We can also offer them to other statutory and public bodies, provided this does not detract from the needs of our primary customers".
Those last words,
"provided this does not detract from the needs of our primary customers",
are crucial. Privatisation of the RAS would kill that policy. The new RAS's new objective would be to maximise profits in any market it could. The needs of government departments would cease to be paramount and the Civil Service would suffer grievously.
I have studied the Answers to Parliamentary Questions about this matter, and I listened to the Minister today. I am driven to the conclusion that the Government, without thinking through the consequences, mean to privatise the RAS out of a blind faith in the doctrine of privatisation.
I support the amendment of my noble friend Lord Bancroft because I consider that the plan to privatise the RAS is not the result of thought. Nor is the plan a substitute for thought. It is the negation of thought.
12.45 p.m.
Lord Marlesford: My Lords, I intervene with diffidence very briefly in the gap. I am a fervent believer in privatisation for three reasons: first, to give access to capital markets; secondly, to stop governments interfering with the matter of the organisation being privatised; and thirdly, to attract better people. In my view, none of those reasons applies to this particular proposal. I am well aware that there is sometimes a feeling—we have all seen it in "Yes, Minister"—that Ministers cannot cope with the Civil Service. That itself does not seem to me a good reason. I am very aware that a significant proportion of Ministers in all governments are not up to dealing with the
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Civil Service. That needs remedying, but the remedy is fairly obvious. I say that on the basis of some 33 years observing, and occasionally participating in, the process of government.
Finally, I just say that as a Tory I believe the onus is always for proof in favour of change. I have not heard that proof.
12.46 p.m.
Lord Rippon of Hexham: My Lords, may I also speak briefly in the gap to say I entirely support everything said by the noble Lord, Lord Bancroft, and others. As for relationships between Ministers and civil servants, I recall Harold Macmillan once saying to me, "The Civil Service is a magnificent machine provided you use it." Let us leave well alone.
12.47 p.m.
Baroness Williams of Crosby: My Lords, if the opinion of this House means anything to the Government they must take due note of what has been a remarkable debate, a debate in which, with one exception, from all corners of the House, from Members of every party, and from people with a very wide range of experience of government, of academic life, of the Civil Service and of activities outside government, we have heard virtually a united condemnation of the proposal. I repeat that if the opinion of this House means anything, the Government must reconsider the proposal they are making for the privatisation of the RAS.
We have considered the arguments that might have been deployed. Does the RAS have poor standards? No. The noble Lord, Lord Hunt, and indeed the Minister himself, clearly indicated that its standards are very high. Is there a poor control of costs? No. The annual survey of the RAS, quoted by the noble Baroness, Lady O'Cathain, indicates that costs have been reduced to the lowest level compatible with the service that is carried out. Is the organisation incapable of change? No. In April 1991 the organisation grew out of a decision to make it into a Next Steps agency. It embarked upon a major revolution in recruitment in the Civil Service which all concerned agree went extremely well.
Is it the view of the Select Committee on the Treasury and the Civil Service of another place that this change should be made? No. While that Select Committee accepted the idea of the Next Steps agency its chairman explicitly indicated that that should not be regarded as a threshold to privatisation and in doing so gave the views of an all-party committee. Is it that the staff are discontented? We do not know, because the staff have not been consulted, as an Answer a month ago to a Written Question from my noble friend Lord Bancroft indicated.
I want to discuss the issue of the staff because the major asset of the RAS to be sold to a private bidder is its expertise. I refer to men and women who generally entered the public service because that is what they wanted to do. They found themselves in the OPS—the Office of Public Service—and were informed that they would be forced to join the private purchaser of RAS whether or not they wanted to do so.

565
In answer to questions prompted by the Cabinet Office's news release of 23rd November 1995, in particular, the question of whether civil servants would be able to seek jobs elsewhere in the Civil Service prior to privatisation, the answer was that,
"management will be under an obligation to maintain the viability of RAS in the period before sale, and staff may, in practice, find it difficult to secure this agreement".
Asked whether staff would have any right of return to central government—and I repeat that these are people who believed that they had joined the public service—the Government's answer was no. All staff covered by TUPE should transfer with the business. That is an extraordinary form of coercion, addressed to men and women who have genuinely sought to serve the Government and the country.
Was the view of the assessors, notified at their request to the head of the Civil Service, to the effect that they believed very strongly that there were great dangers in the path being undertaken made widely known to this House? The answer to that question is also no.
So let me ask the noble Earl—I share the respect of this House for him—a question on the issue of staff. If a member of staff genuinely wishes to stay within the Civil Service and not move into a privatised agency, will the conscience and wishes of that member of staff be respected? The second question I want to ask is whether the wall between the recruitment of civil servants and the recruitment of people into the private sector, to which the noble Baroness, Lady O'Cathain, referred so interestingly, will be maintained. Recently I was told that at the University of Cambridge, outside the halls where Ph.D students learn whether they have passed their examination, there is a line-up of private sector employers from the United States offering them jobs on the spot. Is that what we want to see as a result of privatising the RAS?
This is a bridge too far for privatisation. It intrudes into the whole sense of what the public sector is all about. I quote a troubling leader in the Financial Times of only a month ago:
"The case for a permanent Civil Service in place of a Whitehall pact with party nominees is to ensure that Ministers receive sound advice and that the administration is conducted on an ethical basis. There are dangers that senior officials appear to see themselves as proselytisers and not as dispassionate advisers. They are doing Whitehall a grave disservice".
If the Government proceed with this proposal they will be doing not only Whitehall but the whole of this nation a grave disservice.
12.54 p.m.
Lord McIntosh of Haringey: My Lords, we are confronted today with two issues. One is the issue of propriety and the second is the issue of practicality.
On the issue of propriety a number of noble Lords have already made the point that it was improper for such an important announcement as this to be made as an Answer to a Written Question in another place on a Friday rather than with an opportunity for a formal debate.
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However, it is much more improper than that. We have had the benefit of the wisdom and experience of many noble Lords who know about the Civil Service at the highest level and, indeed, about government at its highest level. They have all reiterated that the Civil Service Commissioners are not responsible to individual Ministers, as my noble friend Lord Callaghan said. They are responsible to Parliament and to the Queen. To take away from their responsibilities and their ability to carry out their responsibilities under an Order in Council is utterly improper. So the answer to whether this is a proper procedure must be emphatically no.
Then we turn to the issue of practicality. We have been told by Ministers that there is likely to be no significant benefit to the Treasury. So those who accuse the Government of doing this for money are probably mistaken. We have also been told on numerous occasions, not least by the Minister today, that there is no dissatisfaction with the work of the Recruitment and Assessment Service or its ability to change or to operate effectively under financial constraint.
We have been told at some length that safeguards will be introduced which will distinguish between what the Minister called the operational role of the RAS and the regulatory role, which is the role of the commissioners. That makes clear that this is neither the beginning nor the end of a process. It is not the beginning of a process because the ability of the commissioners to fulfil their obligations under the Order in Council which set them up has already been diminished by the spread of trading agencies, Next Step agencies and quangos. It is fairly clear to those of us who observe these matters that the quality of recruitment and assessment in the agencies, or certainly in the quangos, is well below that which is required of the central Civil Service. It is already happening. It is not something new. The Civil Service Commissioners are being deprived of their ability to do their job. This is a step in the process.
Nor is it the end of the process. If we listen to the arguments of the Minister, as the noble Lord, Lord Wallace, said, every one of the arguments about the distinction between operational and regulatory forces will apply also to the next tier of privatisations which the Government, if they survive, will wish to introduce. The noble Lord referred to the tax service and to the military. The arguments used, which rely on regulation rather than operation, will lead inevitably, if carried to their logical conclusion, to further privatisations at the core of our governmental process.
This proposal is neither proper nor practical.
12.58 p.m.
Earl Howe: My Lords, this has been an interesting and memorable debate. I am grateful to all noble Lords who have spoken. In particular, I should like to thank my noble friend Lady O'Cathain for her supportive speech. That she and I have been lone voices in your Lordships' House is, of course, a disappointment. I confess that it is also not the most

567
comfortable of experiences. As I indicated earlier, I believe that it is entirely natural that noble Lords, and in particular those like the noble Lords, Lord Bancroft, Lord Allen of Abbeydale and Lord Henderson, and many others who have a deep understanding of the Civil Service, should have anxieties when proposals such as these are promulgated in their bald form. I had hoped that in my opening speech I would have persuaded those noble Lords to soft-pedal a little. Despite the suspicion and criticism they have thought fit to articulate, I continue firmly to believe that the Government are deserving of neither, and indeed that the basis of a good part of the criticism rests on fundamental misconceptions. In responding briefly to your Lordships' concerns, I shall endeavour to dispel such confusion.
Perhaps I may first cover one particular point. A few days ago I wrote to a number of noble Lords who I felt might be interested in these issues, inviting them to a meeting attended by senior civil servants as well as Ministers. The noble Lord, Lord Bancroft, was one of the Peers I invited. I did not, for whatever reason, receive a reply from him. But in the event the planned briefing with officials present did not take place. The invitations to noble Lords from all sides of the House were issued in a constructive spirit.
Lord McIntosh of Haringey: My Lords, at 50 minutes' notice.
Earl Howe: My Lords, I am aware that the invitation to the noble Lord, Lord McIntosh, was very much at the last minute; and I apologise to him for that.
Lord McIntosh of Haringey: Then do not say "all sides of the House".
Earl Howe: My Lords, the noble Lord, Lord McIntosh, should have been invited a few days earlier along with other noble Lords and I must express my regrets that he was not.
Baroness Williams of Crosby: My Lords, I thank the noble Earl for giving way. I shall be brief. I, too, was invited at 50 minutes' notice. Can the Government give us an assurance that in future briefing of this kind will be available to people from all parties in the House and not on a very different timescale one side from another?
Earl Howe: My Lords, the invitations that I issued a few days ago were to Peers from all sides of the House. I now acknowledge that that should have been a longer list. I am sorry that the noble Baroness was also one of those affected.
Lord Jenkins of Hillhead: My Lords, I have to add that I was not invited at all.
Earl Howe: My Lords, again I express my regrets to the noble Lord.
Lord Richard: My Lords, I am sorry to pursue this, but the noble Earl says that invitations were sent out to Peers on all sides of the House. So far as I and my
568
Chief Whip know, no one from the Labour Party received any information other than at 50 minutes' notice to my noble friend.
Earl Howe: My Lords, I think lessons have been learnt from this. My intention was that noble Lords, even those as experienced as the noble Lord, Lord Bancroft, might have learnt (as they say in the legal profession) something to their advantage from such a meeting. I regret that we could not have discussed the issues across the table simply in order to allay unnecessary concerns.
There has been a running theme through many of today's contributions. A number of noble Lords voiced concerns, I believe, based on a misunderstanding of the relationship between RAS and the Civil Service Commissioners. RAS was one of the two organisations created in 1991 to replace the Civil Service Commission. The second organisation was the Office of the Civil Service Commissioners, which was established at this time to support the work of the independent commissioners. Here, as many noble Lords have adverted, the history is perhaps worth noting briefly. The origins of the Civil Service Commission will, I am sure, be well known to those noble Lords with an interest in the history. It was in 1854 that the Northcote-Trevelyan Report identified patronage as one of the main causes of the service's then endemic inefficiency and public disrepute. The report recommended the use of open competitive examination to test the merit of those seeking appointment to the Civil Service.
The Civil Service Commission came into being to assist the first Civil Service Commissioners to run examinations and to give approval to the appointment of those duly qualified. The years up to 1920 saw the commissioners' powers extended gradually to cover nearly all appointments. Specially prepared written examinations were at the time supplemented by methods such as interview and assessment centres.
The Civil Service Commission retained its independent existence as a government department for many years. In 1968, on the recommendation of the Fulton Committee Report on the Civil Service, the commission was merged with the personnel management divisions of the Treasury to form the Civil Service Department. The Minister for the Civil Service became responsible for the rules on recruitment to the service. The commissioners were responsible for advising the Minister on those rules.
By 1982, the commissioners had delegated to departments responsibility for recruitment to most junior Civil Service posts. However, the commissioners retained responsibility for the selection of middle and senior level staff representing about 15 per cent. of the Civil Service.
In 1991, new Orders in Council extended departments' and agencies' responsibilities to over 95 per cent. of recruitment. However, all recruitment to the Civil Service, whoever carried it out, still remained subject to the Minister for the Civil Service's rules on selection. As I mentioned in my opening speech, those rules require selection on merit through fair and open

