Lords Sitting of 20 November 1997

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

Great Lakes Region, Africa
Lord Judd Lord Judd asked Her Majesty's Government:
Following the downfall of President Mobutu in Zaire, what arrangements they are making for an integrated policy towards the Great Lakes region of Africa.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, we recognise that the humanitarian problems in the Great Lakes are regional in nature, and therefore require a regional approach wherever possible. However, resolutions ultimately depend on political action in the countries concerned.
We are working closely with the EU and UN to promote conflict resolution, progress towards democratisation, the rule of law, respect for human rights and international humanitarian law. We fully support the work of the UN as the one organisation which straddles all the complex issues of economic and political development, human rights and refugees.
Lord Judd: My Lords, I thank the Minister for that reply. Does my noble friend agree that perhaps the most testing challenge is how to balance a convincing stand on human rights and condemnation of ethnic killing with the need not to punish the innocent and to speed meaningful reconstruction based on accountable political systems? Can my noble friend assure the House that the Government will use their forthcoming presidency of the European Union to work with fellow member states in overcoming fragmentation, which has been present in policy in Europe in the past, and to achieve a co-ordinated approach not only in Europe but in the international institutions, not least on debt, arms control and issues of that kind? What will be the Government's position at the forthcoming meeting organised by the World Bank on 3rd December in Brussels?
Baroness Symons of Vernham Dean: My Lords, the Government recognise the importance of the balance to which my noble friend referred. My noble friend raised two specific points on the presidency and the World Bank. We shall of course seek to use the presidency to ensure co-ordinated EU action in support of stability and economic development in the region that takes account of humanitarian concerns, human rights issues and the need for improved and more accountable government.
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As regards the World Bank, the meeting is planned, although as yet not confirmed, for 3rd and 4th December. We shall reiterate our desire to work with the new Government in Kinshasa to bring about a better future for the Democratic Republic of the Congo and for its people. But to enable the international community to have real confidence that it is right to do so, we need to see progress in addressing the issues of concern; namely, those of human rights to which my noble friend referred.
Lord Steel of Aikwood: My Lords, having returned overnight from a conference in southern Africa which was attended by four heads of Government, is the Minister aware—I was not—that the heads of Government in that region are greatly concerned that the new Government of the Democratic Republic of the Congo has been left high and dry by the international community? Following what the noble Lord, Lord Judd, said, is it not a question not only of pursuing the human rights abuses of the past but also of assisting in the reconstruction of civic society in that tragic country after the mess left behind by President Mobutu?
Baroness Symons of Vernham Dean: My Lords, I was not aware of the specific concerns to which the noble Lord refers. However, I hope that those who voiced those concerns will be to some extent reassured by the news of the welcome arrival in Kinshasa on the 11th of this month of the team leaders of the United Nations commission of inquiry into human rights. I understand that the team leaders have already had a meeting with two of the Cabinet Ministers in Kinshasa and have plans to meet Kabila later this week.
I think the feeling that the Government have been left high and dry may not be entirely right in the context of the UN's recent activity.
Lord Ponsonby of Shulbrede: My Lords, is my noble friend aware that her honourable friend Mr. Lloyd will visit the region in the not-too-distant future? As my noble friend Lord Judd said, Zaire needs to be thought about in a regional context. Will my noble friend therefore ask the Minister to endeavour to meet all representatives of different political parties, including those not currently represented in the parliament? I am thinking in particular of UNITA, which is not presently represented in the Zambian parliament but is represented among the populace.
Baroness Symons of Vernham Dean: My Lords, I am aware of my honourable friend's forthcoming trip to the area. I am happy to convey my noble friend's message to him. It is worth noting that the UN has an inter-agency consolidated appeal operating in Tanzania, Uganda, DRC and Burundi, so there is a co-ordinated approach through the international agencies. However, I am happy to relate the specific point to my honourable friend.
Viscount Waverley:My Lords, in the spirit of the Minister's initial response, is there any suggestion that

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the East African Association would be prepared to accept Rwanda and Burundi into its midst and, if so, under what conditions?
Baroness Symons of Vernham Dean: My Lords, I am afraid I do not have details on that point, but I am very happy to take delivery of it and will write to the noble Viscount.
Baroness Rawlings: My Lords, given the Government's human rights-centred approach to foreign policy, what weight do the Government attach to the recently published report of Human Rights Watch and the International Federation of Human Rights, which provides evidence of the mass slaughter of Hutu refugees in eastern Zaire? Was the issue raised when the Secretary of State for International Development visited Rwanda last month? What lead do the Government intend to take to ensure that President Kabila addresses international concerns about human rights?
Baroness Symons of Vernham Dean: My Lords, I assure the noble Baroness that my right honourable friend the Secretary of State at the DfID is never found wanting in raising these important humanitarian issues. It is a matter that has been put to the forefront of the agenda in DfID as well as in the FCO.
Alleged human rights abuses are extraordinarily worrying to the Government. But much of the evidence is second hand, because the UN Special Rapporteur was prevented from examining on the ground some of the alleged serious abuses. It is therefore all the more important that the UN inquiry team to which I referred is able to establish the truth behind the serious allegations of human rights violations in DRC since 1993.
The Lord Bishop of Winchester: My Lords, is the noble Baroness prepared to say more than she said just now about the Government's attitude to debt relief in the context of the UK presidency of the EU and of the work with member states and others next year? In particular, will she say whether the Government are prepared to seek alternative mechanisms, over and above the HIPC initiative, to bring debt relief to Rwanda in particular, which I believe will not qualify for many years for debt relief under the HIPC initiative? Will the Government clearly link additional debt relief to action for poverty reduction and education and health support programmes?
Baroness Symons of Vernham Dean: My Lords, the Government's attitude to debt relief was dealt with to some extent in the recently published White Paper. That White Paper makes it clear that debt relief will be looked at most sympathetically in those parts of the world where there is a demonstration of a clear commitment to human rights and democratisation. The criteria for debt relief will not be any different in the
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Great Lakes region to any other part of the world. But it will of course be focused on where there is greatest poverty, as the White Paper makes clear.

Prescription Charges
3.16 p.m.
Lord McColl of Dulwichasked Her Majesty's Government:
Whether they are satisfied with the present level of prescription charges.
The Minister of State, Department of Health (Baroness Jay of Paddington): My Lords, my right honourable friend the Chief Secretary to the Treasury announced in June that prescription charges were to be one element of the Department of Health's comprehensive spending review. We aim to complete the review by next spring. I reaffirm to the noble Lord and the House that that spending review is taking place in the context of our manifesto commitment on the health service that the NHS will be there to help if you are ill or injured and access to it will be based on need and need alone, not on ability to pay.
Lord McColl of Dulwich: My Lords, I thank the Minister for that helpful reply. Does she agree that what Prime Minister Attlee had in mind in introducing the concept of prescription charges was that they should act as a deterrent in an effort to reduce excessive and unnecessary use of the NHS? That being so, does the Minister further agree that it has been quite reasonable that the prescription charge, expressed as a fraction of the total expenditure of the NHS, has remained constant over the past 40 years?
Baroness Jay of Paddington: My Lords, I am tempted to ask why, in that case, it did not—particularly under the previous government's 18 years of administration. The NHS drugs budget is currently about £4 billion; that is, 13 per cent. of the total spend of the NHS. But it is rising faster than other areas of expenditure. There are anomalies within the prescription charge with which we have dealt many times in this House. That is the reason why it is appropriate that it should be examined under the comprehensive spending review.
Earl Howe: My Lords, bearing in mind that over 80 per cent. of items on prescription are currently dispensed free, compared to 60 per cent. in 1979, do the Government propose to re-examine the current structure of exemptions?
Baroness Jay of Paddington: My Lords, I do not wish to appear discourteous, but I believe that 80 per cent. of prescription items are—I am sorry, I misunderstood the noble Earl—about 50 per cent. of prescriptions are exempt. As the noble Earl will know, we are concerned about the number of exemptions,

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which may reveal something of an exploitation of that system. The matter is being examined under the comprehensive spending review.
Lord Monkswell: My Lords, will the Minister confirm that part of the reason for the increase in the percentage of exempted prescriptions is the massive increase in poverty that took place during the past 18 years of the previous administration?
Baroness Jay of Paddington: My Lords, that may well be an element in the numbers of exemptions. However, as I said in answer to the previous question, there are definite anomalies in the ways in which exemptions are currently registered. That is being examined closely.

EU Member States and the European Commission
3.19 p.m.
Lord Bruce of Doningtonasked Her Majesty's Government:
Whether the President of the European Commission or any European commissioner is permitted publicly or privately to instruct member states of the European Union, either individually or collectively, as to the actions they should take, or should not take, in regard to any proposals made by the Commission, or other matters which are of significant political controversy within those states.
Lord Whitty: My Lords, neither the President of the European Commission nor any European commissioner has the right to instruct member states as to the actions they should take in regard to a proposal made by the Commission or anyone else. In respect of existing Community law, of course the Commission has the right to take action to ensure enforcement, ultimately including referral to the European Court of Justice, if a member state is not in compliance with its obligations.
Lord Bruce of Donington: My Lords, I am grateful for that reply and I would not for a moment query the Commission's right to enforce Community law. Moreover, the Minister will probably agree with me when I say that the Commission has the right and a duty to explain its own proposals and advance the arguments in favour of them. However, I trust that the Minister will also agree that, under the terms of their appointment as commissioners under Article 157 of the Treaty of Rome, they have a duty of impartiality. Will the Minister agree that, over the past few years, notably during the prime ministership of the noble Baroness, Lady Thatcher, and ever since Maastricht, there has been a tendency on the part of the Commission to differentiate between the views of one state and those of another and very often by name?
Will the Minister agree, for example, that it was grossly improper the week before last for the Commission to denounce the policy of my right
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honourable friend the Prime Minister towards tobacco advertising and for the commissioner to describe his explanation as a "disaster", a complete U-turn? Furthermore, would it not be far better for the Commission to look once again at Article 157? Is it not time that the Commission was told, quietly but firmly, that it is not the boss of Europe but its servant?
Lord Whitty: My Lords, I am not sure which questions the noble Lord expects me to answer. The general point is that the Commission is appointed by the elected governments of Europe. It acts to reflect the views of the Council of Ministers. In some cases, this country and others are occasionally in the minority. It is the job of the Commission to explain the view of the Council of Ministers as a whole. That probably explains the bulk of the instances to which the noble Lord has referred. There are other matters which he has mentioned and which I shall definitely not get drawn into.
Lord Beloff: My Lords, will the Minister inform the House whether it is correct that the Commission is subscribing £5 million to making propaganda in favour of British membership of the EMU? Since that expenditure would otherwise fall on the Labour Party, is that not a form of foreign subsidy for a political party to which one understood the Minister's right honourable friend the Prime Minister was very much opposed?
Lord Whitty: My Lords, I have never been in favour of costs falling on the Labour Party and I do not believe the noble Lord is right in that respect. The Commission is spending a certain amount of money to explain the Council of Ministers' policies in relation to Europe. Any money that is expended within this country will be on information provided by Her Majesty's Treasury and other government departments. It will therefore be the responsibility of the British Government and not of the Commission.
Lord Wallace of Saltaire: My Lords, will the Minister accept that those of us who have been nominated to this House by a remarkably secretive process are not always best placed to criticise the questionable democratic credentials of nominated members of the European Commission?
Lord Whitty: My Lords, I absolutely agree with the noble Lord. I find it bizarre that in this House of all places there is an inability on the part of certain noble Lords to grasp the concept of an appointed politician. We are all appointed politicians and the Commission is appointed by 15 governments.
The Earl of Onslow: My Lords, is the Minister aware that I am not an appointed politician? No one would appoint me! It is as simple as that.
Lord Whitty: My Lords, I regret that I probably have to agree with the noble Earl. At some stage in our ancestries we were all appointed.
Lord Pearson of Rannoch: My Lords, perhaps I may press the noble Lord on one of the supplementary

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questions put to him by his noble friend Lord Bruce of Donington to which I did not detect an answer. Can he tell the House clearly whether the Labour Government, the Government of this country, regard the Commission as the servant of the Council of Ministers or its master?
Lord Whitty: My Lords, the Commission is the servant of the Council of Ministers. It can propose to the Council of Ministers, but it is the Council of Ministers which decides in certain treaty-obliged instances but also with the concurrence of the European Parliament. That is the position and the Commission is often blamed for matters which are decisions of the Council of Ministers.
Lord Cockfield: My Lords, will the Minister check the answer that he has just given? The Commission is an institution of the Community specifically under the terms of the Treaty of Rome, as subsequently amended. It is not and never has been the servant of the Council of Ministers.
Lord Whitty: My Lords, the noble Lord has some considerable experience of these matters, as do other noble Lords in the House. However, that was not the point. It is indeed an institution of the Community and commissioners are required by treaty and by obligation to act independently as an institution. However, the decisions under which they act are the decisions of the Council of Ministers.
Lord Pearson of Rannoch: My Lords, with the leave of the House, further to the reply which the Minister has just given, if the interpretation of my noble friend Lord Cockfield is correct, can the Minister tell the House of any clauses in the Treaty of Rome which permit the Commission to act in the manner envisaged by the Question?
Lord Whitty: My Lords, I indicated in my first reply that the Commission cannot act in the way described in the general terms of the original Question of the noble Lord, Lord Bruce of Donington. Therefore, there is no clause in the Treaty of Rome which would apply.
Lord Bruce of Donington: My Lords, in regard to my noble friend's statement that the Commission always speaks with the authority of the Council, may I apply that to the announcement of the Commission that the attitude of the British Prime Minister towards the tobacco regime was a criticism by the Council of the United Kingdom rather than a criticism by the Commission? Perhaps my noble friend will clarify the point.
Lord Whitty: My Lords, perhaps I may remind the noble Lord of his original Question. It was whether the Commission could instruct the Government to act on a proposal. The Commission is always in a position to try to persuade governments, and as I understand it that is probably what was said in this context. However,
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I repeat that the Commission has no powers to instruct the Government, unless and until a Council decision and due process turn that into Community law.

Museums and Galleries: Entry Charges
3.27 p.m.
The Earl of Clancartyasked Her Majesty's Government:
Why they consider it appropriate to decide their policy on access to public museums and galleries in advance of the publication in full of their research into the matter.
Lord McIntosh of Haringey: My Lords, the Department for Culture, Media and Sport is carrying out a review of access to national museums and galleries in England and the Secretary of State will announce his conclusions within the next few weeks.
This should not be confused with the research which has been separately and independently commissioned by the Museums and Galleries Commission and whose main conclusions were presented at a seminar organised by the commission last week. This research has been only one element of the wider picture which the department has been considering.
The Earl of Clancarty: My Lords, I thank the Minister for that reply. Does he acknowledge that, after seven months of the Government doing absolutely nothing to support museums, the bottom line is that if they do not give a firm financial commitment, then in two weeks' time the British Museum will certainly introduce admission charges?
Lord McIntosh of Haringey: My Lords, I do not accept that the Government have done absolutely nothing in the past seven months. Within the budgets available—which have not yet been reviewed—the department has continued its substantial support for the national museums in the country. The review which the Secretary of State for Culture is carrying out is evidence of our determination to continue and improve the provision by museums in this country.
Lord Strabolgi: My Lords, perhaps I may ask my noble friend to confirm that, should entrance charges be introduced, if a gallery such as the National Gallery does not wish to charge and does not need to do so, it will not be obliged to introduce charges?
Lord McIntosh of Haringey: My Lords, admission charges, which are only part of the issue of access, are a matter for the trustees of the individual museums. The Government have no power to influence trustees in either imposing or not imposing charges.
Lord Renfrew of Kaimsthorn: My Lords, is the noble Lord aware how reluctant the trustees of the British Museum would be—I must declare an interest—to impose admission charges? However, that decision seems to be inescapable, as the noble Earl pointed out,

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unless the cuts suffered by the annual budget of the museum are restored. Is the noble Lord aware, further, that unless there is some initiative from his right honourable friend, the trustees of the British Museum, by force majeure, may well find themselves obliged to impose admission charges very soon?
Lord McIntosh of Haringey: My Lords, I am aware—not only from the noble Lord, Lord Renfrew—that the trustees of the British Museum are reluctant to impose admission charges. Of course, the details of their finances are better known to him than to me.
Lord Jenkins of Putney: My Lords, is my noble friend aware that the wish of the British Museum not to charge is well based? The experience of charging was utterly disastrous in the case of several other museums. The idea that the Government have no influence in the matter is entirely untrue. The Government can release the museums from their obligations to charge or they can make clear that they require them to charge. It is my hope that this Government will make absolutely clear that museum charges are out and, if necessary, they will make it financially possible for any museum to avoid charging if it does not wish to do so.
Lord McIntosh of Haringey: My Lords, I stick by what I said earlier: the Government do not have the power to command museums either to charge or not to charge. Any influence the Government have may be applied in a number of ways; in particular, if unlimited financing was available for museums it would be possible for governments to help museums avoid charging.
In relation to my noble friend's first question and what he called the "disastrous" experience of charging, the evidence is nothing like as clear cut as he indicated. We do not know that museums lose a lot of customers through introducing charges. For example, there is evidence in Merseyside that customers have not been deterred by the charges that were introduced in July.
Baroness Trumpington: My Lords, following on from what the Minister said, is he aware that certain museums are forced to close some of their galleries because they cannot afford to pay for guards to supervise them? Does he not agree that it is better to introduce reasonable charges so that the general public may see all of a museum rather than just part of it?
Lord McIntosh of Haringey: My Lords, those are difficult decisions which the trustees of museums have to take. As I said, given unlimited resources, it would be possible for access to be improved not only by having low or no charges but also by opening for longer hours. There are various other ways of attracting visitors to museums. I know that some museums have succeeded, by the way in which they deploy their guards—I believe the correct term is "custodians"—in maintaining opening hours with a smaller staff.
The Viscount of Falkland: My Lords, can the noble Lord assure me that the Government will not support
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the idea in future of voluntary charges, which surely has been the most unfruitful path to be followed in recent years? If people are asked to give a voluntary sum, it is inhibiting on those who visit and difficult for the staff, who are inevitably encouraged to stop people and urge them to give a contribution.
Lord McIntosh of Haringey: My Lords, that is one of the considerations which will be taken into account in the review that is taking place. I am not sure that I agree with the noble Viscount. If one visits the Metropolitan Museum of Art in New York, one is encouraged to give a fixed sum. In return one receives a small metal tag to show that one has donated.
Baroness Hooper: My Lords, as a trustee of the National Museums and Galleries on Merseyside, I am grateful to the Minister for his comments on our experience. Will he be kind enough to confirm or clarify the timetable for the publication of the Government's review and for the research commissioned by the National Museums and Galleries Commission? There have been so many changes that there is now some confusion in that regard.
Lord McIntosh of Haringey: My Lords, in my original Answer I said that the review would be published in the next few weeks. I understand that the full tabulation of the results from the two research projects which were the subject of the original Question will be released in the new year. The projects are those of the Central Office of Information and Glasgow Caledonian University. The main conclusions of both projects were presented at the Museums and Galleries Commission's seminar last week, as the noble Baroness, Lady Hooper, knows.
Baroness Rawlings: My Lords, is it not against the principles of New Labour to charge VAT on museums that do not charge for entrance? Only last week the Secretary of State said that quality should be for all and not just for the few.
Lord McIntosh of Haringey: My Lords, as I have already said, access charges are only part of the review which is taking place. The law under which VAT is recoverable by those museums which become businesses by dint of their charging for entrance is laid down by the sixth VAT directive of the European Union. It is not within our power to change that. I suspect that, if it were within our power, we would be inclined to seek to do so.

Business of the House: Question Time
3.37 p.m.
The Lord Privy Seal (Lord Richard): My Lords, perhaps your Lordships will allow me to refer to one matter which has been exercising me a little since yesterday; namely, Question Time. This House is very rightly jealous of the fact that it is self-regulating, and long may it continue to be so. For it to be self-regulating

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means that on occasion, in extremis, either the Leader of the House or, if he is not present, the Chief Whip may have to intervene. For that system to work depends on two things. The first is that the Leader of the House intervenes with reticence and only when it clearly becomes necessary that he should; the second is the acceptance by the aggrieved party who is being interrupted of the fact that it is necessary to move on.
I make no reference to what happened yesterday afternoon; I was not in the Chamber at the time. I was contemplating the virtues of cross-party co-operation with the Liberal Party in advance of the debate opened by the noble Lord, Lord Jenkins of Hillhead. However, having read Hansard it seems not inappropriate for me to mention to the House that, if our practices are to continue, they require a little acceptance on both sides. When the noble Viscount, Lord Cranborne, was Leader of the House, he did what I try to do with skill and with tact. I attempt to do the same.
Viscount Cranborne: My Lords, the noble Lord the Leader of the House has done the House a great service by his intervention this afternoon. I concur entirely with the sentiments that he has expressed, particularly his polite comments about me when I occupied his position.
To reciprocate what he said, the noble Lord—if I may say so without appearing patronising—fulfils the very criteria he enunciated. He can be assured that, just as he always gave me and indeed my noble friend Lord Strathclyde when he was in the position of the noble Lord, Lord Carter, complete support in matters of this kind, both my noble friend Lord Strathclyde and I will support him in the way he suggests.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lord Williams of Mostyn will, with the leave of the House, repeat a Statement that is being made in another place on home detention curfew.

Electronic Monitoring of Offenders
3.40 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, with the leave of the House, I shall now repeat a Statement on the electronic monitoring—or tagging—of offenders which is being made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"On 30th July, I announced to the House a number of measures, building on our manifesto commitments, to protect the public and to establish a criminal justice system which is fair, swift and effective in tackling crime and disorder. Many of the measures—including new community punishments—will be provided by the Crime and Disorder Bill which will come before Parliament shortly. Others, such as automatic life
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sentences for second time serious sexual and violent offenders and mandatory minimum sentences for drug traffickers, were brought into force on 1st October. Work is also in hand to bring the Prison and Probation Services closer together.
"This Government pledged to be tough on crime and tough on the causes of crime. Ex-prisoners are plainly much less likely to re-offend if they have settled into work or if they are actively looking for a job and with a clear prospect of a job. The Welfare to Work Programme will guarantee every young person who has been out of work for more than six months the opportunity to work or train. I have ensured that ex-offenders are targeted as a special group within the Welfare to Work Programme.
"Protecting the public and maintaining public confidence in the criminal justice system has been uppermost in my mind since May. Prison has to be used for serious and persistent offenders. That is why I discharged our manifesto commitment to audit the resources of the Prison Service. As a result I have provided an extra £43 million to help with the additional population pressures which we inherited and which were not adequately funded. Since May the prison population has risen by over 3,400 to 63,000, an increase more than double the April predictions of my predecessor. To cope with this increase I have also authorised the building of four new prisons, to provide 2,400 places. But we must also give the courts a wider range of options on tough community punishments in which they—and the public—have confidence. These can now involve greater deprivation of liberty by using new technology. I am therefore setting out today to the House and to the public new action that I am proposing in the use of tagging.
"Over the past 10 years there has been much interest in the use of electronic tagging to provide 24-hour supervision of offenders who have been curfewed. The first trials, in 1989, of curfews imposed as a condition of bail, were not a success. The equipment simply did not work as it was intended.
"The 1991 Criminal Justice Act provided for a new penalty of a curfew order enforced by electronic monitoring. The previous Government themselves delayed the implementation of these provisions until 1995, and then only introduced them in three trial areas in Norfolk, Greater Manchester and Berkshire.
"On Tuesday, I published the report of the second year of the trials. At first, sentencers were very cautious about using their new powers, with only 83 orders made in the first year. But as it became clear that this equipment really did work, and that the orders were effective, more and more use was made of them. In the second year, 375 orders were made. In the last four and a half months a further 269 orders have been made.
"There are three reasons for this increase in sentencers' confidence in tagging. First, the equipment has proved absolutely reliable. When an offender is tagged, it really is possible to tell, second

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by second, whether he or she is complying with the curfew. Not only are absences instantly noted, any attempt to tamper with the equipment is detected immediately. Secondly, the two contractors have performed well. Every violation of the curfew conditions is followed up by properly trained and managed staff. Thirdly, sentencers are using tagging as a high level penalty, in many cases for offenders who might otherwise have been sent to custody. It is therefore clear that this technology can offer substantial benefits both for victims and the public.
"The trial areas for curfew orders made under the provisions of the Criminal Justice Act 1991 are now being extended into four new areas: West Yorkshire, Cambridgeshire, Suffolk and the Middlesex probation area, which covers the London boroughs of Barnet, Brent, Ealing, Enfield, Haringey, Harrow, Hillingdon and Hounslow. In addition, from January 1998, in the pilot areas of Greater Manchester and Norfolk, the courts will be able to impose a curfew order enforced by electronic monitoring as a community punishment on 10 to 15 year-olds, on fine defaulters who would otherwise be sent to prison, and on persistent petty offenders.
"Let me now turn to how I propose to use electronic tagging in respect of those who have been in prison and who are very near to the end of their sentences. Those who are sentenced to prison often have typically lived very disordered, irresponsible lives. They are poor at making sensible decisions about their own futures or those of their families. In prison, they do not have to. But the moment prisoners come out of prison, they have to make critical decisions about what they do with every moment of the day; whether they drift back into crime, and into the company of their criminal associates, or whether they try to bring order into their lives.
"Tagging has a key role to play here. If prisoners who are serving short-term sentences are tagged towards the end of the custodial period of their nominal sentence, they can be given the opportunity to structure their lives more effectively, and swiftly brought back to prison if they breach the tagging conditions.
"The research into the first year of the trials showed that offenders see curfews enforced by tagging as a severe restriction of liberty—just as magistrates and judges do. Some offenders have said they found the self-discipline required to complete such a curfew order made it harder than prison. It also provided opportunities for them to take proper responsibility for working or looking for work, for keeping their families together, and for maintaining self-control.
"The case for introducing an element of tagging into the last part of a short-term prison sentence is therefore very strong in any event. But it has been reinforced by the recent rise in the prison population. No one wants to see an unnecessarily overcrowded prison system. It would be the height of irresponsibility not to take advantage of modern technology to help prevent that. The alternatives are
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bound to be at the expense of constructive prison regimes, and at the expense of improving the prisoners' prospects for resettlement: in other words at the expense of the law-abiding public.
"I have therefore decided to seek Parliament's approval to impose electronic monitoring on selected short-term prisoners in the last two months of their sentence. These orders will be called home detention curfews. The relevant powers will be sought in the forthcoming Crime and Disorder Bill.
"Home detention curfews will be available for prisoners who have received sentences of more than three-months but less than four years' imprisonment. They will be tagged for between two weeks and two months, according to the length of their original sentence. Currently, under the Criminal Justice Act 1991, such prisoners are automatically released at the half-way point of their sentence. They will therefore in any event shortly be back in the community.
"There will be no automatic entitlement to tagging. The Prison Service will in each case conduct a risk assessment. If the prisoner fails this risk assessment he or she will continue to serve the sentence in prison until its half-way point, as now. The prison governor will set the place and times of curfew, in consultation. where needed, with the Probation Service. This will usually be 12 hours a day and could be more, but in no cases will be less than nine hours a day. This will enable the prisoner to have a specified period of time each day in which he or she can adjust to living in the community, while still facing a restriction on liberty for a major part of each day. The curfew conditions will be in addition to the supervision requirements with which anyone with a nominal sentence of 12 months or more must comply.
"If a prisoner breaches the conditions of the home detention curfew he or she can immediately be returned to custody. As with the present trials of curfew orders enforced by tagging, the monitoring will be provided by private sector contractors, and there will be an invitation to tender in due course. Our aim is for the scheme to be operational in 1999.
"Madam Speaker, at the heart of all my policies as Home Secretary is my commitment to provide better protection for the public and for the victims of crime. I am ready to use every measure at my disposal to deliver that commitment. We now have a real opportunity to use modern technology to provide a much better transition for carefully selected prisoners from prison into the community. With the support of Parliament, I intend to take it."
My Lords, that concludes the Statement.
3.51 p.m.
Baroness Blatch: My Lords, the House will be grateful for that Statement about the extended use of electronic tagging. I was the Minister who introduced electronic tagging in the latest experiment, which has been incredibly successful. Every survey, even from the earliest days of the pilot scheme, has proved beyond

