Lords Sitting of 2 April 1998

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

Languages: A-level Courses
Lord Hunt of Kings Heathasked Her Majesty's Government:
What discussions they have had with the A-level examination boards concerning the removal of A-level examinations in Arabic, Bengali. Hindi, Ukrainian and modern Hebrew.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, the Government believe that GCE A-level qualifications should continue to be available in a wide range of subjects. In the light of recent proposals to withdraw a number of minority language syllabuses, we asked the Qualifications and Curriculum Authority to agree with the GCE awarding bodies new arrangements for safeguarding the provision of small entry subjects at A-level. I am pleased to say that an agreement was reached on 23rd March which will ensure that qualifications presently available will continue to be offered without interruption.
Arabic, Bengali and modern Hebrew are covered by the agreement. Negotiations about Hindi continue. Ukrainian is not currently offered as a GCE A-level, although the Institute of Linguists offers a course which I understand is regarded as broadly equivalent to A-level.
Lord Hunt of Kings Heath: My Lords, I thank my noble friend for her welcome Answer, particularly for the announcement that the examination boards have been forced to reverse their quite extraordinary decision. Does she agree with me that in the interests of supporting ethnic diversity in this country and in our role as a trading nation, far from restricting the number of A-level languages taught, we actually ought to be increasing them?
Baroness Blackstone: My Lords, I very much accept that we must take into account the ethnic diversity of this country when looking at the range of languages available for young people both at GCSE and at A-level.
Lord Swinfen: My Lords, does the Departmnt for Education and Employmént discuss with the Department of Trade the languages that are taught and examined at school so as to make certain that our exporters are armed with people who speak the necessary languages spoken round the world?
Baroness Blackstone: My Lords, my department and the Qualifications and Curriculum Authority, which has
376
a good deal of responsibility for advising the Government on the curriculum, would always be interested in any advice that the DTI wanted to give on those languages which it regards as particularly important from the point of view of exporting round the world.
Lord Ponsonby of Shulbrede: My Lords, does my noble friend agree that it is easy enough to buy goods in English but it is much more difficult to sell them?
Baroness Blackstone: My Lords, I am sure my noble friend has a great deal of experience in this matter. I do not, but I am sure he is right on that.
Baroness Flather: My Lords, does the Minister know how long Hindi has been available as an A-level subject? I took my Hindi A-level in 1952. I hope the Minister will bear that in mind and do whatever she can to retain Hindi as an A-level subject. I took Hindi A-level "pre-ethnic diversity". I am sure she is aware that many more people now want to take these languages.
Baroness Blackstone: My Lords, I understand that the awarding body that offers A-level Hindi, Edexcel, is still in discussion with the QCA about its future provision. But since it is a subject that is currently offered, I fully expect to see its future safeguarded under the terms of the new agreement.
The Earl of Halsbury: My Lords, is there any case for the inclusion of double Dutch as an aid in the interpretation of administrative orders?
Baroness Blackstone: No, my Lords.
Baroness Blatch: My Lords, is this a reserved matter for the Welsh assembly?
Baroness Blackstone: My Lords, I do not know whether the issue of the teaching of foreign languages at A-level will be a reserved matter for the Welsh assembly. But I shall certainly write to the noble Baroness.
Lord Elis-Thomas: My Lords, speaking as the chair of an official statutory body promoting minority language Welsh, which is an official language in the United Kingdom, may I endorse the Government's policy and say how important it is to maintain and develop linguistic diversity in these islands, notwithstanding any political comments from the Official Opposition?
Baroness Blackstone: Yes, my Lords, I very much agree with what the noble Lord has said.
Baroness Hooper: My Lords, in view of the earlier questions and responses in the area of trade and exports, will the noble Baroness confirm something she has said

377
on previous occasions, which is that every possible encouragement will be given to the teaching of Spanish and Portuguese as major world languages?
Baroness Blackstone: My Lords, I agree that Spanish and Portuguese are very important world languages. I think it is the case that increasing numbers of young people are now learning Spanish in our schools. The issue of Portuguese is somewhat more difficult. There are far fewer teachers available in the UK to provide language teaching in Portuguese at the school level, although I know that many university departments are now offering what I think are called Iberian Studies, where Portuguese can be learnt along with Spanish.
Lord Taylor of Gryfe: My Lords, will my noble friend take the opportunity to congratulate the Prime Minister on speaking in perfect French before the French Assembly? Is this not an excellent example to some of our other politicians to show their abilities in this direction? Is she aware that German is taught on these premises between one o'clock and two o'clock on a Thursday, and may I encourage any Members of the House who would wish to extend their knowledge in that language to make themselves available?
Baroness Blackstone: My Lords, I will certainly pass on my noble friend's congratulations to the Prime Minister. I may perhaps suggest that he might like to join the German class between one o'clock and two o'clock on Thursdays in this House. I think that all Ministers should brush up their foreign languages a little. I could certainly do with it.
Lord Tebbit: My Lords, will the Minister consider arranging some English classes for the Deputy Prime Minister?

Iraq: Military Policy
3.8 p.m.
Lord Jenkins of Putneyasked Her Majesty's Government:
Whether there was or will be any threat to use nuclear weapons by the United Kingdom or the United States in the dispute with Iraq.
Lord Whitty: My Lords, the United Kingdom would only ever use nuclear weapons in extreme circumstances and in self-defence. There are sufficient conventional forces available to us for a proportionate response to any situation that might arise in the Gulf. US military policy with regard to Iraq is a matter for them.
Lord Jenkins of Putney: My Lords, is my noble friend aware that his Answer, in so far as it refers to this country, is entirely satisfactory and I thank him for it? But is it the case that the decision to utilise, if necessary, what my noble and charming friend Lady Symons
378
described in reply to my Question for Written Answer as "severest consequences" does not include nuclear weapons?
Lord Whitty: My Lords, the phrase "severest consequences" arises from the Security Council resolution which followed the agreement between the Iraqi Government and the Secretary-General. That makes absolutely clear that if Iraq were to breach that agreement it could be faced with very severe consequences indeed. In those circumstances a military assessment would need to be made. The position of the United Kingdom Government would remain as I explained in my earlier Answer.
Lord Burnham: My Lords, may I express the hope to the Minister that contingency plans were made for any eventuality in the recent Iraq crisis covering any form of reaction that might have been required to anything done by the Iraqis? Does the Minister agree that that would include anything nuclear?
Lord Whitty: My Lords, I believe that the House has accepted the position enunciated by my noble friend Lady Symons that it would not be sensible in this House to discuss which options were considered and which were not. As I say, the general position as regards the use of nuclear weapons remains as stated.
Lord Randall of St. Budeaux: My Lords, is it not the case that the principle behind all this is that nuclear weapons are a deterrent? Bearing in mind that it has been decided that the threat from Saddam Hussein could affect the whole of the Middle East and indeed the world, should we not look at the way in which we deal with him and in that context should not the potential use of all weapons be considered?
Lord Whitty: My Lords, I have nothing to add to my previous answers as regards options. In pursuit of the agreement between the Secretary-General and Saddam Hussein, clearly a lot depends on the reports from the UNSCOM inspectorate. Some progress has been made and decisions will have to be made in the light of its final report.

Sir Walter Raleigh: Statue
3.11 p.m.
Lord Annanasked Her Majesty's Government:
What progress has been made in finding a more suitable site for the statue of Sir Walter Raleigh, at present standing in front of the Ministry of Defence in Whitehall.
Lord McIntosh of Haringey: My Lords, under the Public Statues (Metropolis) Act 1854, the Secretary of State for Culture, Media and Sport must approve the erection and relocation of statues in London. The Act says that, because of that role, he cannot involve himself in the development of such proposals. As I indicated in reply to the noble Baroness, Lady Trumpington, on

379
15th December, the then Secretary of State for National Heritage approved in principle Madam Speaker's proposal to move the statue of Sir Walter Raleigh to St. Margaret's churchyard. We know that in May last year Westminster City Council refused planning permission for the specific site proposed, but I understand that discussions are continuing about an alternative location in the vicinity of the church.
Lord Annan: My Lords, I thank the noble Lord for that fascinating reply. Does he recollect the story of Sir Walter Raleigh at a banquet? His son was on his left-hand side and gave vent to an ill-bred remark, whereupon Sir Walter fetched him an enormous box on the ear. His son, not wishing to strike his father, turned to the person on his left-hand side and boxed his ear, saying, "Box about and it will come to my father anon". I wonder whether that is what is happening in Whitehall, where there is a well-established principle of passing the buck in which, of course, the Department for Culture's file goes to the Ministry of Defence, which then passes it to the Foreign Office. The Foreign Office then passes it back to the Ministry of Defence with comments and then it comes back to the Department for Culture. It may go from there to many of the other departments for which the noble Lord speaks so eloquently and remarkably well in this House. Can he say whether there has been any progress on this matter at all? By "progress" I mean putting another proposal to Westminster City Council to see whether its planning committee will turn that one down as well.
Lord McIntosh of Haringey: My Lords, I am delighted to have a completely new story from the noble Lord in place of the feeble jokes about smoking which we had on the last occasion when this matter was discussed. There has been no passing the buck between departments. As regards central government, the issue is only for the Department for Culture, Media and Sport. Other participants are, of course, the City of Westminster, the Dean of Westminster and Madam Speaker. If no solution is found to the problem which Madam Speaker and the Dean of Westminster are addressing, we would be open to other suggestions.
The Earl of Carlisle: My Lords, does the Minister agree that the most suitable resting place for this fine statue of the great statesman, Sir Walter Raleigh, is Old Palace Yard, where he was executed on 29th October 1618? As your Lordships will know, Old Palace Yard is the area near the Jewel Tower, and between it and Millbank. Failing that suggestion receiving permission, perhaps the noble Lord, with his great desire to see London give its treasures out to the regions, will consider Budleigh Salterton as a better place, because that is where Sir Walter Raleigh was born? Finally, will the noble Lord see placed on the statue the final words of Sir Walter Raleigh,
"So the heart he right, it is no matter which way the head lies"?
Lord McIntosh of Haringey: My Lords, the choice of St. Margaret's is based on the fact that Sir Walter Raleigh is buried there, which seems rather kinder than choosing the site of his execution.
Lord Annan: My Lords, perhaps I may ask one last question. The statue could be placed at the back of the Foreign Office between the statues of Lord Clive and Lord Mountbatten, but it would be overshadowed by neither. Does the Minister agree that that would be quite a suitable place, in that Sir Walter Raleigh gave the Foreign Office, or its equivalent in those times, a great deal of trouble, so the Foreign Office could now look down on him?
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for that suggestion. It is the case that the statue of Sir Walter Raleigh was planned in the first instance to be erected outside the National Gallery where the statue of King James is at the moment. The problem was that Westminster City Council refused planning permission some 40 years ago. All possible locations will be considered.
Lord Kennet: My Lords, as the spokesman for the Department for Culture in this House, can the noble Lord tell us what a "buck" is in this context? Is it an angulate mammal; a well-dressed young man of the early 19th century, or is it an American dollar?
Lord McIntosh of Haringey: My Lords, as I understand it, in Whitehall the "buck" is usually black and white and on paper.