569
competition. I stress that RAS and the Office of the Civil Service Commissioners were established as two discrete, separate organisations to replace the Civil Service Commission.
Further changes to the Orders in Council last year returned to the commissioners the responsibility for interpreting the key principles of selection based on merit through fair and open competition and completed the process of devolving responsibility to departments. The commissioners now oversee only the most senior appointments.
The criticisms levelled by some noble Lords appear to conflate RAS's role as a recruitment agency performing an operational role acting for departments with the regulatory role of the Civil Service Commissioners. Those roles were once combined in the Civil Service Commission. As I said, they are now quite separate.
The noble Lords, Lord Callaghan and Lord Hunt of Tanworth, complained that there had been insufficient discussion of this proposal, which I believe they described as historic. This is, I acknowledge, an important change. But I think that it is stretching the language a little far to describe it as historic. The rules and responsibilities for Civil Service selection will not be changed. The Government's commitment to preserving Civil Service integrity is absolute, and I have explained how we expect to achieve this. Customers and the Office of the Civil Service Commissioners have been closely consulted on their requirements in the work leading to the contracts. They will also be closely involved in the selection of the new owner.
However, let me say this in response to your Lordships' concerns about the way in which the proposal was announced. Noble Lords asked me in Oral Questions on 15th February why the announcement had not also been made in your Lordships' House at the same time as in another place. As the House will know, many announcements are made only in another place. But in view of your Lordships' particular interest in the Civil Service, the Government accept that the announcement should also have been made in your Lordships' House. That it was not is something I regret.
There was another theme in many speeches. Some noble Lords, including the noble Lord, Lord Callaghan, and the noble Lord, Lord Jenkins, saw fit to accuse the Government of arrogance and an unreasoning adherence to dogma. I find that line of argument disappointing. In fact, I find it difficult to take seriously. In my opening speech I endeavoured to show not only that there is a compelling rationale for privatising RAS but that now is the right time to act on it.
However, I will say this. At the heart of this debate is a philosophical divide—a divide between those who believe that when we look at the boundaries and the spread of the state owned sector there should be a strong, indeed a natural, presumption, in favour of the
570
status quo. There are those of us on this side of the House who believe that state ownership is a dead hand; that the size of the public sector is too large; that if there is no need for a business enterprise to be in the public sector then, allowing for proper safeguards, it should not be there; and that the success of past privatisation speaks for itself. To that extent, this is an issue of principle.
But each case for privatisation has to be examined on its merits. In RAS we have an enterprise with a front rank expertise in graduate recruitment. It is operational and administrative in nature. The standards to which it is required to operate are not self generated; they are imposed from outside by the Civil Service Commissioners and by customers. RAS cannot spread its cost base as a normal business might do because it is constrained from selling into wider markets. It cannot raise capital, it cannot spend or invest without close Treasury scrutiny and approval.
I say to my noble friend Lord Peyton that that is not a criticism of the Treasury. As he knows well, if you believe, as the Government do, that public spending and inflation need to be controlled, it is necessary to have rules in place which ensure that the disciplines are respected. I say to the noble Lord, Lord Bruce, that it is not fair to allow a state-owned business to compete with the private sector while enjoying the guarantee of the taxpayer. The choice with a state-owned business is to live with the constraints—and sometimes that is the right course—or to look at other ways of delivering the same service. That is the answer to noble Lords who ask "Why are the Government doing this?" The prospect before us with RAS is to remove the constraints, to allow RAS to seek better economies of scale by broadening its customer base, to allow it to hone its skills in the private sector and thereby to offer better service and better value for money to the customers it serves. That is not a criticism of its performance now, it simply underscores the constraints with which it now has to live.
A number of noble Lords appear to accuse the Government of a concerted attack on the Civil Service. Nothing could be further from reality. I do not believe that there is a Minister or former Minister who has not had cause to appreciate the integrity, impartiality and professionalism of our Civil Service and to understand the pivotal role that the Civil Service plays in our national life. However, governments have a duty to protect the interests of the taxpayer and to ensure that public services are delivered effectively. To fulfil that policy involves a process which inevitably leads to anxieties among the civil servants most closely affected. The Government take those anxieties seriously. But to argue that government policy is in some way anti-Civil Service is nonsense. Still less is it credible to argue that the privatisation of a self-contained business like RAS can be prayed in aid of that view.
The noble Lord, Lord Jenkins, expressed the opinion that the Government have reduced the attractiveness of the Civil Service as a career. That is an odd observation because applications to join the Civil Service have generally increased significantly in

571
recent years. The noble Lords, Lord Bancroft and Lord Allen of Abbeydale, referred to the treatment of the RAS staff. The staff of RAS are being kept informed of progress through regular staff meetings, information bulletins and such communications. The acting chief executive and senior managers will work closely with the Cabinet Office's financial and legal advisers to ensure that the business is presented for sale in the most favourable light. The Government fully recognise that this is an unsettling time for the staff of RAS. We attach great importance to ensuring that staff are treated fairly and that their rights are fully respected in the process.
The noble Lord, Lord Henderson, referred to the House of Lords and House of Commons Clerks. As a matter of fact, I understand that the views of those responsible for the Clerks in both Houses have been sought and that arrangements that take into account their requirements are being drawn up.
The noble Baroness, Lady Williams, asked whether staff would be able to move ahead of the sale. Staff will be able to apply for other jobs within the Civil Service, subject, as now, to the agreement of the management that they can be released. RAS managers will consider each case sympathetically on its merits, but they will need to maintain the viability of RAS ahead of the sale. To date, no application has been refused.
The noble Lord, Lord Bruce, asked what advice was sought from Messrs. Coopers & Lybrand. Coopers & Lybrand were asked to advise on the feasibility of privatising RAS. In particular, they were asked to advise on the likely extent of interest from purchasers, who those purchasers might be and a possible timetable for privatisation. It is a private document because much of the report covers commercially confidential information.
The noble Lord, Lord Bancroft, indicated that all large PLCs retain graduate recruitment in-house. That is less and less the case. The point is significant. There is an emerging trend in the market for placing high calibre graduate recruitment in the hands of quality recruitment firms. A number of top companies have begun to do that and we are confident that it can be done with the Civil Service in a way which preserves and enhances the quality of selection procedures and does not erode them.
The noble Lord, Lord Bancroft, said that he felt that the timetable was too fast. I believe that it is important not to extend for too long the period of uncertainty for staff and customers. However, I have already assured your Lordships that speed will not be at the expense of quality. Customer departments have agreed that a five-year contract is likely at best to provide the services required for most fast-stream recruitment. Bids will be invited to purchase RAS and to price a contract to cover fast-stream recruitment. That contract is expected to cover a five-year period, although that is for negotiation.
The noble Lord, Lord Kennet, asked what protection there might be against takeovers of the new RAS. The fast-stream contract will entitle the Government
572
to withdraw the contract in such an event; hence, only a subsequent new owner acceptable to the Government would wish to proceed with such a takeover. It is obvious that any new owner would wish to ensure that the main customers were fully satisfied.
The noble Lord, Lord Allen of Abbeydale, expressed his opinion that the prime aim of the new company would be to make a profit. He thought that that was inappropriate. That is an extraordinary statement. The new company will need to ensure that it satisfies its customers through providing good services. Without such satisfied customers, the company will not have a secure basis for making a profit. The two are opposite sides of the same coin.
The noble Lord, Lord Moore, said that he thought that privatisation would damage the quality of the Civil Service. Let me simply underline to him that RAS's customers, the departments, are keen to ensure that the quality of Civil Service intake is maintained. It has to be. They will be closely involved throughout the privatisation.
A key criterion on selection of the new owner will be its understanding of the requirements of the Civil Service. All recruitment carried out on behalf of the Civil Service customers will need to meet the requirements of the Commissioners' Recruitment Code. The new owner will have every interest in maintaining its capability in the area.
In a similar vein, the noble Lord, Lord Bancroft, voiced the fear that freedom to sell in wider markets would mean poorer service to existing customers. The contractual terms will carefully define the levels of service to be provided for existing customers. Developing new services for customers and so on will inevitably bring benefits to Civil Service customers. We are confident that the new owner will build on, and not diminish, the reputation of RAS for excellence.
The noble Lord, Lord Jenkins, asked me what would happen if RAS were to lose the contract. I hope he did not think me discourteous for not answering him earlier, but I felt it was perhaps more appropriate to do so at this point. If customer departments had concerns about the performance of the new RAS, the first move would be to ensure that new RAS took steps to solve any problems. However, in the unlikely event that significant problems persisted, then a new competition for the contract would need to be held. Experience of contracting out government services in this and other countries shows that careful initial selection of private sector contractors ensures that continued good service is provided. Private sector providers are keenly interested in continuity, to provide the quality of service sought by customers.
Why is it necessary and important, as the noble Lord, Lord Kennet, asked, for RAS to compete in the private sector? RAS will benefit from the freedom to use its expertise in new markets, subject to the important controls that I have described. It has already demonstrated its ability to win new customers within the wider public sector. Full freedom to compete in

573
the private sector will allow it to build on its success as a centre of excellence and further develop its services to the benefit of all its customers. We are confident too that with this freedom we shall be able to secure best value for money for Civil Service customers and for the taxpayer. That is the duty of government. The Government are committed to ensuring that the sale is conducted on a basis that not only maintains the standing of RAS as a high quality recruitment agency, but also guarantees that the quality and integrity of the recruitment that it carries out is maintained.
I very much hope that the noble Lord, Lord Bancroft, will not press his amendment. I believe that, contrary to what he said, I have done justice to his position. I have to say that I do not believe that he has done justice to mine. I very much hope that he will reflect.
1.20 p.m.
Lord Bancroft: My Lords, in concluding the debate, I once again promise to be brief. I am immensely grateful to all noble Lords who have spoken on an historic occasion, particularly those who have done so at considerable personal inconvenience. There were a number of other Peers, and a bead-roll of extremely well known Peers in public affairs, who would otherwise have spoken. I could read out their names, but I shall not do so.
The noble Earl sought to sum up the debate and I congratulate him on his temerity. Were I to emulate him, it would be with a markedly different perspective. But time does not permit. We are here discussing a matter of high policy and, with deep respect to the noble Earl and the noble Baroness, not a mechanical weeding business.
Perhaps I may say a few very brief words about the business of the briefing meeting. The Government seem to have panicked (if I may use that verb) at the last moment when they saw the weight of the list of speakers. I was kindly invited to a briefing meeting which was also to be attended by the noble Lord, Lord Allen of Abbeydale, and three Conservatives. I replied to the letter on Wednesday—though it did not reach me until Thursday—because I had been told of its contents. I am very sorry that the noble Earl did not receive my reply. It seemed to me inappropriate that I should go to a briefing meeting that evening only hours before the debate, as the matter had been in the public domain and the parliamentary domain since November last year.
I noted very carefully the noble Earl's extremely gallant remarks. I had hoped that he would offer to have the matter reconsidered by Ministers and that the results of that reconsideration would be brought back to Parliament for debate. However, he has not done so.
Let me be frank with the House. At this point in my life there are very few matters, apart from my family, about which I can feel passionately. One of them is the future integrity of the public service and
574
in particular the Civil Service. Many of us devoted our lives to it. In the absence of any assurances of reconsideration or of parliamentary debate, I have no alternative but to divide the House.
1.23 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 124; Not-Contents, 64.

Division No. 1

CONTENTS

Ackner, L.

Jenkins of Putney, L.

Acton, L.

Judd, L.

Addington, L.

Kennet, L.

Allen of Abbeydale, L. [Teller.]

Kilbracken, L.

Ampthill, L.

Lauderdale, E

Attlee, E

Lawrence, L.

Avebury, L.

Lester of Herne Hill, L.

Bancroft, L. [Teller.]

Listowel, E

Bath, M.

Longford, E.

Beaumont of Whitley, L.

McIntosh of Haringey, L.

Belhaven and Stenton, L.

Mackie of Benshie, L

Berkeley, L.

McNair, L.

Blackstone, B.

McNally, L.

Borrie, L.

Marlesford, L.

Boyd-Carpenter, L.

Marsh, L.

Bridges, L.

Mayhew, L.

Brightman, L.

Meston, L.

Broadbridge, L.

Milner of Leeds, L.

Bruce of Donington, L.

Mishcon, L.

Callaghan of Cardiff, L.

Molloy, L.

Carew, L.

Monkswell, L.

Carmichael of Kelvingrove, L.

Monteagle of Brandon, L.

Chalfont, L.

Moore of Wolvercote, L.

Chorley, L.

Morris of Castle Morris, L.

Cledwyn of Penrhos, L.

Ogmore, L.

Clinton-Davis, L.

Orr-Ewing, L.

Craigavon, V.

Park of Monmouth, B.

Croham, L.

Peyton of Yeovil, L.

Darcy (de Knayth), B.

Pike, B.

Dean of Thornton-le-Fylde, B.

Prys-Davies, L.

Desai, L.

Redesdale, L.

Donaldson of Kingsbridge, L.

Richard, L.

Donoughue, L.

Rippon of Hexham, L.

Dormand of Easington, L.

Rochester, L.

Dubs, L.

Rodgers of Quarry Bank, L.

Ezra, L.

Roll of Ipsden, L.

Falkender, B.

Russell, E

Falkland, V.

St. John of Bletso, L.

Freyberg, L.

Seear, B.

Gallacher, L.

Serota, B.

Geraint, L

Shannon, E

Gladwin of Clee, L.

Shaughnessy, L.

Gladwyn, L.

Simon, V.

Graham of Edmonton, L.

Simon of Glaisdale, L.

Greenhill of Harrow, L.

Stedman, B.

Halsbury, E

Strabolgi, L.

Hamwee, B.

Strange, B.

Harris of Greenwich, L.

Tenby, V.

Harrowby, E.

Thomas of Walliswood, B.

Haskel, L.

Thomson of Monifieth, L.

Hayman, B.

Thurlow, L.

Henderson of Brompton, L.

Tope, L.

Holderness, L.

Tordoff, L.

Holme of Cheltenham, L.

Wallace of Saltaire, L.

Hooson, L.

Walpole, L.

Hunt of Tanworth, L.

Weatherill, L.

Jay of Paddington, B.

Wedderburn of Charlton, L.

Jenkins of Hillhead, L.

White, B.

575

Wigoder, L.

Williams of Mostyn, L.

Wilberforce, L.

Winchilsea and Nottingham, E.

