Lords Sitting of 5 June 1997

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Ripon.
Several Lords—Took the Oath or Affirmed.

Gulf War: Pensions Policy
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
What is their policy concerning the provision of war pensions and the relief of hardship to those members of Her Majesty's Armed Forces who served in Operation Granby and who became ill as a result of that service.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, under the war pensions scheme awards may be made in respect of any disablement due to any service in the Armed Forces. Where a claim is made within seven years of termination of service, and that applies to all claims made so far in respect of service in the Gulf, the onus is on the Secretary of State to show beyond reasonable doubt that disablement is not due to service. Benefits under the social security scheme may also be available.
The Countess of Mar: My Lords, I thank the Minister for her Answer. However, is she aware that many members of Her Majesty's Armed forces who served in the Gulf War are experiencing enormous problems in receiving the benefits to which they are entitled, both as regards war pensions and pensions from the Ministry of Defence? Will the Minister consult with her friends in another place, and with those in the Ministry of Defence, to ascertain whether they can produce a leaflet setting out all the entitlements that apply to these war veterans and the circumstances under which they may be claimed? In that way, everything would be covered in one document rather than having a large number of leaflets dealing with separate benefits.
Baroness Hollis of Heigham: My Lords, I accept the criticism made by the noble Countess that it is taking time to hear such claims. However, your Lordships will understand the difficulties involved as we are dealing with Gulf War "syndrome", which is very ill defined; indeed, we do not know what it is. It occurred six years ago and at a time when record-keeping was not always immaculate. Inevitably, each component of the syndrome has to be assessed by consultants. Nevertheless we are trying to speed up the process. We are now, with permission, seeking to use the medical reports from the Gulf assessment programme, which should replace the need for some of the consultants' reports.
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I turn now to the second part of the noble Countess's question, of which she was kind enough to give me notice, regarding whether or not we can bring together all the entitlements set out in separate brochures. I checked this morning to see what kind of leaflets we issue and I also checked with the Royal British Legion to ascertain whether or not they were considered satisfactory. The leaflets were revised some three years ago and the legion believes that they are clear and satisfactory; however, there may be a question over distribution. I shall therefore look into that matter as well as taking up the point made by the noble Countess.
Lord Molloy: My Lords, can my noble friend the Minister say whether consideration could be given to seeking the views of the Royal British Legion?
Noble Lords: Oh!
Lord Molloy: My Lords, I do not see what is funny about that. The Royal British Legion serves those men and women who allowed us to live in a free country. I hope that that fact will always be remembered. I repeat, will my noble friend the Minister seek the views of the legion on the issue? It is pretty upset and wants to assist in any way it can.
Baroness Hollis of Heigham: My Lords, my noble friend is absolutely right. It is for that very reason that I spoke to the Royal British Legion today.
Lord Skelmersdale: My Lords, the Minister says that the illness is ill defined and dates from six years ago. I agree with her as regards it being ill defined. However, as regards the "six years ago", does the noble Baroness not consider that to be a rather flimsy excuse when war pension applications from the Second World War are still being heard in Blackpool?
Baroness Hollis of Heigham: My Lords, I accept the criticism. However, I have to say that the previous administration had 18 years to deal with such problems.
Lord Mackay of Ardbrecknish: My Lords, as this is the first time that the noble Baroness and myself have faced each other in the new configuration of the Chamber, perhaps I may say how genuinely pleased I am to be able to congratulate her on her post. Indeed, does the Minister realise how pleasing it is to see someone who laboured long and hard in Opposition from this Dispatch Box getting her due reward following her party's election victory?
Can the Minister remind the House just how many cases are still outstanding in this category? My recollection from a few months ago is that it is not exactly the huge brigade of numbers that the noble Countess would have us believe; it is something like 100 outstanding cases remaining to be considered under this mystery. Can the noble Baroness further assure the House that, despite all the pressures, exactly the same rules will apply to these people as were applied to those

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veterans for whom the scheme was originally envisaged; namely, those who fought in the enormous wars against the Germans and the Japanese?
Baroness Hollis of Heigham: My Lords, I should like, first, to thank the noble Lord. He always exuded amiability and wit, as well as knowledge, when speaking from this Dispatch Box. Indeed, if I can even faintly begin to emulate him I shall think that I am doing well. I see that the noble Lord shakes his head indicating that that was not exactly what he said. Well, he may not have said that, but that was certainly what he intended.
The noble Lord is right to remind the House of the figures involved. Out of some 53,000 servicemen who served in the Gulf War, about 26,000 have since been discharged and are therefore eligible to claim a war pension. I trust that the House will forgive my reading out statistics, but I was invited to reply in this way. We have received 1,172 claims, of which 893 relate to what we would call "normal conditions", for example, knee injuries and the like. Only 279 claims—and I stress the word "only"—concern servicemen who have linked their illness to service in the Gulf. Of that number, 140 have so far been cleared, resulting in 124 awards made in favour of the ex-servicemen. Therefore, the record of success so far is something in the region of 90 per cent.
Earl Russell: My Lords, I join in the congratulations offered to the noble Baroness on her position. I believe she said that 26,000 servicemen had been discharged. What would be the control group figure for a normal proportion of servicemen who were not in the Gulf? If she does not have that figure to hand I hope she will communicate it to me and to the noble Countess.
Baroness Hollis of Heigham: My Lords, the noble Earl is exactly right; I do not have the figure to hand. It is certainly the case that in trying to determine the incidence of sickness we are dealing with what is called the healthy worker problem; in other words, we would expect a lower proportion of illness in fit young men. There are two pieces of MoD-sponsored research being handled by the MRC which seek to identify this syndrome of illness. It is far too early to reach even preliminary findings. Quite extensive American research has already been undertaken or is in the process of being undertaken. That research has been unable to identify the nature of this syndrome and whether it is definable. For the purposes of social security benefit, the cause of the syndrome or illness matters much less than the fact that within the DSS we can recognise disability and the pension will follow irrespective of its cause.
Lord Craig of Radley: My Lords, in an earlier reply the noble Baroness mentioned a time limit of seven years. Bearing in mind that the Gulf War took place nearly six and a half years ago and there have been difficulties in establishing the reasons for illness in many cases, will that time limit of seven years be applied rigorously or can it be waived?
Baroness Hollis of Heigham: My Lords, I hope the House will forgive me if I did not make myself clear.
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The seven-year period is not a time limit for accepting claims; it is a time limit in which the burden of proof is on the side of the servicemen. All claims will continue to be entertained, reviewed and surveyed and awards made in the light of that information. As I said, the seven years is the point at which the burden of proof moves from the ex-servicemen to the department. There is no question of a ticking clock which would exclude servicemen from rightful compensation and war pensions for injury.
Baroness Strange: My Lords, I congratulate the noble Baroness on her appointment on behalf of the War Widows Association. We hope to work as warmly and closely with her as we did with my noble friend, whom the association also loves. Is the noble Baroness aware that some of the syndromes which appear did not occur in the case of people who had injections and lived in houses but only in people who had injections and lived in tents? I wonder whether there could be any significance in that.
Baroness Hollis of Heigham: My Lords, I thank the noble Baroness, Lady Strange, for her kind remarks. The question of whether the spraying of tents was a contributory factor is one of the matters that the research is exploring.

Bangladesh: Bihari Refugees
3.16 p.m.
Lord McNally Lord McNally asked Her Majesty's Government:
What assistance they plan to give to the Government of Bangladesh and to British and international non-governmental organisations working in Bangladesh to assist the Biharis who have now been refugees in Bangladesh for 25 years.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, our bilateral aid programme to Bangladesh is our second largest, at £45 million per year, with poverty reduction a major priority. We hope that the Biharis will increasingly benefit from general development programmes not exclusively targeted at themselves. Since 1990 we have provided some £770,000 specifically for primary education and reproductive health projects within the Bihari community.
Lord McNally: My Lords, is the Minister aware that the cause of the Biharis in Bangladesh was espoused in this House for many years by the late Lord Ennals, one of my predecessors as international secretary of the Labour Party? It has been espoused in another place by Mike Gapes, one of my successors. Was the noble Baroness as astounded as I was to learn that 200,000 people are trapped in refugee camps 25 years after a war has come to an end? Does she not agree that the October Commonwealth Prime Ministers Conference gives a great opportunity for the countries concerned—Bangladesh, Pakistan and India—perhaps with the good offices of Her Majesty's Government, to bring an end to the suffering of these people, as that is achievable?
Baroness Symons of Vernham Dean: My Lords, the noble Lord is quite right. I was astonished to learn that, as I understand it, there are 250,000 Bihari people in Bangladesh in 66 camps at the moment. As the noble Lord will know, there is already a full agenda for the Commonwealth Heads of Government meeting. If the two governments concerned wish to use the occasion to discuss the problem and seek the good offices of the United Kingdom Government, we shall of course consider the matter with the Commonwealth secretariat.
The Earl of Sandwich: My Lords, does the Minister accept that the non-governmental organisations in Bangladesh have, rightly, one of the best reputations in the aid world? Does she further agree that the previous Administration recognised this and supported Bangladesh as a special case within the aid programme? Can she guarantee to do the same?
Baroness Symons of Vernham Dean: My Lords, I have already indicated that we have given and are giving substantial bilateral aid to Bangladesh. The most substantial contribution has been a £600,000 joint funding scheme grant to the international NGO concerned. That supported the provision of primary education.
As part of the Government's fourth population and health project, we provided further grants of £160,000 to £170,000 for maternal and child health, family planning, nutrition and the prevention of sexually transmitted diseases for application in the largest Bihari camps in Dhaka.
Lord Moynihan: My Lords, in view of the proposed visit to Bangladesh later this year of the Secretary of State for International Development, will the Minister ensure that the Government build on the warm relations which exist between the United Kingdom and Bangladesh as a result of the policies of poverty reduction and human resource development pioneered by my noble friend Lady Chalker of Wallasey and the ODA in partnership with non-governmental organisations for the Biharis?
Baroness Symons of Vernham Dean: My Lords, I am sure that the whole House would wish to acknowledge the sterling work done by the noble Baroness in the alleviation of poverty wherever she found it in the world.
I understand that the plans for later in the year of my right honourable friend the Secretary of State for International Development have not yet been confirmed. However, I am sure that she will wish to continue the warm relations of which the noble Lord speaks.
Lord Avebury: My Lords, if the Secretary of State for International Development visits Bangladesh, will she also ask to visit the Chittagong Hill Tracts, from which 68,000 Jumma refugees fled from Bangladesh into the state of Tripura in India? Will she ask the Bangladeshi authorities whether they will accept
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international assistance regarding the current programme of repatriation of a large number of those people to their original homes?
Baroness Symons of Vernham Dean: My Lords, I am sure that my right honourable friend will wish to acquaint herself first hand with all the areas of difficulty. Acknowledged abuses in the past have led to the flows of refugees and the security problems in the Chittagong Hill Tracts. We welcome the peace talks being conducted by the Government of Bangladesh and representatives of the refugees. We believe that these indicate that the Government of Bangladesh are keen to resolve this long-standing problem by negotiation, and to repatriate those who still remain in the refugee camps across the border in India.

Devolution: Publication of White Paper
3.22 p.m.
Viscount Cranborne Viscount Cranborne asked Her Majesty's Government:
When they intend to publish the White Paper on devolution for Scotland and Wales.
The Lord Privy Seal (Lord Richard): My Lords, it is proposed that the White Paper will be published before the House rises for the Summer Recess and in good time for the people of Scotland and Wales to have a proper opportunity to assess, debate and judge our proposals before being asked to vote on them.
Viscount Cranborne: My Lords, I am extremely grateful to the Leader of the House for that reply. I know that he is notorious for the excellence of his memory. I ask, therefore, whether he remembers an intervention by the Deputy Chief Whip of the present Government on 11 th November 1996, when he said that codes of practice should be published in time for us to take amendments at Committee stage. Since the White Paper is clearly the equivalent of a code of practice for this extremely important Bill, does the Leader of the House think that the same principle should apply in this case and that the White Paper should be published in time for us to take amendments at Committee stage in the light of what it states?
Lord Richard: My Lords, the noble Viscount's memory is much better than mine. I have no recollection of what the Deputy Chief Whip said on 11th November 1996. But, the comment having been drawn to my attention, I shall look it up.
No, I do not think that the suggestion of the noble Viscount makes sense. It has always been our intention that the referendum Bill should achieve its passage through both Houses of Parliament, that a White Paper should then be published and that on the basis of that White Paper the people of Scotland and Wales should then vote in the referendum.
Lord Campbell of Croy: My Lords, is one reason for the delay in producing this White Paper some

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disagreement within the Government? For example, the right honourable gentleman Mr. Robin Cook, now Foreign Secretary, strongly opposed a similar devolution scheme. Speaking in another place in 1977, he said that he hoped that the whole issue would be killed and buried for all time. Has he now performed a sensational U-turn?
Lord Richard: My Lords, by definition there is never disagreement internally within governments. However, the answer to the noble Lord's question is no.
Earl Russell: My Lords, as one who remembers the occasion on 11th November last to which the noble Viscount referred, does the Lord Privy Seal agree that there is a significant difference? We could not amend the code of practice before it came into force, but we shall be able to amend the Bill before it comes into force. The cases are not on all fours.
Lord Richard: My Lords, I admire the noble Earl's memory; and I agree with what he said.
Lord Renton: My Lords, does the Leader of the House remember that on the rare occasions when we have been asked previously to approve referenda, the exact nature of the matters upon which the people would have to vote in those referenda had been made known in advance to Parliament? The noble Lord was in Parliament at the time, so he will remember. I refer to the referendum on joining the European Economic Community, as it then was. All the circumstances were well known to the people then. The Bills for the referenda on Scotland and Wales contained proposals on which the people were asked to express their views. Bearing in mind previous practice, is it not unconstitutional to be asked to approve referenda without being told exactly what the referenda will be about?
Lord Richard: My Lords, the noble Lord makes heavy weather of this, as indeed does the party opposite. The position is perfectly clear. The Labour Government were elected on the basis of a manifesto which contained a clear commitment for devolution in Scotland and Wales and for the holding of referendums before that devolution took place. In the referendum Bill we propose the mechanism for the referendums which will take place. The proposals upon which the people of Scotland and Wales will be asked to vote will be contained in the White Paper which will be published before the House rises for the Summer Recess. I should have thought that that gave the people of Scotland and Wales ample opportunity to consider those proposals before they vote.
Lord Harris of Greenwich: My Lords, perhaps I may—
Lord Stoddart of Swindon: My Lords, this side.
Lord Richard: My Lords, I am reluctant to intervene as to whose questions I should answer. However, it seems to me that this side is at the head of the queue at present.
Lord Stoddart of Swindon: My Lords, yes, and I shall be brief. Will my noble friend confirm that the
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noble Lord, Lord Renton, was in error when he said that we had a referendum on our entry into the European Community? The true fact is that we had been in the Community for 18 months before we had a referendum to decide whether we remained in.
Lord Richard: My Lords, my noble friend is quite right.
Lord Harris of Greenwich: My Lords, perhaps I may now ask the noble Lord a question. Does he agree with me that, notwithstanding what has been said on the Conservative Benches this afternoon, it is quite clear that in the recent general election the people of Scotland and Wales understood precisely the issues as regards devolution? That is why there is not a single Conservative Member of Parliament in either Scotland or Wales.
Lord Richard: My Lords, out of deference to the tender feelings of the party opposite I had omitted to mention that fact in my answer.
Lord Fraser of Carmyllie: My Lords, the Prime Minister has asserted that he has a mandate to consult the Scottish people in a referendum. Can the noble Lord tell me who the Scottish people are?
Lord Richard: My Lords, the people who will be entitled to vote in the referendum are those who are resident in Scotland or Wales at the time that the referendum takes place.
Lord Beloff: My Lords, will the noble Lord the Leader of the House cast his mind back to only yesterday, when the Prime Minister said that a White Paper was sufficient because it would set out everything that was to be in the Bill? If the Prime Minister is correct, why not save money, paper and ink and publish the Bill before the referendums?
Lord Richard: My Lords, my right honourable friend the Prime Minister today wrote to the Leader of the Opposition in another place. He said:
"Thank you for your letter of earlier today concerning the points we discussed in the House of Commons this afternoon.
It has always been made clear that the referendum will take place on proposals set out in a White Paper. I made that clear in a speech as long ago as 28 June last year. It was clearly stated in the Labour Party Manifesto, which said 'as soon as possible after the election, we will enact legislation to allow the people of Scotland and Wales to vote in separate referendums on our proposals, which will be set out in white papers'. And it went on, 'following majorities in the referendums, we will introduce in the first year of the Parliament legislation on the substantive devolution proposals outlined in our white papers'.
Donald Dewar also explained this to the House on 16 May, i.e. two days after my comments which you put to me, and again on 21 May. This has always been understood to be the case".