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doubt that the system works. I am therefore enthusiastic about this. Indeed, the previous government had plans to extend the use of tagging.
However, it is an extraordinary Statement. I suffered mercilessly at the hands of noble Lords opposite over the introduction of tagging in the first place. They fought tooth and nail against its proposed use. Nevertheless, this U-turn is welcome.
I have a number of questions. First, may we have the figures relating to Berkshire? Of the three piloted areas, it is common knowledge that from the start Berkshire courts have been extremely reluctant to use the tagging option. As recently as my last day in office, the figures were pathetically low and it would be helpful to know whether there has been a dramatic turnaround in the use of the tagging option in the Berkshire area.
I believe that this proposal is, sadly, Exchequer-led. It is all about money; it is not about the proper use of sentencing. Introducing tagging as an extra disposal for the courts makes a great deal of sense. I believe that the courts would benefit from having such extended options at their disposal.
What percentage of the prison population is serving a sentence of more than three months but less than four years? I understand that it is a very high percentage, so we are talking about releasing early potentially a very large proportion of our prison population.
It is true that against a background of a crisis in prison numbers a former Secretary of State, now my noble friend Lord Hurd, introduced a five-point plan to Parliament. He received the support of Parliament, including that of the Opposition of the day from the noble Lord, Lord Hattersley. Those five points included creating a temporary secure camp for 360 people; expanding and accelerating the prison building programme; encouraging the private sector (against enormous opposition) to become involved in the prison building programme; considering using powers of executive release but emphatically rejecting them and instead increasing the amount of remission dependent upon good behaviour by those serving sentences of up to and including only 12 months (which meant the less serious offenders) from one-third to one-half of the sentence; and at the same time initiating a wide-ranging review of parole and remission arrangements. That was an interim measure only and, as I said, applied to much less serious offenders. It also addressed an anomaly that was recognised by the courts at the time: that those serving sentences which were too short to qualify them for parole were serving a higher proportion of their sentence than those more serious offenders who qualified for parole.
When we discussed the Crime (Sentences) Bill, noble Lords opposite were absolutely and emphatically opposed to any notion that the Prison Service should assess good behaviour for the purposes of early release. Their view was that the only people qualified to do that work and the only people who should be involved in such work were members of the Parole Board. This is, therefore, a remarkable turnaround by the present Government.
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My next questions are these: is the policy of releasing for the last two months of their sentence those offenders with sentences of over three months but less than four years to become nationwide? If so, by when? What are the costs of extending the tagging policy, not simply to the four areas which include my own area of Cambridgeshire but for the new policy mentioned at the end of the Statement? Where is the money coming from? We are within the two years which have been identified as those during which the Government want to stay within the spending totals of the previous government, so it would be interesting to know whether the money will come from within the Prison Service.
Why not simply extend the tagging curfew option for the courts as an additional disposal both for community sentences, (instead of custody) where appropriate, and for supervision purposes, where I believe that it has a role to play? How many prisoners is it envisaged will be released early by the new policy?
I now have some very important questions which the Minister really must answer. Will any category of prisoner be released? Is it intended that this policy shall operate across the board for those serving sentences of up to four years? Will burglars and sex offenders be included? Will the Probation Service be involved in this period of release? If so, what will the costs be and will the Probation Service be funded to meet the additional supervision period?
At present, anybody breaching a curfew order has to be returned to the courts in order to be returned to prison. Is it now intended that there should be differential treatment of those people on curfew orders? Those sentenced by the courts to curfew orders will have to be returned to the courts to be returned to prison, but somebody who is curfewed in the community on the say-so of a prison officer under the new home detention curfew will be returned to court without any appeal or any reference to the courts. Is it intended that there shall be differential treatment?
On that point, is the extension of curfew by tagging order for up to 12 hours a day, which will clearly be broken by the new policy, to extend beyond 12 hours a day, for those already the subject of curfew orders? Is it envisaged that that will apply only to those who fall into this category under the new home detention curfew and not to those who are sentenced by the courts? Is it intended that that 12-hour period shall be extended?
Lord Thomas of Gresford: My Lords, I am grateful to the Minister for repeating the Statement. We on these Benches welcome the Statement, although it is still tinged with some of the macho rhetoric which has been used to address the subject for the past few years. The opportunity is not lost, for example, to refer to the introduction of automatic life sentences and mandatory minimum sentences which we on these Benches consider not worthy of a government who project themselves as a reforming government.
The prevention of crime in the first place is the priority of the criminal justice system, but who commits the crime? Very often, crime is committed by those who have committed it previously. If prisoners have been

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warehoused for longer and longer periods with inadequate training and if they are then released into the community, they will return easily to the way of life that took them to prison in the first place.
The rhetoric of the past few years has had its effect. Judges instinctively responded by passing longer sentences and were pilloried in the popular press if they failed to do so. We had hoped that the new Home Secretary would not go in fear of the tabloid press in the way that sometimes appears. The pressures on the Prison Service as a result of longer sentences have caused it to fail in its vital function of rehabilitating those who are in its care.
However, we welcome this Statement because it recognises some important issues; for example, the problem of prisoners who come out of prison with very little money and support. It recognises the need to give prisoners an opportunity to structure their lives more effectively and rebuild the supportive relationships of family, home and job—all aspects that will discourage them from reoffending and, crucially, prevent further crime.
We do not consider it enough simply to put a tag upon a prisoner and leave him to his own devices. This should not be seen as a cheap alternative to probation work. Can the Minister inform us what community supervision is proposed to go along with the tagging? How much will it all cost? Equally important, if by this means the prison population is reduced will the resources thereby released be used constructively to provide fresh training and rehabilitation courses? We on these Benches hope that the Minister will be able to assist us.
Lord Williams of Mostyn: My Lords, I am grateful for the contributions that have been offered. I am a shade disappointed that the noble Baroness is not able to be more welcoming to an imaginative departure from our custodial regime. I can say without any fear of contradiction from any quarter that this is not Exchequer-driven. It is intended to manage what the noble Lord, Lord Thomas of Gresford, rightly identified as a very difficult period of transition from prison to what should be a new rehabilitated life. It is impossible for those who have not had to make that transition to grasp its difficulties and dangers. The fact is that our prisons are full of inadequate, petty offenders who very often are a menace to the public. At present they are not sufficiently assisted in their return to what should be a fresh start with family and the community. We cannot ignore the inheritance of a vast increase in prison population which was not anticipated by the former Home Secretary under the previous government.
A number of questions have been asked. This is not a response to the tabloid press in any way. This is a considered scheme which we hope will assure the public that their legitimate interests are being looked after; first, in the short-term, which is no longer than two months and, secondly, on a longer-term basis; namely, if a person is managed in his or her return to the community the opportunity for rehabilitation over the long term is much greater.
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The noble Baroness asked a number of questions which I attempted to note, but if I miss any of them I shall write to her. I make absolutely plain that this is not an amnesty, as has been considered by previous governments. As a scheme it applies only to those who are serving between three months and four years. The total number in that category is 26,000 out of the present total prison population of 63,000. I disappoint myself by returning every week to answer questions, for instance from the noble Lord, Lord Harris of Greenwich, when the figures appear to rise inexorably. However, one needs to look at reality. This sentence band presently attracts automatic release at the half-way point, and that includes burglars. That was the regime conducted under the previous government. One wants to be measured and cautious in what one says on these occasions.
Some categories of prisoners will be excluded. Those categories will be set out in detail in the legislative scheme. They will include those prisoners who are unable to comply with the scheme, perhaps because they do not have access to a place that can be curfewed, and those who represent a clear risk of breach; for example, those who are in custody for a breach of a curfew order by electronic monitoring imposed by the courts.
To reply to the specific question relating to Berkshire put to me by the noble Baroness, between July 1996 and June 1997 the figure was 35.
Baroness Blatch: Pathetic!
Lord Williams of Mostyn: My Lords, the noble Baroness says "pathetic". On this occasion I am simply the messenger, not the message. I simply give the fact. The noble Baroness also asked whether the courts would decide on recall. The answer is no. As the noble Baroness implied, the technology is now sufficiently advanced. I readily agree with the noble Baroness that it has greatly improved.
Baroness Blatch: My Lords, I am grateful to the Minister for giving way. My question was not whether they would go back without recourse to the court. That was made absolutely clear in the Statement. The question was whether there would be differential treatment of people who were serving curfew orders by tagging imposed by the courts and those who received home detention orders. Would criminals from one category go back to court to be returned to prison and the others go back on the mere say-so of a prison officer?
Lord Williams of Mostyn: My Lords, I was about to deal with that. Because the technology has improved Prison Service headquarters will decide recall on behalf of the Secretary of State and give any person who is adversely affected the opportunity to make representations. I remind your Lordships that a similar power already exists for those who are recalled from parole licences. This is not a new device.
Questions were put about the involvement of the probation service. There will be a risk assessment which involves the probation service where appropriate and assistance by way of supervision of appropriate

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prisoners. One must bear in mind that these questions must be individualised. Not everyone will have the full two months. It will taper down to two weeks.
We cannot say how many prisoners will be released early. We do not know what the overall effect will be on the prison population, except that we trust and firmly believe realistically that it will have an ameliorating effect on the prison population. We cannot give the number because we do not know what the take-up or failure rate will be. As with any prudent government, we shall monitor the scheme in practice with very great care. It is intended that the policy should be nationwide, and it will not come into effect until 1999.
As the prison population changes and technology improves we believe that it is prudent to deal with these matters in this way. The scheme has been carefully thought out and is restricted to those who are serving between three months and four years. No one will be released without a risk assessment programme having been carried out. I suggest to your Lordships that prison governors will be extremely prudent and cautious in using this particular device. But one cannot see in reason any well founded argument against a determined effort by the Government with the assistance of the Prison Service to manage that chasm between incarceration—the total deprivation of liberty—and what one hopes is the result of any prison sentence; that is, a return to the community and a fruitful life.
Lord Milverton: My Lords, I welcome the fact that Her Majesty's Government have decided upon this course. The principle is very good. I am glad that they have decided to carry further and improve what the previous government began.
As a parish priest one had visits from ex-prisoners; somehow they found their way to the vicarage or rectory. It was noticeable that, having been in prison for a short or a long time, they were so institutionalised and so used to having decisions made for them that they found it difficult and awkward to make their own decisions and did not know how to conduct themselves without help. As the Minister pointed out, it is important that when they come out they are given help to acclimatise themselves and become responsible individuals in society. I hope that the Government are successful in what they propose and I am glad of it.
Lord Williams of Mostyn: My Lords, I am very grateful to the noble Lord for that support. I believe that everyone with his experience, or comparable experiences in dealing with discharged prisoners, would come to the view that he articulated. It is an exceptionally difficult period. I hope that we are imaginatively using what is now available to us, which was not formerly; that is, modern technology to restrict liberty in a way which many people find more burdensome because it involves individual choice. They will be deprived of their liberty in their own home. There will be a saving of cost, and we believe that there
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will be a saving of misery to members of the general public who are not well served on every occasion by our present prison regime.
Lord Allen of Abbeydale: My Lords, can I ask a question about the role of the private contractor? As I understand it, if a prisoner is released, his performance will then be monitored by the private contractor and if he is in breach of curfew I think the Minister said that he will be immediately returned to prison. Who would pick him up and take him there?
Lord Williams of Mostyn: My Lords, the monitoring is very simple. One has the monitoring device attached in the prisoner's home and a tagging device attached to the prisoner's body. If the private contractor comes to the conclusion that there has been a breach, then the prisoner is returned to custody on the basis of a warrant, in other words, by a police officer acting on a warrant and not by the private contractor's employee.
Lord Ackner: My Lords, I agree with the noble Baroness, Lady Blatch, in that this is a dramatic U-turn. I do not agree with her that it is essentially Treasury led. I agree with the noble Lord the Minister that it represents a transition, but it represents a transition backed by the Government to the well-established principle that prison is a very expensive way of making bad people worse. That was the view expressed by previous Home Secretaries and adhered to until the advent of Mr. Howard as Home Secretary.
Ultimately, it has been realised that a grossly overcrowded prison system, coupled with the cutback in the finance available, means that there is no constructive time available in prison to provide even the hope of rehabilitation, let alone the probability of it being successful. That is the reason for what is proposed. It is a means whereby the Government get themselves off the hook upon which they have impaled themselves by accepting the minimum sentences and the automatic life sentences, despite the way in which both were criticised in this House prior to the change of government. I welcome the Statement as a step forward but I wish that the Government, in making a U-turn, would be a little more frank as to what motivated them.
Lord Williams of Mostyn: My Lords, I never look a gift horse in the mouth if at all possible; therefore I welcome the general support that the noble and learned Lord, Lord Ackner, has given. I venture gently to disagree with him. We are not getting off the hook on which we impaled ourselves. These are problems of long standing which do not derive from the automatic minimum sentences or the automatic life sentences. We are talking of a large number of persons who were sentenced under a regime which had no connection with those automatic sentences at all.
I well recognise the quotation which the noble and learned Lord provided to your Lordships. I think it was the noble Lord, Lord Hurd, when he was Home Secretary, who uttered those words. We are not concerned with a U-turn, because I do not recall that a

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previous government has ever suggested this scheme, or, therefore, that we ever resisted it. I suggest again that this is a good deal more important than the usual knock-about party point. We are trying to deal with returning into the community those who have demonstrated themselves not to be equipped, not fit, to live in that community for a certain period of time. It is in everyone's interests that that transition should be properly and imaginatively managed.
Lord Harris of Greenwich: My Lords, is the noble Lord aware that many of us agree with him that this is a particularly inappropriate subject on which to have routine party knock-abouts? Whether the Government have or have not done a U-turn is irrelevant, given the gravity of the situation which the noble Lord indicated a few moments ago, with the prison population already at 63,000. Will the Minister recall that he recently wrote to my noble friend, Lord Rodgers of Quarry Bank, indicating that if the present trends in sentencing continue the prison population is expected to reach 71,800 by September of 1999, a truly frightening figure? All this being said, we welcome what the noble Lord said about reducing the prison population in the way he described.
Can I put two questions? First, will the Minister recognise with me that a good quality risk assessment by the prison authorities for longer sentence prisoners is possible? It is extremely difficult, on the other hand, to have a risk assessment for a very short sentence prisoner. These people are being warehoused at the moment in very large numbers and some go in and out of prison without many prison officers recognising the fact that they are going through their particular establishment.
Secondly, the Minister referred to four new prisons. Were those four new prisons in the building programme of the previous government and, therefore, allowed for in the public expenditure plans of the previous government? Or is this a new commitment to public expenditure?
Lord Williams of Mostyn: My Lords, I do not regard this as an occasion for trivial tittering; it is much more important than that. My belief is, I think, shared by the overwhelming majority of your Lordships. If the noble Lord, Lord Harris of Greenwich, expresses a reasoned public concern about the state of our prison system and, therefore, the state of the public good, and I happen to welcome that, I do not see that it is an occasion for merriment.
The noble Lord raises the question of the figures. I did indeed write to the noble Lord, Lord Rodgers of Quarry Bank, with those figures. No one with any sense or sensibility can close his eyes to them. Risk assessment, of course, will vary according to the period of time that a prisoner serves. The longer a prisoner is in prison, I suppose in the nature of things, the deeper the risk assessment is likely to be. Equally, one has to bear in mind—I make no apology for repeating it—that all of these prisoners in the band I described will be released automatically, as of right, after half the sentence has been served. It is true that many petty
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inadequates are in and out of prison in a short period of time and that is something we constantly have to question. May I write to the noble Lord about his particular question, because in the moment or two available I have not been able to get specific information? I believe I know the answer, but I do not want to mislead him, even if inadvertently.
Lord Renton: My Lords, is the Minister aware that prisons are universities of crime, especially when they are overcrowded, and that therefore many of us welcome every effort being made by the Government to reduce the prison population so long as it is consistent with public safety? Will he therefore give us some idea of the degree of efficiency of the present tagging system, bearing in mind that he was kind enough to say that the first experiment was not fully successful?
Lord Williams of Mostyn: My Lords, I am grateful for the support of the noble Lord who has significant experience of these matters having himself been a Home Office Minister. I agree entirely that if one keeps men in prison without education, training, or skill opportunities, one is likely to have a dismal outcome. Prison will then perform the important but limited function of merely keeping a man or woman out of circulation for a short period of time. I do not overlook the importance of that, but I agree with the noble Lord that the over-arch must be public protection. That is why we want public support; that is why we have built in careful provision; and that is why we have limited the scheme in the way I described. We are confident that the technology is now capable of working on every occasion. It is a rash layman who puts his faith in science to that extent, but that is the information we have. It is sufficiently sophisticated to be a foolproof scheme.

Financial Services Act 1986 (Extension of Scope of Act) Order 1997
4.21 p.m.
Lord McIntosh of Haringeyrose to move, That the order laid before the House on 27th October be approved [11th Report from the Joint Committee].
The noble Lord said: My Lords, I must first apologise to the House for the fact that it was not possible to debate the Financial Services Act 1986 (Extension of Scope of Act) Order before it came into force on Monday 10th November.
When the Government issued their consultation document in May it was expected that the upgraded CGO system would come on stream at the end of August. By July the Bank of England had decided to delay the launch but without giving a further date. The existing form of paragraph 16A which is being amended presented a number of difficulties in drafting. Given the technical computing context, and the experience of the financial services regulators in operating the existing provision, it was particularly important that the drafting was done in close consultation with the regulators and

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the Bank of England. As with all legislation the paramount concern must be that the legislation should be workable. The Government were not ready to lay the order before the summer Recess but intended to do so when the House reassembled in October. It was only at the beginning of October, while the House was in Recess, that the bank announced that the system would go live on 10th November.
The order is made under a power within the Financial Services Act (Section 2) which allows a statutory instrument to be made with immediate effect but with the proviso that it shall cease to have effect if within 28 days it is not approved by Parliament. That is a particular procedure which is designed to allow regulatory protections to be applied immediately where circumstances require it in order to protect investors. Given that the upgraded CGO system was to be operational on 10th November, it was essential that the protection of the Act should commence on that day. The order was laid on 27th October and came into force two weeks later. The Bank of England and the regulators were, of course, aware of the timetable for the order. The bank agreed to alert anyone proposing to act as a sponsor of the requirements of the order of the need for authorisation. As it turned out, even by this stage, there are very few sponsored members and their sponsors are already authorised.
The order extends the definition of investment business in Schedule 1 to the Financial Services Act to cover the provision of sponsored membership services in the context of the upgraded Central Gilts Office settlement system. Its effect is to extend the protective mantle of the Act in terms of high standards and better security to people dealing in gilts.
The settlement system of the Central Gilts Office is already dematerialised; in other words, paperless. A number of firms have direct computer links to the system and their names appear on the central register.
The upgraded CGO system was, as I said, introduced on 10th November. It is designed to enhance the settlement of gilt repo transactions—which is the sale of gilts with a commitment to repurchase them at a later date at a particular price—and to introduce a facility to strip and reconstitute coupon-bearing gilts—which divides the repayment of the principal from the individual dividend payments and allows for each to be separately traded. It also provides a number of additional features, including a flexible membership structure.
As part of the more flexible membership structure, a new category of trader was introduced on 10th November, known as a sponsored member. The important feature is that the name of the sponsored member will appear on the central register even though the actual trading will be by someone else, a direct member or interface provider, who, for this purpose will be known as a sponsor.
The reasons for bringing "sponsors" within the definition of investment business in the Financial Services Act are twofold: first, sponsors will be interacting with the system on behalf of others, which creates the possibility of error, negligence or even fraud;
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and, secondly, the system will be similar to that operating in CREST where sponsors are already required to be authorised. It is likely that, in due course, the CREST and CGO systems will merge. The order is thus designed to improve the protection provided for investors and to provide consistency of treatment with CREST within the regulatory environment. I beg to move.
Moved, That the order laid before the House on 27th October be approved—(Lord McIntosh of Haringey.)
4.28 p.m.
Lord Mackay of Ardbrecknish: My Lords, the Captain of the Yeoman of the Guard will be relieved to hear that this is not nearly as controversial a matter as admission charges for museums. He will find that the Opposition, by and large, agree with the Motion. I shall not complain about the Motion being made now regarding something that is already in force, because I suspect that I can recall situations in which I was forced to do something similar. I see the noble Lord, Lord Eatwell, smiling at me and indicating that he probably harangued me on much the same issue. So I am being pretty careful about that.
I am in no doubt that it is important that the City moves into the new electronic age. Indeed, from the Government Dispatch Box I moved some of the affirmative orders that enabled CREST to start. This is but one more step on the road to ensuring that the City can compete in the modern world. That is extraordinarily important for our economy. I have no problems with the Motion.
Lord Bridges: My Lords, before speaking to the order, I should like to declare a recent past interest, having served for eight years as an independent member of the board of the Securities and Futures Authority, and, throughout that period, on its disciplinary committee.
Having read the account of the meeting of the Standing Committee in another place on this matter, and having read, in particular, the speech of the Economic Secretary, the substance of which has just been repeated by the noble Lord, Lord McIntosh, I have no doubt that it is right for us to assent to the order. At the same time, despite what the noble Lord, Lord Mackay, said, I cannot help feeling some mild surprise that this situation was not foreseen. It is not a situation that we wish to see repeated—that we proceed by order to ratify something which has already been in place since 10th November.
It is also pertinent to observe that the Financial Services Act 1986, under whose authority the order is to be implemented, is to wither away shortly. It is nearing the end of its life, given the announcement made by the Chancellor of the Exchequer—in May, I believe—of his intention to terminate the system of regulation established by the 1986 Act and to create a wholly new supervisory authority to be called the financial services authority. It is a matter of some concern to me that although the FSA is in the process

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of being set up—and many experienced staff are being transferred from the existing SFA—the new authority has no legal base whatever. I understand the Government's explanation that their legislative programme for the current Session does not permit the introduction of the necessary Bill until the next Session, but if discipline is to be maintained in the meantime, in effect under the auspices of the existing authority, there is surely a risk that some of those being disciplined when they have sufficient determination and resources to employ the requisite legal skills, may seek to have the disciplinary process overturned on judicial review on the ground that the new authority is acting ultra vires.
I urge the Government to obtain the necessary legislative cover for the new body to operate legally as soon as possible in order to avoid such a calamity. I would have supposed it possible that a single clause Bill might have been drafted, introduced and passed without controversy through both Houses of Parliament, but, from messages which reached the SFA from the Treasury, I understand that that was not possible. If nothing is done, I may find it necessary to return to the matter when we come to consider the Bank of England Bill, since it might be possible for such a clause to be inserted in that Bill. I am sure that the noble Lord, Lord McIntosh, will understand that I am speaking entirely as a private individual and I do not bear any message for him from the Securities and Futures Authority.
Lord McIntosh of Haringey: My Lords, I am grateful to both noble Lords for their response to the order and for their welcome of it, with provisos. The noble Lord, Lord Mackay, is right: I made sure that I was briefed on the fact that he had introduced the extension of scope orders which were comparable to this order. If he had complained in the way that the noble Lord, Lord Bridges, has complained I should have been able to quote them to him.
The principle that we should not be introducing orders to Parliament after they have come into effect is sound. I will convey to Treasury Ministers the message that it is undesirable and should be avoided if at all possible. The sensitivity in respect of ratification of an order which has already come into effect was the reason why I introduced my exposition of the order's provisions by an elaborate, perhaps even over elaborate, apology to the House. I extend that apology to the noble Lord, Lord Bridges, who made perfectly valid points about ratification of orders which have already come into effect.
I can reassure him about the legality of what happened in the establishment of the FSA on 28th October. The FSA is a change of name from the Securities and Investments Board and has the same status in law as the board. Provided that it does not go outside the functions of the SIB, it is not at risk of acting ultra vires and therefore there is no risk of the judicial review to which the noble Lord referred.
The powers of the FSA will be extended progressively. When the Bank of England Bill now before the House of Commons receives Royal Assent, those powers will he greatly extended with the transfer of powers from the Bank of England. But even as at
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present constituted, it is a legal body. It is the same body in law as the Securities and Investment Board and we do not anticipate the risk to which the noble Lord has referred.
Having said that, and I hope having reassured the noble Lord, Lord Bridges, I repeat my gratitude for the reception to the order and I commend it to the House.
On Question, Motion agreed to.

Shops (Sunday Trading &c.) (Northern Ireland) Order 1997
4.35 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs)rose to move, That the draft order laid before the House on 28th October be approved.
The noble Lord said: My Lords, I bring to the House today an order which introduces provisions broadly in line with those now in operation in England and Wales following the enactment of the Sunday Trading Act 1994. It may be helpful to your Lordships if I comment briefly on the order and then say a few words about the detailed provisions.
The purpose of the draft Shops (Sunday Trading &c.) (Northern Ireland) Order 1997 is to provide an urgently needed reform of the Northern Ireland shops law. It provides a modern, clear and enforceable code, replacing the existing unsatisfactory Shops Act (Northern Ireland) 1946.
The order broadly repeals and replaces the Sunday trading provisions of the 1946 Act to remove its restrictions on the goods which may be sold in shops on Sunday and allows small shops (those with a relevant floor area of not more than 280 square metres) to trade at any time on Sunday.
It restricts most large shops (those with a relevant floor area of more than 280 square metres) to a maximum of five hours trading between 1 p.m. and 6 p.m. on Sunday (other than Christmas Day or Easter Sunday). Similar shops in England and Wales may open on Sundays for a maximum continuous period of six hours between 10 a.m. and 6 p.m. The order allows certain large shops to trade without restrictions on Sunday.
District councils are responsible for enforcement of the existing shops law and continue to bear this responsibility in relation to the Sunday trading provisions of the order. It also gives district councils powers to prevent undue annoyance to local residents from deliveries to certain large shops early on Sunday mornings.
The order importantly provides employment protection measures for shop workers in relation to Sunday working which apply irrespective of age, length of service or hours of work and aim to ensure that shop workers are not compelled to work on Sundays if they do not wish to do so. Enforcement of the new employment rights will be by way of a complaint to an industrial tribunal.