Williams of Crosby, B.

Winston, L.

Williams of Elvel, L.

Wright of Richmond, L.

NOT-CONTENTS

Addison, V.

Leigh, L.

Ailsa, M.

Liverpool, E.

Alexander of Tunis, E.

Long, V. [Teller.]

Alexander of Weedon, L.

Lucas, L.

Annaly, L.

Lucas of Chilworth, L.

Archer of Weston-Super-Mare, L.

McColl of Dulwich, L.

Bethell, L.

Mackay of Ardbrecknish, L

Blatch, B.

Mackay of Clashfern, L. [Lord Chancellor.]

Brougham and Vaux, L.

Cadman, L.

Mancroft, L.

Chalker of Wallasey, B.

Mersey, V.

Clanwilliam, E.

Miller of Hendon, B.

Coleraine, L.

Milverton, L.

Colwyn, L.

Montgomery of Alamein, V.

Courtown, E.

Munster, E.

Cranborne, V. [Lord Privy Seal.]

Noel-Buxton, L.

Cumberlege, B.

Northesk, E.

De Freyne, L.

O'Cathain, B.

Oxfuird, V.

Elles, B.

Pender, L.

Elton, L.

Piatt of Writtle, B.

Ferrers, E.

Rawlings, B.

Finsberg, L.

Rennell, L

Geddes, L.

Renwick, L

Goschen, V.

Seccombe, B.

Harding of Petherton, L.

Selborne, E.

Hemphill, L.

Sterling of Plaistow, L.

Hogg, B.

Strathclyde, L. [Teller.]

HolmPatrick, L.

Swansea, L.

Howe, E.

Swinfen, L.

Inglewood, L.

Teviot, L.

Ironside, L.

Trumpington, B.

Kenilworth, L.

Vivian, L

Resolved in the affirmative, and amendment agreed to accordingly.
The Lord Chancellor: My Lords, the Question is that the original Motion, as amended, be agreed to.
On Question, Motion, as amended, agreed to.
Lord Richard: My Lords, before we proceed to the next business, in view of the vote that has just taken place and the firm expression of the view of this House, will the Government now consider whether this matter should be referred to a Select Committee of either this House or of Parliament? As I understand it, that has happened in the case of changes to the Civil Service constitution and working powers on every other single occasion that this issue has been before Parliament. Will the Leader of the House consider that view?
The Lord Privy Seal (Viscount Cranborne): My Lords, I can assure the House that the Government will take very seriously the expression of opinion that the House gave this morning. We will look at the implications of the vote. We will undertake to read with care the criticisms voiced as well as the matters raised on the other side. We undertake also to come back to the House when we have considered the matter and advise your Lordships of the conclusions that the Government have reached.

Defamation Bill [H.L.]
1.32 p.m.
The Lord Chancellor: My Lords, I beg to move that this Bill be now read a second time.
This is the third of four Bills I have introduced this Session to give effect to recommendations for law reform. Unlike the other three Bills, however, this is not one which has been put forward as a result of the Law Commission's work. It is the result of three separate consultation exercises by my department and additional consultations in Scotland and Northern Ireland. In the most recent consultation, I published a draft Bill inviting views on the detailed drafting, structure and presentation of legislation to implement important reforms to defamation law and procedure, which the Government had already announced. The many constructive responses helped us to produce the present Defamation Bill for introduction in a greatly improved form. I would like to express my gratitude to those who have contributed to this useful process, and I am sure that noble Lords would wish to join me in doing so.
Full Notes on Clauses are available for any Members of the House who may wish to examine the provisions in greater detail. Fuller explanations of the current law and the difficulties which gave rise to the proposed changes may be found in the published consultation documents. I should mention at the outset that the reforms in this Bill derive from three distinct although connected initiatives. A very substantial part of the Bill owes its origins to recommendations made by the working group set up under the chairmanship of Lord Justice Neill, in response to my invitation to the Supreme Court Procedure Committee to examine the rules and practice for pleadings in defamation cases, and to propose reforms. The working group's report on practice and procedure in defamation was published for consultation in July 1991. I would like to record my gratitude to Lord Justice Neill and all the members of the group for all their hard work, both in producing their report in the first place and then in assisting us to produce a Bill to implement the reforms. Their work continued long after the original production of the report.
I should also like to record my thanks to my noble and learned friend Lord Hoffmann who made to me the important suggestion that a special regime should he set up for the summary hearing of defamation claims. That is now embodied in Clauses 8 to 11 of the Bill, and I am indebted to him both for the suggestion and his help in perfecting those clauses. Again, I am sure that noble Lords would wish to endorse those sentiments. It is particularly fitting that my noble and learned friend is to make his maiden speech in this debate. To that and the maiden speech of the noble Lord, Lord Grantley, we look forward with great expectation.
The other reform proposal, now in Clause 1 of the Bill, is the result of my consultation paper on The Defence of Innocent Dissemination which was published in July 1990. Although all the reforms arose

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originally out of my review of defamation law in England and Wales, much of the substantive law is broadly similar in both Scotland and Northern Ireland, and there are some similarities in the procedures. As a result of those consultations last year, the changes (or corresponding changes) will apply in Northern Ireland, and many of the changes will also apply in Scotland.
That is the background to the Bill, and with your Lordships' leave, I propose to explain its provisions in fairly broad terms.
Clause 1 is a new statutory defence which will supersede the common law defence of innocent dissemination, which has always been subject to some uncertainty, particularly as to who could rely on the defence. It concentrates on the concept of responsibility for publication. The new defence will not be available to authors, editors or publishers (in the commercial sense) of defamatory material. But it will be available to others whose work may in some way have contributed to the publication of defamatory material which someone else has chosen to publish unless they knowingly took part in producing a defamatory publication, or had reason to believe that they were doing so.
Clauses 2 to 4 also provide a new defence to replace an existing defence which does not now fulfil the purpose for which it was created. The present statutory defence of unintentional defamation is cumbersome, and very little used. The Neill Committee recommended that it should be replaced by a new defence which would be more streamlined but which would only be available to a defendant who was willing to pay compensation assessed by a judge, as well as publishing an appropriate correction and apology. That is the foundation of Clauses 2 to 4.
Clauses 5 and 6 reduce the limitation period, both in England and Wales and in Northern Ireland, in actions for libel or slander and in actions for malicious falsehood. One year is the time within which most actions are begun, and need to be, if the proceedings are to minimise damage to the plaintiff's reputation. But the court will have a discretion to disapply the strict limitation period, in favour of a plaintiff who had a good reason not to proceed within it, balancing the prejudice which the defendant will suffer if it does proceed against the prejudice which the plaintiff will suffer if it does not.
Clause 7 is part of a lesser reform, designed to eradicate delaying tactics by parties going through the unnecessary stage of applying for rulings as to meanings which statements are "arguably" capable of bearing.
Clauses 8 to 11 bring defamation proceedings into line with most other civil proceedings in providing powers of summary disposal. These clauses introduce a new fast-track procedure which will provide a prompt and inexpensive remedy in less serious defamation cases.
Clauses 8 to 11 give judges new powers enabling them to consider the strength of the claim and the defences raised, and to dispose of the claim summarily in favour of either party. The summary relief which the judge will have power to grant includes damages up to
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£10,000, a declaration that the statement was false and defamatory, and an order requiring the defendant to publish a correction and apology, which may take the form of an approved summary of the judgment. They also provide a substructure for the special rules which will be needed in the context of summary disposal, so that every defamation claim will come before the judge at an early stage, in order that he should consider whether it is suitable for summary disposal.
Clause 12 changes the rule that in an action for libel or slander in which the question whether a person did or did not commit a criminal offence is relevant to an issue arising in the action, proof of his conviction is conclusive evidence that he committed the offence. Plaintiffs in defamation proceedings will no longer enjoy the artificial advantage of the rightness of someone else's conviction being unchallengeable.
Clause 13 prevents the plaintiff from recovering damages for injury to his reputation beyond what he would be entitled to if everything likely to affect his reputation were public knowledge. The defendant will now be allowed to lead and rely on evidence of conduct which, if known, would affect the plaintiff's reputation.
Clauses 14 and 15, with Schedule 1, bring up to date existing statutory privileges. The new privilege under Clause 15—for certain reports of legislative, judicial and other public proceedings—will apply to publications in general, not only newspapers and periodicals, and will extend to a wider category of reports, in particular recognising the need to give reports of proceedings of European institutions protection equivalent to that already given to those in this country. Clauses 16 to 20 contain general supplementary provisions.
The Bill represents a useful measure of law reform. It will, I believe, simplify this complex area of law and procedure and fit well with current developments in the conduct of civil litigation generally. I have the greatest pleasure in commending the Bill to the House.
Before I sit down, I should say that long ago I undertook a commitment to address the magistrates in the Isle of Man this evening. Because of the rearrangement of this business today, it has started rather later than I had expected. Therefore I may be denied the pleasure of hearing the whole of the debate. I shall stay for as long as I can consistent with the necessary travel arrangements, but I hope your Lordships will excuse me if I go. It is not for any want of interest in the proceedings but a desire not to break an engagement which I have undertaken to the magistrates who give so much of their time so willingly to serve the cause of justice.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
1.42 p.m.
Lord Williams of Mostyn: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his exposition of the principles which underlie the Bill. Perhaps I may on a personal

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basis echo his praise for Lord Justice Neill, who is held in such affection and high regard by everyone who practises in the field of defamation.
I have two interests to declare. The first is professional. Almost all the work I do at the Bar is libel, slander and media-related, for plaintiffs and defendants. Perhaps that declaration can subsist throughout the remaining stages of the Bill. I have a personal interest to declare; namely, my interest in hearing the maiden speeches of the noble and learned Lord, Lord Hoffmann, and the noble Lord, Lord Grantley. It is not often—this may be a unique occasion—that an advocate can somewhat presumptuously look forward to the maiden speech of a noble and learned Lord, that Lord, in my case, having been on the tribunal as Mr. Justice Hoffmann when I appeared before him, and Lord Justice Hoffmann as he later became. I look forward to his speech with particular interest.
A number of diverse interests are involved here and there cannot be a perfect reconciliation of them. The first is the right to privacy in personal and family life. That is insufficiently regarded, if at all, in our law. Its protection under the European Convention on Human Rights finds no adequate reflection in domestic law. The second is the right to freedom of speech and expression. The third is the English vice—not the usual one but the more important one—of obsessive secrecy for no useful purpose. One recalls the recent debate in your Lordships' House on Lord Justice Scott's Report and reflects how much a freedom of information Act is needed in this country.
The fourth is the public's right to know. We are lamentably lacking in any details of information, except on the occasion of the report to which I referred a moment ago, of what those do who are set in authority above us. The fifth is the inequality of arms in this area of law. There is no legal aid for libel or slander though, curiously, by an anomaly, there is for malicious falsehood. Private people who are wounded and defamed act, by and large, at their own expense except for those who have a union or professional association to support them. It is worth bearing in mind that defendants in this field are normally financially powerful corporations.
Overarching all of this is something which I suggest is too easily forgotten and overlooked, namely, the sense of the very bitter and continuing wound that is caused to a man or woman who is wrongly defamed. Often that wound is much grosser and graver to the plaintiff in question than a physical injury.
The three themes that should have underpinned any review of legislation are privacy, defamation and freedom of information. The last Defamation Act was as long ago as 1952 and it is a matter of regret, though not a partisan point, that an opportunity has been lost on this occasion not to look at the whole spectrum which I have endeavoured to describe. I appreciate that the noble Lord, Lord Inglewood, is to reply for the Government. It might be helpful if he were able to indicate whether the Government have a concluded view about the public figure defence, usually known as the Sullivan defence, which is current in the United States
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and in other jurisdictions, such as the Indian jurisdiction. If a person is in public life and is properly described as a public figure, he or she cannot succeed in defamation unless malice can be proved and demonstrated against the defendant. I have personal reservations about that defence. It might be interesting to know what thinking, if any, the Government have on that.
One or two specific questions trouble me. The first is the reduction of the limitation period from three years to one. Some plaintiffs suffer particular constraints in this regard. I take the example of a doctor who is defamed. Very often if a complaint is made there will be an internal national health or national health trust inquiry. Notoriously, those inquiries very often last longer than a year. I take the example of a prison officer or a police officer. It has become the vogue almost automatically to make complaints against them. Those internal disciplinary proceedings often take more than a year. I cite the position of a police officer who may have been defamed but still has to give evidence in a criminal case. He will be subject to the collateral attack that he has a financial interest in the outcome of the criminal proceedings if he sues within one year.
There will be no incentive to defendants, who, I repeat, are very often large powerful organisations, to retain documents. That will fall into account when the judge decides whether the leave can be extended. I take the point made by the noble and learned Lord the Lord Chancellor that there is a discretion to extend the one-year period. But I would suggest that that discretion is a poor alternative for a plaintiff or a potential plaintiff who is left in limbo. He or she simply does not know what his or her legal position may be in terms of effective remedy when the 12 months has expired. After all, if I leave your Lordships' House quite soon and I am run over on the pavement by a newspaper delivery van and my leg is broken, I shall have three years in which to take action. If my reputation is ruined by the same newspaper this evening, I shall have only the one year. I do not myself understand the rational underpinning for the difference.
The summary disposal procedure, of which the noble and learned Lord, Lord Hoffmann, is the effective progenitor, has value. On subsequent stages of this Bill I shall wish to examine how exactly it is to work. For instance, is the judge to come to his conclusion only after all the witness statements are in? They are required to be exchanged now in defamation as in other civil proceedings. Will affidavits be necessary? Will the process of discovery have taken place? These are questions of detail and not principle. In principle, anything that makes the law of defamation simpler, by and large, is to be approved.
The noble and learned Lord the Lord Chancellor mentioned evidence of previous convictions in Clause 12. Evidence of previous criminal convictions, if this Bill goes through in its present form, is not to be conclusive of the commission of crime, except in the plaintiff's case. Why should it be limited to the plaintiff? A doctor sues about a defamatory allegation; the defendant or a witness has substantial previous criminal convictions. Why should they not be conclusive of the guilt of the party or the witness? One will have the