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It was understood to be the case by the electorates in Scotland and Wales at the last election.
Viscount Cranborne: My Lords, if the people of Scotland and Wales have the mandate, as the Lord Privy Seal claims, why does he need a referendum in the first place?
Lord Richard: My Lords, we took the sensible view that, in order to ensure popular consent for the proposals, we should hold a referendum before the Bill was introduced. I am slightly surprised that the allegation is now being made from the other side that this is an excess of democracy.
Baroness Carnegy of Lour: My Lords—
Lord Campbell of Alloway: My Lords—
Lord Richard: My Lords, again I find myself in a somewhat embarrassing position. If someone else were answering Questions, I should now say that we should move on since we have only six minutes left for the last Question.

Benefits: Disentitlement
3.32 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
What knowledge they have of the experience of people disentitled to social security benefits without enjoying other legal means of support.
Baroness Hollis of Heigham: My Lords, people who become disentitled to benefits, such as 16 and 17 year-olds, come out of the system and it is therefore very difficult to track what happens to them. It is easier to research the position of people who stay within the system. That is, they move off one benefit such as incapacity benefit to another such as jobseeker's allowance. However, we are having a fundamental review of the social security system and for that we will need to be as informed as possible about the possible consequences of new directions in policy.
Earl Russell: My Lords, I welcome the Minister's remark about a fundamental review. Does she agree that wise governments attempt to find out the likely consequences of measures before they introduce them; and that therefore the Government might be prudent not to introduce any further measures of disentitlement to benefit until they are better able to answer this Question?
Baroness Hollis of Heigham: My Lords, I am not entirely sure whether the noble Earl refers to disentitlement of an individual within the existing system, such as JSA sanctions, or whether he refers to
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the proposed changes in benefit built into the previous Government's expenditure plans. Perhaps he will tell me to which of those he refers.
Earl Russell: To both, my Lords.
Baroness Hollis of Heigham: My Lords, on the first point, if an individual is disentitled to benefit because he or she fails to meet the conditions of JSA, it is open to that individual to change his or her behaviour accordingly and meet the conditions of entitlement. Benefits are conditional; that is, part of the rights and responsibility contract which I am sure the House would expect us to endorse. I certainly do.
On the second point, there are a number of measures in the pipeline which came from the previous Government. I shall not defend the policies of the previous Government; however, we are where we are, and those savings have been built into our spending plans. It is precisely because we are not happy about the effect of all of those decisions, as well as the need for a broad and strategic review, that we shall conduct such a review, which I hope will be both frank and open.
Lord Mackay of Ardbrecknish: My Lords, is the noble Baroness aware that I welcome her conversion to the view that people should not have the option of a life on the dole? Does she recall the number of occasions on which she did not support me when I put the same arguments in favour of 17 and 18 year-olds having three or four choices, none of which was life on the dole? Does she realise that I will at least be consistent and back her if she applies exactly the same rules to any further proposals that her party has for 18 to 25 year-olds?
Baroness Hollis of Heigham: My Lords, I shall be delighted to welcome the noble Lord's support on issues on which we agree. It would be splendid to receive his support for the review being conducted by my honourable friend the Minister of State, Mr. Frank Field. If so, I hope he will accept that his Government should long ago have introduced this measure, which we are now willing to take up and pursue.
Our criticism of the measures for 16 and 17 year-olds was two-fold. We were worried, first, about the severe hardship regime and, secondly, that the alternative offered by the previous regime in terms of adequate training, as well as education and opportunities, was in place. Too often, government training schemes were "make-work" schemes which simply churned youngsters from one scheme to another without any hope of realistic employment at the end of them. We are determined that in our new deal for 18 to 25 year-olds those youngsters will not only have the opportunity of work or education but of quality training which will ensure that they enhance the true wealth of this country.
Lord Skelmersdale: My Lords, the Minister referred to the review being undertaken by her honourable friend the Minister of State in another place. She also referred to the fact that the fullest investigations were going on

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in connection with that review. In terms of the Question, where do the Government intend to seek information on illegal means of support?
Baroness Hollis of Heigham: My Lords, I presume that the noble Lord refers to issues such as the black economy or possibly collusion. It is a very open question. We will try to do our best within the resources of the department. However, by definition, anything that is illegal is likely to be in the black side, the underside or the twilight of the economy. The House will acknowledge the difficulty of being able to attach a precise price tag to that kind of information.
Earl Russell: My Lords, does the Minister agree, as a fellow academic and without reference to any political party, that the invocation of moral principle to justify a policy in lieu of evidence is the last refuge of a government which have not done their homework?
Baroness Hollis of Heigham: Yes, my Lords, and I hope that under this Government noble Lords will not see the ideological knee-jerks, not based on information, of a government too often careless of the consequences of their policies.

Referendums (Scotland and Wales) Bill
Brought from the Commons; read a first time, and to be printed.

House of Lords Offices: Select Committee
3.37 p.m.
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the Select Committee on the House of Lords Offices be appointed and that as proposed by the Committee of Selection the following Lords together with the Chairman of Committees be named of the Committee:

V. Allenby of Megiddo,

L. Brabazon of Tara,

L. Brougham and Vaux,

L. Bruce of Donington,

E. Caithness,

L. Carter,

L. Colwyn,

V. Cranborne,

L. Dean of Beswick,

V. Falkland,

L. Fraser of Carmyllie,

E. Gowrie,

L. Harris of Greenwich,

L. Irvine of Lairg (Lord Chancellor),

B. Jay of Paddington,

L. Jenkins of Hillhead,

L. Lane of Horsell,

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B. Nicol,

E. Northesk,

Bp. Oxford,

L. Renfrew of Kaimsthorn,

L. Richard (L. Privy Seal),

V. Slim,

L. Strathclyde,

B. Thomas of Walliswood,

L. Tordoff,

B. Turner of Camden,

V. Ullswater,

L. Weatherill.—(The Chairman of Committees.)

On Question, Motion agreed to.

Deputy Chairmen of Committees
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That as proposed by the Committee of Selection the following Lords be appointed as the panel of Lords to act as Deputy Chairmen of Committees for this session:

L. Aberdare,

V. Allenby of Megiddo,

L. Ampthill,

L. Broadbridge,

L. Brougham and Vaux,

L. Burnham,

L. Carter,

L. Chesham,

L. Cocks of Hartcliffe,

B. Cox,

L. Dean of Harptree,

L. Elliott of Morpeth,

L. Elton,

L. Geraint,

L. Graham of Edmonton,

B. Hooper,

B. Lockwood,

L. Lyell,

L. McColl of Dulwich,

L. McIntosh of Haringey,

C. Mar,

L. Murton of Lindisfarne,

B. Nicol,

V. Oxfuird,

V. St. Davids,

B. Serota,

L. Skelmersdale,

L. Strabolgi,

L. Strathclyde,

B. Turner of Camden.—(The Chairman of Committees.)
On Question, Motion agreed to.

Statutory Instruments Select Committee
The Chairman of Committees: My Lords, I beg to move the third Motion standing in my name on the Order Paper.

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Moved, That a Select Committee of seven Lords be appointed to join with the Committee appointed by the Commons to consider:
(1) Every instrument which is laid before each House of Parliament and upon which proceedings may be or might have been taken in either House of Parliament, in pursuance of an Act of Parliament; being

(a) a statutory instrument, or a draft of a statutory instrument;

(b) a scheme, or an amendment of a scheme, or a draft thereof, requiring approval by statutory instrument;

(c) any other instrument (whether or not in draft), where the proceedings in pursuance of an Act of Parliament are proceedings by way of an affirmative resolution; or

(d) an order subject to special parliamentary procedure;

but excluding any Order in Council or draft Order in Council made or proposed to be made under paragraph 1 of Schedule 1 to the Northern Ireland Act 1974 and any draft order proposed to be made under section 1 of the Deregulation and Contracting Out Act 1994.
(2) Every general statutory instrument not within the foregoing classes, and not required to be laid before or to be subject to proceedings in the Commons only, but not including Measures under the Church of England Assembly (Powers) Act 1919 and instruments made under such Measures;
with a view to determining whether the special attention of the House should be drawn to it on any of the following grounds—

(i) that it imposes a charge on the public revenues or contains provisions requiring payments to be made to the Exchequer or any government department or to any local or public authority in consideration of any licence or consent or of any services to be rendered, or prescribes the amount of any such charge or payments;

(ii) that it is made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts, either at all times or after the expiration of a specific period;

(iii) that it purports to have retrospective effect where the parent statute confers no express authority so to provide;

(iv) that there appears to have been unjustifiable delay in the publication or in the laying of it before Parliament;

(v) that there appears to have been unjustifiable delay in sending a notification under the proviso to subsection (1) of section 4 of the Statutory Instrument Act 1946, where an Instrument has come into operation before it has been laid before Parliament;

(vi) that there appears to be a doubt whether it is intravires or that it appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made;

(vii) that for any special reasons its form or purport call for elucidation;

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(viii) that its drafting appears to be defective;

or on any other ground which does not impinge on its merits or on the policy behind it, and to report their decision with the reasons thereof in any particular case.
That, as proposed by the Committee of Selection, the following Lords be named of the Committee:

V. Addison,

L. Brooks of Tremorfa,

L. Meston,

L. Prys-Davies,

L. Shaughnessy,

L. Skelmersdale,

L. Vivian.

That two be the quorum of the Committee.
That the Committee have power to agree with any Committee appointed by the Commons in the appointment of a Chairman.
That the Committee have power to appoint one or more Sub-Committees severally to join with any Sub-Committee or Sub-Committees appointed by any Committee appointed by the Commons; and to refer to such Sub-Committee or Sub-Committees any of the matters referred to the Committee.
That it be an instruction to the Committee that they do not consider any instrument which is directed by Act of Parliament to be laid before and to he subject to proceedings in the Commons only; and that the Committee do not join with any Committee appointed by the Commons in considering any such instrument.
That it be a further instruction to the Committee that, before reporting that the special attention of the House be drawn to any instrument, the Committee do afford to any government department concerned therewith an opportunity for furnishing orally or in writing to them or to any Sub-Committee of the Committee such explanations as the department think fit.
That the Joint Committee have leave to report from time to time.
That, as proposed by the Commons in their message of yesterday, the Committee do meet with the Committee appointed by the Commons this day at half-past four o'clock.—(The Chairman of Committees.)
On Question, Motion agreed to.

Wireless Telegraphy Bill [H.L.]
3.39 p.m.
The Minister of State, Department of Trade and Industry (Lord Clinton-Davis): My Lords, I beg to move that this Bill be now read a second time.
The importance of this short Bill (though not necessarily short speech) is belied by its modest length. The Bill deals with the management of the radio spectrum. That may sound a rather arid, arcane, technical matter with which to concern your Lordships. However, as I shall explain, it is of crucial importance to growth, competition, innovation and jobs, and to maintaining our position at the leading edge of the information revolution.