Cross-Media Ownership
3.17 p.m.
Baroness Miller of Hendonasked Her Majesty's Government:
Whether they have any plans to amend the Fair Trading Act 1973 to give the Monopolies and Mergers Commission powers to order divestment when cross-media ownership concentrates an undesirable number of outlets in one set of hands.
Lord Haskel: My Lords, under our competition legislation, as set out in the Fair Trading Act 1973, the Monopolies and Mergers Commission's role is investigatory. It is not an order-making body as seems to be implied in the Question of the noble Baroness. The Government have no plans to provide it with such powers.
The particular restrictions on cross-media ownership to protect plurality and diversity are contained in the Broadcasting Act 1990, as revised by the Broadcasting Act 1996. As these amended provisions have been in force for only 16 months the Government have no plans to revise them at present.
Baroness Miller of Hendon: My Lords, I thank the Minister for his reply. Is he aware that in the 25 years since the Act was passed there has been a huge increase in the dissemination of news and views through terrestrial and satellite television, independent radio and the computer? Does he appreciate that Mr. Rupert Murdoch's media empire not only continues to control five national newspapers, but that he has substantially

381
expanded the commercial power of his international television interests, particularly in sport, and that through cross-subsidies from television to print he is able to indulge in predatory pricing for The Times? In view of Mr. Murdoch's phenomenal power, will the Minister confirm that if there were any suspicion at all of prime ministerial patronage being sought in return for past, present or future editorial support, that would be a proper matter to be examined by the Neill Committee?
Lord Haskel: My Lords, I thank the noble Baroness for that simple question! We are aware of the huge increase in media activity. The Broadcasting Act was designed to take care of that. We are also aware of the cross-shareholdings. I seem to remember that the Director General of Fair Trading has had them investigated three times in the past 10 years. Regarding Mr. Murdoch and his relationship with the Prime Minister, I can assure noble Lords that there has been no improper action by the Prime Minister. It is certainly not a matter for the Neill Committee if the Prime Minister takes action in supporting a British company.
Lord Borrie: My Lords, bearing in mind the evident failure of News International to comply with the undertakings to respect editorial freedom and independence which were given in 1981 when The Times was purchased, and the Minister's response which indicated that the Monopolies and Mergers Commission may recommend divestment only if a reference is made to it, will my noble friend ask Her Majesty's Government to refer this matter to the MMC so that we shall know whether or not there was true compliance with what was said in 1981?
Lord Haskel: My Lords, under his current powers, the Director General of Fair Trading has written to the Guardian, Independent and Daily Telegraph newspapers seeking further information in support of their complaints of predatory pricing by The Times. He has asked for a reply by 8th April. On my noble friend's point about the independence of The Times, that is a matter for the independent directors of The Times. Judging from our debate on the Competition Bill, many of them seem to be Members of your Lordships' House.
Lord Jenkins of Putney: My Lords, does my noble friend think that aggressive price-cutting with the purpose of killing an opponent constitutes fair competition? If he does not think that it constitutes fair competition, what is he going to do about it?
Lord Haskel: My Lords, predatory pricing is a matter for legal and economic tests. Pricing is either predatory or it is not. The questions are the same in any market. It is a matter of fact, not a question of weighing the public interest, as the noble Lord seemed to imply. We do not need a special regime for newspapers in the
382
Competition Bill to decide whether a dominant company is abusing its position by predatory pricing because predatory pricing should be stopped wherever it occurs.
Lord McNally: My Lords, when are Ministers going to accept that casuistry in their answers—
Noble Lords: Order!
Lord McNally:—that legalism in their answers is no response to genuine public and cross-party concern about the concentration of media power? Would it not be far better if Ministers left our Competition Bill unamended in another place—I hope that there may be an indication that this time we shall have the support of the Opposition Front Bench—or will the Government give time to Mr. Clive Soley to bring forward the Bill that he has proposed to deal with this matter, or will the Government pass the matter over to one of their many review committees? In any event, will the Government realise that the concentration of media power is of real public concern and that chirping "no, no, no" from Mr. Rupert Murdoch's top pocket is no ministerial response?
Lord Haskel: My Lords, the Government are certainly aware of the public concern about media ownership. Regarding the amendment to the Competition Bill, the Government will advise the other place of the content of that Bill when it is debated there. However, the Government have made it clear that in their view the amendment is not only unnecessary but, what is more, it is unworkable.
Lord Naseby: My Lords, in his Answer the noble Lord suggested that as only 16 months have elapsed since the passage of the last Broadcasting Act, there has been insufficient time to review the provisions, but the Government have now been in power for 11 months, so is the House to understand that the Government's present policy is that they are entirely satisfied with the current proportions of ownership?
Lord Haskel: No, my Lords. As I explained in answer to an earlier question, the Director General of Fair Trading is in correspondence with other newspapers, and there is currently a review of broadcasting and the cross-ownership of the broadcasting media. When that review is completed and when the DGFT has received a response from the other broadsheet newspapers, the Government will be able to make a more informed decision.
Lord Peston: My Lords, my noble friend referred to the independent directors of The Times. Does he by any chance have to hand a list of those independent directors and, if so, could be read it out to the House?
Lord Haskel: My Lords, I am afraid that I do not have that to hand, but I shall certainly write to my noble friend on that point.
Lord Steel of Aikwood: My Lords, when the spokesman for the Official Opposition referred to prime

383
ministerial interference, was that a reference to the occasion when The Times was sold to Mr. Murdoch, because that seemed to me to be the time when there was improper interference? When the Government talk about pursuing British interests, will they bear in mind the two occasions on which the BBC's worldwide television service has been dropped from Mr. Murdoch's satellite simply because it has the inconvenient habit of portraying programmes of documentary fact?
Lord Haskel: My Lords, the sale of The Times to News International took place in 1981 when the matter of editorial independence was addressed by changing the company's articles of association. Consent to the transfer of The Times was given by the Secretary of State on that condition. His consent was dependent on the articles of association being amended to incorporate provisions to protect editorial independence. The amendment to the articles makes it clear that, in the event of any dispute between the editor and the directors of Times Newspapers, the matter has to be referred to the independent national directors whose decision shall be final and binding.
Baroness Oppenheim-Barnes: My Lords, will the noble Lord assist in this matter simply with a stroke of the pen by changing what he has described as a "review" into a "full-blooded inquiry", as is merited by the amount not only of public concern, but also of public suspicion? There should be no further delays in instituting such a change.
Lord Haskel: My Lords, that is not within my power, but I am sure that the inquiries by the Director General of Fair Trading will reveal exactly what the level of predatory pricing is.
Lord Stoddart of Swindon: My Lords, is my noble friend aware that if this House decides in due course to insist on their amendment, the Competition Bill will be at risk of delay for a year? Is he prepared to contemplate that or would the Government then be prepared to accept the amendment passed by this House?
Lord Haskel: My Lords, I am not aware that the Competition Bill would be at risk of being delayed for a year.
Baroness Miller of Hendon: My Lords, I totally accept what the noble Lord said about there being nothing improper about any telephone conversation regarding British business which the Prime Minister may make, but does the noble Lord nevertheless agree that having received a negative answer from the Italian Prime Minister to the effect that the company would not be interested in being sold to Mr. Rupert Murdoch, that
384
has undoubtedly saved Mr. Murdoch a fortune given the amount of money that might have been required if he were to make a formal bid?
Lord Haskel: My Lords, any conversation which the Prime Minister may have had with the Italian Prime Minister is a private matter. Therefore, it is a matter of which I am unaware.
Baroness Park of Monmouth: My Lords, reference has been made to British business and British companies. I was under the impression that Mr. Murdoch was an American citizen. Is that correct?
Lord Haskel: My Lords, I was referring to the ownership and location of Times International and BSkyB.

Business
3.30 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord Dubs will, with the leave of the House, repeat a Statement that is being made in another place on the report of the Narey Inquiry on security at the Maze Prison. I take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification.

Regional Development Agencies Bill
Brought from the Commons; read a first time, and to be printed.

