Lords Sitting of 27 November 1997

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Exeter.):The LORD CHANCELLOR on the Woolsack.

Prison Overcrowding
Lord Hyltonasked Her Majesty's Government:
What further measures they have in mind to eliminate overcrowding in prisons and to prevent the deterioration of daily regimes.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, the prison population this year has been consistently rising. The resulting levels of overcrowding are jeopardising the provision of constructive regimes targeted at tackling offending behaviour, to which the Government are committed. In recognition of these difficulties, the Government have provided the Prison Service with an additional £43 million this year and next to provide additional places and support regimes. We have also set in motion a number of measures intended to reduce overcrowding. From 1st October we introduced plea before venue which will not only speed up the court process but should also have a significant effect on the prison population. In addition we are committed to providing effective and tough community punishment in which the courts and the public have confidence in order that a better balance may be achieved between the use of custody and other disposals. Last week I announced to your Lordships our intention to introduce home detention curfews for prisoners nearing the end of their sentences. These will provide a way of managing the transition between custody and living in the community.
Lord Hylton: My Lords, I thank the noble Lord for his most helpful reply. Is he aware that I welcome in particular what he said about a more balanced penal policy and about non-custodial sentences? Will the Government provide resources for those community supervision programmes which have been shown to be effective, and will they impress on sentencers the urgent necessity to make more use of them?
Lord Williams of Mostyn: My Lords, I am most grateful to the noble Lord for his general support. The figures are grave. The most up-to-date information I have is that the prison population is now the highest ever recorded—63,788.Of course we want to adopt a flexible armoury in dealing with offenders, bearing in mind in particular that public protection is the important overarch, as I have said on previous occasions. We need to have flexible remedies for differing offenders and differing offences. One of the tasks that the Home
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Secretary has put his mind to is considering the allocation of resources between custody and alternative methods of dealing with people in the community.
Lord Archer of Sandwell: Lords, does my noble friend agree that probably the most effective way of reducing overcrowding is to reduce recidivism? That depends largely on the effectiveness of the Probation Service. In view of the answer which my noble friend has just given, does he agree that more resources for the Probation Service would be money well invested?
Lord Williams of Mostyn: My Lords, that is part of the thinking behind the review which the Home Secretary has in hand of the relationship between the Prison Service and the Probation Service, because in a sense they are both labouring in the same vineyard. My noble and learned friend is absolutely right. Recidivism is a significant feature of the custody statistics. We believe that, to stop recidivism, we need to go to the very heart of matters; namely, re-examining the youth justice system.
Lord Lane: My Lords, does the noble Lord agree that probably the only practical way of reducing the danger of an explosion in the prisons is by generous use of amnesty; namely, the release of prisoners—probably non-violent prisoners—long before their due release date?
Lord Williams of Mostyn: My Lords, perhaps I may personally welcome the identity of the questioner since I frequently appeared before him in happier times—I ought to say as an advocate rather than as a defendant. The Government do not believe that amnesty is a proper way to deal with these matters. We have introduced the managed return from custody into the community. We believe that wholesale amnesty has difficult constitutional implications, not least with regard to the relationship between the executive and the judiciary.
Lord Henley: My Lords, the noble Lord accepts that building can play a part in dealing with the problem of prison overpopulation. He will accept that we built quite a large number of new prisons, particularly under the private prison programme which his party opposed when they were in opposition. Can he confirm that the Government have now agreed to an expansion of the private prison programme?
Lord Williams of Mostyn: My Lords, we found no practical alternative in dealing with the situation which we inherited other than to continue, first, with some contracts that had already been let; and, secondly, to expand the programme. We are not able to afford ourselves the luxury of putting political dogma before practical consequence. I am sure your Lordships will find that to be an extremely refreshing change.
The Lord Bishop of Leicester: My Lords, while security is of vital importance, does the noble Lord agree that if staffing levels do not allow adequate work and education opportunities for inmates, even security suffers through general institutional tension?
Lord Williams of Mostyn: My Lords, I entirely agree with the right reverend Prelate. What I said earlier was not that security is the overarching determinant but that public safety is. Public safety depends on a proper civilised regime in prison, not least in trying to equip prisoners to return to a productive and fruitful life. Developing education and skills, with proper staffing levels, is extremely important in that context.
The Earl of Longford: My Lords, in view of what the Minister said earlier, how can he defend the Government's plan to cut the Probation Service?
Lord Williams of Mostyn: My Lords, what I said earlier, I think—if I did not, there will be plenty to assist me in correction—was that the Home Secretary had it in mind to review carefully the relationship between the Prison Service and the Probation Service. That is a step of common-sense utility. I should have thought that it might reasonably be welcomed by all Members of your Lordships' House.
Lord Ackner: My Lords, in the light of overcrowding and the cut-back in the budget, does the Minister agree that prison, so far from working, is now established to be a very expensive way of making bad people worse, as previous Home Secretaries have said? If he agrees, what steps will the Government take to re-educate the public in that direction?
Lord Williams of Mostyn: My Lords, I have heard the citation on a number of occasions that prison is an expensive way of making bad people worse. As with all truisms, it has a grain of truth in it, but it is not an entire answer to the total question. The blunt fact is that some people have got to be kept in prison because they are a danger to the public.
Noble Lords: Hear, hear!
Lord Williams of Mostyn: That being so, no responsible Home Secretary is simply going to let people out.
Baroness Trumpington: My Lords, does the Minister agree that there are far too many people on remand whose cases are put off for a variety of reasons? What measures do the Government intend taking to cut down that waiting time and thereby let out more people?
Lord Williams of Mostyn: My Lords, the noble Baroness is right. The over-representation of those on remand in the prison system is a gross blot. We are already putting remedies in hand. We shall introduce specific time limits for juvenile offenders who will be speedily dealt with. We are encouraging the courts to resist applications for adjournments. We hope that within a year or two we shall be able to point to a very significant advance in the time between arrest and the final disposition of a particular offender. I entirely agree with the sentiments put forward by the noble Baroness.

European Central Bank: President
3.11 p.m.
Lord Renton of Mount Harry Lord Renton of Mount Harry asked Her Majesty's Government:
Whether they intend to support any particular candidate for the presidency of the European Central Bank; and, if so, whom.
Lord McIntosh of Haringey: My Lords, the Maastricht Treaty makes it clear that only member states which are participating in EMU are involved in the appointment of the president of the European Central Bank.
Lord Renton of Mount Harry: My Lords, I thank the noble Lord for that reply. Can he then confirm that, as long as we are out of the economic and monetary union, we shall not have a British member of the six-man executive body; we shall have no representative on the governing council; nor, if the article by the French Finance Minister in today's Financial Times is to be believed, shall we have any representative on the informal council in which first-wave EMU members will co-ordinate their economic policy? Under those circumstances, is it not really a danger for Britain that, as long as we are not in the European Central Bank, we shall suffer from decisions of that bank which will affect us, while we shall have no part in the making of those decisions?
Lord McIntosh of Haringey: My Lords, I can certainly confirm that as long as we are not members of EMU we shall not be members of the executive board or the governing council. The noble Lord is ahead of me in his reading of the Financial Times. My understanding is that the general council exists to cover both the "ins" and the "outs" and covers relationships between the two, and also that we shall be represented on that council. As regards the question of what decisions are being taken, a great number of them are already either incorporated in the treaty or have been taken by the European Monetary Institute, of which we are members.
Lord Mackay of Ardbrecknish: My Lords, while I appreciate that the Government do not intend to join the euro at this stage and that they will not have any say in who will become president of the European Central Bank, perhaps the Minister can share with us whether in general terms, if the Government were in a position to influence the matter, they would prefer a German banker who believed in sound money or a French banker who did not.
Lord McIntosh of Haringey: My Lords, that is a good try, but I am not in any way going to respond to the noble Lord's invitation to me to exhibit xenophobia. As I understand it, the choice is not between a German banker and a French banker, but between a Dutch banker and a German banker.
Lord Bruce of Donington: My Lords, is the noble Lord aware that in any event the question is to some

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extent academic because the real decisions are taken every month, a fortnight before every Council of Ministers' meeting, by France and Germany meeting under the provisions of the Franco-German Treaty of 1963?
Lord McIntosh of Haringey: My Lords, I am constantly being tempted. I have been tempted into xenophobia and now I am being tempted into a conspiracy theory. I shall not follow my noble friend down that road.
Lord Peston: My Lords, I am sure that the question is neither xenophobic nor one of conspiracy. The noble Lords, Lord Mackay of Ardbrecknish and Lord Renton, put their fingers on something which is of fundamental importance to this country. Therefore, is my noble friend aware that if what they say has any remote connection with the truth— and I believe that it does—there are enormously serious consequences for this country in our laggardness in getting involved with EMU? Those of us who try to be as supportive as we can of the Government are placed in great difficulties when we see the most important decisions facing this country, of which we have just had a very good example, still being left to others and we revert to what has always troubled us—namely, our propensity to complain in the future about things we could do something about now.
Lord McIntosh of Haringey: My Lords, in terms of the original Question, I believe that our inability to take part in the choice of the presidency of the European Central Bank is a relatively small price to pay. But of course my noble friend is perfectly entitled to widen the debate and I always enjoy it when he does. We have taken the view, which was reported to Parliament and debated there on 27th October, that there are sound economic reasons—notably the need for sustainable economic convergence—which make it impossible for us to join EMU at the outset.
Lord Jenkins of Hillhead: My Lords, is the Minister aware that if Europe is run by a Franco-German partnership, as the noble Lord, Lord Bruce of Donington, alleges, it is not due to any treaty of 1963 but to the persistent detachment of Britain, which he so strongly advocates, but which I hope—not yet with total confidence—this Government are in the process of correcting?
Lord McIntosh of Haringey: My Lords, I have no intention of getting involved in a debate between the noble Lord and my noble friend Lord Bruce of Donington. As regards the more important matter which the noble Lord, Lord Jenkins, raised, I am delighted to hear, because I believe he is right, that we are showing a very different attitude towards Europe from that of our predecessors. We are the first Government to say that there are no constitutional bars to our membership of European monetary union and that we intend to enter it in due course.
Viscount Waverley: My Lords, the UK presidency comes at a crucial moment where a spare seat by rotation could be considered. Can the Minister say whether it is wise to have the influence of politics over single currency monetary authorities, which would arguably impact its credibility? If so, what measures can be introduced to deflect such a circumstance?
Lord McIntosh of Haringey: My Lords, I am not entirely sure that I understand the noble Viscount's question. If he is referring to the executive board or the governing council of the European Central Bank, it is indeed open to those bodies to keep spare seats available at the outset. But we have no indication as to whether or not they intend to do so.
Noble Lords: Next Question! Lord Longford! Order!
The Lord Privy Seal (Lord Richard): My Lords, we took nearly nine minutes on the first Question. We have now reached 16 minutes and I believe that we should move on.

Prisons: Education Expenditure
3.18 p.m.
The Earl of Longford The Earl of Longford asked Her Majesty's Government:
What was the expenditure on education in prisons in 1995-96 and 1996-97; and what will be the expenditure in 1997-98 and 1998-99.
Lord Williams of Mostyn: My Lords, I can provide figures on how much the Prison Service has spent on education in past years. But the service can only estimate what it will have spent this year and what it will spend next year. That is because responsibility for deciding how individual prison budgets should be allocated to elements of the particular regime, including education, and other purposes lies with each governor. Governors buy education provision from local education suppliers on a monthly basis. That allows them to vary the amount of education they buy according to need.
Against that background, I give your Lordships the following figures for Prison Service expenditure on prisoner education: £36,956,000 in 1995-96; £34,481,000 in 1996-97. The service estimates that in 1997-98 it will have spent £36,266,000.
The Earl of Longford: My Lords, may I venture to ask the much respected Minister whether he will allow me to share his obvious discomfort at giving such a distressing Answer? Is he aware that this country is said to be—I am glad to think that it is—richer than ever and we are getting richer and richer, but we are also given to understand that our prison population is increasing? Am I correct in saying that the amount that is spent on education in prisons is decreasing in real terms? Can the Minister provide any conceivable justification for that?
Lord Williams of Mostyn: My Lords, discomfort is always in the eye of the beholder and I do not feel at all

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discomforted or uncomfortable. With due deference to our predecessors, I must say that the recent fall has to be measured against the earlier rise in such spending of almost 21 per cent. between 1993 and 1995. Of course, we shall never reach a situation where we have funds available for every worthy cause. We are trying to establish and maintain a constructive, civilized prison regime which—I cannot emphasise this too strongly—this Government believe must include re-education and reskilling for the outside world.
Lord Judd: My Lords, does my noble friend agree that in any civilized approach to penal policy, the biggest challenge of all is the rehabilitation of prisoners, and that in terms of prisoners' rehabilitation it is difficult to think of a higher priority than education? Therefore, can my noble friend reassure us that the Government are committed, as resources permit, to giving education within the prison system the priority that it deserves?
Lord Williams of Mostyn: My Lords, I am most grateful to my noble friend for that question. Rehabilitation is enormously important, as I indicated a few days ago, and that is why we are intent on introducing the tagging scheme, which will give those prisoners who are serving between three months and four years and who are within two months of the end of their incarceration the opportunity to return to the community. That is an important aspect of rehabilitation. I can absolutely confirm that, when the resources are available, we intend to tackle these long-lying, deep-seated problems in the prison regime, but we cannot do everything overnight.
Lord Monkswell: My Lords, bearing in mind that expenditure on education in the Prison Service is devolved to individual governors, can the Minister tell the House what variation there is in such expenditure between the different establishments and whether the Home Office conducts any research about the outcome of the differential education expenditure in our prisons?
Lord Williams of Mostyn: My Lords, we are intending to appoint a director of regimes at prison board level, with assistant directors responsible for different components of the prison system. One of those assistant directors will have specific responsibility for regime services. We would expect those assistant directors to be in place not later than January of the coming year.
Baroness Thomas of Walliswood: My Lords, does the Minister agree that one of the most important services in preparing prisoners for their release, whether early or not, is the Probation Service? Does the Minister share the concern of many in that service that the fluctuations in expenditure on that service by prison governors have been as unpredictable and as difficult to deal with as those relating to the education of prisoners?
Lord Williams of MostynMy Lords, I believe that I touched on that question earlier when answering
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supplementary questions arising from the Question tabled by the noble Lord, Lord Hylton. I venture to repeat that the Home Secretary has in hand a review of the relationship between the Prison Service and the Probation Service, because we believe that both work towards a common purpose. Co-operation between the Probation Service and the Prison Service on a fuller and more integrated basis should be seriously considered.
The Earl of Longford: My Lords, does the Minister realise that what he has said will cause enormous pain to everyone involved in education, both in prisons and out of them? Does he also realise that this matter will be pursued relentlessly until we get a better Answer?
Lord Williams of Mostyn: My Lords, I accept the latter proposition—that the matter will be pursued relentlessly. Indeed, we welcome that. Any question relating to prison resources is respectfully answered. However, I do not believe that what the Home Secretary is doing in a multi-faceted attack on the problems of crime and criminals causes pain except to those criminals who may be adversely affected by it.

The Coal Industry
3.24 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What is their policy for the future of the coal industry.
The Minister of State, Department of Trade and Industry (Lord Clinton-Davis): My Lords, the Government's objective is to have secure, diverse and environmentally sustainable supplies of energy at competitive prices. Coal has a part to play in meeting that objective. Since taking office, we have taken several steps to ensure a fairer competitive market for coal.
Lord Ezra: My Lords, I thank the Minister for that Answer, but is he aware of the consistent reports that up to eight of the remaining 24 deep mines in this country are likely to be closed within the next few months, leading to 5,000 redundancies? If those reports are correct, what will the Government do about it? Furthermore, although the noble Lord has referred to the role which the Government would like coal to play in their energy policy, no announcement has been made of the details of that policy or of how coal can play that role if the rate of closures to which I referred earlier proceeds apace.
Lord Clinton-Davis: My Lords, as a result of the privatisation legislation, the Government's role is very limited. My honourable friend the Minister of State who deals with these matters, Mr. John Battle, has been engaged in constant discussions with representatives of both sides of the industry. The noble Lord suggests that we have done very little, but I remind him that we have already taken action to challenge unfair subsidies in Europe—a rather important matter; we have set up a review of the pool to ensure that coal is not priced out of

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the market; we have challenged gas contracts to ensure that the markets are not unfairly weighted against coal; we have had the fossil fuel levy to ensure that unfairly supported French nuclear power does not have too unfair an advantage, and we have challenged the advantage gained by the nuclear industry. We are seeking a level playing field. My honourable friend has therefore achieved a not inconsiderable record in only six-and-a-half months. I am aware of the difficulties confronting the industry, but perhaps I may add that it is for the main company concerned to sort out such problems.
Lord Hardy of Wath: My Lords, does my noble friend accept that we welcome the initiatives that the Government have taken with regard to unfair subsidies and unfair competition, particularly from Germany and Spain, but can he tell us what response there has been from the Commission and the national governments concerned? Is my noble friend aware that this country is developing a reliance upon future supplies of gas from parts of the world which cannot, and will not, be described as stable and that the case for coal still remains inadequately answered?
Lord Clinton-Davis: My Lords, formal complaints have been lodged over this matter. Indeed, the previous government failed to do that although the problems affecting coal loomed very large during their period in office. These matters are being investigated by the Commission, but such things take time. We have had very little time to deal with these matters but we shall continue to be alert to unfair subsidies. We are very much aware of the other matter to which my noble friend referred, but it leads to a much wider question which I do not propose to pursue at this stage. I am, however, fully aware of my noble friend's continuing interest in the coal industry.
Lord Fraser of Carmyllie: My Lords, will the Deputy Prime Minister tell the Kyoto Conference that it is a priority of Her Majesty's Government to save the United Kingdom's deep-mined coal industry?that. The balance that has to be achieved is how we can best advance the interests of the coal industry?
Lord Clinton-Davis: My Lords, it comes ill from—
Noble Lords: Answer!
Lord Clinton-Davis: My Lords, I shall answer. It comes ill from the noble and learned Lord to question something to which his own government, through the right honourable John Gummer, were very much devoted. There seems some inconsistency there—not surprisingly.
With regard to our position at that conference, I have made it clear, as have the Prime Minister and the Deputy Prime Minister, that our intention is to achieve a proper balance. We have to take account of the dangers affecting the world's environment. It would be a complete abdication of responsibility if we failed to do
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that. The balance that has to be achieved is how we can best advance the interests of the coal industry within the framework that I have announced this afternoon.
Lord Dormand of Easington: My Lords, is my noble friend aware that as recently as 22nd October I was told in answer to a parliamentary Question that coal use would remain significant in the future? Does my noble friend agree that that means there must be a United Kingdom coal industry, if only for security of supply? The question of subsidies has been mentioned on two or three occasions. Is my noble friend aware that Germany and Spain have no intention whatever of obeying the European Union on this matter? Therefore, is it not quite feasible and recognisable that we in this country should take the same view, at least for a period?
Lord Clinton-Davis: My Lords, I do not believe that the conclusion drawn by my noble friend, who has taken a very keen interest in the coal industry for many years, is correct. It is our intention to attack the unfair subsidies in those other countries, and we have taken action in that regard. We shall press the Commission vigorously on the matter. Referring to subsidies to RJB in particular, that company is extremely well endowed and is hardly an ailing concern. The company has made considerable profits over the past two years in particular and has paid its directors vast emoluments. I believe that it should look to its shareholders rather than the taxpayer to take some part in all this.

Royal Assent
3.32 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:
Firearms (Amendment) (No. 2) Act,
Local Government (Contracts) Act,
Plant Varieties Act.

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 to be made in another place on the youth justice White Paper. This will be followed by my noble friend Lord McIntosh of Haringey who will, again with the leave of the House, repeat a Statement on the year 2000 date change problem.
It may be for the convenience of the House if I also inform your Lordships that, subject to the progress of business, the House will rise for the Christmas Recess on Thursday 18th December. The House will sit at 11 a.m. on that day. The House will return on Monday 12th January.

Greater London Authority (Referendum) Bill
Brought from the Commons; read a first time, and to be printed.

Human Rights Bill [H.L.]
3.34 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD CHAIRMAN OF COMMITTEES in the Chair.]
Lord Henley Lord Henley: moved Amendment No. 63:
After Clause 9, insert the following new clause—
LEGAL AID
(" . Legal aid shall be available for proceedings under this Act.").
The noble Lord said: The Committee almost began to debate Amendment No. 63 last Monday. However, following the very wise intervention of the noble and learned Lord, Lord Simon of Glaisdale, who suggested that that was not necessarily the right time to debate such important matters in a major constitutional Bill, it was agreed to defer consideration of this particular amendment until this afternoon. I am grateful that we have this opportunity so to do. I hope that without too much trouble we shall complete this Bill today and get through the remaining amendments. Certainly, we on these Benches will give every possible assistance to achieve just that.
I have tabled this amendment purely as a probing amendment in order to put to the noble and learned Lord the Lord Chancellor a number of questions relating to legal aid and the Human Rights Bill. I detailed some of those questions when the noble and learned Lord was putting his wig back on as we were discussing the suggestion of the noble and learned Lord, Lord Simon of Glaisdale. I repeat them now. Perhaps the noble and learned Lord will tell us a little more about what he said in his speech in Cardiff. Bearing in mind that that speech was made in Cardiff, I should be grateful to hear more in this Committee. Can he also say a little more about the separate fund amounting to £4.5 million that he proposes to establish for human rights issues? Will that apply only to England—which I understand is as far as his writ runs on legal aid—or will it also apply to Scotland, or will there be a separate fund for Scotland?
Can the noble and learned Lord say something more about the Green Paper? I have asked about Scotland. Can he inform the Committee about the arrangements for criminal actions as opposed to civil proceedings? I imagine that different arrangements will have to be made. As to the Green Paper and its timing, since I first asked these questions on Monday I notice that the noble
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and learned Lord has tabled a Motion for Tuesday, 9th December to take note of the proposals of Her Majesty's Government for the reform of civil justice and legal aid. I presume that he will prefer to address a number of the issues which I have raised then. I also presume that that means the Green Paper will come out some time between now and 9th December. There would be little point in having a debate without the Green Paper. In the meantime, can the noble and learned Lord expand a little on the legal aid issues that I have addressed in terms of how they relate to the Human Rights Bill? I beg to move.
Lord Goodhart: I strongly support this amendment on behalf of my party. I shall be brief because I recognise that there will be another chance to discuss this matter on 9th December. We support the proposition very strongly. In the absence of a human rights commission the right to legal aid is absolutely essential as a method of bringing human rights convention cases to court. The alternative of conditional fee agreements is wholly unsatisfactory in relation to proceedings for breach of convention rights, because often damages may not be sought at all or when they are awarded they may very well be small. In those circumstances, the practicability of conditional fee arrangements, which may work perfectly well in other circumstances, really does not exist. I should very much welcome an assurance from the noble and learned Lord that there will be a method by which public funding can be obtained for deserving cases involving a breach of convention rights.
The Lord Chancellor: I shall respond to the probing amendment of the noble Lord, Lord Henley, as best I can, but he recognises that there will be ample opportunity to discuss these matters on Tuesday, 9th December. At present legal aid is available for criminal cases, judicial review and virtually all other proceedings in the courts, except defamation. As such, if the Bill were enacted here and now legal aid would be available on the current terms in nearly all proceedings brought under the Bill.
The reforms of legal aid that I have announced. in relation to which the Government will go out to consultation—I shall describe that more fully in a moment—especially moving to a system that can better control its price and what it is spent on, will allow us to ensure that, in future, proceedings relating to rights under the Bill receive their fair share of the money available.
My noble friend Lord Williams of Mostyn reminded this place both on Second Reading and earlier in Committee that I am giving serious consideration to Sir Peter Middleton's proposal that there should be a separate fund for public interest cases, including those involving rights under this Bill. I said in my Cardiff speech on 18th October that I believed it right in principle to make special arrangements for cases that raise issues of wider public interest and that I intended to consult about the details.
When making his proposals Sir Peter had in mind test cases involving novel points of law that were likely to produce an important precedent. But there are other