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Radio is one of the defining technologies of the 20th century. It has its roots in the work of Marconi and others around the end of the last century and indeed this year marked the centenary of the establishment of the first stations in this country for wireless telegraphy, as it was then described. The first legislation regulating the new technology was the Wireless Telegraphy Act 1904. That was updated in 1949 but the legal framework essentially remained unchanged.
It is remarkable to ponder for a moment the advance of radio over the last 100 years. Today we enjoy the benefits of radio, digital mobile communications, broadcasting and information technology. New services and applications are continually arising, especially in the field of information technology. It is no exaggeration to say that radio has become a key component of the communications infrastructure on which a modern economy depends and supports a flourishing industrial sector.
As society increasingly demands, and depends upon, mobile communications, the importance of radio has increased, and the mobile telephone is just one manifestation of that trend. Sometimes it is extraordinarily informative, as one overhears conversations without even trying in all sorts of public places; sometimes it is exceptionally irritating; sometimes it is used as a somewhat deficient status symbol and sometimes simply to show off. However, it does have real value and in future we can certainly expect the boundaries between radio, telephony and computing to become increasingly blurred as an ever wider range of services becomes available—as it becomes possible, for example, for portable computers to communicate without the need to be plugged into a physical network.
There can be no doubt that, as society sets an even higher premium on mobility, the demand for these services will continue to increase. Radio will be the indispensable means of providing it as it is the only communications medium capable of delivering true mobility. The radio spectrum is the raw material of the information revolution.
It may help to illustrate the importance of radio to the economy if I quote a few figures. A wide range of businesses throughout the economy uses and relies on radio. In 1995–96 this use of radio contributed £13 billion to the GDP and over 400,000 jobs. That is quite extraordinary. These figures are growing at a rate of £1 billion a year, over three times as fast as the economy overall, and jobs are being created at the rate of up to 1,000 a week. Radio also provides £12 billion to £15 billion a year of efficiency gains and other user benefits—for example, from more efficient communications. It can be seen from those statistics that radio is a dynamic and successful sector and every sign indicates that its future will continue to burgeon.
Noble Lords may ask why, since radio is so dramatically successful, we need to change the legislation which governs access to the radio spectrum. The problem is that radio is in danger of becoming a victim of its own success. The radio spectrum is by
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definition a finite resource. Radio services can only operate if unused frequencies can be found for them, and there are only so many radio users who can be fitted into the radio spectrum without serious problems of interference and congestion.
Certainly technological advances steadily increase the amount of the available radio spectrum by ensuring that ever-higher frequencies can be used. Services are now being provided at frequencies which would have been considered unusable only a few years ago. Technological advances, such as the development of narrow-band equipment, mean that it is now possible to convey the same amount of information while using less spectrum.
Nonetheless, demand for radio spectrum is increasing at such a rate that it is outstripping availability. This is particularly true in the major conurbations and in the corridors between them, where use of radio is naturally most concentrated. Consequently this resource must be managed as effectively as possible, otherwise it is certain that we shall encounter spectrum shortages and congestion, with the result that businesses would have to be denied access to radio services and new technologies would have to be delayed. That would mean that we should forgo considerable economic benefits and the cost to the economy could be measured in billions of pounds a year and indeed in thousands of jobs. We should also lose our world-leading position in the use of radio, with inevitable consequences for our international competitiveness.
The legislative framework for managing the radio spectrum is essentially unchanged, despite this revolution, since the original Act of 1904. It has served us remarkably well but the industry has now outgrown that legislation and we must adapt it if we are to be able to provide the raw material which this dynamic and successful sector needs in order to flourish on a sustainable basis and to deliver the substantial economic gains of which it is capable. That is the purpose of the Bill before your Lordships' House today. It will update the spectrum management framework of the last century to meet the challenges of the next.
Let me now turn to the provisions of the Bill. Under current legislation the radio spectrum is managed exclusively by regulation. Licence fees have to be based on the administrative costs of spectrum management and not on the economic value of the spectrum. That aggravates the shortages and congestion of which I have spoken. Because the spectrum is not priced according to value, demand becomes distorted. Users have little incentive to invest in measures to use the spectrum more efficiently or to return an under-utilised spectrum for reassignment, thus adding to the growing pressure on the available spectrum and exacerbating shortages and congestion.
In the absence of statutory provision to the contrary, licence fees have to be tied to the costs of managing the spectrum. One of the main purposes of the Bill is to break that link so that fees can reflect more closely the economic value of Wireless Telegraphy Act licences and users will have incentives to relinquish under-utilised frequencies and to invest in more

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spectrally efficient technologies. In consequence, it will be possible to accommodate more users and to introduce new services much more rapidly. By relating charges to the value of the spectrum and the amount used, we shall encourage businesses to use the finite spectrum resource more effectively.
The Bill will also enable fees to be set on a more equitable basis. At present, as a consequence of the cost-recovery principle, the fee structure discriminates heavily against small businesses. While the large telecommunications operators pay higher fees than small businesses in absolute terms, those fees are nevertheless proportionately much lower in terms of the amount of radio spectrum provided. At present small businesses, such as taxi firms or couriers, pay on average 30 times more for the same amount of spectrum than one of the large telecommunication operators. I cannot conceive how that is fair.
Special considerations apply to the application of these principles to broadcasters. These arise from the legislative framework established by the Broadcasting Acts 1990 and 1996 and the charter and agreement of the BBC. The spectrum pricing proposals will not affect the licensing of broadcasters under the Broadcasting Acts, which is the responsibility of the Independent Television Commission and the Radio Authority. Due account will be taken in applying spectrum pricing to broadcasting of the significant amounts being paid to the Exchequer by broadcasters who bid for the licences under the Broadcasting Acts and who already pay an amount that includes an imputed value of the spectrum and of the public service obligations of the public broadcasting corporations.
The Broadcasting Act 1996 establishes that a review of the progress towards digital terrestrial television will take place no later than five years after the first multiplex is licensed, but it is open to the Government to review the position at any time. Consequently the Government will closely watch the take-up of digital broadcasting across all delivery platforms.
In examining the prospects for switching off analogue transmitters in due course, the Government will look at the potential for tools, such as spectrum pricing, to aid progress towards analogue switch-off and to determine the use of the spectrum that would be released. We are committed to ensuring the continued availability of spectrum to essential public sector users: the Armed Forces, emergency services, police, fire, ambulance and so on; and we shall continue the current concessionary licence fees for safety-of-life charities such as the RNLI. That is important to underline.
There are four main elements of the Bill. Before going into them in more detail, I should explain that the Bill contains enabling powers. The details of fee levels or auction procedures are intended to be set out in regulations. That flexibility is essential to be able to respond to the rapid changes occurring in the sector. But your Lordships will naturally expect some indication of how we expect the powers to be used. In Clause 1, as at present, they will be set by regulation. The clause largely re-enacts the regulation-making power which already exists under Section 1 of the 1949 Act.
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But I suggest that the heart of the Bill is contained in Clause 2(1) which will break the link between the Wireless Telegraphy Act fees and the Radiocommunications Agency's administrative costs. The Secretary of State will, therefore, be able to set fees, taking account of the criteria set out in Clause 2(2) of the Bill. That is to say, in setting fees the Secretary of State may take account of the extent to which the required fee level will promote the efficient use and management of the electro-magnetic spectrum, the economic benefits arising from the use of radio and the development of innovative services and competition in the provision of radio services.
Where charges are increased, it will be because such higher charges are necessary to balance supply and demand in support of the objectives set out in Clause 2 of the Bill, which might be summed up as optimising the use of the radio spectrum. I want to underline that fees will only be increased where there is a spectrum management need. Indeed, far from being a mobile telephone tax, as some newspapers suggested, the Bill will lead—as I shall try to explain in a moment—to lower charges for the majority of radio users.
Subject to the enactment of the legislation, new fees would be introduced next year. But we want to be as open as possible now about the proposals so that we can have a fully informed debate in Parliament, and indeed more widely. That is why the Radiocommunications Agency issued on the 29th of last month a consultation document on administrative pricing called Implementing Spectrum Pricing, which sets out in some detail how it is proposed to implement that new approach. The proposals in the document represent the culmination of a good deal of discussion with the industry and the results of major consultations which took place in 1994 and 1996, which showed widespread support in principle for pricing reforms but also concerns about some aspects of implementation.
I do not believe that there is time today, especially as I have already spoken for 14 minutes, to go into detail about the provisions of that document. It is available in your Lordships' Library. However, noble Lords may welcome a short summary of its key provisions.
In brief, it is proposed that higher charges will apply initially only to point-to-point fixed links: private business radio—that is, the self-provided systems used by businesses such as taxi firms, couriers and others—and public mobile communications. For those services charges above current levels will be focused on those parts of the country in which there is a spectrum management need. We are talking here about the major conurbations, such as London, Birmingham and Manchester, and the corridors between them.
I want to stress that the new powers will provide flexibility to tailor charges to spectrum management needs. That will open the door to fee reductions where spectrum is not congested. We estimate that around 80 per cent. of radio users will pay no more than at present and indeed may well pay up to 50 per cent. less. Even where charges will be increased, we believe that the increased fees will be demonstrably affordable, including by small businesses. For example, the

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proposals in the consultation document would require a small taxi firm in a major city to pay less than 20p per week per taxi more than at present after three years—hardly an undue burden. So the Bill is good news for the great majority of radio users and not least for small businesses.
I also want to underline that we shall continue to take into account the views of users. The proposals in the consultation document are put forward as a basis for further discussion. Comments are invited by 5th September. Our final proposals, which I expect to form the basis for regulations next year, will take account of industry's views. I expect that during the summer the fruitful dialogue with the industry which has been established over quite a long period will go on and will extend to consultation on the provisions of the draft regulations in due course. So consultation is to be the order of the day.
I turn to the other main plank of the Bill, which is the provision in Clause 3 for Wireless Telegraphy Act licences to be auctioned. That is a new approach to licensing. I believe that the power to hold auctions will give the Government a valuable new tool in that area. If properly used in appropriate circumstances, auctions have very real attractions. They can offer speed, transparency and, above all, fairness. In a situation in which there are more competing service providers than can be given licences, an auction represents a fairer means of licensing than the alternative of a "beauty contest", which can involve the Secretary of State or some other person choosing between competing potential service providers on the basis of criteria that inevitably involve some elements of subjective judgment, and not necessarily selecting those who can derive the greatest economic benefit from the spectrum.
Figures have already appeared in the press in relation to possible auction proceeds for some future services, such as third generation mobile services. While income maximisation is not the reason for holding an auction, I am happy with the principle that it is right that the taxpayer should benefit from the provision to industry of that valuable resource. As with administrative pricing, the Bill provides an enabling power to be exercised by regulation. Given the speed of technological change and the possible emergence of future services which are, by definition, unforeseeable, clearly it is not possible to specify in the primary legislation the services which will be auctioned and when the auction will take place.
The Bill provides for that to be set out by regulation together with other key matters relating to the auction, such as the requirements to be met by applicants, possible payments of deposit and so on. Procedural matters, such as the timing of the submission of bids and so on will be set out by the Secretary of State in a notice. Again, as with administrative pricing, Parliament and the industry may welcome some indication of how those powers are to be used.
In consultations carried out last year by the agency, although there was general support for the principle of administrative pricing, some concerns were expressed about the use of auctions and there was considerable
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opposition to their widespread use for all kinds of service. I should like to reassure your Lordships that it is our intention to use the auction power selectively. It may therefore be helpful for me to explain where it is not proposed to use auctions.
First, I wish to stress that we do not propose to require existing licensees to enter an auction for the right to continue to provide their current services within their existing spectrum allocation. I also want to emphasise—it is a matter about which concern has also been expressed—that there is no intention of requiring broadcasters who have already entered into an auction for the right to provide their service under the provisions of the Broadcasting Act 1990 to enter into yet another auction under the provisions of the Bill, in order to have continued access to the radio spectrum which they need. We accept that to do that would be akin to double jeopardy.
At the other end of the business spectrum we have no intention of requiring the generality of small and medium-sized businesses who have used radio to compete in auctions. Given the number of businesses involved and the modest amounts of spectrum which each requires, that would be utterly unrealistic. I hope, with that explanation, that we reassure those in the industry who have expressed anxieties about this specific provision.
How do we intend to use the power to hold auctions? I have already said that it is not possible to anticipate what may happen in the medium to long-term. But I can say that we envisage that auctions will be used for new services which have either a national or regional dimension and where there are likely to be more competing players than can realistically be accommodated in the spectrum. There has been much speculation about the possibility of an auction for the so-called third generation mobile telephony, also known as the universal mobile telephone system—UMTS. If I had simply referred to UMTS, I am sure that all noble Lords would have known what it was.
UMTS is an exciting new service for the future. It will combine many of the aspects of mobile telephony systems which we know and use now, with novel and flexible features such as the possibility of direct communication with computers. It will make use of both terrestrial and satellite telephone links. The first UMTS services are unlikely to come on stream until after the year 2000, but we accept that. In view of the scale of investment needed by service providers, licences will need to be issued much sooner than that, probably in the course of next year. No decisions have yet been taken as to how UMTS licences will be assigned. They are an obvious potential candidate for the use of auctions. My department will be issuing later this year a consultation document about licensing of UMTS. That will set out more detailed proposals about how the auction tool might be used and will invite views from interested parties.
Administrative pricing at auctions is a key provision of the Bill. However, I should like to touch briefly on two other main provisions. Clause 4 deals with revocation or variation of licences. It enables the

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Secretary of State to include in a licence terms restricting her power to revoke or vary the licence. At present, under the Wireless Telegraphy Act 1949, a licence may be revoked or varied at any time by the Secretary of State. In practice, it is rare for the Secretary of State to revoke or vary a licence other than at the request of the licensee, and that would only be done where the licensee had conspicuously failed to respect the terms of the licence; for example, transmitting on frequencies other than those assigned or using unlicensed equipment.
Where there is a need to move licensees to a different frequency—for example, to make way for a service which would make better use of the spectrum—that is generally done over a period of time in consultation with licensees. But we are now moving into a different era. Under administrative pricing and auctions a minority of licensees will be paying significantly more for their licences than at present. Where new services are involved there may also be a need for investment on a large scale by the licensee. In such circumstances, licensees will want a firmer guarantee that they will have security of tenure for a longer period and that the licence would not be unexpectedly revoked by the Secretary of State. This power therefore will enable the Secretary of State to include conditions in a licence which will give licensees the security that their licences will not be revoked other than in the interests of national security or to enable the United Kingdom to comply with their European Union obligations, international treaties or agreements.
Finally—this is my first and last "finally"—I wish to speak briefly about Clause 5 of the Bill. As I emphasised, though the main purpose of the Bill is to provide economic tools for the more efficient management of the spectrum, administrative pricing will produce increased revenues for the Government. If the proposals in the consultation document, or something like them, were to be enacted, the annual additional revenue would be around £75 million at the end of the three-year phasing-in period. It is possible that auctions may produce significantly greater sums than that from time to time. How much would depend on the value which those bidding attached to the licences. Clause 5 will allow the Secretary of State to undertake expenditure in support of the objective of efficient spectrum management. There can be no question of direct hypothecation of spectrum pricing revenues. My right honourable friend the Chancellor of the Exchequer would no doubt want to express one or two views about that if it were to be otherwise.
There may be ways in which the Secretary of State may, from time to time, wish to undertake expenditure in support of the objective of better spectrum management. For example, it may take the form of research into more spectrally efficient technologies. Subsection (2) of Clause 5 provides a power for the Secretary of State to make grants to persons where, in his opinion, the grant is likely to promote efficient use or management of the spectrum. There are many ways in which that power could be used. Any programmes of expenditure proposed by the power would need to be agreed with the Treasury. For example, it is possible
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that the agency may wish to support courses provided by universities for the training of radio engineers in spectrally efficient techniques. That would help to underpin the objective of a more efficient use of the valuable spectrum resource which is at the heart of what this Bill is about.
I should stress that the power does not imply an automatic entitlement to financial assistance. Each case will be looked at on its merits and would have to be justified on strict value-for-money criteria. Clauses 6 and 10 in the schedules deal with technical matters; for example, the power to make regulations, minor amendments, repeals, interpretation and commencement.
This important measure will provide a balanced package of spectrum management tools enabling the full benefits of the radio spectrum to be realised. It will benefit radio service providers, radio users and the taxpayer. Without the new powers we risk constraining the growth of some of the fastest growing sectors of our economy. To sum up: since the time of Marconi the United Kingdom has been a world leader in radio-based services. Our reforms will ensure that that leadership continues and thus this country can reap the full economic benefits which are to be derived from the radio spectrum. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Clinton-Davis.)
4.7 p.m.
Lord Derwent: My Lords, I must declare an interest as a director of Orange plc, one of the four mobile phone networks all of which will be directly affected by the provisions of the Bill. I am able to say that my views on the Bill are shared by the other three mobile phone operators and also by the Federation of Communication Services which is the trade body representing the mobile phone industry in this country.
While the Bill is a modest one, as the Minister explained, the industry is of growing importance. I shall not weary your Lordships by repeating some of the figures given by the Minister, but I thank him for the tribute he paid to the industry. It is remarkable to reflect on how much has been achieved in so short a time.
The first operating licences for a mobile telephone service were issued as recently as 1985. The networks now provide coverage across virtually the whole of the country. Consumers are benefiting from strong competition between the operators; prices are coming down; and new services are continually being introduced. Around 8 million people currently use a mobile phone and it is estimated that the figure will rise to 12 million—one in five of the population—by the year 2000.
Recent surveys have shown that the use of mobile phones increases business productivity by 20 per cent. on average. As a result, mobile phones are becoming an increasingly important tool not just to individuals, but also for small and large businesses. They are also a critical tool for the emergency services and provide a lifeline for many disabled people.