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The order also repeals the other provisions of the 1946 Act, such as weekday closing hours and conditions of employment now considered to be out of date.
The order departs from the law in England and Wales in relation to the provisions in the 1994 Act which allow a large shop, operated by a person of the Jewish religion and closed on the Jewish Sabbath, to open without restriction on a Sunday, subject to certain conditions. Similar provisions have not been included in the order because they would be contrary to Section 17 of the Northern Ireland Constitution Act 1973. Section 17 renders void any Northern Ireland legislative provision which discriminates against any person or class of persons on the ground of religious belief or political opinion.
The order goes further than the 1994 Act in allowing large shops in holiday resorts designated by district councils to trade at any time, on up to 18 Sundays (other than Easter Sunday), between 1st March and 30th September in any calendar year.
The order also goes further than the 1994 Act on two minor points in relation to the list in Article 4 of those types of shops to be exempt from the restrictions on Sunday opening of large shops. Shops in bus stations have been included and the exemption for airport shops has not been restricted to those with a substantial amount of international passenger traffic, as is the case in England and Wales.
The decision to reform the Northern Ireland shops law was taken following a public consultation exercise in 1995 which resulted in a majority in favour of the changes. There is, however, a body of opinion in Northern Ireland which is opposed to the changes. This was also apparent in the majority of respondents who opposed the proposal for a draft order when it was published for comment in March 1996.
In recognition, however, of the concerns of those for whom Sunday is a special day, the Sunday trading hours proposed for most large shops have been reduced from a maximum of six continuous hours between 10 a.m. and 6 p.m. to a maximum of five hours between 1 p.m. and 6 p.m.
The Government have decided to proceed with the order because of the urgent need to reform the 1946 Act and the clearly demonstrated demand for Sunday shopping. In coming to this decision, the Government are aware that there are many people in Northern Ireland who have genuine concerns about the relaxation of the restrictions on Sunday trading. The order will, however, provide freedom of choice for those who wish to shop or work in shops on Sunday and for those who do not. I beg to move.
Moved, That the draft order laid before the House on 28th October be approved.—(Lord Dubs.)
4.40 p.m.
Lord Cope of Berkeley: My Lords, this is not a matter of party politics but of individual decision. Indeed, it is a difficult decision. We all remember the problems which the issue of Sunday trading law caused
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on a number of occasions while we were discussing the alterations to it in England and Wales, when the Conservative government tried to tackle the issue. It ended with the Sunday Trading Act 1994, to which the noble Lord referred. Indeed, some of us have the scars to remind us of those occasions, but I shall not dwell on that.
The starting point for this order, as indeed it was in England and Wales, is that the existing law is unsatisfactory. There is no doubt about that. But the reason for the longevity of the old law, which is repealed by this order, was the difficulty in agreeing to satisfactory change and the disagreements which existed about the way in which changes should be made. The existing law certainly has not lasted as long as it has because of its inherent merits or acceptability. The problem was the difficulty of finding an alternative.
Indeed, a prime reason for this order is said to be that the present law is disregarded and not enforced. That is probably the worst reason for proposing changes in the law, but it is a real one, nevertheless. In these post-Formula One days, we understand that practicability takes precedence over principle in government.
In practice, there is no doubt that the law needs changing and it is impossible to find a change which will please everyone. So far as I can judge, the Government have found a solution which has wide, although not universal, acceptance. I notice that the elected representatives of Northern Ireland in another place, while not entirely happy, certainly gave that impression and the Belfast Telegraph said that it was a sensible compromise. That sums up the situation.
It is a different and, in some respects, more restrictive law than in England and Wales but one would expect that, given that in Northern Ireland there is a much higher proportion of church-goers than there is on this side of the water. But I welcome the restrictions on large shops on Sunday mornings. I welcome the freedom from regulation of small shops. As a general point, I believe that we do not sufficiently exempt small shops from regulation. Their competitive position and weakened bargaining power means that the public needs less protection from them than from the great multiples.
I welcome also such control as there is on loading and, in particular, unloading on Sundays, although I should have preferred to see that control potentially last all day instead of only until 9 a.m. I have never been convinced that planning permission should be granted automatically, as it were, to shops just because they are no longer to be prohibited from trading on Sunday. It seems to me that future planning permissions may include restrictions for new or additional shops; for example, in relation to a shop near a church where there may be no permission to unload at all on a Sunday even if it were allowed to open.
In effect, this order, like the 1994 Sunday Trading Act in England and Wales, gives retrospective planning permission to all shops and prevents individual treatment which will be possible in future when planning applications are made. However, I must recognise that I could not convince my colleagues in

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government in that regard at the time that we were discussing the England and Wales Act so I do not press the matter too much now.
An important section of this order attempts to provide protection for employees who do not wish to work on Sundays, and the Minister referred to that. The Minister in another place seems to have been reluctant to spell out the experience of that protection in England and Wales. I believe that it is widely thought not to have been very effective. That is a cause for concern. It would be extremely helpful if the Minister could tell your Lordships how many cases in England and Wales have gone to tribunals and to what effect, because that is relevant to passing similar provisions for Northern Ireland, as we are doing in this order.
We know, of course, that cases which go to tribunals are the tip of the iceberg but they are at least the bit that we can measure. We can only guess at the size of the iceberg underneath which it is not possible to measure. More generally, are the Government sufficiently satisfied that the England and Wales protection is working to believe that the same protection will work in the case of Northern Ireland.
As I said, this whole order is a compromise. I have no doubt that it will give rise to anomalies in due course, although not so many as did the existing legislation; and it is an improvement in that respect. But it is also another signpost of the weakening of religious influence in our lives. It is no use increasing the freedoms and standard of living of our people if we depress the standard of conduct, and the Christian religion is our guide to that. That thought was expressed much more eloquently and effectively than I can manage in the passage of the writings of Lord Tonypandy that was read at his memorial service the other day. I believe it right to refer to that in the passing of this order. However, that is a deeper thought and I believe that we should let this order pass.
Lord Davies of Coity: My Lords, although I do not have any direct interest in this issue now, there was a time in the 1980s when my union and I were campaigning quite strenuously against the proposed changes to the trading laws in this country. We were supportive of the 1950 Shops Act. Noble Lords will remember that in another place on 15th April 1986 a decision was taken to reject the government's proposals, with something like 70 Conservative Members of the government not voting in accordance with the Whips.
There was widespread collaboration from the Christian Church, those who wanted to save Sunday, and from my trade union which wanted to protect the interests of its members working in shops up and down the country. We failed to have the 1950 Shops Act retained and, as my noble friend said, in 1994 the legislation was changed. But that campaign produced protection for shopworkers so that they would not be discriminated against in terms of promotion and employment if they refused to work on a Sunday. I am very pleased that my noble friend has included that provision in this order.
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I was interested to read recently that despite the fact that there have been increased trading hours and days in England and Wales, the fact has now been confirmed, as we were saying at that time, that the volume of trade has not increased as a result. However, costs have increased. There have been changes to family life and indeed, as the noble Lord said, to the Christian way of life, which we hope will not be damaged. But I rise primarily to congratulate my noble friend on including in the legislation protection for shopworkers in Northern Ireland.
Lord Alderdice: My Lords, I should like to express my thanks to the Minister for his detailed explanation of the provisions contained in the order. As he and other noble Lords will know, the observance of Sunday is still particularly important in Northern Ireland. Therefore, people will be looking with some attention at the provisions of the order.
There was a time when things were very different in Northern Ireland. I can recall my mother telling me that, in preparation for Sundays, all the shoes would be taken out and polished and the clothes laid out on Saturday evenings so that Sunday was, as much as possible, a day not only of religious observance but also one of rest.
Times have changed, not only in the fact that less observance of religious matters is to be found but also that those who do observe religious matters have changed their pattern. For many of those who are most involved it is less a day of rest and more a day of considerable—indeed, in some cases, almost frenetic—religious observance. Perhaps a return to a quieter observance of Sundays might be in the interests of many. I speak as a son of the manse who, in times past, found a considerable busyness at such times.
I mention that because the view is sometimes expressed that the only change there has been over the years has taken place among those who do not make so much religious observance on Sundays. That is not the case; indeed, there have also been other changes. It seems to me that the point raised by the noble Lord, Lord Davies, regarding the importance of having at least one time which punctuates our weeks, which enables people to take a rest and spend some time with their families and friends, is an important consideration in the health and welfare of our community, our family life and of people in general. When that is combined with religious observance it is, to my mind, particularly valuable. But even for those for whom religious observance is less important I still believe it to be an important social contribution.
Therefore, I welcome the provisions included in the order to protect those workers who wish, whether for religious or other reasons, to observe a break and a punctuation in the week. That is extremely important. Like the noble Lord, Lord Cope, I would welcome some comment from the Minister on how that has been observed and what the results have been under the 1994 legislation.
There are two matters that I wish briefly to raise with the Minister. One relates to the definition of larger shops. On the face of it, it seems a little as though the

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particular floor area given was somewhat arbitrary. But perhaps that is not the case and perhaps the Minister may be able to indicate whether there was any specific reason for that floor area being adopted.
My second question is perhaps a more extensive one than the Minister is prepared to address on this occasion. However, given the degree of erosion of employee protection that has taken place, not only in regard to Sundays but also in other areas, perhaps the noble Lord can tell the House whether that has motivated the Government to look at the question of the incorporation of the European social chapter in order to give better protection. I appreciate that that is a wider issue and the Minister may not wish to deal with it today, but I would certainly find it helpful if he could at some point comment upon it.
In broad terms it is clear that our society has changed and, indeed, is still changing. It is important, therefore, for legislation to keep pace with those developments. It is also important for us to hold to those things which are not only tradition for the sake of tradition but which are good traditions that help to benefit our society and community. Indeed, the observance of a day of rest on Sunday is one of the more important of those traditions.
Lord Molyneaux of Killead: My Lords, I am delighted to follow my friend, the noble Lord, Lord Alderdice. I am grateful for his reminder of the strictures on boot polishing for Sundays. I was never particularly aggrieved by that restriction because I was never terribly keen on shoe polishing, not even during my six-year service in the Royal Air Force. That got me into trouble on many occasions.
I have never been impressed by the explanation in England and Wales that the previous law on Sunday trading had to be changed because the law had been broken, and defiance of the law could not be tolerated. The unfortunate impression then given was that, if even a segment of the population broke the law, the law must be changed. I cannot help feeling that the increase in lawlessness generally in many fields since the changes in the 1994 Act—but not related to that Act—may be due in some measure to that concession to law breakers and those who benefited financially therefrom.
Another contradiction can be found in the criticism of the present Government for responding to representations from what is termed, "the Sunday observance lobby", which I know included our friends in the trade union movement. The same critics would pillory the present Government if they did not respond to pressure from what I term the "news industry", in this new and novel climate of mass hysteria and demands that something must be done, whether or not it be prudent or wise.
The reduction in Sunday shopping in respect of larger outlets to a period of five hours, starting specifically at 1 p.m. and finishing at 6 p.m., is much tidier and more readily understood than the earlier stipulation of six hours at any time of one's choosing between 10 a.m. and 6 p.m. As one would have expected, it is claimed that the greater degree of freedom granted to small
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shops will damage the giants and the multiples. I take the simple view that they are usually very well equipped to look after themselves. There is little evidence to support the assertion that they are in danger of being damaged, particularly in the light of the numerous mergers and takeovers in the recent past; and, indeed, even in the past week. That does not seem to me to display a lack of confidence in the future of those giants. In fact, a limited measure of support for small shops can, I feel, be justified by the drop in income caused by the development of giant shopping centres which has led to a complete distortion of trading patterns and practices.
Perhaps I may urge that the enforcement of loading and unloading regulations contained in Article 7 be more thoroughly and vigorously implemented than such provisions are in England. I should add that I have a vested interest of sorts, especially when I have to spend the weekend in London. I am sure that the 26 district councils will discharge these new responsibilities with their renowned efficiency. But they will need the support of the law and, most of all, of the Northern Ireland Office and its departments to a much greater extent than the support given to decisions of councils in regard to planning matters and roads, and various other services, for which the councils have been given added responsibility.
Finally, I welcome the clarification which will protect the rights of those who have a conscience about working on Sundays. However, I must say that I am greatly concerned by reports that some employers have already, in anticipation of this order becoming law, sacked people who have had, and still have, reservations about working on Sundays. This has happened despite the fact that those employees had received assurances that their conscience would be respected. The very thin excuse has been given that those assurances were given only verbally and not in writing.
I am aware that the unions have been consulted at all stages of drafting, but I should like to be assured that the Government will ensure that there is no wriggling out of commitments and undertakings given over the whole range of employment, including all of the shopping and ancillary occupations.
Lord Monson: My Lords, as someone who was very much involved in our deliberations on what ultimately became the Sunday Trading Act 1994, covering England and Wales, I am particularly interested in the order now before the House. It is, yet again, only an order: an unamendable order. That would not matter much if it only replicated a hypothetical Sunday trading statute covering England, Wales and Scotland, thereby harmonising Sunday trading more throughout the United Kingdom. However, it does not do that.
The Scottish law on Sunday Trading differs from that in England and Wales and the law in Northern Ireland will, in turn, differ from the two others. Yes, indeed, it does follow the wording of the 1994 Act very closely in many respects. One notices that, unlike that Act, it exempts shops at bus stations as well as railway stations, which is a welcome extension of consumer choice, as is the extension to airports handling domestic as well as

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international flights. Unlike the 1994 Act, it makes no provision "for persons observing the Jewish sabbath", and the noble Minister has explained why that provision is unnecessary.
The main difference with this order, as the Minister explained, is that large shops will open only for five rather than six hours on Sundays. The incidence of churchgoing in Northern Ireland, as has been mentioned, is much higher than it is in England and Wales nowadays, and therefore one can have little objection to the earliest permitted opening time being set rather later than it is on the mainland. However, the stipulated opening hours of 1 p.m. to 6 p.m., as opposed, for example, from 12.30 p.m. to 6.30 p.m., may make it uneconomic for many large shops to open at all.
I take the point made by my noble friend Lord Molyneaux, but, of course, many garden centres, of necessity, have to be classified as large shops in terms of floor area, although in no way could they be described as multiples and they are also therefore caught. Garden centres posed a particular problem when we were debating the law in England and Wales. The Minister said there had been widespread consultation and justified the five-hour limit on the grounds that there was a considerable body of opposition to the order being introduced at all. I wonder if the noble Lord can tell us roughly how many people—businesses, consumers and employees—were consulted and whether they were numbered in hundreds or in thousands. Can he tell us roughly what percentage were in favour of liberalisation of the law and what percentage were in favour of the status quo. Perhaps he can also tell us how those figures compare with the percentage in England and Wales who were consulted by means of opinion polls or by other means, let us say five years ago.
One notices also that the holiday resort exemptions terminate on the last Sunday of September, which can be as early as 24th September, despite the fact that in the first fortnight of October the weather can often be beautiful—the Indian summer phenomenon. There may be a valid reason for the limitation to the last Sunday in September, but because we are dealing with an order and not a Bill no one can move even a probing amendment on the matter. Considering how many long and passionate hours we spent debating the Sunday trading law in England and Wales—and I dare say the other place did as well—it is strange that we have no Bill so far as the law relating to Northern Ireland is concerned. I look forward to the Minister's replies to this point and the others I have raised.
5 p.m.
Lord Dubs: My Lords, I thank your Lordships for the very positive and supportive comments that have been made about the order and I shall do my best to deal with the points that have been raised. I am grateful to the noble Lord, Lord Cope, for his supportive comments and also for taking us through some of the tortured history of previous legislative attempts to reform Sunday trading. I very much share some of his memories as to how that happened. He
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did ask, as did the noble Lord, Lord Alderdice, how many cases had been taken to industrial tribunals in England and Wales. My information is that only about 30 such cases have arisen since the 1994 legislation came into force. Nevertheless it is our judgment that there are not many concerns about the effectiveness of the legislation. We think it is working pretty well. We do not believe, as a government, that there are many people working in this area who have a sense of grievance which has not been expressed to an industrial tribunal. In other words, we are reasonably satisfied that we are providing effective protection for shop workers and therefore we are, as it were, using the England and Wales experience as a basis for this order in respect of Northern Ireland.
The noble Lord, Lord Cope, referred to planning considerations. As I understand the position in Northern Ireland, it is this: Article 25 of the Planning (Northern Ireland) Order 1991 allows the Department of the Environment to impose conditions on planning consents. Planning consents can restrict opening hours even when they are otherwise lawful, provided there are relevant land-use reasons, for example, noise disturbance. From that I conclude—and here I must be careful because I have to deal with individual planning permissions on occasion—that where there is a particular local situation where noise disturbance would have a particularly damaging effect on people living locally, I argue that that would be a relevant consideration to be taken into consideration before planning permission were given under the Northern Ireland planning order. That also deals with the point made by the noble Lord, Lord Molyneaux.
My noble friend Lord Davies, who speaks from a great deal of experience of protecting the rights of shopworkers, referred to the Government's defeat in April 1986 in another place. I say to my noble friend: I was there, I remember it well. But on that occasion we were dealing with a plan to achieve total deregulation of shopping hours. There were many objections to that, based not on a wish to tame the law as it then was but on a wish to see partial deregulation, which in fact resulted in legislation for England and Wales, and indeed in this legislation. However, I thank him for his support for the measures which both he and I believe will protect shopworkers.
The noble Lord, Lord Alderdice, referred to the tradition in Northern Ireland that Sundays are better observed, or observed by more people, than in England and Wales. He also referred to the need to protect shopworkers, to which I have already referred. He asked about the definition of large shops and whether the 280 square metre definition is an arbitrary one or not. I am not sure whether these things are done totally by science and I know that he, as a scientist, will understand that a totally scientific approach does not always work. However, I think he would agree with me that it is necessary to have a limit which is clearly understandable and easily enforced in order to maintain a level playing field throughout Northern Ireland. In setting the limit of 280 square metres, we followed the law in England and Wales in respect of the 1994 Sunday Trading

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Act. The noble Lord may well ask: how did that legislation get there? I have to say that I am not aware of the limit causing any difficulty in England and Wales and I have therefore no reason for wishing to see it departed from in Northern Ireland. It is perhaps worth commenting that two of the campaigning organisations concerned in trying to influence parliamentary opinion in recent years—the Keep Sunday Special campaign and the Retailers for Shop Act Reform—were both supportive of the 280 square metre definition. That is not a scientific answer to the question but that is how definitions are made, and I believe it has some logic.
The noble Lord also asked about the social chapter. I am grateful to him for having given me warning that he would raise this matter. It has enabled me to give him an answer now which he may not have expected, judging by the comments he made when speaking earlier. The Government did agree at the Amsterdam conference to opt into the social chapter. There are two directives which will apply to the United Kingdom: the parental leave directive and the works council directive. It is hoped that these will be incorporated into domestic legislation within the next two years. I trust that this meets the noble Lord's wish to see the social chapter incorporated. That is the method by which it is to be done.
The noble Lord, Lord Molyneaux, also made some comments about the importance of Sundays in Northern Ireland, and I welcome his support for the hours of 1 p.m. to 6 p.m. rather than the more open-ended commitment contained in the England and Wales legislation. He asked about the power to enforce protection for shopworkers. Let me try to deal with that. First, a shopworker with two years' service is in any case protected from unfair dismissal by virtue of provisions in the Employment Rights (Northern Ireland) Order, and such persons may take a claim to an industrial tribunal. In addition, if a shopworker feels that he or she has been discriminated against, whether or not they have been working there for two years, he or she may take a claim to the fair employment tribunal under the fair employment legislation. I believe that there is a fair measure of protection for shopworkers. I hope that the noble Lord will feel that those measures are adequate.
Lord Molyneaux of Killead: My Lords, I am grateful to the Minister for giving way. My main concern was as regards those employers who, having read in advance the drafts of the order, concluded that Parliament might well approve the order, and took the precaution of dismissing those employees whom they knew had a conscience clause. I understand that a recent tribunal held that the employer had a perfect right to dismiss the employee because the assurance was given verbally and not in writing.
Lord Dubs: My Lords, I am not familiar with the details of that instance. I shall be happy to look into the matter and write to the noble Lord. My understanding is that before the order comes into
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effect, a two year period should provide protection. I assume that the noble Lord is talking about employees who have not been working for two years. However, I shall look into the matter and get in touch with the noble Lord.
I also welcome and agree with the noble Lord's comments about whether large shops would be adversely affected by the more liberal opening hours for small shops. I agree with him that large shops are unlikely to be so adversely affected that their operations would be uneconomic. I receive occasionally applications for planning permission. Indeed, the number of large supermarkets seeking rapidly to open in Northern Ireland—suggests to me that they believe that the Northern Ireland market is a promising one for them and are not deterred by the proposed legislation which will have the 1 p.m. to 6 p.m. limitation.
The noble Lord, Lord Monson, regretted that the procedure for these orders in Northern Ireland is by unamendable orders. I have some sympathy with that proposition. But we therefore consult more than would be the case in England and Wales. Therefore the orders are the result of information and opinions from many people and organisations in Northern Ireland. Indeed, the supermarkets coming into Northern Ireland would surely have been fully aware of our proposals through consultation. I think that I have met representatives from all the supermarkets in recent months. I am not aware that they regard that as a problem as regards their commercial operations.
The noble Lord also asked about the results of statistics after consultation in England, Wales and Northern Ireland. Perhaps the noble Lord will allow me to write to him. It will be complicated to go through all the figures. I am not sure that I have them at my fingertips.
He also asked about the exemption for large shops in holiday resorts: ending the summer holiday period on 30th September. We have to make a cut-off point somewhere. With the climatic changes that seem to be under way, if we continue to have warm autumns we would be under pressure almost to allow a holiday exemption throughout the year on climatic grounds. We need to arrive at a balance between those people who legitimately want Sunday to be a particular kind of day, and the wish to have some shops open on Sunday. If we are to extend the period, we should be undermining the balance. I believe that from March to the end of September is a reasonably long period as a definition of holidays. It is intended to give shops in holiday areas a sufficient economic basis for their operations, since they are particularly dependent on the summer trade. I think that we have the balance right; that is the reason for it.
In conclusion, I am grateful for the supportive comments made in the House today. I believe that when the order comes into effect in Northern Ireland it will be widely supported. I think that we have got the balance right. I commend the order to your Lordships.
On Question, Motion agreed to.

Industrial Pollution Control (Northern Ireland) Order 1997
5.15 p.m.
Lord Dubsrose to move, That the draft orders laid before the House on 28th October be approved.
The noble Lord said: My Lords, with the permission of the House I should like to discuss both the Waste and Contaminated Land (Northern Ireland) Order 1997 and the Industrial Pollution Control (Northern Ireland) Order 1997. I hope that I am in order in linking the two. It will save time if we deal with the orders together.
The main purpose of the draft Industrial Pollution Control (Northern Ireland) Order 1997 and the draft Waste and Contaminated Land (Northern Ireland) Order 1997 is to introduce in Northern Ireland provisions on industrial pollution control and waste management in line with those already in force in Great Britain under the Control of Pollution (Amendment) Act 1989, Parts I and II of the Environmental Protection Act 1990 and the Environment Act 1995. The orders will also bring the law in Northern Ireland into line with European requirements.
I believe that it will be helpful to the House if I say a few words about the detailed provisions of each order. The draft Industrial Pollution Control (Northern Ireland) Order creates a three tier system for the control of pollution from industrial processes to be administered by two enforcing authorities. It is fair to say that the tiers reflect the degree of potential pollution that might result from particular processes. The first tier deals with major industrial processes with the potential for serious pollution. They will be subject to a system of integrated pollution control. There will be about 20 such processes in Northern Ireland including power generation, chemical manufacture and cement manufacture. This means that harmful emissions to air, land and water will be regulated by a chief inspector appointed by the Department of the Environment.
As regards the second tier, the chief inspector will also administer a system of air pollution control in respect of processes with a significant capacity to cause air pollution. Such processes will include mineral, glass, galvanising and roadstone coating processes. Many of these processes have a long history of air pollution regulation under the Alkali Act dating from the 19th century.
However, as regards the third tier, the order also gives a new responsibility to district councils for dealing with a range of processes which have less potential to cause significant air pollution but which are more likely to impact directly on the local environment. Such processes will include cement blockyards, timber processes and paint spraying. This represents an important extension of the environmental responsibilities of councils and underlines further the vital role which they have to play in local environmental issues.
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In addition to conferring stronger powers on enforcing authorities to control pollution from industrial processes, the order also contains provisions to enable polluters who fail to comply with its requirements to be prosecuted. It creates a number of offences and penalties including a fine of up to £20,000, or up to three months' imprisonment, for the most serious infringements. There are also rights of appeal against the decisions of enforcing authorities.
Information about the effect of new developments on the environment will be made more accessible by the introduction of a requirement to advertise applications for authorisations in the press. Enforcing authorities will also be required to maintain registers of information about such applications. These registers will be open to public scrutiny.
A key element of the new controls is the requirement for industrial concerns to employ the best available techniques not entailing excessive costs, or BATNEEC, in order to minimise pollution and comply with the tighter controls on emissions.
Process operators will be required to pay fees and charges to cover the cost of assessing applications for authorisations. However, effective regulation means much more than just setting conditions in an authorisation. Regular inspection of processes will be required to assess operators' performance against authorisation conditions. In certain cases, enforcement action may also be necessary. A separate annual fee will be charged for these activities.
These charging schemes will also reflect the well-established principle that the polluter should pay for the damage which his activities may cause to the environment.
Noble Lords will be interested to know that during the consultation period comments were received from 54 individuals and organisations. The proposals were generally welcomed although I have made three specific amendments to take account of points raised by consultees. These cover procedures for dealing with appeals, the admissibility of evidence in legal proceedings and clarification of the powers of district councils to bring proceedings under the order.
I now turn to the draft waste and contaminated land order. As I have already said, the purpose of this order is to introduce provisions on waste management and contaminated land broadly in line with those already in force in Great Britain and to meet European requirements. The order is also a response to increasing demands from public and political pressure groups for tougher action on the waste problem.
The order will be a key element in the Government's overall policies for the protection of the environment in Northern Ireland. It will impose a new duty of care on all persons concerned with the keeping, control or transfer of controlled waste.
New powers will be introduced requiring any person who transports controlled waste in the course of business, or otherwise for profit, to register with the Department of the Environment. It will be illegal for any person not registered to carry or transport such waste.