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co-lateral re-litigation of the criminal matters very often with the plaintiff hobbled because he or she will not have access to the material which demonstrated beyond reasonable doubt to a jury that the person in question had committed a criminal offence. I find the reasoning somewhat shadowy and difficult to follow.
How is Clause 13 to work in practice? I suggest that plainly this evidence of other conduct should be admissible only after the question of liability has been decided, otherwise one will have an elision between the question of liability and that of bad reputation in collateral areas. I am troubled by that. A Bill which is intended, so it is said, to make defamation proceedings simpler, easier and less expensive, is liable to degenerate into very lengthy, complicated hearings about other matters which do not go to the question in issue. For instance, if a professional or lay person, or any individual, has an allegation of financial dishonesty made against him or her, why should it be relevant that sexual impropriety in his or her life should be put before the jury to mitigate the damages? I do not believe that the answer is necessarily plain on the face of the Bill and it is something to which we need to refer in due course.
I appreciate that it is Friday and therefore brevity, as well as abstinence, is appropriate and therefore I shall finish. Clause 20(2) states,
"Nothing in this Act affects the law relating to criminal libel".
The only question that I ask is this: in 1996, is criminal libel appropriate to be kept as part of our law in any circumstance? Most commentators would think that it had long outlived its usefulness.
I welcome the principle that defamation should be made simpler in its trial, easier in its outcome and less expensive in its conduct, but there are quite detailed questions to which one shall need to return in due course.
1.54 p.m.
Lord Lester of Herne Hill: My Lords, this is a welcome and much needed Bill to reform some aspects of the law of defamation. The noble and learned Lord, the Lord Chancellor, deserves public gratitude for having grasped the prickly nettle of seeking to improve the content of defamation law and its arcane and highly technical procedures. So has Sir Brian Neill and his working group and the noble and learned Lord, Lord Hoffmann, whose innovative work bears fruit in the Bill. It is very pleasing, as has been said already, that the noble and learned Lord will be making his maiden speech in this debate and we eagerly await his contribution.
I too must declare my professional interest as an advocate who appears sometimes in libel cases and sometimes against the noble Lord, Lord Williams of Mostyn—he more usually for plaintiffs and I more usually for defendants, but each of us must try to rise above the perspective that we obtain from our own practices.
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It is worth saying, especially for non-lawyer noble Lords, that the law of defamation is peculiar and unique like no other tort or civil wrong. Its peculiarities derive from its historical origin in the Star Chamber's seditious and criminal libel later developed by the common law into a separate tort or civil wrong.
Defamation law necessarily restricts free speech by protecting the public interest in personal reputation. It is based on the civil right of everyone to the unimpaired possession of his or her reputation and good name. The general rule is that no one should speak falsely of his neighbour, and that it is in the public interest that the law should provide an effective means whereby the individual can vindicate his or her reputation against calumny.
Existing English law is notorious for giving excessive protection is some respects to the civil right to reputation for those who can afford to take up the plaintiff's sword. In the first place, a strict liability rule applies to the tort of libel. The state of mind of someone who publishes a libel is immaterial in determining liability, because malice is implied from the mere publication of defamatory matter. An individual may publish a libel in good faith, believing it to be true, and yet he has no defence to the action, however excellent his intentions may be.
Secondly, the law presumes in the plaintiff's favour that the defamatory words are false unless and until the plaintiff proves to the contrary—a reverse burden of truth. Thirdly, if the defendant attempts unsuccessfully to prove that the words are true, that is likely to increase the damages. Fourthly, juries award huge sums in damages without any proof of actual or probable financial loss and with inadequate judicial guidance to ensure that the award of damages is proportionate to the wrong suffered by the plaintiff. The process often seems closer to an expensive casino than to a court of law. This unacceptable aspect of English libel law has to some extent, but not completely, been reformed by the Court of Appeal in the recent Esther Rantzen and Elton John cases so that juries are better guided. But the position still remains unpredictable and somewhat arbitrary, with remaining risks of grossly arbitrary rewards.
It was those unique features of defamation law—and I make no apology for recalling them—and their chilling effect on free speech, that led the law Lords to reject an attempt by Derbyshire County Council to develop what was in effect a tort of government libel, a more draconian civil version of the crime of seditious libel, which would have chilled the freedom of the press as well as the freedom of speech of the individual citizen critic of government. I again declare an interest specifically as counsel for the newspaper in that case.
Although I agree with the noble Lord, Lord Williams, that would-be plaintiffs can suffer serious injustice in some cases because of the absence of legal aid, it is also important to recognise that the individual citizen critic is especially vulnerable when faced with a libel action by a well-heeled plaintiff, because legal aid is not available even for a defendant with reasonable prospects of proving that the words are true or are covered by

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qualified privilege. The noble Lord, Lord Williams, gave the example of the police officer plaintiff. It is a good example. But a police officer plaintiff is assisted by the Police Federation under regulations approved by Parliament. The defendant of such a claim may be a citizen critic or a small local newspaper and not a national newspaper. In cases of that kind real injustice can occur.
The noble and learned Lord, Lord Keith of Kinkel, in the Derbyshire case, recognised that the chilling effect of libel law,
"is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public".
That observation by the noble and learned Lord brings to mind the notorious use of gagging writs by the late Robert Maxwell and others like him.
Turning to the point raised by the noble Lord, Lord Williams of Mostyn, the Derbyshire case did not decide whether the common law of qualified privilege should be extended to cover the position where the plaintiff is not a government body, but a Minister, an elected politician or a public officer discharging public functions who is defamed about the manner in which he or she discharged those functions.
I had the privilege, on behalf of Justice—I am delighted to see its distinguished chairman the noble Lord, Lord Alexander of Weedon, in his place—of chairing a steering committee, for which the noble Lord is not responsible, which made submissions on the subject as part of the Lord Chancellor's consultation process. We welcomed the proposals to streamline and simplify procedure and to bring defamation law up to date. We drew attention to the way in which in various Commonwealth courts the law on qualified privilege is developing. In the case of Australia, the law is less favourable to the press than in the United States. While relaxing strict liability where politicians and public officers sue to vindicate their governing or political reputations, it requires the publisher to show that publication was reasonable in all the circumstances. That seems a sensible compromise between the conflicting rights and freedoms, less generous to the media than the position obtaining in the United States, as a result of the New York Times v. Sullivan case and its progeny.
The submissions on behalf of Justice expressed the belief that the importance of freedom of public information and the public's right to be informed about public affairs and political discussion require the development of qualified privilege in this way. It was suggested that that could be done either in this Bill or by leaving it to the courts to develop the common law on a case-by-case basis.
Upon more mature reflection, I have come to the conclusion that it would be unwise to seek to amend the Bill to deal with that important matter. For one thing, the policy implications are difficult to evaluate except in the context of a particular case. For another, we, whether as ordinary parliamentarians like myself or as Ministers, are self-interested. Many people in public life
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would he delighted to be able to use the law vigorously to suppress what we regard as media libels about official conduct.
I suggest that it is better to leave the matter to the independent judiciary to decide upon what public policy requires in weighing free speech against other public interests, honour, reputation and personal privacy, having regard, as they increasingly do, to the rights and freedoms guaranteed by the European Convention on Human Rights. Again, I should declare my professional interest. I am engaged in pending proceedings on behalf of newspaper defendants in a case with the noble Lord, Lord Williams of Mostyn, as my formidable opponent. The central issue will have to be decided by the courts. It is a question which the noble Lord has raised with the Minister and which will have to be decided by the courts. It would be helpful if it could be made clear for the avoidance of doubt that this Bill is not intended to limit the role of the courts in developing that area of the law by closing the categories of qualified privilege. I do not think that it is meant to do that, but I should be most grateful if the Minister could give the House an assurance on that matter in his reply.
I turn briefly to another matter which is not dealt with in the Bill—I refer to damages awards—and with which I can deal shortly. The matter was dealt with in the submissions made on behalf of Justice. The problem is that of excessive damages. Speaking for myself, I strongly support the recommendation that was made 20 or more years ago by Sir Neville Faulks' Committee that the best solution to the problem is for the jury to say whether the damages should be
"substantial, moderate, nominal or contemptuous",
leaving the judge to decide the actual amount. That would provide an effective way of retaining trial by jury while avoiding excessive damages awards. It would have the benefit that the Court of Appeal would be less troubled in damages cases.
Perhaps I may now make a small but important point about the Internet. I welcome the fact that the Bill applies to defamatory publications via the Internet. I hope that it will be amended in Committee to require those providing Internet facilities to remove information once it has been proved that that information is defamatory.
I turn now in a little detail to some of the other topics dealt with in the Bill. I refer first to responsibility for publication. It is certainly desirable for the defence of innocent dissemination to be statutorily defined and extended to cover a wider class of secondary publishers—distributors, printers and others. The trouble with Clause 1 as it stands is that it does not adequately protect them, and is likely to encourage increased and unnecessarily complicated litigation. To establish that "reasonable care" has been taken in relation to the publication of the statement complained of, as Clause 1(1)(b) requires, would be a difficult and expensive task, requiring detailed evidence of the operations of the particular defendant and evidence, including expert evidence, of usual practice.

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Clause 1 as it stands also fails to protect the secondary publisher who, on discovering that a statement is defamatory, takes reasonable steps to assure himself that it is justified, or that it is fair comment, or is protected by qualified privilege.
I turn now to the offer of amends. As the noble and learned Lord the Lord Chancellor indicated, the present procedure for making an offer for amends is cumbersome, unworkable and needs to be replaced. The new procedure is a welcome way of reducing unnecessary litigation while providing a sensible way of vindicating the plaintiff's good name.
I hesitate to say anything about summary procedure because it was, in effect, invented by the noble and learned Lord, Lord Hoffmann, against whose judgment I would not dare to appeal, but I am troubled. The new summary procedure has the admirable aim, which everyone shares, of weeding out hopeless cases at an early stage where it is clear to the judge that the plaintiff's case has no realistic prospect of success. It should offer the plaintiff with a sound case a quick route to a remedy, where there is no realistic defence for the claim and where the court is satisfied that summary relief would adequately compensate the plaintiff. It is highly desirable that the procedure should be accelerated and more user-friendly, but there is a risk that the summary procedure as it stands might perversely result in increased costs and complicate, rather than simplify, libel actions. It is a matter to be looked at carefully in Committee to ensure that "fast-track" does not become "gridlock".
I turn now to the meaning of a statement under Clause 7. Clause 7 sensibly alters the English procedure, as the noble and learned Lord, explained. Since my noble friend Lord Mar and Kellie is unable to be with us today, he has asked me to raise a point about Scots law on his behalf. I am singularly unsuited to do so. Apparently, the procedural test laid down by the House of Lords in the case of Morgan v. Odhams Press, which is abolished by Clause 7, has never been applied in Scotland. It is unclear why there is therefore any need to apply Clause 7 to Scotland. I should be grateful if the Minister could clarify the position, no doubt with advice from north of the Border.
Statutory privilege: I welcome the extension of the categories of reports which will enjoy statutory privilege to reports of legislative, judicial, and other public proceedings and official publications on a world-wide basis, but I can see no reason for the omission of the European Court of Human Rights from Clause 14. Reports of its proceedings are covered by qualified privilege under Part I of Schedule 1, but surely they, too, should be absolutely privileged, as will be the position for the European Court of Justice.
The definition of "court" in Clause 14 is also excessively restricted, excluding from statutory privilege reports of the proceedings of a whole range of domestic tribunals, like the GMC. I should prefer to see It apply to any tribunal of inquiry recognised by law exercising judicial functions as the Faulks Committee recommended 21 years ago.
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I note that some items which were privileged, subject to explanation or contradiction, under the Lord Chancellor's draft Bill, are not so privileged in the final draft. They include fair and accurate copies of, or extracts from, notices issued by a local authority, a chief officer of police, or a serving officer of Her Majesty's Armed Forces. I should again be grateful if the Minister could clarify the reasons for not extending statutory privilege, as originally proposed in the consultation document.
I do not understand, unless I have misread it, which is possible, why the amended schedule reduces the scope of the 1952 Act schedule by apparently excluding a copy of a fair and accurate report, or summary of any notice or other matter, issued for the information of the public by or on behalf of a chief officer of police. It may be that that will be included under Paragraph 15 of Part II of the schedule. Again, I should be most grateful for clarification.
Those are matters of detail, and I apologise for raising so many points of detail. The general principles upon which the Bill is based are sound. They will strike and maintain a better balance between the three relevant civil rights: the right to freedom of expression; the right to a good reputation; and the right of effective access to the courts.
Like the noble Lord, Lord Williams of Mostyn, I agree that privacy interests are also important and need to be better protected, but I believe that those interests are best protected by the courts developing the common law on a case-by-case basis, not on the basis of detailed legislation. I therefore support the stand taken by the Government in not seeking to legislate in the Bill on the vexed question of media intrusion on privacy, however disgraceful and unjustified that may be. The courts are capable of evolving the law to deal with real social mischief.
With those qualifications, which are not meant in any way to undermine my strong support for the Bill, I support its Second Reading.
2.11 p.m.
Lord Hoffmann: My Lords, I shall speak to one aspect of the Bill only; that is, the summary procedure which my noble and learned friend the Lord Chancellor was kind enough to say originated in a suggestion from me. The introduction of that procedure will be a modest improvement in the law, but your Lordships will better appreciate its usefulness and its modesty if I explain what it is intended to do. The easiest way to do that is to tell your Lordships how the proposal originated.
It began with a dinner which I had, I think in 1989, with the late Lord Rothschild. He had been the chairman of a Royal Commission upon which I had the honour to serve in the 1970s. Afterwards, we saw each other fairly regularly. On that occasion he was expressing his irritation, as he frequently did, over articles in newspapers which insinuated that he might have been a Russian spy. He wanted to know why he could not sue them for libel. I knew hardly anything about libel. I had never taken part in a libel action, either as counsel or as judge, but I thought that I knew enough to urge him