Northern Ireland (Emergency Provisions) Bill
3.31 p.m.
Read a third time.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs): My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Dubs.)
Lord Cope of Berkeley: My Lords, the House has already discussed the specific clauses of this Bill. I shall not go into the specific details of the Bill. However, before this House passes the Bill, I believe that it is important to set out again why it is necessary. This is an emergency Bill. The powers contained in it have proved to be long lived in a succession of measures but they have never been, and should not be, accepted as a permanent part of our arrangements—hence the need for regular renewal of the powers as provided for in the Bill.
It is to be hoped that the talks process will produce an agreement that takes a big step in resolving the conflict. The news overnight from the talks appears to

385
be discouraging but is not necessarily disheartening. We realised that the crunch points would be left to last and that cross-border bodies and their precise definition, together with the offensive and illegal claims to sovereignty in the constitution of the Irish Republic, were the crunch points. We shall see whether the process of the end-game, which we appear to be approaching—brink management in the face of an artificial deadline—produces a result. This process has been refined in recent years in the European Union and is much beloved there. Sometimes it produces a result.
Whatever the results of the talks, it is certain that some terrorists of both extremes will continue their deadly operations. I have long thought, and said when I was a Minister in the Province some years ago, that the momentum behind the terrorism is both political and financial. The financial rackets, based essentially on the ability to place people in genuine fear for their lives, provide some of the momentum for terrorism these days. That part of the momentum will survive any political settlement. But political agreement between the two governments and the various parties will not entirely remove the political momentum behind terrorism; it will only weaken it. That will be particularly so if the results of the agreement build in uncertainty. I refer to the plan for regular future referendums which was suggested a few days ago.
A lasting agreement, if it can be obtained, endorsed by the people will help immensely in the fight against terrorism but it will not switch it off like a tap. I believe that incidents that have occurred in the past few days underline that point. The cold-blooded murder of a retired policeman reminds us once again of the exceptional service and daily bravery of the Royal Ulster Constabulary and of all the security forces. The interception of a big car bomb at Dún Laoghaire emphasises the very good work that has been carried out by the Garda in this respect as well as the dangers to Great Britain and the Province. These outrages, taking place as they do during an official ceasefire, are an attempt to throw the talks into difficulty. They also cast a shadow forward.
The powers in this Bill will, I believe, remain necessary in order to defend democracy. It is important to be clear about this, particularly as it appears that some people even within the United Nations do not really accept this. These powers are not anti-democratic; on the contrary, they are essential for the defence of democracy. The purpose of terrorism is to distort democracy by terrorising people. This Bill is not against the rule of law but is to protect the rule of law. The Diplock courts exist because of the terrorisation of juries and witnesses. Mr. Cumaraswamy of the United Nations needs to understand this, if newspaper reports of his recent comments are correct. He is reported to have recommended the reinstatement of jury trials in the Province. That is not realistic at present and that is likely to remain the position for the immediate future.
The future of Northern Ireland is a matter for the decision of the people of Northern Ireland. They should be allowed to make a free decision. This Bill is part of the background which entitles people to make a free
386
decision. To permit this, all who support democracy should support the fight against terrorism of which this Bill is an important part. I support the Bill.
Lord Holme of Cheltenham: My Lords, the House has rehearsed the arguments about these provisions at earlier stages of the Bill. I content myself by saying that in general we on these Benches accept the sad fact that legislation of this kind is still necessary in Northern Ireland. Given the determination of some malevolent minorities to try to undermine civilised life, let alone the peace process, I agree with the noble Lord, Lord Cope, that this Bill should pass.
One event very germane to emergency provisions has occurred since we last discussed this measure. I refer to the publication by Sir Louis Blom-Cooper, the independent commissioner for the holding centres, of his annual report submitted to the Secretary of State on 23rd March. As this is very relevant to emergency provisions, I take this opportunity to put two questions to the Minister. In light of the criticisms of the United Nations to which the noble Lord, Lord Cope, has referred, it is good to read the conclusion of Sir Louis that there is still not the slightest cause for concern about the care and treatment of detainees held in police custody by uniformed officers at the holding centres. Given the authorship of that report, I believe that we can all have confidence in that conclusion.
At the same time, Sir Louis poses two fundamental questions. As I do not know when noble Lords will have a chance to raise them with the Minister, perhaps I may deal with them now. First, Sir Louis asks whether, with the advent of recording of interviews with suspects and the end of unsupervised questioning by detectives, there is any longer a sound basis for distinguishing between the regimes for terrorist suspects on the mainland and in Northern Ireland. He asks, rightly in my view, whether arrests under Section 14 of the PTA, wherever they occur, should be PACE-regulated; in other words, whether they should be treated as they are on the mainland and whether the holding centres should again become police stations. That is his first question. We should take it seriously.
The second is one of which those noble Lords who live in Northern Ireland will be well aware. It is a longstanding question. Why has the Castlereagh holding centre not been replaced? That is a matter to which the previous Northern Ireland Secretary, whom I am delighted to see in his place, referred. He hoped that it would be replaced, but it is not even a priority in the current RUC building programme. Much of the international criticism of our human rights regime in Northern Ireland—much of it misplaced—is based on the much, and rightly, criticised Castlereagh holding centre. The chief constable wants it closed. Everyone wants it closed. What are the Government going to do about it?
Lord Molyneaux of Killead: My Lords, at an earlier stage I did not question the Government's judgment that there will, unfortunately, be a continuing need for emergency legislation. I support the two noble Lords who have spoken and the continuance of the present

387
legislation until the Home Secretary produces more comprehensive permanent legislation to cover all forms of terrorism, national and international.
The benefit of that would be that it would prevent individual government departments from attempting to placate terrorists to an extent which sometimes brings the entire Government into disrepute. I shall not dwell again on the unwise concessions contained in the Bill—concessions which come at a most critical time in the so-called peace process—but in recent months I have cautioned against that stock phrase which is designed to apply pressure to politicians. It runs, "Please get around the table to find a solution to end the violence". "Please get around the table to end the violence", is misleading because the last four words, "to end the violence", constitute a form of subtle blackmail and are downright misleading.
Whatever hope there may be of finding a solution or an agreement, that can have no effect whatsoever on eradicating terrorism—the noble Lord, Lord Cope of Berkeley, made that point adequately—because no political arrangement can possibly deliver what the terrorists demand unless—I underline "unless"—Her Majesty's Government are prepared to ignore the ballot box and the principle of consent of the greater number of people of Northern Ireland—Protestant, Catholic, other faiths, no faiths at all—who just want to co-operate and live in peace with one another, and, broadly speaking, with varying degrees of enthusiasm, live within the UK, the larger unit.
In that context, I caution Her Majesty's Government against a repetition of the 1973 Sunningdale conference where the Northern Ireland delegates to that conference were starved of food and sleep until they cracked under pressure and accepted completely unreal propositions which, in the cold light of day, they could not sell to their supporters and could not deliver. At the very first test of electoral opinion—namely, the general election of February 1974—they, those Ministers, those delegates and the policies that they mistakenly approved were all swept away.
The Irish Government would appear today to be in full retreat from what was thought to be their position on certain crucial issues. It must be understood that whereas Her Majesty's present government are electorally secure for the next four years, Irish governments are always at the mercy of proportional representation elections, and, even when they are in coalition, they rest on a precarious single figure majority. I believe that the present government have no majority at all.
That being the position, they would not dare to offend even a small segment of their own supporters. So governance by what I would call the revolving door involves a perpetual risk to any North/South ministerial body with executive powers in which the policies and greed between North and South, if they were to happen, would be perpetually at risk of a general election in the Irish Republic, which seems to happen on an almost annual basis.
Regrettably, the Northern Ireland talks are falling apart because of the very same flaws that risked the Middle East process—namely, the equivalent of that
388
international circus which we saw with the two leaders of the Middle Eastern nations shaking hands on the White House lawn with the President benevolently almost conducting a marriage ceremony. The effect which that television picture had on the supporters of both of those leaders was bound to lead to deterioration and consequent failure, as has been judged by the American Secretary of State.
The relevance of this emergency legislation is that what I call the high-wire-act process in Northern Ireland has been going on for the past two years. It is only now that they seem to have stopped dancing around one another and debating high-minded political philosophy that they have got down in the final fortnight to talking about the real issues. But of course the weekly increase in terrorism over recent weeks—the car bomb on its way to London is the latest—is caused by the uncertainty, all the hype and all the tension which exists, because it is quite untrue that such terrorism is the work of groups trying to destroy what is called the peace process.
I trust that such false propaganda will now cease because the real motive is to stake out claims to territory and influence. That truth has to be faced, and courage and resolution will be required by all of us—not least all of us elected or appointed to the Parliament of the UK. No credibility must be attached to the allegation that the collapse of the present circus will create a vacuum. I do not know whether the Prime Minister is aware—I hope that the message will be conveyed to him that there is widespread support for his current policies of extending the reality of decentralising from Whitehall and making more efficient the governance of the various parts of the UK-that he will have that support in streamlining the governance of all parts of the kingdom.
The Prime Minister has provided, after all, what many of us in Northern Ireland and many present who held positions of responsibility in Northern Ireland regard as a working model for that which would work in Northern Ireland , because applied to Northern Ireland that would enable all the elected representatives of Northern Ireland to co-operate in providing a real service to those who elect them. That is the most reassuring message that any elected representatives can transmit to the people who elect them.
However, it will do much more than that—this is the vital matter which I am sure the Prime Minister and his Government have in mind—it would build mutual trust between those elected to an extent which would pave the way for real, solid progress towards a future where violence would be deprived of its life support.
Lord Cooke of Islandreagh: My Lords, this is not the time to repeat the reasons why many of us cannot accept the retention of Clause 3, which relates to the removal of internment. The noble Lord, Lord Molyneaux, commented on the notion that people getting together around a table and agreeing at talks would lead to peace. That has been put about for years as being the end to all our problems. It has been said that all we have to do is reach agreement and then we shall have peace. The noble Lord said what all of us who have been born and brought up in Northern Ireland know—that that certainly will not be the case. There are

389
too many different factions of people who for one reason or another are interested in destabilising the community. That will continue, as is obvious from the events of recent weeks. The Government have lost what could be a powerful weapon in certain circumstances. I only hope that the Minister, who has valiantly argued for the retention of Clause 3 and has listened to us for some time, has been persuaded that Clause 3 can be removed.
Lord Dubs: My Lords, I thank all noble Lords who have taken part in the debates at various stages of the Bill. I thank in particular those who have supported the Government on crucial issues. I do not wish to speak at length, but I say briefly to the noble Lord, Lord Molyneaux, that the talks are not falling apart. We always expected that there would be difficulties in the final stages, but we do not believe that the talks are falling apart. I do not share the noble Lord's pessimism about the outcome and I appreciate his comments in support of certain of the Prime Minister's endeavours.
The noble Lord, Lord Holme, asked me a number of questions about the report by Sir Louis Blom-Cooper published last Friday on the holding centres. It is not normal for the Government to respond quickly. We regard such reports as important and wish to consider them. We would wish to discuss some of the proposals with the RUC and therefore it would be inappropriate for me to comment on the points that he raised.
On Question, Bill passed.