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The encouragement by government and officials of competition and innovation in the mobile telephone sector has attracted substantial inward investment into this country. I cannot speak for the whole industry, but in the case of my company whose major shareholder is based in Hong Kong the inward investment into the United Kingdom is now valued at nearly £1.5 billion. The United Kingdom is therefore now positioned, as the Minister recognised, as a world leader in mobile communications. We are far ahead of most of Europe and we must stay that way. So the Government, in legislating, need to be sure that no artificial barriers are created to discourage the further huge investments needed in order to enter into the new technological fields now being opened, on which the Minister rightly laid stress.
The industry can wholeheartedly support the declared aim of the Bill, which is to ensure that spectrum is managed as efficiently as possible. Spectrum is indeed our raw material. Supply is limited and we can develop the industry only if the spectrum is not wasted. As a matter of fact, the mobile phone industry in the UK is recognised by the Government's own studies as a highly efficient user of radio spectrum and as a world leader in the introduction of new techniques to maximise the efficient use of spectrum. In order to maintain this leading position, however, substantial new long-term investment continues to be required by the industry. It is therefore imperative that the conditions are in place to encourage this investment, including, critically, the maintenance of a stable regulatory and commercial environment. I am much encouraged by the Minister's recognition of the need for this stability in the long term if these very large sums of money are to be made available.
I wish to comment individually on the two parts of the Bill which affect the stability question: first, the proposed new administrative pricing regime and then the proposals to introduce spectrum auctions. First, I refer to the administrative pricing regime. A number of matters are set out in Clause 2 of the Bill which the Secretary of State may take into account before setting prices; in particular, the need to ensure the efficient use of spectrum. However, on the face of the Bill there is no actual obligation for the Secretary of State to consider such matters. Precedent in some countries abroad has suggested that, however good the intention of the department interested in developing the industry, ministers of finance in other countries have been known to ignore such matters and simply regard them as a milch cow for revenue. Given the real importance of certainty, will the Minister consider at a later stage of the Bill changes to provide that the Secretary of State shall be obliged to consider the various matters set out in Clause 2 of the Bill rather than merely being able to do so if he sees fit? That would give enormous reassurance to the industry.
A further point concerns the need for consultation prior to the setting of new spectrum prices. I welcome wholeheartedly the Minister's undertakings on consultation. Indeed, we are all delighted to be taking part in the consultation going on at present. But each
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time new prices are set, new regulations will have to be drafted. It is very important to the industry that those further regulations, however often they may be necessary—perhaps annually—should be prepared only after additional consultation at that time. Will the Minister be prepared to give an assurance or possibly make provision in the Bill that each time there are new regulations under the powers given by the Bill such consultation will take place?
I should like to make a few remarks about the question of spectrum auctions which the Minister explained clearly. I welcome, as your Lordships would expect, the undertaking he gave that auctions will not be applied to existing operators during the lifetime of their existing operational licences. I merely put it forward for consideration that that might go on to the face of the Bill. Perhaps we can discuss that question at a later stage.
I should also like to just dwell for a minute on why some operators are concerned about the whole principle of auctions even for future allocations of spectrum. We have already had a very stark warning in the United States of what can go wrong with the auction process. The trouble is that auctions favour the person with the deepest pockets. People are carried away, as happens in all kinds of auctions, by the need at all costs to win the auction. They then bid prices which are unsustainable. We have seen in the United States examples where licences have been awarded under auction but where the companies winning the auction have then found themselves financially unable, having paid the enormous licence fee, actually to undertake work on the network.
In fact even the US Treasury has not benefited because in some cases the companies have been unable even to pay the licence fee for which they have just bid and have had to be given a moratorium to pay even that. Therefore, there is always a danger that licences awarded under auction are given to people who are not necessarily those who will maximise efficient use of spectrum, which—there is nothing between the Minister and the industry—we all agree is the objective. I welcome the Minister's assurance that there will be consultation on the whole principle of auctions but I thought it worthwhile spelling out why and from where we are coming when we express anxieties about the auction process as such.
Having made those points, which I think we may be able to develop in Committee, on behalf of the industry I welcome not only the general approach of the Bill but above all the categoric assurances on various points given by the Minister today.
4.17 p.m.
Lord McNally: My Lords, I love old war films. One of my favourites—I cannot remember the name of it now—starts off with a ship in a great storm. Because of the storm some of the more prudent members of the crew take to the lifeboat. In the next scene the storm has passed and the ship, which the crew had left thinking it was sinking, is still afloat. Somehow that seems to be not unlike my career with the Labour Party.

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I make those remarks in my first speech since the change of government. I wish the new Administration a long and safe voyage, not least because they seem to be using SDP compass and charts and because it gives me the opportunity to welcome again my old friend the Minister of State who I remember occupying that position in another place. Our paths have crossed many times since and I know that these matters are in safe hands.
The noble Lord must feel a little like one of the lottery winners or a company I knew which bought another company and then found that the purchased company had on its books property valued at £2 million which was in fact worth £20 million. Although the noble Lord was too coy to admit it, the Bill was waiting for the Government when they came to office. It was based on a White Paper and had a large number of the goodies laid out. It really must be welcome for the Minister to have a Bill which will undoubtedly raise large amounts for the Government, which provides no ideological problems in that it promises the nation a fair return for the commercial use of a national asset and which is broadly welcomed by the industry as dealing effectively with the problem of spectrum efficiency, as we have just heard from the noble Lord, Lord Derwent. That is good fortune indeed.
The Government have had a good run since they came to office. We won the Eurovision Song Contest, beat Italy at football and Australia have been bowled out for 118 runs. Perhaps the Minister can tell us what he is going to back in the Derby when he comes to reply.
The intent of bringing great efficiency to the use of the radio spectrum still leaves the need for further clarification. The Minister clearly gave assurances about charities such as the British Red Cross Society, St. John Ambulance and the lifeboat service. That is very welcome. He also gave assurances that the spectrum would be protected for the emergency services. However, in that little group of assurances he also included the Armed Forces. In giving such assurances I hope that he will also look at the question of the hoarding of spectrum by the Armed Forces. When the peace dividend was promised some years ago, one aspect was that the Armed Forces might not need quite so much of the radio spectrum. I have little experience of the Armed Forces, but I know that they occupy land and that they are reluctant to give up anything at any time. I have a suspicion of a little bit of hoarding of spectrum that may merit being looked at.
The radio and television industry was also given assurances by the Minister. I am asked by the Commercial Radio Companies Association to inquire, if those exclusions are guaranteed, why they are not on the face of the Bill. While on the subject of the impact of the Bill on radio, I notice that when setting the price the Government propose that the Secretary of State should have regard to the availability of alternative delivery systems such as cable or optical fibre. While I understand the principle of encouraging migration of mature services from the radio waves, radio cannot be transferred without losing the portability, instant access
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and universal coverage that differentiate radio stations from other users of the spectrum. I hope that the Minister keeps that on board.
The Federation of Communications Services, to which the noble Lord, Lord Derwent, referred, makes the point:
"We wanted to take this opportunity to say, as we consistently have over the past years, that we believe that the Radio Interference Service broadcasting enforcement costs should not be charged against legal broadcasters [and] should not come out of the legal broadcasters' pockets but out of the general running costs of the Agency".
Again, I pass on that observation to the Minister.
I am sure that the ordinary citizen finds no problem in the argument that the use of what is a national asset by commercial concerns is something for which the Government, on behalf of the nation as a whole, can and should require a full commercial price from commercial users. As the Minister indicated, the sums involved are not to be sneezed at. There is the sum of £75 million for licences and between £500 million and £1.5 billion to be raised by auctions. These are some of the figures that have been given. Given those figures, it is almost beyond belief to say that the Treasury's mouth does not water at the prospect. The noble Lord, Lord Derwent, referred to that.
The Minister went out of his way throughout his speech to emphasise the high moral purpose of the Bill. So great was the emphasis that there kept running over in my mind the fact that the more he defended his honour the more I counted the spoons. I believe that it is quite possible that the Treasury will look at this humble piece of legislation as an opportunity to raise reasonable amounts from a series of industries which make quite considerable profits. Although the Minister said that he was not proposing any kind of backdoor taxation, there is no doubt that, as the Bill is set out, and leaving so much secondary power in the hands of Ministers, that opportunity is still there. Certainly, the proposals that he indicated of likely charges cannot in any way be described as pillaging the industry. An interesting debate will be pursued as to what fees the Secretary of State should set.
The noble Lord, Lord Derwent, spoke from his considerable experience, both through his company, Orange, and through the Federation of Communications Services. It has emphasised to me, as it did to the noble Lord, its desire for a strengthening of the Bill in terms of consultation. It also wants to see a strengthening of the Bill in terms of competition guarantees, particularly to assure the access of small and new entrants into the industry. These are matters that we have a duty to explore further with the Minister in Committee.
The Minister introduced the Bill with his usual lucidity. As I say, I have a feeling that this dull, dry and little-noticed piece of legislation may have many profound implications. The noble Lord, Lord Derwent, is right to warn us that this industry is a national success story. Therefore, whatever the temptation may be to take a just return for the taxpayer, it is important that we get the balance right and ensure its progress and success.

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Having been an adviser to the television industry that has gone through the auction process, I share the doubts of the noble Lord, Lord Derwent, that it is in any way a perfect process in getting the right answer every time. The Minister mentioned secondary markets if people sell on licences and how he will handle that. He says that existing licensees will not be asked to auction their licences. But will those licences be brought into line with new charges? If not, surely that will lead to a distortion because of those who were in the field first. I am not clear as to what will happen to existing licensees if they are not going to be exposed to an auction.
In general, as the noble Lord, Lord Derwent, emphasised, we are dealing with a British success story which is a wealth and job creator. The thinking behind the White Paper and the Bill is that we are dealing with a scarce resource which is a national asset. As the Minister said and the noble Lord, Lord Derwent, confirmed, the approach has had the broad support of industry. As I say, the Bill had its origins in the previous administration. So we may be seeing an expression of the new politics here; namely, a comparatively rare situation where industry sees the merit and justice in paying more for the use of the spectrum and where the Opposition and Government see merit in the legislation put before them. It is a dry little Bill, the details of which may have some hidden implications. We shall return to those in Committee. Thus far, however, I assure the Minister of the support of these Benches for the Bill.
4.30 p.m.
Lord Inglewood: My Lords, I should begin by telling the House that we support the principle of this Bill. In June last year, we advocated the introduction of the same kind of system for the management of radio spectrum in our White Paper, Spectrum Management into the 21st Century. I must not let the opportunity pass of congratulating the Government on recognising the sense of our policy.
I suppose that the best result of a general election is to emerge victorious, but it is a second best result, albeit a very second second best result, for the victor to implement the policy that we would have introduced had we been the victors. It may not happen all that often, but as a generous man—I hope that the Minister recognises that I am a generous man—I commend the Government on that.
As the Minister pointed out, the astonishing expansion of the industry's use of the radio spectrum in recent years meant that it was timely to review the framework surrounding the use of that spectrum. That review has shown that it needs to be updated, which is, of course, what the Bill proposes. As the demand for radio spectrum increases all the time, it becomes ever more important that the allocation of what spectrum is available is carried out efficiently and in the widest public interest. Furthermore, in the interests of good administration, it is proper that those who use this valuable and scarce resource should pay a fair price for
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the privilege. However, it is not merely a matter of paying the right price; it is in the widest interests that the way in which that spectrum is used is not only inherently efficient, but is also an element in keeping our country at the forefront of the digital and technological revolution through which we are now going, in which we are being so successful, and which is so important for our nation's future prosperity.
It is one of the clearest lessons of the past two decades or so, not only in this country but also abroad, that the best means of nurturing a competitive, innovative, forward-looking industry, best able to serve the public, is to allow it to advance itself, stimulated by the dynamics of open, free and fair competition, the disciplines of the marketplace, and its own innovation. For this Bill to achieve the most for Britain, it must adhere to those principles.
I have been focusing on the general principles of the Bill, but would now like to turn to the Bill itself. A cursory glance shows that the system that the Bill will introduce will be spelt out and refined by secondary legislation, as the Minister fairly explained. This House is very conscious of the mischief inherent in the excessive and/or inappropriate use of secondary legislation, but at the same time recognises that it can on occasions be a proper means of dealing with the detailed and quasi-administrative procedures necessary in the interests of good governance. Whether this is one of those cases is a matter for your Lordships' Delegated Powers Scrutiny Committee. It is no part of my remarks this afternoon to prejudge its comments, but I accept that this is the kind of case where it may well be proper to leave much of the detail to secondary legislation. Having said that, as the Minister pointed out in his opening remarks, the actual system which Parliament will be asked to approve for the proper allocation and management of radio spectrum will only be sketched out in the Bill; the final picture will be worked up by the more detailed rules to be contained in the regulations.
As is so often the case, be it in trying to establish a European-wide single currency or in the recipe for baking a cake, the devil lies in the detail. I should like to thank the Minister for elaborating in simple terms on how he envisages the scheme functioning. He fairly described the general principles and referred to the Radio Spectrum Agency's recent document. I believe that that covered many of the detailed points which are not in themselves suitable for Second Reading, but would normally be considered during further stages of the Bill. What the Minister has done may well be helpful to your Lordships because many of those points demand serious consideration in private in advance of discussion at subsequent stages.
However, I dare say that a number of other important points of detail will need proper and wide consideration. I am thinking, for example, of those companies which have spectrum now and will have no need to rebid or to pay more for their spectrum and how that will affect possible newcomers to the industry in the context of fair competition between the haves and the have-nots. There may well be a risk that big rich companies, with very long pockets, will always be able to outbid small companies which will be squeezed out. How can such