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strongly not to go to law. I said that no one in his right mind would believe that he was a Russian spy and that a libel action would only give currency to tittle tattle which most people had never heard of anyway. It would be long and expensive. It would take over his life when he had better things to do.
I think that someone who knew more about the subject must have given the same advice because Lord Rothschild never did bring a libel action. But his restless intelligence never accepted that there was any problem to which there was not an answer. He said that the law should be able to accommodate people like him who did not want to pursue newspapers for large sums of money. They wanted two things only. First, they wanted a public statement which cleared their reputations; and, secondly, they wanted it quickly. There should be some procedure whereby such people can obtain a remedy.
I discussed the matter with a solicitor who was the in-house lawyer of a national newspaper. She had a different problem with libel law. She found that her paper often received threats of actions from people complaining that they had been libelled in a newspaper article which was ambiguous or accidentally inaccurate but in which the defamatory content, if any, was entirely trivial. Those people were not satisfied with an immediate correction and a small amount of compensation; they wanted to get as much money as they could. They were encouraged by lawyers who knew that, because a libel action is very expensive in legal fees and in the management time of newspapers, the newspapers would eventually settle rather than fight. They would settle by paying a substantial sum to the plaintiff and, perhaps even more important, a large sum in costs to the lawyer. So she wanted some procedure whereby such gold-digging claims could be summarily brought to court.
I sat down and drafted a Bill to create a procedure which could be used both by plaintiffs and defendants. In full pride of authorship I sent it to my noble and learned friend the Lord Chancellor. He was then heavily engaged in other matters concerning the legal profession, which my noble and learned friend Lord Ackner may remember. I received a visit from a civil servant who told me in the traditional phrase that the time was not ripe. Now it seems that the time is ripe and the proposal is in a Bill before your Lordships' House
It is important to emphasise that the procedure is intended to be for the benefit both of plaintiffs and defendants. It enables a plaintiff who does not want more than a relatively small sum of money by libel standards—the Bill provides for £10,000 but that can be varied by statutory instrument—to go quickly before a judge at a hearing with evidence on affidavit and to obtain an order for the publication of an agreed statement or, if there is no agreement, a publication of the judge's decision.
It also enables a newspaper, as a defendant which considers that after taking into account the publication of the correction the plaintiff cannot reasonably be
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entitled to more than £10,000 in damages, to go before a judge on the same procedure and ask that he make a summary award and stop the case going any further.
Those are the cases to which the procedure is intended to apply. The reason why it is a modest improvement is that there are many cases—I should think most of the cases that have attracted great publicity over the years—in which it cannot apply. In a plaintiffs application the procedure depends upon the judge being able to say, on the basis of affidavits alone—without any discovery, cross-examination or oral evidence—that there clearly is no defence to the plaintiffs claim. If the newspaper wants to justify the allegation as true and can show that it has a reasonably arguable case, the judge cannot give judgment under the summary procedure. Even if the plaintiff is content to take a small sum of damages, the newspaper, or other defendant, is entitled to put its case before a jury. It is important for the freedom of the press that it should have the right to do so.
Therefore, the procedure will have no effect upon the great theatrical libel cases which have entertained the British public over the years. However, there are a few cases in which there is no serious defence and in which an attempt to defend is only in the hope that the plaintiff's money and patience will eventually become exhausted. It is that kind of case which the procedure is intended to help.
Likewise, the procedure has no effect on an action for libel where a serious charge has been made against the person's character. There again he is entitled to take the matter before a jury and to ask the jury to show its disapproval of what the newspaper has done. The judge can deal with the case himself only if he is satisfied that the libel, if any, is not sufficiently serious to be capable of meriting an award of damages higher than the statutory limit.
Despite those limitations, I believe that the procedure will be a useful one. I commend it to your Lordships.
2.18 p.m.
Lord Alexander of Weedon: My Lords, on behalf of the whole House, it is my privilege and personal pleasure as a former colleague and a friend warmly to congratulate the noble and learned Lord, Lord Hoffmann, on his maiden speech. He is one of the select group of South African lawyers who emigrated to this country at the outset of their careers out of distaste for the political regime then current in the country of their birth. In the case of the noble and learned Lord, he has reached the highest ranks of three branches of the law; academic at Oxford, the Bar and the Bench. All who know him know of the qualities which have led him to that position with a dazzling speed of achievement. We know him for his intellect, incisiveness, common sense, imagination and also for his entertaining approachability. I can confidently regard his speech as wholly non-controversial because I happen to agree with it myself. But in the circumstances, because the Bill is in part a progeny of his efforts, I know that the House will feel that it is right that he should have expressed such a clear view.

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At the Bar I often acted for plaintiffs and defendants. Over the years, I felt a real frustration at the anxiety, delay and expense caused by the complex procedures leading to a full-blown trial. I felt also that those procedures were particularly difficult for the plaintiff and I remember the advice that one had to give to a plaintiff who came for advice a few days after he felt that he had been gravely libelled. You had to say to him, "The case, if fought, will be very expensive. There will be a long delay before you can achieve any redress to your reputation. When the action comes to trial in two or three years' time, it will revive public memories of the libel and the reporting will often be painful, selective and sometimes salacious." One would tell the client, "You must appreciate that you have to feel as strongly about the case in several years' time as you do when it is published, and you will have to appreciate that in the meantime, you will have considerable underlying anxiety and a cloud over your reputation."
Not surprisingly, plaintiffs in libel actions needed, and need still, a good deal of sheer dogged courage and the ability and willingness to take a large financial risk. Sometimes when confronted with that advice, a client would remark that all he wanted was the opportunity to correct the libel swiftly. Sometimes that could be achieved by settlement. It always seemed to me vital in that area of the law to leave no stone unturned; to urge a compromise which was fair to the reputation of the complainant but did not inflict undue humiliation or expense on the defendant.
But such redress by sensible compromise needs the co-operation of both parties. In my experience, defendants were often all too ready to use the interlocutory procedures to test the determination of the complainant and the depth of his cheque book. Powerful media groups could afford to play the interlocutory procedural game—which has rightly been described in this debate as arcane—to the full. Many of them did so.
I can think of several plaintiffs over the years who would have welcomed the availability of a summary procedure. But I can equally think of times when newspapers, sensing that a complainant was over-sensitive or possibly even on a gold-digging mission, would have liked to be able to seek a prompt resolution of the action. It is most welcome that this Bill grants defendants the right to seek summary disposal of proceedings.
In some ways, I should have liked to see the Bill achieve a slightly less modest result than that so clearly described by the noble and learned Lord, Lord Hoffmann. I remember the end of one hot July at the conclusion of a libel case which I had found exacting and which, I think, even my normally ebullient client found exhausting, I wrote an article for the Independent expressing my view that there should be an opportunity for a plaintiff to go before a judge at an early stage and ask that an apology be ordered by the court. The judge could then call for immediate material from the newspaper and form an impression of whether a correction was required and, if so, in what terms. While the plaintiff would be entitled to ask for costs, the price for that fast-track procedure should be that he could be
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required to forgo his claim for damages as a term of obtaining an apology. I believe that I then envisaged that a judge would be able to form not only a view of whether a claim was unarguable or certain to succeed, but also a robust prima facie view on a case and seek a commonsense solution. But, nonetheless, I agree that the proposal put forward for a fast-track procedure is modest progress.
Some might say that that would whittle away at the right to a jury trial, but I have not heard that view expressed in today's debate. I would not find that in any way objectionable. Almost all civil rights are now tried by judges sitting alone. The reason why defamation has been an increasingly isolated exception is, as I understand it, because it was said that the importance of the issue of reputation meant that the parties had the right to a jury.
The right to reputation, and defamation actions, has always fascinated the public gaze. Anyone who was led by the late Mr. Colin Duncan and heard him declaim to juries in Shakespeare's words that:
"The purest treasure mortal times afford Is spotless reputation",
would be swept along by the indignation. But, to my mind, there are many courses of action at least as important—and, possibly a good deal more important—than actions for defamation. I have in mind actions for severe personal injury, or breach of contract, or negligence which might bring a business to its knees, or a serious administrative complaint. I do not believe that trial by jury is sacrosanct or that its modest erosion by the Bill would do any injustice.
We are all increasingly conscious of the need to have flexibility in the way that we resolve disputes. The noble and learned Lord, Lord Woolf, has rightly highlighted that delay, cost and the imbalance of resources referred to by the noble Lord, Lord Williams of Mostyn, which are available, or unavailable, to the parties, may all contribute to injustice. They can do so powerfully under the existing defamation procedures. I should have liked to see a fast-track procedure which went even further; but I warmly congratulate the Neill Committee and my noble and learned friend the Lord Chancellor on introducing the Bill which contains the current proposal.
There is one other significant reason why the change must he fair. Legal aid has never been available for libel actions. The Royal Commission on Legal Services said that that was anomalous and recommended a change. That has not come, and, in the present climate of concern about the expense of public funds, it would be tilting at windmills to argue for that extension of legal aid. But the absence of help to people of small or moderate means to pursue defamation litigation is yet another reason why they should have, wherever possible, an alternative, effective and low-cost procedure which they can use.
I should like briefly to draw your Lordships' attention to one further change that I should like to have seen in the Bill. When an action comes to trial, I believe that the level of libel damages is a lottery. Some 20 years ago the Faulks Committee commented on the,
"extravagant amounts resulting from the jury's inexperience of the general scale of damages of the whole field of tort".

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I suppose that that was another way of expressing the well known comment that juries have a disposition to be generous with other people's money. The Justice report in 1990 made a powerful comment to the same effect.
I know that the Court of Appeal has recently given greater scope for judicial guidance to juries. But, to my mind, there is a need for still more to secure fairness. In my experience, what juries tend to remember is—vaguely and in general terms—the last high award that they read about in newspaper reports. They base their own comparison at the same level, slightly lower or somewhat higher than that award. In fairness to defendants, I believe that those risks should be sharply diminished. The Faulks Committee recommended that the jury should simply state whether the damages should be,
"substantial, moderate, nominal or contemptuous".
The actual amount within the chosen category would then fall to be assessed by the judge. Until now this recommendation has gathered dust. I believe it would he timely to attach it to a Bill which is making such other conspicuous improvements in the laws of defamation.
In summary, what I feel about this branch of the law is that until a case comes to trial, the scales are firmly tilted against a plaintiff in terms of anxiety, uncertainty, delay, the blight upon a career, and expense, plus the ability of the defendants to use the interlocutory procedures. But when the case comes to trial, the position changes. Juries then look critically at the conduct of the defendant newspapers, and there can be a real risk that an award is out of proportion to the nature of the libel. I believe that this Bill goes some way to improving the position of plaintiffs before trial. I should also like to see it go some way to securing greater justice for the defendants at trial.
I was not going to comment on the so-called "public figure" defence—the right to publish information responsibly about public figures, even if one cannot prove it to be true. I have grave doubts whether the balance should be moved in that direction. I have felt in recent years that the press have ample ability to draw to the public's attention facts which they consider affect the conduct of a person in public office, and that some of the facts they draw to the public's attention are only doubtfully in the public interest. When they do so, a person's reputation, career, legitimate ambition and aspirations may be blighted. I believe that the substantive law is broadly fair. What I believe need improving are the procedures. I greatly welcome the Bill and thank my noble and learned friend the Lord Chancellor for introducing it.
2.32 p.m.
Lord Grantley: My Lords, in addressing your Lordships' House for the first time I wish to begin by making two comments of a purely personal nature. The first is that I spent a happy year working in this House in 1977–78 on secondment from the Conservative Research Department to the then Opposition Front Bench. I occupied a disused broom cupboard which I am
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pleased to say has since been refurbished and is now occupied by the noble Baroness, Lady White. During the time that I worked here I was most impressed with the tone and quality of your Lordships' proceedings and the excellent work performed so unobtrusively and for so little reward. I appreciate that many things have changed over the past 18 years, but despite the advent of television into this House these characteristics seem to have endured.
My second comment is that I am particularly pleased to be able to make this speech in the presence of my noble kinsman Lord Listowel, for he is no ordinary kinsman; he is my grandfather. Our political views are by no means similar. In particular he favours the replacement of this House by a purely nominated Chamber. I, to the contrary, am a great fan of your Lordships' House and believe that the contribution of the hereditary element is a strength rather than a weakness. Indeed, I regard the career of my noble kinsman, which has been dedicated to work in this House almost continuously since 1931, as evidence of itself in support of my view.
The particular aspect of defamation proceedings on which I wish to focus is the role of the jury in libel cases, which has been commented upon by several previous speakers. The working group chaired by Sir Brian Neill agreed that this is an extremely important issue but considered, apparently, that it did not fall fully within its terms of reference. It was, however, considered at length by the Faulks Committee whose report on defamation (Cmnd 5909) appeared in 1975, although its recommendations on this subject have not yet been implemented.
There is widespread public concern—which I share—that the awards of damages made by juries in libel cases are excessive and out of all proportion to the actual damage suffered by the victims of libel, and way out of proportion to the awards of compensation made to victims of personal injury or crime. I do not intend to mention any individual cases as this would be invidious, but it is fair to say that concern on this subject has been prevalent for many years.
It is interesting to note that the highest award of damages for libel in the period 1967–69 was £7,000. In 1970, in the famous case of Broome and Cassell the plaintiff was awarded £40,000, of which £25,000 were exemplary, for a very serious libel. This was considered at the time to be a very high award. The compensatory element of the damages in that case are worth about £126,000 in today's terms, yet in recent years we have seen a persistent stream of awards much higher than this for libels far less serious than that committed against Captain Broome.
These days, if you are injured by libel and have a modicum of luck, you can get several hundreds of thousands of pounds and get your reputation back. By contrast, if you are unlucky enough to lose a leg in a personal injury case or as a result of a crime, then under the guidelines of either the Judicial Studies Board relating to personal injuries or the Government's guidelines relating to the criminal injuries compensation scheme—I am not quite clear on the subject—you will get about £40,000, but you will not get your leg back.