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criteria which could bring such cases within the scope of public interest; for example, cases that could bring some specific benefit to a wider group of people. So it is important, first, to define what we mean by "public interest cases". Having done that, we need to consider the best means of ensuring that they can be litigated. Sir Peter proposed a special fund, but there may be other options. We should also think about how best to make use of the expertise of bodies like the Public Law Project, Justice, Liberty and the Child Poverty Action Group. All of these matters require detailed consideration, and it is right that government should consult as widely as possible before reaching firm conclusions.
I have never promised a Green Paper. The noble Lord is not right about that, but I do not think that that matters much. The point that I make, and repeat, is the point made by my noble friend Lord Williams on Second Reading. We cannot deal with the details or the fine-tuning until consultation has been carried out. I am planning to issue a consultation paper early next year, but my officials have already begun informal discussions with various interest groups.
The noble Lord, Lord Goodhart, made a point about the inappropriateness, as he sees it, of conditional fee agreements for claims under the Bill, which he says might generally involve no or little damages. That is a matter that we shall also be taking into account in consultations.
Lord Henley: I wonder whether the noble and learned Lord will address—I do not believe that I caught it—the questions I asked about Scotland and whether the fund he is considering will cover Scotland as well or whether there will be a separate fund for Scotland.
The Lord Chancellor: My responsibility does not extend to Scotland, so I was addressing the position for England and Wales, which are within my responsibility. I shall write to the noble Lord about Scotland.
Lord Henley: I am grateful to the noble and learned Lord for that response. I apologise for misunderstanding him. I thought there was to be a Green Paper. I understand now that it is to be a consultation document which will come out some time in the new year. We will take note of that and what the noble and learned Lord has to say on 9th December when, I am happy to say, it will not be me responding on behalf of the Opposition but one of my noble friends who is slightly more learned in the law. I beg leave to withdraw the amendment.
3.45 p.m.
Lord Simon of Glaisdale: I understood what my noble and learned friend the Lord Chancellor said, but there is an important distinction to be made. At the moment we are borrowing to satisfy our present wants. We are borrowing a vast sum of money. The previous Chancellor of the Exchequer bore down valiantly on the scale of public borrowing, and the present Chancellor is valuably following him in that course. Nevertheless, we are borrowing money to satisfy our present wants. That
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is money that will have to be repaid by our children and grandchildren. We should be spending borrowed money only on projects which inure to the benefit of our children and grandchildren.
In a recent finance debate, the noble Lord, Lord Desai, took an austere view. He would only allow borrowed money to be spent on investments. I venture to think that education and training are equally justifiable. But when one turns to legal aid there is another important distinction to be made. At present, the headline figure for legal aid is £1.6 billion—an enormous sum. The net figure is probably somewhat less, but it will still be at least £800 million and probably considerably more.
A good deal of that expenditure cannot possibly inure to the benefit of our children and grandchildren. Some can: the public interest cases which are identified in the Middleton Report, to which my noble and learned friend the Lord Chancellor referred, and many cases which will invoke human rights by virtue of the Bill. I venture two things: first, I regard the no win, no pay expedient to obviate the cost of the impact of cuts in legal aid to be deplorable. I said so when it was introduced by the previous government. I venture to repeat that now. In view of our forthcoming debate, it is unnecessary to go into detail, but there is an alternative which covers the same ground as the no win, no pay project; that is, the scheme produced by the Bar Council, following proposals by Justice and various other bodies, including the Conservative Lawyers' Association.
I would ask my noble and learned friend to devote his attention to that and to put behind it the same energy and mental power which has obviously gone into the framing of the Bill. We are in danger of multiplying our avenues for channelling legal aid. Surely what has been said today reinforces the pleas that were made on Monday for a human rights commission, with its agenda suitably framed. It could channel the appropriate funds to appropriate projects which invoke human rights by virtue of the Bill.
Lord Williams of Elvel: As I understand it, as a matter of procedure, the noble Lord, Lord Henley, has asked the leave of the Committee to withdraw the amendment. Although we all recognise that the noble and learned Lord, Lord Simon of Glaisdale, has strong views on this matter, that seems to be the Question before the Committee.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon: moved Amendment No. 64:
After Clause 9, insert the following new clause—
PARTY LITIGANTS (SCOTLAND)
(" .—(1) In Scotland, no proceedings may be brought under this Act by a party litigant except with leave granted in accordance with this section.
(2) In Scotland, no proceedings brought under this Act may be continued by a person who, since the raising of the proceedings, has become a party litigant unless, since he has become a party litigant, he has obtained leave granted in accordance with this section.
(3) Leave to bring or continue proceedings under this Act may be granted by a Senator of the College of Justice in Scotland appointed for that purpose by the Lord President of the Court of Session.
(4) The decision whether to grant leave under this section shall be made by the Senator of the College of Justice in Scotland appointed for that purpose and he shall—

(a) if he considers that the documents mentioned in subsection (5) below disclose that the litigant has probabilis causa in relation to any alleged infringement of a Convention right which he seeks to invoke, vindicate or plead grant leave; and

(b) in any other case refuse leave, and give reasons in writing for the refusal.

(5) The documents referred to in subsection (4) above are—

(a) a draft of any writ which the party litigant proposes should be lodged in the proposed proceedings to enable the party litigant to attempt to assert any Convention right, or, as the case may be, a copy of any such writ already lodged in proceedings begun at a time when he was not a party litigant; and

(b) a full written statement condescending upon the character and circumstances of the alleged violation of the Convention right which the party litigant seeks to found upon in the proceedings.

(6) In this Act "party litigant" means a person who, at the material time, is not represented, in the proceedings or for the purpose of raising proceedings, by a person who enjoys a right of audience in the Court or before the Tribunal or other body in which the proceedings are to be raised or, as the case may be, are pending.").
The noble and learned Lord said: Members of the Committee who study the Marshalled List with a keen interest will appreciate that initially the amendment was tabled only in the name of the noble and learned Lord, Lord McCluskey. Unfortunately, the noble and learned Lord cannot be here today and has invited me to support the amendment and to move it before the Committee. He apologises for his absence, but is engaged in judicial business in Scotland. I shall speak also to Amendment No. 92.
The purpose of the amendments is to draw attention to a problem which is causing an increasing level of concern to judges in Scotland, in particular to high court judges, as they seek to assess the implications of the Bill on the work of the courts—in particular, the impact of Clause 7. Their concern, which I understand, is that some cases involving party litigants (as we refer to them in Scotland) occupy long periods of court time. That has consequences for other litigants whose cases must be postponed as a result or who must wait longer for their cases to be allocated a hearing. The amendments have been seen by the noble and learned Lord, Lord Rodger of Earlsferry, the Lord President of the Court of Session, who fully supported the noble and learned Lord, Lord McCluskey, in tabling them and seeking the Government's response to the problem.
Experience in Scotland is that in recent years party litigants have come before the courts in increasing numbers. In some instances, their cases are one-off disputes with individual local authorities or a government department. However, in other instances a controversial piece of legislation, such as the poll tax legislation, or a controversial new project, such as the new Skye bridge, has increased their numbers. As their numbers have increased so has the volume of court time which their cases have taken up.
Some party litigants have points of great substance. All tend to have a considerable knowledge of the facts of the particular case. If they also identify substantial points of law many advocate their arguments with great skill and a considerable measure of success. Those who are less able receive in Scotland, as no doubt in England, every possible assistance from the judge and any lawyer who may be appearing for another party. Such cases are not the problem faced by the Scottish judges.
The problem relates to those party litigants whose cases have no substance. As was mentioned on the first day of Committee by the noble Lord, Lord Williams of Mostyn, some cases are less meritorious than others. Unfortunately, when party litigants are concerned, cases without any discernible merit raised in a lower court are taken on appeal to an appellate court and consume a considerable amount of court time. The problem is that the party litigant concerned soldiers on with his case with no prospects of success, arguing irrelevant points of law, not understanding the factual issues which arise and, unfortunately, resistant to any guidance or assistance which the judge is able to give.
Many such people would qualify for legal aid if there were merit to their case, but because in many instances they are engaged in a crusade, some strike one as litigating as some form of hobby. They resist any guidance to see a lawyer and the suggestion that they should apply for legal aid. As a result, in some instances the courts are becoming unnecessarily bogged down.
Some Members of the Committee may believe that it is no hardship for judges to have to sit and listen to such individuals, many of whom have suffered in one way or another, and that it is part of a good system of justice to hear them out with as much patience and courtesy as possible before dismissing their applications or refusing whatever motion for damages or declarator order they may make. Some people may believe that judges have to do that. However, the problem is that in doing so there is an unfortunate knock-on effect on the court timetable.
The view that has been represented to me is that, in days when the courts, like all public bodies, are under financial constraint and increasing pressure from members of the public and others to provide a good service to litigants, to shorten the waiting time for a final hearing and to resolve cases as quickly as possible, the party litigants are frustrating those objectives to an undesirable extent. They are causing others to incur unavoidable delay.
The amendments have been tabled against that background. It is believed by the noble and learned Lord, Lord McCluskey, and his colleagues that the proposal would be of assistance. In Scotland, as opposed to the practice in England, there is no requirement for leave to be sought in applications for judicial review, nor is there any time limit within which such applications can be brought. The judges believe that measures along the lines proposed, which are designed to provide a screen or sift to enable a single judge to reject at the outset an application which plainly has no reasonable prospect of success, would merit serious consideration. In other parts of court procedure in

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Scotland—for instance, in connection with criminal appeals—there is a sifting procedure which has achieved a reduction in the number of cases going to a court hearing and consequently a speeding up of the cases which proceed.
The judges inform me that they fully accept that the amendments may not be the best or the only way of addressing the problem. I can see a measure of difficulty with the precise detail of what is put forward. However, the issue is raised because it is causing serious concern and I hope that in reply the noble and learned Lord the Lord Advocate will explain the Government's reaction to the amendments. I beg to move.
Baroness Carnegy of Lour: Members of the public are aware of the problem as a result of reading newspapers. Groups and individuals can cause problems as described. Will the noble and learned Lord the Lord Advocate tell the Committee whether such a problem exists south of the Border? If so, perhaps the Government will consider the amendment with a view to widening the provision.
4 p.m.
The Lord Advocate (Lord Hardie): Perhaps I may first deal with the point raised by the noble Baroness, Lady Carnegy. I understand that in England, as in Scotland, there are occasionally problems with party litigants. However, I understand that those problems are dealt with by the judges and the lawyers concerned. It is a question of the judges managing the cases properly. I do not understand there to be a serious problem in England because the judges do manage the cases.
I have listened carefully to the argument advanced by the noble and learned Lord in support of the amendments, which I note have effect only in Scotland, as the noble Baroness observed. However, the noble and learned Lord has failed to persuade me that, by accepting the amendments, I should not discriminate to an unacceptable extent against a party who chooses, for whatever reason, to represent his own interests before a court or tribunal in Scotland. That would be so even if it fell to the tribunal adjudicating on the convention right in question to assess the merits of a party litigant's claim.
The entitlement to vindicate one's legal rights in person is fundamental to our legal system and is, indeed, specifically entrenched in the case of criminal proceedings, in Article 6 of the convention. The effect of these amendments would be to impose a significant hurdle in the way of a party who chooses to avail himself of his right to appear on his own behalf when no similar obstacle is put in the way of the represented party. The requirement for application to the Court of Session as opposed to the tribunal adjudicating upon the convention right merely increases the size of that hurdle. It would be particularly unfortunate in the criminal courts in that a defendant would be unable to use his rights without leave.
I should like to give your Lordships a practical example of the discriminatory effect of these amendments. If a convention right became an issue in
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proceedings before an industrial tribunal, a party representing himself would be put to the considerable trouble and expense of seeking leave from the Court of Session to continue to represent himself when arguing the convention point before the tribunal. Delay, too, would be inevitable. I am sure that the Committee will agree that delay is in no one's interest. At the same time another party, who might be represented before the tribunal by a trade union official who would have a right of audience before that tribunal, would not need to seek leave. That would be patently discriminatory.
I understand fully the noble and learned Lord's concerns and the concerns of the judges that there is a risk that the courts will be burdened with spurious claims in respect of convention rights which might not have been raised if the party making the claim had access to legal advice. I cannot, however, accept the proposition that the way to deal with such claims is to create a system which favours the represented party by creating a barrier for the unrepresented. The unrepresented party, after all, is in need of greater assistance than the represented party in vindicating his rights and it is my understanding that the courts in Scotland and tribunals sitting there have a long and honourable tradition of support to the litigant who chooses to appear in his own behalf. Indeed, opposing counsel has a duty to draw to the attention of the court cases and authorities in favour of the opponent, particularly when the opponent is unrepresented. The creation of obstacles which only the party litigant is required to surmount would not be consistent with that fine tradition in Scotland.
In addition, I should mention that there is already a mechanism in place which enables the Lord Advocate to seek to have access to the civil courts by a vexatious litigant restricted, and this can be used to ensure that leave is required in the case of persistent litigants in convention cases as in any other case.
There are three further points that I wish to make. The first relates to the point made by the noble and learned Lord, Lord Mackay of Drumadoon, that in Scotland, unlike England, there is no need for leave of the court to present a petition for judicial review. The noble and learned Lord is correct to say that, but there is an exception. If a party litigant wishes to present a petition for judicial review, he requires to obtain the consent of the court to lodge the petition. Therefore, there is a requirement of leave in the case of a party litigant in that situation.
The next point that I wish to make is that the amendments are contrary to the Government's stated policy of "bringing rights home". They would make it more difficult for a person to enforce his rights in our domestic courts, in that he would be able to do so only if he were legally represented unless the Court of Session separately conferred a right on that person, a right which he has in any event.
Finally, as I observed at the outset, the amendment relates only to proceedings in Scotland. The position of a party litigant in Scotland does not differ significantly from the position in England and Wales. The imposition of such a burden on parties in Scotland alone would be discriminatory between the two jurisdictions.

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As I hinted earlier in my answer to the noble Baroness, Lady Carnegy, the position can be resolved by the judges managing cases. It is for the judges to take control of cases which come before them. If they perceive that people are abusing process, it is a matter for them and the remedy is in their hands. They can take steps to ensure that cases are conducted properly before the courts.
I hope that on further consideration and in the light of my comments, the noble and learned Lord is now persuaded that he should seek leave to withdraw the amendment.
Lord Mackay of Drumadoon: I am most grateful to the noble and learned Lord the Lord Advocate for his very full response to the amendment. I know that everything that he said will be read with great interest by the senior judges in Scotland.
I should like to think that up until now they have done everything they can to manage cases to the best of their ability. I am sure that the noble and learned Lord and I, in the course of our careers, have appeared against party litigants and we did all that we could to assist.
As I observed earlier in this Committee stage, there is less of a warm welcome for this Bill north of the Border than may be apparent here. As is reflected in this amendment, there is some concern in relation to the practical impact on the courts. Picking up from what my noble friend Lord Henley said on the last amendment and what I said on Monday night, I hope that, before long, the Government will be able to tell us all in Scotland which courts will have jurisdiction to entertain those proceedings and what the legal aid position will be, since that may well help the court in addressing the problems which lie behind the amendment.
In the meantime, however, in the light of the very full response for which I thank the noble and learned Lord the Lord Advocate, I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Power to take remedial action.]
[Amendment No. 65 not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 66:
Page 6, line II, after ("rights") insert ("and either—

(i) the period within which an appeal may be brought against the relevant judgment has expired, or

(ii) no further appeal lies to a British court from the relevant judgment").

The noble and learned Lord said: This is a comparatively short amendment which seeks to introduce into Clause 10 a requirement that before a Minister of the Crown or Her Majesty in Council could pass to the making of a remedial order following upon a declaration or declarator of incompatibility in terms of Clause 4, the period for appealing against that declarator would require to be expired or no further appeal to a British court from the judgment giving that declarator could exist.
The purpose of the amendment is relatively simple. It is to restrict the use of remedial orders following upon a declarator or a declaration and prevent it being used if there is any possibility of the judgment of the court being successfully appealed against. In terms of the Bill, as is clear from Clause 4, it will be competent for courts in both England and Scotland, and Wales and Northern Ireland for that matter, to grant declarator which could then be the subject of appeal to the Appellate Committee of your Lordships' House. It takes some weeks, and in many instances some months, for those appeals to be completed. It would be unfortunate in the extreme if, following upon a declaration being granted, a remedial order was then proceeded with if the decision of the High Court in England or the Court of Session in Scotland was to be overturned and the legal justification for proceeding with the declaration evaporated.
I readily accept that, when a declaration is granted, the Government and their legal advisers would no doubt consider the situation most carefully before passing to exercise the powers which are to be found in Clauses 10, 11 and 12 of the Bill. Nevertheless, there is an argument that we should do all that we can to ensure that there is no unnecessary conflict between the courts, on the one hand, and, on the other, the Government. It is against that background that I beg to move.
Lord Williams of Mostyn: I entirely understand the concern which lies behind the amendment, which was amply described by the noble and learned Lord; namely, what if the relevant Minister seeks to initiate the fast-track procedure in response to a declarator or declaration of incompatibility, only to find that the declaring court is overturned or varied on appeal? We believe that such a situation would be most unlikely to arise in practice because it is a discretion that the Minister has to introduce the fast-track procedure. I would find it hard to envisage circumstances in which the Government would want to exercise the power conferred by Clause 10 before the appeal process had been concluded.
Nevertheless, I recognise the concern behind the amendment. Perhaps I ought to take the matter away, consider whether a limitation of the kind suggested should be made on the face of the Bill—but I am bound to say that, as at present advised, it may not be—and also consider whether the present drafting might need a little attention.
Lord Mackay of Drumadoon: I am grateful to the Minister for that response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
Lord Coleraine Lord Coleraine: moved Amendment No. 66A:
Page 6, line 13, after ("Rights") insert ("made against the United Kingdom after the coming into force of this section").
The noble Lord said: I move the amendment partly as a probing device. During the debates that I have listened to in our Committee proceedings, I have been struck by how many speakers have claimed to be the first lay

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person to address the Bill. My own claim might be that 1 am the only lawyer speaking about the legislation who can claim, in the context of the Bill, to be a lay person. The Government may feel that consultation about the terms of this Bill has been going on for more than 20 years, both inside and outside Parliament. But I would make a different claim and say that, in view of the way that the Bill is going to affect every man, woman and child in this country, especially those who may find that they are being challenged by public interest groups on the ground that they are public authorities, effective consultation has been minimal and inadequate.
To date, the only reply to that point has been that it is up to lawyers to get themselves up to date and understand the workings of the convention very thoroughly. I should point out that that is not much help to a body which unwittingly finds, before it has had a chance to take legal advice, that it is being challenged by public interest groups on the grounds that it is a public authority.
I find myself at the foot of a very steep learning curve, and about my amendment I would say that it addresses, first, whether Clause 10(1)(b) should apply retrospectively to allow an administration to find grounds for invoking the fast-track procedures in order to comply with the findings of the Court of Human Rights which were made before this clause will come into effect. I do not know when the clause is expected to come into effect, and perhaps the Minister will be able to tell us. However, if paragraph (a) cannot operate retrospectively, then paragraph (b) should not. But that is not my main point.
The wording of the subsection is such that a United Kingdom administration could invoke the clause in respect of any finding of the Court against the United Kingdom, however long ago made. In addition—and it will not have escaped notice that my amendment thrusts in two directions—findings against other member states of the Council of Europe, whenever made, whether before or after the coming into force of this clause, may tempt an administration to take the short-cut, fast-track way through Parliament by saying that the finding of the Court against another country, perhaps made some years ago, shows that a provision of our legislation is incompatible with our obligations under the convention.
The Notes on Clauses tell us that paragraph (b) applies to adverse decisions in United Kingdom cases. When the Minister replies, it is possible that he will tell us that this is clearly provided for in the Bill and that there is no question of any other interpretation applying. I gain the impression that that is indeed what he is going to tell the Committee.
Under the clause, the Minister does not have to show that he is legislating to fill the gap in our human rights legislation pointed to directly by the finding of the Court, which the United Kingdom is bound by treaty to fill. He merely has, having regard to any finding of the Court, to decide that a provision of our legislation is incompatible with one or more of our obligations arising from the convention. I suspect that a Minister, if allowed to do so, could made such a decision perfectly
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reasonably on frequent occasions. All I would suggest is that he should not be allowed to take the fast-track if he did so.
In the case of legislation intended to make our laws comply with a specific finding of the Court against us, there is nothing in the Bill to prevent the administration carrying out an audit and carrying other statutory amendments on the back of the fast-track procedure beyond those required by the finding of the Court of Human Rights. That possibility is illustrated by the Chahal case and the recent passage through this Chamber of the Special Immigrations Appeals Commission Bill. I need not go into the details, but my noble friends Lady Blatch and Lady Anelay of St. Johns referred to the fact that the Bill went further than was required in order to respond to the Chahal case.
Yesterday in another place that Bill received its Third Reading and, because of amendments made in that place, it still has to return to this Chamber for further consideration. My honourable friend Mr. Clappison, looking ahead to the arrival of the Human Rights Bill in another place, pointed out that this was one more reason why it was most important that the Houses of Parliament should be able to give the fullest possible attention to amendments to human rights legislation, which should be subject to full parliamentary scrutiny and debate and, indeed, be susceptible to amendment.
I see no reason to question the good sense of legislating outside and beyond the strict requirements of a finding of the Court against us, wherever appropriate. I also realise that the Government, were they to have introduced the legislation necessitated by the Chahal case after the coming into force of this Bill, might not have used the fast-track procedures. I say that they "might not", but I do wonder. The temptations facing an administration, when it is a question of by-passing or marginalising Parliament, are hard to resist.
It seems to me that Clause 11 of the Bill gives wide powers to an administration to legislate beyond what is required by a specific finding of the Court of Human Rights, and that paragraph (b) of Clause 10(1) of the Bill needs further scrutiny. I beg to move.
Lord Goodhart: In my party we see some force in that part of the amendment moved by the noble Lord, Lord Coleraine, which restricts the operation of the fast-track procedure to decisions made after the coming into force of the clause. What we take issue with is that part of the amendment which restricts the fast-track procedure to decisions made against the United Kingdom. It is clear from the existing provisions of Clause 10 that if,
"it appears to a Minister of the Crown … that, having regard to a finding of the European Court of Human Rights, a provision of legislation is incompatible with one or more of the obligations of the United Kingdom arising from the Convention",
the fast track procedure under Clause 10 applies. It would certainly appear that that would apply to a decision not only given against the United Kingdom but against another country too. Indeed it is perfectly appropriate and reasonable that it should.