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abuse, which is a de facto barrier to new entrants, be dealt with? How, and if so under what circumstances, will companies be able to dispose of spectrum? What happens when a company is taken over? As the noble Lord, Lord McNally, asked, will those to whom spectrum is allocated be able to hoard it or speculate with it? What will be the key test when setting administrative prices? Will it be efficiency? If not, what will it be?
I mention those points because I believe that they cover a number of important issues. At the same time, I was most grateful to hear what was said about the way in which broadcasters, government users of radio spectrum, the essential services and charities will be treated. I suspect that a number of other important issues will need to be further considered at a later stage.
The noble Lord, Lord Derwent, referred to spectrum auctions. The Minister may be aware of the recent experience of spectrum auctions in the United States where, as I understand it, despite the application of some extremely cunning techniques bedded in games theory, it appears that the bidders were able to collude in the auction process. Clearly, that kind of thing is unacceptable, and we should like to know a bit more about the way in which the Government envisage this aspect of what is being proposed working in practice. How do the Government intend to outflank such behaviour? I hasten to add that I am not asking the Minister to be so specific that he provides the key for every unscrupulous person in the wider world to abuse what will be put in place.
When the Government announced that they intended to proceed with this Bill, the point was quite properly put to them that this measure, which was not flagged up in the Labour Party's manifesto, was in substance an instrument of taxation and only incidentally an updating of the framework within which radio spectrum is to be used. In reply to that point, the President of the Board of Trade stated:
"There is no mobile phone tax … This measure is about the more efficient allocation of spectrum in the future".
That was confirmed by the Minister this afternoon. To those remarks, I say "Good". There is, after all, all the difference in the world between the Government making this commercial asset available at its fair and proper price and squeezing a user's margin by exploiting their monopoly as the source of spectrum. The latter is a form of de facto taxation and, as such, is very different from the President's description of what is proposed.
Finally, it is, I think, of interest to your Lordships and to the public at large—and it is very relevant to our debates—that the Minister has given us an indication of the kind of sums involved here. After all, in looking at any particular rainbow, one needs to know whether the crock at the end of it is full of real gold or fool's gold—and even if one values the gold on the basis that the Bundesbank values its gold, this crock is clearly very valuable. One thing is certainly clear: the more that it is worth, the greater the contribution that it will be able to make to the Government's financial needs which, in turn, will obviate the need for raising that money in other ways.
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These are, however, points for a future occasion. As for today's debate, I conclude by reiterating our support for the approach that the Government are adopting. Although we shall obviously be looking at the Bill with a critical eye, we shall be doing so with a view to being constructive, not destructive.
4.39 p.m.
Lord Clinton-Davis: My Lords, this has been an interesting short debate in contrast to my opening speech, which was rather long. I hope that I may be forgiven because, although this is a short Bill, it is quite complex.
I begin by thanking all noble Lords who have participated in the debate. I shall certainly consider carefully all the points that have been made, many of which, as the noble Lord, Lord Inglewood, said, are more appropriate for consideration at Committee and Report stages.
Like all noble Lords who have spoken, I approach this matter in a constructive way. Where it is appropriate to consider amendments I shall do so. I shall view the word "resist" with a degree of flexibility, as I did in the old days.
The noble Lord, Lord McNally, referred to our past. We were once comrades in arms and are old friends. I thank him for his felicitous remarks, although the copyright that he claimed for what I said is in dispute. Nonetheless, I appreciate the kindness with which he approached the matter. I do not know what it feels like to be a lottery winner. My wife is a lottery winner; she has won £70. Heaven knows what she had to spend to acquire that fortune!
The principle of the Bill has been supported by all your Lordships, for which I am grateful. It is particularly helpful that all of your Lordships have underlined the importance of the Bill. One is talking about the continued growth of one of the UK's most vigorous and dynamic industrial sectors that is vital to the efficiency of the economy.
I have also known the noble Lord, Lord Inglewood, for some time. I welcome him to the Opposition Benches—on which I had to sit for far too long. I hope that he will be sitting there for an equally long time. He claimed some credit for his party for this measure. I do not wish to be churlish. I do not deny the importance of the preparatory work that was undertaken by the previous Administration. However, I cannot refrain from remarking that the first consultative document was published as long ago as March 1994. I believe that this Government can claim credit for acting rather more decisively to address this important issue; but enough of that. I do not want to stir up controversy where none really exists.
Anxiety has been expressed about the detailed implementation of the policy. Most of that concern has revolved around the problem of how to ensure that spectrum pricing continues to be driven by spectrum management considerations and does not become, as some newspapers quite wrongly conceive, a mobile communications tax. A company as authoritative as

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Vodafone has been quoted in the Financial Times as stating that there is no new tax on mobile phone users. I believe that that is right.
I turn to the remarks of the noble Lord, Lord Derwent, who speaks from experience of the telecommunications industry that is far greater than mine. He mentioned the enormous amount of inward investment and said that it was extremely important to underline the aims of the Bill and the need to encourage greater investment. He stressed that stability was a vital component to create the right climate for additional investment. I could not agree more. He expressed concern about the possible implications of auctions for existing telecommunications operators. Other noble Lords made similar remarks. I said earlier that the Government did not intend to require existing licensees to enter an auction for the right to continue to provide current services within their existing spectrum allocation. I am happy to reassure the noble Lord, if I can, that in line with that the Government have no plans to require the four existing mobile telecommunications providers to enter an auction in order to continue to provide their current services.
The noble Lord also expressed concern that spectrum pricing might be used primarily to raise revenue and hence become a tax on operators. I tried to make clear when I opened the debate—I reiterate it—that it was the intention of the Government that spectrum pricing should be used as a spectrum management tool, not simply to raise revenue. I believe that in the consultations in which we engaged that was accepted by the industry. The proposals in the recently published consultation document setting out our detailed administrative pricing proposals also make that very clear. In many areas we propose to apply lower charges than those envisaged in the previous Government's White Paper. I believe that anyone who studies these carefully focused proposals will agree that they are motivated by a concern to achieve optimal use of the radio spectrum. Of course, it is right that the way in which these matters are being dealt with should be questioned at later stages of the Bill. I shall welcome the discussion that takes place in that connection.
There appeared to be concern in the mind of the noble Lord, Lord Derwent, as to how these powers could be used in the longer term and not just by the present Government. That is often said by those in Opposition, and rightly so. The noble Lord said that it would be desirable to ensure that administrative pricing should be tied more closely to spectrum management objectives. He suggested that if the wording of Clause 2(1) were amended so that the Secretary of State was under a mandatory requirement to have regard rather than that he might have regard to the matters set out in subsection (2), that could be a way of going about it. I do not believe that it is appropriate for me to go into what are essentially drafting points at this stage. But we have tried to balance the need for flexibility in applying spectrum pricing in a diverse and dynamic market with concern that the powers may be used by a future Secretary of State for revenue raising rather than spectrum management. This is a
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complex issue, not least legally. I shall reflect on what the noble Lord has said. Undoubtedly, at the noble Lord's behest, we shall return to this matter at a later stage.
As far as concerns consultation, we are committed to an on-going process, not just the one-off consultation that we have had before. That was emphasised by the publication last week of the consultation document. We do not believe that consultation will end there. When we come to the new fees regulations and the proposals for the use of auctions I believe that further consultation will be required.
As to the question of whether there should be a duty to consult, in principle I am sympathetic to it. However, I should like to give it further consideration as the Bill approaches Committee stage. I shall listen carefully to what your Lordships say on that point before I come to a conclusion. My mind is open, not vacant, as to that matter. I hope that we shall be able to return to that subject, too. What I have said today will be the subject of further discussion in the industry. I am sure that before we reach Committee stage my officials will have the advantage of listening to further views. I hope that what I have said has reassured those of your Lordships who have raised anxieties today. I do not have a great deal more to add.
The noble Lord, Lord McNally, asked about spectrum property rights and tradability. There could be attractions in setting up a system of fully tradable spectrum rights in secondary trading. It has been done in Australia and New Zealand, but if we were to go down that route it would involve a substantial, even fundamental, restructuring of the current regulatory system. We would have a Bill many times longer than the current one. To move directly from the current cost-based licensing system to fully tradable spectrum rights could easily lead to windfall gains and a disorderly market. There are those risks. I invite the noble Lord to consider that position when he discusses the matter in Committee. We want to help establish a market value for spectrum. That could serve as a stepping stone to a system of tradable spectrum rights in due course.
The noble Lord raised another point in connection with the Armed Forces. He was concerned that they were hoarding spectrum. Our intention is that government departments, including the MoD, should pay for spectrum on a comparable basis to the private sector. I accept the argument that they should have the same incentives for improving the efficient use of spectrum as anyone else. If he has a scintilla of evidence—I am a little sceptical about that—to support that charge, I shall be most interested to have it.
Lord McNally: They have form!
Lord Clinton-Davis: My Lords, just like some of my former clients. I believe that I have covered most of the ground. If I have not, I apologise, but we shall have the opportunity to return to it in due course. I thank noble Lords once again for having participated in this debate and given me more food for thought.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Special Immigration Appeals Commission Bill [H.L.]
4.52 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that the Bill be now read a second time.
The security of the Nation is a prime responsibility for this Government, as for any government. The threat from international terrorism is a real problem for the whole of the civilized world. It is rightly a high priority for our police and Security Service to counter the activities of international terrorists and their supporters in the United Kingdom. At the same time we must ensure that our procedures for dealing with such people meet accepted standards of fairness.
Where it is possible to do so it is clearly right and proper to take action against such people under the provisions of the criminal law. That is not always possible or practicable. In the case of non-British citizens, an important weapon in our armoury in the fight against international terrorism—and against other activities which threaten our nation—is the ability, under the Immigration Act 1971, to exclude or deport the small number of foreign nationals who pose a significant risk. The powers are used sparingly. They are a vital part of our efforts to protect the United Kingdom from those who threaten us.
In the past the view was that the nature of the decisions in those cases was such that the final decision should rest with the Home Secretary of the day and, unlike other immigration decisions, should not be subject to appeal to the immigration appellate authority. Instead where a person was liable to deportation on national security grounds, he was entitled to have the case against him reviewed by a non-statutory panel which advised the Home Secretary before he took the decision.
Those arrangements, as is now well known, were challenged before the European Court of Human Rights in the case of Chahal, in which judgment was delivered last November. The background to this case is that in 1990, Karamjit Singh Chahal, an Indian national with indefinite leave to remain in the United Kingdom, was made the subject of a deportation order on the grounds of national security and other reasons of a political nature; namely, the international fight against terrorism. That was because of his alleged involvement in terrorist activities connected with the Sikh separatist movement in his homeland. Mr. Chahal claimed asylum. That was refused. As the ground of the decision to deport him was national security, there was no right of appeal to the immigration appellate authorities against the Home Secretary's decision. Nor was there any right of appeal against refusal of the asylum application in those circumstances. The security case against Mr. Chahal was considered by the advisory panel in accordance with the arrangements I have already mentioned. Having exhausted his domestic remedies, including judicial review, without success Mr. Chahal applied to the European Court of Human Rights.
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In its judgment in Mr. Chahal's favour last November the court found that the existing procedures for dealing with cases involving the deportation of foreign nationals on the grounds of national security—and in particular the arrangements for challenging decisions made by the Secretary of State in such cases—were in breach of the European Convention on Human Rights. Specifically it found the procedures deficient in respect of Article 5(4) and Article 13 of the convention.
Article 5(4) requires that a detained person is entitled to have the basis of his detention reviewed by a court. The European court found that neither proceedings or habeas corpus nor for judicial review satisfied that requirement because the domestic courts were not in a position to review whether decisions to detain and keep in detention were justified on national security grounds. The advisory panel, while providing an important safeguard against arbitrariness, could not be considered a court for a number of reasons. Those included the fact that individuals were not entitled to legal representation before the panel and that the panel had no power of decision.
Article 13 requires that a person whose rights under the convention are violated should have an effective domestic remedy. The court found that neither judicial review nor the advisory panel satisfied that requirement in respect of national security cases.
Needless to say, this Government fully accept the judgment of the court and have moved quickly to respond to it by introducing this Bill. Until it is passed our ability to deport on national security grounds is severely constrained.
While the Bill is mainly required in order to respond to the Chahal case, it also takes the opportunity to provide a right of appeal to the same commission for European Economic Area nationals and those otherwise exercising rights under the Treaty of Rome in those cases where there is currently no right of appeal. Those are predominantly cases involving national security considerations.
That is prompted by a case currently before the European Court of Justice in which the Advocate General has delivered an opinion strongly supporting the appellants' case that European Community legislation requires an adequate legal remedy in these circumstances not provided by judicial review. The Government accept that it would be desirable to provide such a right of appeal.
In view of its limited purpose the Bill is short. Clause 1 establishes a new body which will be known as the special immigration appeals commission. It also gives effect to Schedule 1 which provides details of the new commission, including its membership. Appointments to the commission, as to the immigration appellate authority, will be made by the Lord Chancellor. The existing panel is appointed by the Home Secretary.
One of the members of the commission must be a person who holds or has held high judicial office. A second must be a person who has experience of dealing with immigration appeals. The Lord Chancellor's intention is that he or she should be a senior member of the immigration appellate authority, either the president

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of the tribunal, the chief adjudicator or a legally qualified member of the tribunal. The qualifications of the third member are not specified on the face of the Bill. However, the intention is that the third member should be a person who has experience of national security matters and is familiar with the kind of evidence that is likely to be presented to the commission. That should, in our view, provide a proper balance of knowledge and experience for the commission.
Clause 2 sets out the circumstances in which a person may appeal to the new commission. The Immigration Act 1971, and more recently the Immigration (European Economic Area) Order 1994, have previously denied any appeal in the cases described. For the most part the cases where there has been no right of appeal have been those where a decision has been taken on the basis that this would be conducive to the public good on the grounds of national security.
Clause 3 provides that the new commission will have a bail jurisdiction in respect of those cases where a person is detained under the Immigration Act 1971 and the grounds of the detention are that this would be in the interests of national security. Schedule 3 modifies the existing bail provisions for the purposes of cases dealt with by the new commission.
The detailed procedures for the new commission are not set out on the face of the Bill. However, Clause 4 indicates some of the main areas which will be covered in procedure rules made by the Lord Chancellor. These rules will, in view of their importance, be subject to the affirmative resolution procedure. Our intention is that a draft of the rules should be available to assist the detailed consideration of the Bill in Committee. I hope that the House will find that arrangement satisfactory. The noble Lord, Lord Lester of Herne Hill, and I have had what we both regard as useful and fruitful discussions. He was concerned in particular that there should be adequate opportunity for scrutiny of those rules before we discuss matters in Committee.
I do not propose to talk about Clause 4 at great length, but it may be helpful if I mention one or two aspects. The rules will make clear that an appellant will have the right to be legally represented in proceedings before the commission. Hitherto, there has been no such right.
The rules will also, however, make provision to ensure that proceedings take place before the commission without there being a risk to national security. This necessarily means that there must be provisions which restrict the need for full disclosure of the reasons for decisions to the appellant and which also allow proceedings to take place in the absence of the appellant and his or her legal representative.
In its judgment in Chahal, and in other cases involving national security considerations, the European Court of Human Rights has acknowledged that, where national security issues are at stake, consideration will almost inevitably have to be given to confidential material and that safeguards such as the ones included in the Bill may be essential. In such cases, what is needed is a remedy which is as effective as can be, given the threat to national security.
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To ensure that the case against the appellant is properly scrutinised in his or her interests, Clause 4 provides certain safeguards. These necessarily fall short of full disclosure of national security information, but they build on Canadian procedures for dealing with similar cases which were commended by the European Court. In particular, the commission will be able to appoint a person—counsel—to help it in its examination of the security evidence, and in particular to look at that evidence as if on behalf of the appellant. The commission will also be expected to give the appellant as full a summary as is possible in the circumstances of any evidence taken in his absence.
The special immigration appeals commission will be replacing the present non-statutory advisory panel—generally known as the "three advisers"—which has considered cases of this type since the early 1970s. With the leave of the House, I would like to take this opportunity to thank the noble and learned Lord, Lord Lloyd of Berwick, who has chaired the panel for a number of years, and the other members of the panel for the work they have done in reviewing these difficult national security cases. The panel has, I know, provided an important safeguard for those individuals liable to deportation on national security grounds.
I reiterate that the consultations have been most welcome. I mentioned the noble Lord, Lord Lester of Herne Hill, but I wish also to mention the contribution made by the noble and learned Lord, Lord Ackner, in private discussions with me. Perhaps, as this is the first Bill that I have introduced, I may indulge myself and say that it is a pleasure to see my long revered friend Lord Mishcon back here today at fighting weight.
Noble Lords: Hear, hear!
Lord Williams of Mostyn: My Lords, he, too, with his invariable courtesy, has indicated that he wishes to raise one or two matters today.
The Bill is a necessary measure and one which will provide additional safeguards in immigration cases which raise national security considerations. We seek to balance the need to ensure that decisions are properly reviewed and the need to ensure that information is not disclosed contrary to the public interest. Taken together we believe that the measures briefly described will accommodate the legitimate concerns we have about the nature and sources of intelligence information and give the individual appellant a substantial degree of procedural justice. These are difficult issues, but I hope that the House will agree that we have got the balance broadly right. I commend the Bill to your Lordships.
Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)
5.5 p.m.
Baroness Blatch: My Lords, the Bill before us today, which will establish a special immigration appeals commission, will have our support. Indeed, as a response to the judgment in the Chahal case, we would have sought an earlier legislative opportunity to respond along the lines set out in the Bill. As the noble Lord