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The majority of speakers in this debate are distinguished lawyers and judges. I am not even an undistinguished lawyer but a mere merchant banker. My main reason for wishing to contribute to the debate is that I have the experience, which is not important in itself, but may be of some interest, of having served on a libel jury in 1979. I wish to describe some aspects of this experience in order to draw some conclusions and to make, with all due diffidence, some recommendations. I am, of course, conscious of the need not to make any improper disclosure. I shall certainly not identify either the case or any of the participants involved except to say that the plaintiff was described as a showbusiness personality and the defendant was a newspaper.
The conduct of the case was most impressive to the layman, particularly the quality of the advocacy and the clarity of the judge's summing-up. Until the end of the judge's summing-up the impartial observer would have regarded the case as a tribute to the workings of the system of justice. However, on entry into the jury room, things deteriorated fast. The judge had, in effect, instructed the jury to find that a libel had been committed, and this was not controversial. The question for the jury then was to decide on the amount of damages. No figures for damages had been mentioned in court as this would not have been allowed. The plaintiff had requested, as is usual, substantial damages and the defendant argued that damages, if any, should merely be modest. The judge had done his best in his summing-up to explain the purposes of damages in libel cases and the principles on which they should be determined.
In the jury room, however, the judge's summing-up was immediately forgotten. The first eleven jurors, when we went round the table, all suggested amounts which were, if I remember rightly—and my memory may be hazy on this point as it was 17 years ago—in a range of £50,000 to £150,000. I suggested that an appropriate figure would be £5,000. We then spent about four hours arguing this point and eventually compromised on £15,000.
The interesting features of the argument in the jury room were not a difference of view on the severity of the libel. On the contrary, it was generally agreed that the libel was fairly trivial as these things go. Nor was there any particular sympathy for the plaintiff. It was clear that there were two reasons why such excessive amounts were being proposed. One was simply that the defendant was a newspaper: "Well, it's a newspaper isn't it? Newspapers have money, they can pay." Bear in mind this was in 1979 when newspapers were less unpopular and commanded more respect than they do today. The other reason was that the jurors had no figures to go on in deciding what would be substantial or modest, or whatever, and were clearly influenced by the amounts of damages awarded in other libel cases of which they were aware. The noble Lord, Lord Alexander of Weedon, was exactly right when he spoke on this matter. Needless to say, those other cases were those which had attracted great publicity in the
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media and, almost by definition, involved very large sums of money. It was inevitable, rightly or wrongly, that those cases effectively constituted the precedents for the jurors in their own minds in proposing the huge figures that they did. That illustrates that the practice of juries in making excessive awards of damages is self-perpetuating. It is inherent in the system. It is slightly alarming to think that but for the presence of one member of the jury, fortuitously myself, the damages awarded in our case could have been up to ten times higher than the amount actually awarded.
I mentioned that the relevant principles so carefully explained by the judge in his summing up were completely ignored. I did my best to try to remind the other jurors, but without success. Therefore, at one stage I asked the usher if the text of the summing up could be produced and, ideally, photocopied and circulated among the jury, but I was told that that would not be possible whatever the length of the deliberations.
I suggest, therefore, as one modest administrative reform which could usefully be implemented, that the judge's summing up in libel cases should be typed up as soon as possible after delivery and given immediately to the jury. If it cannot be typed up before the jury has concluded its deliberations, so be it. That would indicate a simple case. But in most cases I suspect that the jury would still be deliberating and would find it very useful to be reminded of the specific details of the direction which the judge had given.
Lest it be thought that I am placing too much reliance on the experience of having served on one jury, I should add that in 1983 I was summoned again for jury service and served on two criminal juries. I do not know why my name should have been drawn from the hat twice in the space of five years. I only wish that the authorities would pass on the details of their technique to their counterparts at the premium bond office. I turned up wearing a pin-striped suit, brandishing a copy of the Daily Telegraph and trying to look as reactionary as I could, or indeed as I am. Despite that I was not objected to. Be that as it may, that additional experience merely served to confirm my view that the only proper task which should be entrusted to a jury is to determine the guilt or innocence of someone charged with a criminal offence.
In 1986 the noble and learned Lord, Lord Denning, who was a great fan of juries, recommended the reintroduction of special juries for libel cases, which had been abolished in 1949. I agree that this would he an improvement, but I would much prefer the recommendations of the Faulks Committee in paragraphs 455 to 457. It recommended that libel should be put on the same footing as other actions for tort, in that trial by judge alone would be the norm and by judge and jury would be exceptional, and that in all libel cases with juries the role of the jury should be restricted to determining liability and not the quantum of damages, on which point the jury should simply recommend that damages be substantial, modest, nominal or contemptuous.

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I am convinced that the presence of the jury in libel cases is resulting in serious and consistent injustice, and I believe that this should be brought to an end. If there is any chance of using this Bill as a means of doing so I would warmly support it.
2.43 p.m.
Lord Finsberg: My Lords, it falls to me to congratulate the noble Lord on his maiden speech. In 22 years in the other place I never had such good fortune. Indeed, I did not hear many maiden speeches as good as the one we have just heard.
It is always an ordeal to make a maiden speech. Like some of your Lordships, I have made two—one in the other place and one in this House. It is no easier even the second time round, but many of us would be envious of the speech we have just heard. I hope that the noble Lord enjoyed it as much as he would enjoy making a grand slam double vulnerable, as I see that bridge is one of his hobbies. We look forward to many more speeches from him. I know that that speech must have gladdened the heart of his noble kinsman, his grandfather, who is sitting in the Chamber today.
As another non-lawyer, and as someone who has never been lucky enough to be drawn for jury service, I want to confine myself to two points in the Bill. I told my noble and learned friend of the points that I would raise in the hope that there might be some answers in the response that will be given by the Minister.
The first is as regards the rights of citizens who are unfairly attacked in the press. We all know the sort of thing. There is a comment in the press, "Mr. Bumble of Much Binding in the Marsh is the leader of a group which believes in satanisation". It goes on to give details about satanisation without necessarily linking those directly to Mr. Bumble. However, the average reader would do the linkage. Mr. Bumble, who is neither a satanist nor a supporter of any cult, wants the record put straight. If he is lucky, there will be a letter printed somewhere on the inside of the newspaper, or there might even be a two-line apology somewhere at the bottom of page 38, but well away from the page upon which the statement was made. I wonder why we cannot extend the Bill to cover that point so that a correction has to be made in as prominent a position as was the false statement which the paper printed.
The second point relates to parliamentary privilege. I have to declare a personal interest in raising an issue which concerns two friends of mine, Mr. Neil Hamilton, Member of Parliament, and Mr. Ian Greer, the lobbyist—from whom I had better say straightaway I have never received or sought any financial reward. Both have a case against the Guardian newspaper for defamation. I have known them as friends for well over 20 years. I shall not go into the merits or demerits of the case except to say that the case is on ice with the clock stopped because of the existence of privilege under the Bill of Rights and other legislation.
It is necessary to give some quotations so that your Lordships will get the feel of this issue. I apologise that the first one at least will be very lengthy, hut it gives the
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proper flavour of the case. It is from Mr. Justice May's judgment in the case. The date was 21st July 1995. He said:
"I am constrained by authority to stay the proceedings. The Prebble case is so closely in point that I see no scope for bold innovation by a judge at first instance, even though I am acutely conscious that staying the actions may be perceived as a profound denial of justice to the plaintiffs, as a denial of a forum to the defendants to justify their publication and even as a licence to publish material about parliamentary proceedings which, if it is untrue, may go unremedied.
"The law undoubtedly being that it is for Parliament alone to regulate its proceedings without questioning from the courts, it is no part of the courts function to call in question the adequacy of parliamentary procedures to achieve such regulation. As Lord Browne-Wilkinson in substance said, to prevent a defendant newspaper from relying, in defence of libel proceedings which nevertheless continue, on matters which could, if they were permitted to rely on them, establish that the publication was true could produce chilling results. Equally, however, to deny plaintiffs a forum for establishing, if it be so, that a publication which has damaged them severely is untrue is to deny the opportunity of remedy which is afforded to every other person and which ought to be afforded without exception. I guess that the public perception would be that such remedies as might be available within parliament for Mr. Hamilton and Greer Associates, if the publication is untrue, would be an inadequate substitute for those available to their fellow citizens in court. It was accepted at the Bar that, whatever procedures might be available and whatever their effect, they would not include the power to compensate the plaintiffs, if that were appropriate, in damages. Reputations might be salvaged, but money losses would remain without compensation. I guess that the public perception would also be that these actions ought to be capable of being tried in court, that the plaintiffs ought to be enabled to make their full cases and that the defendants ought to be enabled to make their full defences, so that the truth may be established in an unimpeded trial by judge and jury.
"Every Judge is acutely aware that the ability of all persons to come to the courts to have their disputes tried and determined fairly, openly and according to law is a cardinal right upon which freedom under the constitution depends. The courts exist to try cases, not to decline to do so. In this instance, statute and authority require the court to do just that".
That is pretty clear on the state of affairs that exists. This Bill gives an opportunity to make some remedy in that kind of case.
Perhaps I may give one other brief quotation from someone who is well known in this country, Sir Bernard Ingham. In relation to that judgment, he said:
"The essential point is that Mr. Justice May … in the face of legal precedents, halted the libel trial last week because, under the 1689 Bill of Rights, courts are banned from looking into Parliamentary proceedings. This, the Guardian opportunistically argued, would prevent it from mounting a proper defence. So, Mr. Greer, an ordinary individual who claims his company lost £2m worth of business because of the allegations, has no right to establish his innocence or to recover the alleged damage to his company. That is injustice enough. But what this ruling really means is that any irresponsible newspaper—and let us not readily accuse newspapers of responsibility—can allege, with impunity, what they like about an MP's activities, within, as distinct from outside, the Commons"—
and I might add the Lords. He continues:
"This is a ludicrous interpretation of Parliamentary privilege. It was intended to enable MPs [or Peers] to make serious allegations in the House without fear of proceedings. It was never meant to deny them the right to defend themselves in courts".
After that, we had the Nolan Report. The Government made a response, after the Nolan Report was in being, to the Committee on Standards in Public Life. The committee's Recommendation 10 was:

