Lords Sitting of 30 January 1997

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

Catering Colleges: Performance
The Earl of Bradford The Earl of Bradford asked Her Majesty's Government:
Whether they are satisfied with the performance of the catering colleges.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, students who take catering courses generally leave with good levels of knowledge and skill, well fitted for careers in catering. We cannot be precise about how many enter the catering industry. Some colleges already collect substantial amounts of student destination data. We should like to see all colleges publish such data, and we announced in the recent White Paper, Learning to Compete, proposals for an additional college performance indicator on student destinations.
The Earl of Bradford: My Lords, I thank my noble friend the Minister for his reply. Does he realise that the catering industry will be delighted with the proposal that, in future, catering colleges will have to publish the results of their success or failure? However, will he give an undertaking that that will be carried through? There is enormous concern within the catering industry at present that the colleges are training the wrong people in the wrong way, and that those people are not entering the catering industry at the end of their courses. Indeed, too many students are not completing their courses at all.
Lord Henley: My Lords, I am grateful for my noble friend's response. I give the undertaking that we shall publish some sort of student destination data, in the form of tables, in due course. It is important to make sure that the information published is not over-detailed, thus impairing the effectiveness of the tables. We should like to see other information coming from colleges so that local communities can see just how well they perform.
To respond to my noble friend's second point regarding concerns about the kind of courses that various colleges pursue, I assure him that there is considerable inspection of courses in the further education sector. Of the hotel and catering classes inspected during 1995-96 only about 7 per cent. were found to have weaknesses which outweighed their strengths.
Lord Morris of Castle Morris: My Lords, will the Minister tell the House how many colleges plan to close down the courses that they offer because there is not enough demand? How many new courses are being
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proposed? And, if everything is so good in those colleges, why do 30 per cent. of those who enrol on the courses drop out?
Lord Henley: My Lords, one can never give absolutely definite reasons as to why people drop out of courses, whether in further or higher education. In the main, we have relatively low drop-out rates compared with those of our international competitors.
I assure the noble Lord that there is a total of some 218, 700 students in colleges taking qualifications in hotel and catering programme areas. Of those, some 129, 000 were funded by the Further Education Funding Council; a further 89, 000 were funded from other sources such as TECs or employers. It is important that employers have an involvement in these matters.
Baroness Gardner of Parkes: My Lords, what is the position regarding raising the status of people working in such positions? Is he aware that, by introducing training for butlers, Ivor Spencer has produced a great feeling of status among those wishing to take up that type of work? Will my noble friend say what the Government are doing to ensure that those in the catering field are also encouraged to look upon it as a real profession?
Lord Henley: My Lords, I hope that by providing appropriate training we are playing our part, to the extent that governments can play any part in these matters, in raising professional status. It is for the industry itself to make sure that the status of the profession is raised to the appropriate level, just as pay is a matter for the industry itself.
The Viscount of Falkland: My Lords, are not the implications of the noble Earls Question rather worrying? I am sure the noble Lord will agree with me, as we are both members of the same club. If you hire catering staff and you cannot rely entirely on candidates coming from catering colleges, where on earth are you to find people to fill the posts?
Lord Henley: My Lords, catering colleges are not the only means by which students can be trained for the profession. There are modern apprenticeships which have been very successful, particularly in the catering industry.
As I made clear, we train a large number of students on various hotel and catering courses. There is a degree of concern in the industry that not enough people come out of those courses into catering. That is why we would like to see indicators in the performance tables as to the destinations of students so that we know where those students go having completed their courses.
Baroness Platt of Writtle: My Lords, does my noble friend agree that one good way to make sure that there is a proper match between the courses provided in the local colleges and the needs of local industry is for industrialists to serve either on the governing body or advisory committee of colleges, or on the local TEC?
Lord Henley: My Lords, that is exactly what we do. The more involvement by the appropriate industries in training the better. It is obvious that the Government themselves cannot decide precisely how many people any given industry is likely to need. That must be a matter for the industry concerned.
Lord Morris of Castle Morris: My Lords, as the Minister was unable, for good reasons, to give me any explanation as to why 30 per cent. of trainees drop out of the courses—it is a high figure—can he also take into account the other question that I asked? Perhaps he would write to me about it. It was: how many colleges are planning to close the courses for which there is a reduced demand, and are new courses being proposed in any colleges?
Lord Henley: My Lords, I have no figures for possible closures of courses by individual colleges. If there are figures, I should be more than happy to write to the noble Lord. As I made clear, considerable numbers of students are being trained in the hotel and catering sector. The problem seems to be that not all those go into that sector for employment.
Viscount Montgomery of Alamein: My Lords, is my noble friend aware that hospitality is a huge growth industry employing more than 2 million people in hotels, restaurants, pubs, the public sector, private catering and so on? Is he further aware that there are considerable job opportunities in that field? Is he convinced that the Further Education Funding Council is providing adequate resources so that the colleges concerned can provide an adequate supply for the growing demand?
Lord Henley: My Lords, my noble friend is absolutely right to point to the size of the industry. I am satisfied that the Further Education Funding Council has sufficient money to meet the demand.

EU: Flexibility
3.13 p.m.
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
Whether the inclusion of the principle of flexibility in the proposed treaty to amend the Treaty on European Union will work to the United Kingdom's advantage rather than its disadvantage.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, the Government believe that the European Union should be able to respond more sensitively to the needs of an increasingly diverse membership. Although it is too soon to prejudge the outcome of the IGC, any eventual flexibility arrangements must be tightly circumscribed. In particular, such arrangements must be agreed by all.
Lord Wallace of Saltaire: My Lords, I welcome the Minister's definition that the flexibility clause needs to be tightly circumscribed. Does he agree that since the Prime Minister floated the concept of flexibility in his Leiden speech, its definition has largely changed to one in which other governments wish to use flexibility to leave Britain out, rather than to allow us to opt in? Does the Minister also agree that the French definition of "enhanced co-operation" as the way we move forward takes us towards a core Community from which Britain would be left out? That is clearly against the interests of this country.
Lord Inglewood: My Lords, the noble Lord is quite right to point out the mutation that has taken place in the way in which the concept of flexibility has been used. We advocate flexibility by consent so that any agreement would be agreed by all and open to all; and there would be no discrimination. Certain others have approached the matter in a different way, seeing the concept of flexibility as a way of blazing a trail and to hijack the wider, better, proper definition of "flexibility", turning it into a characteristic so that those outside it would be treated as second class. We cannot accept that.
Lord Clark of Kempston: My Lords, is the Minister aware that it is essential to keep flexibility because if we lose it we could lose the argument about the social chapter and the minimum wage? If either of those were to happen, it would kill the competitive position of industry in this country.
Lord Inglewood: My Lords, my noble friend is quite right to point out that flexibility is already enshrined in the workings of the Community in the social chapter. The arrangement that was negotiated at Maastricht was accepted by all member states.
Lord Richard: My Lords, may I congratulate the Minister on producing, if I may say so with respect to him, as uninformative a series of answers as I have heard in either House over my 35 years in politics? He said nothing and he said it quite loudly. Perhaps I may ask two questions. I gather that flexibility is to be reinterpreted as sensitivity. In those circumstances, can the Minister tell us what it is that the union should be flexible or sensitive about? What principles should govern the exercise of that flexibility or sensitivity? In what circumstances should it be applied? Are countries expected to be more sensitive and more flexible?
As regards the Minister's answer to his noble friend Lord Clark, will he deny the implication of that answer? It is that we will be flexible when it is in our interests to be so, but we shall not be flexible when it is in anyone else's interests for us to be flexible.
Lord Inglewood: My Lords, I am most grateful to the noble Lord, Lord Richard, for offering me congratulations. It does not happen all the time. In the run-up to the IGC, no one can know what conclusions might be reached at the meeting. We have not tabled

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any proposals at the IGC about flexibility; it is merely an idea that was first raised by the Prime Minister some two years ago at Leiden. More recently, the Prime Minister spoke to Mr. Wim Kok, President of the Council, on the topic earlier this year. In formulating this approach, it is a matter of trying to ensure that if flexibility is introduced further into the workings of the Union, the interests of non-participants are given proper consideration.
Lord Barnett: My Lords, I recognise that flexibility has now become "a many-splendoured thing". However, in the Government's view, is it flexible enough to reconcile the views of the Prime Minister, the Chancellor of the Exchequer and the Deputy Prime Minister in respect of a single currency? The Deputy Prime Minister and the Chancellor have made then-views crystal clear; namely, that the "wait-and-see" policy remains. But in that well-known magazine the New Yorker, the Prime Minister is quoted as saying that if he were Chancellor, he would not like to come to the Dispatch Box and say, if interest rates had gone up three points, "I'm sorry, but it's no fault of mine, guv". I quote his words. In those circumstances, the Prime Minister agreed that it meant that in principle you could not go in. That is clearly not the same as what was said by the Chancellor of the Exchequer and the Deputy Prime Minister.
In those circumstances, would the Minister care to tell the Prime Minister—and he can afford to do so now because he will not be there much longer—that in any event, in or out of the single currency, a Chancellor of the Exchequer would have little real room for manoeuvre on interest rates? Would the Minister care to reconcile the different views?
Lord Inglewood: My Lords, the Government's position on the matter is both clear and consistent. I should be delighted to pass a message to the Prime Minister that the noble Lord has some comments that he would like to draw to his attention.
Lord Wright of Richmond: My Lords, does the Minister agree that whether the concept of flexibility is to our advantage or disadvantage, what is undoubtedly to our disadvantage is the increasing impression being given to our partners that the European Union is some foreign body of which we are not members, of which we do not wish to be members and which we cannot and do not wish to influence?
Lord Inglewood: The noble Lord, Lord Wright, is quite correct in his appraisal of the position. It is not the Government's policy to give the impression that he has described.
Lord Pearson of Rannoch: My Lords, is my noble friend aware that many of us would wish to congratulate the Government, if, in their interpretation of the expression "flexibility", they are determined to avoid any weakening of the veto?
Lord Inglewood: My Lords, there is no direct link between the development of the ideas inherent in the concept of flexibility and the weakening of the veto.
Baroness Farrington of Ribbleton: My Lords, is the Minister prepared to tell the British public whether the Government intend to exercise their flexibility on the issue of the national minimum wage and inform them of the rapidly soaring public subsidy to employers who pay below subsistence wages?
Lord Inglewood: My Lords, it is not the policy of the British Government to have a minimum wage, and there is nothing more to be added.
Lord McNally: My Lords, are Ministers aware that there is an audience other than his divided party which has views on flexibility? Does he consider that a company such as Toyota will be prepared to invest £700 million in Britain to create 2, 500 jobs, or a further £200 million to create 1, 000 jobs, when we have a government that do not know whether they are in or out?
Lord Inglewood: My Lords, the Government are most grateful for what the Toyota company has done in bringing prosperity and jobs to this country.
Lord Dixon-Smith: My Lords, does my noble friend agree that some flexibility of view between individual colleagues is to be preferred to a situation in which only one view is allowed to prevail?
Lord Inglewood: My Lords, the Government have a policy for which all the members are responsible collectively. At the same time, within that umbrella, there is room for disagreement on points of emphasis.
Lord Kennet: My Lords, are the Government grateful to Toyota for the advice which it gave them yesterday; namely, that it would do better and invest more in this country if we went into the EMU?
Lord Inglewood: My Lords, businessmen have expressed a wide range of opinions about the merits and demerits of joining the EMU. That is why the Government's policy of "wait and see" is so wise.

European Council Documents: Scrutiny
3.23 p.m.
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
What steps they propose to take to ensure that proposals put forward in the European Council are subject to the same procedures for parliamentary scrutiny prior to agreement as those submitted at meetings of the Council of Ministers.
Lord Inglewood: My Lords, in general, documents submitted to the European Council are already subject to the same parliamentary scrutiny procedures as those submitted to Council of Ministers meetings.

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However, the outcomes of European Council meetings are issued as conclusions of the presidency alone. The question of scrutiny reserves does not therefore arise.
Lord Bruce of Donington: I thank the noble Lord for that reply. Is he aware that even the proceedings leading up to the Council of Ministers meetings fail to meet the Government's and Parliament's requirements in regard to the time allowed for scrutiny? Is he further aware that, according to the Prime Minister himself, the procedures relating to the Council of Ministers do not apply to the European Council? Is it a fact that systematically information as to what has happened at the European Council is very late and does not enable the scrutiny committees to have any idea of the agreements that have been reached in the European Council until after those agreements have taken place? Does he believe that that is consistent with retaining the powers that the Government already possess to scrutinise properly European proposals for legislation?
Lord Inglewood: My Lords, there are three parts to the noble Lord's question. We recognise that mistakes have been made in the way in which documents have been made available to the scrutiny committee. We are unhappy about that. As the Lord President said in his letter to the chairman of the European Scrutiny Committee of another place on 26th October last, internal procedures have been tightened up. We are also encouraging more effective dissemination of documents from Europe, including by electronic means. We propose in the IGC a treaty change allowing a four-week period between issuing documents and Council decisions being taken.
Secondly, in the European Council, in the presidency conclusions, it is open to heads of government or heads of state to introduce the fact that things may be subject to scrutiny reserve, as was done in the case of the preparations for Stage 3 EMU in the conclusions to the Dublin Council.
Finally, the European Scrutiny Committee in another place is concerned about the point raised by the noble Lord in respect of the European Council conclusions. That is a matter which is being considered by the Procedure Committee of another place. The Government will comment when the findings and recommendations of the Procedure Committee are made available.
Lord Pearson of Rannoch: My Lords, my noble friend mentioned that the Government have tabled an amendment at the IGC to improve this matter. Can he give your Lordships any idea of the support that we anticipate in the IGC?
Lord Inglewood: My Lords, I understand that this is an idea which has been most favourably received.
Lord Bruce of Donington: My Lords, is the noble Lord aware that the same scrutiny committee to which he referred has raised this matter before? According to the committee's report, which I hold in my hand, the position has become worse rather than better over the
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past year. Will the Government please make representations—or are they submissions now?—to the European Commission that they should get a fax machine in operation so that we can have the documents here very much earlier rather than waiting for them to come, in our case, by ordinary Belgian post?
Lord Inglewood: My Lords, I fear that the noble Lord is a little old-fashioned. Our approach is to use electronic mail.
Lord Richard: My Lords, is the Minister aware that when Statements have been made in this House after European Council meetings—Statements which I have taken for the Opposition—I have continually said that people should read the communique and not merely rely on the Prime Ministerial gloss that is put upon it? Is he also aware that I do not have any difficulty whatever in obtaining a copy of the communique of a meeting which finished on the Sunday before I have to rise to speak in this House—usually on the Monday? Therefore, will he agree with me that perhaps the criticisms of my noble friend Lord Bruce of Donington—very uncharacteristically, my Lords—were perhaps somewhat overblown?
Lord Inglewood: My Lords, I am delighted to hear that at least in one respect the noble Lord finds things working most satisfactorily. I concur that it would appear to us that the strictures of the noble Lord, Lord Bruce, are a trifle—to use the noble Lord's word—overblown.
Lord Willoughby de Broke: My Lords, does my noble friend agree that far more than the communiques, to which the noble Lord, Lord Richard, referred are consistently late? The matter to which the noble Lord, Lord Bruce, referred is indeed a matter of concern. What assurance can my noble friend give that something will happen further than representations to the Commission or to the relevant authorities and we will get documents on time—I speak as a member of one of the committees—so that we can scrutinise them?
Lord Inglewood: My Lords, as I already mentioned, steps are being taken internally in government. As the Minister in my department who deals with a number of European matters, I can confirm that that is happening. At the same time, we are taking the other steps that I mentioned to ensure that those who are not under our direct control will deal with the matter more expeditiously.
Lord Tordoff: My Lords, is the Minister aware that, although what he said is accurate and successful efforts are being made to speed up the transmission of documents, there is still a serious delay in documents coming out of both the Commission and the Council before they reach this country? Further, is he aware that the recent documents on fishing quotas reached the Select Committee only two days before the Council that was due to agree them? Therefore, though matters are improving, is the Minister aware that there is still a long way to go?
Lord Inglewood: My Lords, I am grateful to the noble Lord, Lord Tordoff, for that helpful contribution. One of the advantages of dealing with these matters by electronic mail is that we can cut out the time it takes physically to communicate documents. That should, by the nature of that means of communication, infinitely improve matters.

Hospitals: Single Sex Accommodation
3.30 p.m.
Baroness Hayman Baroness Hayman asked Her Majesty's Government:
Following the Secretary of State for Health's announcement of 27th January concerning mixed sex wards, what proportion of current National Health Service in-patients are not entitled to a choice of single sex accommodation under the Patient's Charter provisions because they were admitted as emergency patients.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, 42.6 per cent. of admissions are emergency admissions. We do not know how many of those were placed in mixed sex wards but believe the number to be small.
Baroness Hayman: My Lords, is it not correct that that figure is the number of emergency admissions overall rather than of in-patients? If we take away the day cases, the vast majority of patients admitted to hospital are emergencies. Last year around 4 million in-patients were admitted as emergencies as against 2 million planned admissions. Is it not correct that emergency patients have no rights whatever to choose single sex accommodation under the Patient's Charter? Therefore, is not the Secretary of State's announcement this week yet another example of cynically raising patients' expectations and claiming to be taking action without properly planning or resourcing what will need to be done to give patients dignity and privacy?
Baroness Cumberlege: My Lords, I do not want to enter into a debate on the figures. Around half of all admissions are emergencies. The action taken by my right honourable friend the Secretary of State needed to be taken. We expected health authorities and trusts to take the issue seriously when the Patient's Charter was first published. Clearly they had a whole list of priorities and this issue did not come as high on the list as we felt it should. The Secretary of State therefore took action through the NHS chief executive. The Government have a proud record on resources in the health service. There has been huge investment. We have the Prime Minister's commitment that year on year on year on year on year, for five years, extra money will go into the National Health Service. That pledge has not been matched by the Benches opposite.
Lord Stoddart of Swindon: My Lords, it would be churlish of me not to welcome the latest initiative by the Minister's right honourable friend the Secretary of State on the matter of mixed sex wards. However, can the noble Baroness give an assurance that those patients who are admitted under the emergency procedures will be transferred without delay to single sex wards? Can she further assure us that those hospitals which find it financially difficult, for various reasons, to meet the standards set out by the Secretary of State in relation to single sex and mixed sex wards will be given additional resources to enable them to do so?
Baroness Cumberlege: My Lords, we would certainly wish that once a patient has been admitted as an emergency and then goes into a normal ward—if I may so express it—that patient's choice should be respected. Over the Christmas period I had to take my father into hospital at midnight. He was placed in an emergency ward. When I asked him afterwards whether he had been in a mixed sex ward, he could not tell me. He denied that he had been in such a ward. He did not notice that there was an extremely attractive young lady in the bed next to him. However, that may be on account of his age and his eyesight.
As regards emergencies, there is not a strong issue. People just want to be dealt with. When it comes to staying longer, that is an important issue. As to resources, we would not ring-fence for this specific purpose. We give more money to the health service every year and it is for local trusts and health authorities to set their priorities.
Baroness Masham of Ilton: My Lords, is the Minister aware that many patients admitted as emergencies are elderly? Does she agree that they sometimes become extremely confused, especially at night, and clamber into each other's beds causing great embarrassment and distress?
Baroness Cumberlege: My Lords, I suspect it depends on how much energy they have and how much determination. But the noble Baroness is right. Elderly people are admitted and it is inappropriate for them to be in mixed sex wards. That is something with which we strongly agree, and that is why we are taking the action we are.
Baroness Jay of Paddington: My Lords, is the Minister aware that, since the Secretary of State made his announcement at the beginning of this week, I have received reports that health authorities are still planning new mixed sex wards? I have heard from Wiltshire where the Westbury Hospital says in a press report that it is planning to open mixed sex wards. Does not that give rise to the overall question of what powers the Government have to insist that hospitals follow their so-called instructions on the matter? Is it not, frankly, a bit of pre-election public relations designed to improve the image of the Government without doing anything for patients on the ground?
Baroness Cumberlege: My Lords, we come back to the question: what is a mixed sex ward? Those noble Lords who have recently visited newly-built hospitals will recognise that wards may consist of bays which are very private. It is appropriate to have four people of the same sex within the bay, but the collective number of bays will be called a "ward". I have not looked at the design of the hospital mentioned, but I would be surprised if that was not the format being followed. Many people with learning disabilities or who are mentally ill live during the day in a normal family atmosphere but at night have separate sleeping accommodation. That too is called a "ward". It may therefore be a question of terminology.

Deputy Chairmen of Committees
3.37 p.m.
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Elton, the Countess of Mar and the Baroness Turner of Camden be added to the Panel of Lords appointed to act as Deputy Chairmen of Committees for this Session.—( The Chairman of Committees.)
On Question, Motion agreed to.

Home Energy Rating Surveys Bill [H.L.]
Lord Ezra: My Lords, I beg to move that this Bill be now a read a third time. In so doing, I thank noble Lords representing all sides of the House who supported the measure for energy efficiency.
Moved, That the Bill be now read a third time.—( Lord Ezra.)
On Question, Bill read a third time.
An amendment (privilege) made; Bill passed, and sent to the Commons.

Sea Fisheries (Shellfish) (Amendment) Bill [H.L.]
Baroness Wilcox: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—( Baroness Wilcox.)
On Question, Motion agreed to.