Maze Prison: Narey Report
3.52 p.m.
Lord Dubs: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows:
"Madam Speaker, with permission, I should like to make a Statement on the report of the Narey Inquiry into incidents at the Maze prison.
"On 10th December, PIRA prisoner, Liam Averill, escaped from the Maze prison. On the following day, we commissioned an independent inquiry to be undertaken by Martin Narey, the Director of Regimes in the Prison Service for England and Wales. He was asked to inquire into the circumstances surrounding the escape.
"On 27th December, LVF prisoner, Billy Wright, was killed within the Maze prison. We immediately asked Martin Narey to extend the scope of his inquiry to include the circumstances surrounding the murder. In addition, HM Chief Inspector of Prisons, Sir David Ramsbotham, was asked immediately to bring forward a full inspection of the Maze.
"Martin Narey's detailed and comprehensive report is now before the House. I am grateful to him and his team for completing his inquiry so promptly.
390
"Before going on to consider important aspects of the report, I would like to comment on the third serious incident that has occurred in the Maze—the brutal and savage murder of David Keys who was found dead in LVF accommodation on the morning of Sunday, 15th March.
"I very much regret any incident which leads to the loss of life within prison. I am committed to taking all viable steps to prevent a recurrence. But I must be honest and say emphatically that even with the most rigorous and severe prison regimes it is impossible to guarantee that serious incidents will not happen.
"Mr Keys' murder is of course the subject of an RUC investigation and an internal investigation by the Prison Service. However, although Martin Narey had the safety of prisoners continually in mind, the murder raises issues that go beyond the scope of Martin Narey's inquiry. I have therefore asked Sir David Ramsbotham, whose inspection of the Maze began on Monday, 23rd March, to look specifically at the way in which the regime at the Maze impacts on the safety of individual prisoners and to make recommendations.
"As a result of information received during the RUC's investigation, the governor has decided to place LVF prisoners under Prison Rule 32 for the maintenance of good order and discipline. This is not a punishment, but does mean that prisoners are kept in cell for up to 23 hours of the day and have restricted association and privileges. Even this reasonable measure resulted in a number of prisoners refusing prison food and threats to prison staff in an effort to overturn the governor's decision.
"It is important to bear in mind that Mr Keys applied to be transferred to the Maze in full knowledge of the conditions there. However, in future remand prisoners will not move immediately to the Maze but will be held for a longer period in Maghaberry for assessment. This will give the prison authorities more time to be assured about the safety of such a move.
"Martin Narey has described very fully the unique difficulties faced by staff and management at the Maze prison. To quote from his report:
'The Maze contains more than 500 paramilitary prisoners, from five different factions, some violently opposed to one another, living in segregated accommodation and enjoying the support of significant communities outside the prison. It is staffed by prison officers who live in the same communities'.
"Staff at all levels in the Prison Service and their families have been subjected to a campaign of intimidation and attack directed against them. Since the start of the troubles, 29 members of staff have been murdered by paramilitaries. In 1996–97 alone there were 122 reported threats against staff and a further 50 officers had to be given special protection. This campaign has been waged against staff in an effort by prisoners and their supporters to impose their will. The campaign continues. Last weekend there was a live bomb attempt on the home of a female prison officer in Portadown and in the early hours of Monday morning a bomb exploded under the car of a retired prison officer living in Carrickfergus.

391
"Given the small size of Northern Ireland and its small prison estate, the dispersal of paramilitary prisoners is not possible. Instead, the only prudent option is to hold them in one place. Although the concentration of prisoners has many security advantages, there is a price to be paid. It gives the prisoners the opportunity to take concerted action within prison, including against staff.
"I know of no other prison which operates under such difficult circumstances, nor where staff are under such continual threat and pressure. I share Martin Narey's admiration for those who work at the Maze. Despite the difficulties and dangers, for 14 years until December of last year they had contained a difficult population without a single escape.
"Martin Narey has also drawn attention to the support which paramilitary prisoners have outside prison. One important consequence of this has been faced by me and my predecessors. This is the danger that actions taken inside prison, for perfectly sound and defensible penological reasons, may result in disruption and unrest outside prison. Against this background, I am aware that staff and management at the Maze have created conditions of safety and humanity which compare favourably with any other prison in this country and beyond and have been entirely open to impartial observers from outside such as the International Committee of the Red Cross.
"In the aftermath of the escape and the murders, I am required to make decisions about the security of prisons and prisoners. But, like all my predecessors, I must make decisions which balance the security of custody with the safety of our staff. I must also make decisions which balance the requirements of imprisonment with the wider requirements of public order and public safety.
"In fact, this Government have already taken significant steps to improve security at the Maze prison. In March 1997, a tunnel was found in H Block 7. It was the subject of an inquiry by the previous government carried out by John Steele in the Northern Ireland Office. Following the election of this Government, we have pursued the implementation of the Steele recommendations: specifically morning and evening headcounts are being taken; each day five randomly selected cells per block are being given a fabric check; full block searches are now a weekly feature, one block being searched each Thursday; material coming from stores is now exchanged on a `new for old' basis. There is now an accurate picture of the amount and nature of these supplies in the blocks; shadow-boards are now in place in each block for handicraft tools and excess tools are removed during searches; all prisoners on inter-block movement are being searched. In addition, there is a programme of physical security measures which has been included in the existing block refurbishment programme. Five blocks have been upgraded to date and work on the remainder is due for completion by mid-August.
392
"Martin Narey has drawn attention to a number of important lapses of security at the Maze. He has made 59 recommendations which he considers will represent real improvements for staff and prisoners.
"As Martin Narey indicated in his report, changes have already been made. In particular, the governor has taken the initiative to put in place regular full block searches on a random basis; regular security checks of all H-blocks fences; new arrangements for weekend coverage of staffing shortfalls on visits; new arrangements for searching prisoners on visits and for x-raying their parcels; new arrangements for counting visitors at parties.
"As to the remaining recommendations, there are others that will be taken forward immediately now that the report has been published. Other recommendations require an element of detailed consideration and the necessary project teams are being put in place; for example, to look at security of the roofs of the buildings and improved processes for dealing with visitors.
"The issues to be considered vary in their complexity. However, as an assurance of our determination to act upon the recommendations and to tighten security, I undertake to make available to Parliament in three months' time a progress report on implementation. In addition, and going beyond the recommendations, we have set up a security audit team which will begin to work immediately and which will provide the chief executive of the Prison Service with the necessary assurance that changes have been made and are working effectively.
"Finally, I would like to turn to questions about the on-going management of the Maze. Martin Narey has recorded not only a number of lapses in security but has also dealt with wider matters to do with the safe and secure running of the prison. These centre on improving the quality of general management and enhancing staff morale and confidence.
"The report suggests that the shortcomings cannot be attributed to individuals but are instead the result of a slow but long-running deterioration caused by staff fears of the consequences of managing paramilitary prisoners and by the absence of effective middle management. The shortcomings have also emerged because there is no easy way of dealing with the Maze and the difficult prisoners that it contains. The simple truth that Martin Narey acknowledges is that the Maze is different and the policies operated by successive governments—and that we have inherited—have reflected this fact.
"The options open to me are to continue with the status quo, which is unacceptable, or to turn the clock back at the Maze and to reassert the sort of regime which operated during the 1980s. However turning the clock back would be at a price within the prison and within the community that I believe no reasonable person would be prepared to pay. Certainly no previous government have taken a different view.
"We recognise the problems, but that is not an excuse for complacency. One irony is that the shortcomings noted by Martin Narey had been noted