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The present licensing system will be strengthened by introducing the concept of "fit and proper person". Entitlement to a waste management licence will depend on the ability of the applicant to demonstrate a degree of technical competence commensurate with the nature of operations undertaken and adequate financial provision to discharge the obligations arising from the licence.
Provision is also made for the separation of regulatory and operational responsibilities for waste, currently carried out by district councils, by the transfer of the regulatory controls to the department. These controls will be exercised by the department's Environment and Heritage Service, which was established as a Next Steps agency on 1st April 1996.
The order also emphasises the increasing importance of finding alternatives to waste disposal. The department will be required, as soon as possible, to prepare a waste strategy which will be a key measure for change in how we in Northern Ireland deal with waste in the future. In particular, it will set objectives to reduce the amount of waste generated and provide a framework to enable a significant new emphasis on materials recovery. The strategy will also build public confidence by providing members of the public with the opportunity actively to participate in sustainable waste management practices.
We hope to publish the draft form of the waste strategy next year. It will establish waste policy on a hierarchy: first, to reduce the overall amount of waste; secondly, to recover as much as possible; thirdly, to recycle waste; and, at the bottom of the hierarchy, to use landfill as a measure for disposing of waste.
District councils will also be required to draw up waste management plans for their areas. In addition to showing arrangements for the safe disposal of waste, the plans will also describe arrangements for local recycling and materials recovery schemes. There will also be scope for councils to undertake recycling initiatives and to make payments for recycling initiatives undertaken by others.
There will also be important new powers for the department and district councils to deal with contaminated land. In line with the well-established "polluter pays" principle, responsibility for remediation costs will, in the first instance, fall to the person or persons who caused the initial contamination.
Noble Lords will be interested to know that during the consultation period responses were received from 47 individuals and organisations, including 17 district councils. The proposals were broadly welcomed, although consultees did draw attention to a number of issues. In response to those, I have made seven amendments to the draft order. In the main, they deal with operational points raised by district councils.
Of particular concern to councils was the imposition on them of a mandatory duty to deal with the problem of fly-tipping. Following consideration of the arguments put forward, I have agreed that the power should remain discretionary and have amended the draft order accordingly.
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However, while I understand the difficulties which councils would have experienced in the exercise of a mandatory power, the problem of fly-tipping remains one which must be dealt with if we are really serious about protecting our local environment. I have therefore asked my officials to prepare, in consultation with district councils, a code of practice which will ensure that the problem is dealt with in an effective and uniform way across all council areas.
One of Northern Ireland's great strengths is the quality of the environment which it can offer to those who live there or come as visitors. These draft orders will provide improved systems of industrial pollution and waste management control which will help to ensure that the environment continues to be protected not only for ourselves but also for future generations. I am also confident that they will do so in a way which maintains the right balance between the need to protect the environment and the need to ensure that industry can continue to operate in a competitive way. I beg to move.
Moved, That the draft orders laid before the House on 28th October be approved.—(Lord Dubs.)
5.30 p.m.
Lord Cope of Berkeley: My Lords, clearly we are all in favour of environmental protection, which both orders deal with in their different ways. But, as the Minister said, we also want to see the Northern Ireland economy flourish. It is therefore important that the restrictions should not be so onerous as to deter or divert investment, and hence jobs.
In the case of Northern Ireland it is important that the controls are not out of line with those in force and being operated in the Republic of Ireland. It is, after all, the only land border in the United Kingdom and is therefore a very important point in this part of the kingdom.
The existence of agreed European Union directives provides some reassurance. However, we also know of the phenomenon known as "gold plating", the habit of over-egging the directives when turning them into United Kingdom legislation; and also of over-zealous application of the orders in this country by comparison with some overseas jurisdictions. Perhaps the Minister, in replying, will say a little about what the position is in the republic. In particular, will he assure the House that businesses in Northern Ireland will not find that as a result of the two orders, they acquire a regime which is more bureaucratic, expensive or onerous than that which applies in the republic?
The industrial pollution control order splits responsibility, as the Minister said, between the department and the 26 local authorities under the three-tier system. He gave some examples of the sort of processes that would fall on one side and the other of the various border lines. It is most important that the distinction between the different jurisdictions is clear, and that the border lines are as clear as possible. They are not comprised in the order in itself; they have to be settled separately and laid down. If not, there will be scope for all sorts of difficulties between the local authorities and the central authorities in Northern Ireland in enforcing the controls. Even from the brief

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list read out by the Minister it seems that there will be difficulty in making a precise definition of the edges, as to who is responsible.
As the local authorities are to do part of the job, it is also important that they do their best to act in a similar way to one another. If we have 26 totally different regimes in effect operating across the Province, then it will be extremely difficult for large companies which have to deal with a number of local authorities, each with their own interpretation and their own approach to a similar process. It will also be difficult for those who advise small businesses if the local authorities make different decisions in similar circumstances in different parts of Ulster.
My next point concerns the timing of the implementation of both orders, and in particular the one on industrial pollution. Industry needs time to adjust to new controls. Some of those will require expensive adjustments. It is much easier, as well as being much better, to build environmental protection into the construction of a plant rather than to try and "bolt it on" afterwards, and try to deal with the environmental protection at a late stage in the life of a particular process. A lot of process plant has a life of 10 years at least, and inevitably there will be a certain amount of bolting on. But the longer the timeframe, particularly for big and complicated processes, the better will be the environmental protection, even if it is a bit later, and the easier it will be for industry.
It is also important in some cases for industry to be able to get prompt decisions out of the machinery. Sometimes investment is necessary to fulfil a particular order which may be on offer. A tender has to be put in to try to obtain a job. If it will take a long time to discover from the authorities what environmental protection will be required to make the necessary investment to fulfil the order it will be difficult for industry to send in a tender promptly enough to secure the order. The provisions in the order are that there is six months before there need be a definitive reply to a request for permission.
I am also concerned about the level of fees in the waste and contaminated land order. Provision for fees is on page 31 but it does not indicate the kind of basis on which the fees and charges for licences will be made. Is it the intention that the fees should recover the costs of administering the controls that are provided for in the order, or is it intended to be a tax which will raise money from those who generate waste or are otherwise affected by the order?
Part of the reason for raising that point is that I notice that the provisions are different in the two orders in relation to fees. In the industrial pollution control order fees are referred to in Article 8, on page 15. Sub-paragraph (6) requires the department, in framing a scheme for the fees, to ensure that,
"the fees … are sufficient, taking one financial year with another, to cover the expenditure incurred by … the enforcing authorities".
A limit is provided to the fees that will be charged. But there is no equivalent provision in the waste and contaminated land order which can give rise to the
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suspicion that it might be a tax as well as merely the polluter paying. That is the phrase used by the Minister and it is a principle that we all support.
The noble Lord, Lord Renton, is present, so I am encouraged to raise some drafting points which occur on the orders. They are not the responsibility of the Minister but of the draftsmen who prepared the orders. It seems to me that they are some of the worst examples of the draftsman's art that have come before Parliament that I have had to deal with. We must remember, in reading such orders, that the restrictions must he used by businessmen, including small businessmen. Ideally they ought to be able to go to the order, look up the point and understand what it says. I do not believe that you can do so from looking at the orders, for two reasons: first, the complicated language used and, secondly, because much of it is done by reference to other orders in the past and, for that matter, orders and regulations in the future which have not yet been made.
Discussing the two orders together was a sensible move by the Minister. It gives us the opportunity to compare the different drafting styles that seem to have been used in the two orders. Page 4 of the industrial pollution order defines mobile plant as:
"plant which is designed to move or to be moved whether on roads or otherwise".
I am not sure why we need "on roads or otherwise". However, the waste order draftsman clearly thinks that that is a risky formulation which may not cover the situation. So he adds another sub-paragraph into the waste order. Page 10 states:
"Regulations may prescribe descriptions of plant which are to be treated as being or as not being mobile plant".
I do not believe that we need another set of regulations to introduce a different definition of mobile plant for the waste order. That is what makes it impossible for a businessman to look up the law, unless he has an encyclopaedic law library to begin with and plenty of time.
I could give many other examples. I should draw your Lordships' attention to the convoluted definitions of waste which occur in the waste and contaminated land order, but first I refer to the industrial pollution control order which on page 40 states:
"No condition shall … regulate the final disposal … on land of controlled waste (within the meaning of Part II of the Pollution Control and Local Government (Northern Ireland) Order 1978)".
I have not been able to find out whether that is one of the parts of the 1978 order that is being replaced by the other order. If so, it adds to the complications.
In the waste order, the first definition of waste refers us straight to Schedule 1 where a whole page sets out the different types of waste that are to be regarded as waste to be covered in the order. That is only the start of it. All the definitions or additional definitions are included in Article 2 of the order. For example, having already said that waste is the residues of various processes, it goes on to say that:
"'controlled waste' … means household, industrial and commercial waste or any such waste".

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Household waste is then defined in a whole section with five different sub-headings and industrial waste is similarly defined. The order then states:
"'commercial waste' means, subject to paragraph (3), waste from premises used wholly or mainly for the purposes of a trade … excluding … household waste; … industrial waste; … waste from any mine or quarry … agriculture … [or] waste of any other description prescribed for the purposes of this sub-paragraph".
Sub-paragraph (3) to which that refers states that:
"Regulations may provide that waste of a prescribed description shall be treated for the purposes of prescribed provisions of this Order as being or not being household waste or industrial waste or commercial waste",
and so on. The provisions go on and on, backwards and forwards from sub-paragraph to sub-paragraph. It is extremely difficult in some cases to work out what is meant by "waste". That is why I do not believe that this is one of the finest examples of the parliamentary draftsman's art that I have seen.
That leads me to the general question of whether the new Government have any plans to improve the quality of parliamentary draftsmanship, particularly to absorb some rules such as those suggested to us a long time ago by the noble Lord, Lord Renton. They related to improving the quality of drafting and making all such documents easier to read, particularly for the businessmen to whom it has to apply.
Despite all those criticisms, I think we should burden the statute book with the two orders. It is in the interests of the environment of Northern Ireland.
Lord Alderdice: My Lords, I thank the Minister for his explication of these two somewhat technical orders, as the noble Lord, Lord Cope, described them. I remark that the Minister, long before he came to his present office, had a great interest in matters of the environment. Since he has taken departmental responsibility in Northern Ireland he has exercised his interest in a way that has shown his commitment to and interest in these matters. We therefore welcome the orders. It is good to see environmental concerns being the basis for legislation. I do not believe I see much that would be unnecessarily hampering to industry, properly carried through.
There are two matters to which I wish to draw the Minister's attention. First, I am glad to see the Industrial Pollution Control (Northern Ireland) Order coming forward. I hope that it will help us in dealing with a number of matters not just of large industrial concerns but smaller matters, particularly the local businessman who is doing a bit of paint spraying in the street and thoroughly polluting the atmosphere of his neighbours. Those are the sort of simple and small matters which are nevertheless extraordinarily difficult to deal with.
I hope that the regulations will be so laid out that such minor but profoundly irritating matters will not only be dealt with, but will also be policed properly. Often such activities take place outside the normal nine to five working hours of those officers who set out to patrol and police them. That is a cause of considerable frustration for those who suffer from them and for those local elected representatives who try to take the matters
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up. Therefore I hope that when it comes to regulations, regard will be had to those practical matters of implementation.
I hesitate, in following the noble Lord, Lord Cope, to raise the question of definition of language. But there is one matter of definition to which I can perhaps draw the Minister's attention. It is contained in Article 29 of the Industrial Pollution Control (Northern Ireland) Order, where reference is made to a "trade secret". It is clear that when it comes to matters of national security the Secretary of State should decide what is a matter of national security. But it is not clear to me who decides what is or is not a "trade secret". I am sure that there are some in Northern Ireland who would make the terminology "trade secret" apply to all sorts of matters which the normal, reasonable individual would not think appropriate. Perhaps we can have guidance on who will make such a decision.
I welcome the encouragement in the Waste and Contaminated Land (Northern Ireland) Order in regard to recycling and a number of other matters to which reference was made. Perhaps I can take up the question of fees and licences raised by the noble Lord, Lord Cope. I am not clear whether the fees will be simply to cover administration or whether they will refer to the principle, now widely and properly accepted, that the polluter should pay—not a tax, as the noble Lord, Lord Cope, said, but something that nevertheless covers the cost of making good any damage that is done by the waste matters to which the order refers.
Apart from those minor requests for information, clarification and definition, we warmly welcome the two orders and the considerable protection that they will afford the environment and the people of Northern Ireland.
5.45 p.m.
Lord Molyneaux of Killead: My Lords, in regard to the Waste and Contaminated Land (Northern Ireland) Order, I am sure that the Government were correct in rejecting suggestions for an independent environmental agency for Northern Ireland. I appreciate the argument of the noble Lord, Lord Cope, that co-operation is needed so that a large company straddling council boundaries is not put in the position of having to deal with three of four separate authorities at the same time. Even if such a body was given co-ordinating powers, it would simply create yet another layer of authority and would not be right. We must bear in mind what has been said in regard to the difficulties which may arise when various people, given authority for the first time, in their zeal create problems for an undertaking or a new company investing in Northern Ireland when there is urgency about their becoming established without too much red tape.
I suppose it makes sense to allocate to councils some influence in regard to dealing with fly tipping. It would be manifestly unfair to burden councils with full responsibility, given that the practice of fly tipping has vastly increased since the Treasury imposition of the landfill tax. In common justice, the main costs of enforcement should be borne by the department, which

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is much more likely to be reimbursed by the Treasury than is a humble district council. The Treasury, whose landfill tax caused the vast increase in fly tipping, should bear responsibility.
In response to consultations the department agreed to. reimburse some of the costs of the order and sums of money in that regard have already been set aside, as indicated in the order and explanatory papers. I hope that those moneys, earmarked and set aside by courtesy of the Treasury, will not be eliminated by any subsequent Budget.
Not unexpectedly, costs and charging are the main issues in the Industrial Pollution Control (Northern Ireland) Order. Concern in that regard has also been shown by noble Lords who have contributed thus far. I accept that the principle of "polluter pays" is reasonable. But while the polluter may pay, will such reimbursement be complete and total, particularly in relation to the district councils? The council will have incurred costs, particularly in the southern grouping of councils where problems may arise due to the land frontier being involved. Also, will there be prompt reimbursement? Delays are not uncommon, particularly in regard to legal costs and charges.
Perhaps I may express support for the guidance given for the avoidance of double charges, double penalty or double taxation in the case of two processes being carried out on the same site or in the same location. I also welcome the assurance that the department will issue comprehensive guidance which will be updated frequently. That is extremely important in view of the rapid changes in technology which have the effect of making regulations obsolete. Perhaps that request could be embodied within the suggestion of the noble Lord, Lord Cope, for an English translation of the regulations.
I warmly welcome the Government's sympathetic response to requests that various appeals should lie to an independent body rather than to the department. I am sure it is right that the department accepts the principle that the appeal system should be seen to be absolutely independent. I am reassured by the fact that such acceptance of principle has been embodied in the order.
Finally, your Lordships may have noticed that the orders confer additional powers on the 26 councils in Northern Ireland. They, along with the Parliament of the United Kingdom, are the governing mechanisms and bodies of the United Kingdom. It is no coincidence that the same applies to England, Scotland and Wales. We are therefore on all fours in that regard. Therefore, if the present Stormont high wire act fails, we would simply have to use constructively and perhaps to an even greater extent those two institutions which are tried and tested.
Lord Dubs: My Lords, I thank all those who contributed to the debate. In general I thank them for their supportive comments. I appreciate that these orders concern technical matters. I feel as though I have been subjected to a Select Committee type inquisition rather than a debate. However, without taking up too much of the House's time, I shall do my best to answer specific points.
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The noble Lord, Lord Cope, concluded with a criticism of the drafting of the orders. In making those criticisms he echoed comments that I made in the other place in relation to the drafting standards of his own government. We have had 18 years of this sort of drafting and if parliamentary draftsmen are indulging in bad habits it is because his government allowed them to adopt those bad habits and did not challenge them. Therefore I say that if he had put the matter in order, we would now be doing quite well.
Lord Cope of Berkeley: My Lords, I thank the Minister for giving way. I entirely agree with him. The reason I specifically exonerated the Minister from responsibility for the drafting was because I struggled, as a Minister, on a number of occasions with drafting that I considered unsatisfactory, and almost invariably lost. The defence mechanisms of the draftsmen for their specific formulations are extremely well worked out and difficult to challenge. I therefore appreciate the difficulty from the Minister's point of view. Nevertheless I believe now, as I believed in government, that the rules set out in an excellent report many years ago by my noble friend Lord Renton are valuable and would be best put into practice.
Lord Dubs: My Lords, I appreciate what the noble Lord says. I know he exempted me from the criticism when he started making his comments. I am sensitive to the need for government to produce things in comprehensible English. I find there is a difficulty when legislation refers to previous legislation, which is a feature of so many Acts of Parliament and Northern Ireland orders. It is quite difficult to unscramble that problem and find a way of not having to make cross-references. However, as a general proposition, I very much agree with what the noble Lord said. I shall do my best. But he has asked me to commit the Government to improving the drafting of English. I am sure that the Government want to do that, but it is a difficult task.
I turn to the specific points raised in relation to the orders. The noble Lord said that there should be a level playing field between Northern Ireland and the Republic of Ireland. The republic has an Environmental Protection Act which mirrors the Environmental Protection Act 1990 in Britain. That Act represents the principal body of controls on which these orders are based. We will not be prejudicing the performance of Northern Ireland industry. Indeed, I would hope that, by improving the environment, we may well be helping Northern Ireland industry. But I certainly would not want Northern Ireland industry to be unfairly impeded in its task of being as competitive as possible.
I was asked about the timing of implementation. Once the draft order comes into operation, new industrial processes will automatically be subject to its provisions. However, in the case of existing processes, it is proposed to have a five-year phasing-in period, during which time different sectors of industry will be called in for authorisation in accordance with regulations which will be made under the draft order. We want to be sensitive to the difficulties that industries may face and

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give them a decently long phasing-in period. But we are drawing a distinction between existing processes and new processes which will be set up in the future and which will have to be subject to the new provisions.
I was asked whether the draft order will be applied by all district councils responsible for its application; in other words, whether we will take action to ensure evenness of application. We place considerable emphasis on the role which will be played by district councils in controlling air pollution in their areas. The noble Lord, Lord Molyneaux, and other noble Lords made this point. My department will have general oversight of district council functions and will seek to ensure that they enforce the provisions of the draft order on a consistent basis to avoid variations in standards between one district council and another. It would clearly be unfair to enterprises and businesses that operated in more than one district council area to have to conform to different standards. We shall seek to achieve as much as possible uniform standards from one district council to another in order to make that fair to businesses.
The noble Lord, Lord Cope, asked how one would define which process falls into which category. The draft order seeks to introduce new controls in a way which will take account of local circumstances and impose the minimum additional burden on industry. For this reason the chief inspector will assume responsibility for processes subject to the new integrated pollution control arrangements and also for processes which are currently subject to air pollution control by him. District councils will assume responsibility for other processes subject to air pollution controls. The prescribed processes and substance regulations to be made under the draft order will clearly designate processes to each of the categories. We shall make that clear in the regulations in such a way that I hope there will be no misunderstanding or confusion about how we wish the arrangements to work.
I was also asked whether instances of pollution control will be dealt with quickly. The system of control proposed would require prior authorisation of processes. This will allow environmental protection measures to be considered at an early stage and to be, as it were, designed into the process. Any business setting up would be able to plan its process in the light of the legislative requirements. I hope that will be helpful to businesses.
The noble Lords, Lord Cope and Lord Alderdice, asked about fees and charging methods. In line with the well-established "polluter pays" principle, to which reference has already been made, fees and charges will be set at a level which will enable enforcing authorities to recover the full costs in administering the new controls. The detail of the charging schemes will be the subject of wide-ranging consultation with interested parties so that there will be proper understanding of how these fees will work.
I was asked about the definition of "waste". That replicates the legislation in Britain and is designed to ensure that in all respects it meets European requirements. The noble Lord, Lord Cope, made some
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play of the different types of definition under the heading "Is this good and clear English?" I repeat that I sympathise with the points he made. But we believe that the definition must provide a degree of flexibility in order to anticipate future developments and movement in what constitutes waste. Perhaps we had to be less precise than he would have wished; perhaps we had to have complicated definitions; because we wanted to allow for future industrial processes as well as existing ones.
I was asked about overzealous application of the controls. Operators can appeal against any condition of an authorisation if it is believed that the enforcing authority has placed an unreasonable requirement on the operator.
The noble Lord, Lord Alderdice, asked about disclosure of information that would be seen to be commercially confidential. The question of whether information for disclosure under Article 29 relates to a trade secret or is commercially confidential will have to be determined by the enforcing authorities. The department will publish guidance to assist enforcing authorities in making such determinations and enforcing authorities will be encouraged to give careful consideration before disclosing information under this article.
The noble Lord, Lord Alderdice, also asked about regulations dealing with small operators or operations. The regulations are comprehensive in specifying the processes to be covered by the order. Enforcing authorities will be proactive in enforcement of the legislation.
The noble Lord, Lord Molyneaux, asked about waste management licences. The draft order is based on the polluter pays principle. Therefore, the charges imposed for waste management licences will reflect all the necessary costs associated with the department's enforcement activities, including auditing operations and enforcement of licensing conditions. I take the point made by the noble Lord about the need to reflect the true costs of different waste management options, but I feel that the answer lies in the development of more sustainable waste management practices. The landfill tax has been very effective in doing just that, by reflecting the true cost of disposal to landfill, thereby persuading consumers and industry actively to minimise waste production and promote more sustainable practices. Consumers and industry are still taking time to develop strategies to reduce the amount of waste going into landfill. So I would expect the landfill tax to go on having an impact on the people who produce material for landfill.
The noble Lord, Lord Molyneaux, asked about fly tipping. District councils are best placed to identify and deal with fly tipping in their areas. It is right that the costs involved in such activities should be borne by ratepayers. I appreciate that the noble Lord will say, "People who fly tip may move from one district council area to another". There is a problem there, but I think that at a local level district councils are probably in the best position to deal with the problem. I concede that it is a problem. There are cowboys who fly-tip by night

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and cause many problems. I am sensitive to the difficulties, but I believe that district councils are in a good position to deal with them.
The noble Lord, Lord Molyneaux, also asked for fast-track applications for authorisations involving new investment. I think that I have already dealt with that. The draft order required applications for authorisation to be determined within a maximum of six months of being submitted to an enforcing authority. However, in the case of applications involving new investment, enforcing authorities will be encouraged to accord them a higher priority than other applications and to determine them in a shorter time.
We do not want to place bureaucratic controls on businesses. We want businesses to be able to operate well. We want to ensure that the system and the department are sensitive to the need for quick decisions; otherwise businesses will be delayed and that would not be right.
I was also asked about charging schemes. The cost to district councils of administering the new controls will be met by the charging schemes provided by the draft order. The charging schemes will be designed to facilitate full cost recovery. It is expected that charges will be set at a level that will enable district councils to recover the costs involved in authorisation, inspection and enforcement activities.
The orders are technical and I apologise to the House for the technical nature of my answers. I believe that these two orders will further protect the environment of Northern Ireland. I believe that the methods by which we are seeking to achieve that are sensitive to the needs of business and will not be excessively bureaucratic. I hope that in future we can achieve that by better language than has been used in the past.
On Question, Motion agreed to.

Employment Rights (Dispute Resolution) Bill [H.L.]
6.2 p.m.
Report received.
Clause 5 [Legal officers]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 1:
page 3, line 45, leave out from ("for") to end of line 2 on page 4 and insert ("the words "provide that" onwards substitute "provide—

(a) that any act which is required or authorised by the regulations to be done by an employment tribunal and is of a description specified by the regulations for the purposes of this paragraph may be done by the person mentioned in subsection (1)(a) alone, and

(b) that any act which is required or authorised by the regulations to be done by an employment tribunal and is of a description specified by the regulations for the purposes of this paragraph may be done").

The noble and learned Lord said: My Lords, with this amendment it may be convenient to your Lordships if we discuss also Amendments Nos. 2 and 11. In Committee a number of noble Lords expressed concern about the extent of the powers which were to be entrusted to legal officers. I indicated my understanding,
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and my noble friend Lord Haskel confirmed, that the intention of the Government was to confer on legal officers a limited range of functions in order to relieve chairmen for other work. They would not conduct full tribunal hearings. They would not conduct pre-hearing reviews nor determinations under Clause 2. As I understand it, the kind of tasks which the Government had, and have, in mind, are disposing of cases which are settled or withdrawn; considering applications for postponements; extending time limits; making orders for further and better particulars and dealing with discovery of documents.
As my noble friend explained, the intention is to conduct a pilot scheme and to abstain from concocting a hard and fast list until it is possible to study the outcome of that scheme. However, the Government's intention is not made clear in this Bill and there were those of your Lordships who felt that, if the power was not intended to be widely exercised, it should not be widely taken.
The noble Lord, Lord Lester, has tabled an amendment to confine the jurisdiction to interlocutory orders or decisions on an interlocutory matter. I understand and sympathise with the noble Lord's wish to indicate in the Bill that the powers of legal officers are not intended to be coterminous with those of chairmen. The noble Lord will, of course, speak to his amendment in due course, but it may assist if I explain now what I understand to be the Government's difficulty with it. My noble friend Lord Haskel will correct me if I have misunderstood. I hope, however, that I have understood it correctly because I share the difficulty.
Amendment No. 2 would simply be too restrictive. It is not wholly clear what is "an interlocutory matter", but it is not self-evident that issuing an order to dismiss proceedings where the application has been withdrawn is an interlocutory matter. Similarly, issuing a decision where a settlement has been reached is probably not an interlocutory matter although as far as I am aware it has not been decided. I cannot believe that anyone would wish to exclude those functions. However, I agree with the noble Lord, Lord Lester, that there should be some indication in the Bill that the power to confer functions on legal officers is not intended to be coterminous with the jurisdiction of the chairmen.
I am most grateful to my noble friend Lord Haskel and his officials because they have advised me on this matter, which is not an easy one. I hope that noble Lords will forgive me if I now spend a few moments on the technicalities.
Section 4 of the Industrial Tribunals Act 1996 draws a distinction between a chairman being a tribunal for certain purposes or part of a tribunal, and a chairman acting for a tribunal. Perhaps I may paraphrase. Subsection (1) provides that normally a chairman and two other members, or in certain circumstances one other member, constitute a tribunal. The chairman is a tribunal (even when sitting alone) in the circumstances set out in Section 4(2) and, exercising that jurisdiction, he may conduct a full hearing in the circumstances set out. Under subsection (6) he may be authorised by regulations to act for a tribunal for certain purposes.
By Rule 6 made pursuant to the power conferred by that subsection, he can make orders for discovery and conduct pre-hearing reviews and he can make witness orders. He does that not as the tribunal, but for the tribunal.
The Bill does not seek in any way to amend the provisions of subsections (1) and (2). It is only a chairman who can form part of a tribunal under subsection (1) or who can constitute a tribunal under subsection (2). The Bill will not alter that position. As presently drafted, the Bill states that the person who may be authorised to act for a tribunal under subsection (6)—that is, a person who may deal with certain matters falling short of a full hearing—may be either a chairman or a legal officer. As my noble friend Lord Haskel explained, it was never the intention that the jurisdiction conferred on them under that subsection should be the same for chairmen and legal officers. However, that intention does not appear on the face of the Bill.
My amendment seeks to make it clear that there are intended to be two lists of functions authorised under subsection (6)—one for chairmen and a different one for legal officers. My amendment does not seek to specify what those respective lists should comprise. That is the whole purpose of providing for regulations. However, the amendment seeks to make the position clear.
I take further comfort from what I believe to be the Government's intention—I hope that my noble friend, Lord Haskel, will confirm this—that, before any regulations are drafted, the Government will consult fully with the respective tribunal presidents for England and for Scotland and with the Council on Tribunals and, accordingly, I declare an interest. I should add that the amendment has been discussed with the respective tribunal presidents for England and for Scotland and that my understanding is that they are content. In those circumstances, the noble Lord, Lord Lester, may feel able not to press his amendment, but I await his reaction with interest. I beg to move.
Lord Lester of Herne Hill: My Lords, I am extremely grateful to the noble and learned Lord, Lord Archer of Sandwell, for his very useful explanation and his sympathy for the object of my amendment. I shall speak to Amendments Nos. 1 and 11 and at the same time to Amendment No. 2 which stands in my name and that of the noble Lord, Lord Renton. When the Bill was in Committee I was one of those who expressed concern about the breadth of the delegated powers conferred by Clause 5 to empower the Department of Trade and Industry to use subordinate legislation to authorise legal officers to exercise any of the judicial powers, so it seemed, conferred on the chairmen of industrial tribunals. This appears to be one issue that escaped the very careful scrutiny of the Delegated Powers Scrutiny Committee which in its report did not comment upon the breadth of the powers contained in the Bill.
As an object lesson it is perhaps worth spending a moment or two on the history of the matter. The Notes on Clauses on Clause 5, as pointed out in Committee, were expressed much more narrowly than Clause 5 itself, being confined to interlocutory matters. Since the
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Committee stage a number of important letters have been sent to the noble and learned Lord, Lord Archer of Sandwell, myself and no doubt the Government. In one of them, from a Mr. Webster, the secretary to the Association of Industrial Tribunal Chairmen (Scotland), it is explained that nothing in the Green Paper of the previous government or the consultation document indicated that legal officers were intended to have the very broad powers conferred by Clause 5. Similar concern was expressed by the new president of the Industrial Tribunal of England and Wales, Mr. John Prophet, and by the President of the Industrial Tribunals (Scotland), Mrs. Doris Littlejohn. That is the background.
Your Lordships will remember that during Committee stage the noble and learned Lord, Lord Hope of Craighead, the former Lord President, made an important intervention which led me to be content with Clause 5 as it stood. Since then he has very kindly approached me. He asks me to apologise for the fact that owing to a prior engagement in Edinburgh he cannot be present during the debate this evening. But he has asked me to refer to two particular points that he would himself have made this evening had he been able to have been present. I hope that your Lordships will forgive me if I quote his letter rather than paraphrase it. He writes:
"The first is that there is, in my experience, a critical distinction between orders which relate to interlocutory matters—to matters of incidental procedure—and matters which involve questions of law or questions where the facts may be in dispute. The range of issues which may fall within the description of incidental procedure is very wide and probably incapable of precise definition in primary legislation. That is why I said that it would be unwise to try to define this too precisely in the clause. But if there is the slightest risk that the power which is given by this clause will be used to enable legal officers to decide matters which involve questions of law or questions where the facts may be in dispute, it should be met by a qualification in the clause to prevent the power from being exercised in this way.
"The second point is that the experience to which I referred at the Committee stage was that when I was a senior judge in charge of a rule-making function which had been delegated to the court itself. It was possible for me in that capacity to exercise a close judicial scrutiny over the detail of the rules which enabled the clerks of court to deal with matters of incidental procedure, in order to ensure that the issues which required a judge's decision were not dealt with in this way. In practice therefore it was left to the judges themselves to decide what matters could safely be delegated. In such a system, with careful handling, the system of delegation had advantages in the saving of time and money. So I was able to support the idea in principle, and—with careful attention to the detail—to achieve results which were acceptable.
"As I understand the proposal in this clause, however, the matter will be in the hands of the Minister and his department, as the delegation to legal officers is to be dealt with by means of employment tribunal procedure regulations made under Section 4(6) of the 1996 Act and not by the tribunals themselves or by the President. This aspect of the matter increases my concern that, in the interests of justice and to prevent misuse of it, the clause should be suitably qualified".
I do not apologise for reading out that letter because it comes from the highest possible authority with great experience. The question before the House in regard to Amendment No. 1 is whether it deals with the position satisfactorily. I accept that the amendment is a great improvement in that it will ensure that the subordinate legislation will describe the functions to be given respectively to the chairmen and to legal officers.