National Health Service (Primary Care) Bill [H.L.]
3.39 p.m.
Baroness Cumberlege: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—( Baroness Cumberlege.)
Baroness Jay of Paddington: My Lords, before we move to the detailed consideration of the Bill, perhaps I may raise a general question which would be difficult to consider under the amendments put down in my name and in the names of other noble Lords. I do not wish to delay the House long and I have given the Minister notice that I would raise this general question at this point.
I raise it now, and not on the amendments concerned, because what needs to be said in moving the amendments, particularly the amendments in the first group to be considered by your Lordships, may change. I do so in a spirit of genuine inquiry because it is appropriate that we understand the context in which we are debating these important amendments as we do so.
Can the Minister tell us what has happened to a number of government amendments which were originally tabled for Report stage and are not now before the House even though the understanding of the House was that they would be brought back at Third Reading. Those amendments were either withdrawn before the Marshalled List was prepared or, in the case of a very important amendment—Amendment No. 18—withdrawn by the Minister at Report stage after debate with the commitment, given at col. 834 of the Official Report of 23rd January, to bring it back at Third Reading.
None of those amendments is on today's Marshalled List. I raise the matter because all of those government amendments referred to "companies" or "bodies corporate". As noble Lords who have been involved in previous proceedings on the Bill will understand, this is a crucial question because we are concerned that under the Bill there might be an involvement of private commercial companies—for example, the supermarket chain Asda or the pharmaceutical chain Unichem—and that they might become entitled to employ general practitioners.
I am grateful to the Minister for her letter dated 28th January which I received yesterday. It said that one of the amendments to which I refer needed further consideration by her and her department. However, I understand that there were meetings yesterday between the Secretary of State and representatives of the medical profession which may have changed the understandings on which we have all proceeded. Does the fact that the absence of these amendments, which the Government had, as we understood it, intended to put down, mean that they have changed their mind about the involvement of commercial companies in general practice? Can that option now be ruled out despite what the Minister said in Committee at

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col. 1403 of the Official Report on 17th December 1996 about not ruling it out; or do they simply intend to bring the amendments back in another place?
I raise this general question now because it could change the whole context of the consideration of the Bill at Third Reading and particularly the consideration of the very significant first group of amendments.
Baroness Cumberlege: My Lords, the noble Baroness is right. We are looking again at these provisions. In order to ensure that the clause is consistent, we have tabled two amendments to reverse the consequential changes to it which were agreed at Report stage and which were dependent on the withdrawn amendment. I intend to explain in a moment that we are holding further discussions with the medical profession on this and on other issues. We think it would be premature to reach a decision before we complete those discussions. I hope that this will satisfy the noble Baroness.
On Question, Bill read a third time.
Clause 2 [Proposals for pilot schemes]:
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 1:
Page 2, line 40, at end insert—
("( ) An authority may only act in accordance with subsection (2) upon the request of a qualified person.").
The noble Baroness said: My Lords, in moving this amendment I wish to speak also to Amendments Nos. 2 and 5. All three amendments stand in my name and the names of the noble Baroness, Lady Robson of Kiddington, and the noble Lord, Lord Walton of Detchant.
These three amendments address our central concern to which I referred in my general inquiry that the deregulation of primary care proposed by the Bill will lead to the commercialisation of general practitioner services. We debated these issues at Second Reading. At that stage the Government dismissed as chatter our fears that family doctors could be employed by supermarket chains. In Committee we produced amendments to prevent private dividend distributing companies from setting up services under the terms of the Bill. The Minister told your Lordships that local health authorities would operate a screening process which would only allow new primary care arrangements which were in the interests of their local populations. But she did not deny, as she had done earlier, that these new arrangements could be operated by supermarkets or, indeed, any other private company. Noble Lords will be aware that many such companies have already shown interest in the business opportunities that they could exploit by becoming involved in GP practices.
We did not return to this issue at Report stage because we understood—and the Minister confirmed earlier—that the Government were discussing these questions with the British Medical Association and other interested organisations. However, although these discussions continue—I believe there was an important meeting between the Secretary of State and the chairman of the British Medical Association only yesterday—nothing has emerged publicly to reassure us that the Bill
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will not lead to the privatisation of the family doctor service, a prospect which we deplore in principle. There is nothing in the Bill as it stands to prevent commercial organisations from employing GPs or indeed working in partnership with them or National Health Service trusts.
The three amendments before your Lordships today—Amendments Nos. 1, 2 and 5—seek to limit the possibility of private sector involvement to such an extent that it becomes commercially unattractive for profit-making companies. Amendment No. 1 restricts the scope of health authorities in assessing and putting forward to the Secretary of State proposals for pilot schemes for new services. If the amendment is agreed, only those who are "qualified persons" within the meaning of the Bill—that is, NHS trusts, GPs and dentists—will be entitled to be considered as suitable applicants. Health authorities which are approached by commercial companies will not be able to submit their proposals to the Secretary of State. We feel that this is an important additional safeguard which does not allow discretion to the health authorities to decide who should go forward.
Amendment No. 2 again restricts and limits the options of the Secretary of State to approve pilot schemes. The amendment proposes that majority control of any pilot must remain with GPs or suitably qualified nurses. The amendment also seeks to ensure that 75 per cent.—three quarters—of the net income must go to the qualified practitioners. This would make it very unlikely that a commercial company would judge a private practice organisation to be a worthwhile investment. At the same time it would leave open the possibility that the practice organisation could, for example, sub-contract commercially for some services such as out-of-hours deputising. I am sure your Lordships will know that that kind of arrangement already exists, particularly in large cities.
Amendment No. 5 to Clause 13 similarly seeks to limit those who can become health service bodies within the meaning of the Bill for the purposes of NHS contracts. It limits the health service bodies to qualified persons, thus again excluding commercial companies.
As I said earlier, the overall aim of the three amendments is to ensure that the family doctor remains an independent professional working within the National Health Service. Only if this system is maintained will patients have the confidence that they are getting the kind of objective advice and treatment on which trust in the NHS has been successfully built. A doctor who works for a commercial organisation is, as a human being, almost bound to be susceptible to the commercial pressures of a private company whose primary interest must be its bottom line profits rather than patient care.
Let me remind noble Lords—I tried to do this briefly in raising the general question before we reached the amendment—of what has happened since the Bill was introduced in your Lordships' House at the beginning of December. At first the Government denied completely that there was any intention of allowing commercial companies into GP services. The Minister said at Second Reading—at col. 592 of the Official Report of

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4th December—that it was time to bring "speculation down to earth". By the Committee stage, and following the public announcements by companies like Asda, Unichem and Boots that they had what they saw as a legitimate interest in pursuing their own commercial concerns in this field if the Bill became law, the Minister said that she was surprised that anyone thought that NHS GPs would need protecting from competition. The noble Baroness admitted that there would be competition and that it might be from the private sector, but in her replies she relied on the resilience of GPs working on their own and the discretion of local health authorities to prevent the worst excesses. The noble Baroness also pointed out that, as our amendments sought to exclude dividend distributing companies, it might be difficult to draw the line between them and private practice partnerships.
I am sure that there can, and will be, similar objections to the details of the three amendments before your Lordships today. But the principle is clear: it is to prevent the commercialisation of general practice. It is a principle on which the British Medical Association is now conducting a campaign. It is seeking to mobilise the country's 36, 000 family doctors to lobby MPs if the Bill reaches another place. It has given a commitment to question candidates in the forthcoming parliamentary election about what their position will be on this matter. Of course, that cannot be a politically attractive prospect for a government in the few weeks before a general election bearing in mind that the prospect of getting the support of GPs has somewhat vanished since a poll yesterday showed that over 50 per cent. of doctors intend to vote Labour. However, if political reality has at last set in in the Department of Health, and the Secretary of State's meeting yesterday with Dr. Macara of the BMA has produced concrete concessions, I hope that the noble Baroness will make the position very clear and specific when she responds to these amendments. I beg to move.
Lord Campbell of Croy: My Lords, I, and I expect other noble Lords who have been taking part in the earlier stages of this Bill, received a letter from the BMA dated the 28th January which is only the day before yesterday. Therefore, we have received its views rather suddenly. I shall read out the particular part of the letter which I think is relevant. It hopes that it will be possible to alter any provision in the Bill which enables the Secretary of State to approve
"pilot schemes that are run for the benefit of commercial organisations rather than by NHS trusts or GPs".
We also—I certainly did—received considerable briefing material from the BMA before Christmas, which some of us were able to use to make points, as I did on Second Reading and also in Committee. But at that time the British Medical Association was concentrating on other matters in the Bill. On the whole it gave the Bill its general support. The points that it raised were about the MPC and two or three other matters.
As the matter that it is now raising is very important, I was not surprised to hear my noble friend Lady Cumberlege, in her earlier statement, say that the
1256
Government were still in discussion with the BMA on these points with a view, if possible, to reaching agreement. The BMA may well have misunderstood what the Government are proposing. I was not in the least surprised to hear that discussions were taking place and I welcome the fact that they are.
There should be plenty of time during the Bill's passage in another place—because the Bill still has to go through the other House—for the results of those discussions to be carried into the Bill or considered in relation to the Bill as it stands. I point out to your Lordships that this recent demarche by the BMA has come at very short notice. I hope that the Government will be able to deal with it because it is important that the medical profession and the Government should, if possible, be in agreement on the interpretation of the Bill and its objects.
Baroness Robson of Kiddington: My Lords, we on these Benches very much support the amendment. I know the question was raised before that we do not know where the discussions between the Government and the BMA will lead. But it is important that we register our views as regards commercial companies taking part in the provision of health services in this country. It is desperately important that only people who are qualified persons in the NHS—that is to say, trusts, GPs and dentists—should have the right to provide the services.
As has been said, it is important because in any commercial organisation the freedom of the GP to advocate and exercise independent clinical judgment is bound to be impaired. He will have to look over his shoulder all the time to see whether what he is doing is in line with company policy. That does not give us a National Health Service which is the same for everyone. I sincerely hope that the Minister is able to reply to these questions. I do not look forward to sending the Bill to the other place without having this matter resolved. This House will have finished with the Bill when it goes from here. I should like to believe that we have completed the Bill before it goes to the other place.
Lord Walton of Detchant: My Lords, I, too, should like to support these amendments so ably proposed by the noble Baroness, Lady Jay, for a number of reasons. Perhaps I may say first that there is nothing whatever to prevent a commercial organisation—as indeed happens at present—proposing and in fact preparing to provide private medical services, as has already arisen in a number of railway stations and other areas in the country where there are private clinics to which an individual can, in an emergency or even at their own wish, go to seek medical advice. That is in the private sector. There is nothing to prevent that happening at all.
Equally, many commercial organisations have an occupational health service in which they employ doctors. In the great majority of instances, the purpose of those occupational health services is to enable the doctors so employed by a commercial organisation to consider the possibility that individuals working for those organisations may have developed work-related conditions which require the expertise of someone with a particular training in occupational health.

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It is true that there are some organisations, such as universities, which employ doctors to provide a health service for their students and even for those, if they so wish, who are members of staff. But in such cases those doctors are independent contractors with the National Health Service, like general practitioners, with whom the individuals are registered.
I do not myself totally share the grave concerns expressed by officers of the British Medical Association that this Bill, if passed unamended, will lead to the creeping privatisation of the family doctor service. But I do have concerns about its provisions, unamended, which I believe it is right to share with your Lordships. The BMA supports the option of salaried service for GPs who wish to have such a service, recognising that there are many young doctors who might wish to work in the inner cities, which are very much in need of an improved family doctor service and where a salaried option may be of great advantage to them. The important factor there is that these individuals must, in our view, be employed by existing NHS organisations or by GPs themselves who should be the employing bodies.
The problem about the Bill, unamended, is that it could result in a third party entering into a contract or into a relationship between doctor and patient. There is no room for such a third party in the doctor's consulting room. As I said at Second Reading, my concern relates to a potential conflict of interest. Commercial organisations could seek to impose contracts with doctors which compromise the independence of GPs, perhaps requiring that treatment be carried out according to company protocols or that the doctors should prescribe particular drugs rather than being allowed to exercise their independent clinical judgment in the best interests of the patients.
I am concerned that the GP's role as the patient's advocate could be placed under pressure by commercial organisations seeking to cut costs and compromise on standards of care. Of course, doctors would be under a powerful professional obligation to resist such influences, but they could be placed in a difficult position of conflict with a commercial employer.
Is it evident to those concerned that all such commercial organisations (perhaps establishing the premises of a family doctor service within their own buildings) would be able to provide the very wide range of services which the existing family doctor services can provide for their patients such as out-of-hours calls, emergency care and the services of nurses and all other health professionals? It is possible that they could do so, but if a pharmaceutical company were the employing authority, is it not likely that the doctors might feel obliged, even if under no pressure, to prescribe the drugs that are the products of that particular company?
Those are some of my principal concerns. If it were possible that the commercial companies concerned would establish family doctor services under the NHS with salaried employees and in agreement with the local health authorities under an independent charitable trust funded by those companies, there would be no problem;
1258
or if those companies were prepared to establish a secondary not-for-profit company to provide such family doctor services, that is something which I would wholly commend. However, such companies would then ask what was in it for them. I suppose the answer is that the patients would be visiting the doctor's premises in such a setting and that the doctors would at least have the secondary ability to use the commercial premises and perhaps to purchase their products.
My concern is the potential conflict of interest between the employing company and the doctors. That is why, although not totally convinced of the strength of the case in every conceivable respect, I support the amendments which would have the effect of restricting those who can initiate pilot schemes for primary medical services to general practitioners and NHS trusts alone and prevent the Secretary of State from approving pilot schemes run for the benefit of commercial organisations. As things stand, under the amendments the commercial organisations would receive some benefit, but at least the employment of the doctors would not be a totally commercial proposition. That is why I support the view that NHS trusts or GPs should have the final say in the employment of such doctors under pilot schemes.
4 p.m.
Lord Dean of Harptree: My Lords, I was one of those who raised these points at earlier stages of the Bill. I was satisfied then with the clear assurances given by my noble friend the Minister. However, we now have the BMA's latest briefing in which it expresses concern about what it calls "commercial organisations" being involved in pilot schemes. As the noble Lord, Lord Walton, has just pointed out, the BMA fears that there could be a "conflict of interest" for doctors and other professionals. Clearly, that must be taken seriously. The professional integrity of doctors, nurses and others must be preserved. It is a vital ingredient in the doctor-patient relationship.
On the other hand, we have to bear in mind that flexibility is the essence of the Bill with a view to improving services for patients. Given that conditions vary greatly in different parts of the country, there has been a general welcome for that principle. As a consequence, it would be surprising if there were to be uniformity in the pilot schemes. Indeed, if uniformity in pilot schemes were to be the outcome, there is not much point in having the Bill at all.
The Bill contains at least five important safeguards which should help to reassure the BMA and others. First, it is clear that any pilot schemes must provide services on NHS terms. Secondly, those who work in pilot schemes must be "suitably qualified". Thirdly, the proposals for pilot schemes must be considered by the health authorities which will decide whether or not to submit those schemes to the Secretary of State. Fourthly, as I understand it, pilot schemes cannot go ahead unless the Secretary of State approves. In other words, the Secretary of State has the power of veto if he is not satisfied about the conditions or with the qualifications

1259
of those who are proposing to carry out the pilot schemes. Fifthly, the pilot schemes will be evaluated and can be stopped if considered to be unsatisfactory.
Those seem to me adequate safeguards. I hope very much that it will be possible in the negotiations which my noble friend and her colleagues are having with the BMA to reach an agreement which will preserve the integrity of doctors and others while allowing maximum flexibility in pilot schemes to improve services for patients.
Lord Rea: My Lords, I am not entirely convinced by the reassurances which the noble Lord, Lord Dean of Harptree, has given. He seems to have revealed a negative part of the Bill which gives a very great deal of responsibility to the Secretary of State over whether or not the schemes should continue. Of course, with the right Secretary of State, harm will be minimised, but on the face of the Bill the kind of developments that we have been considering can still go ahead. By their promotion of the idea of a primary healthcare-led National Health Service, the Government are showing how important they regard the part played by primary care in the NHS as a whole. For once, I agree with them. However, I must declare a bias as I have spent 35 years as a National Health Service GP.
Primary healthcare in the United Kingdom is improving, but it is still very far from perfect, particularly in the inner cities where, paradoxically, the need is much greater. I can see how pilot schemes might conceivably be helpful in terms of improving primary healthcare, particularly in deprived areas, but such schemes need to be part of the overall development of primary care which is occurring countrywide.
The amendments aim to keep pilot schemes in the hands of experienced NHS general practitioners working, I suggest, with nurses in almost every case. As my noble friend and the noble Lord, Lord Walton, said, the amendments would discourage those whose motivation in proposing pilot schemes is commercial gain. The amendments would strengthen rather than weaken the National Health Service whereas under the Bill as it now stands the weakening of the NHS is a possibility.
Like the noble Lord, Lord Walton, I am particularly concerned that pilot schemes might be financed by pharmaceutical firms which have very subtle ways of influencing how doctors prescribe. I can see many ways in which such firms might make life a lot nicer for doctors if they were to prescribe their products. I think that the House should support the amendments.
Lord Butterfield: My Lords, perhaps I may make just a few remarks which will raise wry smiles from my colleagues elsewhere. I regret one feature of this situation. We have heard a great deal about doctors and nurses and their views, but the question that we must now face is how we can do anything for those parts of our country which doctors and nurses have so far not come forward to serve. I am anxious that we do not forget the interests of the patients.
1260
If we were to have proper monitoring and consultation with regard to the developments that are taking place, it might be possible to do something for the people in deprived areas. I do not want us automatically to close the door on efforts to bring better medical care into our deprived areas. It is most unlikely that very experienced people will move into these areas. They have not done so for 49 years, and I do not think that there is much chance that they will move now. Those who are likely to move are the younger men and women who want to make a contribution. I do not want to close the door to younger people who can come and practise general practice in deprived areas.
I hope that the noble Baroness, Lady Jay, will not be cross with me for taking the view that it would not be a bad idea to have some pilot schemes under which local medical committees had the possibility of giving guidance and advice to the health authority who would be passing up advice on whether it should be acted upon.
The noble Lord, Lord Rea, spoke about the possibility of a more wicked Secretary of State beginning to do awkward things if he viewed commercial enterprises in a better light than others. I concede that that is the one weakness in my argument. But can one ever legislate permanently for the future without the requirement for some kind of damper to be placed on things that are taken badly or used wrongly? I hope that my old friends will forgive me, but if there is a Division on this matter, I shall walk out with my new-found friends on this side of the House.
The Earl of Donoughmore: My Lords, I am a general practitioner and qualified doctor but have not practised for many years. I am horrified that anybody suggests that commercialism should enter into the relationship between a doctor and his patient. I do not believe that there can be any place for that in any circumstances. I am worried as to why the Government even contemplated allowing it. Perhaps the whole matter was a mistake and they let the wording creep in.
I am afraid that I was not present during previous debates in this House. I hope that noble Lords will excuse me if the reasons for the possibility of commercialism in these circumstances have already been explained. I cannot see any justification for a third person to be involved in the discussion between patient and doctor. Further, I cannot see any justification for running the risk of commercialism, whether it be profit or otherwise—I suppose that it will be mostly profit. From what I have heard said on both sides of the House, it appears that most noble Lords are of that view. I hope that my noble friend the Minister will accept the amendment.
4.15 p.m.
Baroness Cumberlege: My Lords, first I should like to reply to the points made by my noble friend. The purpose of these pilot schemes is to introduce a degree of flexibility. I reinforce the view put forward by my noble friends Lord Campbell of Croy and Lord Dean of Harptree that we need to work with the medical profession and all of the professions involved in primary care. During the course of this Bill we have been very careful

1261
to ensure that its provisions are based on discussions with the professions. We are at one with them, and indeed your Lordships, in our determination not only to take primary care forward but to ensure that nothing in this Bill undermines or reverses past achievements that have been made in the whole field of primary care. I assure the noble Baronesses, Lady Jay and Lady Robson, and the noble Lords, Lord Walton and Lord Rea, that we want to protect the key values of the NHS that we know are so prized by the people of this country—independent clinical judgment, equity of access and the right of every patient to choose his or her GP.
As the noble Lord, Lord Dean, has said, our initiative is directed primarily to those who already work in the NHS: GPs, NHS dentists and trusts. We expect the overwhelming majority of pilot proposals to come from them. I recognise the strength of feeling both in your Lordships' House and within the medical profession about the risk of commercialisation from any other proposals that may come forward. We have listened and taken note of these concerns. The Secretary of State has already given an assurance that any scheme will have to be in the interests of the NHS and its patients and based on NHS principles, and will have to continue to deliver NHS primary care. The Secretary of State and the Minister for Health have both discussed these points and the issue of commercialisation generally at length with representatives of the British Medical Association—most recently yesterday. They concluded that they had shared aims and objectives on the matter. We are now discussing with the profession the precise means of delivering our shared aims. I hope that your Lordships will find that reassuring.
I turn briefly to Amendment No. 2. This adds no effective safeguards that are not already provided for in the Bill. Clause 9 and the regulatory powers in Clause 19 state that doctors must have the requisite training and experience to perform personal medical services. This is exactly in line with the rules in the current system. When the Secretary of State takes decisions on pilot proposals, he will want to know who will hold contracts and who will deliver the service. If this is unclear or does not identify a suitably qualified doctor the proposal will fail. It is important that effective responsibility is supported by clear accountability. We have secured this in the Bill. Full responsibility for ensuring that the services specified are provided for patients rests with whoever holds the contract: GPs or perhaps trusts. Full responsibility for professional behaviour rests with the individual professional. There can be no "three-quarter" measures here, as set out in the amendment. All patients will retain the right to choose their GPs. We feel that this amendment could muddy this clarity. The proposal that such practitioners and nurses should remain beneficially entitled to at least three-quarters of the income would strike at the root of the idea, which has been generally welcomed, that we should provide added flexibility to enable NHS trusts to employ GPs as part of a pilot.
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I turn to Amendment No. 5. Health service body status has always been intended for those with a substantial commitment to the NHS. To extend the concept to others would devalue it. Yet this amendment would prevent nurses or practice managers who are wholly committed to the NHS from jointly becoming health service bodies. They would not be able to share an NHS contract for services that they proposed to provide in partnership with GPs or dentists. It illustrates the difficulties that arise when trying to qualify the provision. But we are still looking at the right way of expressing Clause 13(1) of the Bill. In the meantime, I can confirm that the Secretary of State intends to exercise tight control over applications for health service body status.
In summary, these amendments do not take us forward. In the light of our amicable and positive discussions with the profession and the further work we are undertaking to deliver our shared aims and address concerns about commercialisation, I hope that your Lordships will reject these amendments.
Baroness Jay of Paddington: My Lords, I am grateful to the Minister for her reply, and to noble Lords who have taken part in this short debate. It is helpful to hear the views and concerns of so many distinguished members of the medical profession.
I refer first to the problem raised by the noble Lord, Lord Butterfield. I am not cross with him as he thought I might be; but, with respect, I suggest that he may have misunderstood both the nature of the Bill and the point that I seek to make in the amendments. We on these Benches have accepted and welcomed since Second Reading the fact that some liberalisation of primary care will enable doctors to be employed by NHS trusts and may provide young doctors with the opportunity to work in areas which they might not otherwise find attractive because they would not wish to be involved in private or independent practice in those areas. That is not the point. Our general concern about the principle is that although in particular circumstances it may be helpful for general practitioners to be employed by trusts—which the Bill refers to as "NHS bodies"—it is not acceptable that they should be employed by commercial organisations for the reasons so cogently made by noble Lords, in particular by the noble Lord, Lord Walton, who spoke about the inherent conflict of interest that this might introduce.
I am of course grateful to the Minister for describing the discussions that she and other Ministers are having with members of the BMA. I wonder whether I might ask her a direct question. She said that there had been general agreement with the BMA on shared aims. Does that mean that the Government now accept the position of the BMA which on 24th January said that the Bill, unamended, is the commercialisation of the family doctor service which will undoubtedly make privatisation of that service much easier. If that position is agreed between the Government and the BMA—if those shared aims

1263
include agreement about that—then there is no disagreement between us on these Benches and the Government.
My overall concern is that although the Minister's words were warm they were imprecise. We do not have a precise understanding of the nature of the general agreement with the BMA. My concern is that, if the amendment is put to your Lordships and is defeated, the Bill will pass from this House unamended and with only that general and imprecise form of words from the Minister to give an assurance that in another place, or in further discussions, our concerns will be met.
I am mindful of the points that the noble Lord, Lord Harris of Greenwich, made on Report. I am sorry that he is not in his place, and I hope that I shall not misquote him. He spoke about the timetable of the Bill and the fact that it would not reach another place on Second Reading until the second week of February. It would then take several weeks to be considered in Committee. Obviously, amendments to the Bill would not be able to be discussed until it reached Committee. My suspicion is that the Bill may just run out of steam, that it may not complete any serious discussion in another place before we run up against the barriers of a general election campaign.
In those circumstances it is important, and respectful to your Lordships, for the Minister to answer the question that I put to her—whether the general agreement which she expresses as having been reached with the BMA contains agreement that the Bill, unamended, would lead to the commercialisation of the family doctor service—before I decide whether to ask the opinion of the House. Perhaps the Minister would be kind enough to respond to that question.
Baroness Cumberlege: My Lords, it would be regrettable were the Bill to run out of steam, especially as its principles have the support of all three parties. I understand the concern expressed by the noble Baroness, Lady Jay. Her criticism that I have been imprecise is perhaps a worthy one. It is difficult, because we now have a general agreement with the BMA. I cannot be precise until those discussions have been carried further.
I am sure that within the next few weeks we shall see a degree of precision introduced. It will be a joint agreement, so that we can go forward together. At this moment I could not rule out amendments in another place, because it is obviously too early to say what those discussions will achieve. The principles have been established. We are at one with the BMA on our shared objectives. How we achieve them within the Bill will be difficult for us to determine until those discussions have reached a conclusion.
Baroness Jay of Paddington: My Lords, I am grateful to the Minister for that detailed reply. I am afraid that I feel that the principle of the Bill is still opaque. It is not respectful to your Lordships for the Bill to leave this House unamended and with that
1264
opaque nature of the central concerns that we and many noble Lords have about the undertakings which will be given on commercialisation. The Minister herself had to say that she was being imprecise. For those reasons, and because of the principle of the Bill which this central issue reflects, I must ask the opinion of the House.
4.24 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 127; Not-Contents, 151.