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What is the position if the judgment given against some other country shows that some provision of United Kingdom legislation is clearly incompatible with the European convention? The position then is that the Minister will have two options. He can either proceed in the ordinary way by primary legislation, which will require finding a place in the queue—and that may well be difficult—or he has to wait until someone in this country sees fit to litigate, or seeks to litigate, exactly the same point in the European Court. At the end of that proceeding he will then, but only then, be able to make use of the fast-track procedure.
Indeed it is quite possible that the petition of an applicant in that position to the European Court might be held to be inadmissible because the law had already been clearly established by the previous decision against a different country. It certainly seems to us that where a decision against another country makes it clear that some provision of United Kingdom legislation is incompatible with the convention, the Minister in those circumstances should be entitled to consider whether to make use of the fast-track procedure, and do so if he thinks fit.
Lord Mackay of Drumadoon: As I had understood the provisions of Clause 10(1)(b) with the benefit of the Notes on Clauses, the policy of the Government is that the finding referred to is a finding against the United Kingdom. If that be the case, I suggest to the Minister who is to reply to this amendment that the speeches we have just listened to from the noble Lords, Lord Coleraine and Lord Goodhart, make it clear that another construction of the clause is possible. I readily accept that. There clearly is some doubt about this. This may be another clause which merits some further consideration.
Lord Williams of Mostyn: I am most grateful to the noble Lord, Lord Coleraine, for his careful exposition of what lay behind the amendment. However, I must dissent from his proposition that there has not been consultation on this Bill. The noble and learned Lord the Lord Chancellor and my right honourable friend the Home Secretary indicated quite plainly that their doors were always open throughout the summer. Having been involved on various occasions, I assure the Committee that there was consultation with regard to anyone who wished to put forward a view, whether orally at a meeting, at a further meeting or in protracted correspondence.
On the substance of the amendment I quite understand the purpose, which is to restrict Clause 10(1)(b) to findings of the European Court of Human Rights in cases involving the United Kingdom. It would also make it clear that the remedial order power could not be used in respect of findings pre-dating the coming into force of Clause 10. I shall address those points separately.
On the first point it is conceivable that Parliament might want to amend United Kingdom legislation following a court ruling in a case which did not involve the United Kingdom. For example, there might be a finding in a case involving the Republic of Ireland
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where the Irish legislation was in similar terms to ours and it appeared that our legislation might be incompatible with convention obligations. Apart from such a case, we find it difficult to envisage a situation in which a Minister might consider that a Strasbourg judgment in a case against another state—not the United Kingdom—made it appropriate for him to seek to use the remedial order procedure to amend United Kingdom legislation. I am therefore prepared to take this point away—as has been suggested by the noble and learned Lord, Lord Mackay of Drumadoon—to consider whether we ought to put it beyond doubt that the power under Clause 10(1)(b) should relate only to United Kingdom cases. I believe that deals with the first point which was explained so clearly by the noble Lord, Lord Coleraine.
On the second point, we think that it is implicit that the power to make a remedial order does not extend to cases where the Court finding pre-dates the coming into force of Clause 10. Clause 22 makes express provision for the circumstances in which another provision of the Bill—Clause 7(1)(b)—may apply to acts committed before it comes into force, and that implies that, in the absence of express provision to the contrary, the Bill should not have retrospective effect. However, as we said at the outset of our deliberations on this Bill, we are eager to see whether it can be improved consistent with the scheme of the Bill, as the noble and learned Lord the Lord Chancellor said. I am perfectly content to consider before the next stage whether this measure should be made clear on the face of the Bill. I hope the noble Lord will find that response helpful. On the basis of that response, I ask him to withdraw his amendment.
Lord Coleraine: I found what the noble Lord, Lord Williams of Mostyn, said a full response and one that was helpful to the Committee with regard to the points that I raised. I shall read what he has said. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart Lord Goodhart moved Amendment No. 67:
Page 6, line 15, at end insert—
("( )Within a reasonable time following a declaration of incompatibility under section 4, a Minister of the Crown shall make a statement to Parliament giving reasons as to whether or not he will exercise the power conferred by subsection (2).").
The noble Lord said: I move this amendment in the unavoidable absence of my noble friend Lord Lester of Herne Hill, who very much regrets that he is unable to be here today. This amendment has the relative merit of being more or less self-explanatory. It requires a Minister to make a statement,
"giving reasons as to whether or not he will exercise the power conferred by subsection (2)",
of Clause 10. Clause 10(2) states,
"If a Minister of the Crown considers that, in order to remove the incompatibility, it is appropriate to amend the legislation using the power conferred by this subsection, he may by order make such amendments to it as he considers appropriate".
That is the bare bones of the matter, but a Minister should be required, first of all, to consider whether he will exercise that power with reasonable speed. He

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should then proceed to announce that decision, whether favourable or not, and he should give reasons for it, again whether favourable or not. That is more important when his decision is unfavourable.
As it is, in the absence of any provision such as is contained in Amendment No. 67, it appears that there is no time limit on the Minister's obligation to consider that there is no action required on his part. He is not required to announce that he has decided not to take any action. There is no requirement for him to give reasons for not taking action, or indeed for taking action if he decides to do so. The result is that, first of all, there will be a lengthy period of uncertainty for the applicant, who will not know whether the Government will take action under the fast-track procedure or whether it will be necessary for him to take the case to the European Court in Strasbourg in order to obtain a judgment from that court that the United Kingdom Government are in breach of their obligations under the convention.
Secondly, there will be no opportunity for Parliament to be informed of the Minister's decision and there will be no possibility of debating that decision in the absence of any reasons being given, even if it is informed of that decision. In those circumstances, I ask the noble and learned Lord the Lord Chancellor seriously to consider introducing a measure which specifies in more detail the obligations of the Minister in exercising his powers under Clause 10(2). 1 beg to move.
4.30 p.m.
Earl Russell: At Second Reading the noble and learned Lord the Lord Chancellor said that a declaration of incompatibility would be likely to happen extremely rarely and would be taken with considerable gravity. It is part of that gravity that Parliament, the litigant, the courts and all other interested parties should be entitled to know at the earliest possible moment the response of the Minister concerned to such a declaration: what he is likely to do; whether he is likely to do anything and, if not, why not?
I am sure that with the present noble and learned Lord on the Woolsack there will be no difficulty on this point. But I hope that we are making legislation which may last a century or longer. In those circumstances we cannot predict which Ministers may be in charge of its enforcement and application. There have been cases where responses of Ministers have been remarkably dilatory. A few moments ago—noting the noble Lord, Lord Allen of Abbeydale, in his place—I was reminded of a Motion he carried in this Chamber in 1995. It called for changes to regulations in social work training for probation officers. He carried that Motion in this Chamber by a considerable majority. The Home Secretary received the response from the electorate before the noble Lord, Lord Allen of Abbeydale, received a response from the Home Secretary. I do not think that that gave the noble Lord, Lord Allen of Abbeydale, a great sense that he had been taken with the seriousness that he deserved by the Home Secretary.
It would be easier to engage in an informed discussion about a certificate of incompatibility. Occasionally informed discussion may be needed. If the
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Minister were prepared to kick off that informed discussion by coming to Parliament and saying what he thought about the matter and what he proposed to do about it, it would be in the interests of justice.
Lord Williams of Mostyn: I do not think that there is any fundamental difference between what has been said in support of the amendment and the Government's position. It is a case of how one achieves the desired conclusion.
The noble Earl rightly reminded us that the noble and learned Lord the Lord Chancellor had told noble Lords that we anticipated that the declaration, or the declarator, would be, first, important—that is why we have limited it to the higher courts—and, secondly, very rare. There is sometimes a danger of over-legislation. The Bill is perfectly simple in scheme, and we look at what might happen in practice were there to be a declarator of incompatibility. The Government would need no prompting either from inside or outside Parliament to come to a decision. I do not think that it is factually correct to suggest that there would be no opportunity for questioning or for debate. From my experience at this Dispatch Box, which is quite limited—it feels longer, and there is no remission for good conduct!—I do not find anyone backward in coming forward, as they used to say in the days of my youth, about questioning Ministers.
I do not believe that this is a real mischief which needs to be on the face of the Bill as a matter of legislation. If the Minister is dilatory he can be asked questions either by a Member of Parliament on behalf of an aggrieved victim or potential victim, or by Questions for Written Answer in either House, and by Questions or debates in this House. We have come to this conclusion as a matter of judgment. One does not need to legislate for every conceivable circumstance. We believe that the legitimate pressures outside Parliament and the focused pressures within both Houses of Parliament are sufficient to direct the Minister's attention to the question if he needs any direction.
Earl Russell: Perhaps I may add a few further words. I agree that there is a power to question Ministers. Let me remind the Minister of another Motion which was carried in this House. On 6th July 1992 there was a Motion in the name of the noble Lord, Lord Henderson of Brompton, about board and lodging in bed and breakfast accommodation. The power to question the Minister was exercised when he failed to respond to that Motion. The year 1992 is quite some time ago, but nothing has happened yet.
Lord Williams of Mostyn: Perhaps I may deal briefly with that point. The position would be no different if the amendment were carried. The amendment simply requires the Minister to come to Parliament and answer questions. It does not require him to follow a certain course of action. Therefore the net result would be exactly the same.
Lord Goodhart: The answer by the noble Lord, Lord Williams of Mostyn, has not wholly covered the

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situation of the applicant who is faced with a potentially long delay if there is no obligation to bring forward a decision and to announce reasons for it. However, in the circumstances, I do not press the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 67A:
Page 6, line 15, at end insert—
("( ) After a declaration of incompatibility has been made the Minister may grant such relief to the person in whose case the declaration was made or to any other person as shall seem to him just.").
The noble and learned Lord said: The amendment is short and simple. It is in the nature of a probing amendment. I can put the substance of it within a few minutes.
The heading to Clause 10 is,
"Power to take remedial action".
Amendment No. 67A and the amendments grouped with it seek to provide the opportunity for the Minister to take remedial action, which is full and effective by way of remedy, rather than the limited activity provided for in Clause 10. The Minister should be able to grant such relief as he considers just and appropriate to the person who is party to the proceedings in which the declaration or finding of incompatibility has been made; and indeed to any other person who a Minister considers is similarly affected. I seek to inquire why remedial action is as limited as it is in this clause. I beg to move.
Lord Goodhart: Amendments Nos. 67A and 70 give the Minister a discretionary power to award compensation to a claimant where there is a declaration of incompatibility. Under Clause 8, such a claimant is not eligible for compensation or damages because there is no finding that there has been an unlawful act. Clearly a declaration of incompatibility is not a finding that there has been an unlawful act.
It is desirable that a power to award compensation should exist. It may well be that in the circumstances there is power to make an ex gratia payment in exercise of the prerogative but it is surely better to give that power a statutory basis. It will of course still remain discretionary.
Amendments Nos. 69, 75 and 78 are required through the failure to incorporate Article 13 of the convention. That has already been discussed. New legislation introduced under the Clause 10 procedure must clearly provide an effective remedy for victims; otherwise it will simply not be doing its job. Amendment No. 78 is added because it is for the victim that the remedy must be provided. That is a different situation. For example, an interest group should be able to raise the question of convention rights. There is no question of an interest group seeking a remedy for itself. The remedy must be a remedy for the victim. Therefore I ask the noble and learned Lord the Lord Chancellor to consider the
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amendments which are grouped together in order to clarify what is not sufficiently clear in the legislation as it stands.
The Lord Chancellor: In speaking to Amendment No. 67A, I speak also to Amendments Nos. 69, 70, 75 and 78. I appreciate that these amendments are of a probing nature. Amendment 69 would explicitly provide that the power to amend legislation by means of a remedial order should include the power to make amendment so as to provide effective remedies for victims of an unlawful act.
There are several difficulties in making remedies of this kind subject to a statutory provision in the manner proposed. First, the amendments could extend the scope of remedial orders wider than is desirable. The specific purpose of these orders is to put right incompatible legislation. It is for this purpose that we have concluded that the power to amend primary legislation by order is necessary. The amendments proposed would bolt on remedies for individuals of a wholly different character from remedies which are designed to put right incompatible legislation to make it compatible. Individual remedies do not naturally fit into that. The amendments would open up the prospect of legislative amendments being made by order under the Bill but having a much wider extension than the present drafting of the Bill permits.
As at present advised, we think that that would create too sweeping a provision. It would threaten the ability of the Minister to consider whether and to what extent a retrospective remedy was required by the facts of the case; and it would threaten the sovereignty of Parliament, since any order for its approval would be bound to contain such provisions. It is no answer to point to the words,
"such amendments as may be appropriate and necessary".
We believe that in practice those words would entail a presumption that a remedy would always be necessary.
We think it more appropriate for decisions on what remedy should be given to individuals affected by a particular act to be taken by the Government in light of the individual circumstances of every case—and they will vary infinitely. There are existing ways in which this could be achieved. For example, should it be thought necessary for a remedial order affecting the legislation to take effect from a date earlier than that on which the order was made, this will be possible under the Bill; Clause 11(1)(b) so provides. This will not of itself provide a direct remedy to individuals affected by the legislation which has been retrospectively amended; but, following the order, it may be open to them to seek such a remedy. In addition to these powers in the Bill, there are prerogative powers which can be exercised and other ex gratia actions that could be taken to grant remedies in appropriate circumstances.
Amendments Nos. 67A and 70 take a slightly different approach. They suggest making explicit the power of the Minister himself to grant a remedy, in addition to and alongside a remedial order remedying an incompatibility in the legislation. This is not necessary unless the intention is to broaden the means available to

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the Minister. It is not clear what kind of power it would be. There is a danger that the prerogative would to some extent be superseded by this statutory provision. We think it unwise to tinker with the prerogative without being clear about what the impact would be.
For all those reasons, we are not persuaded that the proposed amendments are beneficial and we invite noble Lords to consider withdrawing them.
Lord Ackner: I am grateful to the noble and learned Lord the Lord Chancellor for his very full explanation, which I should like to consider with a view to returning to the matter, if necessary, on Report. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.45 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 67B:
Page 6, line 16, leave out subsections (2) to (5) and insert—
("( ) If a Minister of the Crown considers that, in order to remove incompatibility it is appropriate that legislation should be amended, he may—

(a) as regards primary legislation, introduce an amendment bill in either House of Parliament; and

(b) as regards subordinate legislation, make a draft order containing the proposed amendments, which order shall be laid before Parliament and subject to approval by resolution of each House.").

The noble Lord said: The object of this amendment and the grouped amendments that Clauses 11 and 12 do not stand part of the Bill is straightforward and simple. It is to remove the fast-track procedure under which it is proposed to amend primary legislation by Order in Council and to retain the traditional parliamentary process for amending primary legislation which has served us so well for so long.
This amendment to Clause 10, which is concerned with remedial action to assimilate the convention with our domestic law, retains Clause 1(a) where a declaration of incompatibility under Clause 4 has been made in our courts. It also retains Clause 10(1)(b) where a decision of the European Court of Human Rights has given rise to incompatibility. However, subsections (2) to (5) relating to the fast track are removed. If the amendment were to be accepted by the Committee, Clause 11, concerned with remedial orders, and Clause 12, concerned with procedure, cannot stand part of the Bill.
The machinery proposed for the implementation of the fast track under Clause 10, subsections (2) to (5), Clause 11 and Clause 12 disturbs the delicate balance which separates the powers of the legislature from those of the judiciary. It is without the constitution as it has so far evolved, which has as yet not adopted this novel approach to law-making—an approach which is not necessary, satisfactory or sound. There was no reference to this fast track in the Labour Party Manifesto; there is no mandate for its introduction.
The amendment to which I speak is a procedural one which in no way challenges the principle of the Bill. Incorporation of the convention without any direct
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assault on the sovereignty of Parliament to provide a domestic remedy in our courts is wholly acceptable. The means proposed for implementation by the fast track is not acceptable. It is only the proposed means of procedure which the amendment calls into question.
Members will appreciate that the Bill, and the amendment, are of vast constitutional importance to every one of Her Majesty's subjects and to every institution within the realm whose functions are of a public nature. In the light of last Monday's debate on Amendment No. 40, in the name of my noble friend, Lady Young, it is apparent that all institutions whose functions are of a public nature are subject to the fast track unless it is established to the satisfaction of the courts that the exercise of a particular function was of a private nature. The question whether the function of the institution was of a public nature and whether the exercise of a specific function was of a private nature would be decided on the facts of each case. It is not clear where the burden of proof on either question would lie.
In the course of debate it became apparent that this fast-track procedure was of concern to the established Church and to other religious institutions, for the set of rights and obligations to be incorporated had explicit and implicit moral overtones. The right reverend Prelates, the Bishops of Exeter and Lichfield, observed that the decisions of the Synod, albeit ethical, had the quality of primary legislation and were not of a private nature.
In the context of the fast-track procedure, the Committee will be aware of the sixth report of the Delegated Powers and Deregulation Committee, in particular paragraphs 22 to 25, concerning resort to Henry VIII powers. My noble friend Lord Henley sought an assurance from the Lord Chancellor that he would abide by the recommendations of that all-party Select Committee. The noble and learned Lord declined to give any such assurance. However, in opening a debate it is hardly appropriate to stray into the area of storm-tossed seas of contention and so I pass on.
On Second Reading the noble and learned Lord the Lord Chancellor conceded that,
"A power to amend primary legislation by (Order in Council] is not a power to be conferred or exercised lightly".—[Official Report, 3/11/97; col. 1231.]
As yet no justification has been advanced for so doing. On Second Reading reservations were expressed by many noble Lords. My noble friend Lord Kingsland explained why the means of incorporation were of critical consequence and concluded in a closely reasoned exposition why the fast track failed to afford proper parliamentary consideration for future legislation. The noble and learned Lord, Lord Wilberforce—I am delighted to see him in his place—expressed reservations as to the effect of the fast track on substantive law; as to calling upon judges to undertake functions normally suitable for Parliament and as to the interpretation of vague phrases in the convention in concrete cases. He referred to vague phrases such as "private life" and "family life", not defined in the convention. Reference has already been made to "public authority" where the

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incidence of fast track is left open, without any statutory exclusion, to be decided by the courts on the specific facts of each case.
It is no easy task to amend primary legislation to reflect declarations of incompatibility on the facts of concrete cases; to assimilate and thereby achieve compatibility with the convention. Law-making on the hoof, in particular in these circumstances, has inherent incalculable hazards. Is it not better to take time to get it right? Has not due parliamentary process that very propensity? As part of such process no doubt a Select Committee of your Lordships' House, chaired by a noble and learned Lord with other noble Lords and noble and learned Lords as members, could report on the form an amendment to primary legislation should take to reflect the judicial declaration of incompatibility. That would be an invariable source of guidance for both Houses in the interests of the country.
One must be realistic. It is idle to seek accommodation on this amendment. The gulf is too wide. But the Committee may wish to consider in due course whether, in the light of this debate today, any justification has been advanced for the abrogation of due parliamentary process for the amendment of primary legislation. I beg to move.
The Deputy Chairman (Lord Brougham and Vaux): If Amendment No. 67B is agreed to, I cannot call Amendments Nos. 68 to 77 inclusive.
Lord Goodhart: In the course of the debates on the Human Rights Bill—this is the third day of debate on the Committee stage—many important amendments have been discussed and ultimately withdrawn. Examples of those are the debates on standing and on the Human Rights Commission. But there can be no question but that the debate which arises on Amendment No. 67B and Clauses 11 and 12 as a whole, is the most important debate that will take place during the Committee stage. As the noble Lord, Lord Campbell of Alloway, made clear, it is a direct frontal attack on the fast-track procedure.
We on these Benches strongly support the fast-track procedure. We do not do so without criticisms. For example, we tabled Amendment No. 81 in the name of my noble friend Lady Williams of Crosby. We believe that the proposals that appear in paragraph 24 of the sixth report of the Select Committee on Delegated Powers and Deregulation which recommend that there should be some form of procedure which would enable a remedial order to be amended during the course of its passage through Parliament, deserve consideration.
Some of us would have preferred a stronger provision than the fast-track procedure. It would have included a power to invalidate previous statutes on the grounds of incompatibility and to declare current and subsequent statutes to be invalid on grounds of incompatibility in the absence of some such provision as the "notwithstanding" clause that exists under Canadian legislation. However, we on these Benches accept that that is perhaps a bridge too far. We accept the proposal
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in the Bill for fast-track legislation as an ingenious compromise between what may be described as the maximalists and the minimalists.
The situation which will arise when there is a declaration of incompatibility is this: the Government will be under pressure—indeed, they are effectively bound—to take action under the European Convention of Human Rights unless they choose deliberately not to take action in order to provoke a challenge, as they are entitled to do, requiring the applicant to go from the courts in the United Kingdom to Strasbourg. In the absence of that action the situation will be that a declaration of incompatibility has been made by the courts. The Government will have accepted that there is an incompatibility. What then are they to do?
The provision will be doomed. Everyone will know that it is doomed. However, if the Government have to introduce primary legislation, that legislation will have to take its place in the queue. We know that there is frequently a considerable time lag in bringing new legislation before Parliament. Therefore, it may take a considerable time—it may take months—to bring primary legislation before Parliament. That primary legislation may be the subject of debate as it may involve a controversial issue. In those circumstances. it seems reasonable to us that there should be a speedy procedure to bring a remedial order before Parliament and change the law to the extent—and no further—that is required to correct the incompatibility. In those cases we believe that a fast-track procedure is wholly appropriate. We therefore oppose Amendment No. 67B and we shall support the proposal that Clauses 11 and 12 stand part of the Bill.
5 p.m.
Earl Russell: I agree with everything that my noble friend Lord Goodhart has just said. I merely wish to add a few more points. The Committee knows that I am no friend to Henry VIII powers. The noble Lord, Lord Campbell of Alloway, was right to raise a debate on this issue. I think the Committee would expect me in the case of any normal Bill to be supporting such an amendment. But this is not a normal Bill. Indeed, I can think of only two Bills that have reached our statute book with which I would compare it. The purpose of the Bill is to receive another system of law. I shall not say "a foreign system of law", because I will not describe anything largely drafted by the noble Lord, Lord Renton, as a foreign system. However, it is a system of law which, though we have been bound by it already for nearly 40 years, has not yet been received into our domestic law.
The only two parallels that come to mind of Acts of Parliament which received another system of law, both of which I mentioned at Second Reading, are the Act of 1554 restoring the jurisdiction of the Papacy and the European Communities Act 1972. In the 1554 Act, the different systems of law were applied in different courts, so there was no need for any such procedure. In the 1972 Act, the noble Lord, Lord Rippon of Hexham, who, like me, was no friend to Henry VIII powers in any of their ordinary forms, chose to use a Henry VIII procedure even more sweeping than the one we have

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here. That, I am sure the Committee will realise, is something the noble Lord, Lord Rippon of Hexham, would not have done lightly.
Here we have a very sensible attempt to ensure parliamentary scrutiny together with an immediate reception. It is possible that by adoption of some of the suggestions advanced by the delegated powers scrutiny committee the noble and learned Lord the Lord Chancellor could even further improve what is already an extremely good idea. That would make the case which I have already argued even easier to argue in future and would be a great asset. But since the intention of Parliament is to receive another system of law and to ensure that that system of law passes into our domestic law, I do not see how that can effectively happen without some kind of fast-track procedure such as is laid out in the Bill.
I would not say that the Government have got it absolutely perfect, because practically nothing ever is, but I think they have done very nearly as well as could reasonably be expected. I congratulate them, and like my noble friend, I shall support the clause in the form in which it at present stands.
Lord Henley: Perhaps I may follow the noble Earl, Lord Russell. I seem to remember that I have been on the receiving end of his tongue on a number of occasions when in the past I have brought before the House Bills that contained the very Henry VIII clauses to which, as he says, he normally and so often objects. It is undoubtedly true that this is, as the report of the delegated powers scrutiny committee makes clear, a Henry VIII power of the utmost importance. It is therefore right that we should consider very carefully whether it is right and proper that there should be such a procedure in the Bill.
My noble friend Lord Campbell has put forward the case—it is one which we on these Benches support—that on this occasion such a power is not appropriate. It is proper that Parliament should be entitled to examine the issues properly by means of primary legislation. I remind those who, like the noble Lord, Lord Goodhart, say that that could lead to considerable delay that it is possible to get legislation through both Houses of Parliament very quickly where there is a will. In the very rare cases, as the noble and learned Lord the Lord Chancellor put it, where there was a declaration of incompatibility, I am sure that there would be the will to achieve that legislation and to get it through as quickly as possible.
I appreciate that the delegated powers scrutiny committee does not go so far as saying that it would be inappropriate to have secondary legislation to achieve that. However, it went on to suggest that if there were to be secondary legislation as a means of achieving the fast-track procedure the House might wish to consider whether there is a case for developing a new procedure to scrutinise such orders, modelled on that for the second stage of parliamentary scrutiny of deregulation orders. I should like to come back to that point when we deal later with the group of amendments to which I have my name. However, before we get to that, the Committee should consider carefully whether secondary
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legislation should be used at all and whether we should not, as my noble friend Lord Campbell put it, consider the case for proceeding by means of primary legislation.
As I said earlier, I believe there is a case for using primary legislation. Primary legislation can be made to operate quickly and without delay should all the parties—I am sure all the parties would be of this view—so wish it. We have all seen primary legislation proceed quickly through both Houses. There have been occasions when legislation has proceeded through both Houses in less than 24 hours but has still been considered and has still been amendable in a way that the procedure recommended by the Government at the moment is not. For those reasons, I support my noble friend.
Baroness Carnegy of Lour: I was not able to speak on Second Reading and so was not able to make this point. I would have done it then if I had been able to do so. This is an enormously important issue in that it involves without question a diminishing of the role of Parliament. I am interested that we have not heard anything so far from anyone sitting on the Benches behind the Government. I am surprised to hear the Liberal Democrats say that they are so keen to get the incorporation of the convention into our law that they do not mind if ordinary people are not made aware of what is going on, which is what they are actually saying when one thinks about it.
The primary legislation that may be changed has gone through all its stages in both Houses. If it is one of the controversial issues which the noble Lord, Lord Goodhart, said it might be, the public have probably been made very aware of what the law is. We all know that secondary legislation is whipped through without a great deal of public attention. We can discuss it. but we either accept it or not. What would happen if one House accepted it and the other did not in this case? I am not sure. I should know what the procedure would be, but there would be problems. The public will not know what is going on.
The European Convention on Human rights is framed in a broad way to suit the member states for whom it was originally designed. It is much more similar to the legislation of some other member states of the European Union, for example, than it is to our legislation. But in order to incorporate it into our law we shall have to make detailed changes because that is the way our law works. That will be done by the fast-track procedure. which is the Henry VIII way.
That worries me very much as an individual. I hope that when the noble and learned Lord replies he will be able to justify this matter in simple terms to me because long words will not make the matter clearer. It concerns what ordinary people are going to know about the changes that are made in their name by Parliament in response to a broadly framed convention, through making detailed changes to our law which will affect everyone. I look forward very much to hearing the Government's reply.
Lord Thomas of Gresford: Perhaps I may seek to justify my attitude in support of the fast-track procedure. I have some experience of the Hong Kong Bill of Rights, which was introduced by the previous