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"The Government should now take steps to clarify the law relating to the bribery of or the receipt of a bribe by a Member of Parliament".
The response was this:
"The Government reaffirms its commitment to consolidate the laws on corruption, and welcomes the opportunity to clarify the law relating to the bribery of, or receipt of a bribe by, a Member of Parliament alongside that consolidation".
There was an undertaking that the Government would consider the matter.
I now wish to read a letter received after I sent a letter to my noble and learned friend the Lord Chancellor on the subject. His response is dated 4th September 1995:
"The Lord Chancellor has asked me to thank you for your helpful comments on the draft Defamation Bill. He is sure that you will be glad to know that the Government is indeed considering whether it would be possible to provide a solution to the difficulties highlighted by recent defamation proceedings involving Members of Parliament".
That is a second and, I should have thought, firmer undertaking that something would be done to remedy these injustices.
I sum up the problem simply. I can understand that a blanket waiver of privilege might not be a happy one. However, surely the Bill of Rights never intended that an individual MP or Peer could not waive his own privilege. That is the point at issue, not blanket waiving but his own privilege. That is all that is sought in this case. Mr. Hamilton and Mr. Greer wish to cite parliamentary proceedings in Hansard in their case for proceeding, but parliamentary privilege prevents them.
There is, I believe, a simple way of solving this; namely, for an amendment to come forward to the Bill which would entitle a Member of Parliament or Peer to waive his own privilege and allow Hansard references to him to be used in legal proceedings. This must also, in fairness, be allowed in suitable form to any other person so defamed. It would not be right that the existence of a potential defamation which could then be used by a Member of Parliament citing Hansard should not, in some form, be available to the ordinary citizen who is himself defamed inside one of the Houses of Parliament. I do not believe that it is a very complicated issue. I look forward to hearing from my noble friend that justice can, in fact, be done.
2.55 p.m.
Lord Ackner: My Lords, in a very short concurring judgment, Lord Justice Russell, later Lord Russell of Killowen, in a case in 1965, in which I was counsel for the plaintiff and once more bit the dust, said:
"To the comparative newcomer, the law of libel seems to have characteristics of such complication and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels".
He went on to say:
"Having made that comment (I hope without malice) I will content myself with saying that I agree with my brethren".
The Government are therefore to be congratulated on going some way towards dealing with the complications, some of which I am sure Lord Justice Russell had in mind. While on the subject of congratulations,
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let me congratulate most warmly the noble Lord, Lord Grantley, on a stimulating speech in regard, in particular, to trial by jury in libel matters. He referred to the Faulks Committee's Report and to the comments of the noble and learned Lord, Lord Denning, at an earlier stage. One of the troubles was that the noble and learned Lord, Lord Denning, changed his mind and withdrew his support for the abolition of jury in defamation cases, following another appeal which I lost in the Court of Appeal.
I would resist the abolition of trial by jury in libel cases until, if that event ever occurs, a government do something to protect the citizen from invasion of his privacy. I tried unsuccessfully in one of the criminal justice Bills to introduce very modest amendments, the modesty being attributable to Sir David Calcutt who produced one or two model criminal clauses dealing with the intrusion of long-range photograph instruments, bugging tapes and the like. But they were rejected by the Government, and the promises of White Papers that existed at that stage have never seen the light of day.
Basically, governments are so anxious about antagonising the media that they will take no effective action on this subject, overlooking the fact that they will substantially increase their popularity with the public at large if they show the guts (if I may use that rather vulgar expression) to do precisely that. Until that happens, I am in favour of large awards, not because they are intellectually satisfying but because it is the one way of saying to the press, "Very well, if you invent facts"—as they frequently do—"or if you distort the truth"—as the better quality papers usually do—"then it will be an extremely expensive experience."
If libel damages are brought down to personal injury damages, a high proportion of the press or media will say, "It is worth it. We shall be landed with £100,000 at the most and we shall recover that in our increased circulation." The intensity of the competition between various aspects of the media is such that the current situation is required to protect the public. But I congratulate the noble Lord, Lord Grantley, on the way he addressed your Lordships. I hope that we shall hear much from him in the future.
My noble and learned friend Lord Hoffmann was one of the outstanding advocates from the Chancery Bar. I had the experience of the benefit of his submissions. He was known to some of us as one of the "discount" barristers. That meant one of those banisters whose powers of persuasion were so developed that one had to impose a discount of at least 20 per cent. on his arguments to bring them back to reality.
When he was appointed to the Bench, I wrote to him a letter saying how sad I was that he had left the Bar. When he used to address me, at that stage sitting in the Court of Appeal, there were those rare occasions when I had the folly to interrupt him and a look of such deep sadness would come across his face, mingled with compassion, which said in the clearest possible way, "I thought you were doing so well managing to keep up with me and now I have to start all over again".
Having made those, I hope friendly, observations, perhaps I may say something about his suggestions. Your Lordships heard, quite rightly, from my noble and

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learned friend the Lord Chancellor of the debt we owe to Lord Justice Neill's committee. Lord Justice Neill was one of the outstanding specialists at the Bar in the law of defamation. He was in one of the best known libel and slander chambers headed, when I joined the Bar, by G. O. Slade QC (Mr. Justice Slade) followed by Sir Neville Faulks and with other distinguished personalities such as Lord Justice Hirst and Lord Justice Neill—the latter two I had the privilege, on occasions, of leading.
The Lord Chancellor said that we owe a great debt to Lord Justice Neill and his committee. What your Lordships were not told—it is to this that I wish to devote most of my speech—was that the committee was asked to consider the proposal made by my noble and learned friend Lord Hoffmann. In paragraph 19 of its summary, at page 205 of the report, the committee made this rather blunt observation:
"The proposals contained in Mr. Justice Hoffmann's draft Defamation Bill should not be adopted".
It went on to give fairly extensive reasons, none of which were divulged to your Lordships. I believe that I should mention them because I should like to know what is the official answer.
Clearly, the criticisms, or some of them, have been carefully considered by my noble and learned friend the Lord Chancellor. One of the complaints made, in chapter 17 of an extensive report, was that it was proposed that an editor should be,
"forced to publish something which he may not believe or even which he knows to be false (without being able to prove it under the rules of evidence)".
That has been got round by the obligation to publish being limited to the judgment of the court or the substance of that judgment. That is clearly right.
In another part the report says,
"We can see considerable scope for disagreement too over the notion contained in [what was then] clause 2(1)(b) that the judge should form an opinion as to whether 'summary relief would compensate the plaintiff adequately for such damage as would be likely to be proved if the claim was to be tried and succeeded'".
It goes on:
"For one thing, libel actions are not generally about 'proving damage' at all. Damage is presumed".
The report then quotes from what the noble and learned Lord, Lord Hailsham, said in Cassell v. Broome. That has been dealt with by changing the word "damage" to "wrong" and it is clearly appropriate that that should be done. The general criticisms raised by the Neill Report are that,
"opinions notoriously differ as to what is a trivial libel and what is not. This judgment is so subjective that we think this provision would put judges in an embarrassing position. It is eminently a matter of impression for the 'man in the street' rather than for judicial determination … We also question, however, whether the Bill is actually targeted at any 'pressing social need' … We very much doubt that if any form of market research were carried out there would prove to be many cases which would fit the criteria contemplated by this Bill".
The report goes on:
"It is clear that [the Bill] is primarily directed towards trivial cases where there is no substantive defence".
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It continues:
"The fallacious assumption here seems to us to be that there are `out there' a significant number of such trivial cases which the parties are incapable of settling for themselves. In our experience this is not so. Generally cases fail to settle either (i) because there is an arguable defence or (ii) because the defendants have information about the plaintiff's conduct which in their eyes makes his demand for damages appear to be disproportionate. If there is a substantive defence, then it should be tried anyway".
It goes on to say that the abolition of the rule in Scott v. Sampson, which is one of the recommendations made in the Bill, will go a long way to tackle the problem, as will the offer of an "amends" defence, again as provided in the Bill. It goes on to say—this is supported by a memorandum from the Bar Council—that a decision by the judge which is unfavourable to the defendant in these summary procedures will result inevitably in appeals which will throw further burdens upon the court.
I wish to deal with one other point. I shall deal with it shortly because it is answered adequately on page 164 of the report. I refer to the public figure defence, what is known as the Sullivan defence. This is what exists in the United States in the light of the decision of the Supreme Court in New York Times v. Sullivan. The process has lead to a fundamental distinction between the defamation law as applied within the United States jurisdiction and our jurisdiction. The report states:
"In relation to 'public figures', a concept which has been expanded with the passing years, it is necessary to show not only that the words published were defamatory but that they were actuated by malice. Standards of care and accuracy in the press are, in our view, not such as to give any confidence that a 'Sullivan' defence would be treated responsibly. It would mean, in effect, that newspapers could publish more or less what they liked, provided they were honest, if their subject happened to be within the definition of a 'public figure'. We think this would lead to great injustice. Furthermore, it would be quite contrary to the tradition of our common law that citizens are not divided into different classes. What matters is the subject-matter of the publication and how it is treated, rather than who happens to be the subject of the allegations".
The report continues:
"In our view the media are adequately protected by the defence of justification and fair comment at the moment, and it is salutary that these defences are available to them only if they have got their facts substantially correct".
It concludes with this paragraph:
"We understand that in recent years as a consequence of the Sullivan decision in the United States lawyers acting on behalf of complainants who are or may be classified as public figures have sought to expand the common law of privacy in order to provide a remedy now closed off in defamation".
The final matter to which I wish to draw attention—
Lord Lester of Herne Hill: My Lords, I am extremely grateful to the noble and learned Lord for giving way. I wonder whether he is aware that Sir Brian Neill seems to have changed his mind. In the second Goodman lecture, which he gave in 1995, as a result of the Derbyshire case, he said,
"Once it is accepted that 'it is of the highest public importance that a democratically elected governmental body or indeed any governmental body, should be open to uninhibited public criticism',

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it is not altogether clear how one can distinguish satisfactorily between the elected body itself and those who compose it and govern its affairs".
Lord Ackner: My Lords, I am most grateful to my noble friend. I have not seen that lecture, but if Lord Justice Neill has changed his mind I certainly have not changed mine. I find the reasoning that he provided wholly persuasive and thoroughly sensible as it reflected my own view even before I came to read it.
The only other matter to which I need draw attention is one on which the Minister may wish to reply. It concerns the Rehabilitation of Offenders Act 1974. That restricts what may be made public about a person's spent conviction or convictions. Although such restrictions do not apply to prevent a defendant from relying on any defence of justification, fair comment or of absolute or qualified privilege, they do restrict the matters that he or she may be permitted to establish in support of the damage aspect. The Bill makes no reference to it, but it would seem that Section 8(3) of the 1974 Act will have to be amended to allow evidence to be called of misconduct or reputation which relates to a spent conviction or convictions. Accordingly, a provision disapplying Section 8 of the 1974 Act in places falling within Clause 11 of the Bill may be the appropriate solution. With those comments I merely add that otherwise I commend the. Bill.
3.13 p.m.
Lord Bethell: My Lords, it is very seldom that your Lordships' House fails to come up to expectations and this afternoon is no exception. We have listened to a number of extremely germane and interesting contributions to this Second Reading debate, the majority of them from advocates or judges, but also one from a member of a libel jury. I hope noble Lords may find it interesting if for a few moments I say something from the point of view of the litigant, having myself been involved in three libel actions, twice as the plaintiff and once as the defendant.
I should point out at the outset that all three experiences were extremely disagreeable. They were bad. I am not sure which is worse. Perhaps one should say, in the words of Joseph Stalin in another context, "Both are worse". It is a traumatic experience to be involved in a libel action unless, of course, one is a member of the legal profession acting in a professional capacity. That is why I welcome the Bill before your Lordships' House, because it does something to try to simplify the proceedings that make the life of the defendant and the plaintiff so very difficult for a number of months or even years that the case is in operation.
Under the present system, one is forced to use a sledgehammer to crack a nut. Much will be done to put that right under Clauses 2, 4 and 8. A plaintiff endeavouring to get to a certain destination—I mean, the clearing of his name—finds that the only vehicle that will take him there is the Rolls-Royce of the English law on defamation. I believe that he would usually prefer a humbler and less expensive vehicle to get him to the same destination, although I must point out to the noble
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Lord, Lord Grantley, whose maiden speech I thought was quite outstanding, that even winning a case as a plaintiff does not necessarily mean that one gets back one's reputation, one's job or one's money. I speak with a certain amount of feeling on this point since in 1970—admittedly, a long time ago—I was required because of a defamatory allegation to leave the Front Bench of your Lordships' House. It was nearly two years—two very disagreeable years—before that matter was disposed of. I shall return to that in a moment.
I should like to mention first the case in which I was clearly at fault when unintentionally I libelled the trade union leader, Mr. Alan Sapper, on the radio. Having done that and having ascertained that I was mistaken, I was of the view to apologise immediately. Those were my instincts, but I was advised by legal advisers that it would be an unwise thing to do because to apologise immediately might give ammunition to an opponent who was already threatening legal proceedings and who might be angry. I am happy to say that in the end the matter was disposed of reasonably amicably by the paying of a small amount into court which the plaintiff accepted. There was no guarantee that he would accept and we could have found ourselves on a collision course of mutual assured destruction which is so often, sadly, the role of both plaintiff and defendant in libel actions.
Had Clauses 2 and 4 of this Bill been in effect when that occurrence took place, I would immediately have made amends and I believe that it would have been possible to settle the matter within a few days. In the event, it dragged on for many months and cost a large sum of money—not in the amount paid into court, but in legal expenses.
A number of comments have been made about the perils that lie before a plaintiff in a libel action, most notably by the noble and learned Lord, Lord Hoffmann, whose maiden speech I also found extremely interesting, and to whom I believe many people in public life and outside will be grateful in the future for his contribution and his suggestion for simplifying libel proceedings by the establishment of a "fast track", an idea which I support most warmly.
I return to the problem of someone who is seriously libelled, as I was in 1970. One is then between a rock and a hard place in that the world outside which only dimly understands such a problem will immediately say, "If there is no truth in this allegation against Mr. X, why is he not taking legal action?" The reason may well be that the funds are not there. As was pointed out to me at the time, the test of who has the more money in the bank is often more important than who has the stronger case. The defendants in that case made it quite clear that they would do everything possible to invoke the delays of the law and to up the costs as much as possible in the hope that the money, the time or the patience would run out. That is not a difficult thing to achieve when the plaintiff is under great pressure in the sort of circumstances that I have described.
Another point that has not been made this afternoon is that while a plaintiff is fighting his case, the defendant will see it as his right—indeed, his duty—to do everything he can to besmirch the plaintiff's reputation. If he can succeed in that, he may very well win his case. Under the