Division No. 1

CONTENTS

Acton, L.

Hylton-Foster, B.

Addington, L.

Ilchester, E.

Allen of Abbeydale, L.

Irvine of Lairg, L.

Allenby of Megiddo, V.

Jay of Paddington, B.

Archer of Sandwell, L.

Jenkins of Putney, L.

Ashley of Stoke, L.

Judd, L.

Bamett, L.

Kennet, L.

Beaumont of Whitley, L.

Kilbracken, L.

Berkeley, L.

Kilmarnock, L.

Blackstone, B.

Kinloss, Ly.

Blease, L.

Lester of Herne Hill, L.

Borrie, L.

Lockwood, B.

Broadbridge, L.

Longford, E.

Bruce of Donington, L.

Lovell-Davis, L.

Callaghan of Cardiff, L.

Macaulay of Bragar, L.

Calverley, L.

McFarlane of Llandaff, B.

Carlisle, E.

McIntosh of Haringey, L.

Carmichael of Kelvingrove, L.

McNair, L.

Castle of Blackburn, B.

McNally, L.

Cledwyn of Penrhos, L.

Merlyn-Rees, L.

Clinton-Davis, L.

Meston, L.

Cocks of Hartcliffe, L.

Methuen. L.

Currie of Marylebone, L.

Mishcon, L.

David. B.

Molloy, L.

Dean of Beswick, L.

Monkswell, L.

Dean of Thornton-le-Fylde, B.

Morris of Castle Morris, L.

Desai, L.

Murray of Epping Forest, L.

Donaldson of Kingsbridge, L.

Nicol, B.

Donoughmore, E.

Palmer, L.

Donoughue, L.

Paul, L.

Dormand of Easington, L.

Peston, L.

Dubs, L.

Plant of Highfield, L.

Eatwell, L.

Prys-Davies, L.

Exmouth, V.

Ramsay of Cartvale, B.

Ezra, L.

Rea, L.

Falkender, B.

Richard. L.

Farrington of Ribbleton, B.

Rix, L.

Fitt, L.

Robson of Kiddington, B. [Teller.]

Gallacher, L.

Geraint, L.

Rochester, L.

Gladwin of Clee, L.

Rogers of Riverside, L.

Gould of Potternewton, B.

Russell, E.

Graham of Edmonton, L. [Teller.]

Sainsbury, L.

Grey, E.

Saltoun of Abernethy, Ly.

Hanworth, V.

Sefton of Garston, L.

Haskel, L.

Serota, B.

Hayman, B.

Sewel, L.

Henderson of Brompton, L.

Shannon, E.

Hilton of Eggardon, B.

Shepherd, L.

Hollick, L.

Simon, V.

Hollis of Heigham, B.

Smith of Gilmorehill, B.

Holme of Cheltenham, L.

Soulsby of Swaffham Prior, L.

Howell, L.

Stallard, L.

Hughes, L.

Stoddart of Swindon, L.

1265

Strabolgi, L.

Walton of Detchant, L.

Symons of Vernham Dean, B.

Warnock, B.

Taverne, L.

Wedderburn of Charlton, L.

Taylor of Gryfe, L.

White, B.

Thomson of Monifieth, L.

Whitty, L.

Tope, L.

Wigoder, L.

Tordoff, L.

Williams of Elvel, L.

Turner of Camden, B.

Williams of Mostyn, L.

Varley, L.

Winchilsea and Nottingham, E

Wallace of Coslany, L.

Wise, L.

NOT-CONTENTS

Aberdare, L.

Gisborough, L.

Addison, V.

Goschen, V.

Ailesbury, M.

Granard, E.

AiLsa, M.

Gray, L.

Aldington, L.

Haig, E.

Alexander of Tunis, E.

Hailsham of Saint Marylebone, L

Ampthill, L.

Halsbury, E.

Anelay of St. Johns, B.

Harding of Petherton, L.

Annaly, L.

Harmsworth, L.

Astor of Hever, L.

Hayhoe, L.

Balfour, E.

Hertford, M.

Barber of Tewkesbury, L.

Holderness, L.

Belhaven and Stenton, L.

HolmPatrick, L.

Berners, B.

Home, E.

Birdwood, L.

Howe, E.

Blatch, B.

Inchcape, E.

Boardman, L.

Inglewood, L.

Bowness, L.

Jenkin of Roding, L.

Brabazon of Tara, L.

Kimball, L.

Brentford, V.

Kingsland, L.

Brigstocke, B.

Kinnoull, E.

Brougham and Vaux, L.

Knollys, V.

Buckinghamshire, E.

Lauderdale, E.

Burnham, L.

Lawson of Blaby, L.

Butterfield, L.

Lindsay, E.

Butterworth, L.

Liverpool, E.

Byford, B.

Long, V.

Cadman, L.

Lucas, L.

Caldecote, V.

Lucas of Chilworth, L.

Campbell of Alloway, L.

Luke, L.

Campbell of Croy, L.

Lyell, L.

Camock, L.

McColl of Dulwich, L.

Charteris of Amisfield, L.

McConnell, L.

Chesham, L. [Teller.]

Mackay of Clashfern, L. [Lord Chancellor.]

Clanwilliam, E.

Clark of Kempston, L.

Mackay of Drumadoon, L.

Cochrane of Cults, L.

Macleod of Borve, B.

Coleridge, L.

Marlesford, L.

Constantine of Stanmore, L.

Mersey, V.

Courtown, E.

Miller of Hendon, B.

Craig of Radley, L.

Milverton, L.

Cranbome, V. [Lord Privy Seal.]

Monk Bretton, L.

Cross, V.

Montgomery of Alamein, V.

Cullen of Ashbourne, L.

Mottistone, L.

Cumberlege, B.

Mountevans, L.

Davidson, V.

Moyne, L.

Dean of Harptree, L.

Munster, E.

Denbigh, E.

Mutton of Lindisfame, L.

Denton of Wakefield, B.

Noel-Buxton, L.

Derwent, L.

Northesk, E.

Dilhorne, V.

O'Cathain, B.

Dixon-Smith, L.

Orkney, E.

Downshire, M.

Orr-Ewing, L.

Dundee, E.

Oxfuird, V.

Elibank, L.

Palumbo, L.

Ellenborough, L.

Park of Monmouth, B.

Elles, B.

Pearson of Rannoch, L.

Elliott of Morpeth, L.

Pender, L.

Elton, L.

Pilkington of Oxenford, L.

Feldman, L.

Platt of Writtle, B.

Ferrers, E.

Pym, L.

Gainford, L.

Quinton, L.

Gardner of Parkes, B.

Rankeillour, L.

1266

Rawlinson of Ewell, L.

Teviot, L.

Reay, L.

Teynham, L.

Rennell, L.

Thomas of Gwydir. L.

Renwick, L.

Trumpington, B.

Rotherwick, L.

Ullswater, V.

Seccombe, B.

Vinson, L.

Selborne, E.

Vivian, L.

Shaw of Northstead, L.

Waterford, M.

Skelmersdale, L.

Whitelaw, V.

Strathclyde, L. [Teller.]

Wilcox, B.

Swinfen, L.

Willoughby de Broke, L.

Taylor of Warwick, L.

Wynford, L.

Terrington, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.34 p.m.
Clause 3 [Approval of pilot schemes]:
[Amendment No. 2 not moved.]
Clause 5 [Reviews of pilot schemes]:
Lord Walton of Detchant Lord Walton of Detchant moved Amendment No. 3:
Page 4, line 11, at end insert ("and
(c) the appropriate local representative committee or local consultative committee, as the case may be.").
The noble Lord said: My Lords, the noble Lord, Lord Colwyn, has asked me to move the amendment in his place as he is exercising his professional skills elsewhere. If this had been a purely dental amendment I should not have felt able to move it. My friendly relationship with my dentist has always been based upon the old principle that in my life there is one greatest thrill; what the dentist does when he stops the buzz and puts away the drill.
The amendment relates to an issue of importance to both the medical and dental professions. In the amendment local representative committees embrace local medical committees, as referred to in the NHS Acts; local consultative committees, which are the Scottish equivalent; and committees of GPs, dentists, optometrists and pharmacists. That is why the amendment includes the word "appropriate".
At Second Reading on 17th December the Minister said that the Government,
"are committed to working with representatives of the professions at national level on matters such as detailed operational arrangements and general criteria for evaluation of schemes".
Locally, the Government will expect health authorities, GPs and dentists to work together on proposals. The Minister also said:
"Local representative committees have a role, particularly in considering the implications of the proposed pilot schemes on existing arrangements".—[Official Report, 17/12/96; col. 1426.]
She also referred to powers in the 1977 Act.
I have been advised that both the British Medical Association and the British Dental Association believe that the local medical committee and the local dental committee respectively have a unique overview of the provision of services in their locality such as workforce issues and the health needs of their local populations. They represent the voice of their local doctors and dentists as a whole, including those who may put forward proposals for pilot schemes.
The whole purpose of this simple amendment is that the necessity for the Government to consult with these local representative committees should be on the face of the Bill. I beg to move.
Lord Colwyn: My Lords, I apologise for arriving in the House just as the amendment was called. I took the precaution of ensuring that the noble Lord, Lord Walton, had a list of the points that I wished to make. I am sure that he made them perfectly adequately and I commend them to my noble friend the Minister.
Baroness Hayman: My Lords, I support the amendment, limited though it is. At other stages of the Bill we discussed our concerns about the need for wide consultation with members of the professions and the public both when the schemes are initially put forward and when the Secretary of State examines the results of pilot schemes. The amendment fulfils one area of those concerns in that it will ensure professional consultation at the stage when the Secretary of State is evaluating pilot schemes. We welcome that.
We are worried that the amendment does not deal with the wider issues of public consultation which were discussed and widely supported throughout the House. However, I am sure that my honourable friends in another place will return to that issue when debating the Bill. We support this limited amendment.
Baroness Cumberlege: My Lords, I hope that during the different stages of the Bill I have demonstrated that consultation will be a key feature of piloting. However, we are not indifferent to the strength of feeling expressed by many of your Lordships and in the light of this we will consider whether some of the undertakings we have given might be given greater force on the face of the Bill. We will, if appropriate, come back with amendments in another place. I hope that on that basis the noble Lord will not seek to press the amendment.
I should like to return briefly to a related matter—the amendments put forward by the noble Baroness, Lady Robson, in Committee and again at Report stage, about timescales for pilot schemes. We remain concerned that a minimum timespan of, say, 18 months could hold up evaluation and perhaps a wider application of straightforward schemes that quickly prove their worth. However, on further consideration we accept that three years is an appropriate maximum timespan for a pilot. For the vast majority of schemes, three years will be long enough to demonstrate whether they have met their objectives. If any need longer, it may well be appropriate to evaluate them so that interim lessons can be learned. I am grateful to the noble Baroness, Lady Robson, for putting forward that point and I confirm that we shall introduce an amendment in another place to insert a maximum time span of three years into the Bill.
Baroness Robson of Kiddington: My Lords, I am very grateful to the Minister for agreeing to the three years as a maximum length of time for the evaluation.
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As I said when introducing the amendment, if the scheme goes on any longer, it becomes a permanent part of the National Health Service and is no longer a pilot scheme. I am deeply grateful for the concession that the Minister has made.
Lord Walton of Detchant: My Lords, with the assent of the noble Lord, Lord Colwyn, and in the light of the Minister's assurances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 4:
After Clause 11, insert the following new clause—
RETURNING TO FUND-HOLDING STATUS
(".—(1) Regulations must be made providing for a medical practitioner who—

(a) has provided or performed personal medical services under a pilot scheme, and

(b) in contemplation of doing so, gave up fund-holding status, to be allowed to return immediately to fund-holding status on satisfying the Secretary of State that, if he were granted that status, he would be able to fulfil the conditions for the time being in force for continuing to have it.

(2) For the purposes of this section "fund-holding status" has such meaning as may be prescribed.").
The noble Baroness said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 9, 10, 15, 24, 25, 26, 37 and 41. The purpose of these amendments is to enhance choice and opportunity for GPs. Fundholding is at the cutting edge of primary care, leading the way to improved health care on a number of fronts. It will be no surprise if a number of fundholders want to take part in pilots. During the wide-ranging consultation that we carried out last year fundholders were instrumental in pressing for the flexibilities that the Bill provides. There is no doubt that fundholding continues to bring many benefits to patients; one only has to look at the effects that fundholders, who group together to form what are known as multifunds, have had in raising standards of care for patients in the inner city. In Newham this form of collaboration between fundholders, the Newham Multifund, has increased the influence of both doctors and patients and has raised the standards of primary care.
As your Lordships are aware, the principle of involvement by enthusiastic volunteers is central to the Bill. Piloting will be by volunteers and it follows that volunteers should be able to leave the pilot if they so wish. Amendments Nos. 4, 9 and 10 provide for those GP fundholders, who decide to enter into a PMS pilot, or later on into the permanent arrangements, to be able to return to the fundholding scheme. If they can fulfil the relevant conditions, they will be able to return without needing to apply in the same way as a new fundholder. Their previous experience of the scheme will carry with it the appropriate weight and it is right that they should be able to return to fundholding with immediate effect.
Amendments Nos. 15 and 24 make clear which health authority or board will be responsible where members of a fundholding practice also provide personal medical

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services. Because GPs who provide PMS will not be on the health authority or board's medical list, existing arrangements cannot simply be carried over into the new system. Amendments Nos. 15 and 24 provide that the relevant health authority or board will be the one in whose area most of the patients of the practice reside. I hope your Lordships will agree that that is a sensible and logical way forward.
Amendment No. 37 makes it clear that GPs who provide PMS, other than those who are employed, may apply for recognition as a fundholding practice.
Amendment No. 37 and the Scots equivalents, Amendments Nos. 25 and 26, make various further amendments to Sections 14 and 15 of the 1990 Act and Sections 87A and 87B of the 1978 Act concerning fundholding practices. Some of the amendments ensure that the fundholding provisions in the Act apply not just to doctors who have individual lists of patients but also to doctors who have one practice list. That will not undermine the personal relationship between a GP and his patients. That is clearly prized by both doctors and patients and the current right of a patient to choose his or her GP is restated in Clause 20. It merely recognises that, in the future, some patients may wish to choose to be a patient of a practice rather than an individual GP. I commend these amendments to the House.
On Question, amendment agreed to.
4.45 p.m.
Clause 13 [NHS contracts]:
[Amendment No. 5 not moved.]
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 6:
Page 7, leave out lines 16 to 19 and insert ("the applicant is").
The noble Baroness said: My Lords, I should like to move Amendment No. 6 and in speaking to this amendment, I should like to speak also to Amendments Nos. 7, 11, 12, 13, 14, 16, 34, 35, 36, 38, 39 and 40. These amendments all make minor, technical and consequential changes. They ensure that amendments to other Acts of Parliament extend to the same territories as those covered in the original Act, and also that the current range of rules and provisions that apply to family health services also apply to pilot schemes and permanent arrangements.
Amendments Nos. 6 and 7 reverse two changes to the provisions about applications for health service body status made on Report. Those changes were consequential on the amendment to Clause 13(1) which I withdrew on Report. We want to consider those provisions further and hold further discussions with the professions. In the meantime, we need to ensure that the whole clause is consistent and these amendments will achieve that.
Amendment No. 40 makes consequential changes to ensure that complaints to the health service commissioner against self-employed doctors and dentists who choose to work in the new system are treated in the same way as if they were working under existing arrangements.
Finally, Amendment No. 16 is a consequential amendment which simply ensures consistency of language between Sections 97 and 97A of the 1977 Act. These amendments tidy up and help to complete the Bill. I hope that your Lordships will support them.
On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendment No. 7:
Page 7, line 27, leave out subsection (6).
On Question, amendment agreed to.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 8:
Before Clause 17, insert the following new clause—
APPROVAL OF THK MEDICAL PRACTICES COMMITTEE
(". All agreements made under this Act for the provision of personal medical services shall be submitted by the Health Authority concerned to the Medical Practices Committee, and shall be subject to the approval of the Committee, as if they were applications to provide general medical services under sections 29 and 30 of the 1977 Act.").
The noble Baroness said: My Lords, the purpose of this amendment is to make one final attempt before the Bill leaves your Lordships' House to ensure that the Medical Practices Committee plays an appropriate role in any new arrangements for primary care which may develop if the Bill becomes law.
The House will remember that concerns about that issue were expressed on all sides during the Second Reading debate, in Committee and on Report last week. Until now, we have not pressed the amendment dealing with the Medical Practices Committee because at every stage we were assured by the Government that the Department of Health was in continuing discussion with the MPC.
We hoped that those discussions would be fruitful and that the Government would bring forward amendments to substantiate the MPC's position. I understand that the most recent meeting between the MPC and the department was on Tuesday of this week, but unfortunately that did not produce any positive outcome and as your Lordships will have observed, there are no government amendments to that effect on the Marshalled List today.
Therefore, we believe that it is very important to reintroduce Amendment No. 8 this afternoon. Perhaps I may briefly—and at the risk of wearying your Lordships who have heard the arguments before—remind the House that the MPC has the statutory responsibility for overall manpower distribution in general practice. The committee does that in the interests of trying to achieve equitable primary care services in the NHS, a goal which we on these Benches feel is an essential aim of the health service.
The MPC carries out that task through the negative power of refusing a GP the opportunity to practice in an area which, from its national perspective, is already adequately covered. On Report, the noble Baroness, Lady Miller, who replied to the amendment, was

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rather disparaging about the effectiveness and work of the committee. She said:
"We find it difficult to see how the Medical Practices Committee—a small committee of some nine people in central London—could effectively second guess judgments taken locally by health authorities about such service issues and effectively have the power of veto over such decisions".—[Official Report, 23/1/97; col. 839.]
But as the noble Lord, Lord Butterfield, pointed out in his contribution to that debate on Report, the MPC has been doing that work since the beginning of the NHS. The noble Lord, Lord Butterfield, said:
"It has done a wonderful job. We should try to retain its guidance to ensure we maintain a good distribution of general practitioners".—[Official Report, 23/1/97; col. 838.]
As I reported to the House last week, in the current issue of the Health Service Journal the chairman of the MPC points out that the percentage of patients in so-called "under-doctored areas" has gone down from 26 per cent. to 1 per cent. in the past 17 years. That is a very good record and shown by any international standards to be an extremely good performance.
Amendment No. 8 simply seeks to maintain and extend that good record to the new systems of personal medical services which will be created by the pilot schemes allowed under the Bill. Until this legislation proposed almost total deregulation of primary care, no government since 1948 had sought to undermine the strategic function of the MPC. Judging by their responses both in Committee and on Report, the Government seem to be content to pass all those decisions to local health authorities which really have no capacity for a national overview; in other words, the MPC is sidelined. We on these Benches see that as further evidence of the fragmentation of the NHS. We are convinced that the diminution of the MPC's role will produce greater inequities in services which we do not want to see as a result of the Bill. 1 beg to move.
Baroness Robson of Kiddington: My Lords, I support the amendment, as I have supported the proposal at earlier stages of the Bill. We have benefited enormously from the overview of the MPC over the distribution of GPs throughout the country. Without that we would have found it even more difficult to cover GP places in those parts of the country where it is difficult to find people willing to practise.
It has often been said that the MPC is bureaucratic. But if noble Lords look at the way it functions, I am sure that they will agree with me that it is not. The MPC currently grants applications from between 50 and 100 doctors a week to be included in the medical lists of health authorities. It does so at its weekly meeting, with a staff equivalent to two-and-a-half people who process the papers. If its functions were devolved to health authorities, each of the 105 health authorities in England and Wales would have to undertake such procedures, the object of which is to ensure that only properly qualified doctors practise where they have been given permission. Without doubt the MPC has given an
1272
invaluable service to the NHS. If it is to go on doing so, it must be involved in the personal medical services. Otherwise, the committee will not be able to do its job.
Baroness Miller of Hendon: My Lords, noble Lords will recall that this amendment was moved on Report. I informed the House then that officials planned to meet the chairman of the Medical Practices Committee and the chairman of the GMSC to discuss how an equitable distribution of GPs can be safeguarded in the light of the provisions in the Bill. I am pleased to say that we believe that good progress has been made.
Agreement has been reached that, subject to some "light touch" national safeguards, there should be greater scope for local people to decide on the distribution of doctors within an authority's area to enable service inequalities to be addressed by those who know best the needs and circumstances of patients and that we should issue further guidance shortly.
Agreement was also reached on the need for a robust national overview of the general practitioner workforce so that a fair distribution between health authorities can be achieved. The MPC has an important contribution to make to this as does the NHS Executive's national resource allocation group which has representatives from the professions and health authorities and input from the academic community. The group advises the Secretary of State on resource distribution to health authorities and has an expertise in assessing the need for different services in different areas. We shall be looking to both the group and the MPC to work together to formulate a national view of GP distribution which can be applied both to the existing arrangements and to the new ones provided for in the Bill.
We are now considering urgently the implications of this agreed approach. In considering both pilots and permanent schemes, health authorities will need to take proper account of local workforce plans and the national overview of the GP workforce in a way which will ensure coherence and consistency with the existing Part II arrangements and produce greater fairness. The Government will be considering amendments which they will need to bring forward in another place to help secure this in the Bill. In view of that response, I hope that the noble Baroness will not find it necessary to pursue her amendment today.
Baroness Jay of Paddington: My Lords, I am most grateful to the noble Baroness, Lady Miller, for that extremely encouraging reply. I am delighted to hear that agreement, in principle, has been reached with the MPC and that its important role is acknowledged by the department. That is something that I am sure the MPC will be very happy about; indeed, it is something that I do not believe we have heard before from the Government during deliberations on the Bill.
We welcome particularly the view expressed by the noble Baroness regarding the need to maintain the national overall perspective on the distribution of GPs, which we feel is of crucial importance if the liberalisation of primary care goes ahead as suggested by the Bill. I am also pleased to hear the Government make the commitment to introduce amendments to that

1273
effect to bring into practice such general agreement when the Bill reaches another place. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Supplementary regulations]:
Baroness Cumberlege Baroness Cumberlege moved Amendments Nos. 9 and 10:
Page 13, line 40, at end insert—
("( ) The regulations must include provision for a medical practitioner who—

(a) has provided or performed personal medical services in accordance with section 28C arrangements, and

(b) in contemplation of doing so, gave up fund-holding status, to be allowed to return immediately to fund-holding status on satisfying the Secretary of State that, if he were granted that status, he would be able to fulfil the conditions for the time being in force for continuing to have it.