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administration through the Hong Kong administration in the late 1980s. Under that Bill it was possible for the judges to strike down incompatible legislation altogether. That, of course, was in a society where democracy was very much in its infancy and where there were not the same safeguards of elected representatives such as we have in this country. It had the overwhelming advantage of giving an immediate remedy to the person who was the subject of the particular piece of legislation which was incompatible with the Bill of Rights.
For example, I recall that immediately the judges struck down as incompatible certain presumptions which had been inserted into the drugs ordinance, which bore down harshly on individuals who were charged with offences under that legislation. Similarly, the judges took the opportunity to strike down the equivalent of what we knew in this country as the "sus" laws, where a person was arrested in the street merely because a police officer suspected that he might be about to commit a crime. That was an immediate solution and advantage to the person who was affected by that legislation. The judge could deal with it then and there.
What is proposed in the current Bill, as we discussed earlier this afternoon, is that the victim should have no such immediate remedy. Amendments were moved to that effect a moment ago but they were withdrawn. The Government have indicated that they do not believe in incorporating in this Bill a remedy for the victim who raised the issue and obtained the declaration of incompatibility. However, it means that there are other people who may be affected by that legislation, which is incompatible. It can cover a wide area. It is not just the criminal law; it may involve the tax laws, with people incurring liabilities to pay large sums of money. It may cover all sorts of areas of the law which very much affect the individual. Therefore, an immediate remedy for other potential victims of incompatible legislation is required.
In his usual excellent way, the noble Lord, Lord Campbell of Alloway, has raised a very important issue. But the introduction of primary legislation to amend incompatible legislation involves delay in getting it into the programme. The fast-track procedure means that potential victims can be given an immediate remedy. It is for that reason that I justify the fast-track procedure, as my noble friend Lord Goodhart said, as an in-between stage, between the judges having the power to strike down legislation immediately and the delay involved in introducing fresh primary legislation. We have here a compromise which is well thought out and which deserves our support.
5.15 p.m.
The Lord Bishop of Exeter: I do not wish to take a position in relation to the amendment of the noble Lord, Lord Campbell of Alloway. I hope that the Committee will be patient while I repeat a question that I put in relation to Amendment No. 40 on Monday. It is simply to ask for an assurance that the Government recognise, as regards the proposed workings of the Bill, that it is a
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unique position concerning the making of laws for the established Church, namely, that all the work and its stages is done in the General Synod. It is then presented to Parliament to be scrutinised by the eccessiastical committee. It is not debated on the Floor of House unless Members desire that. That is an almost unique way of making law for a particular part of the country's constitution. I know that attention will be given by the General Synod to the progress of this Bill, which it became aware of only earlier this week, as far as it affects the established Church. It would be helpful if the Government could give recognition to the procedure which is part of our constitution.
Earl Russell: Perhaps I may very briefly respond to the noble Baroness, Lady Carnegy of Lour. She reproached these Benches for not letting people know what is going on. But the noble Baroness was talking as though the Bill were introducing new legal obligations. These matters have been our legal obligation for 46 years. Should there be a declaration of incompatibility, it would put me, in my parliamentary capacity, in much the same position as I would be in in my personal capacity were a judge to discover that, for some technical reason, my marriage had been invalid. I would of course go straight off and do it again! I would not feel the need to tell everybody what was going on because I would assume that they knew already.
The Lord Chancellor: It is entirely right, as the noble Lord, Lord Henley, and others have said, that the noble Lord, Lord Campbell of Alloway, should bring this important point for discussion before the Committee. However, the noble Lord, Lord Goodhart, is right, I suggest, when he says that in substance this is a direct frontal attack on the fast-track procedure. I recall that the noble Lord, Lord Campbell of Alloway, said during a Committee stage last week that he was concerned with the end rather than the means. I am sure that the noble Lord himself would be the first to acknowledge what his end is as regards Clause 10. He has already signalled that he intends to oppose it, and this amendment, if it were carried, would achieve the same end but by different means. In that sense I believe that the noble Lord would be constrained to agree with me if I were to describe it as an intended wrecking amendment.
I am grateful to the noble Lord, Lord Goodhart, and other Members of the Committee on his Benches for saying that they strongly support the principle of the fast-track procedure. I welcome that. I fully appreciate that there will be amendments which they will be supporting, aimed, as they will argue, at strengthening or improving the fast-track procedure.
I am conscious that the noble Earl. Lord Russell, is traditionally hostile to Henry VIII clauses. His hostility is well known and, perhaps I may add, "without peer". It is for that reason that I particularly welcome his support. I remind the Committee that before any remedial order is brought before your Lordships for your consideration, it will have been preceded by a reasoned judgment of a higher court—perhaps the very highest court—which will have made the declaration of

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incompatibility. The legislation in question will have been scrupulously analysed, the point identified and the need for the declaration made as clear as the higher court can make it. Therefore, in a sense this is first-class briefing material so that your Lordships may focus your attention on the need for the order. That is an important reason for regarding this use of the Henry VIII clause as a legislative development which is sensible and designed to serve, not hinder, parliamentary sovereignty.
I now speak having been chairman of the Queen's Speech and Future Legislation Committee for the past seven months. I am acutely conscious of the pressures on the legislative programme. This is a very extended legislative programme and the next legislative programme will be similarly very extended. There will be competitive bids. Priorities will have to be determined by the committee that I chair. I am afraid that when I hear it said that it is easy to get something into the legislative programme if the will is there, I feel that that does not respond to the realities of a legislative programme which is inevitably under pressure.
Baroness Carnegy of Lour: I hope that the noble and learned Lord will forgive me for intervening. I do so with the utmost respect because he knows that I am an amateur on such matters. However, is he absolutely sure that he is not putting the interests of Parliament and the business managers in front of the need of the people of this country to understand the changes that are to be made in the law? I entirely understand the noble and learned Lord's point I can imagine the pressures—but surely we should be vigilant about this. Is the noble and learned Lord quite convinced that that is the case?
The Lord Chancellor: I am absolutely convinced that this House will be well informed of the need for change by the fact of the judgment of the higher courts which will set out the need for change. I venture to suggest that the purpose of a remedial order is to give Parliament the earliest possible opportunity in a considered way to remedy an incompatibility between a statute passed by Parliament (in all probability, inadvertently) and the European Convention on Human Rights, to which the United Kingdom is a party. Far from trenching on parliamentary sovereignty, I think that that gives Parliament the earliest legislative opportunity to remedy in a focused way an incompatibility which was probably the product of parliamentary inadvertence, not intention.
I turn to the amendment proposed by the noble Lord, Lord Campbell of Alloway. Amendment No. 67B would remove all but subsection (1) of Clause 10. It would therefore destroy the mechanism of remedial order which we have put in place. Paragraph (a) of the proposed amendment provides that if there is incompatible primary legislation, an amendment Bill may be introduced to remove the incompatibility. That seems to have no point at all because the Government could introduce a new Bill irrespective of any powers in this Human Rights Bill.
Paragraph (b) provides that in the case of incompatible subordinate legislation, a draft order to amend that legislation may be made subject to the
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affirmative resolution procedure. As the paragraph provides no specific powers to amend primary legislation, which would need to be amended in order to remove the incompatibility of inevitably incompatible subordinate legislation (because it is consequential upon an incompatible provision of the parent legislation), it too serves little purpose. Its only effect would be to supersede other provisions in parent statutes which may allow for a procedure less onerous than the draft affirmative resolution procedure. So, we cannot accept the amendment because, in substance, it wrecks.
Perhaps I may advise the right reverend Prelate that, of course, we recognise the unique position of the established Church and if any question ever arose—I venture to suggest that it is highly unlikely—of making remedial orders touching upon ecclesiastical legislation, I regard it as inconceivable that government would do that without first elaborately consulting the Church. I would have thought that the better course would be for the Church itself to do that which I am sure that it would want to do if any of its legislation had been held incompatible with the European Convention on Human Rights—that is, for the Church to amend its measures itself, subject to parliamentary approval. I can assure the right reverend Prelate that we would always be solicitous of the interests of the Church.
The noble Lord, Lord Campbell of Alloway, suggested that in our previous discussions in Committee right reverend Prelates had expressed concern about the fast-track procedure. I am not aware that they have done so. Their concern was with the definition of "public authority" in Clause 6. The right reverend Prelates had expressed an interest in that because of the interests of the Church, but not in the fast-track procedure. Legislation will be subject to the fast-track procedure, not institutions. Of course, institutions will be affected by the legislation once altered by remedial order, but where it affects their interests, they will have had the fullest notice because of the preceding argument in the courts. I am sure that that will be drawn fully to the attention of any public bodies that are likely to be affected, culminating in what I think will be a rare happening, the making of a declaration of incompatibility by a higher court. For all those reasons, I invite the noble Lord to consider withdrawing his amendment.
5.30 p.m.
Lord Campbell of Alloway: I thank all noble Lords who have spoken in this debate, including the noble and learned Lord the Lord Chancellor. I shall be brief and I hope that I shall not be thought discourteous if I do not refer by name to every noble Lord who has spoken. At least it comes as no surprise that noble Lords on the Liberal Benches took what they called "an in-between position".
Perhaps I may assure the Committee that this is not a wrecking amendment, as was said by the noble and learned Lord the Lord Chancellor. That term is loosely used on all sides of the House at times, but this amendment simply is not a wrecking amendment. It accepts the principle of the Bill, so, technically, it cannot be a wrecking amendment. It opposes the proposed

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means—the fast track procedure—and in that sense it is a wrecking amendment, but in parliamentary terms it is not.
The noble and learned Lord raised some technical objections. So be it. This is DIY drafting. I had no assistance and inevitably the wording is defective. However, that is not the point. This is Committee stage and I am arguing for a principle. The question is whether the substance of what I seek attracts your Lordships. I am not worried about technical deficiencies—I could not put them right anyway; I should have had to get a parliamentary draftsman to do it. The noble and learned Lord knows that perfectly well. He is no more a draftsman than I am.
I asked whether there would be any justification for introducing this entirely novel system of law making. I asked myself whether it would be claimed that there was a need for haste. If so, what is the hurry? Would the Government say that it was a matter of administrative convenience? If so, I would have wanted the order of that convenience. However, the noble and learned Lord came out with it with total honesty, as he always does. He said that the reason was the pressure of legislative programmes on the committees that he had to chair. I say to the noble and learned Lord in all amity that that is no justification at all for altering the whole system of changing the law. I agree that it may suit the Government but it is no justification. I have heard no justification advanced for the adoption of this new process for amending legislation. I remind the Committee that on the say-so of a Minister of the Crown by Order in Council primary legislation is amended. There is no due or proper consideration by Parliament. Your Lordships will be aware that an Order in Council cannot be amended.
The Lord Chancellor: I am grateful to the noble Lord for giving way. As the noble Lord will appreciate, Clause 10(2) provides that:
"If a Minister of the Crown considers that, in order to remove the incompatibility, it is appropriate to amend the legislation using the power conferred by this subsection, he may by order make such amendments to it as he considers appropriate".
It is only where the legislation is itself made by Order in Council that Her Majesty in Council may amend the legislation by Order in Council.
Lord Campbell of Alloway: That I appreciate, but the primary legislation is amended by alternative procedures; namely, affirmative resolutions of each House. All noble Lords are aware of what happens on such occasions. Nobody is here anyway. It is a single-stage procedure and there is no substantive debate. The matter is dealt with in a manner which, quite frankly, is wholly inappropriate given the way in which primary law should be amended. I agree with the remarks of my noble friend Lady Carnegy of Lour.
I have been perfectly frank. No bridge can be put across this gulf. In the circumstances, I think it right to seek the opinion of the Committee.
5.35 p.m.
On Question, Whether the said amendment (No. 67B) shall be agreed to?
Their Lordships divided: Contents, 64; Not-Contents, 110.

Division No. 1

CONTENTS

Ailsa, M.

Lane of Horsell, L.

Alexander of Tunis, E.

Lawson of Blaby, L.

Anelay of St. Johns, B.

Lindsay, E.

Ashbourne, L.

Lindsey and Abingdon, E.

Astor of Hever, L.

Lucas, L.

Biddulph, L.

Lytton, E.

Biffen, L.

McColl of Dulwich, L.

Brabazon of Tara, L.

Mackay of Drumadoon, L.

Brain of Wheatley, L.

Marlesford, L.

Broadbridge, L.

Mayhew of Twysden, L.

Brougham and Vaux, L.

Milverton, L.

Burnham, L. [Teller.]

Molyneaux of Killead, L.

Cadman, L.

Murton of Lindisfarne, L.

Campbell of Alloway, L.

Napier of Magdâla, L.

Carnegy of Lour, B.

Newton of Braintree, L.

Charteris of Amisfield, L.

Norrie, L.

Chesham, L.

Northesk, E.

Clark of Kempston, L.

Onslow, E.

Cope of Berkeley, L.

Oxfuird, V.

Courtown, E. [Teller.]

Park of Monmouth, B.

Davidson, V.

Rawlings, B.

Denton of Wakefield, B.

Rowallan, L.

Dilhorne, V.

St. John of Fawsley, L.

Dixon-Smith, L.

Seccombe, B.

Downshire, M.

Soulsby of Swaffham Prior, L.

Fraser of Carmyllie, L.

Stockton, E.

Garel-Jones, L.

Strathcarron, L.

Granard, E.

Sudeley, L.

Harrowby, E.

Swansea, L.

Hemphill, L.

Swinfen, L.

Henley, L.

Vivian, L.

Kinnoull, E.

Young, B.

NOT-CONTENTS

Ackner, L.

Gallacher, L.

Ampthill, L.

Geraint, L.

Archer of Sandwell, L.

Gladwin of Clee, L.

Bassam of Brighton, L.

Goodhart, L.

Berkeley, L.

Gordon of Strathblane, L.

Blackstone, B.

Gould of Potternewton, B.

Boyd-Carpenter, L.

Graham of Edmonton, L.

Brooke of Alverthorpe, L.

Habgood, L.

Burlison, L.

Hanworth, V.

Calverley, L.

Hardie, L.

Carlisle, E.

Hardy of Wath, L.

Carmichael of Kelvingrove, L.

Harris of Greenwich, L.

Carter, L. [Teller.]

Haskel, L.

Castle of Blackburn, B.

Hayman, B.

Chandos, V.

Healey, L.

Clinton-Davis, L.

Hilton of Eggardon, B.

Cocks of Hartcliffe, L.

Hogg of Cumbernauld, L.

Craigavon, V.

Hollis of Heigham, B.

Currie of Marylebone, L.

Hope of Craighead, L.

David, B.

Howie of Troon, L.

Davies of Oldham, L.

Hoyle, L.

Dean of Thornton-le-Fylde, B.

Hughes, L.

Desai, L.

Hughes of Woodside, L.

Diamond, L.

Hunt of Kings Heath, L.

Dixon, L.

Hylton, L.

Dormand of Easington, L.

Irving of Lairg, L. [Lord Chancellor.]

Elis-Thomas, L.

Jay of Paddington, B.

Falconer of Thoroton, L.

Jenkins of Hillhead, L.

Farrington of Ribbleton, B.

1121

Jenkins of Putney, L.

Pitkeathley, B.

Janner of Braunstone, L.

Ponsonby of Shulbrede, L.

Kennedy of The Shaws, B.

Prys-Davies, L.

Kennet, L.

Rendell of Babergh, B.

Kilbracken, L.

Richard, L. [Lord Privy Seal.]

Lestor of Eccles, B.

Rodgers of Quarry Bank, L.

Lockwood, B.

Rogers of Riverside, L.

Longford, E.

Russell, E. [Teller.]

Lovell-Davis, L.

St. John of Bletso, L.

Ludford, B.

Serota, B.

McIntosh of Haringey, L.

Sewel, L.

Mackie of Benshie, L.

Simon, V.

McNair, L.

Simon of Glaisdale, L.

McNally, L.

Stoddart of Swindon, L.

Maddock, B.

Symons of Vernham Dean, B.

Mallalieu, B.

Thomas of Gresford, L.

Methuen, L.

Thomas of Macclesfield, L.

Milner of Leeds, L.

Tordoff, L.

Mishcon, L.

Walker of Doncaster, L.

Molloy, L.

Wallace of Coslany, L.

Monkswell, L.

Weatherill, L.

Morris of Castle Morris, L.

Wedderburn of Charlton, L.

Morris of Manchester, L.

Wharton, B.

Murray of Epping Forest, L.

Whitty, L.

Nelson, E.

Williams of Crosby, B.

Nicol, B.

Williams of Elvel, L.

Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.
Lord Hoyle: My Lords, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Youth Justice: White Paper
5.43 p.m.
Lord Williams of Mostyn: My Lords, with the leave of the House I shall now repeat a Statement on youth crime which has been made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"I am today publishing a White Paper called No more excuses. This sets out the Government's new approach to tackling youth crime in England and Wales. It follows a period of intensive consultation which began when we were in opposition. In May I appointed a youth justice task force to advise me on this issue and in September and October I published three consultation papers.
"Reform of youth justice—to make good years of mismanagement and underperformance—is an urgent priority. In the past, the youth justice system has mimicked a bad parent, being indulgent one minute, unexpectedly harsh the next. These are just the faults which foster youth crime; and to compound them the system suffers from endemic delays.
"Many honourable and right honourable Members will have seen the problems in their own constituencies: children whose misbehaviour goes unchecked and escalates into crime; children who offend repeatedly without any meaningful
1122
intervention; and who come to court only for their cases to be adjourned, time after time. When they are finally sentenced, many simply receive a conditional discharge—no punishment, no chance to make amends for their crime; no action to tackle the causes of their offending.
"There must be no more excuses for youth crime. Before the election, we promised to halve the time from arrest to sentence for persistent young offenders as part of a fundamental reform of youth justice. This White Paper sets out how we will deliver those pledges. We will make a start through the Crime and Disorder Bill, to be laid before Parliament shortly.
"The aim of the youth justice system—preventing crime: one of the fundamental deficiencies of the youth justice system is that different agencies work to different, even conflicting, objectives. So, for the first time, the Crime and Disorder Bill will make clear that the principal aim of the youth justice system is to prevent offending by young people. All youth justice practitioners will be under a duty to take account of this aim.
"To tackle youth crime effectively, we must recognise that young people often start down the path of offending when they are very young. So the Bill will provide new powers to protect children under 10 from being drawn into crime. Local authorities—after consultation with the police and the community—will be able to set up local curfew schemes for the under 10s. And a new child safety order will help stop individual children under 10 from drifting into crime.
"Tackling the causes of youth crime: many factors draw young people into offending. Not attending school, through truancy or exclusion; having delinquent siblings or friends; coming from a family with multiple problems; and, for older teenagers, being unemployed—all increase the risks of juvenile criminality.
"The Government are taking action to tackle the causes of juvenile crime—by raising schools standards; by fighting truancy and under-achievement; by combating social exclusion; by helping families at risk; and by giving the young long-term unemployed a pathway from welfare to work.
"Families and responsibilities: we know that the single most important factor associated with youth criminality is the quality of a young person's home life—crucially, the relationship between parents and children, and the level of parental supervision. The parents of young people who offend or who are at risk of offending need particular support and guidance. They should also be made to face up to their responsibilities. A new parenting order will therefore require parents to attend guidance sessions and comply with requirements specified by the court to help them control the behaviour of their child.
"But families are about much more than preventing crime. They are the fundamental unit in our society, providing mutual care and support and helping to shape the values of future generations. At the Prime Minister's request, I am chairing a new

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ministerial group looking at wider ways of supporting families more effectively and promoting good parenting.
"Young people, too, should face up to the consequences of their offending. The rule of doli incapax can stand in the way of holding properly to account 10 to 13 year-olds who commit crimes. Young people of that age know that it is wrong to steal, vandalise or commit an assault. We will abolish this archaic rule to ensure that they are answerable for their offences.
"Final Warning: firm action is needed when young people begin to offend. But this does not happen at present. So we will replace repeat cautions with a new reprimand and final warning scheme to provide a consistent, graduated police response to youth crime, within a clear statutory framework.
"A final warning will normally trigger a tailor-made intervention programme with the offender and his or her family to tackle the causes of the offending. Once a youngster has had a final warning, the presumption will be that he or she will be charged with any further offence.
"Court orders: the Government will give the courts a wider range of powers to help change offending behaviour. Reparation and apology can bring home to young offenders the harm which their offending has caused. The Crime and Disorder Bill will provide a reparation order and make reparation available as a requirement of a supervision order. There will be a new action plan order providing an intensive programme of intervention with offenders and their families, combining punishment, reparation and rehabilitation, as an alternative to custody.
"Secure remands: custody is, however, necessary for the most serious and persistent young offenders; and for some young people it may be the only effective way of preventing offending while waiting trial. However, the courts' existing powers to remand young people to secure facilities are inadequate. The Crime and Disorder Bill will pave the way for powers for the courts to direct that 12 to 14 year-olds and 15 and 16 year-old girls who are charged with serious offences—or who have a history of absconding and offending on bail—are held on remand in secure local authority accommodation. The Bill will also enable the courts to direct that particularly vulnerable 15 and 16 year-old boys are held in local authority secure accommodation when a place is available, rather than remanded to prison.
"Detention and training order: for the minority of young offenders whose crimes require that they are sentenced to custody, public protection is best served if sentences and regimes work to change anti-social attitudes and behaviour and equip youngsters for a law-abiding life on release. The Crime and Disorder Bill will establish a new detention and training order in place of the current sentences of detention in a young offender institution and the secure training order. Detention under Section 53 of the Children and Young Persons Act 1933 will remain available for 10 to 17 year-olds convicted of the most serious crimes.
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"The detention and training order will he made up of 50 per cent. custody and 50 per cent. community supervision, with provision for shortening or extending the custodial element to encourage young offenders to make good progress against agreed sentence plans. Orders will range in length from four months to two years and young offenders will be placed in the most suitable accommodation for their circumstances.
"Better structures: at the moment we do not have effective local and national structures to tackle youth crime. The Crime and Disorder Bill will rectify this, establishing local, multi-agency youth offending teams charged with planning and supervising community interventions. And to provide better national direction, the Bill will establish a new national youth justice board for England and Wales which will ensure consistent standards and monitor local performance. The board will also set and oversee standards for secure accommodation.
"Changing the culture of the youth court: I have spent a good deal of time over the past two years studying the operation of the youth court. Over the summer, I visited courts across the country and discussed problems and solutions with all those involved, including young offenders. Despite the obvious commitment of the people working in the system, the unavoidable conclusion is that it is simply not working. Offenders are rarely asked to account for themselves. They are bystanders in the process, at best bemused by the obscure theatre of the occasion. Parents are not confronted with their responsibilities; victims have no role; and the public is excluded. I am convinced of the need for fundamental change. We are already encouraging magistrates to allow victims into court to see justice done. And we will be asking youth court magistrates to use their discretion to lift reporting restrictions following a young person's conviction where this is in the public interest.
"I want to go further than this and integrate the best aspects of restorative justice into the youth court system. There has been a wide welcome for some remarkably successful schemes which bring young offenders face to face with the human consequences of their crimes. These schemes can bring significant reductions in re-offending. Victims too can benefit from this approach if they want to by telling offenders how the crime has affected them.
"Confronting young offenders with the damage they cause is in many ways much tougher than the present alternative. Today young offenders are spectators of legalistic, adversarial court proceedings and frequently hear lawyers making excuses for their offending. But with the restorative approach there is no way for youngsters—or their parents—to hide from their personal responsibilities.
"The White Paper proposes a radical new approach for young offenders coming before the youth court for the first time. First-time offenders pleading guilty would normally be referred after conviction to a youth panel. The panel would draw up a contract with the young offender and their parents which could last for