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Furthermore, if the Minister gives an assurance that there will be widespread consultation with the tribunal chairmen, the Council on Tribunals and users of the system, that is to say, advocates, employers and trade unions—representatives of the consumers—that will go a great deal towards meeting the concerns that a number of noble Lords have expressed.
The question then is whether one should seek to go further and fetter the powers by limiting them to the making of interlocutory orders and dealing with interlocutory matters. I have heard what the noble and learned Lord has said about the problem of definition. I am bound to say it is not my experience at the Bar that there is the slightest difficulty under the Rules of the Supreme Court in deciding what is or is not an interlocutory matter. But I appreciate that there may be something encrusted in the legislation which makes it peculiarly awkward for the draftsman to do the necessary surgery and to stitch up after the surgery.
I welcome the first amendment and support it, but I am anxious to hear what the Minister says about the concerns of the noble and learned Lord, Lord Hope, and how to avoid the mischief to which he refers before I make up my mind as to what to do with the amendment standing in my name and that of the noble Lord, Lord Renton.
6.15 p.m.
Lord Renton: My Lords, I have a long-standing engagement some distance from your Lordships' House and I am afraid that I must leave in four minutes' time. I hope that I may be forgiven for making a very brief intervention. I appreciate the immense amount of trouble that the noble and learned Lord, Lord Archer, has taken in tabling Amendment No. 1. I believe that it does no harm but does not do quite enough good. There is an element of uncertainty about it which is something that often troubles Members of your Lordships' House.
This is a revising Chamber for primary legislation but it deprives itself of any authority with regard to making another place or the Government think about secondary legislation. The effectiveness of Amendment No. 1 depends upon the contents of regulations over which we have no influence. I have that doubt about Amendment No. 1.
I believe, however, that Amendment No. 2 is essential. I am very grateful to the noble Lord, Lord Lester, for drawing my attention to it beforehand so that I can add my name. I fully support the amendment because in a direct way it limits the powers to delegate to a legal officer, who may not be a person of great experience or standing, to interlocutory matters. I believe that is reasonable and necessary and I very much hope that, whether we get a full reply or not on these points tonight, the Government will, nevertheless, consider very carefully in the further stages of this Bill the desirability of accepting Amendment No. 2.
Lord McCarthy: My Lords, not for the first time the noble Lord, Lord Renton, helps me when he says that he is more or less satisfied with the amendment of the noble Lord, Lord Lester. I hope the noble Lord,
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Lord Lester, remains satisfied with his amendment because the noble and learned Lord, Lord Archer, has explained to me his amendment and if he has explained it, it must be clear, but I cannot follow it. I do not think, if I could follow it, that it would help very much because he says that there are going to be two lists. The noble and learned Lord says that they will only put the tasks of the legal officer on the first list, but he does not tell me what will be on the first list and he does not tell me what will be on the second list. He does not tell me whether subsequently he might transfer something from the second list to the first list. So what is the distinction? Therefore, everything could go.
Lord Archer of Sandwell: My Lords, I am sorry if my explanation was not followed by my noble friend. We could probably differ as to where the responsibility for that lies. The whole point about giving power to make regulations is that the regulations can add to or take from a list.
Lord McCarthy: My Lords, that is why we want something on the face of the Bill. That is precisely what it is all about. You are not helping us if you give us two lists and then say that you will fill them in later on and shift things about from one to another as it seems fit. That does not help. The reason why we are worried, of course, as the noble Lord, Lord Lester, said, is because of the Notes on Clauses. Ministers have said from time to time that they would be satisfied with the interlocutory duties, but first Notes on Clauses said that they wanted some interlocutory duties that are currently carried out and then they made a list of the interlocutory duties that would be included. If they had stopped there and told us that that was the list and that they were not going to add to that list, we might have been lulled into a state of satisfaction; but they then went on to say—and I would like the Minister to tell me whether they still say this—in paragraph 4 of the first Notes on Clauses,
"The amendment to Section 4(6) will enable the rules of procedure to give legal officers the same power as a chairman under the rules. However, the intention is initially to limit their role to the administrative or interlocutory duties which are currently performed by a chairman".
In other words, subsequently we may add to these lists. Later, they produced another set of Notes on Clauses and, strangely and subsequently, they took out the word "initially". If I were to read paragraph 4 of the second list one would see that the word "initially" has disappeared.
My question is, do the Government think, as the noble and learned Lord, Lord Archer, thinks, that they can pop things in and out, from one list to another and that they can add new things subsequently which are not there initially? If they think they can, I must say I am surprised.
Baroness Blatch: My Lords, I am grateful to the noble Lord, Lord Lester of Herne Hill, for dealing with the technicalities because I hesitate to intervene in this debate with such learned people around me. Could I confirm that I too would wish to raise the whole issue of the breadth of the delegation, the issue about limiting

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it to interlocutory and incidental procedural issues, and to express a concern about legal officers dealing with more substantive issues. I think that is a point of concern.
My noble friend Lord Renton, who has now left the Chamber, referred to having a preference for Amendment No. 2. I would wish to say the same. Whether Amendment No. 1 and/or Amendment No. 2 are accepted by the Government, I have no doubt that this is an issue which one would probably want to continue to think about and possibly return to at Third Reading.
When this issue was discussed at the previous stage of the Bill an analogy was made with the clerks of the court in Scotland, and I believe it was fallacious. It is true that clerks do carry out certain routine matters which judges previously carried out. However, they do so in terms of powers delegated to them by the court itself, rather than by virtue of powers vested in them by a Minister of the Crown. The powers delegated to them could be revoked at any time by the court, if there was any concern on the court's part as to the manner in which the powers were being exercised. That could not happen under the Bill, as I understand it, if the tribunal members were concerned about what was going on.
We will continue with this concern but I would like to offer my support to the noble Lord, Lord Lester, on the understanding that I suspect we will need to continue to consider this issue as the Bill moves on to its next stage.
Lord Haskel: My Lords, I am speaking to Amendments Nos. 1, 2 and 11. The Government fully support my noble and learned friend Lord Archer's initiative in tabling Amendments Nos. 1 and 11.
It might help if I remind noble Lords of the Government's policy behind testing the concept of legal officers. If, as my noble and learned friend Lord Archer reminded us, I indicated at Committee that the aim of the legal officer pilot scheme is to test whether it is viable to provide useful support for chairmen, particularly those working in the overstretched major city centres, from a qualified legal officer. It might be possible to release chairmen from some of their interlocutory and preliminary work to leave them free to sit in tribunals hearing cases.
The kinds of tasks which we had in mind for them include disposing of settled or withdrawn cases, granting postponements and extending time limits, making orders for the provision of further and better particulars and making orders requiring the attendance of witnesses or discovery or inspection of documents. However, we shall discuss these with the presidents of the tribunals, who will be closely involved, both in drawing up the pilot experiment and in operating and evaluating it.
As my noble and learned friend Lord Archer has indicated, I can confirm that legal officers will not be empowered to conduct pre-hearing reviews, determinations under the new provisions introduced under Clause 2 of the Bill, or rule 6 determinations. I hope that this will help satisfy one of the points of the noble and learned Lord, Lord Hope.
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Since the Committee stage we have given much thought to the issues which have been raised regarding legal officers, and DTI officials have been in consultation with the tribunal presidents on this matter. Given the concerns expressed, that the power taken by the Bill was too wide, we have looked into amending the drafting of the provision. At the request of the presidents of the tribunal we have considered whether it could be made clearer in the primary legislation that, under the regulations, legal officers need not be given the same powers which chairmen will have.
With my noble and learned friend Lord Archer's agreement, the amendment tabled by my noble and learned friend will clarify that those Acts, which the regulations specify, to be exercised by legal officers, need not be the same as those to be exercised by chairmen. Legal officers will be able to exercise only those specific Acts designated in subsequent regulations.
My noble and learned friend Lord Archer asked for assurances and I can confirm that his amendment meets the concerns of the tribunal presidents, and therefore I hope that it will also allay the fear of the noble Lord, Lord Lester.
Turning to the amendment of the noble Lords, Lord Lester and Lord Renton, Amendment No. 2, my noble and learned friend Lord Archer has given a detailed explanation as to why the powers relating to legal officers have been so drafted. He has explained why the amendment tabled by the noble Lord, Lord Lester, would restrict the legal officers' powers too much. As he said, it is difficult satisfactorily to define "interlocutory". There are some acts which we consider would be suitably undertaken by a legal officer, which we think may not fall, strictly speaking, in the category of interlocutory.
I do not intend to repeat the points that the noble Lord has raised. However, I should like to stress to the noble Lord, Lord Lester, that the powers given to legal officers by the regulations will be drafted in full consultation with tribunal presidents. They will also be subject to consultation with the Council on Tribunals, and of course subject to parliamentary scrutiny.
I turn now to another of the concerns of the noble and learned Lord, Lord Hope, which the noble Lord, Lord Lester, read out. I hope that the consultation with the presidents will ensure that the pilot exercises will work satisfactorily in that they will be able to work with the Government in deciding what duties will be appropriate to the legal officer. I hope that the amendment moved by my noble and learned friend Lord Archer, and my further assurances on this matter, will meet the concerns of the noble Lord, Lord Lester, and convince him not to pursue his amendment.
6.30 p.m.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister, but before he sits down I wonder whether he could clarify just one matter. I think that I heard him say that my amendment would restrict the powers of the DTI too much. Will he explain, with one or two examples, what are the powers which the Government wish to delegate to legal officers, other

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than in respect of interlocutory matters, that would be hobbled or fettered if the Bill limited delegated powers to interlocutory matters? Could we have one or two examples of the kind of thing that the DTI has in mind which mean that my amendment is too restrictive?
Lord Archer of Sandwell: My Lords, before my noble friend replies, will he say whether he agrees with the two examples that I gave; that is to say, dismissing proceedings where there has been an agreement and dismissing proceedings where there has been a withdrawal?
Lord Lester of Herne Hill: My Lords, before the Minister does that, will he say whether there are any examples other than those obvious examples which might need to be catered for? Are there any examples other than ancillary matters of procedure of that kind?
Lord Haskel: My Lords, I hesitate to interfere in the discussion between my noble and learned friend and the noble Lord. I agree with my noble and learned friend that his examples were relevant. I said that the kind of tasks that we had in mind included disposing of settled or withdrawn cases; granting postponements and extending time limits; making orders for the provision of further and better particulars; and making orders requiring the attendance of witnesses or discovery or inspection of documents.
Lord Lester of Herne Hill; My Lords, I am grateful to the Minister, but does he agree that all the matters, with the possible exception of the first, are what are known in the trade as interlocutory matters? Therefore my amendment would in no way restrict the DTI's power to authorise legal officers to deal with postponements, adjournments, further and better particulars, discovery, and all the other matters which are in the list in the Notes on Clauses?
Baroness Blatch: My Lords, before the Minister replies perhaps I may say in support of the noble Lord, Lord Lester, that, without some amendment along the lines of the amendment tabled by him, it will be difficult for some of us to accept the Bill as it is, because there needs to be some definition of the framework within which the legal officers will work. We should not leave a gaping void on the face of the Bill which then allows secondary legislation merely to define. It is important to have on the face of the Bill a definition of the degree to which those powers will be used. That is something to which we must return at the next stage of the Bill.
Lord Haskel: My Lords, I agree that it is important, but that is the whole purpose of the test that we have in mind. The purpose of the test is to find out, through experience, what those tasks will be.
Lord Archer of Sandwell: My Lords, with the leave of the House, the difficulty about giving examples in this type of debate is that if you can give examples you can of course frequently deal with them in the primary legislation. Problems arise when you have not thought
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of the examples and they arise after the legislation is on the statute books. One is then confronted by a practical difficulty. That is why, for reasons with which I sympathise, the Government do not want to set this in concrete at this stage before the pilot schemes.
If I accept what the noble Lord said, that the Scrutiny Committee overlooked this point, then as a member of that committee I must share some of the blame, and I do so. Perhaps we may return to the letter of the noble and learned Lord, Lord Hope. His intervention, if I remember, was in response to an intervention by the noble Lord, Lord Renton, who, unhappily, has had to leave us, in which he appeared to assume that the legal officers would exercise their functions by delegation from chairmen or presidents.
At the time, I must have been more than usually obtuse, because I had not grasped that that was what was in the noble Lord's mind. If I had I would have pointed out that this is a different situation; that legal officers will not exercise their functions by delegation from other members of the judiciary; they will exercise their function under regulations made by the Secretary of State. I am surprised that my noble friend Lord McCarthy thinks that it might be surprising that from time to time regulations are amended. Any power to make regulations will of course include a power to amend them as and when required. That is what it is for.
Lord McCarthy: My Lords, I was not surprised, I was suspicious.
Lord Archer of Sandwell: My Lords, I have tried in the past to allay some of my noble friend's suspicions. I do not propose to embark upon that venture tonight. I should have hoped that my noble friend would appreciate two things: first, the difficulty of framing an amendment of the kind which, understandably, the noble Lord, Lord Lester, wishes to propound, without landing the Secretary of State in a situation where he says, "Ah, now we have seen the pilot scheme, we realise that we should do X and not Y. We should put in a couple of exceptions. We cannot do that, because that is not what the Bill now says". The noble Lord said that everyone knows what is meant by an interlocutory matter. We are dealing with a specialised jurisdiction. We have had examples tonight where some of us have had something in mind, and then, "Oh dear, that is not covered by an interlocutory matter". I hope that the noble Lord and my noble friend will accept that there is a problem here if we try to set this in stone.
The other thing I would have hoped that my noble friend would accept—the noble Lord, Lord Lester, has not said that he does not accept it—is the undertaking given by my noble friend the Minister: first, that there will be the fullest consultation with the presidents before regulations are made; secondly, that the presidents are now content with Amendment No. 1 in the form in

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which I have propounded it; and, thirdly, they will consult the Council on Tribunals. My noble friend is muttering. I did not quite catch what he said.
Lord McCarthy: My Lords, I said I do not care what the presidents think. I have never met the presidents. I do not think this is good enough.
Lord Archer of Sandwell: My Lords, of course we could take a national referendum if that is what my noble friend wants. There are limits as to what one can do before reaching a decision on this matter. I am sure that the noble Baroness would not ask us to go as far as that.
Baroness Blatch: My Lords, certainly not.
Lord Archer of Sandwell: My Lords, in the light of those undertakings given by my noble friend the Minister, one cannot go very much further to ensure that nothing will be done which has not been disclosed to the House, and nothing will be done that anyone here would regard as improper. In those circumstances, I hope that there will be no opposition to Amendment No. 1. I hope that the noble Lord, Lord Lester, will feel able to reconsider Amendment No. 2.
On Question, amendment agreed to.
Lord Lester of Herne Hillhad given notice of his intention to move Amendment No. 2:
Page 4, line 3, at beginning insert ("in respect of interlocutory orders or any other decision on an interlocutory matter,").
The noble Lord said: My Lords, I am grateful for the support from all sides of the House as regards the concerns which underlie Amendment No. 2. I am grateful to the Minister and to the noble and learned Lord, Lord Archer of Sandwell, for doing their best to justify that which I do not believe to be justifiable. The fact that there is to be a pilot study is admirable but it does not meet the point. The pilot study will ascertain whether legal officers of two or three years' call or legal experience are to be entrusted with judicial powers of an interlocutory kind. They will be tested on no more than that because we are told that the department does not contemplate that they will be doing more than exercising interlocutory functions, dealing with compromise cases and the dismissal of cases where there is no controversy. Therefore, the pilot study is completely irrelevant to the issue of what powers beyond the interlocutory and ancillary procedural powers should be given to legal officers.
The fact that there is to be consultation with the presidents and the Council on Tribunals is welcome, but the ultimate question, which is a question for Parliament, especially a question for this House with its weak powers over delegated legislation, is whether we want a safeguard on the face of the Bill to prevent young and inexperienced legal officers undertaking anything other than routine interlocutory and ancillary procedural functions. Since no example has been given either by the Minister or by the noble and learned Lord, Lord Archer of Sandwell, of anything significant that the
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department wishes to do, the only argument that we have heard is that it will be handy and convenient to keep the reserve power in place in case some further delegation should be necessary—
Lord Archer of Sandwell: My Lords, will the noble Lord forgive me? Does he agree with the noble and learned Lord, Lord Hope, that the kind of expressions we might want to use—for example, "incidental procedures"—are difficult to define?
Lord Lester of Herne Hill: My Lords, I agree that they are difficult to define, but that is the job of government, parliamentary counsel and legal advisers within the department. I hope that after this debate they will bend every sinew to seek to produce adequate definitions which will satisfy the House. Perhaps I may remind the House that the noble and learned Lord, Lord Hope, at the end of his letter, states:
"As I understand the proposal in this clause, however, the matter will be in the hands of the Minister and his Department, as the delegation to legal officers is to be dealt with by means of employment tribunal procedure regulations … and not by the tribunals themselves or by the President. This aspect of the matter increases my concern that, in the interests of justice and to prevent misuse of it, the clause should be suitably qualified".
I do not believe that it is suitably qualified merely by having two separate lists which, as the noble Lord, Lord McCarthy, pointed out, can simply by amendment be transferred from one list to another. I continue to believe that the Bill must provide some appropriate limitation.
In the absence of the noble Lord, Lord Renton, I would not dream of seeking to test the opinion of the House and I should be proud to stand with him as a Teller. However, I give the Government notice that when the matter comes back on Third Reading, unless we are given something on the face of the Bill it will be my intention to test the opinion of the House. In the meantime, I shall not move the amendment.
[Amendment No.2 not moved.]
6.45 p.m.
Clause 7 [ACAS arbitration scheme]
Lord Wedderburn of Charltonmoved Amendment No. 3:
page 6, line 12, at end insert—
("( ) Save as provided by an order made under this section, nothing in this section shall affect the competence of a court to entertain proceedings for judicial review or to refer a question to the European Court of Justice.").
The noble Lord said: Perhaps contrary to the view that some of your Lordships have gathered, this is an important Bill which is coming to be seen as important by employers and trade unions. Our amendment is an attempt to face what is an inevitable problem if one creates two different procedures and avenues in law through which one can approach legal remedies for the same matter, as we saw in Committee. The important part of the Bill is that which sets up an ACAS scheme under an order and under the Act whereby those employees who opt for arbitration in agreement with the employer accept the arbitration award by the ACAS

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arbitrator as binding in place of their rights in industrial tribunals—or employment tribunals, as I shall have to call them after the Bill is passed.
Our amendment puts into clear words the remedy which has sometimes sub silentio been present in debates about the employee who goes to the arbitrator and finds that there is something wrong with the arbitration. I include fundamental mistakes of law, the mistakes which go to a perverse view of the facts in the debate that has been going on for a long time.
Looking at our Committee stage, in so far as one can understand discussion of the amendments from the idiosyncratic groupings, it is clear that it is in line with the debate which has been going on since 1994, the year of the Green Paper of a previous government on the reform of aspects of industrial tribunals, including the parallel course through arbitration instead of opting for industrial tribunals.
I mention the debate because most of it has not been in this House or the other place but in circles such as academic groups which have what might be called an alternative dispute resolution movement in various areas of the law. Many interesting publications have emerged from them. But in this area the department had a particular exchange with two of the leaders in the field—Professors Clark and Lewis of Southampton University—who strongly supported the view taken by ACAS that there should be no appeal on points of law from the arbitrator's award. The rule that there should be no appeal on points of law in the arbitrator's award does not appear in the Bill. It is somewhat strange, because it appears only in an informal memorandum of ACAS. It may be said that the employee accepts that when he agrees to go to arbitration instead of a tribunal. However, it would be useful to have the precise juridical character of that rule spelt out which, reading through the Committee stage, I was surprised to find had not been done.
Professors Lewis and Clark, in the course of arguing with the department that there should be no appeal on points of law, made a most interesting general point. They were asked what they thought should be done with perverse decisions by arbitrators. Of course, we all know that that does not imply any wrongdoing. A perverse decision is one where the arbitrator has got it so wrong as to meet one of Lord Diplock's three areas, to which I shall turn in a moment. But something should be done about it.
It was said, of course, as regards perverse decisions that they could be challenged through the process of judicial review. My noble friend Lady Turner and I took the view that judicial review, in the normal way, was not what we recommended. In your Lordships' Committee, we recommended that the matter should go, on a parallel type of procedure, to the Employment Appeal Tribunal. As I understand the record, that was rejected. It was rejected both by my noble and learned friend Lord Archer and by the Government. Obviously, we accept that. But once that was done the underlying text appeared to be that judicial review would apply subject, perhaps, to some modifications required by this particular subject matter.
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Noble Lords will see that we have included in the amendment a power to make amendment by order under the section and we repeat those words. In our view, it is important to state on the face of the Bill the centrality of judicial review as a remedy, where the arbitrator gets it wrong to that degree.
I shall put on record the three areas which Lord Diplock defined in the Council of Civil Service Unions case in 1984, which he called the three areas where judicial review would lie: illegality, irrationality and procedural impropriety. The decision maker must understand correctly the law that regulates his decision-making power and give effect to it and if he does not, that is where the illegality may arise. I shall return to that point in a few moments.
The second point, the type of unreasonableness which is sometimes referred to as Wednesbury unreasonableness in the light of the famous Court of Appeal decision of that name. In Committee we were fortunate enough to find that my noble and learned friend not only knows about Wednesbury but he comes from Wednesbury. We have deep authority for every word he said. I do not disagree with his account and I think that he was agreeing with us that those were the areas of judicial review in modern law.
At that point in this debate, which has gone on now for some three to four years, one must surely say that it would be really rather negligent to leave the record blank and to have the remedy inserted only impliedly. We want to say quite clearly that judicial review is the central remedy. We have included also in our amendment any problem relating to references to the European Court of Justice. Obviously, our law could not create obstacles to such references and so that is really a less interesting part of the amendment.
But what is it that ACAS wants to put into the law? We have heard very little about that. We know that ACAS wants a memorandum, semi-confidential I believe, saying that there should be no appeal on the law. Does that include all the areas of illegality referred to in Lord Diplock's speech in 1984?
A worker who talks to his employer or manager and they agree, "All right, we won't go to the tribunal as that process is rather slow in this area. We will go to an arbitrator and we agree that his decision be the end of the matter". The worker is therefore putting into the hands of the arbitrator a certain area of discretion; but he is not putting into the hands of the arbitrator an unlimited discretion. Any limitations upon the arbitrator's discretion which is narrower than the rules on judicial review would be a most extraordinary type of insertion into a Bill concerned with industrial relations.
There is absolutely no reason at all why working people should be subjected to narrow limits on their rights in this matter with regard to the arbitrators, narrower than the rights that they would have if they went to the tribunals. I am not sure what view my noble and learned friend will take but if the Government try to narrow the rights on "appeal"—and I use the word "appeal" in quotation marks because judicial review is not technically an appeal—on which a further view can be taken of the arbitrator's award, then the scheme is dead in the water before it starts. We shall hear from

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my noble friends who have experience in that area but I am sure they will agree that no trade union official will agree to take his member to the arbitrator rather than to the tribunal, albeit I accept that in most parts of the country it may be that the arbitration procedure is quicker than taking the matter to a tribunal.
Lord Archer of Sandwell: My Lords, has it occurred to my noble friend that working people and trade unions may actually welcome limiting rights of appeal because they see the advantage of finality?
Lord Wedderburn of Charlton: My Lords, my noble and learned friend must take his evidence where he finds it. My evidence so far indicates that for a very long time most people have been used to having rights of appeal from the tribunals to the EAT and, perhaps he thinks unfortunately, to the Court of Appeal and even to the House of Lords. I am not in favour of appeals for appeals' sake. However, the character of our employment law has within it, and has had within it since 1971, the notion that if you think that the first-tier adjudicator has got it wrong at least you have a right to go somewhere to have it set right. As I understand it, my noble and learned friend is saying that however wrong the arbitrator may be, there is no appeal at all.
My noble and learned friend will have the opportunity to make his case and it may be that that is not what he is saying. But I repeat the central point which must not be lost. If by amendment or by order this system of parallel justice—tribunals and arbitrators—is to cut off appeal at the arbitrator level in such a way that it is in a major sense more limited than the tribunals, then the number of people who use it will be very small and, as word goes round, even fewer people will use it year by year.
That is why my noble friend and I have tabled the amendment. We do that not because we are against the arbitration system but because we believe that it is an important and useful helpmate, as it were, of the tribunals. I have said already that I accept that in some areas tribunals are slow and have a long waiting list; but there cannot be an arbitration system which cuts down rights when there is a parallel procedure which offers rights. People are not that silly. Employers are not that silly. Let us not forget that a very large number of appeals to the EAT is from employers. We shall see what view they take.
I conclude with an example which is extremely recent. The ACAS memorandum first says that because of the non-legalistic nature of many unfair dismissal disputes, legal experience is not considered necessary for an arbitrator. I found that odd because, when we come to the end of the memorandum, paragraph 11 says:
"Any compensation awarded would be subject to the same limits as tribunal awards. In awarding compensation the arbitrator would have regard to the amount of loss incurred, both actual and future and take into account any monies already paid. The award would be legally enforceable".
If the amounts are to be subject to the same limits as tribunal awards, it is very difficult to see how the arbitrator needs no legal experience. I refer noble Lords
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to the decision of your Lordships' Judicial Committee only a month ago in the case of Tracey v. Crosville Wales [1997] 3 WLR 800 H.L. This has been a complex matter for some years of which the essence is as follows—and I am sure that the Minister will agree that there is some importance in the matter. When workers take industrial action, if they are dealt with by the employer differently in different groups, they may open the door which is usually shut to them for accession to the jurisdiction of the employment tribunal.
It was one of those cases where some strikers were re-engaged and some were not. The difficult question in case law has always been whether, in awarding compensation for those who have been, if you like, victimised, any reduction should be made by reason of the way that they conducted themselves in the industrial dispute. Reductions of compensation are of course a very difficult and important area. Any ACAS arbitrator would have to know his or her stuff on compensation and reductions. In this particular case, the House of Lords decided that no such reduction could be made.
It is difficult to give an impression of the complexity of the case, but I am sure that some noble Lords have some knowledge of it. Indeed, if noble Lords read the speeches, they will realise just what a difficult task an ACAS arbitrator would have to accomplish in order to get the sum precisely right. He or she would have to get the compensation right in global terms, and would then have to get it right according to the rules of law—because those are the rules of the tribunals—as to how much should be deducted, if anything at all. In this case it was not.
I am not suggesting that arbitrators are unable to face such cases; I am saying that the information that we have in front of us does not suggest that the arbitrators who might be appointed will always be able to deal with that kind of case and its legal complexities. I say "always" because this string of procedures, parallel one to the other, is there for the option of the employer and employee who can come to an agreement to take their dispute to the arbitrator.
We have tabled the amendment for that reason; namely, that judicial review is a well-known phenomenon. Small adjustments may be necessary as, for example, are included in the amendment. However, the amendment would not complicate matters. On the contrary, it would facilitate the remedy. The procedures of judicial review are now well-known and that makes it more likely that a system of arbitration would be more free from uncertainties and, indeed, might improve the machinery for remedying unfair dismissal. I beg to move.
7 p.m.
Baroness Turner of Camden: My Lords, I rise to express my support for my noble friend's amendment to which I have attached my name. I believe that I am not alone in feeling a little concerned about a process which, at the end of it, appears to have no right of appeal. I can well understand why my noble and learned friend has sought to introduce a fast-track procedure for dealing