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said, the Bill establishes a commission giving a right of appeal to those liable to be deported on the grounds of national security. At present, they do not have such a right under the Immigration Act 1971. The Bill will ensure full compliance with the judgment last November of the European Court of Human Rights.
As I said previously from the other Dispatch Box, the United Kingdom has a proud record of honouring its international obligations and commitments. But on the issue of national interest and national security, it is our guiding belief that a balance must be struck between the needs of natural justice and the needs of national security. I hope that the Bill will help to achieve that balance. Indeed, it was referred to by the Minister.
Before moving to the specifics of the Bill, I wish to make a point about national security. As I am sure the House will agree, the Chahal case raised several important points in this area. My noble friends on this side of the House have always strongly supported the European Convention on Human Rights and always complied with its judgments when we were in Government. However, the court has made a number of controversial rulings against the United Kingdom which strike at the heart of our ability as a nation to take action to uphold our national security against the pernicious threat from terrorism. But it is essential for the effective operation of the Court of Human Rights that due weight in judgments is given to the margin of appreciation so that states determine their own laws and practices, except where these are clearly contrary to the convention. Nation states must be allowed to uphold the public good of their citizens and to maintain effective national security.
I turn to the specifics of the Bill. We welcome the fact that the special immigration appeals commission will have at least one judge sitting on it, and also a member of the Immigration Appeals Tribunal or a special adjudicator. Several practitioners working in the field of immigration law have said to me that, given the increasing complexity of case work, having a specialist tribunal of this kind can only be a good thing.
However, it is not clear whether the commission will be a court of record and, as currently drafted, there are no provisions in the Bill for the decisions taken by the commission to be binding on the Home Secretary. Perhaps in reply the Minister will confirm whether that is the intention.
We would also press the Government to say clearly whether they have any plans at this stage or in the future to extend the remit of the special commission beyond that which the Bill will give it; namely, to provide a right of appeal only to those individuals who currently do not have one. I know that such clarification would be very helpful to practitioners and adjudicators alike.
Clause 4 of the Bill gives the Lord Chancellor the power to set the rules regulating appeals to the commission. Given the importance that these rules will have on the functioning of the commission, we on this side would press the Government to publish the draft rules, preferably before the Committee stage. However, I was delighted to hear the Minister say that we would see a published draft of the rules under Clause 4 before
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the Bill completes its passage through Parliament. I understand that we will have them before the Committee stage and I am grateful. It is important that the House is able to give full and effective consideration of the Bill, and the rules which will be set out by the Lord Chancellor will be material to that consideration.
We believe that the Bill is right not to extend legal aid to cases going before the special commission. Voluntary organisations such as the Immigration Advisory Service and the Refugee Legal Centre which currently offer advice and assistance are fully able to deal with such cases. We also do not wish to see vast quantities of taxpayers' money spent controversially on individuals whom the Home Secretary is trying to deport from the UK on the grounds that they pose a threat to national security and the public good.
I also note with amazement the financial effects of the Bill. As I understand it, the annual cost as set out in the Bill is assumed to be no more than £1,500. Even though it is intended to pay a daily rate of attendance for only one member—and I am not sure that that is actually correct; but that is the intention stated on the front of the legislation—is it really the case that no payment whatever, or even expenses, will be given to other members of the commission, especially in the light of Schedule 1, paragraph 3, which refers to "payments to members"? Referring also to the other rather mean sum of money mentioned on the front of the Bill—namely, the £1,000 for the counsel who will be appointed by the commission—can the Minister say how many days work is assumed by that calculation and what daily rate would be paid?
The decision of the European Court of Human Rights in Chahal demonstrated Article 3's absolute nature. On the basis of the Government's plan to incorporate the European Convention on Human Rights into British law (Article 3 of which expressly rules out signatory countries from returning people to countries where there is a serious risk of their being tortured) can the Minister explain, first, how incorporation of the convention would affect our ability to deport on national security grounds; secondly, what effect the Government consider incorporation would have on the provisions of the Bill; and, thirdly, how that would relate to and, indeed, work with the recent British initiative—adopted last December as a UN declaration—denying the protection of the 1951 refugee convention to terrorists?
Is there not a danger of wholesale muddle here, hindering the United Kingdom's ability to take effective action to uphold the national interest? I urge the Government to clarify the issue and to look carefully at the detailed implications of what appears to be a conflict which could impact on this country's ability to protect the national security interest. As I said at the outset, we do support the Bill but would find it most helpful to have clarification of some of the points that I have raised.
5.12 p.m.
Lord Lester of Herne Hill: My Lords, it is a great pleasure to be able to congratulate the noble Lord, Lord Williams of Mostyn, on his appointment. He is a

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well-respected and well-liked colleague at the Bar and will be greatly missed in the courts. Indeed, he has made a personal sacrifice in accepting the appointment and I wish him a happy and fulfilled period in public office in a great department of state in which I once very much enjoyed serving in a more minor capacity. I should, I suppose, mention that my wife is a special adjudicator, though I doubt whether that is a matter on which I need to declare a personal interest however interested I am in her work.
A quarter of a century ago, Professor Bob Hepple observed in a learned article in the Modern Law Review on "Aliens and Administrative Justice: the Dutschke Case" that, as Mr. Dutschke sailed away from Britain in the "Winston Churchill",
"more than a few liberal consciences must have been aroused at this reminder of the demise of the rule of law which once protected Kropotkin and others such as Kossuth, Mazzini, Bakunin. Lenin, Marx, Engels and Sun Yat Sen, all of whom engaged in lawful political activities in this country".
The present Bill is a necessary measure and is welcome to the extent that it seeks to introduce a better system of administrative justice in the area than was evident in the Dutschke case and to the extent that it gives effect to European human rights law. A purist would argue that the system is defective in the Bill in not ensuring the full panoply of natural justice in this difficult area, but I agree with the Government and with the noble Baroness that it is compatible with the rule of law to adopt a special procedure enabling the proposed appeals commission fairly to determine appeals in these exceptional cases without prejudicing the interests of justice or of national security and to do so by means of a special procedure. Lest I forget, perhaps I may just say that I do not agree with the noble Baroness if she was implying that Chahal involved the European court in excessive intervention in our system or, indeed, that there is any threat posed by that case to the security of this nation.
However, having welcomed the Bill in general from these Benches, I have to say that it is an incomplete measure and is defective both in design and execution in ways that I shall try to explain simply. As the noble Baroness indicated, the Bill was conceived by the previous Administration and, if I may say so respectfully, it bears all those hallmarks. It involves only incomplete compliance with the requirements of European human rights law. It is unfortunate that the first Home Office measure of this brave new reforming Government should have been introduced with such haste and with no time for proper consultation with people who are much more expert than I am. Nevertheless, I hope and believe that the Government will be responsive to constructive criticism and to amendments to improve the Bill in Committee.
I am most grateful to the Minister for having discussed the Bill with me in advance of today's debate. I have given him notice of my main concerns and I hope that he will be able to meet at least some of them in his reply and later in the Bill's proceedings. As the Minister said, the Bill is intended to give effect to the judgment of the European court in Chahal. The main defect in the
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design of the Bill is that it fails to give effect to the judgment in one important respect and will, therefore, have to be followed by further amending legislation of the corpus of immigration law. I shall return to that aspect a little later.
There are three central questions which need to be considered at this stage. First, will the Bill, and any other measures that the Government introduce, sufficiently ensure that the prohibition against torture or inhuman treatment guaranteed by international human rights codes (by which the UK is bound) is adequately safeguarded? I have in mind Article 3 of the European convention. Indeed, that question has already been asked by the noble Baroness, Lady Blatch.
Secondly, will the commission's jurisdiction capture all the situations which need to be covered by means of this new right of appeal? Thirdly, are the powers and duties of the commission sufficient to ensure a fair procedure? As the Minister indicated, one central finding of the European court in Chahal was that there was no effective remedy under English law, whether by way of judicial review or otherwise, in cases where individuals seeking to come to this country face deportation or extradition to another country in which they are likely to face the real risk of torture or inhuman treatment in breach of Article 3.
The European court pointed out that in such cases it was irrelevant whether the individual concerned was considered to be a national security risk because the overriding requirement was to ensure protection against Article 3 torture risks. This means that there must be effective judicial review, whether by the ordinary courts, by adjudicators or by some special review body such as the commission, to ensure that Article 3 is really complied with.
More recently in the French case of H.L.R., decided on 29th April, the court reiterated that where the expulsion of an alien to a foreign country gives rise to a real risk of being subjected to ill treatment contrary to Article 3, there is an obligation not to deport the alien. It has reaffirmed that Article 3 prohibits in absolute terms torture or inhuman treatment—I emphasise the following words—irrespective of the victim's conduct.
At present the special immigration adjudicators are not empowered to take account of Article 3 risks except in hearing appeals under Section 8 of the 1993 Act in relation to the Geneva Refugee Convention. When they are doing that they have to decide whether there is a well founded fear that an asylum seeker will, if returned, he persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. To that extent they can have regard to Article 3 risks, but not otherwise. Suppose, for example, that an ordinary asylum seeker, not a suspected terrorist, faces a real risk of ill treatment in breach of Article 3 on some other ground not covered by the Geneva Convention. The special adjudicator has no power to take Article 3 into account. That is the first example of a gap between this Bill and the requirements of the convention which needs to be filled.
Similarly, when the Crown Court exercises its power to recommend that an offender be deported, the Crown Court is not entitled to have regard to the political

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system in the country to which the offender may be deported. The Court of Appeal, Criminal Division, made it clear in Nazari that the courts in this country are not concerned with the political systems operating in other countries. Lord Justice Lawton said it was exclusively for the Home Secretary to decide in each case whether an offender's return to his country of origin would have consequences which would make his compulsory return unduly harsh.
In other words, the present law does not empower the criminal courts, in exercising their power to recommend deportations, to have regard to the risk that the deportee will face torture, or inhuman treatment in the country to which he will be deported. They cannot take into account Article 3 and the Bill does not seek to fill that gap.
I turn now to the third kind of court, the judicial review court. That, too, is precluded from treating the prohibition of torture and inhuman treatment in Article 3 as absolute in nature, when reviewing decisions by the Home Secretary or, for that matter, decisions of the criminal courts or the Immigration Appeal Tribunal. That was partly the vice that constituted a breach of the right to an effective remedy under Article 13 read with Article 3 in Chahal. Once again the present Bill is incomplete. It does not seek to fill the gap, except in cases where a right of appeal has hitherto been excluded because the Home Secretary has certified that a person's exclusion etc. was conducive to the public good.
I doubt whether the restrictive language of the Long Title of the Bill will enable it to be amended to deal with these gaps. But I hope the Minister will be able to assure the House that the Government intend at an early stage to introduce another amending Bill to deal with them, incorporating the Article 3 requirements specifically into the immigration statutes. That seems, with respect, to be a better method than relying upon the general incorporation of the convention.
As regards the requirements of the other system of European law, the Community law system, the Minister has referred to the pending case of ex parte Mann Singh Shingara and Abbas Radiom which makes quite clear that there must be merits review, including proportionality, to satisfy the requirements of Community law. There can only be effective protection to the extent to which the legal remedy allows full review of the administrative act in question. I should be grateful if the Minister could indicate in his reply whether the Government intend the present Bill to give effect to Community law as interpreted in that way in the present case. In my view it is essential that the notion of a proper review in terms of Clause 4(6) of the Bill means a full merits review.
As regards the question whether the Bill captures all the situations where a right of appeal is called for, it seems—I am not an expert and I get a headache when I try to check the chapter and verse of this—that the following cases which should be covered are at present excluded from the Bill. I have given the Minister notice of this, but I should not he surprised if more time were needed to check each of these examples. I shall briefly say what they are. It seems that refusals to revoke
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deportation orders in non-asylum cases; curtailment of leave cases; refusals of leave to enter and refusals of entry clearance in cases involving other than EEA nationals, are all outside the scope of the Bill at the moment but should be within it.
There also seem to he significant gaps in the bail provisions. These arise because of the differences of terminology in different provisions. For instance, the bail provisions cover only cases of national security. They do not provide for those whose exclusion is on weaker grounds and who therefore have a greater likelihood of being granted bail. The bail provisions leave out exclusion on grounds of the public good and in the interests of relations between the UK and another country, or for reasons of a political nature. There also seems to be a need to be included in the Bill a reference to Section 19 of the 1971 Immigration Act such as is contained in the 1993 asylum and immigration Act. That is because without that reference it is unclear what powers the appeals commission will have and the grounds on which it may allow or dismiss appeals.
I turn to procedural fairness. As the Bill does not seek to extend the jurisdiction of the judicial review court to examine the merits of cases involving the exclusion of individuals on non-conducive to public good grounds, it is all the more important to ensure that the procedural safeguards contemplated by the Bill for statutory appeals will comply with the requirements of European law.
Under the law as it stands, English courts cannot review the evidence on which the Home Secretary decides that someone like Mr. Chahal and his deportation would be conducive to the public good for reasons of national security. It is vital that the special appeals commission should be able to ensure in deciding an appeal both that the decision is proportionate and that the deportation or extradition of someone like Chahal will not expose him to Article 3 risks. I should be grateful if the Minister could indicate in his reply whether that is envisaged.
As the Minister has indicated, the Bill is to some extent modelled on Canadian immigration law, as suggested not I think by the court but by Justice, Liberty, the Aire Center and the JCWI in their amicus brief to the European Court. If we are to match the Canadian immigration law provisions it is important to ensure not only the right to legal representation in Clause 2 but also the right to a summary of the grounds on which a notice to deport is based, a right to give evidence and to cross-examine witnesses, the circumstances in which the commission may decide to hear evidence in the absence of the appellant, and his or her legal representative, and in such a case a right to have the case against the appellant tested by a court-appointed counsel.
We need to ensure the right to receive a summary of the evidence heard in the appellant's absence and the right to comment upon it; a power in the commission to compel the production of evidence and information and to call for witnesses, and the power to decide which information should be disclosed to the appellant. My next point was referred to by the noble Baroness;