1125
up to a year and would tackle the causes of the offending. Under the contract, the offender would also be obliged to make reparation. If the contract were broken, the young offender would end up back in the youth court and could be sentenced for the original offence.
"These changes will require primary legislation. The Government will introduce this at the earliest suitable opportunity once the Crime and Disorder Bill has been enacted and in the light of comments we receive from this House and from those outside this House about the details of what we propose.
"Legal aid: currently there is no system of quality assurance to guarantee that legally aided lawyers in the youth court possess the right skills and experience for this work. Moreover, what they are paid depends on the length of time they take to complete cases, which can provide a perverse incentive and so adds to delay.
"The Government believe that a better approach might be for lawyers to provide services under block contracts. This would provide flexibility and a consistently high quality of legal representation. Contracts would discourage delay. Pilot trials will be run by the Legal Aid Board.
"Faster justice: delays in the youth court system impede justice, frustrate victims and only encourage more crime. A young offender who commits an offence today will have to wait on average until the middle of April to be sentenced. That is unacceptable. No parent and no teacher would wait that long to deal with misbehaviour by their children or pupils. Our first priority is to halve the time it takes between arrest and sentence for persistent young offenders, ensuring rapid justice for those individuals from whom the public most needs protection.
"Before we came into government, information was never collected to show how long it took to deal with persistent young offenders. Over the past few months, we have been collecting this data. I can now tell the House that it takes, on average, 142 days—almost five months—from the date of first arrest to sentence, during which time the victim receives no justice and there is neither punishment nor intervention to prevent re-offending.
"With the Lord Chancellor, I took immediate action after the election to combat delays. Provisional data for last month show that the average time to complete young offenders' cases once they reach court is 60 days compared with 68 days last October. The average number of adjournments has also fallen. I welcome these improvements, but this is only the start. In those areas which have already introduced fast-tracking schemes, the results are clear. In north Hampshire, for example, since October last year the average time taken between charge and sentencing for young offenders has dropped from 133 days to 89.
"The Crime and Disorder Bill will provide for fast-tracking for all persistent young offenders. There will be mandatory time limits for all young offender cases but stricter limits for those involving persistent young offenders. The time limits will be backed by
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demanding performance targets. The Bill will also implement many of the recommendations of the Review of Delay in the Criminal Justice system, to streamline procedures, improve case management and so expedite justice for both juveniles and adults.
"Conclusion: one of the most depressing things about visiting this country's adult prisons is to hear how many inmates started offending as children. By nipping youth crime in the bud, we will be preventing today's young offenders graduating into tomorrow's career criminals. Our manifesto committed us to tackle youth crime and its causes. This White Paper sets out how we will do it.
"The measures which I have announced today should deliver a youth justice system which prevents youth crime, as well as punishing it; which deals directly with offending behaviour rather than simply processing cases; which reinforces responsibility; which delivers justice for victims as well as offenders; and which provides value for the taxpayer's money. I commend this White Paper to the House."
My Lords, that concludes the Statement.
6 p.m.
Lord Henley: My Lords, I thank the noble Lord for coming to the House—he was here already and will be here for some little time—and for repeating the Statement made by his right honourable friend in another place. There is much in the Statement with which we will agree and which we will find easy to accept. I could say that the Government have stolen our clothes, which could be described as a crime of a young government.
I have a number of questions, but there is much with which we can agree. I hope that when debating the legislation we will be able to offer our help and support where appropriate, but we shall wish to study the detail with great care. Perhaps I may say to the usual channels that I hope that before receiving the Crime and Disorder Bill we will have an opportunity to debate the White Paper. I have not yet seen it and I believe that a debate after having studied the White Paper will be more effective than the brief remarks one can make in response to a Statement of this kind. I very much hope that there can be such a debate.
We published our Green Paper, Preventing Children Offending, in March. It set out many proposals designed to intervene early, to prevent juveniles turning to crime by establishing new local groups, and by involving many different people within the community, including the parents. It also examined ideas for early identification of children most at risk of offending. That policy appears to have been followed by the Government in bringing forward their White Paper. For that reason, I look forward to reading it.
I wish to raise three points. I hope that the noble Lord will be able to respond to them, but if he is not perhaps he will write to me in due course. The first relates to a matter of detail, but it may be that I have misunderstood the Statement. At the end of the section of the Statement which referred to changing the culture of the youth courts, the noble Lord said that such changes would

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require primary legislation and that the Government would introduce that legislation at the earliest opportunity once the Crime and Disorder Bill had been enacted. Is it correct that the proposals in the White Paper relating to youth courts will not be included in the Crime and Disorder Bill but will be brought forward later? Would it not be possible to include them in the Crime and Disorder Bill, or would it be better to pass that Bill before proceeding to examine changes in the youth courts?
The second point relates to secure accommodation. The noble Lord made it clear that he expects that on some occasions, where appropriate, greater use will be made of local authority secure accommodation. It is some time since I was involved in a local authority, but I understand that they now have much less secure accommodation. Therefore, they would have to provide considerably more secure accommodation in order to cope with the demands of such children. Will help be given to local authorities to provide secure accommodation where necessary?
I appreciate that the noble Lord may have preferred notice of my third point, but I shall be happy if he writes to me on the subject. He will remember the new regime which we introduced for 18 to 21 year-old offenders. It is being piloted at the Colchester military corrective training centre and at the Thorn Cross young offender institution. It placed a heavy emphasis on discipline and training. I should be grateful if the noble Lord could say how that regime is going, the degree of success it has achieved and whether the Government, who appear to have adopted a Conservative approach to these matters, will be prepared to continue with it.
Having given a general welcome to the Statement, I look forward to reading the detail in the White Paper and later in the Crime and Disorder Bill. I am sure that we shall have many late nights debating the detail of the Bill.
6.5 p.m.
Lord Rodgers of Quarry Bank: My Lords, we, too, are grateful to the Minister for repeating the Statement. It is no reflection on him that it was what one might have expected of a Second Reading speech on the Crime and Disorder Bill. Indeed, there were eight specific references to the Bill and, given speeches, briefings and previous Green Papers, there was nothing new. In those circumstances, I wish to save most of our comments of substance until the White Paper has been read and digested and until the Bill is before the House. In repeating what the Home Secretary said in another place. the noble Lord said that the Bill will be available shortly. Can he be more specific? Can we expect the Bill before the Christmas Recess? What possibility is there that it might begin in your Lordships' House rather than in another place?
We all agree that there is a serious problem of youth crime. I agree with the description of the problem in the Statement and in the White Paper. We must also agree that there is a need for innovation and a new approach. There are encouraging ideas in the Statement and the
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White Paper, even though they are not new. However, the whole House will wish to scrutinise the Bill carefully. We on these Benches will want to look particularly at local curfew schemes and the new parenting orders. Who will make the orders? I assume that it will be the courts, but it is not clear from the Statement and it is not clear from the text of the White Paper. We will also wish to look carefully at the argument that 10 year-olds should be answerable for their offences. That is not to say that there is not a problem. The paragraph dealing with that aspect is interesting, even philosophic, and we shall wish to scrutinise it carefully before committing ourselves in the way suggested by the Statement and the White Paper.
The White Paper and the Statement refer to the causes of juvenile crime. However, they are inadequate and we on these Benches will make clear that the causes of juvenile crime are not only those listed in the White Paper and the Statement but include inferior housing, of which there is still far too much in this country: the neglect of inner cities, which is plain to us all when we travel around the country; the problems of one parent families, which are due not only to the failure of responsibility; and the incidence of sheer poverty, which the whole House hopes the Government will do more to remedy than appears to be their intention.
I wish to ask the noble Lord two questions. The first relates to the anticipated increase in the number of young people on remand. What new provision is being made to accommodate them in acceptable circumstances? The second relates to resource implications. I understand that there is no proposal that the changes should be financed from the National Lottery. If there is no such proposal, what will the costs amount to and where is the money to be found? We would not be happy if it were to be argued that the money will be found from existing budgets.
I shall look in particular at the role of local authorities which are to be responsible for local curfew schemes. Those schemes are to be permissive rather than mandatory and, as I read the White Paper, no additional resources are to be found. Does the Minister believe that in those circumstances the schemes will be widely taken up? I hope that they will because, despite what I said earlier, the experiment is worth examining. But without the necessary resources is it a serious proposition? There is also the issue of further resources for the police and the courts. The Statement did not spell out the resource implications, but perhaps the Minister will help us now.
Lord Williams of Mostyn: My Lords, I am grateful to the noble Lords, Lord Henley and Lord Rodgers of Quarry Bank, for the tone that they have adopted. I personally think it is much more fruitful if we can, together, recognise that we share common aims. In particular, the Crime and Disorder Bill contains a good deal of detailed material. If amendments are put forward which are designed to be helpful, I shall welcome them. We do not claim the monopoly on wisdom.
It is self-evident that not every idea in the Statement and the White Paper is new. The Home Secretary is intent upon drawing forward and together various strands. We do not claim to be the author of every single

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idea. Some of the ideas have been discussed by people in the youth justice field for a very long time. The truth is, the discussion must come to an end and we must focus our resources on what we can do. No one in your Lordships' House would pretend that the youth justice system—the way we treat young offenders and the way we seek to stop them becoming the adult recidivists of tomorrow is at all effective.
The total cost of the White Paper measures to he taken forward in the Crime and Disorder Bill will be about £22 million. The noble Lord, Lord Rodgers, is quite right to say that the local child curfew is expected to operate within existing resources. It is permissive—I should express that a little more gently: it is a matter for local choice and option. One would expect local authorities to use their resources as they think appropriate since not all local authorities have the same problem. We prefer to leave it to local authorities, since some have particular problems concerning young children while others do not experience the same problems.
The noble Lord, Lord Henley, asked me three distinct questions. Again, I am grateful to him, as always, for offering me the opportunity to write to him. There will be a need for further primary legislation beyond the Crime and Disorder Bill. That relates to a question put to me by the noble Lord, Lord Rodgers. "Shortly" means before the Christmas Recess. The noble Lord, Lord Henley, has the decency to smile because he often used to say, "shortly", followed by, "This Government are not complacent". I shall omit that statement, and say that "shortly" means before the Christmas Recess.
As regards secure accommodation, the previous government had made plans—I do not say that in any carping sense—which have not yet been fulfilled for reasons that may well be understandable. We shall consult carefully with local authorities, recognising that they have problems with resources. There are resources implications if we are to have secure accommodation in the local authority context rather than in the context of secure establishments, which are sometimes hundreds of miles away from a child's home. We bear in mind the important need for many young offenders, even if they have to leave their families, to remain in reasonable contact with the local community as far as is reasonably possible.
I have no up-to-date details on Colchester—not even the most assiduous and inventive official had thought that I might be asked that particular question. I shall take up the opportunity so courteously offered to me and write to the noble Lord.
The noble Lord, Lord Rodgers, is quite right to say that we must knit together those various themes—inferior housing, neglect of the inner cities, one-parent families and poverty. I do not believe that anyone with experience in that field could possibly dissent from what he said. That is why we regard the different schemes such as Welfare to Work as extremely important. It is not simply welfare to work for parents, but welfare to work for young offenders coming out of prison. That was part of the context that I tried to explain to the House in relation to the tagging system for the final two-month period of short-term sentences.
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The question of remand places is extremely important. It seems to us that there are two distinct aspects. First, there is the deeply worrying problem of 15 to I 6-year olds being remanded inappropriately; secondly, there is the counter side to that particular coin: some young offenders are undoubtedly being released into the community when they should not be. That is not a draconian or pre-Dickensian view. It is no favour to a child to let him out to run up a longer charge sheet, eventually to be dealt with inadequately and to gain a lasting impression that the law means nothing and the victim is of no account.
There is a philosophic underpinning to all that has been thought about by the Home Secretary and his colleagues for some time. We cannot simply have piecemeal remedies for what is a fundamental blight on our society. The noble Lord invited me to comment earlier about the problems of inadequates in prison, and prison being treated, for some, simply as a dump or dustbin. They are let out into society no better than when they went into detention, and quite often a good deal worse. We must adopt a fundamental approach in order to attend to youth justice and see to it that children do not just drift into crime.
The reason that specifics were included in the Statement, which did not include the aspects to which the noble Lord, Lord Rodgers, referred, is that, statistically, it is plain—and a very dismal thought—that one can predict with a reasonable degree of scientific accuracy which children will become offenders on the indicators that we all know so well. The Home Secretary's Statement was pointing to those indicators as something to which we must attend. They are well-known to anyone who has had experience of Home Office affairs for some time.
Therefore, generally, I repeat that I welcome the offer of co-operation. I assure your Lordships that when amendments are put forward, whether they are probing or intended to reconstruct particular clauses, your Lordships will not find from me the response "Resist, resist, resist", if there is merit and value in the amendments put forward.
6.17 p.m.
Lord Murray of Epping Forest: My Lords, I very much welcome the Statement of fundamental change that we have heard this afternoon, and in particular the extremely positive emphasis on alternatives to custody in which offenders and their families will be forced to face up to what is happening to them and to change, and be given an incentive to change in their own self-interest. As the Minister said, the present system has failed in terms of recidivism, and it must be given to few Front Bench spokesmen to bring forward a programme which simultaneously offers hope to young people and saves a great deal of money, at least in the longer term, for the Government.
I therefore express the hope that the Government will be able to find, from the £43 million referred to earlier, at least a modest amount in order to build on the existing scheme to which reference was made. For example, the scheme run in East Kilbride by NCH Action for

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Children has produced significant reductions in recidivism and has sent some youngsters back into that very deprived community with at least the intention and hope of leading a better life in future. I hope that possibly 5 per cent. or 10 per cent. of that £43 million will be made available to local authorities and voluntary organisations in order to extend the provisions emphasised by the noble Lord and offer some help to youngsters and to the rest of us.
Lord Williams of Mostyn: My Lords, I am grateful for those comments by my noble friend Lord Murray of Epping Forest. On a number of earlier occasions, he and I have discussed those topics on an informal basis. I must say that the £43 million is dedicated to dealing with the prison population and its present inexorable rise. Therefore it is not available for the ameliorative schemes that my noble friend mentioned. But if we are to save money in the Prison Service, which I believe is possible at some stage in the future, although not immediately, then of course the Home Secretary is determined to produce, in so far as he is able, within the usual budgetary constraints, money that is properly directed. There is no doubt at all that money properly directed means stopping offending, preventing offending and checking offending in its early stages.
Lord Hylton: My Lords, I welcome the general thrust of the Statement and, in particular, what it says about reparation and rehabilitation orders. Will the Government study with care the recent report from the Howard League concerning juvenile girls in custody or in prison; that is, people in their teens under the age of 18? Will the Government also look at the whole question of crimes committed either by young persons who are in care or when they leave care?
Lord Williams of Mostyn: My Lords, I take the point made by the noble Lord absolutely. I have read the Howard League report to which he referred, and in the context of reparation your Lordships will remember that the noble Lord, Lord Henley, asked me for specific details of the Thames Valley scheme. I replied to the noble Lord so recently that that communication will not yet have reached his desk. Nevertheless, I hope that I have given him full details.
Reparation is extremely important because it has at least two aspects: one is practical and one is moral. The moral component is that the offender must recognise, not simply by the parroted plea of guilty, but much more fundamentally that he or she has done a deep wrong. It seems to us that contact with victims in a controlled and civilised way—and I stress contact where victims wish it—is of enormous value not only to the victim but to the offender. It has certainly worked extremely well on the pilot basis in Thames Valley.
One cannot fail to be concerned about the dismal life that so many children in care have. I have conducted investigations myself and reported on abuse in a children's home. No one who has even looked at the headline conclusions of Sir William Utting can think that we have discharged our duty properly over these
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many years. There is no doubt at all that the problem identified by the noble Lord, Lord Hylton, is very real and one which partly reflects a proposition that is self-evident; namely, that children who are away from their parents need a good deal of care, sensitivity and trained attention, which so often has not been the case.

Millennium Compliance
6.22 p.m.
Lord McIntosh of Haringey: My Lords, with the leave of the House, I shall now repeat a Statement which has been made in another place by my right honourable friend the Chancellor of the Duchy of Lancaster. The Statement is as follows:
"I should like to make a Statement on how government departments and their agencies are tackling the millennium compliance problem—sometimes called the "millennium bomb"—within central government departments and agencies.
"The problem is widely understood to pose serious and potentially catastrophic hazards in all organisations, in both public and private sectors, in every country worldwide. It affects mainframe and personal computers and any device containing a microprocessor chip that manipulates dates, including telephone equipment, lifts, air conditioning, lighting, clocks, timers and control equipment.
"Checking and where necessary correcting every system is a detailed, laborious process, and there is a fixed deadline for its completion. My right honourable friend the President of the Board of Trade is leading efforts to raise awareness of this urgent problem throughout the private sector.
"The principal responsibility for ensuring that systems are millennium compliant rests with individual departments. They are also responsible for ensuring that organisations in the wider public service sectors that they sponsor have the necessary guidance and information. My role is to co-ordinate activity in central government, assess progress and provide guidance. The Central Computer and Telecommunications Agency in my department has produced comprehensive guidance for departments on how to deal with the problem. This is available publicly.
"Immediately after taking office I asked to receive, as soon as possible after 1st October, detailed and costed plans, showing how the departments and agencies were tackling the problem. My officials have now analysed those plans. On the basis of those plans I am now able to confirm that all departments and agencies have work in hand and scheduled for completion in time—many by December 1998, the majority by March 1999 and a small number later in 1999. Some departments will, in general, give priority to correcting business critical systems and may leave systems of minor importance until later.

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"The total estimated cost indicated in the plans is just over £370 million. Most of this will be spent in the current and next two financial years. That is less than some estimates but is based on careful calculation by departments and their advisers, and I have no reason to believe that it is not of the right order. But this is something that Ministers and I will monitor carefully.
"The Government's policy is that the cost will be met from within planned allocations, and the evidence from the plans is that almost 97 per cent. is so covered. Many costs will be accommodated in maintenance and system replacement budgets. In some cases, departments will bring forward investment plans and adjust their priorities.
"Guidance published by the Central Computer and Telecommunications Agency asked departments to consider whether staff shortages would inhibit progress. The plans as a whole do not suggest that this is a serious problem at present, but I shall keep a close watch on this. I have written to departments asking for further clarification and will ensure that that will be covered specifically in subsequent reports.
"Overall, my assessment is that we have established the measure of the problem and set in hand plans which are realistic and achievable. But the bulk of the actual remedial or replacement work is yet to be done, the timetable is tight and there is little margin for error. This is the challenge. The programme needs continuous monitoring, and I shall be checking progress regularly and report to the House on a quarterly basis starting next spring.
"It is also my intention that we should be open about the scale of the problem and our progress in dealing with it. I am therefore arranging for all the departmental reports to be placed in the Library of the House and published on the Internet; and I shall ensure that progress reports are also made available on a regular basis.
"Finally, I can announce today that we are re-inforcing and strengthening our effort in two significant ways. First, a ministerial group is being set up, under my right honourable friend the President of the Board of Trade, to drive forward action to tackle the year 2000 problem across the public and private sectors. I shall be a member of that group, chairing a sub-group which will co-ordinate and drive forward the action for which central government departments and agencies are responsible.
"Secondly, we have asked Don Cruickshank, the chairman of Action 2000, to re-inforce this effort across both the public and private sectors by keeping in close touch with the ministerial group and advising on best practice from the private sector.
"I hope that this demonstrates the seriousness with which we take this problem, and the vigour of our approach to it. These efforts will be maintained."
My Lords, that concludes the Statement.
6.27 p.m.
Lord Lucas: My Lords, I am grateful to the noble Lord for repeating the Statement in this House. It is a Statement which I think I can say I welcome unreservedly. I personally have always called it the "millennium bug", but perhaps that invites confusion with Peter Mandelson, so the "millennium bomb" will have to do.
I am delighted that the Government are not just concentrating on their own problems but are taking in those faced by the private sector, and our economy as a result of the problems that the private sector faces. It seems akin to a public health problem: it is something from which we are all likely to suffer. If we do not do something about it generally, we may suffer serious national damage; and even if we do do something, we will expect individual companies to die, and unless we are careful people may also die. I am delighted to see that the Government are treating the issue with the seriousness demonstrated by the Statement. I am also delighted that they are showing realism as regards the extent and difficulty of the problem; that they are committed to openness; and that they are committed to a wholehearted participative approach by government and by senior people within government.
I have a few concerns which arise principally from the list appended to the back of the Statement setting out details regarding individual departments. It seems to me that some departments which are planning to be ready in March 1999, like the Employment Service, are likely to have substantial problems which may well cause great disruption. Any slippage from those dates will give us great cause for concern. I hope that the noble Lord can confirm that those target dates will be monitored carefully and that before the next report is made to Parliament—I understand that will be next spring—there will be some checking up on the reality of those target dates to make sure that they are not slipping and that the key services will be covered as it would cause a great deal of disruption if they went down at the end of 1999, or indeed perhaps earlier in 1999, as the millennium dates start to be entered into the computer systems.
It seems to me doubtful whether it is satisfactory that the Coastguard Agency, which has direct responsibility for human life, is waiting until mid-1999 to deal with its problems when a sum of £100,000 only is involved. They could surely be dealt with much faster than that. The Department of Social Security is waiting until September 1999 to deal with many of its systems. That allows little time for slippage. It should follow the example of the Ministry of Defence which is responsible for a great many more computer systems than the Department of Social Security, and which expects to get everything done by January 1999. That allows reasonable time for slippage with systems of that scale. I do not believe that the social security timescale allows for that. One must expect, from what it predicts, that there will be some disasters and some great inconveniences flowing from that.
The Foreign and Commonwealth Office is aiming for the end of September 1999. One likes to think that it is not that important these days, but that timescale is

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dilatory. The Treasury is aiming for the end of March 1999 with an estimated cost of only £100,000. Given how crucial the Treasury is, that is unacceptable. I cannot see why it cannot hasten that timescale a great deal. The Valuation Office of the Inland Revenue has given a date of the end of 1999. A day's slippage on that will put it into the black hole. Presumably it is being careless about this because the Valuation Office deals with taxpayers rather than the rest of government. Again, that cannot be acceptable. As I say, the Ministry of Defence, which faces the bulk of this problem—over half of it—seems to be doing well. The Office for National Statistics appears to be pretty dilatory, too. One way or another, there are some individual departments within this schedule which will bear watching.
I have one or two suggestions on which I should like to hear the Government's reaction. First, the Government will in the course of all these investigations discover a number of concrete examples of where the millennium bug would have caused problems. I hope that they will undertake to publish details of these in a central and easily accessible form so that people who fear that their similar systems may be affected can see the extent of the problem and what kind of systems are being infected. They may turn out to be publicly available programmes which have been bought by many people in the private sector. It is difficult for private sector enterprises to admit to this kind of fault. The Government have been courageously open about this. I hope that they will make their openness more accessible and individuals will not have to look through the individual reports of 100 or so different departments and agencies to find out what systems have gone wrong, if indeed—and it is not clear from the Statement—the reporting would extend to that.
Secondly, I hope that when they report next spring we shall have some indication from the Government whether they are satisfied with the progress being made in the major private systems which could have a major effect on the economy of this country. One thinks of telecommunications, banking and similar systems. I hope that the Government will be in touch with the major enterprises in those areas to assure themselves that those enterprises are not likely to cause problems for us all. I hope that they will also be able to cover such areas as the National Health Service—where there is a potential for severe threat to life—local authorities, fire and police, all of which must be facing problems in this area, and none of which are covered by this Statement. As a whole I welcome the Statement and congratulate the Government on it.
6.34 p.m.
Lord Methuen: My Lords, I, too, thank the Minister for repeating the Statement made in another place. I take a personal interest in this problem as I was one of the instigators of the problem some 20 years ago when I was writing programmes when there was a different cultural climate in the computer industry to that of today.
Last year I asked a number of questions of the previous government as to how matters were progressing. I received suitably bland responses from
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them. Having looked at the documents which accompany the Statement, I, too, am worried about the anxieties which have been expressed on costs and timescales. I shall not go into them in such detail as the previous speaker but I wonder whether the costs have been reasonably assessed. I have heard costs suggested of a greater order of magnitude.
I believe that one of the major problems will be the lack of people with appropriate skills who are available to tackle this problem. Many of the systems involved are so-called "legacy systems" which were written many years ago. They used different computer languages and they used different people, many of whom, like myself, have now retired. There is a major problem in finding those with the skill base to tackle modern systems let alone these older systems with the amount of work that is involved. When one couples that with the amount of work that will be required to introduce EMU into the City systems, one sees there is a real shortage of skilled personnel to carry out that work in the timescale that is envisaged both for EMU and for tackling the millennium bug.
A major problem is posed by systems that no one knows anything about such as the "embedded systems" with micro processors which control all kinds of process plant. Again, many of those are ancient systems and the firms which created them may have gone out of business. Records may be scarce and there is also the question of having the resources to mend these systems. I think in particular of the air traffic control systems which I believe are largely now being replaced in this country but are perhaps more of a problem in other countries. There is a major difficulty in that area.
I believe that the private sector is a disaster area. Figures have been suggested of the order of £30 billion. Some firms, such as that which I used to work for, Rolls-Royce, were considering this problem seven or eight years ago. At that time its costs, on my reckoning, were something in the order of £ 1 million. Many firms are nothing like as advanced in their consideration. As the millennium approaches, we shall see more and more private sector firms in a catastrophic state.
The Minister has said nothing about local government. The same problems apply there. The previous Government suggested that systems would be available to local government to help support their conversion costs. Perhaps the Minister will comment on that. Perhaps the Minister will also comment on the skills and resources that the Government think are available countrywide to meet these requirements. It has been said that one should not fly between 30th December 1999 and 2nd January 2000. We generally welcome this Statement. I hope that the Government's figures are accurate both as regards timescales and costs.
Lord McIntosh of Haringey: My Lords, I am grateful to both noble Lords for the reception they have given to this Statement. I do not think I have ever seen, either in government or in opposition, a Statement which was welcomed unreservedly on the Opposition Front Bench. I do not think that when I was in Opposition I ever welcomed a government Statement unreservedly.