For the purposes of this subsection "fund-holding status" has such meaning as may be prescribed.").
Page 15, line 33, at end insert—
("( ) The regulations must include provision for a medical practitioner who—

(a) has provided or performed personal medical services in accordance with section 17C arrangements, and

(b) in contemplation of doing so, gave up fund-holding status, to be allowed to return immediately to fund-holding status on satisfying the Secretary of State that, if he were granted that status, he would be able to fulfil the conditions for the time being in force for continuing to have it.

For the purposes of this subsection "fund-holding status" has such meaning as may be prescribed.").
On Question, amendments agreed to.
Clause 36 [Short title, commencement and extent, etc.]:
Baroness Cumberlege Baroness Cumberlege moved Amendments Nos. 11 and 12:
Page 33, line 36, leave out ("(7)") and insert ("(8)").
Page 34, line 4, leave out subsection (6) and insert—
("(6) Any amendment, repeal or revocation made by this Act has the same extent as the enactment or other instrument amended, repealed or revoked.
(6A) Subject to subsection (6), only section 33 and this section (except subsections (5) and (7)) extend to Northern Ireland.").
On Question, amendments agreed to.
Schedule 2 [Amendments]:
Baroness Cumberlege Baroness Cumberlege moved Amendments Nos. 13 to 16:
Page 37, line 18, at end insert—
("The Health Services and Public Health Act 1968 ( c. 46)
—(1) Section 59 of the Health Services and Public Health Act 1968 is amended as follows.
(2) In subsection (1), for "general medical services or general dental services" substitute "general medical services, personal medical services, general dental services or personal dental services".
(3) After subsection (2) insert—
"(2A) In subsection (1), references to personal medical services and personal dental services are to be construed as references to services of those respective kinds under section 28C of the 1977 Act, section 17C of the 1978 Act or the corresponding provisions of the law in force in Northern Ireland or the Isle of Man.".").
1274
Page 37, line 18, at end insert—
("The Patents Act 1977 (c. 37)
In section 56(4)(a) of the Patents Act 1977, for the words from "provision of to "Isle of Man" substitute "provision of—

(i) pharmaceutical services, general medical services or general dental services under Part II of the National Health Service Act 1977, Part II of the National Health Service (Scotland) Act 1978, or the corresponding provisions of the law in force in Northern Ireland or the Isle of Man, or

(ii) personal medical services or personal dental services provided in accordance with arrangements made under section 28C of the 1977 Act, section 17C of the 1978 Act, or the corresponding provisions of the law in force in Northern Ireland or the Isle of Man".").

Page 37, line 20, at end insert—
("—(1) Section 15 is amended as follows.
(2) For subsection (1B) substitute—
"(1B) In relation to a Part II medical practitioner—

(a) whose name is included in the medical list of only one Health Authority, and

(b) who practises on his own or in partnership with others all of whom are Part II medical practitioners whose names are included only in that Authority's medical list,

any reference in this Act or the National Health Service and Community Care Act 1990 to the relevant Health Authority is to be construed as a reference to that Authority.
(1BA) In relation to a medical practitioner who is not within subsection (1B), any reference in this Act or the National Health Service and Community Care Act 1990 to the relevant Health Authority is to be construed as a reference to the Authority in whose area most of the practice patients live."
(3) After subsection (1C) insert—
"(1D) In this section—
"Part II medical practitioner" means a medical practitioner who provides general medical services under Part II and does not perform personal medical services under section 28C arrangements; and
"practice patient" means an individual who—

(a) is on the medical practitioner's list of patients; or

(b) in the case of a medical practitioner and one or more other medical practitioners who together have a single list of patients, is on that list.".").

Page 38, line 22, leave out from first ("subsection") to end and insert ("(1)(a), for "amounts allotted to them for that year under subsections (2) and (3)" substitute "amount allotted to them for that year under subsection (3)";").
The noble Baroness said: My Lords, with the leave of the House, I should like formally to move these amendments to which I have already spoken. 1 beg to move.
On Question, amendments agreed to.
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment
No. 17: Page 38, line 37, leave out ("or purchase").
The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 18 to 23 and 27 to 33. These further amendments are designed to correct drafting points and also to refine the provisions relating to the sale of goodwill of medical practices. They are designed to meet our objective of prohibiting the sale

1275
of goodwill to those providing and delivering personal medical services in the same way as those providing general medical services. The amendments meet that objective with fairness for all concerned. I therefore urge your Lordships to support them. I beg to move.
On Question, amendment agreed to.
Baroness Cumberlege Baroness Cumberlege moved Amendments Nos. 18 to 23:
Page 39, line 19, leave out ("general medical services or personal medical").
Page 39, line 20, at end insert ("(or as an employee of a person employing a practitioner who carries on a medical practice)").
Page 39, line 33, after ("practice") insert ("(or employing a practitioner who carries on a medical practice)").
Page 39, line 39, after ("practice") insert ("(or employing a practitioner who carries on a medical practice)").
Page 39, line 40, leave out ("subsequently").
Page 40, line 2, after ("of) insert ("section 54 and").
On Question, amendments agreed to.
5 p.m.
Baroness Cumberlege Baroness Cumberlege moved Amendments Nos. 24 to 41:
Page 40, leave out line 21 and insert—
("—(1) Section 19 is amended as follows.
(2) In subsection (2), omit paragraphs (b) and (c).
(3) For subsection (8) substitute—
"(8) In relation to a Part II medical practitioner—

(a) whose name is included in the list of only one Health Board; and

(b) who practises on his own or in partnership with others all of whom are Part II medical practitioners whose names are included only in that Board's list, any reference in this Act to the relevant Health Board is to be construed as a reference to that Board.

(9) In relation to a medical practitioner who is not within subsection (8), any reference in this Act to the relevant Health Board is to be construed as a reference to the Board in whose area most of the practice patients live.
(10) In this section—
"Part II medical practitioner" means a medical practitioner who provides general medical services under Part II and does not perform personal medical services under section 17C; and
"practice patient" means an individual who—

(a) is on the medical practitioner's list of patients; or

(b) in the case of a medical practitioner and one or more other medical practitioners who together have a single list of patients, is on that list.".").

Page 41, leave out lines 19 and 20 and insert—
("—(1) Section 87A is amended as follows.
(2) In subsection (1), after "section 19", insert ", or (in the case of practitioners who are not employed by another person) personal medical services in accordance with section 17C arrangements, ".
(3) In subsection (4), for paragraph (g) substitute—
"(g) the operation of this section in a case where one or more of the medical practitioners wishing to make an application under subsection (1) is also—

(i) on the medical list of a Health Authority established under section 8 of the National Health Service Act 1977; or

1276

(ii) providing personal medical services in accordance with arrangements made under section 28C of that Act;".").

Page 41, line 20, at end insert—
(".—(1) Section 87B is amended as follows.
(2) In subsection (3)(b), for "individuals on the lists of patients of any of the members of the practice" substitute "practice patients".
(3) In subsection (5)(b)—

(a) after "general medical services" insert "or personal medical services provided in accordance with section 17C arrangements"; and

(b) for "individuals on the lists of patients of the members of the practice" substitute "practice patients".

(4) After subsection (6) insert—
"(7) In this section "practice patient" means an individual who—

(a) is on the medical practitioner's list of patients; or

(b) in the case of a medical practitioner and one or more other medical practitioners who together have a single list of patients, is on that list.".").

Page 41, line 33, leave out ("or purchase").
Page 42, line 15, leave out ("general medical services or personal medical").
Page 42, line 16, at end insert ("(or as an employee of a person employing a practitioner who carries on a medical practice)").
Page 42, line 29, after ("practice") insert ("(or employing a practitioner who carries on a medical practice)").
Page 42, line 35, after ("practice") insert ("(or employing a practitioner who carries on a medical practice)").
Page 42, line 36, leave out ("subsequently").
Page 42, line 48, after ("of) insert ("section 35 and").
Page 43, line 18, after ("of) insert (", or Schedule 1 to, ").
Page 43, line 22, at end insert—
("The Copyright, Designs and Patents Act 1988 ( c. 48)
In section 240(4) of the Copyright, Designs and Patents Act 1988, for the words from "(a) pharmaceutical services" to the end of the subsection substitute—
"(a) pharmaceutical services, general medical services or general dental services under—

(i) Part II of the National Health Service Act 1977,

(ii) Part II of the National Health Service (Scotland) Act 1978, or

(iii) the corresponding provisions of the law in force in Northern Ireland; or

(b) personal medical services or personal dental services in accordance with arrangements made under—

(i) section 28C of the 1977 Act,

(ii) section 17C of the 1978 Act, or

(iii) the corresponding provisions of the law in force in Northern Ireland.".").

Page 43, line 24, at end insert—
("( ) In section 2(1)(a), for the words from "provision of general medical services" to "Act 1978" substitute "provision of—

(i) general medical services under Part II of the National Health Service Act 1977 or Part II of the National Health Service (Scotland) Act 1978; or

(ii) personal medical services in accordance with arrangements made under section 28C of the 1977 Act or section 17C of the 1978 Act".").

Page 43, leave out lines 32 to 34 and insert—
("—(1) The National Health Service and Community Care Act 1990 is amended as follows.
(2) In section 14(1), after "principal Act" insert ", or (in the case of practitioners who are not employed by another person) personal medical services in accordance with arrangements made under section 28C of that Act, ".
(3) For section 14(6)(g) substitute—
"(g) the operation of this section in a case where one or more of the medical practitioners wishing to make an application under subsection (1) above is also—

(i) on the medical list of a Health Board; or

(ii) providing personal medical services in accordance with arrangements made under section 17C of the National Health Service (Scotland) Act 1978;".

(4) In section 15(4)(b), for "individuals on the list of patients of any of the members of the practice" substitute "practice patients".
(5) In section 15(7)(b)—

(a) after "general medical services" insert "or personal medical services provided in accordance with arrangements made under section 28C of the principal Act";

(b) for "individuals on the lists of patients of the members of the practice" substitute "practice patients".

(6) In section 15, after subsection (9) insert—
"(10) In this section "practice patient" means an individual who—

(a) is on the medical practitioner's list of patients; or

(b) in the case of a medical practitioner and one or more other medical practitioners who together have a single list of patients, is on that list." ").

Page 43, line 34, at end insert—
("The Access to Health Records Act 1990 (c. 23)
—(1) The Access to Health Records Act 1990 is amended as follows.
(2) In section 1(2), for paragraph (a) substitute—
"(a) in the case of a record made by a general practitioner (other than an employed practitioner), or by a health professional employed by such a general practitioner—

(i) the general practitioner on whose list the patient is included (or, where the patient is included on the list of a medical practice consisting of two or more partners who are general practitioners, any such partner); or

(ii) where the patient is not on any such list, the Health Authority or Health Board by arrangement with whom a general practitioner last treated him;".

(3) In section 11, in the definition of "general practitioner", for the words from "providing" to "Act 1978" substitute "—

(a) providing general medical services in accordance with arrangements made under section 29 of the National Health Service Act 1977 or section 19 of the National Health Service (Scotland) Act 1978; or

(b) performing personal medical services in accordance with arrangements made under section 28C of the 1977 Act or section 17C of the 1978 Act".").

Page 43, line 34, at end insert—
("The Trade Union and Labour Relations( Consolidation) Act 1992 (c. 52)
In section 279 of the Trade Union and Labour Relations (Consolidation) Act 1992—

(a) after "as a person" insert "performing personal medical services or personal dental services or";

(b) before "29" insert "28C,"; and

(c) before "19" insert "17C,".").

Page 43, line 34, at end insert—
("The Health Service Commissioners Act 1993 (c. 46)
—(1) The Health Service Commissioners Act 1993 is amended as follows.
(2) In section 2A(1), for the words from "if they are" to "Act 1977" substitute "if they are—

(a) individuals undertaking to provide in England general medical services or general dental services under Part II of the National Health Service Act 1977;

(b) persons (whether individuals or bodies) undertaking to provide in England general ophthalmic services or pharmaceutical services under Part II of that Act; or

(c) individuals performing in England personal medical services or personal dental services in accordance with arrangements made under section 28C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)".

(3) In section 2A(2), for the words from "if they are" to "Act 1977" substitute "if they are—

(a) individuals undertaking to provide in Wales general medical services or general dental services under Part II of the National Health Service Act 1977;

(b) persons (whether individuals or bodies) undertaking to provide in Wales general ophthalmic services or pharmaceutical services under Part II of that Act; or

(c) individuals performing in Wales personal medical services or personal dental services in accordance with arrangements made under section 28C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)".

(4) In section 2A(3), for the words from "if they are" to "Act 1977" substitute "if they are—

(a) individuals undertaking to provide in Scotland general medical services or general dental services under Part II of the National Health Service Act 1978;

(b) persons (whether individuals or bodies) undertaking to provide in Scotland general ophthalmic services or pharmaceutical services under Part II of that Act; or

(c) individuals performing in Scotland personal medical services or personal dental services in accordance with arrangements made under section 17C of that Act (except as employees of, or otherwise on behalf of, a health service body or an independent provider)".

(5) In section 3, after subsection (1) insert—
"(1ZA) Any failure or maladministration mentioned in subsection (1) may arise from action of—

(a) the health service body,

(b) a person employed by that body,

(c) a person acting on behalf of that body, or

(d) a person to whom that body has delegated any functions.".").

Page 44, leave out lines 37 and 38.
The noble Baroness said: My Lords, I beg to move Amendments Nos. 24 to 41 en bloc.
On Question, amendments agreed to.
An amendment (privilege) made.
Baroness Cumberlege: My Lords, I beg to move that the Bill do now pass. In doing so I wish briefly to state that I think this is an important piece of legislation affecting a key part of our health service—primary care. Current arrangements have served us well for almost half a century. But it is clear that they lack flexibility to tackle some of the diverse health needs that arise in different areas.

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The Bill aims to provide that flexibility. It seeks to do so in a way which maintains the principles of quality, fairness, accessibility, responsiveness and efficiency which are at the heart of primary care. It proposes a way forward, through piloting, which allows us to learn as we go.
I thank your Lordships for the attention given to the Bill. It has been good to see a consensus on the broad principles behind it—a consensus which also extends to the professions. We have had some lively and informative debates. The amendments moved by your Lordships have contributed greatly to that. I shall resist the temptation of mentioning noble Lords individually as I understand there is great pressure for further Business this evening. However, I am happy to have been able to give several undertakings on matters such as the relationship between patient and GP and consultation. I was especially pleased to accept earlier today the proposal of the noble Baroness, Lady Robson, on a maximum time-span for pilots.
It is with some regret that I was unable to agree with the noble Baroness, Lady McFarlane of Llandaff, on the role of nurses in the context of this Bill, but we are at one in both being vice-presidents of the RCN and in agreeing on the increasingly important role of that profession within the NHS and in primary care in particular.
The Bill does not impose a template for future services. Instead it frees health professionals to work with health authorities to develop local solutions to local needs. The UK primary healthcare system is the envy of the world and the Bill will allow it to develop its potential still further. I look forward to seeing its safe passage through another place and on to the statute book. I commend the Bill to the House.
Moved, That the Bill do now pass.—(Baroness Cumberlege.)
Baroness Jay of Paddington: My Lords, we have had some interesting and illuminating discussions on this innovative Bill. We on these Benches remain supportive—as we were at Second Reading—of the principle of making primary care organisation more liberal. We particularly welcome the idea that long-term changes will only be made once pilot schemes have been allowed to run their course and have been properly evaluated. However, we cannot forbear to remark, even at this late stage of the Bill, that this is certainly a change of direction for the present Government in making changes to the NHS.
As I said in earlier debates, this is essentially an enabling Bill and some of the changes in prospect we are sure will be useful. We particularly welcome the possibility that pilots may include the employment of GPs by hospital trusts in areas of deprivation where places have been difficult to fill under the long-standing arrangements of GP contracts. We are sorry—I gather from the Minister's remarks that perhaps she is sorry too—that the Government resisted amendments which sought to include nurses as lead players in the new role that they may have in new forms of general practice. We hope that this may still be considered.
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We are also concerned that the Government resisted the amendments we proposed to broaden the consultation perspective on the Bill so that those outside the professions, as well as those inside them, could take a view on the future prospects for their local services. We were delighted to hear the Minister this afternoon accept the amendments which had earlier been proposed by the noble Baroness, Lady Robson, about the length of pilot schemes, which obviously had a great deal of force behind them. We are also grateful that the Government seem to be in positive negotiation with the Medical Practices Committee about the essential nature of an overall strategic approach to the manpower questions of general practice in the NHS as a whole.
We welcome, of course, positive liberalisation and experimentation, but our greatest concern is that it may become in practice a form of rather chaotic deregulation if commercial organisations are allowed to get a toehold in the general practice system. We tried again today to ensure that there are safeguards in this regard but once more our proposal was defeated. I hope that when the Bill reaches another place the general assurances about agreements that have been reached with the British Medical Association—the Minister spoke of them this afternoon—will be translated into specific amendments which protect general practice pilots from the kind of commercial influence which we still fear may occur.
I am grateful to the Minister and to the noble Baroness, Lady Miller, for their full and courteous replies to our amendments, even if they have not always been, in our view, totally helpful. I also thank the Minister for her detailed briefing on Government amendments which she gave us at the later stages of the Bill. I am particularly grateful to my noble friends Lady Hayman and Lord Rea whose long experience and understanding of the health service has meant that they have spoken with great authority on the amendments that they have proposed.
This is a short Bill but nevertheless an important one, as the Minister said. We have been helped by outside organisations who are concerned about the Bill. I particularly wish to mention the Royal College of Nursing, the Royal College of Midwives, the British Medical Association and the Medical Practices Committee whose concerns have been widely aired in your Lordships' House. We have also received useful advice from the Royal Pharmaceutical Society, local authority associations and the National Consumer Council, as well as the Consumers Association and the Association of Community Health Councils.
That long list of organisations which have aided our understanding of the Bill and which have raised questions on the Bill that we have subsequently asked gives a taste of the level of concern there is on these changes to primary care which the Bill proposes and promotes. We all wish the Bill well in another place. I suspect that there will be some vigorous attempts to amend it particularly in the areas that I have described which remain of concern to us. I look forward to those debates, and indeed to the acceptance of some other amendments by the Government.
Baroness Robson of Kiddington: My Lords, I wish to add a few words on the Bill. We believe that it opens up

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great opportunities to improve the primary care service within our communities but that process must be carefully controlled by set criteria so that the service does not end up being good in some parts of the country but not so good in others.
We are happy about the voluntary, non-enforcement aspect of the pilot schemes. Previously, the Government and the Department of Health have tended to lay down the rules from the centre. If that process is properly handled, it will grow of its own accord into something which will be of great value to the nation. I like some of the provisions in the Bill to which we have agreed, for example, that a general practitioner can now be employed on a salaried basis. That should be helpful to many practices.
The other provision we welcome with open arms is that health authorities are no longer forced to appoint, in single doctor practices, from among the three finalists in the competition. That was the previous procedure irrespective of whether or not anyone was any good. The new provision was overdue; now it is in the Bill. I am very grateful to the noble Baroness for agreeing to my suggestion that the pilot schemes should last for only three years.
As was evident today, we were worried about the problem of commercial contractors and the removal of overall control of manpower from the Medical Practices Committee. However, we received certain assurances from the Minister which we hope will be even more clearly defined when the Bill goes to another place.
My one regret is that we did not have written into the Bill provision on pension rights for nurses and staff working in the primary healthcare sector. I know that the Government gave an assurance in their White Paper, but I would love to have seen a reference on the face of the Bill. That aside, I join the noble Baroness, Lady Jay, in thanking Ministers, and all the various organisations which sent us so much advice. I wish the Bill great success in the other place.
Lord Colwyn: My Lords, in even fewer words than the noble Baroness, Lady Robson, used, I thank my noble friend for the splendid way in which she piloted this Bill about pilot schemes through the House. Often the Government do not consult dentists. Sometimes I am not sure that they even understand the difference between a general medical practitioner and a general dental practitioner. Dentistry is often forgotten in service planning and is added as an afterthought, far too late. I am delighted that in this Bill we see an assurance that dentistry will continue to play an important part in primary care. I hope that the attitude to my profession will remain the same. I welcome the Bill.
On Question, Bill passed, and sent to the Commons.