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namely, the right to make a binding decision. Further, I refer to the need for the commission to publish its decision with reasons. We greatly welcome the affirmative procedure that is contemplated and the fact that the draft rules will be available before the Committee stage so that we can see whether they meet these requirements.
A small technical error has been drawn to my attention in Schedule 1 to the Bill. Paragraph 5(b)(i) provides that,
"The Commission shall be deemed to be duly constituted if it consists of three members",
including,
"a member of the Immigration Appeal Tribunal qualified as mentioned in paragraph 7 of Schedule 5 to the Immigration Act 1971".
It should surely say instead,
"designated under section 8(5) of the Asylum and Immigration Appeals Act 1993 and section 3(3) of the Asylum and Immigration Act 1996".
That is a purely technical point which no doubt can be considered further when the Bill is in Committee.
Like the noble Baroness, Lady Blatch, I am puzzled by the Government's estimate of the financial implications. Indeed, I have two Questions for Written Answer. I very much hope that they may be answered today rather than in writing. First, what is the Government's estimate of the number of days each year that the proposed commission will sit to determine appeals? Secondly, what is the Government's estimate of the daily fee for counsel to be appointed by the commission?
I know that lawyers are an unpopular profession. I know that the general view is that barristers and solicitors are vastly overpaid. But I note that it is estimated that it will cost only £1,000 per year for counsel appointed by the commission in some or all of the cases heard each year. I would hope that the Government will consider using the Treasury panel, which will be security cleared, as counsel to act independently of the excluded appellant. I know that if one undertakes Treasury work, white tape work, it is almost a breach of Article 4 of the convention—a case of enforced labour or involuntary servitude without pay. I suggest that £1,000 to cover all the costs of counsel for a year's work must be a misprint. I look forward to hearing from the Minister that the figure should be £10,000 or even higher.
5.32 p.m.
Lord Mishcon: My Lords, when I ventured to put down my name to speak today it was because I wanted to thank the Minister for the Bill and for the speed with which it has been brought before your Lordships, and to say what I believe every Member of this House would want to say: what a delight it is to see my noble friend occupying this very important position in the Home Office where one can be sure that the light of humanity will certainly shine through the windows of that great department. When I decided to say that, I had
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no idea that the Minister would say some kind things about me. I wish him to know that they are much appreciated.
The noble Lord, Lord Lester, said that the noble Lord the Minister will be missed by the Bar. Perhaps I may merely say that he will be missed equally by the superior branch of the profession to which I have the privilege to belong.
That brings me to the half witty intervention of the noble Lord, Lord Lester, and the very serious comment made by the noble Baroness, Lady Blatch, referring to the estimate in the financial memorandum of counsels' fees for one year of £1,000. I merely ask the Minister outside this Chamber, and in complete confidence, to tell me to which chambers I should apply where such reasonable charges will be made. I wish to take advantage of that professionally and I want to say that frankly to the House.
The Bill is a good measure. It has been the anxiety of the Law Society and those associations which look after the situation of immigrants and those who may be expelled from our shores that there is no right of appeal. The commission is now being set up and there is no doubt that that is a proper thing to do. Doubt was expressed by those who have been watching for the legislation to come before Parliament as to whether Section 19 of the Immigration Act will confirm the duty of the Secretary of State to accept the decision of the commission. The noble Lord, Lord Lester, referred to that point. That may have been left out inadvertently. It may be that it is deliberate. If it is deliberate, I think that the House will wish to comment on that at a future stage of the Bill.
It is also right that consideration should be given, and I believe a word of praise uttered, on the right of the commission to grant bail. That has not been mentioned. So often we have heard cases where detention has operated most harshly upon those who are looked at by the Home Office with some amount of suspicion, those who wish to enter our shores and for some reason or other are not permitted to do so by the immigration officials. This right of bail granted under the Bill is a matter of great importance and of great advantage.
The lot of a Minister is a hard one. I say immediately that it is not one of which I have personal experience. Nevertheless I have watched. If a Bill is introduced with some amount of speed after a government come into office because, for example, it is necessary, as in this case, to obey the Convention on Human Rights as set out by the Court of Human Rights, people of even the repute and kindliness of the noble Lord, Lord Lester, immediately say that there has not been enough time for consultation. If the matter is delayed then people say to the Minister, "You should have done all this before". From these Benches, I wish to congratulate the Minister on having dealt with this important matter as speedily as he has done; and I am sure that the House will grant the Bill a Second Reading.
5.38 p.m.
Lord Hylton: My Lords, I apologise for putting my name down late. I realise that the Bill is tightly drawn

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and limited in scope, and arises at least in part out of certain individual cases. Nevertheless, I trust that I may be granted a little latitude to make two points concerning asylum seekers and the use of detention.
First, I thank the right honourable gentleman the Home Secretary for his clear statement of the present Government's policy in a letter dated 12th March addressed to Charter 87, a movement as regards which I was one of the original signatories. The letter was positive, in particular about treating asylum seekers with respect and not leaving them destitute. However, there remains some uncertainty about policy on detaining a minority of asylum seekers, although I welcome Her Majesty's Government's intention not to use prisons for this purpose.
Will the Government reappraise the use of detention except for those who face deportation under existing immigration law? Will the Minister say now that asylum seekers will not be put into detention on mere suspicion, bearing in mind that they have sometimes escaped persecution and death only by using forged or irregular documents?
During debate on the previous asylum Bill I moved amendments dealing with the use of non-governmental organisations and of bail in some circumstances as alternatives to detention in borderline asylum applications. Will the Government please consider these points in the course of their reappraisal?
5.41 p.m.
Lord Thomas of Gresford: My Lords, I join in congratulating the noble Lord, Lord Williams of Mostyn, on his elevation to the Government Front Bench. He has been a long-time colleague and adversary. His appointment gave particular pleasure to the Wales and Chester circuit, of which he was once leader and of which we are both members. I hope that he and I will continue, as we have in the past, to obey the precept which is set in the stained-glass window of Chester Crown Court: strive mightily but eat and drink as friends.
In the Chahal case, the European Court of Human Rights considered the provisions of Article 5.4 of the convention:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".
Exception was taken earlier today to the decision of the European Court which the noble Baroness, Lady Blatch, regarded as possibly an unwarranted interference in the national security of this country. May I remind the noble Baroness and those who feel that way that the principle was drafted by English lawyers who sought to express what they believed to be the common law principles that lie behind English common law—habeas corpus—and to set out the concepts of natural justice as we know them.
The position under the 1971 Act was unsatisfactory. Mr. Chahal had not been brought to justice speedily; he had been detained for six years because successive Home Secretaries had maintained that he could not
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safely he released for reasons of security. The Court held that there was no effective judicial control over the executive in cases of this sort. The European Court held that the domestic courts of this country did not have access to the national security evidence against him. Indeed, in earlier proceedings in the Divisional Court Lord Justice Staughton, who considered the matter on judicial review, said in his judgment:
"All [the allegations against him] are denied by Mr. Chahal. We cannot determine whether the Secretary of State was right, after considering the report of the advisory panel, to reach these conclusions. Nor can we review the evidence. We have to accept that the evidence justified [the decision]".
Hence he concluded that it was,
"impossible to say that this decision of the Secretary of State that the deportation of Mr. Chahal would he conducive to the public good for reasons of national security was irrational, perverse or based on any misdirection".
The position under the 1971 Act was that the court was not given the information by which to consider whether the decision of the executive was a correct one. Hence it is not surprising that the European Court of Human Rights concluded that Mr. Chahal did not have sufficient procedural safeguards to meet the standards set out in Article 5.4.
It is in the light of that judgment that the Bill has to be considered. Does it provide a measure of procedural justice? The meat of the matter is not in the Bill itself; it is to be contained in the rules to be made by the Lord Chancellor. Let us consider the Bill's structure. Clause 1 sets up the commission. I agree with noble Lords regarding the cost set out in the explanatory memorandum. I personally took it to be a misprint and that at least two noughts had been missed out on both the sums mentioned. Clause 2 sets out the jurisdiction. Clause 3 gives a waive to the possibilities of bail; although Mr. Chahal's experience, even after his application to the European Court had been declared admissible, does not give rise to any confidence that bail will be granted in this type of case. I noted the welcome given by the noble Lord, Lord Mishcon, to the bail provisions. I shall be interested to see how often they are actually applied.
Everything else is supplementary. The opportunity is lost to set out in the primary legislation the approach of the commission to an appeal brought before it. I follow my noble friend Lord Lester in asking what are the grounds on which the commission may allow or dismiss the appeals that it considers. From the remarks of the noble Lord, Lord Williams, today, I assume that it is not simply to advise the Home Secretary as the advisory panel chaired by the noble and learned Lord, Lord Berwick, used to do. The problem with that panel was that the evidence it received was never disclosed. There was no legal representation, and no information was given to an appellant as to the advice the panel provided to the Home Secretary, and in any event the Home Secretary was not obliged to follow the advice of the panel. It was highly unsatisfactory. It would be helpful if the Bill set out how the commission is to decide the appeals that it has before it.

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I assume also that the commission is not to review the decision of the Home Secretary to determine whether it is irrational, perverse or procedurally flawed, as in a judicial review.
The Minister said that the commission is to have the power of decision. It is to carry out the balancing exercise between, for example, the threat of torture or threat to life or freedom of the appellant by return to his own country against the risk to the national security of this country. The commission will reach its own conclusion on the merits of the matter by a decision which will overrule the Home Secretary. I agree with my noble friend Lord Lester that it would be helpful, if this balancing decision is to be set out as the approach that the commission must take to appeals brought before it, that some of the factors should be enumerated. For instance, Article 3 risks should be specifically referred to in some part of the primary legislation. There is a need for clarity as to what the commission should do.
My other main objection is the nature of the commission itself. It may have a Canadian flavour; however, I do not think that it thereby answers all the problems. I know of no judicial process in this country, whether a court or a tribunal, dealing with the liberty of the individual which does not tell him the substance of the allegations that he faces. Yet Clause 4(3)(a) of the Bill makes just such a provision. He is not necessarily to be informed of all the allegations that are laid against him. I understand from the remarks of the noble Lord, Lord Lester, that under Canadian legislation such a summary of allegations is required under the Canadian code. Again, the appellant need not be given full particulars of the reasons for the decision that is the subject of the appeal. It is a straightforward breach of the rules of natural justice, created not by primary legislation, with the possibility of full debate whereby this House and another place can consider the merits and importance of the national security question against breaches of natural justice; it is to be created by subordinate legislation which, though it may be by way of affirmative resolution, does not have the same force and scrutiny as primary legislation would have.
Subsection (3)(b) is just as bad as (3)(a). Proceedings may be held in the absence of the appellant and any legal representative appointed by him. The commission may appoint its own person to act on behalf of the appellant instead of his chosen legal representative. On what basis? Is the person appointed by the commission to take and follow the appellant's instructions and to have confidentiality and the benefit of legal professional privilege? Those problems all need to be addressed.
As for subsection (3)(d), which provides that the appellant "may" be given a summary of any evidence taken in his absence, that does not, in my view, accord the substantial measure of procedural justice to which the European court referred. As my noble friend Lord Lester of Herne Hill pointed out, there is nothing in the Bill which makes it mandatory for reasons to be given and a copy of the reasons for the commission's decision to be handed to the appellant.
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In addition to that, the Bill clearly envisages changes to the ordinary laws of evidence by providing for rules specifically dealing with the mode and burden of proof and the admissibility of the evidence on appeals. The safeguards which exist in our ordinary courts in relation to the use of intercepted telephone calls and mail are simply abandoned in the schedule. The Government must justify these violations of the principles of natural justice before the Bill can receive my warm commendation.
In domestic criminal cases in this country we have developed a whole code of practice in relation to matters of security and intelligence. Public interest immunity covers the sources of information, the techniques of the security services and all the other matters that need to be covered in the interests of national security. Subject to those matters, applications are made daily in the courts in the most serious cases, including cases of terrorism, which proceed with the nature of the allegations fully disclosed to defendants. Defendants remain in the court, which sits in their presence and that of their legal representatives. In cases of special security, witnesses may be concealed or the court may even sit in camera.
We already have a well developed system to deal with problems of national security and I wonder why we have to go to Canada for a code of this sort to deal with this matter. It is for the Government to justify why proceedings of this nature require such overwhelming secrecy of the Canadian flavour, such secrecy that not even the appellant himself can know the full extent of the allegations against him or be present at the hearing.
I do not consider that the Bill in its present form entirely fulfils the desire of the Court of Human Rights to ensure that the national authorities are effectively controlled by the domestic courts. Those are the operative words: the Executive should be effectively controlled by the domestic courts. Unless the gaps referred to by my noble friend Lord Lester and the matters to which I have referred are addressed, there will be a serious danger that the machinery will be challenged again in the European Court and in all probability fresh legislation would ensue. For my part, I regard this Bill as "business as usual" from the Home Office and I assure noble Lords that as far as I am concerned it is "business as usual" on these Benches.
5.55 p.m.
Baroness Anelay of St. Johns: My Lords, I add my congratulations to those already expressed to the noble Lord, Lord Williams of Mostyn, upon his appointment. I hope that he will not think it presumptuous of me to do so, having it seems only been here about five minutes myself.
We have a proud tradition in this country of honouring our international obligations and have always been a haven for those fleeing persecution and torture in their own countries. On this side of the House we believe, as my noble friend Lady Blatch said earlier, that the needs of natural justice must be balanced with the needs of maintaining effective national security. It is important that those who incite or conspire to commit