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The noble Lord, Lord Lucas, was right to say that this is still a widespread and a difficult problem. He emphasised that point. He emphasised the need for realism as to the extent of the problem, and the need to recognise how difficult it is. As regards his comments on the completion dates given in the summary, I have some sympathy with what he said. I hope that I can reassure him. This is a summary, after all. It summarises by giving the end date for the final completion of the work in the appropriate department. If the noble Lord looks in the Library, he will see the detailed submissions which have been given by departments. He will see that I am holding in front of me about 50 pages. That is about a quarter of the submission from the Department of Social Security. The noble Lord commented in particular on the Department of Social Security, with a completion date of September 1999. As he will see when he considers the report, the DSS has been incredibly conscientious in looking at the extent of the problem not only centrally but in all of its agencies. It has costed, allowed for and given a timescale to the replacement of hardware, operating systems and application software. Even additional copies of manuals are provided for in the DSS submission.
When the noble Lord refers to completion dates at April 1999, he is right to say that it diminishes the scope for dealing with slippage. However, perhaps I may remind him that the previous government set a target date of December 1998 for all departments. Departments then wrote in to say, "We cannot test our financial systems by December 1998. We have to run them over a year end"; that is the end of March, beginning of April. Therefore, they could not complete their review of the problems and deal with them before April/May 1999. That seemed a reasonable answer and it was widely accepted.
I am not sure that I can answer the noble Lord about the coastguard agency. He is right to say that the Ministry of Defence has an extraordinarily large problem in that it has something like 20,000 different systems. Virtually every piece of equipment that it operates has some device in it which is susceptible to the millennium bug. All those points are well taken and will have the continued attention of Ministers and of the ministerial group which has just been announced.
The noble Lord, Lord Lucas, asked me whether we would be willing to publish concrete examples of the problems which have been found in central government so that we could give help to the private sector in dealing with them. That is exactly the purpose of the Action 2000 task force which has been set up under Mr. Don Cruickshank. It is not only to deal with the interface between the public and private sector but to make available the lessons from the public sector. I can therefore answer the noble Lord's question on that positively.
The noble Lord asked me whether in our quarterly report next spring we would be able to express our satisfaction or dissatisfaction with progress in the major private sector companies. I am not sure that we shall be able to do that. But that is again why we have the ministerial group under the President of the Board of
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Trade, who will be seeking to ensure that the private sector is not slipping as disastrously as the noble Lord, Lord Methuen, seems to fear.
I appreciate the point that the noble Lord makes. In 1958 as a programmer I was invited to approve the purchase of an Elliott 1301. I am glad to say that I advised my company against it because it would have taken a whole air-conditioned room to perform what can now be done with equipment I can hold in the palm of my hand.
The noble Lord, Lord Methuen, rightly drew attention to the problem of the lack of skills of people who know about the older systems. I suspect that the answer will not be retraining people in the older systems but replacing the equipment. Estimates of costs for dealing with the millennium bug are of two kinds: one is going into the systems and actually dealing with the problem by replacing the chips or rewriting the software, scrolling through thousands of pages of source code, I imagine; and the other is simply to advance replacements. In many cases, in particular with smaller systems, it must be more effective to advance replacements. The capital cost of that replacement equipment or software is not the total cost of the millennium bug. I believe that some people who are making estimates are confusing the two.
The noble Lord, Lord Methuen, asked me about local government. I can confirm that local government will be within the scope of the ministerial group which I have announced.
Above all, I wish to say this to noble Lords who have expressed concerns. The action we are taking is precisely because we believe those concerns to be justified. Nothing in information technology ever works the first time or on time. We must not expect it to do so. But we believe that we have now taken every reasonable precaution to set things in the right direction.
6.45 p.m.
Viscount Waverley: Has a study been done into what ministries, first, created software in-house, secondly, contracted out the production of software, and, thirdly, purchased the software off the peg? The point is as regards the responsibility in cost which could be passed on to third parties.
Lord McIntosh of Haringey: Government departments and agencies have for many years taken the advice of the Central Computer and Telecommunications Agency on the purchase and leasing of both hardware and software. Therefore that responsibility goes back a long way. I very much doubt whether there is scope for suing people for past mistakes, although if there is any failure among those who have guaranteed millennium compliance that would certainly be pursued.
The noble Viscount's question gives me the opportunity to say that since September 1996 all government purchases, whether of hardware, firmware or software, have been guaranteed by contract to be millennium compliant. That applies also to equipment or

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software which is bought off the government electronic computer catalogue (G.Cat) produced by the CCTA. That also is all guaranteed to be millennium compliant.

Human Rights Bill [H.L.]
6.48 p.m.
House again in Committee on Clause 10.
Lord Goodhart Lord Goodhart: moved Amendment No. 68:
Page 6, line 18, leave out ("may") and insert ("shall").
The noble Lord said: In substance this is a drafting amendment. I hope that it may be considered as an appropriate clarification of the duty of the Minister under Clause 10. It seems a little odd that if a Minister considers it appropriate to amend legislation, the Bill provides only that,
"he may by order make such amendments",
rather than, "shall" by order make amendments to it. The same point applies to subsection (4). I do not think that I can take the matter further. I beg to move.
Baroness Williams of Crosby: Perhaps I may add one sentence to what my noble friend Lord Goodhart said and press the noble and learned Lord the Lord Chancellor a little further on the degree of pressure on the Minister to move relatively quickly in the event of incompatibility. That is obviously the point on which we need reassurance.
The Lord Chancellor: The effect of the proposed amendment is made very clear by the noble Lord, Lord Goodhart. It would replace the discretion of a Minister of the Crown to use the order-making power where he considers that appropriate to amend incompatible legislation with an obligation that he do so.
As I have made clear, we expect that the Government and Parliament will in all cases almost certainly be prompted to change the law following a declaration. However, we think that it is preferable, in order to underpin parliamentary sovereignty, to leave this on a discretionary basis. The decision whether to seek a remedial order is a matter for government to decide on a case-by-case basis. It would be wrong for a declaration automatically to lead to a remedial order. It would in effect be tantamount to giving the courts power to strike down Acts of Parliament if there were an obligation in all cases to bring remedial orders forward. This is a fundamental point on which it may be that we take a fundamentally different view from that of the noble Lord.
Lord Ackner: I intervene to invite my noble and learned friend's attention to the phrase,
"if a Minister of the Crown considers that, in order to remove the incompatibility, it is appropriate".
We have reached the stage of the Minister having applied his mind to the question and deciding that it is appropriate to amend the legislation. I cannot see where this is a question of the courts striking down. The
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Minister has considered the matter and reached a conclusion that the legislation should be amended. That being so, it surely follows that he has an obligation to do what he considers to be appropriate.
Lord Goodhart: I respectfully agree with the noble and learned Lord, Lord Ackner. It seems to me that the element of discretion is already there. The discretion lies in the Minister's power to consider whether it is appropriate to amend the legislation. It seems to me extraordinary to contemplate a situation where the Minister has come to the conclusion, in the exercise of his discretion, that it is appropriate to amend the legislation but then decides not to do so. I do not think that there is a fundamental disagreement. But that seems to me to be contradictory within the terms of the clause.
Lord Coleraine: I suggest to the noble Lord that there is no real contradiction. Having considered it appropriate to amend the legislation, the Minister might decide that the best course is to introduce a Bill and not use the fast-track procedure.
The Lord Chancellor: I have listened to the argument. I am not persuaded, but I shall take the point away and consider it.
Lord Goodhart: On that undertaking from the noble and learned Lord the Lord Chancellor, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 69 and 70 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn: moved Amendment No. 71:
Page 6, line 20, leave out subsection (3).
The noble Lord said: In speaking to Amendment No. 71, I shall, with leave, speak also to Amendment No. 77. Both amendments are technical. They provide that the power to make a remedial order is to be exercisable by Her Majesty in Council in cases where the legislation which has been declared incompatible is an Order in Council, whether the order has the status of primary or subordinate legislation. Under the Bill at present the power may be exercised in this way only if the Order in Council has the status of primary legislation. I beg to move.
On Question, amendment agreed to.
[Amendment No. 72 not moved.]
[Amendment No. 73 had been withdrawn from the Marshalled List.]
[Amendments Nos. 74 and 75 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn: moved Amendment No. 76:
Page 6, line 30, at end insert—
("( ) The power conferred by subsection (2) may also be exercised where the provision in question is in subordinate legislation and has been quashed, or declared invalid, by reason of incompatibility with one or more of the Convention rights and the Minister proposes to proceed under section 12(1)(b).").
The noble Lord said: This technical amendment extends the circumstances in which a remedial order can be made to include those where the courts have quashed a provision of subordinate legislation because it is incompatible with the convention rights and in accordance with Clause 12(1)(b) a Minister considers that a remedial order needs to be made urgently without going through the draft affirmative resolution procedure provided in Clause 12(1)(a). This will only be needed in cases where the incompatible subordinate legislation is itself subject to the draft affirmative resolution procedure. In other cases (for example, orders subject to negative resolution or to no Parliamentary procedure) the Minister would be able to make an order under the parent legislation without first securing parliamentary approval and would not need to rely on the power to make a remedial order. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn: moved Amendment No. 77:
Page 6, line 30, at end insert?—
("( ) If the legislation is an Order in Council, the power conferred by subsection (2) or (4) is exercisable by Her Majesty in Council.").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 78 not moved.]
Clause 10, as amended, agreed to.
Clause 11 [Remedial orders]
Lord Simon of Glaisdale Lord Simon of Glaisdale: moved Amendment No. 79:
Page 6, line 41, leave out ("(including") and insert ("(but not").
The noble and learned Lord said: Amendment No. 79 is grouped with Amendment No. 80, which raises the same point, and Amendment No. 81 in the name of the noble Baroness, Lady Williams of Crosby, which covers much the same ground.
Clause 11 states that a remedial order may contain,
"such incidental, supplemental, consequential and transitional provision as the person making it considers appropriate".
I draw attention to the word "consequential".
Subsection (2) states:
"The power conferred by subsection (1)(a) includes—
(a) power to amend or repeal primary legislation (including primary legislation other than that which contains the incompatible provision)".
That obviously goes beyond consequential provisions. The amendment is to substitute for "including" the words "but not".
I can see why the power is desired. The declaration of incompatibility may have repercussions in other parts of the statute book. However, subsection (2) goes well beyond consequential provisions and is far too wide. We cannot have Henry VIII trampling through the statute book in this way.
I can see a difficulty in my two amendments. They may not be easy to reconcile with subsection (1) and, indeed, the whole section may well need to be recast.
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I prefer the amendment of the noble Baroness, Lady Williams, and I shall leave it to her to make her case. I beg to move.
7 p.m.
Baroness Williams of Crosby: If it is convenient to the Committee, I shall speak to Amendment No. 81. Let me add to what the noble and learned Lord, Lord Simon, said, that many of us in this Chamber, and for that matter in another place also, have been concerned about the gradual spread of what are sometimes called "Henry VIII powers". It is noticeable in this Bill.
In the powerful report from the Delegated Powers and Deregulation Committee, paragraph 23 said explicitly,
"This is a Henry VIII power of the utmost importance, which the Committee wishes to draw to the House's attention … We have noted the Lord Chancellor's statement to the House at Second Reading that the power can only be used under strictly limited circumstances. Without strict limitations, a secondary power of such potential width would be unacceptable".
The purpose of Amendment No. 81 is to constrain, as far as is reasonable, that issue of "potential width". Its phrasing is deliberately more flexible than the wording in the amendments of the noble and learned Lord, Lord Simon, in order to recognise the fact that it is sometimes necessary to amend primary legislation or to amend primary legislation in consequence of subordinate legislation resting upon primary legislation. We would not wish to prevent the Government from exercising such powers.
On the face of the Bill it seems to many of us that the constraints that the Government have to bear in mind in using these powers are not sufficiently explicitly brought out. It is with the purpose of both exploring the Government's intention and urging upon the Government the need to limit the power explicitly in the Bill so far as it may be feasible to do so, that my noble friends and I tabled the amendment.
I know the Committee is sitting late and I do not wish to hold it up. But I want to say that all Henry VIII powers are troubling precedents. In a parliamentary democracy Henry VIII powers are the route towards an executive power unconstrained by adequate discussion and debate in Parliament. It is with a view to balancing those two necessary interests—that of the Executive and that of Parliament—and with all goodwill towards what is proposed in the Bill that I have tabled Amendment No. 81. We look forward to hearing the Government's response.
Lord Henley: Perhaps I may briefly offer a degree of support to the noble Baroness, Lady Williams of Crosby. Like the noble and learned Lord, Lord Simon of Glaisdale, I prefer her approach to that of the noble and learned Lord. We expressed earlier and will express again later our anxieties about Henry VIII powers. It is therefore only right that we support any amendments that seek to limit that power. For that reason I support Amendment No. 81, to which the noble Baroness, Lady Williams, spoke following Amendments Nos. 79 and 80.
Lord Ackner Lord Ackner: I too support Amendment No. 81.
Earl Russell: I too add a word in support of this provision. Amendment No. 81 is a tighter drawing of

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the vires for the fast-track procedure. I support it for exactly the same reasons for which I opposed Amendment No. 67B; that the power is necessary for receiving another system of law. It should be clear that it is not necessary for any other purpose.
Lord Williams of Mostyn: I do not believe that there is any difference of approach in principle between those noble Lords who have spoken and the Government's stance.
It is clear from Clause 10(2) that a Minister will be empowered to make only such changes (apart from any consequential changes) as are appropriate to remove the incompatibility. As the Lord Chancellor said during the Second Reading debate,
"the power to make a remedial order may be used only to remove an incompatibility or a possible incompatibility between legislation and the convention."—[Official Report,, 3/11/97: col. 1231.]
The Select Committee on Delegated Powers and Deregulation noted the Lord Chancellor's remarks about the strictly limited circumstances under which the order-making powers will be used, and did not express any need for the amendments being proposed.
The Government's intention therefore is perfectly plain. I am bound to say that, having listened to the argument (always fatal) in particular relating to the amendment proposed by the noble Baroness, Lady Williams—which, if I may say without disrespect, is designed to ensure that both the belt and the braces are worn on every appropriate occasion—we do not at present believe that there are inadequate safeguards. If reflection shows that there may be a case for a further safeguard, we will reconsider and return at a later stage.
Baroness Williams of Crosby: I thank the Minister for that assurance and simply add that, for some of us, the combination of belt and braces is extremely attractive.
Lord Simon of Glaisdale: I do not believe the noble Lord really met the point. We are all agreed that the fast-track provision—the Henry VIII clause—should not go wider than is required. But the noble Lord did not meet the argument that it does in this case, and it is not the only case.
The first way in which it goes far beyond what is necessary is in relation to the aggregation of the rule of implied repeal, to which we have referred on a number of occasions and to which we shall have to return on Report. In the meantime, I ask the noble and learned Lord the Lord Chancellor to bear in mind the famous words of Cromwell to the General Assembly of the Church of Scotland, "I beseech you to consider the possibility that you might be wrong".
I ask him again, with all the powers at my command, to look again at the argument for simplifying the measure—not going at all contrary to his scheme, which in general I support—by dealing with antecedent legislation by the use of the well-established and accepted rule of the repeal of inconsistent earlier
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legislation by a later statute. That is entirely consistent with the supremacy of Parliament, which I know my noble and learned friend is anxious to preserve.
As for this case, despite the kind and emollient words of the noble Lord, Lord Williams of Mostyn, it goes far beyond what is necessary. What is necessary is what is defined by the noble Baroness, Lady Williams, in her Amendment No. 81, which has now won general support. As I indicated, I prefer it to mine. However, on recommending Cromwell to both the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Williams, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 80 to 82 not moved.]
Clause 11 agreed to.
Clause 12 [Procedure]:
Lord Henley Lord Henley: moved Amendment No. 83:
Page 7, line 7, at beginning insert ("subject to the provisions of subsections (1A) to (1D)").
The noble Lord said: In moving this Amendment, I shall speak also to Amendments Nos. 85, 86, 88 and 89. We come back to the Henry VIII power and, to some extent, we come back to the debate that we had earlier on the amendment in the name of my noble friend Lord Campbell of Alloway. In my noble friend's case, he was going somewhat beyond what was recommended or suggested by the delegated powers scrutiny committee. We have put forward an amendment here which I hope will to some extent allow the Committee to consider whether a new procedure should be developed, as the delegated powers scrutiny committee suggested, to scrutinise such orders, modelled on that for the second stage of parliamentary scrutiny of deregulation orders.
I appreciate that it is not the same as that for those deregulation orders, but it is similar in effect in that the draft of any remedial order will be laid before Parliament for a period of 60 days. During that time anyone can make representations to the Minister about the order. When the order then comes into effect—this appears in Amendment No. 85—it would be for the Minister to make clear what representations he had received and also what changes he had made to the order as a result of those representations.
I have no intention of pressing the amendments to a Division today but it is certainly a matter I would want to come back to on Report, depending on the view taken by the Government. It is important that the House should have an opportunity to consider some process whereby amendments can be made to the orders before Parliament, as suggested by the delegated powers scrutiny committee.
At this stage in the proceedings I would not want to delay the Committee by digging out long quotations from noble Lords opposite when they were in Opposition about how they felt the Government should respond to reports from the delegated powers scrutiny committee. What I can say to the noble and learned Lord the Lord Chancellor is that we always took very seriously indeed the advice given by the delegated powers scrutiny committee. The House was pleased that we did take that advice seriously.
I very much hope that the Government are prepared to take seriously the recommendations of the delegated powers scrutiny committee and that if they do not like our approach they will at least come forward with an approach which would allow the committee's recommendations to be made use of and, while still allowing a fast track procedure to operate, would allow both Houses to express their views on those orders and to make amendments where necessary. I believe that the amendments are relatively straight forward and simple and I do not believe that any further explanation is necessary. I certainly await with interest the Government's response. I beg to move.
7.15 p.m.
The Lord Chancellor: I appreciate the spirit in which the noble Lord, Lord Henley, has moved the amendment. He desires to know what the Government's thinking is. I shall proceed to tell him. But I should also say that we will ponder upon what he has said.
The effect of this group of amendments would be to alter the parliamentary scrutiny procedures for remedial orders contained in Clause 12. The noble Lord referred to the report of the Select Committee on Delegated Powers and Deregulation. He used that as the basis for the amendments because they are modelled on the first stage procedure for considering draft deregulation orders under the Deregulation and Contracting Out Act 1994. In paragraph 24 of the report the committee states:
"the House may wish to consider whether there is a case for developing a new procedure to scrutinise such orders modelled on that for the second stage parliamentary scrutiny of deregulation orders".
There, if I may say so, I think the committee slipped. For "second", it should have said "first". The second stage parliamentary scrutiny of deregulation orders does not provide for the amendment of draft orders. It is the first stage that does.
We have considered that paragraph and the whole report with great care. The conclusion we have come to thus far is that Clause 12 of the Bill is adequate. In the present Bill remedial orders are limited specifically to amendments to legislation which are necessary to remove an incompatibility with the convention. The incompatibility will have been identified very, very precisely by a higher court or it will have emerged plainly from a judgment of the European Court of Human Rights. The cause of the incompatibility will have been very precisely identified. The remedial order will have the sole purpose of improving human rights by removing a closely defined incompatibility. We have therefore thought thus far that there is no need for an amendment-making mechanism.
In the last resort, if the proposed method of dealing with the incompatibility was considered by Parliament to be unacceptable, it would be able, under the existing terms of Clause 12, to withhold its approval to the order being made, or, in the case of an order made under Clause 12(1)(b), ensure that it ceases to have effect after 40 days. In practice, that would oblige the Government to make a fresh order.
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This does, as at present advised, seem to us to be a sufficiently strong form of parliamentary control and one tailored to the needs of the Bill. On the other hand, we will ponder what has been said on the basis that, although it is possible to get the remedial order wrong, the scope for error in the circumstances I have described is really so little that we took the view that the provision for amendment was not necessary in the particular situation we were addressing. Similarly, I doubt whether inserting a minimum period of 60 days before remedial orders can be made under Clause 12(1)(a) would have any beneficial effect. There might well be occasions when a much shorter period for considering a draft order would suffice. What we have in mind is that an unnecessarily long fixed minimum period would unnecessarily delay the making of a remedial order and, accordingly, the removal of incompatible provisions of legislation for the purpose of enhancing human rights. Nonetheless, I have said that we will ponder; and we will.
Lord Henley: I am grateful to the noble and learned Lord for saying on three occasions that the Government will ponder over my amendment. That is the best one can normally hope for from the Government at this stage of a Bill. He seemed to imply that he saw no need to have an ability to amend such an order as the courts themselves had identified precisely what the problem was and that there was no further need to refine the issue. That seems to be saying that Parliament itself is incapable of doing better than the courts. That is something that we would want to consider very carefully because in many cases I believe that Parliament itself could possibly make improvements whether in this House or in another place.
He also seems to be saying that there is no need to have the power to amend such orders because, in the end, this House or the other place could throw out such an order. I believe that the noble and learned Lord—and certainly my noble kinsman Lord Russell would know this very well—that it is not that easy, particularly in this House, to throw out an order. He knows the conventions under which we operate. But the same can also be said to be true of another place with a large majority and the power of the executive. Merely to say that there is no need to be able to amend the order because in the end the House can throw it out, is possibly not good enough.
I did say that I had no intention of pressing the amendment this evening. I also said how grateful I was to the noble and learned Lord for agreeing to ponder this matter. I look forward to hearing what he will say, or what he will communicate, to me between now and Report stage. However, it is a subject that we shall have to return to then. There might be a slightly modified amendment or we might want to deal with the comments about the 60-day period being too long. But it is certainly a matter to which I want to return at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn
Baroness Williams of Crosby Baroness Williams of Crosby: moved Amendment No. 84:
Page 7, line 7. after ("been") insert ("scrutinised and reported upon by the appropriate committee of each House of Parliament, and").
The noble Baroness said: I owe the Committee an apology because it might have been better if my two amendments had been grouped together with the earlier set of amendments since they are to some extent dealing with the same problem. Therefore, I shall be brief in my remarks.
I invite the noble and learned Lord the Lord Chancellor to think adventurously and radically about this part of the Bill. At an earlier stage in our deliberations, and also at Second Reading, the noble and learned Lord said that one of the intentions of the Government was to encourage—because they do not have the right to order that it should occur—the creation of a joint committee on human rights in the two Houses of Parliament. To many noble Lords that seemed an attractive idea.
I do not always sympathise with the noble Lord, Lord Henley, but I do so on this point. He has suggested the possibility of an amendment, which is not possible in the present affirmative order structure in any way. Might it be possible for the noble and learned Lord, when he comes to look at this clause again before we return at Report stage, to consider whether such a joint committee, as he has previously discussed, is an appropriate body for scrutinising these orders? I fully appreciate that many of them will be technical, but many of them will not arouse significant issues for amendment. If there were to be a joint committee on human rights which dealt with other and much larger issues, it would not be unreasonable for it to have this responsibility as well.
I draw the noble and learned Lord's attention to the way in which the European Communities Select Committee operates. It mainly deals with large scale issues of inquiries and reports, but it also looks at directives and regulations at every one of its meetings. I am very honoured to be a member of that Select Committee. Therefore one would have a form of scrutiny which can then be reported to the House and also to another place, in the case of its committee, if there is any real problem about an order.
I also very strongly recommend to him the thought that perhaps involving Parliament more in issues of human rights, giving it clear responsibilities, is not only a way of ensuring that human rights are more generally understood in the country, but also of recognising that Parliament itself could usefully discharge many functions that it is not currently asked to do. There is a great deal of talent and ability in both Houses of Parliament which remain to be tapped in the interest of trying to ensure that human rights are properly upheld.
The final and last point I make is that the significance of my amendments—here I make a different point to that made by the noble Lord, Lord Henley—is essentially that they would require a report to be made or for the committee to clearly indicate that it does not intend to make a report. The point of that arises from a deep cynicism on the part of somebody who has also
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been a member of governments. Alongside public expenditure, the hardest concession to get from governments is time. It is very dangerous for scrutiny to be absorbed by the pressures of time in the legislative timetable. The purpose of my amendments in effect is to give power to the committee to ensure that it be heard if it chooses to be heard. I beg to move.
Lord Henley: The noble Baroness, Lady Williams, was kind enough to offer me some sympathy so on this occasion may I reciprocate and say that I have a considerable degree of sympathy for this approach, which is not so very different from mine. It is allowing for a slightly greater degree of scrutiny and possibly allowing the committee to suggest adjustments to the particular order. It is a slightly new procedure that the noble Baroness is recommending. But bearing in mind the remarks made earlier by my noble kinsman Lord Russell about importing a new concept into our legal system, occasionally requiring a new approach, similarly this is an idea where a new approach might be appropriate.
If the noble Baroness would like to consider between now and Report stage alternatives to her method or mine that we might jointly pursue at that stage, I shall be more than happy to join her in that. As Members of the Government so often say, I can say that my door will be open throughout that time to approaches from the noble Baroness.
Lord Meston: I should also have arranged for Amendment No. 90 to be grouped with these amendments or the earlier ones. With all the opening of doors and pondering going on, it is probably going to be unnecessary for me to say much about Amendment No. 90 other than to invite the Government to look at it in the same light as they were looking at the previous amendments. It seeks to extend the time for parliamentary scrutiny of remedial orders and to extend to Parliament the power to disapprove such orders when they take effect in cases of emergency.
The fast track procedure will be desirable when speedy action is necessary to redress some individual or minority grievance of a serious nature, although in some cases the existing prerogative powers at the disposal of the Home Secretary may be sufficient.
It is important to emphasise that the fast track procedure should be regarded very much as an exception to the normal process by which rectification of United Kingdom law for compliance with the convention is made. They should not become simply a more administratively convenient and less time-consuming way of changing the law on human rights. The single stage of parliamentary approval is substantially less extensive than the various stages and length of time devoted to normal government Bills and otherwise. Therefore, it is particularly important that parliamentary scrutiny procedures are effective.
The amendment does not include any requirement for particular lines of consultation prior to such orders being made before Parliament or for any particular form of explanatory memorandum to accompany draft orders