Education Bill
Brought from the Commons; read a first time, and to be printed.
Crime and Punishment (Scotland) Bill
Brought from the Commons; read a first time, and to be printed.

Northern Ireland Arms Decommissioning Bill
5.12 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield): My Lords, I beg to move that this Bill be now read a second time.
Your Lordships will be familiar with the security backdrop to today's debate. Northern Ireland has continued to experience further serious terrorist incidents since the Bill was last debated in another place, reckless attacks which might all too easily have resulted in multiple deaths—and which have shown an indiscriminate disregard for both the safety and the wishes of the ordinary people of Northern Ireland.
The terrorists retain the capacity and, apparently, the will to inflict untold misery on innocent people, despite the fact that their methods will not shift the position of the Government one iota or break the will of the people of Northern Ireland. Planning and preparation of terrorist attacks and the uttering of threats are not the means by which one assures those whose trust one seeks of a commitment to peace and democracy.
Against this deteriorating security background, your Lordships may well ask what is the practical effect of the Bill before us today. What we are seeking to do is to lay the foundations upon which decommissioning could be built. A start must be made.
That terrorist groups possess an enormous quantity of sophisticated weaponry, explosives and equipment is not in doubt. The question of arms decommissioning has proved contentious and difficult throughout the current political process, but it is an issue which cannot be evaded or fudged. It embodies fundamental principles of democracy. No government can be content with the existence within their jurisdiction of illegal arms which are capable of being used to attack democratic institutions or for other criminal purposes, and which can, and do, result in the death of innocent people, indeed of children.
The Bill is therefore intended to allow the Government to put into effect the guidelines on modalities for the decommissioning of illegally held arms contained in the report of the international body chaired by Senator Mitchell. The body was established by the British and Irish Governments to provide an independent assessment of the decommissioning issue and to report on the arrangements necessary for the decommissioning of illegal arms. It subsequently

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published its report in January last year. The Government fully endorsed the conclusions of what has become known as the Mitchell Report, which said that decommissioning must be a principal objective of the political process in order to secure progress.
The Bill reflects paragraphs 39 to 50 of the international body's report and gives effect to the six principles which it set down. These were that the decommissioning process should: suggest neither victory nor defeat; take place to the satisfaction of an independent commission; result in the complete destruction of armaments in a manner which contributes to public safety; be fully verifiable; not expose individuals to prosecution; and be mutual.
Accordingly, the Bill now before the House, in parallel with similar proposed legislation which is currently before the Irish Parliament, is designed to provide the statutory foundation for decommissioning, and to enable it to take place as political negotiations move forward.
Perhaps I may now summarise the main provisions of the Bill. Clause 1 defines the term "decommissioning scheme" as a scheme,
"made by the Secretary of State to facilitate the decommissioning of firearms, ammunition and explosives in Northern Ireland".
The decommissioning scheme itself will be non-statutory. This will allow for simplicity and flexibility.
To balance this, Clause 2 adds an important element of accountability to Parliament. This requires that the period during which arms may be dealt with in accordance with a decommissioning scheme must be set out in the scheme. Any scheme will expire one year after Royal Assent unless renewed by order, subject to affirmative resolution, up to a maximum of five years from the date the Act is passed.
Clause 3 requires a decommissioning scheme to make provision for one or more specified ways of dealing with firearms, ammunition and explosives, while allowing the scheme to make provision also for others.
Clause 4 and the schedule provide for an amnesty from prosecution for those who commit offences specified in the schedule when they act in accordance with a decommissioning scheme. The offences concerned are mainly those of a possessory character.
Clause 5 limits the use in evidence of information obtained as a result of the decommissioning scheme. It provides that in criminal proceedings neither a decommissioned article itself nor information derived from it shall be admissible in evidence.
The exemption does not apply where an offence is alleged to have been committed with an article which had already been decommissioned. Similarly, evidence may be adduced on behalf of an accused person.
Clause 6 prohibits forensic testing of decommissioned articles except for tests and procedures for safety and verification purposes. Tests or procedures in connection with the investigation of any offence alleged to have been committed after an article has been decommissioned are also excluded.
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I want to make it clear that Clauses 4 to 6 do not constitute a general amnesty. Amnesty is only available in the tightly defined circumstances in which someone is acting strictly in accordance with a decommissioning scheme and only for offences which would be committed as a result. Similarly, evidence and testing are prohibited only in respect of decommissioned arms. Subject to this, there is no amnesty for the crimes committed with these weapons and no prohibition on the investigation of those crimes.
Clause 7 enables the Secretary of State to confer certain immunities and privileges on an independent commission to facilitate decommissioning. The commission will not itself be established by the Bill but by an international agreement between Her Majesty's Government and the Government of the Republic of Ireland.
Clause 8 makes provision for decommissioning schemes in respect of arms, ammunition and explosives in Great Britain. It provides, by order, that any scheme made by my right honourable friends the Home Secretary and the Secretary of State for Scotland in order to facilitate the decommissioning of firearms, ammunition and explosives in England and Wales or in Scotland, and which includes provisions satisfying the requirements of Clauses 2 and 3, shall be a decommissioning scheme for the purposes of the Bill, provided it is also made for purposes relating to the affairs of Northern Ireland. This secures that a decommissioning scheme shall not be capable of being used as an amnesty by those possessing illegal arms who are not genuinely involved with the decommissioning process.
The Secretary of State may also by order substitute for any offence under the law of Northern Ireland set out in the schedule to the Bill a similar offence under the law of England and Wales or Scotland. That gives my right honourable friends the power to secure the decommissioning of arms, ammunition and explosives in England and Wales, and in Scotland, if, in the light of progress with all-party talks and with the preparation of the Northern Ireland decommissioning scheme, such schemes prove to be desirable.
Clauses 9, 10 and 11 provide for expenses incurred in connection with decommissioning, for the interpretation of certain terms and for the Short Title of the Bill respectively.
In the context of Northern Ireland's affairs, the Government, in common with the vast majority of people in these islands, wish fervently to see an end to the illegal possession of arms. This would represent a very considerable step forward.
Indeed, each successive terrorist attack only serves to reaffirm the urgent need to dispose of the instruments of such destruction. Bombs and guns do not just devastate lives; they destroy hard-won trust and entrench bitterness between those charged with the already formidable responsibility of finding a way forward. The Mitchell Report has provided a template by which agreement on the means of decommissioning arms can be achieved. The Government hope that the

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political parties will as soon as possible arrive at such agreement and join in putting the report's recommendations into practice.
The process of decommissioning will not take place overnight. The mechanics of the process will be complex and difficult. But begin it must. Deeds must match words if the gun is truly to be removed from Irish politics. The message is simple: all violence must stop and stop for ever and the implements of violence must be removed, safely and visibly, for good. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Baroness Denton of Wakefield.)
5.23 p.m.
Lord Alderdice: My Lords, I welcome the arrival of the Bill presented so articulately by the Minister to your Lordships' House. Like her, I, and I am sure all those present, will regret deeply the fact that the Bill appears to be somewhat academic for the present because of the return of violence and attempts to kill to the streets of Northern Ireland. Indeed, the threat abides throughout these islands and further afield.
The name of the Bill is somewhat curious, for decommissioning is not the term that has generally been used in these matters. Often in the past it has been described as "disarmament". That is the term used in the international body's report to which the noble Baroness referred. In other places it is more stridently described as "the surrender of arms". But like so much in the process to try to attain peace in Northern Ireland, the term "decommissioning" was used in order to try to convey that there was no intent to achieve victory of one over another, but rather, to use a less definite term, "decommissioning", in order to make it easier for those who possessed illegal weapons voluntarily to bring them forth, to abandon them and move towards democratic politics.
That is what decommissioning is about. It is not about the normal and proper process by which the security forces gather information and then embark on searches and raids where they can obtain these materials. Decommissioning is about a process in which paramilitary organisations can give up illicit weapons.
There are a number of requirements. The first, most obviously, is for a ceasefire, not just a ceasefire but a permanent cessation of violence. No one will give up weapons unless he is determined never to use them again. Regrettably, we do not have that situation.
It is also important, if there is to be such a volunteering of materials, that those giving them up do not feel that they are likely to suffer the consequences of the law. They are, after all, holding illegal weapons. Therefore, for the Government to make clear that forensic evidence forthcoming from decommissioned weapons would not be used, is a regrettable but understandable requirement for any reasonable process of decommissioning. It is also important to recognise that, because those who would be called in to deal with such weapons would be dealing with illegal weapons,
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some protection will be required for members of any international commission and their agents. Therefore, it is a reasonable proposition.
One is asked at times why we should look at decommissioning at all. There are those who would say that in the past, when violence settled down in southern Ireland, there was no decommissioning of weapons. There are those too who say that if we look at peace processes in the rest of the world, decommissioning is not one of the primary requirements. I submit to your Lordships that this is a rather superficial reading, not only of the history of our island but also of the peace processes in other places.
In many cases, the peace processes fall under what I would call a realpolitik model. In it, those who oppose each other are in fact at war, whether it is a civil war or otherwise. The main components of the process in Northern Ireland are democratic politicians and democratic parties working under a democratic system. They represent the majority of people on both sides of the community in Northern Ireland and in the broad centre.
In many of the other situations where a peace process is adverted to, the majority of the population and sometimes the population as a whole is represented by those who are involved in the use of physical violence and the methods of war. If one looks carefully at those processes, it is interesting that one finds in such a context that once people move from war and the use of those materials to espouse the democratic process, there is almost inevitably a requirement that the weapons be put to the side in an organised and regularised fashion so that everyone is working on the same level playing field.
If one looks at the situation in South Africa, there are those who would claim that little was done in regard to weapons there. First, however, attempts were made to do something about it. Secondly, and most interestingly, when the former President de Klerk came to the Forum for Peace and Reconciliation in Dublin, we asked him whether there was anything that in retrospect he would do differently about resolving the problems of South Africa. He immediately responded by saying, "Yes. I would have done more about weapons". Why? Because South Africa is now plagued, thankfully less by political violence than was the case at one time, but by crime, organised and chaotic. It is doing terrible damage to that wonderful country and its people. Therefore, when Mr. de Klerk responded, he was quick to say that that was a lesson he had learnt in that respect. Surely we should learn lessons from others and not seek to learn them at our own expense.
It seems to me that decommissioning is important, but I venture to say to your Lordships that perhaps it has become too central a focus in the process in Northern Ireland. Why? First, it is because after 25 years—indeed longer—there is a deep lack of trust of one side by the other. That applies to both sides. One of the ways in which it had been hoped that such lack of trust could be resolved was to do what had been done in South Africa. Noble Lords will recall that there the two sides reached a memorandum of understanding and a set of principles by which they would all agree to abide: democratic,

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peaceful, reasonable and constructive principles on which a new constitution and a settlement could be based.
It had been hoped by Her Majesty's Government and the Government of the Republic of Ireland that when the Downing Street Declaration was signed, it was such a memorandum of understanding and such a set of principles by which we could all abide. Key was the commitment that physical force—the use of violence—would not apply. Key also was the commitment that everyone's human rights would be respected and also, in the context of Northern Ireland, fundamentally that what we call the principle of consent would be accepted and that the people of Northern Ireland would decide their own constitutional future.
If only Sinn Fein had found its way to accepting that principle of consent and if only it had been prepared to sign up to the Downing Street Declaration, as every other party throughout these islands had been prepared to do, I believe that the question of decommissioning, while remaining important, would not have achieved such a central focus. When Sinn Fein refused to accept that, they raised the concern in the minds of many in Northern Ireland that they were not about consent and democratic politics but about ratcheting the process forward in their favour and then returning to violence if they did not get their own way. Many people felt that in that context the only way to achieve a sense of trust and conviction of the bona fides of the Republican movement was the decommissioning of weapons.
In that setting the international body was called in to give its view. It came to an ultimately reasonable view. The Unionists required, and every reasonable person would have liked to have seen, weapons set to the side at the beginning of the process and then talks, whereas the Republican movement demanded that they be allowed to hold onto them until the end of the process—something entirely unacceptable to any reasonable politician. In that situation the obvious answer was some form of parallel decommissioning: it would go on during the process.
While Unionists still seem to have an enormous problem in accepting that and while Her Majesty's Government have accepted it, I must express a little regret at the way in which the Mitchell Commission Report was received at the time. I feel that perhaps it was fumbled a little—mishandled a little—and created an opportunity for the Republican movement to avoid answering the question that should have been posed so clearly to them: do you accept the Mitchell Report and all its works? They were able to slip away from that because of a little fumbling about the report.
Perhaps I may say a few words in regard to another report, on which a statement has been made in another place. I am concerned that the report of the North Commission has not perhaps been well handled either. Here there is a set of proposals which are ultimately reasonable. I would say so, of course, because my colleagues and I have been proposing them for many years. Indeed, after what we have come regrettably to refer to as Drumcree 1, we met with the Secretary of State and advised him to set up an independent tribunal
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for we knew that the Unionists would not accept the word of a Secretary of State and his advice on the matter, nor would they accept what the chief constable had to say. Therefore, an independent tribunal with determining powers was reasonable.
The Secretary of State initially showed an interest, but then became lukewarm. Then came Drumcree 2 and we came back with the proposal. It was clear to all reasonable people that an independent tribunal must be the only way. After all, Drumcree 2 amounted to the refusal of Unionists to accept what the chief constable had to say and there was never any reason to believe that they would find more to their taste what the Secretary of State would say.
Some of us were a little concerned that maybe setting up the North Commission was only delaying the inevitable. Regrettably, the fact that the reasonable proposals announced today have not been fully and rapidly embraced but rather set on the singular timescale of two months seems to us a mishandling. I am very concerned that we may find ourselves arriving at Drumcree 3 without the mechanism in place to mitigate the circumstances there. I say no more than "mitigate". These proposals will not solve the problem. If there are those who will not accept what is right and good and accept the rule of law, they will continue to create difficulties. But I must express my concerns on that matter. How and when one does things are sometimes as important as what one does.
That leads me, perhaps in passing, to say that there is another current matter for concern at home, and that is that the Government have rightly used the opportunities available through television and other advertising means to get across a message that what Republicans are doing and indeed what Loyalists seem to be hedging towards is dangerous, damaging and ultimately destructive of the community. But how that is being done—portraying itself as a form of anti-Nazi propaganda—is very ill advised. It only shows the Government as though they were out of touch with how people feel in Northern Ireland. It appears to be so wide of the mark to many ordinary people that it becomes, as was a previous campaign, something ill advised rather than something that people grasp hold of, recognise as the right message and, when the opportunity comes up in the near future to make their point, do in an informed way.
So I welcome the Bill. Although we shall scrutinise it and ensure that it has the best structure and context in which we can move forward, I hope that it will not be long before we are in a position to see it implemented and the weapons of war taken out of the politics of Northern Ireland. I welcome that. But I also have to issue these words of caution and perhaps invite, if possible, a response from the noble Baroness when she comes to reply.
5.36 p.m.
Lord McConnell: My Lords, Senator Mitchell's Commission reported on 26th January last year. So there has been a year's delay in producing legislation to implement what he recommended. I should be interested

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to know what caused that delay. Was it because the Government of the Irish Republic were dragging their feet or was there some other reason?
I am delighted to know that the Irish Republican Government have now introduced legislation in their parliament on parallel lines to this Bill. It is absolutely essential that any scheme of this kind should operate in both countries. A large proportion of the armaments and ammunition concealed by Sinn Fein/IRA is in fact stored in the Irish Republic. Therefore, it is gratifying to know that both jurisdictions are prepared to make some move along these lines.
The Bill contains little detail. Therefore, it is hard to make any mature judgment before seeing the decommissioning scheme that is to be introduced by the Secretary of State. We shall have to wait until we see the scheme he produces before we can make a more detailed criticism, but it must provide that members of the commission set up under this Bill—or Act, as it will be then—will receive all the information that they require and that they will be able to go anywhere they wish and carry out any inspections that they consider necessary. Otherwise, it will be of little avail.
As the noble Baroness told us, and as we can see from the Bill, the amnesty is very limited but it needs great care. We are dealing with tricky people who, if they can find any loophole, will exploit it to the utmost. The same applies to the limitations on the use of forensic evidence. That is fair enough, if the provisions are strictly followed, but again there may well be attempts to get round them.
What are the prospects of decommissioning actually taking place? The vast majority of people in Northern Ireland, and certainly I myself, would be delighted for decommissioning to take place. I do not want to be too pessimistic, but I should not like to rely too much on the IRA coming forward and saying that it is prepared to hand over its weapons. The noble Lord, Lord Alderdice, mentioned the use of weapons for organised crime. But the IRA is one of the greatest organisations of crime that one can envisage. If it states that it intends to give up violence, we must be sure that that is permanent.
There have been many ceasefires in the past from time to time, but most were used by the terrorists to give a respite for them to reorganise and start on another campaign. We must not be calmed therefore with talk of a ceasefire. We must be absolutely certain that it is genuine and will be permanent.
We must remember that as well as the use of weapons, other activities must cease. I refer to such things as punishment beatings. It is not only the IRA that carry those out; others do as well. Another activity is ethnic cleansing which is taking place in the west of Northern Ireland at the moment. People are being threatened by Sinn Fein that if they trade in Protestant shops they will be severely dealt with. The result has been that a number of Protestant shopkeepers have had to give up their business and leave the area. That should not be tolerated in any democratic society.
Let us hope that the Bill will be able to make some kind of progress. I wish the Government well in their attempts. However, I give the Bill a guarded welcome
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and wish the Government success in their endeavours. Before I sit down perhaps I can mention that, owing to travel difficulties, it is possible that I may have to leave before the conclusion of the debate. If that should be so, I offer my apologies to the House in advance.
5.43 p.m.
Baroness Park of Monmouth: My Lords, I must begin with an apology both to my noble friend the Minister and to the House for my late arrival in this debate. It came about because I miscalculated how fast I could move from the Library—it was not as fast as I thought.
As has been said, this is an enabling Bill. It provides the mechanism for the collection of paramilitary arms and explosives. It does not attempt to say when the process should take place or at what point in the negotiations, only how it might be done in a way acceptable to all, verifiable and effective. It is not a triumphalist process but a practical proposition for the day when political decisions are taken. It also provides for amnesty. It is flexible on methods of disposal and even offers a choice of method.
It is difficult to see how Sinn Fein/IRA, still less any advocate of the peace process, could fault action designed to put a working machinery in place against the day, if it ever comes, when it becomes a live issue. The fact that the Irish Government are working upon similar statutory enabling instruments must surely be further proof that this is a wise move and a necessary one; tactical but calculated to increase confidence in the will of both Governments to make things work smoothly and well if and when the real ceasefire—as distinct from yet another tactical move in the IRA's unbroken course of hostilities—finally arrives.
We should leave no stone unturned to ensure that we are not again accused, as untruthfully as we were before, of inaction. There have been differences between us and Dublin, and no doubt there will be again, as to whether the decommissioning process should be in parallel with talks or follow them. But there is no difference between us on the manifest impossibility of expecting any of the parties to negotiate with someone with an Armalite under the table.
I hope that the Bill indicates that among the many concessions we have been persuaded to make we do not contemplate living willingly under the threat of renewed hostilities. Of course it will be said that the IRA can always re-arm. But that takes time and one of the most encouraging new features of life in Northern Ireland recently has been the apparent willingness, if we are to judge from recent ominous threats by the IRA against its own people, of the nationalist community to be not quite so willing to condone and tacitly support—as it has from time immemorial—renewed violence: the fish today have an even more shallow sea in which to swim.
The other side of that coin is the great importance of doing whatever can be done to reduce even the most traditional ceremonies—marches and parades—which could give the IRA the excuse (or indeed the reason) to fan the sectarian flame. I am sometimes accused of being blind to the violence of the Loyalist paramilitaries.