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with straightforward unfair dismissal cases. The intention is wholly good and he deserves commendation for it.
However, we all know that dismissal is a traumatic experience. Unfortunately, it has happened to far too many people in recent years—people who at one time would have thought that they had "jobs for life"; indeed, people who thought, perhaps, that they would never have to face the trauma of unemployment and who are quite often unprepared to deal with it. Such a dismissed employee could be offered a choice of procedures in the following terms: he could either go down the arbitration route, which is fast track and he will probably not have long to wait to get his case heard. He will not be able to appeal, but he must remember that his employer will not be able to either. Alternatively, he could go to an employment tribunal where he will have the right of appeal right through the court system and even eventually to Europe. However, he will have to wait a long time because there is a backlog of cases and his employer could appeal even if he wins; and it might be quite a long time before he gets any money out of it.
Of course, trade unions may not give that kind of advice, but such advice might come the way of people who are not represented by unions. In such circumstances, the former employee could well choose arbitration. In most cases, that could well be the right decision. But, rarely, there may be a case that starts off looking as though it is simple but which becomes more complex along the way, perhaps introducing some element of gender discrimination or another problem which means that it would have been better dealt with through the ordinary court procedures.
The amendment that we have tabled would provide a fail-safe mechanism, should that happen. It is likely to be rare, but the employee would have the protection of a way out of arbitration and into the court system where that occurs. We have been referred to the Arbitration Act 1996 and specifically, I imagine, to Clauses 68 and 69. However, on reading the clauses, it seems to me that they are quite restrictive. Clause 68 allows for challenging the award where there has been a serious irregularity and that is spelt out in some detail. Clause 69 refers to an appeal on a point of law which could only be brought, as far as I can read, with the agreement of all the other parties to the proceedings, or with the leave of the court.
As I said, those provisions are really rather restrictive. In my view, they were probably meant to deal with commercial disputes and not employment law at all. Such provision is not necessarily suitable for the kind of cases that we are concerned about here, where people are facing the trauma of unemployment following dismissal. I hope that my noble friend, and perhaps the Government, will look with a degree of acceptance on what we are trying to do by way of the amendment.
Lord McCarthy: My Lords, in putting my name to the amendment I wanted to make it clear, as indeed my noble friends have done, that we are trying to improve the Bill. We want to see speedy, informal alternative methods of dispute resolution. We are trying to assist with the Bill, but we also believe that, if we do not
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modify it in some way, it could, without taking up an exaggerated position, conceivably end up in another Grunwick. Indeed, that could happen. I have come to a conclusion as to the reasons why the Government and ACAS seek to resist what we propose.
If noble Lords will allow me, I should like to speak tonight very much to ACAS. Indeed, some of my best friends are in ACAS. They have employed me since they began. I want to explore how ACAS has thought this out and outline why I believe that it is wrong. We do not want merely speedy, informal alternative systems. I suggest that we must have roughly similar justice. That is what the Government have not thought through.
Why do we have to have roughly similar justice? Why could we not have arbitration with no appeal to law in particular? The arbitration system could proceed in a completely different way, using different criteria, different levels of settlement with different levels of substantive evidence and different results under the law. Why could it not be like that? It seems to me that ACAS is rather hoping that it might be like that because it would be simpler.
I can think of five reasons why it cannot be like that. First, the parties would be watching the system. If, as a result of research or by comparing success rates—because they will get them—or if by bush telegraph or general impressions, it comes to be thought among employers that there is, overall, a significantly higher rate of success and better justice from the workers' point of view, they will not go to arbitration. Similarly, if trade unionists or if the lawyers who advise the non-unionists—they do it very often for nothing—come to the conclusion that you cannot get as much out of arbitrators or that there are certain circumstances and certain cases which do not work, they will not recommend that anybody goes. The system must work and so it must provide not just speed, not just informality, but roughly similar justice. The parties will be watching and comparing.
Secondly, I have been talking now to my friends who are arbitrators. The arbitrators will be watching. They will want to know, roughly speaking, whether they are in line with the law. I ask any of those who might get such a task for not much remuneration: why should you put yourself in the position morally, equably, and in terms of your functions, that you produce very different results from the law? If those people want to know how they can keep in with the law or if they can get roughly similar justice, then they will need a very great deal of information. I am not saying they have to be legally qualified but, by God! they have to know their way about. There are many, many examples of things they have to know about. For example, they have to know all about the different legal principles and applications of cases which tell you how you select people for redundancy. What is unfair selection for redundancy? It is very complicated as to how far you can go and get away with it as an employer. You have to do something about that, and if any question arises of sex discrimination you must detect it because the Government say you have got to take out sex discrimination. It is not simply a matter of knowing

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about direct discrimination; you have to know how to test for indirect discrimination. That is extremely complicated and difficult.
The difficulty so often in cases of constructive dismissal is to know whether the employer has struck at the root of the contract—whether trust and confidence has been destroyed. That is extraordinarily difficult to detect. It is all right in a tribunal: you have two side members and a qualified chairman. But if arbitrators are afraid that they will not be broadly in line with the principles of the law they are going to have a difficult problem. Most difficult of all perhaps is what I call natural justice denied. Natural justice is not all that important in arbitration. In arbitration you have to decide what you think is the substance of the case. Whether the employer has gone through a reasonable range of responses, whether there has been proper investigation and whether there has been a right to appeal—these do not necessarily concern arbitrators. They want quick, sharp decisions which they think, on the whole, are fair. What is terribly important is that a large number of employers go to tribunals in circumstances where they could have dismissed fairly if they had not neglected one of what they regard as the arcane principles of natural justice. But the poor old arbitrators have to learn them. And there are simple tests. I do not believe that the parties will not be watching and that the arbitrators will not be watching. Therefore I do not think that ACAS cannot be watching. Somehow these poor devils have to be told how to keep in line with the substantive or procedural results of using industrial tribunals.
Also, as the noble Lord, Lord Wedderburn, said, they will have to know what is happening outside and they will have to know whether they are going to lay themselves open to any possibility of judicial review. I frankly do not know how they are going to manage it. There will have to be training. They will have to be kept up to date and that is going to be a difficult and hard task to follow through.
However, turning from the arbitrators and ACAS to the Government and this amendment, I say to the Government with all the force I can muster: we want this Bill; we like this Bill; but it is no good introducing it and thinking you can ignore the need for substantive equivalent justice. If you turn aside, if you think you are going to stop it by law you are going to stop the system itself, because people are watching, arbitrators are watching, ACAS are watching, workers are watching and the Government must watch as well.
7.15 p.m.
Lord Haskel: My Lords, it might be helpful if I explain the intention behind the Government's policy of offering arbitration as an alternative means for parties to resolve their disputes. Certainly, we take the view that it is better if employers and employees can settle their disputes voluntarily, either between themselves or with the assistance of a third party. But underpinning the system is the right of the individual to have recourse to an industrial tribunal. It is inevitable that there will be disputes which cannot be resolved in any other way. We
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accept that. A complex and difficult case such as my noble friend Lord Wedderburn mentioned could go to a tribunal. It may be suitable for arbitration. We accept that, but we see it as our role to offer parties to a dispute a range of alternative methods by which they might resolve their dispute. As noble Lords know, we wish to encourage parties to use any internal procedures that might be available. A dispute swiftly resolved through an internal procedure can often be to the advantage of all the parties.
We are also committed to the role of conciliation officers in helping people resolve their disputes and, in previous debates, I and other noble Lords have paid tribute to the role that they play.—
Lord Wedderburn of Charlton: My Lords, would my noble friend allow me to interrupt? I wonder if I have got it right. The most important thing he said was that cases of legal complexity of the kind that I cited in regard to compensation recently in the House of Lords—the case of Tracey v. Crosville Wales—may not be suitable for arbitration. However, who would stop the employer and the employee taking them to arbitration if they wished to do so?
Lord Haskel: My Lords, in the Bill there are many safeguards to ensure that employees have full and free advice. We are coming to an amendment which deals with that later. As noble Lords are aware, this Bill adds to the duties of the conciliation officers. It also contains a provision which we are debating for ACAS to prepare and provide an arbitration scheme for claims of unfair dismissal. These are some of the alternatives we wish to make available, and it is important to bear in mind that these are options which the parties enter into voluntarily. No one can be compelled to agree to use them and, as I mentioned, the right to have recourse to a tribunal underpins the system of employment rights. Arbitration is a method of resolving a dispute to which both parties will have agreed, and although they may still disagree about the dismissal itself they will have to agree to submit it to an arbitrator and to be bound by the arbitrator's decision. This agreement is but one of the features which distinguishes arbitration from a tribunal hearing.
My noble friend Lord McCarthy listed some of the points which may not be suitable for arbitration, and there will be others. For example, the arbitration will be private but it will be final. Agreement to be bound by the arbitrator's decision is also one of the reasons why the Government, ACAS and many of those who support an arbitration alternative, both employers and employees, consider the finality of the arbitrator's decision to be an essential part of the scheme. However, the arbitrator's decision can only carry credibility with the parties if they consider that it has been reached impartially and fairly and that they have had a chance for their views to be heard. That is why the Government and ACAS regard the provision of a safety valve to be important.
However, we do not think that we can rely upon judicial review applying to provide this safety valve. Our view is that it is by no means certain that judicial

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review will apply. Therefore in order to ensure that if there is something wrong, as my noble friend Lord Wedderburn put it, a safety valve will be provided, we propose to apply the provisions of Section 68 of the Arbitration Act 1996 which relates to serious irregularity, subject to discussion with ACAS, and with such modifications as are necessary to make them appropriate to a scheme for resolving an employment rights dispute.
My noble friend Lady Turner said that Section 68 may be more suitable for commercial disputes. The provisions will be modified to make them suitable for the kind of dispute that we are debating. Our difficulty in saying exactly what will apply now is that we do not yet have the scheme. It would be prudent to wait until we have a scheme proposed by ACAS before deciding whether and how the serious irregularity provision needs to be modified. I hope that this will satisfy my noble friend's concern.
My noble friend Lady Turner also spoke of referrals to the European Court of Justice. As I explained in Committee, while the Government wish to restrict the right of appeal on a point of law as much as possible to ensure maximum finality in the arbitration, we recognise that there might be circumstances in which a limited right of appeal on matters of European law may be required under European Community law principles. It may also be necessary to provide a procedure permitting the parties to refer to a court preliminary issues of law for determination.
Noble Lords will recall that the Government have put in observations on two cases before the European Court of Justice where the extent to which arbitral awards should be the subject of appeal on Community law is an issue that is being addressed currently. We are minded to wait until we have the European Court of Justice's decision on those cases before acting on this point.
However, I wish to confirm that once the European Court of Justice rules on the extent to which an appeal or reference needs to be provided in private arbitrations on a point of European Community law, we shall ensure that such arrangements as necessary apply to arbitration under the ACAS scheme. I hope that this will satisfy noble Lords.
Lord Archer of Sandwell: My Lords, I am grateful to my noble friend Lord Wedderburn for confirming at the outset of the debate that this is an important Bill. At least he and I begin in full agreement. My noble friend's amendment reflects concerns which were expressed by a number of noble Lords in Committee. I am grateful to my noble friends for their courtesy in discussing the amendment with me between Committee stage and today.
Perhaps I may spend a moment on the historical background of the problem. When industrial tribunals were first established, it was envisaged that they would have a number of advantages over the more traditional courts. They would be informal, quick, cheap and with proceedings capable of being conducted by litigants in person. Their determinations would quickly be brought to finality. Compared with more traditional courts, that
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is probably still the case to a substantial extent. But much of their jurisdiction now consists of areas of law where, as my noble friend Lord McCarthy said, the provisions are complicated and technical. That may not be anyone's fault. The world is becoming more complicated. It is not the fault of the tribunals. But it explains why there have been those—I emphasise to my noble friends—largely within the trade union movement who, in relation to certain sectors of their jurisdiction and in particular to claims for wrongful dismissal, have said, "Couldn't we find a method of resolving suitable disputes where the parties agree which seeks to recover those advantages of simplicity, speed and finality?"
Clause 7 of the Bill is an attempt to offer that option, with appropriate safeguards. As my noble friends said, those who wish to retain the full range of options for appeal may simply forget about arbitration and refer their disputes to the tribunal. That was the burden of much of what my noble friend Lord Haskel said. But there are two propositions on which we would all agree. First, for those who are attracted by the idea of speed and finality, it would be pointless to offer the option of going to arbitration and then to deprive that option of speed and finality.
Secondly, I believe we would all agree that there have to be some channels for redress. Those who refer their dispute to arbitration are entitled to complain if the arbitrator departs totally from his terms of reference or embarks on a procedure which is totally eccentric or unfair—the perverse decisions referred to by my noble friend Lord Wedderburn.
In her very fair survey of the options, if she will allow me to say so, my noble friend Lady Turner said that none of us wants to say that there shall be no appeal. I agree with my noble friends Lord Wedderburn and Lord McCarthy that a very good beginning is to make sure that we have good arbitrators. If we can get the decisions right at first instance, it removes many of the problems. But it cannot remove all the problems. There will be occasions where there needs to be redress. I believe that we are now largely agreed that there are two areas where some redress should be provided.
Perhaps we may turn first to issues of European law. As I understand it—my noble friend confirmed the position—the Government's approach is to seek to retain finality as in other issues of law so far as that can be done consistently with our obligations under Community law. At earlier stages in our debates we have tended to speak as though there is an absolute obligation on member states to provide a channel for reference to the European Court in any arbitration procedures. It is by no means certain that that obligation is so wide. European law recognises a right to agree to arbitration, as I understand it, and to restrict the range of appeals. There are at present before the European Court of Justice two cases—my noble friend referred to them—where the extent of the obligation, if any, is being considered. At Committee stage I was asked whether I could indicate those cases. They are Eco Swiss China Time Limited v. Bennetton International, and the Compagnie Maritime Belge case. I can give noble Lords the references if they wish to consult me afterwards.

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As my noble friend Lord Haskel made clear in Committee, the United Kingdom Government have submitted observations in those cases. They would like to await the outcome before deciding definitely on the provisions relating to disputes about European law. But it is only honest of me to say that I understand that the Government would be minded to retain finality so far as that is consistent with our obligations as defined by the Court. The importance of finality in arbitration proceedings has been emphasised to the Government by representatives of employers and employees, and, as my noble friend Lord McCarthy said, very emphatically by ACAS. We know that there are two sides to the argument; but there are advantages in finality.
I turn to issues other than those of European law. There is a wide consensus that we should not admit appeals on every issue of law which arises. But we all agree that serious procedural matters should have a form of redress and that it should go rather wider. The question is how best to achieve it. My noble friends suggest judicial review. I know from many conversations I have had in the past with my noble friend Lord Wedderburn that judicial review is not his first choice. For myself, I should prefer not to leave redress to judicial review. If I have misrepresented my noble friend, I apologise.
7.30 p.m.
Lord Wedderburn of Charlton: My Lords, my noble and learned friend will remember that the noble Baroness and myself moved amendments in Committee which did not rely on the normal judicial review, but on a special structure for the EAT. I am sure that he could not forget that.
Lord Archer of Sandwell: Indeed, my Lords, quite the reverse. I am grateful to my noble friend for confirming precisely what I said: it was not his first choice. It would not be my first choice either. It is a very useful remedy which the courts have developed over the past few years, but it tends to be a remedy for situations where no other redress has been provided. It follows that it tends to be attended with uncertainty and unpredictability. It is better, when we foresee the need for redress, to provide it specifically. Then it can be tailor-made to the needs of the parties. In any event, for what it is worth, I endorse the remarks of my noble friend Lord Haskel, that it is by no means certain how judicial review can be made to apply to what will be in effect a private agreement between the parties to the arbitration.
However that may be, the Government's view, as I understand it, is that it will be difficult to formulate appeal provisions until we have the scheme. For that reason, they are reluctant to incorporate specific appeal provisions in the Bill. As my noble friend said, my noble friend Lady Turner had foreseen the difficulty, and what they have in mind is using Section 68 of the Arbitration Act 1996.
I appreciate my noble friend's view that that Act is designed primarily to apply to commercial arbitrations, and not all of its provisions are suitable for industrial
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disputes. Of course they are not; we are all in agreement about that. But it does not follow that the entire Act is totally unhelpful and unusable.
Section 68 states:
"A party to arbitral proceedings may … apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award".
That provision is fairly wide.
Subsection (2)—which I certainly do not intend to impose on your Lordships at this hour of the evening—sets out a list, (a) to (i), of possible examples of material irregularity. My noble friend Lady Turner says that that is too restrictive. All my noble friends are rather indicating that.
Lord Wedderburn of Charlton: My Lords, will my noble and learned friend read the final paragraph of subsection (3)?
Lord Archer of Sandwell: My Lords, if my noble friend wishes me to read it out, then of course I will. I think that there are those who are rather anxious about the time. Subsection (3) states:
"On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction",
and then states what the court may order. It may,
"confirm the award … vary the award, or … set aside the award".
Lord Wedderburn of Charlton: Over the page—
Lord Archer of Sandwell: My Lords, it is all on the same page. I am trying to be helpful.
Lord Wedderburn of Charlton: I: I am sorry to—
Baroness Blatch: My Lords, while there is a private altercation going on between the two noble Lords, I wonder whether I might intervene. We have been debating the Bill for over an hour and a half and are only on the second grouping. I do not in any way wish to detract from the importance of the Bill or of the amendments under discussion. However, I wonder whether I might appeal to those present from the usual channels, given that people have travelled a very long way specifically to be here for the other debate, which was expected to take place much earlier this evening. At the end of this amendment, which I suspect still has a good half an hour or more to run, is it possible that the House might adjourn long enough for the other debate to take place, and then this Bill could continue? I suspect that, taking the first three amendments as a guide, we shall be here for a very long time on the remainder.
Lord Archer of Sandwell: My Lords, I fully take the noble Baroness's point. The next debate is one in which I personally have an interest, although I do not propose to participate. I have been mindful of the time factor. I do not think that it has been entirely within the control of any of us. I can set the noble Baroness's mind at rest. This is the last debate on the Bill which is likely to take up very much of the time of the House. The noble Lord,

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Lord Meston, can assist us. He is the only other noble Lord who is likely to know how much time the rest of the Bill will take. I suspect that it will be very quick indeed.
Lord Meston: My Lords, since the noble and learned Lord asks me, I am painfully conscious of the time and of the inconvenience caused to others who are waiting to take part in the next debate. For my part, I shall not move my amendment, even if it causes me some difficulty in bringing it back at Third Reading.
Lord Archer of Sandwell: My Lords, I am most grateful to the noble Lord. I hope that that sets the noble Baroness's mind at rest. The other amendments are mine, and I propose to be extremely brief.
Baroness Blatch: My Lords, I am sure that that will come as an enormous relief to all those around the Chamber. I apologise for my intervention. However, given the concern that I see expressed on the faces of at least three noble Lords, this particular amendment will run for a good deal of time yet.
Lord Archer of Sandwell: My Lords, I do not believe that it will. However, may we see how matters go? I suspect that we are coming fairly close to the end of the debate.
The section that my noble friend Lord Wedderburn wishes me to read out is from subsection (4), not subsection (3)—
Lord Carter: My Lords, time might be saved if my noble friends realise that they cannot speak after the noble and learned Lord, Lord Archer—except for the noble Lord, Lord Wedderburn, who I hope will be brief so that we can get on with the Bill. I do not believe that we are able to adjourn the Bill and return to it afterwards. I am sure that my noble friends understand the situation. If we could now proceed in reasonable time, I am sure that that is the wish of the House.
Lord Archer of Sandwell: My Lords, I am grateful to my noble friend. We should be very insensitive had we not grasped the time factor.
My noble friend is asking me to read out, not subsection (3), but subsection (4):
"The leave of the court is required for any appeal from a decision of the court under this section".
He is absolutely right. That is precisely what it says. I am sure that he can put the matter right later.
Some of these provisions may need tailoring to the scheme that finally emerges, as my noble friend Lord Haskel said. We probably all agree that it would be unwise to apply the provision in toto, with no adjustments. That is why I hope that my noble friend will be content in the light of those assurances to leave the Bill unamended and to leave the Secretary of State to deal with the matter in the way I suggested.
Lord Wedderburn of Charlton: My Lords, I shall be very brief in replying to a somewhat complicated
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debate. First, on the European Court of Justice, I thought I said in moving the amendment that we have no difficulty about delay on that matter and the noble Lord the Minister made it clear why there should be some delay.
However, to say that judicial review is not suited to these matters because they are private agreements, with great respect, misses the whole point. We are not setting out merely a scheme of private agreements. We are setting up a statute based system of consensual arbitration. Where there is a statutory base, the courts do intervene, and often have intervened by way of judicial review. With great respect to him, the Minister has to verge on being wrong, or indeed come closer than that. when he says that judicial review is not suitable. 1 can see that the provision may need some amendment; but it is much better to start with that than with the Arbitration Act 1996.
I have some knowledge of that statute. and of the three sets of discussions under the noble and learned Lords, Lords Saville, Steyn and Mustill, that preceded it. Anyone who thinks that Section 68, or indeed any other section, can be made into a suitable base for what my noble friend Lord McCarthy called parallel justice, is crying for the moon. There is one clear indication that that is so; namely, no one since 1994 has suggested anything of that sort to deal with the problem. It has arisen at the last minute in your Lordships' discussions. I hope that the Government will go away, re-examine the provision and see how judicial review could be a method—unless we are to go back, which I am not allowed to do, to the system we suggested, using the EAT as an appellate body; because then the two streams of jurisdiction would, as it were, merge in the EAT and the employment appeal tribunal could give judgments which brought the two streams together—those of the arbitrators and those of the tribunals. Nothing could be simpler than to draft regulations for that.
However, I can see that the Government are obdurate, and no doubt they will not come back on Third Reading with anything other than the Arbitration Act, modified as they want. We look forward to that and all I can do with this amendment is beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 13 [Internal appeal procedures and unfair dismissal awards]:
[Amendment No. 4 not moved.]
Clause 14 [Acts which are both unfair dismissal and disability discrimination]:
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 5:
page 11, line 18, leave out ("Section 126 of the Employment Rights Act 1996") and insert ("In section 117(6) of the Employment Rights Act 1996 (which provides for a higher additional award for an unfairly dismissed employee who is not reinstated or re-engaged as ordered in a case where the dismissal is sex or race discrimination), at the end insert "and
(c) a dismissal which is an act of discrimination within the meaning of the Disability Discrimination Act 1995 which is unlawful by virtue of that Act."
( ) Section 126 of that Act").
The noble and learned Lord said: My Lords, with this amendment it may be convenient to take Amendment No. 12. I can move it briefly. The purpose is to correct

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an oversight in the Disability Discrimination Act 1995 and to place discrimination on grounds of disability in parallel with discrimination on sexual or racial grounds. I beg to move.
Lord Haskel: My Lords, the Government fully support this technical amendment which will ensure that those employees who have been discriminated against on the grounds of their disability will be treated in the same way as those who are discriminated against on the grounds of sex or race.
On Question, amendment agreed to.
Clause 17 [Commencement]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 6:
page 12, line 14, leave out ("17") and insert ("17(2)").
The noble and learned Lord said: My Lords, with this amendment it may be convenient to take Amendments Nos. 7 and 8. I believe that I can abbreviate what I was proposing to say in this way. There was an oversight following from an amendment moved in Committee in relation to the jurisdiction of the employment appeal tribunal. We also seized the opportunity to correct what was previously an oversight in legislation. The amendments are in order to tidy the jurisdiction of the employment appeal tribunal. I beg to move.
Lord Haskel: My Lords, the Government fully support the initiative of my noble and learned friend Lord Archer in tabling these amendments. Although they are minor and technical, they will ensure that the complete jurisdiction of the EAT is accurately described in the legislation by including the original jurisdictions along with appeals. They will make it expressly clear that jurisdictions other than appeals can be conferred on the EAT by other legislation.
Lord Archer of Sandwell: My Lords, before my noble friend sits down, both he and I, in our haste to conclude the proceedings, have overlooked one matter. The jurisdiction in Scotland is slightly different from the jurisdiction in England and we propose to rectify it by an amendment at Third Reading.
On Question, amendment agreed to.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendments Nos. 7 and 8:
page 12, line 20, leave out ("17") and insert ("17(2)").
page 12, line 21, at end insert—
("( ) If an appeal of the sort which lie to the Employment Appeal Tribunal by virtue of the provision made by paragraph 17(2) of Schedule I has been brought before the High Court or the Court of Session not later than the day on which this Act is passed, the appeal may nevertheless be brought before the Employment Appeal Tribunal within the period of 42 days beginning with that day or such longer period as that Tribunal may by order specify.").
On Question, amendments agreed to.
Schedule 1 [Minor and consequential amendments]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendments Nos. 9 and 10:
page 18, line 13, leave out ("In section 21(1) of that Act") and insert—
("(l) Section 21 of that Act (jurisdiction of the Employment Appeal Tribunal) is amended as follows.
(2) In subsection (1)").
page 18, line 15, at end insert—
("( ) After subsection (3) insert—
"(4) The Appeal Tribunal also has any jurisdiction in respect of matters other than appeals which is conferred on it by or under—

(a) the Trade Union and Labour Relations (Consolidation) Act 1992,

(b) this Act, or

(c) any other Act."").

On Question, amendments agreed to.
Schedule 2 [Repeals]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 11:
page 20, leave out lines 14 to 16.
The noble and learned Lord said: My Lords, I beg to move.
Baroness Blatch: My Lords, I wonder whether the noble and learned Lord, Lord Archer, could now reverse my previous advice? We are trying to find the noble Lord, Lord Lester, who thought it would be a long time before he was called. If the noble and learned Lord would care to elaborate a little on Amendment No. 11, long enough for the noble Lord, Lord Lester, to appear in the Chamber, we should be grateful.
Lord Archer of Sandwell: My Lords, I am always willing to assist in these matters and I am grateful to the noble Baroness. However, I see that the noble Lord, Lord Lester, is present and our problem is solved. I beg to move.
On Question, amendment agreed to.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 12:
page 20, line 22, column 3, leave out ("117(8)") and insert ("117, in subsection (6)(a), the word "and" and, in subsection (8),").
On Question, amendment agreed to.