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when they are laid. I support my noble friend Lady Williams in suggesting that an important corollary is that we have an assurance that there will be some form of parliamentary committee on human rights with terms of reference to include the scrutiny of remedial orders as well as future draft legislation generally, for compliance with the convention.
Earl Russell: I wish to add one point in support of each of these amendments. In Amendment No. 84 there is reference to "the appropriate committee". That might be taken to refer not only to a human rights committee, which I hope that Parliament will create in its own time, but also to the Joint Committee on Statutory Instruments and the Delegated Powers Scrutiny Committee.
The noble and learned Lord may say that this is unnecessary, but I can recall regulations being put before this House when the Joint Committee on Statutory Instruments had not yet considered them. The person on the receiving end happened to be the noble Countess, Lady Mar. I should like to congratulate her most warmly on her success in obtaining the Peer of the Year award, which is much deserved.
Members of the Committee: Hear, hear!
Earl Russell: Being a shrewd parliamentarian, the noble Countess threatened to divide the House against the Motion that the House be resumed, a condition precedent for considering the order at all. Having put the fear of God into the Government Benches, she then relented and decided that she had made her point. So I believe that this amendment is necessary.
On Amendment No. 90, I should like to touch on the point about 60 days. I take the noble and learned Lord's point that one may occasionally want to go faster, but there is a problem here. I take it that it is wide of the Long Title to table any amendment to the Statutory Instruments Act 1946. However, there is a trouble in that Act. The "praying days"—the 40 days that we normally have—include judicial sitting days when this House in its political capacity is not sitting. During September there are quite a number of judicial sitting days when this House in its political capacity is not sitting, so on those occasions the "40 days" may present us with a difficulty. Perhaps that point should be borne in mind.
7.30 p.m.
The Lord Chancellor: I desire the Committee to appreciate that we shall ponder ideas to determine whether we think that they are good. The whole scheme of incorporation of the convention into domestic law shows a great respect for parliamentary sovereignty. Other models would have shown less respect. That is why we rejected them. The principle now—that remedial orders must be made by Parliament, not by the courts—is accepted as part of our deliberations in this Committee. The question therefore becomes how to ensure that there is adequate parliamentary scrutiny while recognising that the sooner that (consistent with parliamentary scrutiny) denials of human rights are remedied, the better. Our purpose therefore is to find the
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best balance. That is why I was good enough to say that I saw the force of the arguments made by the noble Lord, Lord Henley, on Amendment No. 83 and the other amendments grouped with it. We want to get the balance right and to ensure a proper role for Parliament. However, I want to express quite frankly why I have my doubts about the amendments.
First, I should like to correct the noble Lord, Lord Meston, a little. What I said very clearly before was that the Government favour a committee or committees. I did not say that there will be a committee. That is a matter for Parliament. I have a hesitation about an amendment which puts on the statute book the need for scrutiny and report by an appropriate committee of each House of Parliament in advance of knowing whether we shall have such a committee because that is dependent upon Parliament. I also have a concern that the very concept (even on the footing that we do have a committee) while good in terms of parliamentary scrutiny may be bad if it turned out to be an engine for delay in remedying human rights problems. One must balance all those points.
The Government obviously expect that Parliament would wish to give full scrutiny to any remedial orders, but the amendments would provide a committee or committees, which ex hypothesi do not yet exist, with an undefined period in which to carry out scrutiny and report. That means that there would be an undefined period of delay. Also, it is not normal practice for provisions of this kind to be set out in statute, and I am not convinced that it is appropriate for the Bill to set out what the functions of any parliamentary committee should be in this regard. I should have thought—I am open to counter suggestion—that if Parliament agrees to establish a parliamentary committee on human rights, which the Government hope that Parliament will do, its functions and powers could best be considered at that time.
I return to a point that I made earlier in the context of the previous grouping of amendments in the name of the noble Lord, Lord Henley. The noble Lord was inviting us to admit the possibility that a remedial order might either be wrong or be not as right as Parliament might be capable of making it, and therefore to be hospitable to the possibility of amendment. I should like to renew what I said previously, but in this context. It is important to remember that any declaration of incompatibility will be based on a fully reasoned judgment of a higher court. In practice, the point will be crystal clear. The remedial order will be intended to achieve no more and no less than is necessary to improve the incompatibility. Therefore, I seriously question—I invite those who have proposed the amendment also to question—whether there is much point in an undefined period for scrutiny, and therefore delay in removing an incompatibility which is causing a continuing denial of human rights. That is as frank an expression of my doubts as I can muster at this hour of

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the evening. We shall certainly ponder on the point, but in return I ask those who have posed the amendment also to ponder.
Baroness Williams of Crosby: In responding briefly, first may I thank the noble and learned Lord for what he has said and assure him that we shall ponder. Secondly, I am sure that he will fully understand, as will his noble friend, that our difficulty is that the joint committee was floated as a possibility without being in the legislation. I fully recognise that my amendment therefore relates to a possibility rather than to something that is a reality now, but I am sure that the noble and learned Lord will also understand that because of the timing of legislation it will be difficult to include such provisions in legislation once the committee has been formed.
As much as anything, the purpose of my amendment is to ask the Government to consider carefully whether such a provision might be within the terms of reference. I see no difficulty about including a limit to the amount of time allowed for scrutiny. That may be a matter on which I can agree with the noble Lord, Lord Henley, about bringing the two together.
Finally, in our view, it is important that there should be (admittedly in the more extreme cases) the possibility of amendment. Our difficulty with the affirmative order is that that possibility simply does not exist. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 85 to 90 not moved.]
Clause 12 agreed to.
Lord Molyneaux of Killead Lord Molyneaux of Killead: moved Amendment No. 90A:
After Clause 12, insert the following new clause—
STANDING ADVISORY COMMISSION ON HUMAN RIGHTS
(" .There shall be constituted a Commission to be known as the "Standing Advisory Commission on Human Rights" to advise the Secretary of State on any matter related to the Convention.").
The noble Lord said: The proposed amendment and the new clause which resides therein is, I think, much more modest than the demands made by various interest groups in the past which have been inclined to stray into demanding that the Government should provide assistance, financial and otherwise, for individuals challenging decisions or rulings.
Having listened to many noble Lords speak on earlier amendments, I am now convinced of the need for the proposed body. It will become essential. In my view, we cannot safely proceed without such an effective link between the European Convention on Human Rights and a whole range of United Kingdom departments. These cannot be expected to establish their own advisory body and, if they did go down that road, there would inevitably be conflict and many areas of overlap between departments. The advisory body proposed in this new clause should be proactive in the preparation of advice and the identification of possible solutions before complainants sought recourse to the courts, with all the inevitable costs and delays.
The proposed standing advisory commission on human rights would make another valuable contribution by being available for consultation with departments in the preparation of their legislation. I am certain that that would avoid situations in which legislation could be effectively challenged immediately a Bill had completed all its stages and received Royal Assent. Departments would benefit enormously from the availability of advice from such an advisory body representative of broad streams of national life, as opposed to departmental Ministers and draftsmen being buffeted by unworkable demands which, if met, would themselves contravene the European Convention on Human Rights.
I do not have in mind the abolition of certain commissions dealing with limited aspects of human rights. It is possible that in time these may wish to merge with this United Kingdom standing commission on human rights. The present Northern Ireland Standing Advisory Commission could become a valuable element in the main body to which the Northern Ireland commission could and would make a very valuable contribution by reason of its long experience in dealing with the same issues which debates on the Bill have unexpectedly uncovered. I beg to move.
Lord Goodhart: We on these Benches have listened with great interest to the amendment moved by the noble Lord, Lord Molyneaux of Killead. We recognise the extremely valuable work that has been done in Northern Ireland by the Standing Advisory Commission on Human Rights in that Province. We wish to reserve our position on this amendment because, while potentially it is capable of doing good work, it is far less effective than what we wish to see; namely, a proper human rights commission as discussed in Committee on Monday. If such a human rights commission were established we would see the standing advisory commission as proposed in this amendment as part of it, or the human rights commission itself doing the work proposed in the amendment. However, we regard this not so much as half a loaf as a quarter of a loaf instead of the full loaf of the proper human rights commission that we wish to see.
7.45 p.m.
Lord Hylton: My noble friend Lord Molyneaux has referred to the Northern Ireland Standing Advisory Commission on Human Rights. I have had the benefit of meeting that commission on a number of occasions over a period of years. I have also had conversations with its chairman and secretary. I should like to pay tribute to the work of that commission, which has had to operate under extremely difficult circumstances involving emergency law, Diplock courts and direct rule which have had the effect of suspending much of normal democracy.
I was also very glad to have had the opportunity some time ago to be connected with an inquiry into human rights and responsibilities in both the United Kingdom and the Republic of Ireland. The fruit of that inquiry was published eventually in book form by Macmillan and edited by the late Sydney Bailey. One of its recommendations was that there should be human rights

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commissions not only in Northern Ireland but in Scotland, England and Wales. I should like to see any new body that may be created, whether as a result of this amendment or otherwise, having the power to look at individual cases as well as simply considering themes and subjects which bear on human rights, and to give advice to individuals. While I acknowledge the limited scope of this amendment, I give it my support.
Lord Williams of Mostyn: The Standing Advisory Commission on Human Rights, to whose work I readily join in paying tribute, was created by the Northern Ireland Constitution Act 1973 for a particular purpose which is not related to any purpose that we are discussing within this Bill. The commission was to advise,
"the Secretary of State on the adequacy and effectiveness of the law for the time being in force in preventing discrimination on the ground of religious belief or political opinion and in providing redress for persons aggrieved by discrimination on either ground".
I say carefully that it is a much narrower function which is devoted to the problems of a particular part of the United Kingdom.
The amendment moved by the noble Lord, Lord Molyneaux, proposes the constitution of a commission to be known as the standing advisory commission on human rights. Its purpose is to advise the Secretary of State on any matter related to the convention. That misses the point of the Bill. The purpose of the Bill is to enable people who believe that their convention rights have been violated to enforce those rights in domestic courts. Its purpose is not to create a statutory source of advice for the Government on whether they are acting compatibly with the convention. We do not believe that any such device would have any practical value or merit. It does not go beyond anything that can be done by a parliamentary committee on human rights. It would not be in the business of advising individuals; it would be limited to giving advice to the Secretary of State. The Government do not see the value or virtue of such a commission. On that basis, I invite the noble Lord, having considered his suggestion with care, to withdraw his amendment.
Lord Hylton: Before the noble Lord sits down, can he say whether or not any parliamentary committee on human rights would be able to look at individual cases?
Lord Williams of Mostyn: As has been agreed on all sides, what any parliamentary committee looks at depends upon its terms of reference. Its terms of reference are by definition a matter for another place and this place if either or both Houses wishes to have such a committee.
Lord Molyneaux of Killead: I fully understand the point that has been made by the Minister. He will have noticed that I was very careful not to model the proposed commission on the Northern Ireland Standing Advisory Commission, for the simple reason that the world has moved on. It is true that that commission was set up in Northern Ireland in very different circumstances and for a very different purpose. But I am
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sure that the noble Lord will admit that in the course of all our debates in Committee on this particular Bill we have dealt with the very same subjects of racial equality, religious freedom and many other matters. If the present Bill had been in force when the Northern Ireland commission was set up, naturally its terms of reference would have been widened to include all those aspects.
I trust that, despite the Minister's rather discouraging response as opposed to the sympathetic response from other members of the Committee, in time the noble Lord and his colleagues will see the need for such a body. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Other rights and proceedings]:
Lord Meston Lord Meston: moved Amendment No. 91:
Page 7, line 30, at end insert?—
("( ) A court or tribunal which is required in any proceedings to consider whether or not any jurisdiction should be exercised in the United Kingdom or in another state shall have regard to whether, and to what extent, any party to the proceedings or any person under disability who is the subject of the proceedings may be affected by a denial or infringement of the Convention rights in such other state (whether or not that state is a signatory to the Convention).").
The noble Lord said: I hope that Amendment No. 91 is largely self-explanatory. It would require a court or tribunal exercising a discretion which required the consideration of competing jurisdictions—for example, whether to grant a stay of legal proceedings, or a sist as it is known in Scotland, or some other forum conveniens dispute—to consider the possible impact of an infringement of convention rights in the other jurisdiction. Most typically, it would require consideration of Article 6 rights—that is to say, whether there would be a fair hearing within a reasonable time.
It might also be used in the international child abduction cases in which application is made to a court in the United Kingdom to return a child to another country. The Child Abduction and Custody Act 1985 gives effect to The Hague Convention on the civil aspects of child abduction, but Schedule 1 to that Act, which contains the Hague Convention, omits Article 20.
Article 20 reads as follows:
"The return of the child under article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms".
Some of the considerations for a court in the United Kingdom in both Hague Convention and non-Hague Convention abduction cases may be as follows: how quickly proceedings concerning the child can be started and finished in the other country, whether the abducting parent will get legal aid to seek custody and to seek permission to remove the child again lawfully and whether he or she will be prosecuted upon return. These can involve European convention factors.
Article 20 of the Hague Convention was omitted from the schedule to the 1985 Act because it was considered unnecessary, given the other exceptions in the Hague Convention in relation to the mandatory return of children and because at that stage the terms of Article 20 had no clear meaning in English law. However, now that the United Kingdom is to incorporate the European

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Convention, I would suggest that in any case in which the courts of the United Kingdom are asked to consider exporting either litigation or people—which includes children—to other jurisdictions, regard should now be had to how such other jurisdictions measure up to European Convention standards. I beg to move.
The Lord Chancellor: This amendment would require a court making a decision about jurisdiction in any proceedings and, in particular, addressing the question of whether jurisdiction should be declined or asserted, to have regard to the possibility of the denial or infringement of European Convention rights in the other rival jurisdiction, regardless of whether the other rival state concerned was a party to the convention or not.
What this amendment is essentially seeking to do is to use this Bill to give effect in domestic law to Article 20 of the 1980 Hague Convention on the civil aspects of international child abduction. The main provisions of that convention, but not Article 20, were brought into force in the United Kingdom by the Child Abduction and Custody Act 1985, under which the Lord Chancellor is the central authority for England and Wales.
That this is an important issue I do not question. I question, however, the appropriateness of using this Bill to address it. Regardless of whether it is in principle a good idea to give domestic effect to Article 20, I do not believe that this Bill is the right vehicle in which to revisit this issue. The purpose of this Bill is rather grand. It is to give further effect in domestic law to rights and freedoms guaranteed under the European Convention on Human Rights. Its purpose is not to give domestic effect to the provisions of any other international treaty.
Issues of jurisdiction are very complex. They are governed by a number of international treaties, and this Bill is not, in my submission, an appropriate forum in which to consider these contentious issues. After all, the amendment would apply, as I read it, not only across the whole range of family proceedings but also to litigation generally, including commercial proceedings. The implications are therefore extremely wide and we would want to give them much further thought before making the change proposed here. Our deliberations on this Bill do not constitute an appropriate forum for discussing these contentious matters. I am sorry to disappoint the noble Lord, but I hope that he will not press this amendment.
Lord Meston: I will not pretend that I am not a little disappointed by the response of the noble and learned Lord the Lord Chancellor. I suggest that this is an appropriate Bill because this is the moment at which we are incorporating the convention and the message should be going to all the courts exercising any jurisdiction in this country that European Convention factors should now be considered among other factors in a wide range of jurisdictions.
Although I accept the point that this is an important issue and a complex matter and one that is certainly wider than The Hague Convention point which I mentioned in explaining the amendment, it is
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unfortunate that we shall have to wait until the introduction of other legislation which might be considered more appropriate. I would hope that some further thought could be given to this point before the Bill completes its parliamentary passage; meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 92 not moved.]
On Question, Whether Clause 13 shall stand part of the Bill?
Viscount Colville of Culross: On this Motion I seek a word of clarification from the noble and learned Lord the Lord Chancellor. Last week I asked him how courts such as the Crown court were to take account of the jurisprudence which comes from Strasbourg. He has written me a letter, which I received this morning. I showed it to my colleagues at court at lunchtime today and it was greeted with enormous interest by them, as it contains a number of most positive and constructive methods whereby we are all to be informed or to have available to us the jurisprudence which has arisen and will continue to arise. I thank him for that.
I suggest it is of sufficient interest to warrant rather wider dissemination than simply being in the form of a letter to me and three other Members of your Lordships' House. I welcome very much what the noble and learned Lord said about that.
Since I understand that it is the intention of the Government that the rights enshrined in the covenant should permeate throughout the entire judicial system, I now want to ask him when these rights may be used in the courts. I give an example of this, looking at Clause 13. One of the matters that tends to arise in a criminal trial—it does not happen very often, but it is quite important when it does—is the question of abuse of process. If there is an abuse of process and the court so holds, the trial does not proceed at all. The matter is stayed and the prosecution goes no further. Of course, if there is an abuse of process, it is highly desirable because it means that no further money is spent. there is no necessity for any appellate procedures but, most particularly, the defendant is let out of his misery because he knows where he is straightaway.
In 1992 the Court of Appeal said that many of the matters which tend to be raised by way of abuse of process can be solved as the trial proceeds. Of course, the Court of Appeal is perfectly right. However, there are two matters which arise under the European Convention: they are in Article 6.1 and Article 6.2. They are fundamental when it comes to consideration of abuse of process. The parts of the convention with which I am concerned are these: first of all, the question of delay and, secondly, the presumption of innocence.
Unlike most of my colleagues, I have the advantage of having been able to look at your Lordships' Library to see what it is that Strasbourg has said. In a case in 1995, it dealt with both those matters. It dealt with—I believe that it dealt with it on many other occasions—the question of delay, and, also, for the first time, it dealt with the presumption of innocence. The court itself held in a case called Allenet de Ribemont v. France that

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authorities other than the court itself may say things by way of pre-trial publicity which so undermine the fairness of the trial that the presumption of innocence enshrined in the covenant is breached.
In our terms, that would be an abuse-of-process argument. Indeed, it has happened in recent times more than once. It may be the press, it may be someone in the police, it may come from all sorts of sources, but the issue that is being raised before the trial has even started is whether the defendant will be able to have a fair trial, and whether a jury can be properly empanelled, which will not have been so prejudiced in its ideas that a fair trial is impossible.
That is the type of thing that has to be dealt with in any event. The domestic jurisprudence has been built up to guide judges so as to be able to come to a conclusion about it one way or the other. What I am asking the noble and learned Lord is: will the courts at that stage be able to take account also of the jurisprudence that has come from Strasbourg, because I believe that they should do so? If they cannot do it at that stage, if a trial cannot be prevented on the grounds that an analogous case has arisen at Strasbourg. and been pronounced upon, and that the court should take account of that, we shall spend a great deal of time and money, and we shall put defendants through a great deal of tribulation before the Court of Appeal finally decides the matter. I ask the noble and learned Lord: when can we take account, in the Crown court, for instance, of the deliberations that have come from Strasbourg, because I believe that Clause 13 should say, and perhaps it does:
"A person may rely at any stage of any proceedings on a Convention right"?
Then it would go on as before. If it means that, I am content. I ask the noble andlearned Lord to clarify the point, and, I hope, confirm that I am correct.
8 p.m.
The Lord Chancellor: Clause 13(1) provides:
"A person may rely on a Convention right without prejudice to any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom".
The purpose of that provision is to ensure that the Bill gives but does not take away. A person may rely on a convention right, but he may also rely on any other right or freedoms he enjoys under the law.
Clause 13(1) relates back to Clause 7(1)(b) which provides:
"A person who claims that a public authority has acted … in a way which is made unlawful by section 6(1) may—

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights … in any legal proceedings".