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I am not. But I submit that it is the IRA which is at war while the Loyalist paramilitaries are exercising still a considerable degree of restraint; it is not perfect but it is a considerable degree. They know and we know that if Sinn Fein/IRA succeed in provoking them to a serious response, it will be disastrous: we shall be back in the bad old days. Fortunately the Taoiseach, if no one else in the Irish Government, understands the danger and perhaps also the threat to the people of the Republic which could be the outcome of renewed war. He understands that the Unionists, too, feel vulnerable.
I well know that there is much anxiety about whether the talks can continue or whether they are now a hollow process. I do not agree that they are. The longer the parties talk, the nearer they will come to hammering out a modus vivendi. It is not true to say that the Nationalists are not represented there. Nor is it true to argue that if any Sinn Fein/IRA candidates are elected in the forthcoming elections they will have a right to join the talks merely by virtue of their election. The conditions for joining are clearly laid down in the Mitchell principles and Sinn Fein/IRA cannot be there while the IRA continues its campaign of violence. I think, too, that it is a real advantage; that the truth will out.
Gerry Adams is back in the army council, which he never left, and exposed for the liar that he is. The IRA blames us for the end of the ceasefire and accuses us of making preconditions on decommissioning long after the event, whereas it has been clearly demonstrated that Gerry Adams actually attacked the preconditions at the time after a statement by the Secretary of State on Irish radio. The fact that the preparations for the Canary Wharf bomb were taking place while Adams shook Clinton by the hand in Belfast is another telling proof of how the IRA re-writes history and, until recently, was believed.
One of the most encouraging developments in recent times has been that eyes are now open in both Washington and Dublin. The Irish Government have now refused to talk to Sinn Fein, accusing its members of bad faith. The SDLP rejected an electoral pact. Outlining Sinn Fein/IRA's electoral strategy, Martin McGuinness had the effrontery to say that,
"Sinn Fein/IRA would prefer to be entering the elections in a peaceful environment, but the reality is that we have been robbed of that opportunity".
Mr. Adams too speaks with forked tongue, as ever. He said this week that,
"a negotiated peace settlement is a priority".
I would say that only Sinn Fein/IRA can create the conditions for such a settlement, were it not a hollow mockery. The IRA negotiates only through the barrel of a gun. We shall do a great deal better to work through the parties now talking with one another. Let us not forget that they represent the majority. In any case it is impossible to see how the Sinn Fein/IRA agenda, so often clearly set out by Martin McGuinness—"Brits out and a united Ireland"—can ever be reconciled with the known wishes of the majority of the people in Northern Ireland.
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Everyone draws the conclusion that the peace process is dead. But so long as the IRA only held a practical truce, it never truly had a life. Now, for the first time, the SDLP may turn away from Svengali Adams and, with others, represent Nationalists in the North who do not want to fight another war. And in the South, the so-called nationwide pan-nationalist bloc will be exposed for the hollow sham that it is. Meanwhile, with many a backward step, the process of talking in the North should go on.
The provisions of the Bill may yet be needed. It is only common sense to have the machinery ready even if it is never needed. It is worth remembering that, as Mr. Bruton told an American interviewer recently,
"Violence has failed. Decommissioning is not going to happen out of the blue, but we have to create trust. The first step in the creation of trust is an IRA ceasefire".
Meanwhile, as he later said in discussing the degree of agreement between his government and HMG,
"Don't look at the one-eighth of disagreement, but at the seven-eighths of agreement".
My Lords, let us build on that.
5.50 p.m.
Lord Fitt: My Lords, I intend severely to limit my remarks because I fear that by going on for longer I would succeed only in drowning the House in pessimism about both the decommissioning Bill and what has happened in relation to the publication of the North Report today.
Over many years of taking part in debates, both in this House and in another place, I have returned to Belfast only to be met by people representing both sections of the community who have said, "Gerry, do you not think it is a waste of time talking over there?" Sometimes they were right, and many times they were wrong, or the other way round. However, I fear that they may be right on this occasion.
Knowing Northern Ireland as I do, and having Northern Ireland blood running in my veins, I honestly do not believe that we shall ever see decommissioning in Northern Ireland. One has only to look at the debates that took place in another place, at Second Reading, Committee stage, Report and on Third Reading, to see the antagonisms that exist among the elected representatives in relation to the question of decommissioning of arms. One has only to read the press reports of what took place at Stormont the day before yesterday—where they are allegedly talking peace and trying to grapple with the problems that beset Northern Ireland—to see what happened there.
I have just heard from the noble Baroness, Lady Park, and I have read in the reports that the decommissioning Bill is a mechanism for bringing about decommissioning. I have always been disappointed with anything that has been designated as a mechanism. There are many Catholics in Northern Ireland and on the island of Ireland who believe that Confession is a mechanism for getting to Heaven. None of us has ever been able to prove that.

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During the past three or four days I have spoken to many people on all sides of the House and have tried to tell them what the decommissioning Bill is all about. Yesterday, I was discussing the Bill with one of my friends in the House, the noble Earl, Lord Munster. I was discussing with him in the Library the contents of the decommissioning Bill and how it is meant to take arms out of the political equation in Northern Ireland. He listened to me with amazement and said, in the words of a well-known BBC television programme, "How do they do that?" That is a question everyone will have to answer. How do they do that?
It will not be an easy undertaking. Those who were elected quite recently in Northern Ireland had a mandate from the population. They are now sitting at Stormont trying to bring about peace. However, they were very nearly beating each other up the day before yesterday. I honestly cannot see decommissioning coming about. There are very real fears in the Northern Ireland community.
The noble Baroness who introduced the Bill has shown more sensitivity to the problems of Northern Ireland than many of her predecessors. I am sure she must realise the great suspicion, fear and mistrust that exist in Northern Ireland, particularly among the majority community. Not one of the spokesmen of the majority community to whom I have spoken believes for a single second that the IRA will be prepared to hand over weapons. Unless that happens, not only the decommissioning Bill but the whole peace process will fall into abeyance.
The noble Baroness, Lady Denton, skated very quickly over Clauses 3, 4, 5 and 6 of the Bill. Those clauses are sending the Unionist population in Northern Ireland to the Sea of Tranquillity. They believe that the clauses represent an amnesty for murderers. There is also the question of forensic tests. A gun may be found and it can be proved that the gun killed six or seven people in some of the awful crimes that have taken place in Northern Ireland over the years. It will be said, "We've got the gun. We may know who it is. But he has given us the gun so we will have to give him an amnesty". There are people in Northern Ireland who have lost their loved ones. They will never be prepared to accept that the murderers of their loved ones should go free. With all the fear, mistrust and suspicion that exists, it is a very inopportune time to try to introduce a Bill of this description.
The noble Lord, Lord Alderdice, referred to similar situations in South Africa and in other parts of the world. The South African situation was essentially about human rights and the dignity of man. It was a fierce fight against apartheid, with all the injustices that apartheid involved. In Northern Ireland there is one big difference. The constitution of Northern Ireland is at stake. The IRA is intent on taking Northern Ireland out of the United Kingdom. That has been fiercely resisted by the people of Northern Ireland. That is the one big difference that sets it apart from South Africa. The one situation which may be similar is the conflict between the Greeks and the Turks in Cyprus. Again, there is the question of who are the rightful owners of the land. In Northern Ireland, the ethos, the culture and the identity
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of one community is pitted against the other. It is totally and absolutely tribal. It was said at the Committee stage of the Bill in another place that there is a pan-Nationalist front—meaning the Irish Government, the SDLP and Sinn Fein—and that, in contra-distinction to that, there is a pan-Unionist front, with all the Loyalist parties. The conflict is totally and absolutely tribal. In that situation it will be very difficult to build up any semblance of confidence between the two communities. So the forensic tests will be a huge hurdle to get over.
The Mitchell Report rightly lays down a basis on which there possibly could be some form of agreement on the handing over of arms. I sometimes become a little irritated when I hear all the talk of the arms that are held by the IRA being decommissioned. There are plenty of arms on the other side, with the Loyalists. Those arms have committed some terrible atrocities in Northern Ireland.
Rarely have I felt more incensed at an action of the Government than I do this evening. As regards the manner in which the North Report was dealt with by the Government in another place, I cannot express too strongly my objection to the way that it was presented and the attitude taken by the Minister in presenting it. The report has been put in abeyance for two months. The noble Baroness knows Northern Ireland far better than any of her predecessors. She must know that two months is far too long a gap in Northern Ireland, because we shall be into Easter and the whole marching ethos will once again have come to the fore.
I suggest that the commission should begin work tomorrow morning and work with all haste to try to do everything possible to prevent those marches and the confrontation that is liable to arise in a very short period. I say this to noble Lords on the Front Bench this evening: why was that Statement not made in this House? It is of such importance to Northern Ireland that it should have been made in this House. It should not have been restricted to the other end of this building. This House should have been allowed the opportunity to express its sentiments on the contents of the report. Was it offered to the Front Bench? Did the Government offer to have it debated in this House? Was it offered or was it refused? This House is part of the legislature of this country. We were entitled to express an opinion on the report. If the Statement was offered and refused, I say to the noble Lords on the Front Bench that they have been conned.
Would the present Government have taken the view, "This year is a hot potato; this is a very dangerous report; it is going to cause massive trouble when the marching season starts so we will defer it until after the next election and let the incoming government deal with it"? The Government may have thought that there will be a Labour government so they can deal with something that the present Government have been dealing with for 17 years. That is not the way to try to grapple with the problems of Northern Ireland.
I urge the Minister, even at this late stage, to make representations because they could mean life or death in Northern Ireland in the approach to the marching season. The Commission should go into action

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immediately and take whatever urgent steps are necessary to prevent another Drumcree which happened in July. There is March, April, May and June to get through. We have many sensitive situations to get through and the Government should begin to grapple with them with the urgency that is required.
6.3 p.m.
Lord Holme of Cheltenham: My Lords, I thank the noble Baroness for her introduction to the Bill and for a short but extremely valuable debate in your Lordships' House. This is clearly a very bad time in Northern Ireland. Anyone who follows affairs knows that tension is rising again and that we are sliding back towards the chasm which, a year or two ago, we thought we were emerging from at last. We have elections coming up in the United Kingdom shortly and in the Republic of Ireland in the autumn. Generally, elections are not good for progress towards peace.
I was very struck by what the noble Baroness, Lady Park, said. I believe it is true that Sinn Fein/IRA are isolated. It is striking that the American administration are now refusing visas to Gerry Adams for St. Patrick's Day. It is striking that the Taoiseach and the Irish Government have cut off all official contact with Sinn Fein/IRA. In my view they are still not as isolated as they should be as a result of the behaviour they have exhibited over the past year.
My noble friend Lord Alderdice referred to the wrong turning taken by the Government at the time of the Mitchell Report. It was at least very serious wrong emphasis by the Government at the time of that report; it was not what I call a "win-win strategy". In the context of Northern Ireland, "win-win" is the terrorists deciding that they are going to change their ways and join the peaceful parties in constitutional talks or being isolated outside the community of those who believe in peaceful and constitutional progress. We have not really quite achieved that. There is still ambiguity which results from the fact that the Mitchell principles were not totally and properly grasped at the right time by the Government.
It may be academic to discuss a decommissioning Bill at the moment. I believe that the noble Lord, Lord Fitt, with his great knowledge and experience, probably believes that it is even futile. I do not take that view. The Bill is a reminder that there is a better way. Certainly, from these Benches, we shall support it. We are grateful for the work of Senator Mitchell and his colleagues. Let us hope that the Bill will be available if and when it becomes relevant and useful again. Although, as my noble friend says, we may have what I hope will be constructive and relatively minor amendments from these Benches, we shall be supporting the passage of the Bill through the House.
Incidentally, the noble Lord, Lord Fitt, talked about Northern Ireland being totally tribal. I do not think that he is being completely fair. That may be true of too much of the political leadership of Northern Ireland. However, if one considers the opinions of ordinary people in Northern Ireland and the role honourably
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played by the Alliance Party, I do not believe that it is possible to say that people are always and inevitably in one of two camps.
I have been encouraged by the noble Baroness to believe that she will take some observations and questions on the issue of the North Report, which several noble Lords have raised. Perhaps I may now refer to that. I too very much regret that we did not have a Statement in this House and a chance to discuss it. I have had an opportunity to skim through the report. It comprises three large volumes and is an extremely impressive report on a very complex matter; namely, the question of marches and parades.
The report is based on extremely wide consultation in a rather limited period of time. The commission had 93 meetings and received over 250 submissions from groups and individuals. It contains a very wise statement:
"[The] future doesn't just happen: people have to create it".
The Government have received the report and their position on the central proposal, which is the crucial issue of the decision-making powers of the commission, appears to be that, first, the Government have no opinion either way and, secondly, they want to have consultation until the end of March, following consultation with 250 groups and individuals and 93 meetings.
The noble Baroness knows how consistently I and these Benches have supported the Government and her own efforts to create a lasting peace in Northern Ireland. But the Government's behaviour over the report is stretching goodwill too far. Is the Minister aware that the marching season starts in two months' time? Is she also aware that in the survey of public opinion which Dr. North and his colleagues carried out, where the option of local accommodation is not possible, by far the most popular option with Catholics and Protestants alike is an independent commission? That is the very proposal which Dr. North made and on which the Government say they have no view either way. I am sure that the noble Baroness is aware that the general election campaign in this country will start—if the Prime Minister's favourite date of 1st May is the one on which we vote—within about 24 hours of the end of the consultation period of two months which the Government are now proposing.
Is the noble Baroness aware of the feeling in Northern Ireland after Drumcree about the betrayal of the rule of law and the triumph of what amounted to mob rule? Is she further aware that on Monday of this week all the quality newspapers carried reports, based on government briefing, indicating that the Government would not back Dr. North's recommendations? Clearly, the Minister is aware that that is what has now happened. Finally, is she aware that this is not unnaturally a matter of great concern today in the Republic of Ireland and that the Tanaiste has made a statement urging the Government to adopt the proposals immediately?
Instead of "creating the future", as Dr. North and his colleagues enjoined the Government to do, the Government seem to be abdicating responsibility at a

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crucial moment. Like other noble Lords, I am extremely concerned about that. Therefore, I should like to ask the noble Baroness specifically whether the so-called "consultation" can be speeded up? Incidentally, if the Minister is to rest on the argument used in another place that Dr. North said that the Government might want consultation, 1 must advise her that in the same passage he also said that it is urgent that we get on with this. So if there is to be consultation—I am still at a loss to understand why that should be—why could it not take place now, over the next two weeks or so? If we are talking about consultation with political parties, I can advise the Minister that my party will make itself available at any time and will give any help it can to the progressing of whatever measures are necessary to implement the recommendations of the North Report. However, I must also advise the Minister that if the Government do not shorten the timescale and do not get on with this, the impression will be almost universal—in Northern Ireland, in the Republic of Ireland and in the wider world—that they are trying to kick this issue into the long grass until after the general election. That would be an absolute tragedy.
6.11 p.m.
Lord Williams of Mostyn: My Lords, one of the great milestones in the modern history of Northern Ireland was Senator Mitchell's report and its well-known six principles. I could not agree more fundamentally with the noble Lord, Lord McConnell, when he pointed out that a year has gone by and that many people who live in Northern Ireland feel—I am sorry to say that in my opinion this is a justified feeling—that the impending general election is allowing drift and inaction to stymie any sensible prospect for any further progress. I have to agree with the noble Lords, Lord Fitt, and Lord Holme of Cheltenham, that that is not fair behaviour; it is not responsible government behaviour; it is supine behaviour.
The Bill is welcome. Its introduction has been too long delayed. Senator Mitchell's report, which was of very great quality, pointed out that paramilitaries were unwilling to decommission before the talks started and that it was unacceptable to wait for decommissioning until the end of the talks. What he said—this is a useful quotation to recall and remember—was:
"As progress is made on political issues even modest neutral steps on decommissioning could help create the atmosphere needed for further steps in a progressive pattern of mounting trust and confidence".
Many of those opportunities have now been lost. I do not think that anyone could say that the Labour Party has not been responsible in its approach to these matters. However, as the noble Lord, Lord Holme, pointed out, one cannot endlessly follow when one sees disaster looming. Dr. North's report is a first-rate document.
The noble Lord, Lord Fitt, asked why the Statement was not repeated in this House. That is a perfectly reasonable question and I hope to offer a straightforward answer. It was because we were going to have the opportunity to discuss the matter this evening. Indeed, we have more opportunity to do so this evening because none of us is time-limited in our questions. That was the
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decision that was taken and I hope that it will be regarded as an honourable decision. Statements offer very little opportunity for questions whereas we are not time-limited this evening.
The marching season starts on 31st March. It is wholly unacceptable for the Government to have adopted their present stance. The Government say—I quote from the Secretary of State's Statement:
"It would not in our view be right for government without further consultation to reach a decision on so fundamental a proposal".
But why not? I would submit that it is not right for the Government not to reach a decision on so fundamental a proposal.
Paragraph 13 of the Secretary of State's Statement in another place states—this is the crystallised conclusion of the Government presently in power:
"It therefore expresses no opinion either way upon it".
That is a monstrous dereliction. It is a complete abdication of one of the important functions for which the Government were elected. If it were a matter which applied and was relevant to England and Wales, there would not have been the long grass into which the Government feel invited to kick this particularly difficult ball.
I join other noble Lords in urging the Minister—she knows that I do not say this in any criticism of her, but she is the only Minister available to us—to ask the Secretary of State to consider again whether or not he has made the wrong decision. It is very important that the commission should start work at once. It is very important that the commissioners should be carefully chosen—and that they should be chosen from those with knowledge of Northern Ireland so that one does not have the well-known occurrence of people being drawn from outside Northern Ireland to deal with Northern Ireland matters. There should be wide consultation—I am sure that the Minister can assure us that there will be—among the trade unions, the political parties, the churches, the Law Society and the Bar Council. However, in our view it is wrong for further delay to be tolerated. What is the view of the government in Dublin about the delay? Were they consulted? What was their response?
I leave Dr. North and turn now to the Bill. As the Minister said—I am obliged to her for her explanation—Clause 1 does not set out in any detail how the scheme is to work. Has the Minister any further details to offer us? I am perfectly happy, as always on these occasions when focused questions are asked, to have the Minister's response in writing if that is more convenient, bearing in mind her responsibilities.
I see that Clause 7 specifically includes the Government of the Republic. We believe that to be a step in the right direction. Has there been any discussion with the government in Dublin about the commissioners with respect to the decommissioning process? Have there been any tentative thoughts about who the commissioners will be? What is their nationality to be? What are their qualifications to be?
Clause 2 extends the scheme for a maximum of five years. Can the Minister at some stage—not necessarily this evening—give us some indication of the

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Government's thinking on that? As I have said, I shall be happy to have those answers in writing and I know that the Minister, with her invariable courtesy, will circulate those answers to all noble Lords who have spoken this evening.
I turn now to Clause 3. What verification is there to be? I take it that the decommissioning scheme will make provision for the destruction of weapons in the Republic under the provisions of Clause 3(1)(a) and (b). I take it that that is right. Who are to be the commissioners who will carry out the verification in the Republic?
Clause 4 is an amnesty—let there be no doubt about that. I believe as a matter of principle that all amnesties need to be scrutinised with great care. This means that there is an amnesty for such serious offences as the handling of explosives (under the Explosives Act 1875); the hiding of weapons (under the Criminal Law (Northern Ireland) Act 1967); and the possession of a weapon at work—this is sinister enough—under the Health and Safety at Work (Northern Ireland) Order 1978. It includes offences as deeply serious as the direction of terrorist organisations and the possession of items intended for terrorist weapons (under the Northern Ireland (Emergency Provisions Act) 1996). It includes the very wide inchoate offences of aiding, abetting and inciting terrorist activity. We must not gloss over the fact that amnesties require careful scrutiny and are very wide in their consequences.
As the noble Lord, Lord Holme of Cheltenham, has pointed out, we need to scrutinise in some detail the precise phraseology of these clauses. We wish the scheme to work and will offer only constructive amendments. However, in Clause 5 there is a disqualification of the reception of evidence from decommissioned articles, or information derived from them, in respect of criminal proceedings. Can such information be used in civil proceedings? That is quite an important question. If those who have lost their relatives or friends see that no criminal proceedings are launched in respect of the murders spoken of by the noble Lords, Lord McConnell and Lord Fitt, this clause will not disqualify them from suing. That matter must be looked at. The disqualification refers only to criminal proceedings.
How is Clause 5(3) to work? Subsections (1) and (2), which deal with non-admissibility, shall not apply to the admission of evidence adduced in criminal proceedings on behalf of the accused, but what happens if there are criminal proceedings in which there is more than one accused whose interests do not coincide? One defendant may want the admission of evidence because it exculpates him but inevitably implicates his co-accused. These are not idle questions but very important issues as to how the legislation will work, if it ever becomes law.
We also need to consider Clause 6. Subsection (l)(b) forbids absolutely any forensic testing of a weapon. One understands the necessity for ballistic tests on ammunition or weapons, but it specifically rules out the fingerprint examination of weapons. What happens if someone who is charged with an offence wishes fingerprint testing to be carried out by a forensic scientific laboratory to demonstrate innocence? That is
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not a fanciful question. It was for that reason that I began my remarks by suggesting that the Minister might wish to consider these matters because they were of some intricacy.
Clause 8 refers to England and Wales. What is the position in regard to a weapon or a terrorist artefact that has been used to commit relevant terrorist offences both in Northern Ireland and England and Wales? What will be the position in respect of evidence that is derived from those items? That needs some thought. For example, if a weapon had been used in an atrocity in Northern Ireland but had also been used in Canary Wharf, Warrington or Hammersmith in slightly different circumstances, would the evidence become non-admissible in respect of every location where that weapon was used? None of these questions is put in a partisan way, but the Bill is drafted so widely that one must be careful about its operation in practice. I am sorry that I have taken 12 minutes, but this Bill raises very important questions. I reiterate that the scheme is welcomed in principle. That such a scheme is required in practice is inevitable. We shall look at it very carefully in the spirit of helpfulness.
I must not sit down without referring to the noble Viscount, Lord Long, who has just joined us. He is always present on Irish occasions. It is his birthday today. It is only right that I should publicly offer him the present that I privately offered earlier today; namely, that if he wishes to vote against his own Government more than once a month he is perfectly welcome to do so.
6.24 p.m.
Baroness Denton of Wakefield: My Lords, I thank the noble Lord, Lord Williams, for his final comment. I believe that noble Lords on this side of the Chamber were trying to ignore that fact!
I am extremely grateful to noble Lords for their commitment to Northern Ireland and their input into the debate tonight on the Northern Ireland Arms Decommissioning Bill. I repeat the comment of the noble Lord, Lord Williams, that it is very important that the people of Northern Ireland are involved in discussions in forming the future of Northern Ireland, as we see increasingly in your Lordships' House.
I should also like to confirm the statement of the noble Lord, Lord Williams, that there was discussion about not taking the Statement on the North Report in your Lordships' House on the basis that I was very happy to take all comments on this matter and it could be done in a more reasoned and thorough manner than a straightforward request for information, which is the governing factor in relation to Statements. I hope the noble Lord, Lord Fitt, believes that I would never allow this House to be placed outside the parliamentary process.
We have discussed two matters in the overall question of how to move towards a peaceful future for Northern Ireland. I shall try to answer many of the points that have been raised by noble Lords. The noble Lord, Lord Williams, very kindly drew my attention to the fact that I would have to come back to him in writing on the