393
by the Prison Service long before December of last year and were being acted on. They were the reason that Martin Mogg, the most senior governor available within the Northern Ireland Prison Service, together with a new management team was asked in October 1997 to take over the Maze. Martin Mogg's appointment is a temporary one, to ensure the vigorous implementation of the Steele recommendations. I am pleased to note Martin Narey's acknowledgement of the good progress which the team has been making.
"However, the fact remains, as Martin Narey has concluded, that,
'the challenge of the Maze is greater than that of any other establishment in the United Kingdom'.
I regard it as critically important, therefore, that we act quickly on the Narey Inquiry recommendations. And we will do so.
"Implementing the Narey Report in full will be a considerable task for the Northern Ireland Prison Service. However, I am confident that it can and will meet this challenge. I commend this report to the House."
My Lords, that concludes the Statement.
4.3 p.m.
Lord Cope of Berkeley: My Lords, following the very serious incidents, in the brief time that I have had to glance at the report, it seems to be extremely useful from a senior member of the Prison Service of England and Wales on the more technical aspects, as it were, of the problems. I shall be grateful if the Minister will convey the gratitude of us all to Mr. Narey and his team.
As the Statement said, we all recognise that the Maze is special. It has a special regime. There are no political prisoners in the United Kingdom. All those in the Maze are either convicted of or charged with the most serious offences that it is possible to imagine. But the regime cannot be normal because of the nature of those prisoners. Will the Minister also accept that we all recognise too the influence that the views of Maze prisoners have on opinion outside, although that was considerably built up in importance by the Secretary of State's visit?
However, this is the first of two reports. We await also the Ramsbotham Report on the later incident and death and wider aspects which he will examine. Will the Ramsbotham Report be published, so far as security considerations will allow?
I should tell the Minister that I remember very well some of the very serious threats that were made to prison officers, the deaths of prison officers and the immense courage of all the members of the Northern Ireland Prison Service in carrying out their duties and, indeed, in being prepared to take on the duties which they undertake, particularly at the Maze but throughout the service.
Finally, the report emphasises that Mr. Mogg's dual appointment both as head of operations for the whole of the Northern Ireland Prison Service and as governor of
394
the Maze is temporary. Will the Minister tell us when it is likely that a new full-time governor will be appointed at the Maze prison?
4.5 p.m.
Lord Holme of Cheltenham: My Lords, we owe a debt of gratitude to Mr. Narey for this report and I echo the words of the noble Lord, Lord Cope, in that respect. His report is full of sensible recommendations. As the Minister said when he read the Statement, there are 59 recommendations. In particular, I welcome the fact that the Secretary of State feels that she should report back to us in three months' time on how those recommendations are being implemented.
However, we must face the fact in Parliament that the Maze has been deteriorating over years and that was probably accelerated by the decision in 1994 to withdraw patrols from residential areas. We have a prison which has been moving out of any normal definition of control over a long period. Therefore, that succession of horrifying incidents in the last year cannot be a total surprise and to some extent should be seen as symptoms of a profoundly disordered situation at the Maze.
In the Statement the Secretary of State said that such things happen even in the most severe and rigorous prison regimes. So they do, but no one in the world would describe the Maze as having the most severe and rigorous prison regime. Essentially, it is a place where the prisoners have been determining to far too great an extent how they shall be guarded and supervised. As the Statement rightly says, that has not happened all at once. It has happened over many years.
I agree with the noble Lord, Lord Cope, that being a prison officer at the Maze is a terrible job. The people who do that job deserve our sympathy, as he said. I also have great admiration for their courage, given the threats which they face both inside the Maze and in their communities at home. But that admiration for the staff does not mean that the regime and system operating in the Maze is one in which we can have any confidence whatever. Therefore, I await anxiously the wisdom of Sir David Ramsbotham on what is to be done with the Maze. Will the Minister let us know when it is anticipated that Sir David will report?
Finally—and again I echo the words of the noble Lord, Lord Cope—when is it intended that a new permanent governor will be appointed? However experienced Mr. Mogg is, this cannot be a time for uncertainty in the prison. It needs its own governor on a long-time basis. I see that the report recommends advertising on the mainland. I should have thought that action more urgent than advertising is needed. What about some head hunting? There cannot be that many people in the British Isles capable of being an effective governor of the Maze. It would be nice to believe that there were some urgency in that regard.
4.9 p.m.
Lord Dubs: My Lords, I thank the noble Lord, Lord Cope, for his tribute to the staff of the Prison Service in Northern Ireland. I know that he speaks from

395
experience, having served in Northern Ireland and dealt with some of these difficulties at first hand when he was in office. I can confirm that the Ramsbotham report will be published and made available when it is completed.
Perhaps I may now refer to the Secretary of State's visit to the Maze, which the noble Lord, Lord Cope, mentioned. The Secretary of State did not go there to negotiate; she went there to give some clear facts to the prisoners in the Maze and she did so because she wanted to preserve the peace process. I do not believe that the visit in any way increased the influence of prisoners in the Maze. However, I concede as a general proposition that prisoners in the Maze do have links with their respective groupings or communities and that this is a factor which clearly has to be taken into account. We expect the Ramsbotham report to be published and made available in approximately two months' time. Sir David has moved pretty quickly in his work in Northern Ireland.
As regards what will happen eventually about a new governor for the Maze Prison, I can tell the House that arrangements are in place to recruit a governor and the post has been advertised. However, I am not yet able to give a firm date by which an appointment is likely. Nevertheless, the process has already started. I believe that I have covered all the questions put to me thus far.
4.11 p.m.
Lord Mayhew of Twysden: My Lords, does the Minister accept that it is right to acknowledge that the Maze Prison presents to the authorities uniquely difficult challenges, not least because of the ruthless and unceasing attempts to intimidate prison officers that are carried out by highly dangerous and politically driven prisoners? Indeed, in her Statement, the Secretary of State alluded to that fact.
Nevertheless, does the Minister accept that it is of overriding importance that the primary purposes of this prison—namely, to keep prisoners inside, as well, of course, as alive—must be reliably secured by lawful policies, whether those are orthodox or, possibly, unorthodox? That must be the baseline from which the Government assess all policy options that are open to them, not to mention whatever representations may be made to them in the name of the political process. For myself, I never refer to the peace process.
Lord Dubs: Yes, my Lords; the Government agree very much with what the noble and learned Lord has said. The Maze is different because it houses a very large number of individuals who have been convicted of murder or other serious offences, as well as other prisoners who are held on remand for very serious offences. I also accept that there is a danger of intimidation; indeed, we have seen threats of intimidation to prison officers and, regrettably, a number of prison officers have been murdered as a result of such intimidation.
396
I also accept that it is important to ensure that the prison is secure, that prisoners are held there and, indeed, that we cut the chance of escape to an absolute minimum. When we implement all the recommendations of the Narey Report and have looked at the Ramsbotham report, I believe that we shall be able to move to a position where we shall meet some of these difficulties with more confidence than has been the case in the recent past.
Lord Molyneaux of Killead: My Lords, I am grateful to the Minister for repeating the Statement at a convenient time in our proceedings today. As the Maze Prison is situated in the constituency of Lagan Valley, which I had the honour to represent until a year ago, I know something about the problems. Indeed, I had several hundred constituents but no votes in that establishment.
However, I am a little disturbed that there has been no mention of a very serious incident some months ago—not all that long ago—when one of the two prisoners mentioned in the Statement was observed strolling on the roof of one of the H-blocks using a mobile phone for a period of about 25 minutes. The observation was reported to the authorities by a senior Crown servant outside the prison, but his warning was ignored. It would be reasonable to expect that the said prisoner was transmitting information, quite possibly instructions, to some of his murder squads outside the prison.
There appeared to be a mention in the Statement of access to the roofs of the prison, and so on. I wonder whether such an incident will he taken into account when deciding any further measures. I also wonder whether a decision in principle could be taken as regards the possession of mobile phones and the ability of prisoners to make free use of them.
Lord Dubs: My Lords, I have to be careful how much detail I go into because criminal charges and inquiries are under way and therefore it would be inappropriate for me to comment too much. However, the apparent ease of access to the roof was looked into as soon as we had reports of that incident. As for the individual on the roof, it would not be appropriate for me to comment at this stage.
I turn now to the oft-repeated allegations that there are mobile phones within the prison and that they are used freely. I can tell the House that it is against prison rules for prisoners to have or use mobile phones. Indeed, when we seek evidence that such phones are used in the way suggested by the noble Lord we are unable to obtain it. However, there is an ordinary British Telecom telephone box for the use of prisoners, operated, I believe, by phone cards. Frankly, even if prisoners did not use mobile phones, there is the possibility that they could maintain contact. Such telephones were installed some years ago. As I said, we do not have evidence and have not been able to find evidence that mobile phones are being used in the way suggested by the noble Lord; or, indeed, that they are possessed by prisoners in the way mentioned by the noble Lord.

Social Security Bill
4.17 p.m.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): 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.—(Baroness Hollis of Heigham.)
Lord Higgins: My Lords, there are two important issues which arise from the proceedings on the Bill in this Chamber on Monday, which I believe it is necessary to draw to the attention of the House. I understand that it is on this Motion that it would be most appropriate for me to raise them. As I said, there are two issues: one rather complex and the other extremely straightforward.
During the course of the debates last Monday (as reported in Hansard at col. 71 onwards) the noble Lord, Lord Haskel, when speaking to another amendment which had nothing to do with the Budget, said that the Government intended in the course of the Report stage of the Bill to introduce new amendments relating to issues which arise from the Budget Statement of the Chancellor of the Exchequer regarding the introduction into this Bill of provisions relating to national insurance contributions. Noble Lords will recall that the matter was very much a central feature of the Budget of the Chancellor of the Exchequer. I have no doubt at all that the Minister was seeking to be helpful; indeed, I fully recognise that fact. However, what is proposed seems to me to raise two important points.
I am not arguing that the amendments which are proposed are outside the Long Title of the Bill. As I understand it, that is not the case. However, I think it has long been the case that the distinction between national insurance contributions on the one hand and taxation on the other has become increasingly blurred, not least because there is virtually no relationship between the amount which is charged in contributions and the amount which is disbursed in benefits. Nonetheless, it has generally been recognised that it is important that we should maintain the so called contributory principle; that is to say, an arrangement whereby people receive benefits only if they have at least contributed something towards those benefits. That, in a sense, gives them the passport to the benefits.
Having said that, as I understand it, the Government in the Budget propose to take action which will undermine that contributory principle. There is little if any distinction now left between national insurance contributions and taxation. Moreover, the Government propose that the responsibility for national insurance contributions should be transferred from the Contributions Agency to the Inland Revenue. That, again, strongly suggests that this is a matter of taxation rather than of national insurance. Overall, there is a strong impression that matters which are central to the Budget are being introduced into your Lordships' House as part of this Bill. If that is so, it raises important issues, which no doubt we ought to consider, with regard to the Parliament Act 1911 and the question of Commons
398
privilege with regard to financial matters. That is the first point that we have seriously to consider because, as far as I am aware, there is no precedent for that.
The second point is very much simpler. Were this Bill at an early stage in the House of Commons it might well be convenient—indeed what is now proposed is convenient from the Government's point of view—for the Commons to debate these proposed clauses at Second Reading; to debate them in great detail in Standing Committee upstairs; and then to debate them downstairs at Report stage. The Commons would have had an opportunity to do that. I note that the noble Lord, Lord Shore, and the noble Lord, Lord Diamond, a former Chief Secretary to the Treasury, are nodding assent. However, a central part of the Chancellor's Budget—it was very much at the centre of the matter—is being introduced into your Lordships' House not at Committee stage but at Report stage and will, if the clauses are approved, be returned to the Commons. The Commons will be able to debate those amendments. But that is vastly different from the Commons being able to discuss the matter in Committee and at Report stage before it reaches your Lordships' House.
There is a final point which I raised on Monday; namely, these are complex matters and those outside interests which are concerned about them will not have much notice at all of what is now proposed. The provisions will proceed much faster than would have been the case had they been included in the Finance Bill, or indeed if they had been included in primary legislation in the House of Commons and proceeded in the normal way. As I said, I understand it is appropriate to raise the matter at this stage, but we shall have to consider extremely carefully the appropriate way in which this matter ought to be considered. That is important as regards both the aspects I have mentioned. I hope that on reflection the Government will consider that this is not an appropriate way of proceeding.
Baroness Hollis of Heigham: My Lords, I am grateful to the noble Lord, Lord Higgins, for giving me notice that he was going to raise this issue this afternoon. Had he not given me notice, I think I might have been rather wrongfooted, given the push of his argument. The noble Lord is quite right to say that it is unusual for substantial issues to be introduced to a Bill after its Commons scrutiny. It is unusual, but of course it is not unknown or even rare. I spent many years on the Opposition Benches and I have seen that happen to Bills that I "shadowed". Governments must respond to changing circumstances during the passage of legislation. We do so in the way that seems most appropriate. Often when I sat on the Opposition Benches Bills that had passed through the Commons then had matters added as they proceeded through your Lordships' House. Those matters had not therefore previously been discussed by the Commons. Sometimes we were not slow to make the same points as the noble Lord has made today.
The issue of "privilege" in relation to the introduction of new measures on national insurance was considered before the announcement of my noble friend Lord Haskel on Monday. Our advice was clear.