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cloak of what I believe is called qualified privilege, the agents of the defendant are entitled to make exhaustive inquiries about the plaintiff in the hope of gathering what they would call "dirt" in conversation, which can be used in court in the hope of establishing the fact that the plaintiff has a murky reputation, thereby winning the case in a disagreeable and traumatic way.
I can think of many cases where that has happened. One, of course, was the famous case that dragged on for many years, if not decades, of the Czech pilot of the plane in which Prime Minister Sikorski of Poland was killed in 1943. The pilot was accused of crashing his own plane to kill a passenger on board, a manifestly absurd allegation, but it took very many years before anything was done to exonerate the pilot.
There is a case, the merits of which I shall not go into, which is being fought at the moment of an American journalist, originating in Yugoslavia, who is suing Time magazine over allegations made about him which resulted in the loss of his job as a journalist. Again, the rich corporation which is the defendant in the matter has made it clear that it will do everything it possibly can to take the matter to the highest court in the land, or indeed beyond, to ensure that the plaintiff runs out of money, and does not pursue it. That is Russian roulette or high-stakes poker, and the private citizen is in a weak position when he tries to protect his own reputation.
We must face the fact that only a few people at present have the chance to bring a case of libel, and to see it through to the bitter end. It usually is a bitter end. One does not have to go into the merits of the case of my noble friend Lord Aldington to see the grave effects that it had on him, even though he won hands down and his reputation was cleared. He did not, of course, get back his money. He won his reputation but not his money.
Many people never recover emotionally or professionally from having been libelled. I therefore welcome the fast-track approach put forward in the Bill. My only question which I hope my noble friend the Minister may be able to address is: what will be the cost? Will it be possible to estimate the cost that can be put at the door of a plaintiff who voluntarily goes to this fast-track solution? Since the costs of the fast track are expected to be reasonable, there might be a case for granting legal aid for a plaintiff in such a situation. One of the criteria for granting legal aid should he that the plaintiff has no alternative but to go to law. It is not so much the merits or the strength of the case but the fact that the plaintiff has to go to the courts if he is ever again to have a reputation, to find employment or to recover. Such a plaintiff may be in a position similar to a piano player who loses a finger or a footballer who breaks a leg. The effect of a serious libel can be devastating.
In conclusion, I agree with all those who have said that a public interest defence to a libel allegation would not be appropriate in this Bill. I hope that the Government will resist it. The American analogy has been put forward by lobbyists and by the newspaper industry. I would prefer to move in the Continental
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direction towards a law of privacy and towards the kind of provisions contained in the European Convention on Human Rights. A libel can be a very great wrong. It should be avoided wherever possible. No one in their right mind would sue for libel unless they absolutely had to. If they have to, they will be greatly benefited by having access to the fast track proposed by the present Bill. I congratulate those who have promoted it.
3.26 p.m.
Lord Simon of Glaisdale: My Lords, perhaps in the gap I may raise one point of which I hope the noble Lord has been given notice. It relates to gagging writs. They are generally felt, and especially recently, to shut out information which if it had been published would have precluded a great deal of loss and scandal. I suggest that we might learn something from the jurisprudence relating to patents.
Formerly, a powerful corporation owning valuable patents would readily issue a writ for infringement in the hope of frightening off a rival, newly-registered patent. That was felt to create such wrong that the law was changed and it is now actionable to issue such a writ without reasonable cause. Unless reasonable cause is shown, damages may accrue to the person against whom the patent infringement risk is issued. Might we not consider that in the context of gagging writs of defamation?
3.28 p.m.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, I am grateful to all those noble and often learned Lords who have spoken in support of the Bill. I must begin by reiterating the remarks made by my noble and learned friend the Lord Chancellor thanking the noble and learned Lord, Lord Hoffmann, Lord Justice Neill and the other members of the working group for the immensely valuable work that they have done in enabling us to bring forward the Bill now to make substantial improvements to the law of defamation in the United Kingdom. We have had two maiden speeches today. In its own way, each has been an ornament to this debate.
The improvements to the law of defamation which we are bringing forward have been subject to full consultation at different stages in their development. I wish to mention in particular the most recent consultation; my noble and learned friend the Lord Chancellor invited views on the detail of the drafting and on the clarity of structure and presentation. As we had hoped, the response was both enthusiastic and constructive, enabling us to resolve some minor doubts and difficulties which might otherwise have arisen.
Like most law reform Bills, this Bill is not party-politically contentious. But as we have heard today, even law reform Bills may contain provisions which are contentious at a technical level. I should like to deal with some of the points which have been raised during the debate and I shall do that in the order in which they appear in the Bill as drafted. I shall then deal with other points that I have not covered specifically.

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The noble Lord, Lord Lester, asked about the application of the provisions to Internet service providers. In the notes accompanying the draft Bill, published for consultation in July 1995, we invited views as to whether it would be helpful to introduce legislation clarifying any doubts as to when and where publication has taken place when computer networks are used. Those who responded were strongly in favour of legislation and several offered detailed models. However, it would not be right to attempt legislation without full consideration and consultation on all policy issues arising in the context both of defamation law and diverse other areas of law relevant to the use of those networks.
Service providers would fall within the example under Clause 1(3)(e) of those who will not be considered publishers; that is,
"the operator of a communications system by means of which a defamatory statement is transmitted, or made available, by a person over whom he has no effective control".
The noble Lord, Lord Williams, gave examples of plaintiffs who had good reason for deferring the commencement of an action. The court will have discretion in all the circumstances so that such plaintiffs may be better off than under the existing law.
The noble Lord, Lord Lester, raised a point which had been drawn to his attention by the noble Earl, Lord Mar and Kellie, about the scope of Clause 7. If the noble Lord refers to Clause 18, he will discover that it is specifically excluded from application in Scotland. I hope that that answers that question.
There was a considerable amount of debate about what I might describe as "the noble and learned Lord, Lord Hoffmann's baby"—the summary procedures. I should be interested to know what other useful ideas have been conceived at the dinner table of the late Lord Rothschild. It seems particularly apposite that it is at the birth of his own "baby" that the noble and learned Lord makes his maiden speech. Indeed, I am mightily impressed by the noble and learned Lord. It had never crossed my mind to turn from the Dispatch Box to the noble and learned Lord, Lord Ackner, when he interrupted me, and to look at him with a mien of pity and incredulity.
As regards the recommendations against summary procedures made by the Neill Committee, we believe that the provisions as revised in the Bill overcome the general criticisms of the summary procedures as originally drawn. We have consulted Lord Justice Neill and members of his working group. We believe that he is content that his concerns have been met.
As has been said, those provisions have been welcomed warmly by many people who have experience of libel litigation, including judges with very great experience of trying the claims, both with and without juries. We believe that they fulfil a very real need and will be exceptionally beneficial for those people whose reputations have come under attack and
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who should be vindicated but who are daunted by the prospect of launching proceedings against those who would be in a position to drag out the litigation at great cost, even where it must be plain that there is no real defence. As my noble friend Lord Bethell said, a failure to act may raise questions.
Plaintiffs in defamation cases frequently say that all they really wanted was swift vindication and a prompt public recognition that they had been wronged. That will now be possible. When the court decides that the claim is suitable for such summary disposal, the whole procedure will be much quicker and cheaper than an ordinary trial. Where it is not appropriate, the parties will be made to define and clarify the issues between them much sooner than they do at present and that must all be for the good.
Reference was made by a number of speakers to damages and the Faulks Committee's recommendation that the role of the jury in assessment of damages should be reduced. The Law Commission is examining that matter and the remedy of damages and has recently issued a consultation paper on non-pecuniary loss. It has considered the Faulks recommendation but the commission's provisional view—and I emphasise the word "provisional"—was that it was not workable.
After dealing with the question of damages in general, we then moved into the jury room with the distinguished maiden speech of the noble Lord, Lord Grantley. As I listened to the noble Lord's speech, it occurred to me that he was managing to reach those parts of the judicial process that both lawyers and Members of your Lordships' House do not normally manage to reach. It was particularly interesting to have that insight from the other side of the veil.
I should like to turn now to some of the points raised which do not fall directly within the scope of the Bill—
Lord Lester of Herne Hill: My Lords, before the Minister does so, as my noble friend Lord Mar and Kellie is not here, perhaps I may mention that I believe it is not correct to say that his point is dealt with in Clause 18(2). That provision applies Clause 7 to Scotland. My noble friend's point was that that is unnecessary because the problem that Clause 7 deals with does not arise north of the Border. Can that point be reconsidered?
Lord Inglewood: I am most grateful to the noble Lord, Lord Lester. In fact the noble Lord intervened just before my reinforcements arrived explaining that I had misled the House on the matter. I must crave your Lordships' forgiveness. The noble Lord, Lord Lester, is right and I was wrong.
I should like to turn away from the Bill as drafted and, as I was saying, deal with a number of other points that were raised in the debate. It was suggested that there should be a remedy for people who have problems with what has been published about them, although it falls short of being defamatory. That point was raised by the noble Lord, Lord Finsberg. Although I can understand that people may sometimes be less than enthusiastic about receiving uninvited publicity, it is always necessary to remember the importance of our

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right of freedom of expression. It is proper and necessary that the right to freedom of expression should be subject to the right of the individual not to be falsely defamed. But we would always need to exercise the utmost caution in imposing restrictions on that essential freedom.
The noble Lord also referred to parliamentary privilege and the case of defamation proceedings brought by Members of the other place. The purpose of introducing the Bill was to bring forward a number of law reform proposals on detailed drafting, structure and clarity of presentation, upon which the Government had already consulted widely before we published the Bill last July.
It was at almost exactly the same time that the two defamation actions involving the Members of the other place came before the High Court and drew attention to the problem mentioned by the noble Lord. The issues which it raises are indeed of great importance and, I would add, of great difficulty. I know that serious concern has been expressed about them and is shared by many people, especially in the other place. We acknowledge the gravity of the problem and desire to find a solution to it. But it must be said that finding the right solution cannot be the most straightforward of tasks.
However, while the Bill is in Parliament it may provide an opportunity to address the problem. Of course, we welcome that. Naturally, we would consider any amendments brought forward, and their implications, most carefully.
My penultimate remarks will be addressed to a subject mentioned by several speakers; namely, the so-called "Sullivan defence". Our view is that there is no place for such a defence in our defamation law. We endorse the reasoning and conclusion reached by the Neill Committee when it considered the suggestion. Media representatives proposed to the committee that there should be a defence similar to that applied in the United States which confers privilege in respect of statements defamatory of public figures unless the publication is activated by malice.
The committee took the view that standards of care and accuracy in the press were not such as to give confidence that a Sullivan defence would be treated responsibly. It would mean, in effect, that newspapers could publish more or less what they liked, provided that they were honest, if their subjects happened to fall within the definition of "public figure". We agree that the media are adequately protected by the defences of justification and fair comment at present. It is salutary that those defences are available only if the facts are substantially correct. What matters is the subject matter of the publication and how it is treated rather than who happens to be the subject of the allegations.
The committee also understood that a consequence of the Sullivan defence in America was that potentially
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public figures were seeking to expand the common law of privacy to compensate for the remedy being closed off in defamation. In any event, as Sir Michael Davies pointed out recently while delivering a judgment on this point, the public figure defence has its origin in the United States, but the culture of that country is not the same as in other countries, including the United Kingdom, and what is appropriate in the United States is not always appropriate elsewhere.
The noble Lord, Lord Lester, asked for clarification that the Bill is not intended in any way to restrict the traditional role of the judiciary in deciding upon the balance to be struck and maintained between the right to a good reputation and the right to free expression. I am happy to assure the noble Lord that there is no intention to restrict that traditional role. If the noble Lord apprehends that there is some provision in the Bill which could be taken to suggest otherwise, we should certainly wish to look again at that provision and do something about it.
Finally, before concluding, I wish to address the point raised by the noble and learned Lord, Lord Simon of Glaisdale. The Government have taken note of the point raised by the noble and learned Lord and will be pleased to consider it further at Committee stage.
In conclusion, I am grateful for the warm support which the Bill has received and for the contributions made by your Lordships in this Second Reading debate. It is now with pleasure and confidence that I reiterate the Motion standing in the name of my noble and learned friend the Lord Chancellor.
Lord Williams of Mostyn: My Lords, before the Minister sits down, I hope he can assist me on a number of specific questions that I raised.
Baroness Trumpington: My Lords, my noble friend will write to the noble Lord.
Lord Williams of Mostyn: My Lords, I was about to suggest that. The noble Baroness, Lady Trumpington, said that her noble friend will write to me. I was about to say that so, as always, we agree. I ought to say that the Minister has done manfully well in winding up for the Government in this difficult area. The questions that I raised concerned criminal libel—Clause 20; previous convictions relating only to conclusive proof in so far as a plaintiff is concerned; and the question of allegations relating to an area distinct in the plaintiff's life from that which was sued upon. I was not going to suggest—I am sure that the noble Baroness, Lady Trumpington, quite understood this, which is why she assisted me—that I should be given an immediate reply. However, I believe it would be helpful generally if we had the Government's considered view on that. I take it that the Government have a considered view on these matters.
Lord Inglewood: My Lords, by the definition of things, the Government have a considered view on everything. I shall, of course, write with the replies to the noble Lord.
Lord Lester of Herne Hill: My Lords, I should be most grateful if the same courtesy could be extended in respect of my questions about statutory privilege.
Lord Inglewood: My Lords, of course that will be the case.
Lord Bethell: My Lords, I hope my point on legal aid for the fast-track procedure will be answered.
Lord Inglewood: My Lords, I shall willingly write to almost everyone.
Lord Ackner: My Lords, I hope there will be copies in the Library.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at eighteen minutes before four o'clock.