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issues that he raised, many of which were legal points. But I believe that he made it clear in his questions that, however widely and all-encompassing this legislation was drawn so as not to leave out any opportunity, it was very important that the detail should be based on straightforward legislative facts. I look forward with some interest to the amendments that have been mentioned.
The noble Lord, Lord Williams, also answered the question raised by the noble Lord, Lord McConnell; namely, why there had been a delay in bringing forward this measure. The noble Lord, Lord Williams, drew attention to the enormous amount of detail that had to be looked at in bringing forward this matter. I can assure the noble Lord that there has been no delay. We have moved ahead with the drafting of this Bill alongside the Irish who have drafted theirs. I hasten to assure the noble Lord that there was no dragging of feet, whatever sounds he may have thought he heard. We had to ensure that we had similar provisions and that there was no hiding place for terrorists and their weapons.
The structure and layout may be different because of constitutional differences, but we want to ensure that the outcomes are the same. We agree with the Mitchell recommendation that decommissioning should occur during all-party talks. It is our firm intention that we should be ready to put the schemes in place as soon as it appears that there is a willingness by terrorist groups to decommission their weapons. From the legislative point of view, I am pleased to say that the bringing forward of this Bill at this time has not held up anything. I speak as a person who loves and lives in Northern Ireland. I am glad that your Lordships have not put me under intense pressure to bring forward this measure earlier. I suggest that one of the major causes of the delay is the inability of Sinn Fein to put itself in a position to sit at the table and join in the talks in a peaceful manner.
I should like to discuss the concerns that have been raised in relation to the North Report, which was published today, and the Government's Statement in another place. I begin by reminding your Lordships of the Government's response. The Government welcome the report. We will immediately establish a parades commission with a conciliation, mediation and educative role in time for this year's marching season.
The noble Lord, Lord Fitt, said that we should be ready to go ahead with the commission tomorrow. I assure him that we are ready to go ahead tomorrow in a search for the commission, but finding the right people who will be prepared to take part, even in Northern Ireland where people so willingly give up their time for the greater good, will not be achieved overnight. We shall move as fast as is practicable. I have no hesitation in assuring your Lordships that the Government are focused on moving as quickly as possible. We will immediately begin consultations on wider decision-making and the related powers recommended by the report. I thank the noble Lord, Lord Holme, for his confirmation that he and his colleagues will make their input on this available as soon as possible.
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We are conscious that we have a heavy responsibility to take the report forward on the basis of the widest possible agreement within the community. The message noble Lords have given me this evening is that there must be agreement on the solution to the whole issue.
Lord Holme of Cheltenham: My Lords, I am grateful to the Minister for giving way. I urge upon her and her right honourable colleague the desirability of reading carefully the attitude survey which was commissioned, which shows clearly that if local people cannot reach an accommodation, which is of course by far the best option, easily the most popular option among the people of Northern Ireland, both Catholic and Protestant, is this decision-making independent commission. The Government should pay more attention to that than any other factor.
Baroness Denton of Wakefield: My Lords, I thank the noble Lord, Lord Holme. We have not ignored that. We have taken it into consideration. I stress that the setting up of such a body needs primary legislation. We are talking about giving it powers of adjudication. It will have to come through Parliament. As my right honourable friend said in another place, it will be put through as a Bill not an order because it is necessary to have full discussions. I shall ensure that the views expressed in this House tonight are drawn to my colleague's attention. That is always the case, but I shall convey noble Lords' strong feelings to my colleagues.
The aim is to press ahead with the necessary legislation. I assure the noble Lord, Lord Fitt, that we do not even have at the back of our minds the thought of there being a Labour government after the election. But it would be unrealistic of us not to recognise that the election and the timescale that noble Lords identified will complicate the issue. We shall take every opportunity to implement the recommendations as soon as possible.
I assure noble Lords that the consultation will not duplicate the already extensive consultation that has taken place. It is right that I pay tribute—I am sure noble Lords join me in this—to the people who so nobly took on this task, and produced a report which we all have yet to read in detail. It is obviously a report of great value and quality.
Were we casually to say, "This is what we shall be doing tomorrow", that would not reflect the important, difficult and complex nature of the problem that we are tackling. The noble Lord, Lord Fitt, rightly pointed out that matters have gone on year after year. He asked why we think decommissioning will work. I say to him that it is better not to work to the lowest common denominator of pessimism but to try always to move forward.
The noble Lord, Lord Alderdice, drew my attention to his views on the report. I thank him for the gentle way in which he expressed his criticism of something about which he obviously feels strongly. That was courteous of him. I stress that if the conciliation, mediation and educative role does not start this evening, it will certainly start tomorrow morning. The

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consultation exercise will be precisely focused. To move decision-making to another source is a radical and far-reaching proposal.
The noble Lord, Lord Alderdice, and my noble friend Lady Park rightly drew attention to the fact that Sinn Fein is sending no messages which would encourage people to have trust in them. Any ceasefire which would allow them back to the table has to be genuine. Their current activities give no one any confidence in their aims.
The noble Lord drew attention to the situation at Drumcree 1, as it has become known, and Drumcree 2. I believe he will agree that the activities last year at Drumcree were unprecedented in Northern Ireland. Therefore criticism that it was not foreseen is hard to make, because no one had expected that to be part of Northern Ireland's future. Again, we continue to press on with discussions and dialogue in the hope that answers will be found.
The noble Lord, Lord McConnell, is worried about whether the Government are as firm as he would wish in rejecting those who propose violence as an answer. I assure him that no one could be firmer. My noble friend Lady Park drew attention to the fact that we have seen significant changes in the attitude of the Americans and the Irish Government to Sinn Fein during the past year. I believe that those changes are the result of experiences which we have seen in Northern Ireland for many years. They have learnt the hard way that this is not a problem that can be solved merely by the hand of friendship. That has been rejected. The Government are grateful to the American and Irish governments for their support in attacking violence in the Province.
I am sorry to say that the noble Lord, Lord Fitt, was pessimistic. In bringing forward the Bill, the Government are trying to ensure that they do not hold up the process of finding a solution. I assure him that no one is suggesting that murderers should go free. With many offences now, no weapon is identified, but the convictions go through. There is no amnesty for criminals. There is a neef—the noble Lord, Lord Alderdice, identified this—to be practical if decommissioning is to work. I am pleased that the noble Lord, Lord Holme, recognised that in many instances the chiefs were following the Indians in the desire to reach a compromise through dialogue and discussion. I wish that "compromise" were not a dirty word in Northern Ireland. It is essential that we recognise that it must be part of the solution.
The noble Lord, Lord Alderdice, commented on the stories which are currently going around the Province about advertising from the NIO. The NIO has rightly requested and received information from the public. The campaign requesting that the public share their knowledge in order that we can win the battle against violence has had a tremendous response. Perhaps one of the chinks of sunlight in recent weeks has been the need for Sinn Fein to reaffirm its threats to those who are involved in violence. That means that the community must be sending out strong signals not only to us but to Sinn Fein that its way is unacceptable.
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I assure your Lordships that a comparison of the situation with that in Nazi Germany before the war has not been discussed by Ministers and I must express concerns. It is not a message which paints the true picture of Northern Ireland. The Government and the majority of people work towards a harmonious atmosphere and achieve that in many areas. Unfortunately, the minority has the high profile.
The discussions of that issue at national level were not helpful to those in my team who are working so hard to bring investment and growth to Northern Ireland. As Minister for Tourism, it was with great regret that I opened my national newspapers to read another negative story about Northern Ireland. Of course we have problems, no one denies that, and of course we have so much to do. However, we must not spread the message of fear. It is not something one feels immediately one steps off the plane, although the noble Lord, Lord Fitt, was right to draw attention to the real core of fear that exists among some communities. We must not venture to extremism, but promote moderation and working together.
The noble Lord, Lord Williams, suggested that the lack of progress in talks was due to some weakness—I suspect that he would have used the word "wetness"—on the part of my Government. Those who sit at the talks recognise that there have been constant attempts to make progress. The negotiations have been complex and difficult and I pay tribute to the patience of those involved. The framework exists for advancing the process and we do everything in our power to make it possible.
The noble Lord also asked why the Bill does not set out details of the decommissioning scheme. At this stage, it is not possible to finalise detailed arrangements. The parties to the talks also have an interest. We shall have to fine tune the arrangements to take account of the views of those who hold the weapons. However, the parties to the talks will be heavily involved in defining the parameters within which a scheme must operate, provided that the requirements of Clause 3 are met whereby a scheme must include one or more of the four listed ways of decommissioning; transfer, depositing for collection, provision of information and destruction by persons in unlawful possession. If verification is not believable, verification will not work.
The noble Lord wondered why there was a five-year time limit. It is considered to be practical. The Bill sets aside certain criminal offences because any scheme will be non-statutory. The five-year limitation allied with the need for annual renewal, by order, beyond one year is a way of ensuring parliamentary scrutiny, which is very important. That does not underestimate the lengthy path on which we have embarked. Furthermore, the five-year limit does not mean that we expect the process to last five years, nor does it mean that we intend it to last five years. We would like to see progress and we would like to see that issue dealt with.
The Bill provides for an amnesty from prosecution in respect of certain mainly possession-related offences for those acting in accordance with the decommissioning scheme. The amnesty will be available only to those

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acting in accordance with the detailed arrangements specified in the decommissioning scheme. It is intended to protect those who commit offences through their participation in decommissioning.
We are trying to build a path down which people can travel and on which we can make progress. The noble Lord rightly drew attention to all the legal aspects involved and I will write to him in detail. We, alongside the Irish Government, will need to consider carefully who should comprise the independent commissioners. It is absolutely key that we do so. However, the Irish Government were not consulted on the North Report. No doubt they will form their own conclusions and make them clear to us.
Your Lordships covered many points of concern. However, I can always be certain that we in your Lordships' House are working towards a common aim; that of ensuring that there is a peaceful future somewhere on the horizon for Northern Ireland. The Irish Government share our determination to attain agreement on the Bill, which deals with a most difficult and complex issue.
Agreement on decommissioning would transform the prospects for political progress and I believe that in due course it is achievable. The opportunity is there and it must be taken. In bringing the Bill to the House, I am endeavouring to give us the ability to achieve that. I ask your Lordships to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Geneva Conventions (Amendment) Bill [H.L.]
6.47 p.m.
Lord Avebury: My Lords, I beg to move that this Bill be now read a second time. I wish to begin by thanking Professor Peter Rowe for his unstinting advice on the detail and drafting of the Bill. I thank also Professor Francoise Hampson, Professor Nigel Rodley and Dr. Geoff Gilbert of the University of Essex, Professor Robert Goldman of the American University, Washington, and Professor Diane Orentlicher, director of the research office for the War Crimes Tribunals for their advice. I thank also the staff of the Library, who seldom receive public acknowledgement, and in particular, Mr. Steven Kennedy and Mr. Hugo Deadman for much help on the literature of war crimes and the development of legal mechanisms for dealing with them. I thank also the staff of the Public Bill Office. Of course, I take full responsibility for the Bill as it appears before your Lordships today.
I would say only that all the distinguished lawyers I consulted personally as well as the written authorities to which I referred—for example, Professor Theodor Meron and David Scheffer of the US State Department whose memorable joint seminar on war crimes with Judge Goldstone and M. Bacre Waly Ndiaye, the UN Rapporteur on Extrajudicial Executions, I attended in Geneva last April—are satisfied that all states have the right to try the crimes dealt with in the
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Bill, and many would say that it is a duty. The practice of states lags behind the opinion of the lawyers, as Professor Meron observes, and this is an opportunity for Britain to catch up.
Under the Geneva Conventions of 1949, every state has an obligation to search for persons alleged to have committed, or to have ordered to be committed, grave breaches of those conventions and to bring such persons, regardless of their nationality, before its own courts, the courts of another state or an international criminal court. The duty to prosecute and punish the authors of grave breaches is absolute, as the International Committee of the Red Cross makes clear in its commentary on those conventions. The UK and other Commonwealth countries whose law is derived from ours have enacted legislation making any grave breach of the conventions a felony and providing that any person found guilty of such an offence, whatever his nationality and wherever in the world the crime was committed, shall be subjected to life imprisonment where the offence involves wilful killing, and to a maximum of 14 years for any other grave breach. That is the effect of the Geneva Conventions Act 1957 which this Bill seeks to amend.
What is meant by "a grave breach of the conventions"? Article 50 of the first Geneva Convention defines it as,
"wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully or wantonly".
However, Article 2, which is common to the four conventions, provides that the "grave breach" provisions come into play only in cases of armed conflict between independent states, whether or not a state of war is recognised by one of them and in cases of partial or total occupation of the territory of a party to the conventions, even if there has been no armed resistance to the occupation.
The conventions were drafted at a period in the world's history when international armed conflicts were assumed to be the main threat. Common Article 3, which deals with conflict of a non-international character, sits out on its own, as Professor Rowe puts it, and although it prohibits conduct which is equivalent to the "grave breaches" specified in relation to international conflicts it does not put any obligation on the parties to criminalise that conduct in their domestic law.
That international law allows such wide jurisdiction is certain. In the case of Dusko Tadic, the International Tribunal on the Former Yugoslavia found that,
"assuming arguendo that there is no clear obligation to punish or extradite violators of non-grave breach provisions of the Geneva Conventions, such as common Article 3, all States have the right to punish those violators".
I think there are very few jurists who would argue against that proposition, but perhaps my noble friend Lord Lester will reinforce the point when he speaks in case there is any doubt in your Lordships' minds.
Belgium enacted legislation going much further than this in 1993, dealing with breaches of Protocols I and II as well as Article 3 of the conventions. In the US, Senator Leahy of Vermont is to introduce a Bill very

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shortly, as I heard from his legislative assistant Mr. Tim Rieser today. So I will take it that we follow the International Criminal Tribunal in saying that violations of the laws and customs of war, which means the same as "war crimes", includes acts committed both in international and internal armed conflicts, and that we are acting within our powers if we extend the Geneva Conventions Act to include the latter.
Today, according to the American lawyer Karen Parker, there are 35 countries in which there are internal conflicts between states and armed oppositions. Up to now, she has included in her annual surveys only those conflicts which have been noticed by the UN Security Council or the General Assembly. There are others, not necessarily smaller or less destructive, which have not come to the attention of the United Nations or which have exploded since her last survey in the winter of 1996. The war in eastern Zaire, the conflicts with the Lord's Resistance Army and the West Nile Bank Front in northern Uganda, which I had the opportunity to discuss with President Museveni when he was here on a visit a couple of weeks ago, and the virtual civil war in Algeria are examples to add to the list. The number of people killed every year in these 40 or so minor wars runs into tens of thousands, and the number forcibly displaced runs into millions. There are no international conflicts at all today, thank goodness, though some of the internal conflicts have international dimensions. Examples are Kashmir, which involves India and Pakistan, and East Timor where Portugal and Indonesia are concerned.
The case of East Timor is particularly notable, because the Government decline to say whether the Fourth Geneva Convention, which deals with the case of territory belonging to one high contracting party occupied by another, applies there. If it does, the offences committed there by the Indonesians which included the wilful killing of thousands of non-combatants, could be tried in our courts already. If it does not, this Bill would come into play and they could be tried for a breach of Article 3. The point is of more than academic interest because we have played host from time to time to Indonesian war criminals. From January to December 1989, former Major Yunus Yosfiah was a guest at the Royal College of Defence Studies. He was the commander of the assault on Balibo on 16th October 1975 in which five Australian newsmen, including two British citizens, were murdered in cold blood.
Examples show that in the course of these internal conflicts, violations of the laws and customs of war are if anything more likely to occur than in the course of wars between states. There is some incentive for states to observe international law because they want their opponents to do the same. But in domestic conflicts, where the state may see the civilian population as forming a reservoir from which the armed group draws its strength, there is an inclination to treat non-combatants as legitimate targets. On the other side, armed opposition groups may be less disciplined and therefore less scrupulous about the rights of civilians whom they see as belonging to the state or to another
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faction. There is no logical distinction, however, between the crimes committed in domestic and international armed conflicts, and they should be treated identically by the law. Thus it is not only permissible but also expedient that we should extend the Act for this purpose.
The week before last an organisation was formed called Indict to bring Saddam Hussein and his top brass to justice. The supporters of this initiative mostly assumed that it would be necessary to establish a new ad hoc war crime tribunal on the lines of those already in existence for the former Yugoslavia and Rwanda for the purpose. I agree entirely that Saddam should be tried together with his military commanders who were responsible for atrocities such as the murder of 5, 000 civilians by poison gas at Halabja, the extermination of the marsh Arabs in the south, the wanton destruction of the holy shrines in Najaf and Karbala, and the wilful killing of tens of thousands of Shi'as after we left them in the lurch at the end of Desert Storm. I am not sure that yet another ad hoc tribunal would make sense when the two present ones are proving expensive, cumbersome and ineffective.
Saddam Hussein would be liable to prosecution already under the Fourth Geneva Convention for criminal acts done while his forces were occupying Kuwait, and for crimes against peace for his aggression against Iran and Kuwait as well as for the use of poison gas during the Iran-Iraq war, admitted by Foreign Minister Tariq Aziz on 1st July, 1988. On the use of poison gas at Halabja, within the territory of Iraq, our Government's position was that this constituted a serious and grave violation of the 1925 Geneva Protocol and international humanitarian law, even though that protocol only applied during a "war" which at that time meant an international armed conflict.
If there is to be a new war crimes tribunal on Iraq, why not equally one on Sudan, for instance, to deal with the atrocities committed by the NIF regime against the peoples of the south, the Nuba Mountains, and elsewhere, as described graphically by the noble Baroness, Lady Cox, in her intrepid forays into those dangerous areas. Only recently she has been there again, this time to the remote southern Blue Nile where she gathered evidence about the murder of civilians thought to be supporters of the SPLA, and the scorched earth policy adopted by the Sudanese military there. Clearly, there should be a tribunal to deal with General el Beshir, Dr. Turabi and their henchmen.
Yet this approach would lead us into enormous difficulties. Sadly, war crimes are being committed in all the 40 conflicts raging now, and there will be others in the future. It is not possible to imagine upwards of 40 separate tribunals, operating independently of one another. Judge Goldstone said last April that he had 24 investigators for Rwanda and that if he had had 124 that would still have been grossly inadequate. The United Nations will never agree to the creation of dozens of tribunals, each of them needing vast resources to collect and maintain evidence as well as to conduct the proceedings themselves.

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Recognising the problem but appreciating the necessity for universal jurisdiction over war crimes wherever they may be committed and whether in the course of domestic or international armed conflicts, the United Nations has been taking steps toward the establishment of an international criminal court. This would have jurisdiction, according to the draft statute, over,
"serious violations of the laws and customs applicable in armed conflict".
The absence of the word "international" means that it would be able to try Article 3 offences, reinforcing the idea of universal jurisdiction over these offences.
However, in view of the collapse of previous attempts to create an international court, there cannot be any certainty that the present efforts will succeed or that they will retain the breadth of jurisdiction which one finds in the draft. The programme adopted by the General Assembly in December 1996 was for a series of meetings of the Preparatory Committee, leading to a diplomatic conference some time after April 1998 to adopt the draft convention. If it does go through in its present form, and this Bill is enacted, there would be parallel jurisdiction, but there is already parallel jurisdiction with the 1957 Act. It would be convenient if offences which are triable before the international criminal court were also crimes under our law, and if decisions on where they were to be tried rested on practical considerations such as where the witnesses happened to be.
I turn now to the Bill itself. The proposed new Section 1A(1) makes it an offence to commit, aid, abet or procure any act in breach of Common Article 3 outside the United Kingdom. The reason for this is that if an internal armed conflict did arise in this country, the specified acts would constitute offences under our existing law. The penalties for any breach of Article 3, as specified in the Bill, are the same as those for a grave breach of the conventions under the 1957 Act.
Subsection (2) excludes members of the Armed Forces from the legislation. If British forces were sent to help a friendly state in military operations against a rebel force and a British soldier, for example, allegedly killed a protected person, he would be liable to be tried under Section 70 of the Army Act, or under the ordinary law he could be charged with murder. The same would apply in the event that the soldier was part of a UN force which became involved in an internal conflict. There is the example of Canadian soldiers alleged to have committed offences in Somalia who were tried under their equivalent of the Army Act. Subsections (3) and (4) correspond with identical provisions in the parent Act.
I realise that the Bill is a material extension of extra-territorial jurisdiction, enabling our courts to deal with offences committed in the course of armed conflicts abroad with which Britain is not involved. But we already have legislation allowing us to try the perpetrators of genocide, torturers (under the Act which gave effect to our ratification of the torture convention) and, under the War Crimes Act 1991, war criminals from the Second World War. Therefore it is not without precedent even if one does not go into the other
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legislation dealing with extra-territorial offences such as paedophile offences which have been the subject of much discussion in this House.
If your Lordships give the Bill a Second Reading, it will send a message to those who are still immune from prosecution for war crimes and crimes against humanity and soon there would be no place in the world in which a Mengistu or a Saddam could escape retribution. Britain could give a lead, particularly to Commonwealth states which have similar legislation to ours, in making ready to prosecute the tyrants and their servants who wilfully kill and harm their own citizens.
Moved, that the Bill be now read a second time.—( Lord Avebury.)
7.4 p.m.
The Lord Bishop of Oxford: My Lords, I am extremely grateful to the noble Lord, Lord Avebury, for bringing the Bill before the House. I believe it to be an important piece of legislation. Before coming to its details I should like to set it within a wider framework and one which I believe brings out that importance.
There are those who still argue that in war anything goes: once war breaks out, morality goes out of the window. That view is counter to one of the most carefully worked out convictions in Western civilization. This says that, even in war, morality holds. In particular, there is the central insight that non-combatants, or civilians—that is, those who are not directly contributing to the war effort—should never be the object of direct attack. Sadly, that rule has too often been flouted, but the moral claim is still there, formulated by the Church in the 11th century, given intellectual backing by the great Spanish theologians Francisco de Vitoria and Suarez in the 16th century, making its way into international law via Grotius and now enshrined in the laws of all civilized countries.
Sadly, in a fallen world defensive wars are sometimes necessary, but even in war there is a morality to be observed. There is a Ius in bello as well as a Ius ad bellum. What applies to war between states applies no less to internal conflicts—civilians who are not directly contributing to the armed conflict should not be the direct object of attack. In short, killing civilians or disarmed combatants is murder. It is one of the great achievements of our time to have this fundamental moral insight enshrined in international law.
In relation to the Bill now before the House, I should like to highlight three points. First, the changing nature of warfare. When one speaks of war, the usual impression is that war is the armed forces of one or more states engaging in combat with the armed forces of another nation or coalition of nation. If, however, one studies the expert literature on the field, in particular the Yearbook of the prestigious Stockholm International Peace Research Institute, it becomes clear that wars between nations have been very much the exception in recent years. This was the case even before the end of the Cold War and is certainly the case now. In each of the last 10 years, there have been, on average, around 30 major armed conflicts in progress, according to the SIPRI definition. That definition is that a major armed