Terminally Ill Patients
7.45 p.m.
Lord Lester of Herne Hill Lord Lester of Herne Hill asked Her Majesty's Government whether they are satisfied with the current state of the criminal law and medical practice in relation to the palliative treatment by doctors and nurses of terminally ill patients.
The noble Lord said: My Lords, because of my experience as counsel in a recent case I am concerned about the lack of clarity as to the criminal law and good medical practice in the palliative treatment of the terminally ill. This is despite the admirable work done

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four years ago by the Select Committee on Medical Ethics, chaired by the noble Lord, Lord Walton of Detchant.
Annie Lindsell is a remarkably courageous victim of the terrible motor neurone disease from which she has suffered for over five years. I am very sorry that she is too ill to be here this evening, as she had so much hoped.
MND is a degenerative neurological condition with no known cause or cure. It kills the nerves controlling movement so that sufferers, while retaining total brain function and being able to feel pain, find themselves gradually trapped inside a completely paralysed body.
Annie Lindsell has come to know and admire many other MND sufferers. Of those who have died, the last months of their lives have been too terrible for them to bear and for others to witness. She wishes, as is her right, to remain at home until she dies, cared for by her loving friends and companions, under the careful supervision of her doctor, her consultant and the district nurse. Along with many other MND patients she does not wish for invasive surgery, such as the insertion of a PEG tube that will only prolong a life the quality of which continues to deteriorate; nor does she want to have to live on in a doped haze.
When the quality of her life becomes unacceptable to her, as she begins to be unable to swallow and is at imminent risk of suffering severe distress, involving choking, she wants to be confident that her doctor will be able lawfully to treat her with palliative drugs to relieve her severe distress, even though the probable consequence will be to shorten her life. She wishes to know that, if the doctor agrees, she will be treated with drugs at that stage, so that she can die with dignity, fully aware of her circumstances.
The MND patients she has known were denied such treatment, despite some of them being under hospice supervision. Helplessly, they suffered appalling and unnecessary distress in the last months of what remained of their lives. Their wishes were known. They did not wish to endure the indignity of remaining helpless, unable to do anything for themselves, unable to eat normal food, at risk of choking, and in a drug-induced condition to make them less aware of their terrible condition. The only way they were able to avoid that inhuman fate was by refusing to have a PEG tube inserted. That meant that they began choking on their own mucus when unable to swallow, often while trying to eat. Their doctors terminated their distress only at a very late stage, after they had repeatedly begged to be allowed to die with dignity.
Annie Lindsell was terrified of having to endure a similar fate. She brought legal proceedings seeking the necessary assurance and peace of mind for herself and her doctor. Without the necessary reassurance that it was lawful, her doctor would not commit himself to treat her in accordance with what he and she consider will be in her best interests at the point when she becomes unable to swallow, and risks choking.
The uncertainty arose because of the early stage at which the treatment is intended to be given, and its probable effect in shortening Annie's life. Indeed,
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initially, a hospice consultant gave evidence that he considered the proposed course of treatment to amount to euthanasia. But he later changed his mind, and all the doctors, the lawyers and the learned judge agreed that what was proposed was lawful. The doctor decided he could safely give appropriate treatment when Annie begins to be unable to swallow. And the case was withdrawn.
Reasonable legal certainty is especially important where a patient is suffering from a terminal illness and facing the prospect of experiencing severe suffering and indignity. Patients have the right to life. They also have the right to personal autonomy and to live and die with dignity. They and their doctors need to know what exception there is to the law of homicide enabling a doctor, acting in accordance with his patient's wishes, and the doctor's judgment as to the appropriate medical treatment, to administer that treatment, even though its probable effect will be to shorten the patient's life. Unless the criminal law and good medical practice are reasonably clear, conscientious doctors, seeking to act in the best interests of their patients, are left in a state of uncertainty and anxiety. They may be hesitant or unwilling to give appropriate treatment in accordance with their patients' wishes.
A person who kills, with that as his intention, is guilty of murder, even though he may have been motivated by a desire to end another's suffering or to give effect to the other person's clearly and honestly-held wishes. In deciding whether there is the mental element necessary for murder, foresight of the consequences is evidence of the existence of a criminal intent. The greater the probability of death as a consequence, the more likely it is that it was foreseen, and the greater the probability that it was also intended.
There is no culpable homicide where there was legal justification or excuse. The problem is to know the nature and extent of the legal justification or excuse for what would otherwise be homicide in relation to the medical treatment of the terminally ill.
Where a doctor acts in accordance with what he considers to be responsible medical practice, with the aim of relieving pain or severe distress but with the probable consequence of shortening the patient's life, the risk to the doctor is that the jury, as directed by the judge on currently declared principles, will impute the necessary specific intent to find him guilty of culpable homicide, and the judge will have to impose a mandatory sentence of life imprisonment.
The ancient theological doctrine of double effect, brought into English law by Mr. Justice Devlin in his summing up to the jury in the Bodkin Adams case, attempts to cover administering drugs necessary for the relief of a patient's pain or severe distress in the knowledge that a probable consequence is a shortening of the patient's life.
The Select Committee observed that, if the doctor's intention is the relief of severe pain or distress, and the treatment given is appropriate to that end, the double effect should be no obstacle. They considered that juries can readily assess whether there was any reason to suspect that the doctor's real intention was to kill the patient rather than to relieve pain and suffering.
But there are several problems. First, where the probable consequence is to shorten life the law will usually infer a criminal intent. Reference to double effect and primary intent do not explain the nature or scope of the exception of lawful justification or excuse. Secondly, the concept of what is meant by "severe distress" can be interpreted generously by some doctors (as in Annie's case) or narrowly (as in her friends' case). Thirdly, as the noble Baroness, Lady Warnock, observed during the debate on the Select Committee's report, the argument that the doctor's intention is to relieve pain and that the subsequent death is a side-effect sounds to many like a prevarication. The noble Baroness said:
"If you know, or are reasonably certain, that an undesirable consequence will follow from what you intend to do, then in normal circumstances you are held responsible both for what you do and for the undesirable consequences. So, for example, if you know that your cat will almost certainly die if you spread weed killer on his favourite haunts, then you can hardly be absolved from responsibility for his death by claiming that all you intended was to kill the dandelions".—[Official Report, 9/5/94; col. 1376.]
I agree with the noble Baroness, Lady Warnock, that it would be better to recognise that the doctor is prepared to take a risk that the patient will die; that is, to admit that the doctor is making a value judgment. In her words:
"judging that the relief of pain in the particular case is of more important value than the preservation of life. In other words, he is judging that the quality of the patient's life of pain is so low as to justify the probability of its coming swiftly to an end".—[Col. 1377.]
The doctor must surely have a defence to a prima facie case of murder based on foresight of consequences where the patient's life is an intolerable burden to her, the patient is dying, and the only humane treatment left is one which has death as its consequence. There is surely a defence if the doctor satisfies the jury of three matters: first, the fact that he administered the treatment in good faith for the purpose of relieving his patient's pain, suffering and severe distress; secondly, the fact that the treatment was given with the patient's informed consent; and, thirdly, the fact that the treatment administered accorded with accepted medical practice. That was the gist of Annie's case.
This approach avoids any artificial distortion of the well-established legal concepts of intention and causation. It has the crucial advantage of providing much greater certainty than would an approach based on the vague and confusing standard of "primary" and "secondary" intentions. I hope that the Minister's reply will confirm that he accepts that that is a correct approach and, if not, why it is mistaken.
The present legal uncertainty is compounded by the absence of any published guidance as to the policy of the prosecuting authorities. It is surely not sufficient guidance to the medical profession dealing with terminally ill patients merely to say: "Do what you consider to be medically and ethically correct, even though what you do is likely to shorten life, and take the risk of criminal prosecution on the basis of the concept of 'double effect' or 'primary intent"'.
It is also unsatisfactory that there is no adequate guidance to doctors from the BMA, even though it is crucial to a doctor's defence to a charge of homicide that he acted in accordance with a responsible body of medical practice. I hope that the Minister will be able to tell the House that the Government will encourage giving guidance both about prosecution policy and good medical practice.
The humane approach is surely that of the President of the Family Division, Sir Stephen Brown, in his judgment yesterday in baby C's tragic case. The President observed that,
"whilst the sanctity of life is vitally important, it is not the paramount consideration"
—in such a case. He gave leave to treat baby C, as advised by her doctor, including,
"palliative care to ease her suffering, and permit her life to end peacefully and with dignity".
The same compassionate approach should surely also apply to the treatment of terminally ill adult patients of sound mind.
7.56 p.m.
Lord McColl of Dulwich: My Lords, I am grateful to the noble Lord, Lord Lester, for introducing the debate. The essence of his argument is that there is a lack of clarity over the management of people who are dying. There is no lack of clarity, however, among the thousands of palliative care doctors and nurses. I have been in practice for 40 years and have never come across lack of clarity. I am very much associated with a hospice in the East End for those dying of Aids and have never come across any lack of clarity there.
There are many aspects in the distress of a dying patient—physical, mental, spiritual; all great anxieties—but they can all be dealt with in different ways. If a drug is required, we can try to establish the appropriate medication to relieve the specific symptoms. Sometimes it takes a few days to adjust the dose of the drug. But when the correct dose is achieved, it usually remains at the same level; it is rarely necessary to go on increasing it. Once a patient is free of pain, he or she often lives longer than they would have done if they had not had an analgesic. Pain itself is a killer. On the other hand, occasionally the doses required are so great that it is possible that the patient's life would be shortened by a small amount in order to achieve their comfort—the so-called "double effect".
The noble Lord, Lord Lester, sought the ruling of the court and the treatment available to Annie Lindsell. When the case came before the court, we were told that her doctor was seeking the permission of the court to administer drugs to relieve her mental and physical distress during the final stages of the disease. Why go to the High Court to ask permission for a procedure which is carried out numerous times every day in hospices throughout the land? Why not consult a specialist in palliative or motor neurone disease or, better still, both? Indeed, when the case ended, permission was granted for the doctor to administer 10mg of diamorphine every 12 hours. That is less than the doses which are regularly legally given by doctors throughout the land caring for their patients.

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Then came the most puzzling part of the case. The noble Lord, Lord Lester of Herne Hill, proudly told the media, "We won what we wanted." Far from winning what they wanted, I suggest that it was a failed attempt to legalise euthanasia in this country through case law. Annie Lindsell was seeking a judicial review legalising medically supervised voluntary euthanasia. I suggest that at the start of the proceedings the court was actually asked to permit such large doses of analgesics that they could only have resulted in the death of Miss Lindsell, thereby her becoming the first legal case of euthanasia in the United Kingdom. However, the court and its advisers saw through that. It rather looks as if those in favour of euthanasia are deliberately seeking to change our statute law by causing confusion and public anxiety and by discrediting the current legal framework; and they hope to do it through the courts. The general secretary of the Voluntary Euthanasia Society stated a short while ago that he felt Parliament would not have the courage to change the law and that change would have to come through the courts. That is exactly what happened in Holland. Those who advocate a change in the law would like to see something along Dutch lines. That is why they find our current law unacceptable. They want to keep intentional killing illegal in statute but allow it to be permitted in certain circumstances for those who want it.
The Duke of Norfolk: My Lords, perhaps I may say that the custom of the House is that if a noble Lord stands up to intervene, like the noble Lord, Lord Lester has just done, he should be allowed to speak.
Lord Williams of Mostyn: My Lords, I take that point. However, in fairness to the noble Lord, Lord McColl, he has only four minutes.
Lord Lester of Herne Hill: My Lords, such are the customs of the House that if I wish to ask a short question, it will not count against the noble Lord's four minutes. The noble Lord has, I think, impugned the integrity of those involved in the case. Is the noble Lord aware that at the conclusion of the case, when a costs order was sought against the doctor and the patient on the basis that the case should never have been brought, the president was so satisfied that it was properly founded that he did not even hear argument on the matter but rejected it? Was the noble Lord aware of that when he made those statements just now?
Lord McColl of Dulwich: No, my Lords, I was not aware of it. But I still think that there was no need at all to bring the case. And that is the view of a large number of people.
If one lesson has emerged from the Dutch experiment in recent years, it is that 1,022 patients were given euthanasia in one year without their specific permission. That is what will happen here. To change the law to allow intentional killing—to permit euthanasia, doctor-assisted suicide, mercy killing, or whatever it is called—can only result in the irretrievable breakdown of the relationship between the doctor and the patient. The law needs no change here.
8.2 p.m.
The Lord Bishop of Southwell: My Lords, I am grateful to the noble Lord, Lord Lester of Herne Hill, for bringing this subject before your Lordships' House. It is one that needs to be revisited from time to time if only to remind us of the sanctity of life, given to us by God himself, and as such a gift to be revered and cherished. Furthermore, it provides the opportunity to reaffirm the position of the House of Bishops of the Church of England and the Roman Catholic Bishops' Conference of England and Wales, who in their joint submission to the Select Committee of your Lordships' House on Medical Ethics just four years ago stated:
"Both Churches are resolutely opposed to the legalisation of euthanasia even though it may be put forward as a means of relieving suffering, shortening the anguish of families or friends, or saving scarce resources".
That stance is unchanged.
The Churches went on to say, however, that there is a proper distinction to be made between deliberate killing and the shortening of life through the administration of painkilling drugs. Neither of the Churches holds that a dying or seriously ill person should be kept alive by all possible means for as long as possible. There is a correct and fundamental distinction between that which is intended and that which is foreseen and not intended. This is not just a matter of semantics. Doctors have long recognised that the use of drugs in certain cases to relieve pain in terminally ill people has hastened death and the important consideration has always been the intention behind the administration of drugs. The primary intention is the relief of pain and suffering; the secondary consequence is an earlier death. If there were drugs available which relieved pain but did not hasten death, then those would, of course, be used in preference.
This principle, clarified by the Select Committee of your Lordships' House, was reiterated by Sir Stephen Brown, President of the Family Division, at the end of October in the distressing case of Miss Lindsell, suffering from motor neurone disease, to which the noble Lord, Lord Lester, referred. Although that was hailed as a victory for patients all over the country, it is surely clear that Sir Stephen's judgment was simply a restatement of the law as it already exists.
I submit that the current state of the criminal law and medical practice hold properly balanced a subject of deep medical and ethical significance. Those who become vulnerable through illness or disability deserve special care and protection, and adherence to this overriding principle provides a fundamental test as to what constitutes a civilised society and inevitably conflicts with those who believe in the right of individuals to exercise absolute personal autonomy.
I urge Her Majesty's Government to ensure that the necessary resources are available to all those who offer palliative care and also to the valued hospice movement which has enabled so many to die with dignity and brought real comfort to their families. As one Canadian report succinctly concluded:
"We owe it to the dying to support and care for them as they pass through the valley of the shadow of death, and not to kill them".
8.6 p.m.
Baroness Pitkeathley: My Lords, I want to begin my maiden speech with my most sincere thanks to noble Lords on all sides of the House for their kind welcome and their warm offers of help to me. However, I also want to take this opportunity to thank the House for its help and support over a number of years, and not just since I have been a Member of it. I refer to my relationship with the House in my role as chief executive of the Carers National Association. I have sat many hours below the Bar or in the Gallery or in committee rooms listening to debates and questions relating to carers' issues. I am very grateful for the understanding and support which the House has always shown to caring issues, and especially for the cross-party nature of that support. As I stand here this evening, I remember, above all, the wonderful contribution made to this issue by the noble Baroness, Nancy Seear, so much missed, I am sure, by your Lordships, by me personally, and by the carers movement in general, for her wisdom and her commitment to the carers' cause.
Given the tradition of the House that maiden speeches should be uncontroversial, your Lordships will not be surprised to know that I do not intend to address some of the more difficult issues that we are debating tonight. But neither will your Lordships be surprised to know that I want to make my remarks on carers and remind your Lordships that for every terminally ill person there is very likely to be a family member who is involved, who is concerned with and about the legal and medical decisions which are under consideration. These families, too, have needs which go beyond their need for support in the distressing circumstances in which they find themselves. They need communication and they need involvement.
The issue of communicating with relatives is, I know, a difficult one, surrounded as it is with issues of confidentiality and loyalty to the patient who is terminally ill. However, too many relatives complain of lack of information—information given too late or given in a form which is incomprehensible. This is particularly the case where the patient is being cared for in an institution which is not especially sensitive to the needs of the terminally ill. The hospice movement, which started in this country and is so admired throughout the world, has a proud record of taking a holistic view of the family when someone is dying, but we should remember that 50 per cent. of deaths take place in hospitals which may not be specialists in palliative care.
I am not necessarily suggesting that information is deliberately withheld—often such decisions are made from the very best of motives—but the result is that the carers often feel bewildered by medical processes and confused by their surroundings. This bewilderment and confusion may be conveyed to their dying relative and can be avoided by a few minutes of a doctor's or nurse's time taken to offer simple explanations and acknowledgement of the family's concerns. "I'd been married to him for 35 years", said one carer, "and nursed him for the last six, but I just didn't feel involved in his dying at all. All the doctors and nurses somehow took over and made me feel like a spectator".
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Families do not want to be spectators. They want guidance about how open they can be with their relative and they want guidance about the opportunities they should have to help patients talk through their own fears. Too often families feel that they have to be cheerful and pretend to be brave and strong and thus have no opportunity to share their sadness. People fear that death will be violent and traumatic since most of us have no experience of what death is like. As one widower said:
"I didn't want the medical jargon—I just wanted to know how long she had and, most of all, would she be in pain and would I be able to cope".
We should not ignore the real fears which relatives have about how they themselves will cope with bereavement. Those fears are not confined to the emotional aspects of bereavement; the practicalities are important too, but what we must take most account of are the feelings between the terminally ill and their relatives.
Caring arises from a relationship. If you were not already in a relationship with someone, you would never become their carer. We all know that family relationships are very varied in their quality and their history. I would never suggest that they are all sweetness and light, but they are certainly often characterised by love and strong concepts of duty.
I beg your Lordships not to believe those who tell you that families do not care any more. Almost 7 million people in this country willingly take on the difficult task of caring for a relative and the way in which the end of that relationship is managed during a terminal illness is of vital importance. Surveys have shown that one of the major concerns of dying people is not the legal and medical issues—problematic though they are—but the overwhelming feelings of guilt they feel about being a burden to their caring relatives.
In conclusion, I am asking for involvement of relatives; not necessarily involvement in the very difficult decisions with which the debate is concerned but involvement in the sense that their feelings, their anxieties and their ability to contribute to a peaceful end of their relationships are borne in mind. If this is done, they can be seen as a resource for the hard-pressed professionals, not as a nuisance or as another problem to be dealt with. Above all, they can be a resource for the dying patient, enabling them to die peacefully and in the knowledge that these family relationships—which are, after all, the source of most caring in our society—are acknowledged and valued.
8.11 p.m.
Baroness Warnock: My Lords, I begin by congratulating the noble Baroness, Lady Pitkeathley, on, as one would expect, a most well informed maiden speech. I congratulate her also on her compassion and excellent delivery. I am sure that I speak for all noble Lords when I say that we hope to hear much more from her in the future.
In four minutes, I shall have to put my argument quickly but, speaking as a philosopher, one of the essential points here is to distinguish things that differ. The noble Lord, Lord Lester of Herne Hill, is not raising any general questions about euthanasia; nor about

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changing the law. He is simply seeking to clarify the specific way in which doctors and nurses may lawfully treat certain patients who are terminally ill and whose life in any case is certain to be short and is likely also to end in acute distress. I emphasise that word "distress" and the word "misery" because we are not speaking only about pain.
I emphasise the specific nature of the discussion because it is terribly easy to get carried away into suggestions that any possibly life-shortening procedure will start a descent down a slippery slope at the bottom of which lies the pit of putting to death those we think are not worth keeping alive. However, the slippery slope does not threaten us if what we are talking about is clarifying the right of the terminally ill to die peacefully.
My argument is that value judgments are involved here, on the part of the doctor, the patient and those who are caring for the patient. My hope is that the law should be so clarified that it will not seem to contradict or nullify such value judgments. The judgment involved is simply that to alleviate the patient's suffering is more important than to allow his life to continue for a few more days or weeks, whatever his suffering may be. What is at issue is not when, but how, the patient dies.
Part of the patient's suffering may well be the dread that he feels of dying by choking or by suffocation. As I know from personal and recent experience, a patient may be horrified by the thought of a particular manner of death even though he is stoical and realistic about the inevitability of death sooner rather than later. For such a patient, the reassurance from his doctor that that horrible death does not await him—that he, the doctor, will not allow it to happen—is an enormous relief and he can settle as calmly and as peacefully as his situation allows to face the short future.
It is important to recognise that the part of compassion here is to promise that the most horrible suffering will not occur. This entails that the doctor must claim to know both what the progress of the disease will bring if no extra steps are taken and that he is able to take such steps as will prevent what it is that the patient fears. I now believe that we ought to have it made clear for us that medical guidelines and prosecution policy will allow that such knowledge may be avowed by the doctor, and acted upon. I do not wish to see prolonged the use of the argument from double effect, but I do not have the time now to go into the details of that argument; nor do I want to go into the yet more shifty argument that the doctor does not actually know what will happen.
The point that I want to make crystal clear is that even if the doctor knows that the alleviating treatment will shorten the patient's life, if he judges that the alleviation of suffering is more important, he will not be liable to prosecution.
Finally, if that point can be clarified, I believe it to be of the utmost importance that the training of doctors should be a training in such compassion and that they should be taught that relieving suffering and fear are as important a part of their professional duty as prolonging life in the extreme situation of terminal illness. This would not be a licence for wholesale euthanasia; it
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would be to provide the possibility of the explicit judgment that peace and the absence of fear may be of more value than a day, a week or a month of mental and physical torture.
8.17 p.m.
Lord Swinfen: My Lords, I am neither a lawyer nor a doctor. In this matter I am a complete layman. However, as I understand the law, there does not appear to be any need for a change. I understand that a doctor may give whatever medication he genuinely believes is needed to relieve a patient's pain or suffering, even to the extent of sedation to keep the patient asleep. Provided that treatment of the patient is the doctor's intention and that it is in the patient's best interest, even if that treatment may shorten life, it is legally right and proper for the treatment to be given. When my time comes, I hope that no one will strive officiously to keep me alive, but will endeavour to reduce any pain that there might be at the time.
We all suffer pain from time to time, sometimes for long periods, and we recognise that pain is very tiring and that that fatigue of itself may well shorten life. The relief of pain in many cases will, I expect, give the patient a slightly longer and more comfortable life. Certainly, there will be a more dignified death.
I understand that although advances in pain relief have been dramatic in recent years, hospices have been accused of being able to help only 95 per cent. of patients suffering from pain. According to Dr. Robert Twycross, Macmillan Clinical Reader in Palliative Medicine at the University of Oxford, that is an inaccurate statement. Speaking in July this year he stated:
"The bottom line is making the unbearable bearable, and this is readily achievable with skill, imagination and determination in approximately 95 per cent. of cases. In the remainder, approximately 5 per cent., it is much harder to achieve this goal, but that does not mean that the patient 'cannot be helped' or is not to be helped. In extreme situations, patients will receive sedation to keep them asleep, around the clock if necessary, in order to ease the intolerable physical and/or mental distress. No one need die in agony. It is not necessary to legalise mercy killing/euthanasia to make this claim [a] reality".
I have a feeling that those in favour of euthanasia tend to muddy the waters, and wish to muddy the waters, in order to obtain a change in the law. I hope that the Government will resist that and not make any change.
8.20 p.m.
Lord Stallard: My Lords, I too am grateful to the noble Lord, Lord Lester, for initiating this debate. I have relied very heavily on the report of the Committee on Medical Ethics of 1994. I am not an expert or a lawyer. I must rely on the expertise of the House, and there is none better. The noble Lord who initiated the debate seems to be unclear about the position. Lawyers do not appear to understand what ordinary laymen like myself have understood since the production of that report. Certainly, doctors are well aware of the findings of that report and what happens in practice.
I have visited hospitals and seen the practical outcome of the recommendations of that report of 1994. I have spoken to doctors and Macmillan nurses who work in

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hospitals. There is no lack of knowledge or understanding in the profession; nor is there any lack of knowledge in the hospice movement. Without doubt this country has the finest hospice movement in the world. In all of these cases I should like to see the Government provide greater support to spread this knowledge which is available to most people but apparently not to those in the legal profession where it is most necessary.
I agree with the point that has just been made by the noble Lord, Lord Swinfen. I do not know whether it is deliberate or whether it is part of a campaign, but there appears to be reliance on High Court cases to try to change the law, not through Parliament but through case law as has happened in the Netherlands. The results have been disastrous, not only for the law but for patients, their families and everyone concerned. I hope that we shall resist the temptation to go down that road.
I read this case from start to finish. The noble Lord who initiated the debate said that "we had won everything that we wanted". Those were his exact words. I did not understand it. What they had won was already there. The law is quite clear, and that court case proves it. The case collapsed because the Official Solicitor, the judge and everybody said that there was no need for a court ruling. They understood it. I do not know why the legal representatives of that poor, sad patient, for whom they had the greatest sympathy, did not understand it. Nor did the doctor understand it, if he is quoted correctly. Those of us who are interested in these matters understand it but we do not know why others cannot understand it. I hope that no positive move is made in the direction of building up case law to try to change the law on euthanasia rather than pursuing the parliamentary process. I hope that I am wrong but I have my suspicions that that is the case.
If there is lack of knowledge in this area I ask the Government to ensure that information is made available to everyone. That may well be done by improving the facilities available to the hospice movement, increasing the funding of GP services and the training of GPs to make them better informed than certainly one of them appears to be and improving the understanding of some in the legal profession. Have the Government any views on how those people can be made aware of what is already known to most others about help that can be given to many in dire circumstances at the moment? Patients, relatives and others who do not understand the position are being misled by others who should understand it. The Select Committee thoroughly examined all of these issues. I hope that the Government will reaffirm their confidence in the recommendations of that report and do what they can to publicise the results.
8.25 p.m.
Baroness Elles: My Lords, the House is indeed grateful to the noble Lord for giving it the opportunity to discuss this most crucial of issues—that of life and death—and to hear the views of the Government as they are now set out.
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As I understand it, the current state of the criminal law is contained in the judgment of Lord Devlin in the Adams case in 1957:
"A doctor consents to do all that is proper and necessary to relieve pain"—
I stress the next words—
"even if the measures might incidentally shorten life by hours or perhaps longer".
Forty years later—about three weeks ago—Dr. David Oliver, medical director of a hospice, emphasised in a letter to The Times of 11th November concerning the court case involving Annie Lindsell—whose name, very understandably, has been raised by most speakers—that it was standard practice in hospices and specialist palliative services and should be made available to any person with advanced motor neurone disease, cancer or other terminal illness to use carefully adjusted doses of morphine, diamorphine or other medicines to relieve pain, breathlessness or other symptoms. He pointed out that the average duration of the use of morphine at home for patients with motor neurone disease was 240 days, about two thirds of a year. The average duration of the use of diamorphine by injection was two days. One recognises the difference.
The conclusion of the Select Committee on Medical Ethics published in 1994 was that,
"there should be no change in the law to permit euthanasia, nor the creation of a new offence of mercy killing".
Many noble Lords have already concurred with that conclusion.
However, the need for a new judicial forum to handle cases concerning medical treatment of incompetent patients is to be supported. I do not believe that other noble Lords have touched on this matter but it is a big subject. I believe that the point should be made in this debate. It was clear from the evidence received that there was a need for the removal of the mandatory life sentence for murder, particularly in those rare cases where, say, a relation had felt compelled to assist a patient to die other than a natural death. For instance, that relative could receive a suspended sentence. I believe that special care must be given to those cases. One cannot just write it off and say that the law is satisfactory. The law may be satisfactory but one must recognise that there are elements on the fringes of this debate which must be considered and dealt with.
The medical treatment of terminally ill patients has undergone fundamental change in recent years, even since 1994. First, it is no longer left solely to a doctor but includes the healthcare team and the patient who can consider the suitable and available options. That is very important. Secondly, the increase in methods of palliative treatment in the past 25 years, including advances in the application of medical technology in the past few years, has shown that as at 1994 under 1 per cent. of cases had not received relief from pain in the course of dying. A great tribute is due to Dame Cicely Saunders, a continuing provider of care, interest and concern. The many improvements in palliative care are due so much to her initiative.