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terrorist acts should have no base in Britain. That is why the previous Conservative Government pushed hard at the United Nations to deny terrorists the protection of the 1951 refugee convention.
The Government have our support on this Bill. However, we seek clarification from them on a number of points on various aspects of it. I was pleased to hear the Minister's announcement today with regard to the rules, which is one of the points about which I was going to ask him. I am delighted to hear that the draft rules will be published in time for Committee.
Will the Government say today whether they have any plans at a later stage to give the special commission any greater role than the Bill currently proposes?
Secondly, do the Government intend that the decisions of the commission should be binding on the Home Secretary? That is not clear from the Bill.
Thirdly, what consideration have the Government given to the possible implications of incorporating the European Convention on Human Rights into British law on the deportation of individuals on national-interest grounds and on the provisions of the Bill?
Finally, like other noble Lords today, I should like to mention one or two points about the money, about which one or two amusing remarks have been made. I should like to know how the Government have calculated the financial effects of the Bill. I am not trying to be difficult or flippant on this matter; it is simply that before coming to this House I sat on appeal tribunals for 14 years and am very aware of the problems of managing their workload in such a way that all parties are treated fairly at all times and that there is a degree of cost-effectiveness about their operation. I know that it is a difficult balancing act.
Like the noble Lord, Lord Mishcon, I notice the provision in the Bill about the bail power to be given to the commission. Schedule 3, paragraph 3(2), prescribes that:
"A person arrested under this paragraph shall be brought before the Special Immigration Appeals Commission within twenty-four hours".
It is laudable, as the noble Lord pointed out, that those under arrest should have rapid access to making a bail application. When I sit as a magistrate, I am always very keen to make sure that I am available as quickly as possible to hear bail applications. However, such a power adds both to the work of the commission and to the unpredictability of its sitting dates.
It is against that background of its workload that I found the costings for the commissioners a little puzzling. The annual sum of £1,500 projected to cover the cost of the daily rate to be paid to one member of the commission has been mentioned. I assumed before coming here today that the other two members would be volunteers to whom only expenses would be paid, but I noticed that in his opening the Minister referred to the fact that not only will one of these members come from the appeals tribunal but he or she will be a senior member of that service—one, I would venture to say, who is not accustomed to turning up day by day without any payment and certainly not without expenses.
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Schedule 1, paragraph 5(a), provides that at least one member of the commission must be a person who,
"holds or has held high judicial office (within the meaning of the Appellate Jurisdiction Act 1876)".
I understand that we are talking about somebody of High Court judge level or above. Yesterday I contacted the Lord Chancellor's Department to ask the daily rate for a retired High Court judge who could do this work. I am told that currently it is £492 and that from 1st December 1997 it will be £509. That would seem to indicate that the Government anticipate that the commission would sit on about three days a year and I wondered whether that fitted in with the Minister's expectation.
If the Minister is considering using High Court judges who are currently appointed, I would remind him that there are already too few High Court judges to tackle the existing caseload. I hear, "Hear, hear!" from my right. At least I assume that that has to be the case, so much use is made of Section 9 judges—circuit judges and deputy High Court judges, such as the noble Lord, Lord Thomas of Gresford, who sits on my right—who sit as High Court judges, to cover the work which the latter simply do not have time to do. Indeed, some retired High Court judges are also brought back on a per diem basis. I wonder whether the Minister has taken that into account when determining whether the current High Court judges will have time to do commission work.
Attention has also been drawn to the sum of £1,000 a year to be paid to counsel. I mention that matter with some trepidation because, like others, I do not subscribe to the public perception that lawyers are overpaid. Indeed, how could I? I am married to one. I also did some work on this point and discovered that at the moment a junior barrister, fresh into his (or her) first case, flushed with the excitement of going to the Bar, could command about £150 a day, whereas the most experienced barrister would receive perhaps £1,000 a day. So even on the average of £400-ish, one comes back to an estimate of two or three days' work a year.
It is said that it is not anticipated that the Bill would have an effect on public service manpower. However, I am very much aware that, due to the sensitive nature of the work of this commission, there would be an implication for security and for transporting the person accused, particularly if that person was not on bail, but even if on bail for making that courtroom secure. One would also have to take all that into account wherever the commission were to be held.
In addition, one would expect that some of the people who would appear before the commission by its very nature would come from outwith this country and perhaps would not necessarily be fluent in our language. There may be documents to be presented to the commission by the people who are prosecuting and acting against the defendant. Those documents would have to be subject to translation costs. Certainly, I know from my experience as a magistrate that those costs are not at all small. I await clarification of all those points from the Minister.

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We support the Bill as it ensures full compliance with our commitments under the European Convention on Human Rights, though, as I said, subject to the rules to be established by the Lord Chancellor regulating the commission. We are hopeful that it strikes the right balance between the principles of natural justice and our national security needs.
6.2 p.m.
Lord Williams of Mostyn: My Lords, life is full of bitter sweetness. Until 1st May this year the noble and learned Lord, Lord Mackay of Clashfern, occupied the Woolsack and until 5th May this year I was in gainful employment as a practising member of the Bar. It was not until the noble and learned Lord vacated the Woolsack and I left my former employment that either of us had the infinite pleasure of hearing unanimity in your Lordships' House that lawyers were paid far too little.
Perhaps I may deal with that point because it seems—I imagine to the noble Lords, Lord Lester of Herne Hill and Lord Thomas of Gresford—to be a topic of enormously gratifying interest. Virtually every noble Lord referred to it. The numbers likely to be involved are very small indeed. The panel which advised the Home Secretary in the past has in the past six years dealt with only six cases which were not Gulf War related. So I hope to have set a modest perspective. The legal members of the commission will probably be paid only expenses because one or two will still hold judicial office and therefore already be paid at public expense. High Court judges work very hard but I have never met one who claimed that he (or she) would not be able to spend a short period of time on possibly one or two cases a year. The sum of £1,000 may be an under-estimate. We do not expect many cases. At risk of intruding into private grief, I must say that the going rate for junior Treasury counsel at the moment is £200 to £300 a day. Perhaps some noble Lords will leap up immediately to say that that is grotesque under-remuneration, but, alas, that is a fact of life.
I leave remuneration on one side and go to more important matters.
Baroness Blatch: My Lords, I am deeply grateful to the Minister for giving way. He has not dealt with security, translation and interpreters or ancillary assistance that would need to be provided on hearing days of the commission.
Lord Williams of Mostyn: That is so and there may be some costs of that kind. I refer to the section of the Bill on the financial effects in the Explanatory and Financial Memorandum. One is dealing here with the costs of the commission itself and the costs of counsel and, as the noble Baroness noted, they do not include the costs of interpretation.
I am grateful to the noble Baroness, Lady Blatch, for her overall support of these matters. I know she will join with me in the conclusion that one has to bear national security very carefully in mind. It is a balance of
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interests and of rights. Any government would be unacceptably irresponsible not to bear in mind the fact that there are small numbers of people who come to our country with terrorist and murderous intent. We have a duty not only to the civil order of this country and to our own citizens but also to foreign nationals who may be the object of violent terrorist activity.
We have tried to strike a decent, reputable balance between competing interests. I entirely agree with the observation made by the noble Lord, Lord Thomas of Gresford, that it will be a balance. There will be some disadvantages to someone who is accused of terrorism, but those are inevitable disadvantages when one has to perform a balancing exercise.
If your Lordships will allow me, I shall not deal with each individual contribution distinctly. It may be more fruitful if I attend to topic rather than author.
First, there is the very important question raised by the noble Baroness and echoed by subsequent contributions from your Lordships of whether the decision of the commission is to be binding on the Home Secretary. I do not dissent from the proposition that that is an essential and legitimate question, to which I give the answer, which I hope is acceptable to the House, that it is intended that the decision should bind the Home Secretary. I respectfully suggest that that is a very significant advance in human rights terms. It is not expressed in the Bill and we shall give consideration to bringing forward a clarifying amendment to put that beyond doubt. However, I hope that I have made it as plain as possible. I do not believe that that is simply a cosmetic concession. It has been thought about with care, bearing in mind our obligations under the convention and also the judgment in Chahal.
With regard to related matters, the noble Lord, Lord Lester of Herne Hill, asked whether this would be—I believe I have his phrase correctly—a full merits review. The intention of the Government is that the commission should have the same jurisdiction as the existing appeal bodies, which means a full appeal on the merits.
Questions were raised about jurisdiction. We shall certainly look at the questions that have been put—they were, if I may say so, quite careful questions—as to whether the commission's jurisdiction is as full as it should be. Consideration will certainly be given to that.
I have to deal with Article 3, which is another important question. There is no danger that new procedures will result in a person being returned to a place in which he or she will be at real risk of being subjected to torture or cruel or degrading treatment. Article 3 of the Convention on Human Rights prohibits us from returning a person to a place where there are substantial grounds for believing that such real risk would subsist. The absolute nature of Article 3, as the noble Lord, Lord Lester of Herne Hill, indicated, was determined by Chahal. I hope that that will be recognised and accepted as a distinct step forward or at least a distinct amplification of our responsibilities.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. Before he leaves

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Article 3, perhaps I may again make the point that Article 3 needs to be a binding standard within the scope of this Bill. There will still be the gap to which I referred when one is dealing not with suspected terrorists and others of that kind but with the routine asylum seeker, where, unless the special adjudicators and the criminal judges are given the power to give effect to Article 3, we shall be in the paradoxical situation in which wrongdoers such as suspected terrorists are given Article 3 protection under this Bill, but an innocent asylum seeker or a criminal offender facing deportation under sentence of the court is not given the same protection. Perhaps the Minister can indicate whether that gap also can be filled, if not in this Bill, then subsequently.
Lord Williams of Mostyn: My Lords, I am grateful to the noble Lord for that intervention. As he rightly observed in his earlier remarks, those questions are outwith the scope of this specific Bill. That in itself does not prevent the noble Lord from putting his question. My answer—which I hope he will find a prudent and acceptable one—is that the Government's policy is to incorporate the Convention. Detailed work is being done on the nature of that incorporation and it is appropriate to await further discussions with interested parties, not least the noble Lord, as to exactly how that incorporation will affect our domestic, criminal and civil jurisdictions. It is not a point that is being overlooked.
Baroness Blatch: My Lords, I understand that the Minister is about to leave that point. The specific question that I posed related not only to the Article 3 point; it related to the juxtaposition of Article 3 and the declaration adopted earlier this year at the United Nations, the effect of which conflicts with Article 3. My specific question was whether thought had been given as to how they sit together on this issue.
Lord Williams of Mostyn: My Lords, I am grateful again for that distinct question from the noble Baroness, Lady Blatch, as to whether or not there is a conflict. I repeat my answer that Article 3 is an absolute obligation. In respect of her specific question in relation to the declaration on terrorism, terrorists will benefit from the provision of Article 3 because it is an absolute obligation which has been specified by the European Court, as was pointed out by the noble Lord, Lord Lester of Herne Hill.
Lord Lester of Herne Hill: My Lords, is the Minister aware that not only is that answer correct under the Convention, but also, in relation to the convention against torture by which we are bound, exactly the same applies? However hard it may be to apply in practice, even if one has a terrorist with a ticking time bomb situation, international human rights adopt an absolutist view, which is that one cannot torture a terrorist and one cannot extradite a terrorist to a country where he will face torture. Nothing being done in the United Nations
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conflicts with that. Is the Minister aware that that is the general understanding of international human rights law across the world?
Lord Williams of Mostyn: My Lords, I am aware of that general understanding and offer this as an observation. It is easy to accord decent, civil rights treatment to decent, reasonable people; that is not the present problem. The problem is affording decent treatment to those who behave extremely badly, and I believe that to be one distinguishing mark of a civilised as well as a civil society.
The question of bail was specifically raised. We envisage that it may well be possible for bail applications to be heard by a single member to avoid the delays to which the noble Baroness referred. That is extremely important and I was heartened to hear someone of the authority of my noble friend Lord Mishcon saying that it is important. If delays occur and bail is denied, whatever the ultimate outcome, the complainant, appellant or applicant—however described—may well have suffered injustice.
I turn to one or two further questions which were specific to the noble Lord, Lord Hylton. Detention of an asylum seeker is only used as a last resort. Temporary admission is granted wherever possible. Only around 1.5 per cent.—the noble Baroness smiles because that may well be the sort of answer that she gave to me by way of reproof when we were in separate and distinct reincarnations—of asylum seekers are detained. The majority of those—75 to 80 per cent.—will have had their applications refused. Almost every asylum seeker has the right to apply to an independent adjudicator for bail. We do not incarcerate persons on mere suspicion alone. I hope that is a specific answer to the noble Lord's question. There are various ways, as is well known, of challenging detention by various applications for habeas corpus, applications for bail or judicial review.
We are conscious of the fact that lengthy periods of detention are undesirable and in many cases plain wrong. One of the aspects at which the Government are looking is the length of detention, the use of bail, the use of chief immigration officer's bail, the alternatives to detention consistent with other interests, when detention should be used, whether prisons ought to be used for detention and what is the place of bail hostels. The noble Lord had that particularly in mind because he was good enough to write to me in regard to the use of bail in these circumstances. The Government have those matters under review.
I detected, I hope, a general welcome to the steps that have been taken in the expression of the Government's policy in this Bill. I readily accept that there are challenging questions to be asked and they will essentially devolve on the nature of the rules to be produced by the Lord Chancellor. I reiterate the commitment that we wish the draft rules to be available so that they may be considered at Committee stage. They are important.

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I do not entirely agree with the noble Lord, Lord Thomas of Gresford—whom I should earlier have thanked for his generous welcome. He focused in particular on Clause 4(3)(a), which says that rules may provide that proceedings may take place,
"without the appellant being given full particulars of the reasons".
There is no sensible way of running a system like this without that disabling power being given to the commission. At the risk of being tedious—I hope I am not—I repeat that some of these people are extremely dangerous not only to their countries of origin, but also to the people of this country and fellow nationals of their country of origin in this country. No responsible government, in any circumstance, will give to an alleged terrorist such particulars as will enable him to murder or maim anyone who is resident in this country or elsewhere. One must have a sensible and prudent balance.
These proceedings are not perfectly analogous with ordinary criminal proceedings in this country. They cannot be. That is why we intend to make provision, first, for legal representation—that is the appellant's right; secondly, for the appointment of security vetted
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counsel to the commission who will be able to act as though for the appellant. They will not disclose that material to the appellant; such a system cannot work. It is not a perfect system but, alas, the world which we inhabit is not perfect either.
I hope that I have dealt with matters as fully as seems reasonable this evening. I recognise, and for my part welcome, a detailed scrutiny of the rules. My belief, fortified by five years sitting opposite, is that the more scrutiny this House gives to the detail, the better the legislation is in the end. I hope I have dealt with at least the most important aspects, forgiving myself for starting with the remuneration of lawyers. Further details will be forthcoming and I welcome that further consideration.
This is the first Bill which I have had the honour to introduce and perhaps I may say how grateful I am for the welcome given to me by those present. As the noble Baroness, Lady Blatch, knows, it means a great deal to have a fruitful working relationship, which I hope we have always had in the past and know will continue in the future. 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 twenty minutes past six o'clock.