399
Contributions payable into the National Insurance Fund are the subject of Commons privilege, but it is a privilege that they are able to waive. They will be invited to do so when the Bill returns there. After the changes announced by the Chancellor of the Exchequer in the Budget on the restructuring of national insurance contributions—which of course followed the Committee scrutiny of this Bill—we decided that the Bill was the most effective legislative vehicle to implement those changes. The national insurance changes have been broadly welcomed. We must legislate in this Session to give businesses the time they need to be ready to operate the new system from April 1999. Introducing the measures into this Bill is the best way of achieving that.
The new clause on directors' liability has also been widely welcomed. My honourable friend the Parliamentary Under-Secretary of State announced to the Committee in the other place on 25th November last year that this measure was to be introduced into the Bill as soon as the consultation concluded. This is what we have done. The new clause was first published on 2nd February, and reprinted with a minor amendment on 25th February. Therefore I believe that reasonable time has been made available to noble Lords to be able to consider those proposals. However, I accept that this is not the usual way, and certainly not the preferable way, of handling such matters. I appreciate the noble Lord's concern. When he raised this matter with me, I immediately offered him a meeting with officials—that invitation was extended to the noble Lord, Lord Goodhart, who is also involved in these discussions—to enable them to pursue the kind of issues they might otherwise have wished to have pursued at Committee in a more interrogative way, as it were. I hope that that offer to discuss the substantive issues will be taken up and will prove helpful.
I believe that these are worthwhile additions to the Bill. It is regrettable when things have to be done at short notice. However, when that is the case, I have tried to write to noble Lords opposite with a full explanation of the background. We were caught out by the timing of the Budget which came between the Commons stage and the Lords stage of this Bill. It has been made clear to us that businesses need this provision to be brought in as quickly as possible to expedite their arrangements. That is why we are under time pressure on this matter. I hope that I have been able to reassure your Lordships that no discourtesy to this House was intended, or has occurred. I take on board the noble Lord's concerns. We are trying to address them as best we can.
Lord Higgins: My Lords, I do not think there was any discourtesy to this House. On the contrary, the Government went to great lengths to inform us what they had in mind. The problem concerns the other House. The Minister referred to speed. Clearly this matter could be dealt with expeditiously either by primary legislation in another place or by including it in the Finance Bill. Therefore I do not think that is a sustainable argument at all.
I say with respect, in view of the care that the Minister has given to the matter, that the House may have been a little confused by her reply. An
400
announcement was made on this issue the other day during the course of discussion on an amendment concerning so-called "phoenix" directors. However, the announcement had absolutely nothing whatever to do with the amendment; it was just that the noble Lord, Lord Haskel, took that opportunity to make the announcement. I suppose he could have made the announcement while speaking to this Motion. At all events the two issues are totally separate. To discuss the point about directors—which I have not mentioned—in reply to the points which I raised may have confused your Lordships.
Lord McIntosh of Haringey: My Lords, I hope the noble Lord will forgive me but we are speaking to the Motion introduced by my noble friend Lady Hollis. I believe that only one speech is allowed from each speaker.
Lord Higgins: My Lords, I ask the House to allow me to comment; otherwise this matter is left totally in limbo, and it will look disgraceful from the Government's point of view. Perhaps I may ask for the leave of the House?
Noble Lords: Yes!
4.30 p.m.
Lord Higgins: My Lords, I am most grateful. As a new Member of this House, the last thing I would wish to do is to impose on the rules of the House. However, I had taken advice and understood that this was the appropriate moment to raise the matter. Clearly, one cannot leave the points raised unanswered.
We may be able to raise the points about directors at some more appropriate moment during the course of our proceedings. However, it is the combination of the two points I am making which seems to be objectionable. At a later stage, the House of Commons may well move certain Motions which will enable them to discuss the position. None of us realistically would be surprised if the Government were to carry such a Motion.
However, certain important principles are raised so far as concerns Parliament. I do not think that it is an appropriate way to deal with the matters. There is no reason why the matter should not be dealt with in the Finance Bill, or by way of other legislation, in the normal way, so that elected representatives in the House of Commons have an opportunity to debate these matters.
Baroness Hollis of Heigham: My Lords, I sought to persuade the House to hear the second response of the noble Lord because I am aware that we are asking the House to do what is not customary or even particularly desirable. That is why I thought we should seek the indulgence of the House to pursue this a little.
Perhaps I may make two brief points. I hope that we can then put the matter aside for the time being. The noble Lord said that it was not a question of courtesy to this House but to another place. I understand that those arrangements have ensured that that position is not

401
objected to in another place. I was not a Member of the House of Commons, but, if I may say so, it is not my responsibility to ensure the courtesies to the other House. My responsibility is to ensure the courtesies to this House. I hope that we can lay that argument aside.
I was anxious to respond to the noble Lord on the substantive point. My advice is that this could not be included in the Finance Bill, despite what the noble Lord has urged, because the Finance Bill can deal only with taxation and this is a social security matter. It has to be dealt with in this way if we are to meet the requests of and obligations to business.
With that, I hope your Lordships will allow us to proceed into the Committee stage of the Bill.
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Nicol) in the Chair.]
Clause 13 [Appeal to appeal tribunal]:
The Deputy Chairman of Committees: I must inform the Committee that if Amendment No. 43 is agreed to, I shall be unable to call Amendment No. 44.
Earl Russellmoved Amendment No. 43:
Page 7, leave out lines 43 and 44.
The noble Earl said: With Amendment No. 43, I shall speak also to Amendment No. 54. The amendments both concern the right of appeal. First, I wish to read briefly the clauses which I seek to delete. Clause 13(2) states:
""but nothing in this subsection shall confer a right of appeal in prescribed circumstances".
As I understand it, "in prescribed circumstances" means that it may be decreed that there shall be no right of appeal. Amendment No. 54 refers to paragraph 8 of Schedule 2. That provides in slightly unexpected words that the decisions against which no appeal lies may include,
"Such other decisions as may be prescribed".
If I may say so, that is a real chemist's provision.
I wish next to draw the attention of the Committee to the verdict of the Delegated Powers and Deregulation Committee on those two provisions. It says that in the case of the provision in Clause 13(2), withdrawing the right of appeal, and the corresponding provision in paragraph 8 of Schedule 2, in the committee's view even the affirmative procedure would not give the certainty required. Members of the Committee may therefore wish to consider amending the Bill to put the vital provisions in the Bill itself and to limit the powers accordingly.
That is an unusually strong recommendation from the Delegated Powers and Deregulation Committee. It has here considered not only the degree of parliamentary control, but whether those provisions improperly delegate legislative power. It has asked us to consider whether the answer to that question might be yes. It does not make a firm recommendation because it is the clear procedure of that committee that it invites the House to make the final resolution; it does not make it itself. That, I think, is right and proper.
402
It is clear that the legislative power may, where it wishes, limit rights of appeal. Since the legislative power may do whatever it likes, the minor would seem to be included in the greater. But the question is whether this power may be exercised by regulation. In theory, the use of regulation counts as a legislative procedure. But since regulations cannot be amended, and since regulations in this case would be likely to include a long list of individual provisions of which it is perfectly possible that some may be acceptable to the House and some may not, and we could not put down amendments to exclude some of them, and since the regulatory power in this Chamber is subject to such a limited degree of parliamentary control, in practical terms it is probably truer to say that the regulatory power is an exercise of Executive rather than legislative power.
For the Executive to take away rights of appeal is always a questionable procedure. For the Executive to take away rights of appeal against decisions which, according to Clause 1, are made by the Secretary of State, may risk conferring a rather unfortunate appearance of seeming to be judge and party in its own courts. It is no part of my purpose to anticipate what decisions might be reached in the courts. But for a very long time the courts have had a strict regard for the provision of natural justice, among which is the provision that people may not be judge and party in their own courts.
The Government might also consider Section 6 of the European Convention on Human Rights: the right to a fair trial. The restriction of appeal might come in for scrutiny in that quarter. I do not know how the courts might view such a provision, but I draw attention to the words of the noble and learned Lord, Lord Woolf, in the case of Fayed v. Home Secretary. He said that the courts would be guided by the principles of natural justice and where an Act of Parliament appeared to conflict with them Parliament may not confer a right to act unfairly unless it does so in express words. That is a fascinating form of words from the noble and learned Lord.
I do not see here any such conferring of an express power to act unfairly. It is also my view that conflicts between the Government and the courts should be minimised so far as possible. That means that it must be the responsibility of Parliament not to lead the courts into temptation. I cannot help thinking that these provisions lead the courts into temptation and I regret that. I beg to move.
Baroness Hollis of Heigham: I should like to address the concerns raised by the noble Earl in his amendments to Clause 13 and Schedule 2 by referring to the group of government Amendments Nos. 44, 129 and 130. My amendments are tabled in direct response to the recommendations of the report of the Select Committee on Delegated Powers and Deregulation, a report which I found extremely helpful and illuminating.
I put on record my appreciation for the careful consideration that it performed. It had a formidable task. As noble Lords will be aware this Bill is long and complex (81 clauses at the last count—and that is before the Government or noble Lords add any more—and seven schedules).