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Proposals in the report, continued research, extension of the opportunity for palliative care from hospices to other hospitals throughout the land, and the possibility for doctors and healthcare staff to continue medical treatment needed for the relief of pain—all are proposals which have been encouraged and supported. I hope that the Government will be able to say some words in response. In conclusion, the task of the doctor is to cure and to care. That principle must remain paramount.
8.30 p.m.
Lord Alderdice: My Lords, I would like to express, as many others have done, my thanks to my noble friend Lord Lester of Herne Hill, for introducing this debate. In doing so he is reflecting a debate which is going on in the community at large. Some years ago, in an eminent book on medical ethics, a chapter was introduced with the comment that we are now in an age of anxiety so far as ethics are concerned. When it came to re-publication of the book some years later it was described not as an age of anxiety but as an age of ethical crisis. Whether one entirely subscribes to that or not, there can be little doubt that there has been a change in the situation.
I recall as a junior doctor finding myself on a number of occasions having to deal with these kinds of matters. After struggling with them and, often in collaboration with the patient, coming to a conclusion as to how we should act, I felt that I was doing the right thing. In most cases I believe that together we probably did do the right thing. In listening to the challenging and very distinguished maiden speech of the noble Baroness, Lady Pitkeathley, it seems to me that she has pointed out that there has been something of a change in development. For now, families, carers and the rest of the circle want to be involved in these matters, and there has been a development in the technology of the treatment such that we can extend life in a way in which it simply was not possible in the past.
It seems to me that in this context it is not sufficient to depend on legal and professional approaches of a previous generation. When I find many noble Lords saying that thus it has been and thus it should continue to be, it seems to me that what is being expressed is a deep sense of anxiety about the difficulties with which we must now necessarily struggle because of these new situations where patients and their relatives are no longer prepared merely to leave it in the hands of lawyers and the law or indeed in the hands of doctors and their art. They want to be involved and they want to struggle with the questions. I see this debate as part of our struggle as a society to deal with these new elements and developments, not elements to leave our principles behind but rather an opportunity to apply our fundamental principles in a new, changing and developing situation.
As we struggle to look at these things, it is not wise for us to polarise the debate into extreme positions, but rather to realise that it is rarely the more extreme positions that provide the difficulty. They are often the clearest. It is the more complex cases which often provide the greatest struggle and the greatest difficulty and problem in reaching a conclusion.
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It seems to me that this uncertainty in dealing with things is also leading to a problem in the community. While the family circle and patients want to be involved in the whole matter, they are complex issues and we all find them so. For example, some are finding the question of the involvement of medication such as morphine confusing. Realising the possibility of double effect, some are now beginning to request that morphine not be used, even though it may get rid of pain, as there is a fear about some of its other effects. It seems to me that this is an expression of people wanting to struggle with the difficulties but fearful because the knowledge is not entirely there and we have not found our way through to dealing with the complexity of these issues.
I do not wish to go on at length because many other and much more distinguished noble Lords have contributions to make much above what I have to say. It seems important to me that as we struggle to deal with these things we should not allow ourselves, in the anxiety of the problems with which we have to deal, to depend on the answers we gave in previous times when the profession of medicine simply stood on its dignity and was able to say, "I am doing a great thing and I should not have to explain myself to anyone else who knows less." The medical profession is struggling with these issues, working with patients and working with the family circle. Medical training now involves a greater degree of training and exploration of medical ethics in collaboration with philosophers, theologians and others in our medical schools. This is good because it is struggling with the difficult questions, but it does not mean that an answer is easily forthcoming. It places on all of us a bounden moral duty to continue to struggle with the increasingly difficult questions.
8.35 p.m.
Lord Hayhoe: My Lords, as many speeches have shown, this debate overlaps the debate on the Select Committee on Medical Ethics held on 9th May 1994. Just as the debate and the whole surrounds of that committee were subject to misinterpretation and misreporting in some areas, so I fear this debate may suffer in the same way. I was glad that the noble Baroness, Lady Warnock, made the point that she made at the beginning of her contribution.
I wish to say a word about palliative care because that is referred to in the Question. The best definition I have seen of that was given by the National Council for Hospice and Specialist Palliative Care Services to the Select Committee which said,
"Palliative care:
—affirms life and regards dying as a normal process;
—neither hastens nor postpones death;
—provides relief from pain and other distressing symptoms;
—integrates the psychological and spiritual aspects of patient care;
—offers a support system to help patients live as actively as possible until death;
—offers a support system to help the family cope during the patient's illness and in their own bereavement".
I reaffirm those wise words and I hope that nothing is said, either in or about this debate, to detract from them.

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I am sorry that the sensible and responsible conclusions of that Select Committee, particularly its clear conclusion,
"that there should be no change in the law to permit euthanasia"
are not more widely accepted throughout the country. But, alas, the euthanasia lobby rolls on and I would not be at all surprised if our debate today is muddled or misrepresented by supporters of euthanasia.
Another wise conclusion of the Select Committee on Medical Ethics was:
"We strongly recommend the development and growth of palliative care services in hospices, in hospitals and in the community".
Let me declare an interest as a rather inactive president of Help the Hospices and immediately offer the warmest possible tribute to the Duchess of Norfolk who, by her efforts and example, has helped the hospice movement in our country become such a notable national achievement. We really do lead the world in this area. Perhaps my noble friend the Duke of Norfolk would tell his wife with what affection and admiration she is held by all of us who know of or have benefited from her work with Help the Hospices. Of course, none of us must ever forget the pioneering work of Dame Cicely Saunders, a truly wonderful lady, and all those who are participating in hospice work.
Euthanasia is the enemy of the hospice movement, as recent experience in Holland, referred to by my noble friend on the Front Bench, shows only too well. I am resolutely opposed to any change in the law to facilitate euthanasia. I would like to see a growing partnership, better training and closer co-operation between the voluntary hospice movement and the NHS, for in the long term that relationship will lead to steady improvements in palliative care, and as that improves so the demands for euthanasia will, I believe, reduce.
I hope that the noble Lord who introduced this Question tonight will endorse what the noble Baroness, Lady Warnock, said about this not being in any way a debate about euthanasia. It is on a fairly narrow legal point that he seemed to be raising these issues and I hope that it does not lead to any misunderstanding or muddle outside this House. Perhaps in his reply he could make that clear.
Lord Lester of Herne Hill: My Lords, before the noble Lord sits down, and although I have no final word, perhaps I may say that I agree with every word that the noble Baroness, Lady Warnock, said, and have nothing to add.
8.40 p.m.
Lord Alton of Liverpool: My Lords, notwithstanding that intervention by the noble Lord, Lord Lester of Herne Hill, the fact remains, as the noble Lord, Lord Hayhoe, has told us, that there will of course be some confusion outside this House about the issues which are before us, not least because many will recall that hard cases make bad laws. Notwithstanding what the noble Lord, Lord Alderdice, said, there are some
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undying principles, one of which is the sanctity of human life. Those principles are timeless. They do not need to be reviewed from generation to generation.
I was struck that in the previous Session your Lordships under the chairmanship of the noble Lord, Lord Walton of Detchant, produced such an excellent report on euthanasia. After 20 oral hearings and over 60 written submissions, unanimous agreement was reached. I am disappointed that there is such an orchestrated and calculated attempt to resurrect the issue and to try to legalise the killing of the infirm.
The noble Lord, Lord Lester, instigated today's debate, because he claims that the law in relation to the palliative treatment by doctors and nurses of the terminally ill is unsatisfactory. He of course acted as amicus curiae (an impartial friend of the court) in the tragic case of Tony Bland. That Liverpool supporter, desperately injured at Hillsborough in 1989 was, as noble Lords will recall, starved to death. The noble Lord argued:
"the artificial prolongation of corporeal existence"
may degrade and demean humanity. He stated that life was only valuable as a vehicle for consciousness. That defines humanity and equates life with the ability to think. Insensibility becomes a fate worse than death itself and even becomes a disqualification for life.
In the Bland judgment in 1992 the noble Lord won the day, despite a number of Law Lords expressing serious reservations about the case. The noble and learned Lord, Lord Mustill, stated:
"the withdrawal of nutrition and hydration was designed to bring about death. That was why it was done".
The noble and learned Lord continued:
"It was decided that it was time he died".
For the first time then the courts crossed the line and legally sanctioned the intentional killing of a patient; that is, euthanasia. The extension of the noble Lord's argument, logical enough if one accepts the basic premise, came in a recent edition of the Lancet. A leading physician, Sir Raymond Hoffenberg, suggested that patients in a persistent vegetative state should be given lethal injections and their organs taken for transplants.
So now we have it. If someone becomes insensible we can avoid the costs and inconvenience of hospices, about which the noble Lord, Lord Stallard, and others have talked, and rather than waste one's mortal remains by starving one to death, one will be used instead as a rich source of organs. The flaws in the argument revolve around questions of consent, the commissioning of doctors and nurses as killers, and the fundamental question of what constitutes life itself.
When Tony Bland was injured at Hillsborough, three people who were then my constituents were killed. One was a child. Another, Andrew Devine, like Tony Bland, went into a deep coma. In the Guardian newspaper of 26th March this year it was reported that after eight years Andrew Devine had become aware of his surroundings and was communicating with his family. The Guardian reported also on another case, of a man who had been thought to be in a state of PVS for some

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seven years. Last March, Andrew Devine's family was able to talk publicly about the improvements that had taken place in his life. Imagine the appalling pressures which would have been placed on his family if the present presumptions in the law were overturned. There is a clear line between killing and letting die. The present law recognises that. "Care" and "kill" cannot be used as synonyms.
Last month, the noble Lord, Lord Lester, no longer an impartial adviser to the court, but now retained by the Voluntary Euthanasia Society, went to the court. He tried, as we have heard, to obtain permission for the doctor of Annie Lindsell, who suffers from motor neurone disease, to administer drugs which would relieve her mental and physical distress during the final stages of the disease. The case collapsed because it was agreed that under the principle of double effect no court ruling was needed.
Collapsed court cases which uphold the existing law do not come cheap. In an appeal letter, the Voluntary Euthanasia Society says that the case could cost some £50,000. Out of the jaws of defeat, as the noble Lord, Lord McColl, said in a speech with which I agree entirely, the noble Lord said:
"We won what we wanted".
What is it that the VES wants?
Dr. Michael Irwin, chairman of the VES, was pictured in the summer holding a customised exit bag, and claimed to have helped 50 people die. He told the Daily Telegraph:
"I do not believe I can be convicted".
Ms. Lindsell herself says that she wants "medically supervised voluntary euthanasia".
As the BMA has trenchantly recognised, euthanasia is morally, legally and ethically unacceptable. In a civilised society it should stay that way.
8.45 p.m.
The Duke of Norfolk: My Lords, I congratulate the noble Baroness, Lady Pitkeathley, on her maiden speech. There is a happy tradition in this House that every maiden speaker is helped. The House stays silent. The doors are closed. Then Peers say how much the speaker has contributed, and how wonderful it is to have such a speaker with us. That may be a formality, but in the noble Baroness's case that is a meaningful sentiment. I thank her very much.
I thank also the noble Lord, Lord Lester, for bringing this subject to our notice. I do not agree with almost everything he has said. He was concerned with the court case of Annie Lindsell. The court held that there was double effect. The noble Lord then apparently said that he did not believe in double effect and that it was incoherent to talk about it.
That is not the case. The noble Lord criticised the judge's decision. The case was then withdrawn. The Voluntary Euthanasia Society backed Annie Lindsell's case. What is more important it supports the Law Commission's current proposals on mental incapacity. That would make advanced refusals of treatment
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living wills—legally binding, so making euthanasia available to all. Such a concept amounts to assisting suicide.
The proposed Bill also accepts research procedures on patients without their consent. That may well be contrary to European and international law. I must pay tribute to Dame Cicely Saunders, as the noble Lord, Lord Hayhoe, has done. She has done such wonders in this field. She chairs St. Christopher's Hospice. She is a qualified doctor and qualified in many other medical ways. We should all realise that she is the queen of the modern hospice movement.
Dame Cicely Saunders says so simply that the hospice movement helps people to live until they die. That is a simple but wonderful sentiment. I am well acquainted, through my wife's charity—Help the Hospices, for which she raises over £1 million a year—with the fact that hospices assist the terminally ill to die through palliative care without pain. We have an amazing 270 hospices in the country now. We have become, as has been said, the envy of the world with that movement. People flock to England to study us to learn how we do it.
As a Catholic Christian I believe that doctors should continue to follow the ethics of the Hippocratic Oath, to help patients medically and, where possible, to preserve their life. Life is sacred. To change our present laws to allow voluntary or, worse still, involuntary euthanasia, would be a step down a slippery slope which could lead to the killing of the unwanted. That is a horrid thought.
I believe that if we allowed euthanasia to be legal we would be going in the same direction as Holland. The decision in Holland is leading to disastrous situations. I do not want to be dramatic, but if you do not treat life as sacred it leads to doing what Hitler did in the war. I have been to Belsen and Buchenwald and I believe that it is vital to stop sliding down that slope. Do not let us ever bring euthanasia into our laws.
8.51 p.m.
Lord Walton of Detchant: My Lords, I, too, congratulate the noble Baroness, Lady Pitkeathley, on her maiden speech. I assure her that in the deliberations of the Select Committee, which I had the privilege of chairing, we were very conscious of the need to introduce the concept of the healthcare team, including not only doctors and nurses but also the carers and family members who are all concerned with the management of the patient. In our unanimous decision, we had no doubt whatever that we did not wish to see the legalisation of voluntary or non-voluntary euthanasia to be defined as the deliberate killing of a patient either at the patient's request or, in the incompetent individual, non-voluntary euthanasia for other reasons. We were strengthened in that resolve by what we observed during our visit to Holland.
While we rejected legalised euthanasia we were wholly supportive of double effect. Admittedly, that concept has been criticised by certain philosophers, but we took the view that the professional judgment of the healthcare team could be exercised to enable increasing doses of medication—whether analgesics, sedatives or

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both—to be given in order to provide relief, even if that had the secondary consequence of shortening life. The essential question was that of distinguishing between motive and intention. If the motive is to relieve pain, distress and suffering with no intention to kill we believe that practice to be wholly acceptable both in medical practice and under the current common law.
I believe that the case which the noble Lord, Lord Lester, discussed tonight and in which he was involved did no more than to strengthen the acceptance of that concept in common law which arose as a result of Lord Devlin's judgment in the Bodkin Adams case many years ago. Like many others who have spoken tonight, I commend the work of the hospice movement, of the palliative care movement. It is not delivered only in hospices as buildings; it is a philosophy of medical care and management which extends widely throughout the country and out into the community.
I do not wish to elaborate on those points because the time is short. However, I disagree with the noble Duke on the issue of advance directives. They are not concerned at all with suicide. The advance directive will enable patients to express in advance their individual preferences and priorities in respect of treatment should they subsequently become incompetent. It is no more and no less than that. They are being increasingly accepted in common law. However, I do not wish—and the BMA agrees with me—to make them legally binding if only because developments in medical treatment may make their content no longer appropriate when the time comes to consider whether they should be relied upon in management.
I disagree with the noble Lord, Lord Alton, on the issue of the Bland case, where two notable Roman Catholic theologians writing in the Tablet said that the withdrawal of artificial nutrition and hydration in such cases was to be seen as an omission which was not an intending of death but a refusal to continue with inappropriate means of life preservation. However, that issue gave my Select Committee considerable concern. There were those who believed that the withdrawal of hydration and food was the withdrawal of a basic human right. In the end, we decided to recommend that there was no obligation to continue with treatment which added nothing to the well being of an individual as a person.
We would wish the Government to comment upon the major recommendations which we made towards the end of our report to the effect that there was a need for a newly established judicial tribunal, perhaps established along the lines of an expanded court of protection, to examine issues in cases of, for example, the persistent vegetative state.
This has been a useful debate. There is a great deal of biased, ill-informed and misguided comment in the press to suggest that doctors are practising euthanasia. All the evidence that I have been able to obtain suggests that they have been practising double effect. That has been badly distorted in the public press. I believe that euthanasia, whether voluntary or non-voluntary, is abhorrent and I should never wish to see the law of this country changed to legalise it.
8.55 p.m.
Lord Ashbourne: My Lords, I, too, thank the noble Lord, Lord Lester of Herne Hill, for initiating the debate. I have always taken a close interest in developments within the medical field, especially those developments which have a particular bearing on people with disabilities. As some of your Lordships may know, I have a handicapped son and I am concerned about the care of people with disabilities.
Since 1967, when Dame Cecily Saunders founded the modern hospice movement, about 800 specialist palliative care homes and units have been developed in this country. We are widely viewed as the leader in advancing all aspects of care for the terminally ill. The case was well made by the noble Lord, Lord Hayhoe, and the noble Duke, the Duke of Norfolk. Indeed, many doctors and nurses from Europe, and other countries beyond, now travel to the United Kingdom to learn from our experience.
I appreciated the intervention of the right reverend Prelate the Bishop of Southwell in his balanced and authoritative speech. Furthermore, I enjoyed the admirable and well informed maiden speech of the noble Baroness, Lady Pitkeathley.
The law relating to the treatment of the terminally ill has been in the news recently. Indeed, the noble Lord, Lord Lester, who introduced this Unstarred Question, played a leading role in a recent case. I do not wish to go into the detail of that particular case, but I would like to quote from a letter published in The Times of 10th November in the aftermath of that case in the High Court. The letter, written by David Oliver, Medical Director of the Wisdom Hospice in Rochester, states:
"A person with a terminal illness should not fear that the only choice is between enduring a distressing death or having their life ended. With good palliative care, addressing the physical and psycho-social issues, death for people with motor neurone disease does not need to be distressing. Symptoms can be controlled by the careful manipulation of medication, without necessarily shortening life".
I believe that it is the job of doctors and nurses to treat and to care and we as a society have no right whatever to call on them to kill. Our perceived inability to provide effective palliative care at the end of a patient's life is, I would say, an erroneous one, and being able to make a patient comfortable at the end of life should be the aim of a decent and caring society. It should not step beyond that and make it into an excuse for assisted suicide.
We should not now be calling into question the criminal law and medical practice in relation to palliative treatment. The law in this area is absolutely clear. We should instead concentrate on the great advances that have been made in palliative medicine and question instead the Government on their plans to help develop further this important area of medicine.
8.58 p.m.
Lord Meston: My Lords, with the arrival of the noble Baroness, Lady Pitkeathley, once again carers have a voice in this House. We sadly lost that when we lost the late Lady Seear and Lady Faithful]. For that reason alone, the noble Baroness is very welcome.

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I had the privilege of serving on the Select Committee on Medical Ethics, which considered a wider range of questions than that posed by my noble friend, which focuses on the interaction of the existing criminal law and on medical practice by doctors and nurses. It is emphatically not a Question about legalising euthanasia or any other form of mercy killing. Certainly I do not understand my noble friend to be arguing for a change in the law, and indeed, I was saddened to hear it suggested, in particular by the noble Lord, Lord Alton, that that was the case. I understood him to be arguing for a change in the law in so far as he did not accept the outcome of the Bland case in which, I would remind your Lordships, the judges at every level acceded to the application before the court.
Personally, I remain loyal to the conclusions of the committee so long as those conclusions are acceptable to the doctors who have to take those decisions and acceptable to others in the healthcare teams. The BMA is properly concerned about preserving the doctor-patient relationship. Doctors want to be seen as people who kill pain, not patients. My noble friend sought clarity for the medical profession and for those who insure it, who advise it and for prosecutors and coroners and patients and their families. They are all entitled to clarity in those difficult and borderline cases. I support my noble friend's call for guidance.
The noble Lord, Lord McColl, asked why it was necessary to go to court in the Lindsell case. I know as little about the facts as perhaps the noble Lord, Lord McColl, but I presume it was because the doctor and the hospice concerned felt unsure of their position and wanted the sanction of the court. It was not for any other motive.
The criminal law, inescapably, is concerned with concepts of intention and causation. The doctrine of double effect has been criticised as sophistry and dependent upon a narrow definition of intention. But it does at least allow a doctor to justify the giving of drugs to alleviate pain which he realises will or may hasten death provided that doctor has confined himself to the question: how much pain relief does this patient now require?
In the trial of Dr. Arthur, the judge directed the jury to think long and hard before concluding that what was standard medical practice was a criminal offence. But that of course begs the question of what is appropriate medical practice in a difficult and borderline case. In the vast majority of cases, doctors and carers can avoid criminal liability because of the doctrine of double effect and because in this country we have a strong and widespread hospice movement and a good system of palliative care, allowing most people to achieve a pain-free death.
My noble friend confronts the difficult minority of cases in which pain and distress are not easily avoided by palliative care; where doctors have to take greater risks and still wish not to be charged with having intended to cause an early death. I do not believe in slippery slope arguments. I understand my noble friend to be seeking a foothold on the slippery slope. The question for the Government must be whether there is
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sufficient guidance available to doctors from professional bodies, even if that is a guidance which does not appease those who support voluntary active euthanasia or doctor-assisted suicide. We do not want a compromise such as in the Netherlands which is based only on vague guidance and an ambiguous legal framework. I regret it may only be a matter of time before there is another case involving someone like Dr. Cox, who was fortunate in avoiding a charge of murder as distinct from attempted murder and, had he been convicted of murder, would have faced a mandatory life sentence.
A partial answer may be to give status to advance directives. A partial answer may be also to give some statutory effect to the doctrine of double effect such as happens in South Australia where statute allows doctors to give life-shortening treatment to the terminally ill with the intention of relieving pain and distress provided that the patient consents; that it is administered in good faith and without negligence; and that it is administered in accordance with proper professional standards of palliative care.
9.4 p.m.
Lord Williams of Mostyn: My Lords, I thank the noble Lord, Lord Lester, for introducing this debate and, in particular, I offer my congratulations on a notable maiden speech.
I have enormous respect for everyone who has spoken this evening and for the views expressed. The question asked by the noble Lord, Lord Lester, is quite unambiguous. It is to ask the Government:
"whether they are satisfied with the current state of the criminal law and medical practice in relation to the palliative treatment by doctors and nurses of terminally ill patients".
I shall give the answer as directly as I can.
The Government are satisfied that the criminal law and medical practice are appropriate. We do not support the legalisation of euthanasia or mercy killing or any fancy label that may be attached to those practices. I go further with statements of principle which will necessarily be brief. They are not discourteous but my time is limited. This Government believe that matters of clinical judgment are for the professional judgment of the professional bodies and the clinicians involved and not for Government. It is foolish, and I believe it is wrong, for Government to attempt to intervene in those areas.
Questions have been asked about the stance of the Crown Prosecution Service. There is no difficulty whatever about its stance. It states:
"A doctor may not take steps positively to end a patient's life even where such a course of action is consented to by the patient".
I do not detect any difficulty there. The CPS is well aware of the Bland case where the noble and learned Lord, Lord Goff, stated authoritatively that it is an established rule of our law that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer pain-killing drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient's life. I am not a doctor; my brother is. I should not have thought that he would

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have the slightest difficulty in understanding either of those two plain, simple concepts. I am bound to say that I agree entirely with the thrust of what the noble Lord, Lord McColl of Dulwich, said.
I do not believe that the doctrine of double effect is at all a sophistry. It is a recognition that in those areas, at those times of great distress, we are dealing with delicate matters. They are matters of fine judgment. They are matters which call for legitimate judgment for clinicians and carers.
The ruling in the Bland case was quite plain: that artificial hydration and treatment, as the noble Lord, Lord Walton of Detchant, reminded us, could be categorised as medical treatment which could lawfully and legitimately be withdrawn if it was not in the patient's best interests to continue to treat him in that way. These are not easy answers, but they are answers that can be arrived at conscientiously by doctors and others who care for the terminally ill.
Perhaps I may, without presumption, entirely endorse the tributes paid to those who deal in hospices and elsewhere with the palliative care of the terminally ill. In fact, it is a fortunate, happy coincidence that on Tuesday of this week my noble friend Lady Jay, the Minister who has responsibility for this area, paid specific tribute to the work of hospices. I respectfully endorse her words. She said:
"Successful partnerships in hospital and palliative care have produced the principles and the practice of palliative care in hospitals, at home, in nursing homes and, of course, within specialist palliative care units or hospices".
She said to those who work in the area:
"You have done this by working with other statutory and voluntary bodies across professional boundaries"—
and this endorses what the noble Lord, Lord Alderdice, and the noble Baroness, Lady Pitkeathley, said in their remarks—
"always keeping the patient, the family and the carers as the focus. These principles are precisely those on which we wish to move forward towards our goal of high quality compassionate healthcare".
The noble Lord, Lord Lester of Herne Hill, indicated that the law was difficult or obscure; it is not. A question was raised as to whether a specific court needed to be set up to deal with such issues. I do not believe that a specific designated court is required. I personally pay tribute to the President of the Family Division, Sir Stephen Brown, because he has given judgments which he must recognise are bound to be criticised by one spectrum of the argument or another. He has to maintain the delicate balance. In a case to which the noble Lord, Lord Lester, alluded, he said that no declaration was required. He made a declaration earlier this week, as the noble Lord pointed out, in the case of a very small infant.
The courts do approach these matters with scruple and with care, recognising, as I believe one must, that whatever answer a judge comes to is bound, in one
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sense or another, to be partly wrong, as none of us is divine and, therefore, infallible. However, as a government, we believe that human life is entitled to the fullest, deepest respect. We do not believe that any doctor, upon his conscience and oath, ought to be entitled to administer treatment to any patient in his or her care with the intention of bringing about death. That is not sophistry; it is moral philosophy. Sometimes the consequences will be harsh for the dying patient and sometimes—and I say this with every care—it will be harsher for the relatives of the dying patient. But the fact that a human judgment upon a moral and professional basis brings about harsh consequences does not entitle us to divest ourselves of our responsibilities.
It is said that there is not enough guidance for clinicians. I respectfully disagree. I shall not weary your Lordships at this hour with details because many noble Lords will have the list more readily available than I. But the care of the dying is a central part of the training of doctors. The hospice movement has produced paper after paper dealing with such issues. The sort of debate that we are having this evening informs those—and I say this, again, carefully—who may wish to be informed. However, not everyone is in that happy state.
I do not believe it to be a complacent statement to say that, in the interrelationship between what is lawful—what is permitted—as prescribed by law and the question of clinical judgment, the law must respect the clinician and the clinician must respect the law: both, of course, must respect the dying. They are not easy resolutions to be brought together but they are not impossible. I believe that the examples given this evening, whatever the outcome of the judicial process, illustrate that fact.
We should also bear in mind—and I respectfully concur with what the noble Lord, Lord McColl of Dulwich, said—that doctors, carers, and nurses, in conjunction with concerned relatives, are coming to these conclusions day in and day out. Occasionally, a headline case goes to court and some of those headline cases then get into newspaper reports. I believe that we have a proper, civilised regime in this country which is as close to being fully acceptable as any of which I know.
Therefore, I return again to the question, having been more economical than I might have been by about three minutes only. The law is perfectly plain. It has been reaffirmed recently in the words of the noble and learned Lord, Lord Goff, which I venture to cite.
"The position, I believe, is plain to the medical profession. The law knows its duties of protecting the vulnerable and I believe—I say this with infinite respect—that the medical profession knows its duties and responsibilities also."
The question of advanced declarations is in a sense a side-track here because no advanced declaration of wishes, at whatever stage it is given, is capable lawfully to suborn the clinician's true professional judgment.
House adjourned at fourteen minutes past nine o'clock.