So a person can rely on the convention rights concerned in any legal proceedings. Next of course, any court or tribunal must take into account the judgments, decisions, declarations, or advisory opinions of the European Court of Human Rights because Clause 2(1) so provides.
It appears to me that it is for the court in question, and for individual judicial decision in any particular case, to decide when the point, based on convention law, is to be
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adjudicated upon. It is a matter to decide in its discretion whether the argument that is put before it, based on the convention, is one upon which it should decide, as, for example, a preliminary issue at the outset.
Nothing I shall say on the Motion that Clause 13 stand part should be relied upon as standing in the way of the court's discretion within its own independent sphere to decide when it is appropriate, in particular proceedings, to adjudicate upon a convention point.
Clause 13 agreed to.
[Amendment No. 93 not moved.]
Clause 14 [Derogations]:
Lord Williams of Mostyn Lord Williams of Mostyn: moved Amendment No. 94:
Page 8, line 6, leave out ("order made under subsection (1)(b)") and insert ("designation order").
The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendment No. 96. These are, again, technical drafting amendments. They replace references in Clause 14(5)(a) and Clause 15(5)(a) to an order made under subsection (1)(b) with references to a designation order. That is consistent with the use of the phrase "designation order" in Clause 14(4) and (6) and Clause 15(4). It is also shorter. 1 beg to move.
On Question, amendment agreed to.
Clause 14, as amended, agreed to.
Clause 15 [Reservations]:
Lord Williams of Mostyn Lord Williams of Mostyn: moved Amendment No. 95:
Page 8, line 25, leave out ("Schedule 2") and insert ("this Act").
The noble Lord said: Again, this is a technical amendment. It amends Clause 15(5) so as to ensure that if a designated reservation is withdrawn, the Secretary of State can make the required consequential amendments to the Human Rights Act itself so as to remove what would otherwise have been an otiose reference to the designated reservation in Clause 15(1)(a). At present Clause 15(5) allows that only in relation to references to a designated reservation in Schedule 2 rather than the Bill as a whole. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn: moved Amendment No. 96:
Page 8, line 26, leave out ("order made under subsection (1)(b)") and insert ("designation order").
On Question, amendment agreed to.
Clause 15, as amended, agreed to.
Clauses 16 and 17 agreed to.
Clause 18 [Appointment to European Court of Human Rights]:
Lord Ackner Lord Ackner:moved Amendment No. 97:
Page 10, line 4, leave out from ("judges)") to end of line 6.
The noble and learned Lord said: I shall speak also to Amendment No. 98. The amendments relate to Clause 18 which deals with the appointment to the European Court of Human Rights of judges of this

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country. The amendment is a cry for clarification. If one looks at subsection (4)(a), it provides, in relation to Court of Appeal judges and mutatis mutandis in regard to other judges:
"a Lord Justice of Appeal or Justice of the High Court is not to count as a judge of the relevant court for the purposes of section 2(1) or 4(1) of the Supreme Court Act 1981",
which deals with the provision for the maximum number of judges. That is all straightforward. The subsection continues:
"nor as a judge of the Supreme Court for the purposes of section 12 of that Act (salaries etc.)".
My next amendment relates to subsection (6) which provides:
"The Lord Chancellor or the Secretary of State may by order … make such provision with respect to pensions payable to or in respect of any holder of a judicial office who serves as a judge of the Court as he considers appropriate".
I seek clarification. Section 12 of the Supreme Court Act is referred to in subsection (4)(a), which is the subject matter of my first amendment. It is an important section. It deals with the salaries of judges of the Supreme Court. Section 12(3) provides that:
"Any salary payable under this section may be increased, but not reduced, by a determination or further determination under this section".
I do not understand—I am sure that it is my fault and I apologise in advance—why Section 12 of the Act is removed in relation to any Lord Justice and subsequent judges who are transferred or appointed to the Court of Human Rights. Nor do I understand, if a judge is transferred, what protection he receives in regard to his salary. Can his salary be reduced from that which he is entitled to receive as a Lord Justice? Can his pension be interfered with? Subsection (6)(a) enables the Lord Chancellor to:
"make such provision with respect to pensions…in respect of any holder of a judicial office who serves as a judge of the Court as he considers appropriate".
Pensions are merely deferred salary. If the pension he determines is less than the Lord Justice, for example, is receiving, Section 12(3), which has hitherto protected the judge from any reduction in his salary, no longer operates.
My amendment merely seeks to obtain from the noble and learned Lord the Lord Chancellor an assurance that a transferred Lord Justice, or any other judge who is qualified for the Court of Human Rights, cannot as a result of the transfer find himself being paid less either by way of salary or by way of pension than he enjoys in the office which he holds. I beg to move.
The Lord Chancellor: I shall certainly reflect on the observations of the noble and learned Lord, but I shall endeavour to satisfy him here and now. Section 12 of the Supreme Court Act 1981 provides that judicial salaries, once determined, may not be reduced and are to be paid from the Consolidated Fund.
The purpose of the provision to which the noble and learned Lord calls attention is to be helpful and beneficial to the judge. It is to modify the existing law, which involves that a serving judge should have to
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resign his office if elected to the Strasbourg Court. We want him to remain in office as a High Court judge of the High Court, if that is what he is. Therefore, to that extent the provision is beneficial.
We take the view that obligatory resignation might well dissuade potentially good candidates from coming forward when the office of UK judge to the Strasbourg Court has to be filled. So far so good. A consequence of the change is that we disapply for the duration of his service in Strasbourg the provision under which a judge is entitled to receive his United Kingdom salary. That is because he will be paid by the Council of Europe the generous sum of 1,100,000 French francs, tax-free, per year. That is about £114,000 at current exchange rates.
I entirely appreciate that the noble and learned Lord tabled his amendments in order to receive an explanation of the intention behind the provisions. However, if his amendments were accepted, the effect would be that the judge would be paid not only, by public service standards, a handsome salary tax-free to be received from the Council of Europe but also his United Kingdom salary, even though he was not performing his duties as a United Kingdom judge. I am sure that the noble and learned Lord would be the first to agree that that would be too much of a good thing.
If it is accepted that the judge should not be paid both salaries, subsection (6) is necessary in order to allow suitable pension provision to be made. That will be made, but I am not yet in a position to inform the Committee what precisely the arrangements will be. They are under consideration. I hope that with that explanation the noble and learned Lord will feel able to withdraw his amendment.
8.15 p.m.
Lord Ackner: I am not sure where we have arrived. I understand the explanation. I had assumed that it might well be financially advantageous to the judge to transfer to Strasbourg, and I have never doubted the ability and enthusiasm of my noble and learned friend the Lord Chancellor, consistent with his obligation to safeguard the independence of the judiciary, to ensure that their emoluments are not reduced. But I do not find any of that protection reflected in the statute. That is why I have underlined the amendments which would cause the Government to focus on the point.
I am not wedded to the amendments. I would not be the first to resist the judges' salaries increasing substantially. Therefore, I shall be grateful if my noble and learned friend will confirm that if I withdraw my amendment he will agree to look at the wording of the provision so as to ensure that the protection of the judge, particularly in Section 12(3), which provides that his salary cannot he reduced, will be continued.
The Lord Chancellor: I will certainly look at the provision. But the noble and learned Lord understands the point that the judge cannot be paid two salaries and that he is receiving a substantially larger salary, tax-free, in Strasbourg. The noble and learned Lord's amendments would entitle the judge to receive both salaries and would disable me from making suitable

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arrangements as regards his pension. The right outcome is that he should have one salary and not two and have suitable provision made for his pension, balancing what is suitable against the amount of the salary which he will be receiving from the Council of Europe. It is to the latter that I am currently attending.
Lord Ackner: I thought I had made it clear that I am not wedded to my amendment. My amendment was merely to bring up short the noble and learned Lord the Lord Chancellor against this particular situation. I do not expect the judge to receive two salaries. I do not urge that. I want to ensure that he receives the protection which he has at the moment.
There is nothing in the legislation, nor would I expect it, to say that when he goes to Europe, he will be paid more and it will be tax free. I am told that that is what is hoped to be the position but it may all change. The situation in Europe may oblige some radical alteration in the emoluments of a judge. I hope it will not occur but it is quite possible that it will and there is absolutely nothing in this legislation which protects him. Nothing in this legislation says he will be paid tax free and certainly there is nothing in this legislation which says that he will receive £10,000 more than he receives at present. I do not expect it to be in this legislation.
But I expect to find in this legislation the protection which I find in Section 12(3). If protection of that kind can be put into this clause, then I am quite content. But the amendment was not intended to be an amendment which I sought to have accepted. It was merely to oblige the noble and learned Lord the Lord Chancellor to explain the position, and I am grateful that he has done that. But, unless there is something in the Bill itself to protect a judge from having his salary reduced, then he has not met my point.
I thought that he was going to reflect on that—it may be that the current word is "ponder" and I am putting it too high—when he rose to address the Committee. Perhaps he will confirm what is the position.
The Lord Chancellor: I shall certainly go so far as to say that I shall reflect further on what the noble and learned Lord has said. But what I said is perfectly clear. The judge's office as a High Court judge will continue but he will not receive the remuneration associated with that office while he is not carrying out the duties of that office. The office will continue but he will not be entitled to the remuneration of that office precisely because he will not he rendering the services which are the quid pro quo for the salary.
He will be choosing to following that course by entering into an agreement in terms of the conditions of service in Strasbourg which are clearly set out in a resolution of the Committee of Ministers of the Council of Europe. That is a public document and the salary which he will in fact receive, tax free of the equivalent of £114,000 per year at current exchange rates is what the salary will be.
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As to the pension implications, I have said to the noble and learned Lord that I shall be considering those and I am in the course of doing so. But I am not in a position to say anything further now.
Lord Ackner: I still do not understand why it is so repugnant to my noble and learned friend the Lord Chancellor to say that the judge will not receive less than he obtains from his current office. That is clearly what the noble and learned Lord expects to be the case but he will not bring himself to enunciate that fact. Perhaps Pepper v. Hart is worrying him, I know not. But he has agreed to reflect on my submissions and I am content that that will occur. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 98 not moved.]
Clause 18 agreed to.
Clause 19 [Statements of compatibility]:
[Amendment No. 99 not moved.]
Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 100:
Page 10, line 38, leave out ("to the effect that") and insert ("giving the reasons why").
The noble Baroness said: I can move this amendment briefly. I congratulate the Government on, in this particular case, requiring that a statement be made when new legislation is put forward. We see that desirable word "must" in the drafting of Clause 19. On these Benches, we are extremely pleased to see that.
I must say that a moment of inappropriate merriment overtook me when I looked at the original drafting of Clause 19, which refers to the Minister of the Crown making statements,
"to the effect that in his view the provisions of the Bill are compatible with the Convention rights".
My mind went back to a number of Ministers, somewhat unclear about what they were doing, who did indeed rather vaguely wave their hands in the air and make statements to the effect of this or that with no great precision, no great clarity and no great helpfulness to the House.
Therefore, from these Benches, we propose Amendments Nos. 100 and 102 in an attempt to persuade the Minister to be rather more clear as to what he says in his statement. We wish him to give the reasons for his statement of compatibility or non-compatibility as the case may be.
In doing so, we reflect recent recommendations stemming back as far as the Franks Committee of 1957 and the Justice All Souls Report under the distinguished chairmanship of Sir Patrick Neill, both of which strongly recommended the advantages of giving reasons in the making of law and in the administration of law.
Therefore, it seems to us that the amendments which we are here proposing and in the current mellow and friendly mood of the noble and learned Lord and his noble colleague, we hope that they will readily concede this, because it is simply a recognition that Ministers of

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the Crown are capable of clarity and I have no doubt that Ministers of this particular Government are more than capable of clarity.
Finally, I argue that the amendment has the great advantage of obliging the Minister to think through the statement he makes because he must give his reasons and answer to them. From these Benches, we commend the amendments to the Government. I beg to move.
The Lord Chancellor: The Committee will appreciate that this Bill could have gone through without any Clause 19 at all. In its present form, Clause 19 is a demonstration of the Government's commitment to human rights. I appreciate that the amendment provides that a statement is not enough and it must be a statement backed by reasons. I shall address that on its merits but I suggest that Clause 19 in itself is a very large gesture, as well as being a point of substance, in favour of the development of a culture of awareness of what the convention requires in relation to domestic legislation.
And so, by requiring the Minister in charge of a Bill to give a statement about its compatibility, we are underlining our commitment to undertaking further pre-legislative scrutiny of all new policy measures. The noble Baroness will appreciate that, if there had been no such provision in the Bill, that might have given a quieter life for Ministers. Also, where the Minister states that he is unable to make a positive statement about the Bill's compatibility, that will be a very early signal to Parliament that the possible human rights implications of the Bill will need and will receive very careful consideration. Therefore, a statement giving the Government's conclusions, whether positive or negative, on the status of the Bill will go a long way towards the achievement of those aims. Therefore I ask the Committee not to underestimate the significance of what is already there.
Of course, Parliament will wish to know the reasons why the Government have taken whatever view they have taken. Therefore, I can understand why these amendments have been put forward. But the reasoning behind a statement of compatibility or the inability to make such a statement will inevitably be discussed by Parliament during the passage of the Bill. Of course it will be; and it will be discussed thoroughly.
I believe that a debate in Parliament provides the best forum in which the Government's thinking can be fully explained. In those circumstances, therefore, I require a great deal of persuasion that a written statement on the face of a Bill, setting out the Minister's reasons, would add anything of real value.
In principle, the idea of the equivalent of written argumentative essays on the face of Bills does not appeal to me. Debate in the Chamber on such issues will inevitably take place and that, surely, is the natural forum for ascertaining the Minister's reasons and having him develop them so that Members of this Chamber can test by question and debate the sufficiency of the
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reasons. Is there any real need to clutter up the face of the Bill with a statement of reasons? I beg leave to doubt it.
Baroness Williams of Crosby: I thank the noble and learned Lord the Lord Chancellor. I should perhaps point out to him that I do not intend to move Amendment No. 102A, which requires a written statement. I am moving Amendment No. 100 and speaking to Amendment No. 102, which only require that the reasons are given to Parliament in exactly the way that the noble and learned Lord outlined as part of a Minister's statement, so that Parliament may in fact more precisely and more relevantly debate the issue. I simply commend that to the noble and learned Lord, not because I am trying to create difficulties for the Bill; indeed, I strongly accept what he said about Clause 19. It is a very important part of the Bill, not a minor part. It is a very long step forward. I strongly commend it.
I have tabled the amendments so as to bring the legislation in line with the Franks Committee and the Neill Report. It is a further example of an attempt to try to elicit from governments of all colours and of all times the reasons why they do what they do. That is the spirit in which I move the amendment, not in a spirit of trying to create many requirements for written reasons which I, too, see no reason for. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.30 p.m.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon: moved Amendment No. 101:
Page 10, line 38, leave out ("his") and insert ("Her Majesty's Government's").
The noble and learned Lord said: In speaking to this amendment, perhaps I may, for the convenience of the Committee, speak briefly to Amendment No. 103, which also stands in my name. I wish to make clear the reasons behind the amendments. I appreciate that Amendment No. 103 is not grouped with the one that I have just moved but, in view of the hour, I think it would be convenient for me to speak to both at the same time. The amendment has been tabled with a view to seeking to assist in making Clause 19 work when it in fact becomes law.
The first point to make is that, when, in the future, Parliament comes to discuss a new Bill, it will, with the greatest respect to individual Ministers, not really be concerned with the view of that individual Minister; it will be concerned with the view of the Government as to whether the provisions of the Bill which are to be debated are compatible with convention rights. That issue is essentially a question of law. It is inconceivable that, in most cases, the view will be the personal view of the Minister concerned. It will be the view of the Government informed by such legal advice as they will have taken, whether from Law Officers or from any other quarter. In effect, it will be the duty of the Minister to adopt that view and incorporate it in the statement which is

1165
to be given. If Amendment No. 103 were accepted, the suggested wording would then be incorporated into the statement which the Minister would then be required to repeat in this Chamber on Second Reading.
I invite Members of the Committee to picture the scene in a year or two when this Government, or possibly another, introduces a Bill with the noble Lord, Lord Lester, sitting in his usual place in the Chamber. A statement will be made by a lay Minister in the effect that, in his view, the provisions of the Bill are compatible with convention rights. If I am not mistaken, I believe that the noble Lord, Lord Lester, would probably have something to say about it; indeed, he might conceivably have been involved in a case which touches upon the issue. In that situation we would have a most unusual discussion between an expert on the law and a layman whose knowledge was informed by an opinion of Law Officers whose existence he could not acknowledge—that is, the existence of the opinion, not that of the Law Officers—and the contents of which he could not disclose.
I suggest that it would be sensible to make clear on the face of the Bill the fact that it is the Government's view which is important. When such statements are to be debated, as they surely are, the Government may also wish to think about how the existing convention relating to the advice of Law Officers will be applied. As a Question earlier this week disclosed, a Minister can be placed in a very difficult position when he cannot mention the existence of the advice and yet he is, in effect, being asked to defend a legal opinion. On that basis, in the hope that the amendment will be accepted as a constructive one and that the noble and learned Lord the Lord Chancellor has not used up all his pondering facilities, I beg to move.
Lord Williams of Mostyn: I believe that Amendment No. 103 was grouped with Amendment No. 99. The latter has, fortunately, come and gone but it is only sensible for me to deal with both amendments for the convenience of the Committee. Amendment No. 101 would not cause a great change to the Bill; it would simply replace "his" with "Her Majesty's Government". However, we believe that it is an important matter and one which is entirely consonant with what my noble and learned friend the Lord Chancellor said about the importance that we attach to Clause 19.
Our scheme plainly puts responsibility upon the individual Minister who has charge of the Bill in either relevant place. He is given the particular responsibility of enuring that the policy accords with convention rights. His is the duty and his is the responsibility to answer to this Chamber or the other place. We believe that to be the correct focus and that is where it presently stands. Of course, the Minister would be answering on behalf of Her Majesty's Government as, by convention, Ministers answer Questions not on behalf of their own
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departments but on behalf of the Government generally. We believe that the responsibility is so particular that it ought to be left as it is.
Amendment No. 103 would require a Minister to repeat a written statement that he had made about compatibility by way of a statement to the Chamber of which he is a Member, either before or during the Second Reading of a Bill. The answer is quite plain. Acts of Parliament do not usually—indeed, not at all—regulate what a Minister will or will not say to Parliament. What one needs here is, first, responsibility attached to the sponsoring Minister; and, secondly, the opportunity for questions.
The former Lord Advocate, the noble and learned Lord, Lord Mackay of Drumadoon, said that Ministers would not be able to deal with the noble Lord, Lord Lester. Of course, I have summarised what he said. but I do not accept that view for a moment. If a Minister is to be remunerated, at whatever modest level, he ought to know his brief before he comes to the Chamber.
Lord Mackay of Drumadoon: For the sake of the record, I should point out that I did not quite put it in the way outlined by the Minister; namely, that the Minister concerned would not be able to deal with the noble Lord, Lord Lester. However, having had to deal with the noble Lord on occasions, I am sympathetic to the view which has been expressed. I fully accept that the intention is to make the Minister concerned personally involved in the matter and, although I intend to withdraw the amendment, I hope the Government will reflect on the problem of a lay Minister having to defend a view of the law in the face of the difficulties to which I referred. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 102 to 103 not moved.]
Clause 19 agreed to.
[Amendment No. 104 not moved.]
Clause 20 [Orders under this Act]:
Lord Williams of Mostyn Lord Williams of Mostyn: moved Amendments Nos. 105 to 108:
Page 11, line 3, at end insert—
("(1A) The power to make rules (other than rules of court) under section 2(3) or 7(8) is exercisable by statutory instrument.").
Page 11, line 4, leave out ("such") and insert ("statutory").
Page 11, line 4, leave out (" 16") and insert (" 16(7)").
Page 11, line 8, leave out (" 18(5)") and insert (" 18(6), or to which subsection (1A) applies,").
The noble Lord said: I have already spoken to these Amendments. I beg to move Amendments Nos. 105 to 108 en bloc.
On Question, amendments agreed to.
Clause 20, as amended, agreed to.
Clause 21 [Interpretation, etc.]:
[Amendment No. 109 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn: moved Amendment No. 110:
Page 12, line 25, leave out ("section 21(1) of").
The noble Lord said: This is another tidying up amendment, if I can describe it in that way. This amendment widens the amendment to the Northern Ireland Constitution Act 1973 made by Clause 21(5). This is needed because there are provisions of the Bill other than the definition of subordinate legislation in Clause 21(1)(to which Clause 21(5) currently refers), for example Clause 3, which a Northern Ireland court might regard as affecting the status of Acts of the Northern Ireland Assembly. I beg to move.
On Question, amendment agreed to.
Clause 21, as amended, agreed to.
Clause 22 [Short title, commencement, application and extent]:
Lord Monson Lord Monson: moved Amendment No. 111:
Page 12, line 26, after ("the") insert ("Additional").
The noble Lord said: I have drawn the short straw in that I have to move this important amendment at the end of a long day when the Committee is understandably hungry and possibly wants to go home too. I shall try to be brief. The Short Title of the Bill at the moment is the Human Rights Bill. Whether by accident or by design—I am sure it is the former—this is a propagandistic title. Faced with this title, the sort of voter who reads only the tabloids and watches only commercial television could be forgiven for being persuaded that prior to 1st May 1997 the United Kingdom was in a state of semi-tyranny compared with the liberal paradise to be found on the Continent of Europe.
The Members of this Chamber, Members of another place, those who have a university education and broadsheet readers in general are well aware that this is the reverse of the truth and that Britain, with its Magna Carta, jury system, equality before the law, its House of Commons with power to refuse to vote funds to the Monarch, the Glorious Revolution and so on, has always been—despite many imperfections—far freer than almost any continental nation. Most of those people know that the Soviet Union had rights written in black and white into its constitution right through the Lenin terror, the Stalin terror and the enduring Gulags and that it is the underlying attitudes and instincts of a nation's people that count just as much as what is written on paper. They know too that most people from third countries would far rather find themselves in the hands of the British police than the French police, whatever the theoretical safeguards in France.
Moreover, the title as it stands may give the public the impression that the rights conferred by this Bill are so comprehensive that nothing more needs to be done, ever. Of course we know better. For example, the European Convention on Human Rights is weak on property rights, as the European Court's judgments on the confiscatory aspects of the 1977 Aircraft and Shipbuilding Industries Act demonstrate. This is not
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surprising as the convention was formulated in the late 1940s when western Europe was going through a decidedly socialist phase.
I contend that we need a more honest and accurate title. I suggest prefacing the word "human" by the word "additional" for two reasons. First of all the Bill introduces a few totally new rights, but secondly, and perhaps more importantly, rights that cannot be enforced or which could be enforced only with great difficulty are only theoretical rather than actual rights. Theoretical rights that become actual ones as a result of the provisions of this Bill are effectively therefore additional rights. However, I am not wedded to the word "additional". Some Members of the Committee might prefer the word "enhanced" or something else altogether. I await with interest the comments of the Committee. I beg to move.
Earl Russell: I assure the noble Lord, Lord Monson, that it will be a little while before this country is a liberal paradise, but we are working on it. I understand the point that he makes but unfortunately parliamentary precedent is against him. Since I have been in this Chamber we have had more education Bills and more local government Bills than I can count, but none of them has ever been described as the additional education Bill or the additional local government Bill. I think there is a good case for following normal parliamentary practice.
Viscount Colville of Culross: If it is going to be anything it ought to be the some additional human rights Bill because one of the things it does not do is to incorporate the provisions of the international covenant in its entirety. Although this country has ratified it, we have not adopted the first optional protocol and therefore the rights of the citizens are confined to those matters that are in the European as opposed to the international convention. There are some important matters in the international convention which are not reflected in the European one.
Lord Williams of Mostyn: What the Bill is actually doing, surprisingly, is to be found, amazingly, in the Long Title which is to give,
"further effect in domestic law to rights and freedoms",
which the United Kingdom is already obliged to secure to people in its jurisdiction by dint of its ratification of the convention. The noble Lord, Lord Monson, said that if we call it a Human Rights Bill that is propagandist. May I suggest that if it is an additional human rights Bill, that would he additionally propagandist?
Lord Monson: I thought there might be some comments from the Conservative Benches but they have decided to opt out, as so often happens these days. The noble Earl, Lord Russell, was absolutely right: parliamentary precedent dictates excessively short titles and therefore very often excessively confusing titles. It is a pity that we cannot break the precedent for once. Perhaps we could start a new trend to have titles which are more explanatory of the

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legislation which they embrace. However, realistically, this is probably not the moment to do this. I also take the point made by the noble Viscount, Lord Colville, which I think is a perfectly valid one.
I, of course, have no intention whatsoever of trying to press this amendment at this time of night. Nevertheless I invite the Committee to ponder the possibility of altering the title. I shall not proceed on my own but if anyone else cares to join me at the next stage I shall be delighted to have their support. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Schedule 1 [The Articles]:
[Amendments Nos. 112 to 114 not moved.]
Schedule 1 agreed to.
[Amendment No. 115 not moved.]
In the Title:
[Amendment No. 116 not moved.]
Remaining schedule agreed to.
House resumed: Bill reported with amendments.

Lloyds TSB Bill [H.L.]
Reported from the Unopposed Bill Committee with amendments.
Plant Varieties Bill
Returned from the Commons with the amendments agreed to.

Special Immigration Appeals Commission Bill [H.L.]
Returned from the Commons with the amendments agreed to with amendments and with a privilege amendment; the amendments ordered to he printed.
House adjourned at eleven minutes before nine o'clock.