403
Fifty-two of those clauses and six schedules contain powers to make delegated legislation.
In the main, the committee accepted our arguments about the need for delegated legislation to provide the detail, with the primary legislation setting in place the framework for decision-making, rights of appeal, and the new appeal arrangements.
However, the committee highlighted areas where it felt the issues were significant enough to warrant further scrutiny by Parliament through the use of affirmative, rather than negative, procedures, when these regulations are brought forward. I am pleased to be able to say that, having studied the report, we feel it would be helpful to the House to have the opportunity for further debate on some of the details that will be set out in regulations and have therefore arranged for those powers singled out by the committee to be made under the affirmative procedure. In other words, we are acquiescing to the proposals of the Select Committee on Delegated Powers and Deregulation.
It may help your Lordships if I explain the issues that will be handled in this way. First, there are three groups of regulation-making powers which are concerned with appeal tribunals. Clause 8(3) relates to the composition of appeal tribunals and the allocation of cases among differently constituted tribunals. Schedule 1, paragraph 11, provides for the delegation of certain functions of appeal tribunals to authorised officers—clerks to the tribunals. My noble and learned friend the Lord Advocate has already discussed these issues in relation to earlier amendments. Schedule 5, paragraph 3, contains the power to provide regulations for striking out of proceedings. My noble and learned friend the Lord Advocate will be debating these in more details when we come to Schedule 5 later today. We recognise that these are important issues, and issues where the detail that is contained in the regulations will be of interest—over and above the debate on the principles we are able to have during the passage of this Bill.
We have tried to give the House full explanations as to how we will use the powers contained in the Bill. We have stated our intentions, and they are on the official record. However, I am aware of the ongoing interest and am therefore happy to agree to the recommendation and make the regulations in all three groups affirmative.
Secondly, the new clause in Amendment No. 130 also makes affirmative the power contained in Clause 13(2) and paragraph 8 of Schedule 2. These are the power that the noble Earl's Amendments Nos. 43 and 54 seek to remove and ones in relation to which the committee, too, expressed concern about their apparent wide range.
The Government have considered carefully the committee's argument that current "outcome" decisions (which are appealable) should be listed on the face of the Bill and that that would ensure that rights of appeal in relation to these decisions could not be denied. We consider, however, that the committee's concerns are best addressed by way of an amendment to clarify the nature and limitations of the regulation-making power in Clause 13(2). That is the purpose of Amendment No. 44. Amendment No. 44 specifically prevents regulations under Clause 13(2) from prescribing any decision that
404
relates to the conditions of entitlement to a relevant benefit—in other words, from removing an appeal right from a substantive outcome decision.
The power in Clause 13(2) is an important one which we intend to use to secure the concept of "outcome" decisions. It will be important in trying to streamline decision-making. Regulations under this power will make unappealable, as now, minor administrative decisions which are subordinate to the substantive appealable outcome decision. Such minor administrative decisions will cover whether a claim has been properly made, on which day of the week payment should be made, etc., as opposed to a decision as to whether a person is entitled to a benefit.
Paragraph 8 of Schedule 2 provides flexibility to accommodate with a minimum of fuss and delay any future changes to social security—for example, the introduction of a new kind of benefit or new procedures for the administration of benefit, where the interests of effective administration might require certain decisions to be made unappealable; for example, where a claimant received two outcome decisions carrying appeal rights which cover only one substantive issue.
We do feel this will effectively address the concerns of the delegated powers scrutiny committee and of the noble Earl. Though I do not doubt he will tell us it does not. But we have also decided that these powers should also be under the affirmative procedure to enable further scrutiny.
Finally, the Select Committee recommended that the power contained in Clause 70—the power to make regulations to remove the lone parent rate of child benefit for new lone parents—is of such general interest to the House that there should be an opportunity for further debate under the affirmative procedure.
Noble Lords will be aware that the issues in Clause 70 will be discussed by this Committee on Monday. I shall therefore, at this point, say only that we recognise the interest in this issue that noble Lords have and, again, we are content to accept the recommendation of the scrutiny committee.
To summarise, Amendments Nos. 44, 129 and the new clause, fully meet all the concerns of the Select Committee on Delegated Powers and Deregulation and, I believe, address the issues raised in the noble Earl's Amendments Nos. 43 and 54. I therefore ask him to withdraw his amendments and I commend my amendments to the Committee.
4.45 p.m.
Lord Archer of Sandwell: I have shared the concerns of the noble Earl, Lord Russell, as he knows, and I delivered myself of some forthright views on the subject at Second Reading. I am grateful to the noble Earl for having set down this amendment. I agree with the noble Earl—and the Council on Tribunals shares the view—that it is not desirable that rights of appeal should be created or abolished in secondary legislation. That, too, I said at Second Reading.
In a perfect world, it would not happen. However, my noble friend has listened to our concerns, and has made a generous attempt to meet them. I should like an