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conflict is one in which over 1, 000 people have been killed in the duration of the conflict. Almost all of these conflicts, with spectacular exceptions such as the Iran-Iraq war and, more recently, the Gulf War triggered by Iraq's invasion of Kuwait, have been internal conflicts, with government forces fighting a rebel force, liberation movement, secessionist group or repressing its own population—depending on the different situations and the political categories and values used to assess the conflict. One can think of situations such as the long-lasting war between government troops in Sudan, which was mentioned by the noble Lord, and forces from the predominantly Christian south of Sudan, as just one of the many examples.
The proposed legislation seeks to take account of the nature of contemporary warfare, as atrocities are not only committed in the few wars between nations but obviously also in wars within nations. Indeed, civil wars are often the bloodiest and give rise to some of the most serious human rights violations, even to the level where it is appropriate to speak of genocide—a term not to be taken lightly or used merely as a term of abuse—in cases such as Rwanda. The noble Lord is to be congratulated on bringing forward this proposal as it would be a small but significant step towards enabling the international community to apply the Geneva conventions to internal conflicts.
My second point is the issue of domestic legislation and international law. Clearly, international tribunals such as those addressing war crimes in former Yugoslavia and Rwanda have their limitations. The late Sydney Bailey, a careful commentator on the United Nations, said in one of his last works:
"There is something distasteful about the creation of ad hoc courts with retroactive jurisdiction and dealing with some but not all grave violations of international law".
At first sight, that may seem an excessively purist viewpoint when faced with crimes and atrocities of the magnitude of those committed in Rwanda and former Yugoslavia, but the ad hoc nature and the retroactive effect of such tribunals must be seen as a weakness. In the case of Rwanda, the new government's dissatisfaction with the effectiveness of international mechanisms is an additional element. We must seek to ensure that international humanitarian law is effectively and impartially practised. This must be a concern for the international community, in order to remove any suspicion that what is being practised is "victors' justice" or even revenge rather than a careful application of the highest standards of international law.
The United Kingdom and the states of the British Commonwealth have the Geneva Conventions Acts as legislation to provide a means for trying those suspected of any grave breach of the conventions. However, internal or non-international conflicts are not covered by the Geneva Conventions as they now stand.
The question must then be addressed: how the legislation proposed by the noble Lord would help in this regard. I suggest the following two ways. First, until a satisfactory international criminal court can be established, it is necessary for national legislation to be in place as a deterrent so that those who have committed
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atrocities know that they could be tried if they seek to come to this country or other countries which enact comparable legislation. Secondly, at the same time, putting such legislation in place in an increasing number of countries will mean that the political will is generated which would enable a permanent international criminal court to be established, and adequately resourced in terms of specialist personnel and resources. In short, work at the national and international levels thus reinforce each other.
Finally—as the last of the three points I mentioned at the beginning—lest it be felt that these proposals are Utopian, I wish to quote the judicious evaluation by Professor Adam Roberts, Montague Burton Professor of International Relations at Oxford University, writing recently in the Adelphi Papers series of the International Institute for Strategic Studies. Professor Roberts writes:
"Concern about implementing international humanitarian law is a driving force behind proposals for the establishment of a permanent international criminal court, which is the subject of ongoing negotiations under UN auspices. There is no disagreement that this international court would be involved in trying 'core crimes'—war crimes, crimes against humanity and genocide. However, there are numerous issues yet to be resolved about jurisdiction over other crimes, and the extent to which the prosecutor might have an independent investigatory role. Whether or not the champions of this proposal overcome the concerns of states about independent supra-national investigations into their security activities, the demand for effective implementation of the laws of war is likely to remain very strong, and to be difficult to translate into effective policies of international enforcement against recalcitrant states".
I have cited this carefully balanced paragraph at length since it indicates the need for precisely the kind of legislation proposed by the noble Lord as an intermediate national step en route towards effective international instruments. For this House to send the signal to those who commit atrocities that they are liable to face trial in our courts should they set foot in this country would be a small step towards making this a more humane world. It would indicate that we do not accept that nothing can be done about crimes against humanity as we reach the end of this genocidal century and reach the threshold of a new millennium. We can do something to outlaw atrocities. This Bill is, I believe, a step in that right direction.
7.13 p.m.
Lord Lester of Herne Hill: My Lords, having heard two such powerful speeches I am tempted to say, "I agree, and I have nothing more to add". However, I hope that your Lordships will permit me to add a few remarks at not too great length.
My noble friend Lord Avebury, indefatigable champion of the international protection of human rights, is to be congratulated on introducing what the right reverend Prelate the Bishop of Oxford rightly describes as an important Bill. I wish to associate myself with everything that has been said by my noble friend and by the right reverend Prelate.
I wish to begin by focusing on the mischief, as it were: what is it that concerns so many? This was well expressed in the words of the senior adviser and counsel to the United States permanent representative to the

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United Nations, Mr. David Scheffer, who wrote in Foreign Policy, in the spring of last year,
"The number of war crimes—genocide, crimes against humanity, and violations of the laws and customs of war—that have occurred in our time is depressingly large: the Iraqi assault against its own Kurdish and Shiite populations and against Kuwait; ethnic cleansing in Bosnia and Croatia; genocide in Burundi and Rwanda; widespread tenor and murder in Angola, Chechnya, Ethiopia, Haiti, Liberia. Somalia, and Sri Lanka; the human depravity of recent decades echoed in the courtrooms and public arenas of Argentina, Chile, Ethiopia, Guatemala, and Honduras; and the unforgettable genocide in Cambodia. Together they have sparked global indignation and prompted calls for national or international remedies".
Mr. Scheffer also wrote,
"Lingering on the horizon are rogue horsemen seemingly liberated from the rule of international law: Individuals acting with impunity, sometimes shielded by governments that embrace violations of international humanitarian law, are threats to the peace and security of their own peoples and, inevitably, to the international community".
As I am sure we shall be reminded, if necessary, it is a matter of ancient British constitutional principle that the criminal jurisdiction of courts throughout the United Kingdom is normally territorially based. The exercise of an extra-territorial criminal jurisdiction is the exception and gives rise to real practical problems in obtaining cogent and admissible evidence of crimes committed abroad. But those practical problems of evidence and proof have not prevented our courts for centuries from having the power to try crimes of murder, treason and piracy committed in any part of the world; nor have these problems prevented Parliament from extending the criminal jurisdiction of our courts extra-territorially where the nature of the criminal activity made it essential. For instance, recently Parliament extended extra-territorial jurisdiction to cover drug trafficking overseas, and—only last year—to crimes committed on board aircraft coming to this country.
There is, of course, another basis—in addition to what I have mentioned—for extending criminal jurisdiction beyond our territory, and that is to cover crimes against humanity. Since the Second World War, Parliament has extended that jurisdiction to the crimes of genocide, state torture and war crimes, as we have heard. Parliament has done that because, with the development of human rights as part of customary international law and as a result of widespread ratification of humanitarian conventions, these have become recognised as offences against the law of nations and against common humanity, and thus subject to universal jurisdiction, with no hiding place or safe haven for the perpetrators, whether the victims were aliens or nationals of the country where the perpetrators performed their hideous acts.
The Nuremburg International Military Tribunal, inspired by what one might describe as the jurisprudence of the late judge, Sir Hersch Lauterpacht, set the precedent in punishing the perpetrators of war crimes and crimes against humanity, and in preventing them from hiding behind the cloak of state sovereignty or state immunity. There matters languished for decades after 1949 despite heinous atrocities in other parts of the world such as Cambodia, Indonesia, and Iraq. Those are just three examples. However, recent conflicts in the
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former Yugoslavia and in Rwanda have stirred international and national action. There were two ad hoc international tribunals and only two years ago there was the enactment of the Geneva Conventions (Amendment) Act 1995 introduced by the noble Lord, Lord Archer of Weston-Super-Mare.
The 1995 Act amended the 1957 Act which itself brought into force the 1949 Geneva Conventions so as to extend our criminal law to cover "grave breaches" of the 1977 Protocol I to the Geneva Conventions and so as to enable the UK Government to ratify Protocols I and II. I very much welcome the fact that the Government recently indicated in answer to a Question asked by my noble friend Lord Avebury that they intend to ratify those two protocols in the near future.
The Geneva Convention (Amendment) Act 1995 strengthened the protection for the civilian population in international armed conflicts. The important question raised by the present Bill is whether we should do the same in respect of breaches of the humanitarian provisions of a fundamental character guaranteed uniformly by Article 3 of the four 1949 Geneva Conventions, dealing with armed conflicts not of an international character, but which are internal armed conflicts. Such breaches of humanitarian law involve gross affronts to human dignity which are matters of real international concern whether they occur in international or internal armed conflicts. As a matter of history, the "grave breaches" provisions of the Geneva Conventions have not been applied to the victims of non-international armed conflicts. Neither Article 3, common to the Geneva Conventions, nor the 1977 Additional Protocol II requires states to punish serious violations of the applicable international humanitarian standards. However, that does not mean that grave breaches cannot or should not be punished under national criminal laws. In my opinion the United Kingdom is fully entitled to extend extra-territorial jurisdiction as a matter of international law.
Article 3 of the general provisions common to the four Geneva Conventions provides that,
"Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria".
The articles also provide that in regard to those persons the following acts are prohibited: violence to life and person, in particular, murder, mutilation, cruel treatment and torture; the taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; and the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees recognised as indispensable by civilised peoples.
Many but not all of the examples of flagrant violations of human rights are criminal offences under UK municipal law, such as violence to life and person, including murder, manslaughter, cruel treatment, torture and rape; but, apart from acts of murder and torture, our courts have no jurisdiction over these crimes if they have been committed abroad.

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The key question raised by the Bill is whether our Parliament should follow the example, referred to by my noble friend, set by Belgium in 1993 which enacted a law providing for criminal jurisdiction of Belgian courts over breaches of the Geneva Conventions in cases of internal armed conflict, regardless of the nationality of the victim or the perpetrator or of the location of the offence. On the basis of that law, the Brussels prosecutor's office, in May 1995, issued several international arrest warrants against persons involved in the atrocities in Rwanda. One of them was issued against a Rwandan responsible for the massacre of other Rwandans in Rwanda.
I believe that the answer to that key question is that Parliament should indeed empower our courts to exercise jurisdiction over breaches of international humanitarian law arising in internal conflicts in such circumstances. There is some support for that in a recent decision of the United States Court of Appeal dealing with a civil claim against Radovan Karadzic. There is also support in a judgment of the International Court of Justice in the US v. Nicaragua case. I do not pretend that one can now say that breaches of common Article 3 are part of customary law. Nonetheless, to enact this law would be to place the United Kingdom in the forefront of the development of international humanitarian law. As was said by both previous speakers, the vast majority of conflicts in the world are internal, or at least partly internal, and the most egregious violations of humanitarian law arise in that context.
The enforcement of this body of law cannot depend on international tribunals alone. They will never be a substitute for national courts. There is a pressing need to create an international criminal court; however, I doubt that that will happen for many decades. Even if there were a permanent international criminal court, it would lack the resources to deal with all but the most flagrant and gross violations. It would still be essential for national courts to be empowered to exercise a concurrent jurisdiction regardless of the nationality of the victim or the perpetrator or the location of the offence.
The Bill gives us an opportunity as a nation to set an example which may be followed by other member states of the Commonwealth, of the Council of Europe and beyond. I suggest that it deserves a Second Reading. It is a bold, honourable and innovative measure. It cannot become law at this point in the parliamentary electoral cycle; however, I hope it will result in the enactment of legislation sooner rather than later, and will send a powerful message across the world, as the right reverend Prelate said, to act as a deterrent and a good example.
7.26 p.m.
Lord Archer of Sand well: My Lords, not for the first time the House owes a debt to the noble Lord, Lord Avebury, both for drawing our attention to this problem and for his very clear and comprehensive introduction to our debate. Perhaps I might be allowed to say that we are indebted, too, to the advisers whom he mentioned who gave so unstintingly of their time to assist him and to assist us.
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I understand the feeling of the noble Lord, Lord Lester of Herne Hill; in view of preceding speeches, an intervention from me is almost superfluous. That is particularly so in view of the speech of the noble Lord himself, which adds to the list. Nevertheless, I do not intend to be deterred from making one, if only because it is important to demonstrate the breadth of consensus in this House on the matter.
I hope that the noble Lord, Lord Avebury, will forgive me if I begin by observing that I should like to think that this Bill might transpire to be unnecessary for two reasons. First, I would dearly like to think that we might see the end of internal conflicts, and certainly the end of infringements of humanitarian law in the course of them. However, I suspect that, sadly, that may turn out to be over-ambitious.
Secondly, and perhaps a little more realistically, I hope that the time is fast approaching of the establishment of an international criminal court. I appreciate the point made by the noble Lord, Lord Lester, that it may never wholly replace domestic jurisdiction in this sphere. But it might, one hopes, in due course, take over a great deal of that jurisdiction. If we saw that happening, it would not be before time. The concept was being widely discussed as long ago as 1947, particularly in the context of the genocide convention. Some of us have continued to write and speak about it during the years.
Two years ago it was being stated that the concept of an international criminal court was 50 to 100 years away. Then, on 17th December last year, the General Assembly of the United Nations adopted a new international consensus about the need to do something about the kind of conduct that we have heard discussed in this debate. It adopted a resolution calling for just such a court. It renewed the mandate of the Preparatory Committee and decided that a diplomatic conference to finalise the statute should be held in 1998. We are told that it is hoped that it will be held in June next year. That is a great step forward in human well being and one which we hope will be thought of by future historians as an important milestone in the progress of civilisation.
It is largely the achievement of the non-governmental organisations. I hope that we shall shortly hear proper tributes to the NGO coalition and if it is not invidious to single out one, particularly the World Federalist Movement which a few years ago was virtually a voice crying in the wilderness. It was accused of being wholly unrealistic.
However, we do not know how the small print of the statute, or even the large print, will look or whether there will be a statute. There is a great deal of hard thinking and hard bargaining to be done. We do not know what the precise relationship will be between the jurisdiction of the court and the domestic law of the member states. Sometimes, in any event, as the noble Lord, Lord Lester, said, it may be necessary or in the interests of justice for certain defendants to be tried in national courts. So it would be bold to predict that the Bill will be superfluous on that ground.

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It is possible that if what is sought were to be achieved, there might be no need for states to confer jurisdiction on their domestic courts to deal with the offences. We have seen the limitations of the ad hoc tribunals pointed out by the right reverend Prelate the Bishop of Oxford. Perhaps one should add in passing that the Government are to be commended on the way in which they have tried to lend their support to the international tribunal for the former Yugoslavia. The United Nations Independent Tribunals Order provides for full co-operation by our national authorities to facilitate the work of the court by such measures as arranging for the arrest of persons summoned before the tribunal and the discontinuance of domestic proceedings in the same matter.
But for the present it is likely that there will continue to be internal conflicts, that they will involve breaches of humanitarian law, and that human beings will continue to suffer unspeakable tragedies of the kind we have heard described in the debate. We are grateful to the noble Lord, Lord Avebury, for taking this initiative, calculated to protect those who are most vulnerable.
Anything we can do to deter that kind of conduct will be welcomed at least by the potential victims. So I hope that the Government will add to their commendable record on these matters by supporting or, better still, adopting the Bill. It may be that it will not reach the statute book during this Session, but a declaration from the United Kingdom Government could ring round the world.
We cannot foresee whether the jurisdiction which the Bill seeks to confer will ever be invoked. It may be that people accused of committing these foul crimes will never be found within the jurisdiction of the English or Scottish courts. That could be said of any one country. But, as the right reverend Prelate movingly pointed out, we are discussing conduct which has long been condemned by the whole international community, which is in breach of international law, and which those who perpetrate it must know is regarded with revulsion by all civilisation. They are not taken by surprise. Those who practise such conduct need to know that however invulnerable they may feel while they are surrounded by their armed henchmen they will be pursued and that there is nowhere on earth where they are immune from retribution. That can be achieved only if every country which claims to be committed to human rights is prepared to pass legislation of this kind.
If the legislation is enacted, not only will the United Kingdom be denying those criminals a sanctuary in this territory but also it will be giving a lead to those countries who might otherwise hesitate, making it more difficult for those who may be tempted to offer them a hideaway.
I appreciate the reason the noble Lord, Lord Avebury, spent a little time on whether, as a matter of international law, this country was entitled to pass such domestic legislation. I am bound respectfully to agree with the noble Lord, Lord Lester. I should be surprised if that were seriously contended. The principle of conferring on our courts extraterritorial jurisdiction over offences committed abroad is now, as the noble Lord,
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Lord Lester, said, well entrenched in our law. We owe one of the more recent extensions of our domestic jurisdiction to the noble Lord, Lord Hacking, and I was about to pay tribute to him. However, he is no longer in his place. Offences relating to slavery have been triable here extraterritorially since 1873. Torture committed abroad is triable here. And, of course, we have the precedent of the two Geneva Conventions Acts themselves.
When extraterritorial jurisdiction is under discussion, I have discovered from experience that we have sometimes heard the argument that it would provide an extra burden on our courts so that there are resource implications. In this case, I cannot believe that the jurisdiction will be invoked so frequently that that will be a consideration.
I turn to the noble Earl who will reply to the debate. I hope that on this occasion he will have the pleasure so often denied to him and other Ministers on the Government Front Bench of announcing that the Government are on the side of the angels and that they too declare their support for the Bill.
7.32 p.m.
The Earl of Courtown: My Lords, before I congratulate the noble Lord, Lord Avebury, on raising this serious matter, I wish to say to the noble and learned Lord, Lord Archer of Sandwell, that I am pretty sure that I am on the side of the angels.
Serious issues have been raised by the noble Lord, Lord Avebury, this evening, and that has been reflected by the speeches of all noble Lords and the right reverend Prelate. The United Kingdom takes its responsibilities under all international conventions very seriously and we enacted legislation in 1957 to enable us to comply with the provisions of the Geneva Conventions. We are required to take criminal jurisdiction over grave breaches of the four Geneva Conventions, and that we do by virtue of the 1957 Act.
Common Article 3 of the conventions applies to non-international—that is internal—armed conflicts and, very briefly, it protects non-participants in the conflict from violence towards life and person. As I have said, however, the conventions themselves require state parties to take criminal jurisdiction only over grave breaches of the articles of the convention and Common Article 3 contains no grave breaches. There is, therefore, no requirement in international law for the United Kingdom to take criminal jurisdiction over breaches of Common Article 3.
The question of extraterritorial jurisdiction mentioned by noble Lords—giving the courts of this country jurisdiction over criminal offences committed overseas—was the subject of full review last year. The report of that review—a copy of which is available in the Library of the House—recommended that the basis of the jurisdiction of our courts should remain territorial, and the Government accepted that recommendation. The review recommended, however, that extraterritorial jurisdiction could be taken in exceptional cases, and set out guidelines which could be used to assist the evaluation of proposals for an extension of jurisdiction.

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Following that review, two measures for wider jurisdiction have been announced. Tomorrow, in another place, there will be a debate on a Bill which would give our courts the power to consider cases of conspiracy and incitement, in this country, to commit an offence overseas. The provisions of that Bill would certainly cover instances where a person did something in this country, which amounted to incitement, or conspiracy, in preparation for a breach of Common Article 3 which amounted to a criminal offence under United Kingdom law. Earlier, in another place, there was consideration of a Bill which, among other things, provides for extraterritorial jurisdiction over certain sexual offences involving children—a matter which I know has the strong support of many noble Lords.
The Government's mind is not, therefore, closed to the courts of this country taking account of actions which have repercussions abroad, but such action must remain an exception to the general rules of jurisdiction and be fully justified in each case. In questions involving the internal affairs of other states—as Common Article 3 clearly does—the Government do not consider that it would be right to take jurisdiction unilaterally. The international community has not seen fit to make breaches of Common Article 3 grave breaches of the conventions requiring state parties to take jurisdiction.
I should like to say that the Government very much deplore the appalling acts of Saddam Hussein and his regime. Acts of that kind have been rightly condemned by the international community.
The noble and learned Lord, Lord Archer of Sandwell, mentioned the proposed international criminal court. Preparatory negotiations are continuing in the United Nations about setting up an international criminal court. Government officials are participating in those negotiations.
In relation to the work of the preparatory committee for that criminal court, many non-governmental organisations have been active in their endeavours to ensure that the discussions take place on the basis of the fullest possible understanding of the issues. I welcome their contributions.
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In the light of what I have said, it will not surprise your Lordships to hear that the Government cannot support the Bill. However, in keeping with the traditions of this House, we shall not oppose it this evening.
7.42 p.m.
Lord Avebury: My Lords, I am grateful to all those who have contributed to the debate: the right reverend Prelate, my noble friend Lord Lester of Herne Hill and my friend—if I may call him that—the noble and learned Lord, Lord Archer. Their powerful arguments reinforced the case which I made for such legislation to be enacted. Even the Minister reinforced the case in his own way by pointing to the legislation being introduced tomorrow in another place to criminalise conspiracy to incite or commit acts overseas in breach of Common Article 3. We should be in the anomalous position, if that Bill were enacted, of making it an offence to conspire to commit a breach of Common Article 3 but not making the substantive crime an offence. That would be a very curious position with which to end up.
I was encouraged also by the fact that the Minister pointed to examples of the extension of extraterritorial jurisdiction which are on a par with those already cited by my noble friends, such as the legislation dealing with the torture convention, the genocide convention and other crimes against humanity. So I suggest that we should at least go the one stage further of seeing where we get to in Committee with this Bill, even though, as my noble friend said, it is not likely that we shall be in time to pass it through all its stages in this House and another place between now and the general election. Having heard the four speeches in favour of the Bill this evening and the Minister's lukewarm speech against it, it would be valuable to open up the discussion to a wider circle of your Lordships by going into Committee and seeing what ensues. Even if we do not conclude proceedings, there is then some guidance to this House and another place, which may want to consider similar legislation some time after the general election. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at a quarter before eight o'clock.