405
opportunity to read what she has said. However, I am minded to say—and I hope the noble Earl will forgive me—that we should settle for the rather generous settlement that we have received. As the noble Earl and my noble friend have pointed out, it was a matter upon which the scrutiny committee, of which I am privileged to be a member, expressed some serious concerns.
My noble friend wrote to the committee explaining in response what she proposed to do. Perhaps I should place it on record that she is not the first Minister to respond to an observation of the committee. But, so far as I am aware, she is the first Minister to take the trouble to write personally to the chairman explaining the action that she proposed to take. For myself, I am grateful for that, too.
Lord Higgins: It has always seemed to me completely wrong, if one receives a forthcoming response from the Government, to prolong the proceedings; therefore, I do not propose to do so for more than a moment or two. Certainly the noble Baroness has given great thought to these matters and made considerable improvements in relation to accepting the report of the Select Committee on Delegated Powers and Deregulation.
That said, it is also the function of the Opposition to ask for more in the role of Oliver Twist. That being so, it will still be the case that the Government will come forward with these regulations but we shall not be able to amend them. It has always seemed to me preferable, if one can, to have a matter on the face of the Bill so that it can be amended, and then subsequently, if necessary, amend it by regulation and appropriate powers to be taken in the Bill to that effect. If that is not to be the case, then can the noble Baroness give any indication whether we shall be given a preview of the regulations before going all the way through the Bill so far as the main legislation is concerned?
Baroness Hollis of Heigham: I cannot help the noble Lord yet in relation to the timing; I may receive that information in a moment or two. In the past, I have argued some of the points made by the noble Lord on the grounds that it is the Opposition's job to do so.
I would make one further point, and this may also help the noble Earl. The noble Lord is quite right. These regulations, if they are affirmative, cannot be amended and the usual difficulty arises. However, it would be open to any noble Lords to put down a Motion which, so to speak, were it adopted, would have the practical effect of amending the regulations. If the Government were persuaded of the desirable nature of that Motion, I for one would seek to withdraw those regulations and re-lay them, having incorporated the additional proposals by virtue of the Motion. That is the only way the House can amend regulations. That would allow us to overcome the chicken-and-egg difficulty of tying our hands too tightly in primary legislation and then finding ourselves in difficult situations.
The advice I am given is that it is unlikely that we shall be able to produce the regulations before the Bill completes its passage. However, we shall be consulting on both the content of the regulations and the guidance with the members of an ad hoc group of representatives
406
from leading welfare and other interested organisations. The regulations will be brought before Parliament, and I give an assurance to the House that if, at the point at which they are discussed, a Motion is brought suggesting that they should be changed in any of these ways, that Motion will be taken very seriously.
Earl Russell: On this side of the House, one regularly looks gift-horses in the mouth, but to look two gift-horses in the mouth at once is a little difficult; it tends to give one a squint. The Minister has given one very substantial gift-horse in reply to my speech; she has given an even more valuable gift-horse in reply to the noble Lord, Lord Higgins. What she said about the use of the Motion to resolve and her personal undertaking—I understand that it is only personal—to take note of that were it to be carried is a concession of immense value to the orderly proceedings of the House.
Baroness Hollis of Heigham: No, I was not saying that. Were a Motion to resolve to be carried, we would take it in. What I said was that, if there were a Motion, I would ask the noble Lord not to move his Motion and I, on the other side, would not seek to move the regulations. I would seek to protect the convention that we do not overturn regulations in that way. If there were a Motion which commanded support all around the House, and I felt that it was a correct Motion and not one that we should seek to defeat by a vote—in other words, that it would improve the regulations—I would indicate that to your Lordships and ask that the Motion be withdrawn, I would not move the regulations, and we would come back with subsequent regulations which we would hope embodied the spirit of the Motion.
Earl Russell: That is an extremely helpful series of remarks. In effect, the Minister is saying, as I understand her, that we should at that stage take time outside the House to discuss things quietly. That is the way we make progress. That is something that it gives me very great pleasure to hear.
I am pleased by the two concessions of affirmative procedure on Amendments Nos. 129 and 130. The Minister knows well enough why I do not think that is enough by itself, and I shall not detain the House by explaining it. Amendment No. 44, on the other hand, is an extremely imaginative and interesting concession. This attempt to distinguish between things which are major and involve conditions of entitlement and minor administrative decisions is very much in the area where I was looking for some form of progress. The Minister will appreciate that there may be argument from time to time about which is which, but that again is the kind of thing which we can easily discuss outside the Chamber. It is not, of course, absolutely everything that I wanted, but it is so near to it that to do anything other than accept the advice of the noble and learned Lord, Lord Archer of Sandwell, and withdraw the amendment would be churlish and ungenerous. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness bows of Heighammoved Amendment No. 44:
Page 7, line 43, leave out ("prescribed circumstances") and insert ("relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision.
( ) Regulations under subsection (2) above shall not prescribe any decision or determination that relates to the conditions of entitlement to a relevant benefit for which a claim has been validly made or for which no claim is required.").
The noble Baroness said: In moving Amendment No. 44, I simply add that we always have to take into account in discussion of any regulations and their relationship to the face of the Bill the decision that has been made in the Commons, so that we do not in any case undermine the will of the elected House. The Committee will understand that such discussions have to take place within that context. Given that understanding around the Chamber and the attempt to meet any suggested improvements which the Government accept are proper improvements to the regulations, I move Amendment No. 44.
On Question, amendment agreed to.
Lord Goodhartmoved Amendment No. 45:
Page 8, line 16. leave out ("may") and insert ("shall").
The noble Lord said: In moving Amendment No. 45, I wish to speak also to Amendment No. 47, which is the substantive amendment in this case. Amendment No. 45 merely corrects what seems to be a rather odd defect in the clause, which says that:
"Regulations may make provision as to the manner in which, and the time within which, appeals are to be brought".
Since it is clear that there will have to be such regulations, it would surely make more sense to say "shall" rather than "may".
Amendment No. 47 is much more substantial. Its effect will be that the regulations which will govern the procedure at appeal hearings will require that there shall be an oral hearing unless the appellant specifically requests otherwise. It also gives the chairman of the appeal tribunal or, in the case of a one-member tribunal, that member, the power to order an oral hearing where he thinks that that is desirable in the interests of justice.
Since October 1996 appeals have been decided on the basis of written information provided by the appellant or coming from the respondent unless the appellant specifically asks for an oral hearing. In 1996, the success rate where an appellant appeared or was represented before the tribunal was 53 per cent. The success rate where the appellant did not attend and was not represented before the tribunal was 13 per cent. That is an average figure; in the case of some benefits the discrepancy is even more extraordinary. For example, in the case of incapacity benefit, the appeals were successful on 57 per cent. of the occasions when they were attended but on only 7 per cent. of the occasions when they were not attended. I do not say that, if all the non-attenders appeared, that their rate of success would necessarily go up to 53 per cent.; but it is impossible to imagine that, if they had appeared, the rate of success would have been as low as 13 per cent.
408
Few claimants understand these complicated regulations in any detail. Few of them are skilled in presenting their cases on paper. If they do not appear, there is no way of filling in or supplementing any gaps in the information they have provided. Many claimants will not have properly explained the grounds for appeal in their written submissions; they may have omitted essential facts. If they are present before the tribunal when the appeal is heard, the tribunal can question the claimant, find out what the real issues on the appeal are and fill in the gaps in the written presentation. In some cases, particularly with incapacity benefit, the claimant's own account of his or her disabilities is likely to be particularly helpful to the tribunal, and that may account for the staggeringly high difference between the success rates for those who attended and those who did not attend in cases of incapacity benefit.
Since the new rules came in in October 1996, the proportion of hearings attended by a claimant or the representative of a claimant has fallen from 62 per cent. to 44 per cent. Almost certainly largely as a direct result of that, the overall success rate on appeals has fallen from about 40 per cent. to just over 30 per cent. The rate of success on attended hearings has remained much the same and it is clear, therefore, that the reason for the decline in the success rate is the fact that so many more appeals are now being dealt with on paper rather than being heard orally by the tribunal.
These figures, which are quite extraordinary, show that the 1996 change in the rules has plainly worked a real injustice. It was estimated by Mr. Tony Lynes, a former adviser to the government led by the noble Lord, Lord Callaghan, that about 10,000 people a year lose benefits to which they are entitled as a result of these changes. It is, of course, wrong to compel claimants to turn up at their appeals if they do not wish to do so, but plainly they should be strongly encouraged to do so. The best way is surely to provide that there shall be an oral hearing unless the appellant asks for it to be done otherwise. In other words, the default procedure is that there shall be an oral hearing and it is only where for some particular reason you wish to present your case on paper and do not wish to be present at the hearing that the hearing will be dealt with on paper by the tribunal.
If it were not for these figures, Amendment No. 47 could be regarded as something that is relatively minor, but the figures show—and we are talking about thousands of people a year—that the failure to encourage claimants to be present at their appeals does work a real injustice. This amendment gives priority to oral hearings before the tribunal and will, I believe, help to remedy that injustice. I beg to move.
5 p.m.
Baroness Wilcox: I am grateful to the noble Lord, Lord Goodhart, for having put down this amendment and I should like to speak in strong support of it. This amendment arises out of the fact that a person whose appeal is determined at an oral hearing rather than merely on the basis of written papers has, as we have heard, a much greater chance of success. The noble Lord, Lord Goodhart, has provided figures in support of

409
this and I believe that the right to an oral hearing is a basic and fundamental right which should not be taken away unless an applicant specifically confirms that he is happy for his case to be determined in his absence in writing.
The right to an oral hearing may appear to be less efficient to the Government and to have the disadvantage of being more time-consuming. However, applicants at an oral hearing not only have a much better chance of success but even those who fail, I think, are likely to feel that they at least have had a fair hearing and have been able to state their case in the way that they wish. In 1991, when I was chairman of the National Consumer Council, we did a study over two years of access to justice, and one point which came strongly out of that was that, if somebody had been represented and had to sit at the back of the court, they often did not feel that they had really had their say.
Following that piece of work, just last year I was able to take part in the review of the Court of Appeal in the Civil Division to look at why the Court of Appeal was being so over-burdened with work. One of the problems that we found over quite a short period of time was the number of lay litigants in person who were turning up wanting to go through the whole thing on their own, having been unhappy with the result from the court of first instance. This very often showed that they had been represented and had not had their say.
We spent time travelling through Canada and America to see how they dealt with this problem, trying to get through the amount of work that they had, yet at the same time retaining something that we treasure so much in this country: an oral tradition. I might tell your Lordships that in New York they have a system whereby it is 10 minutes for anybody. There are "traffic lights" in front of the person giving evidence orally. They start with a green light and the three judges can interrupt at any time during that 10 minutes. An amber light flashes half-way through and at the end of 10 minutes a red light comes on, a bell rings and you are out. But this does mean that you have had your moment in court; you have had your 10 minutes. Perhaps if the Government are looking for expediency they might wish to consider that method.
It is not right I think, to allow the decision over whether there should be an oral hearing to be left to the whim of the DSS or the appeal tribunal. Every person has a fundamental right to have their case heard at a full oral hearing unless they choose otherwise. As we have heard in earlier debates, many claimants are unrepresented and would find setting out their case in writing difficult. We have heard about this again from the noble Lord, Lord Goodhart. An oral hearing allows the appeal tribunal to elicit the facts from the claimant in a non-intimidating way and ensures that the claimant feels that he or she really has had a chance to state his or her case in their own way.
I am aware that many of these appeals may involve relatively small amounts of money. However, for the individual involved they can often be amounts of vital importance. If the assumption is not firmly in the camp that there should be an oral hearing, a system will soon
410
develop under which many applicants will not really be aware that they have a choice in the matter and they will be deterred from seeking an oral hearing in the interests of efficiency. I would therefore strongly support the noble Lord, Lord Goodhart, in enshrining this legal right in the Bill.
Lord Borrie: The fundamental purpose of procedural rules is to ensure that those who are not entitled to benefit are not likely to receive benefit. Similarly, the purpose must be that those who are entitled to benefit have a reasonably good chance of getting that benefit. That surely must be the objective of procedural rules. We have heard from the noble Earl, Lord Russell, and the noble Baroness, Lady Wilcox, the undoubted fact and the statistics which indicate that the chances of winning a benefit if you are a claimant are much enhanced if you have the benefit of an oral hearing. The statistics show that when the rule was changed so that a request had to be made specifically for an oral hearing, the chances of succeeding in a claim were less.
It seems to me morally wrong that the procedures should be so skewed that the claimant has less chance of winning because the regulations currently say that an oral hearing has to be requested in order to get one. The other evening in the course of a debate on this Bill on another amendment I had the temerity—I think that, although the noble Lord, Lord Goodhart, did not use that word, he felt that I was being rather unwise—to reject the solid advice on that amendment given by the National Association of Citizens Advice Bureaux, the Law Society, the Legal Action Group and, I think, the Child Poverty Action Group.
I must say on this matter that I have received a great deal of help from the briefing of the National Association of Citizens Advice Bureaux. It seems to be extremely sensible because it points out that it is not just the noble Earl and noble Baroness who have been arguing how much better and more wise it is from the claimant's point of view to have an oral hearing, but it quotes the official advice from the DSS at page 8 of a detailed leaflet where it says:
"Please note that claimants who attend the hearing of their appeal usually do better than those who do not".
The Government, in other words—although I do not think it is just this Government because it has come through from the previous government—have admitted that you do better to go for an oral hearing and yet they allow the regulation to be such that you are less likely to get an oral hearing than this amendment would suggest and less likely to get a benefit that you are entitled to. That seems to me to be quite wrong.
I noticed particularly one vivid example given by the National Association of Citizens Advice Bureaux of someone who was seeking a disability benefit and whose presence at an oral hearing enabled that claimant actually to describe the problems of daily living. Even if relatively inarticulate, if encouraged, as one should be of course by the tribunal itself, to explain one's normal life, that is surely a far more vivid way of giving evidence than the whole thing being on paper.

411
So there does not seem to be any dispute between people in this House and the DSS in its official leaflet that it is better to have an oral hearing. The only possible reason for having the regulation as it now stands is to save money and to avoid delay. The Government's reasoning for a whole number of proposals in this Bill is that there are considerable delays which arise not from the delay from claimants but through the fault, if it be a fault, of the authorities in not arranging hearings, tribunals and appearances and time and all the rest of it, rather than any fault on the part of the claimant. But surely it is wrong to damage the claimant's chances, which is what the existing regulation does, simply in order to try to remedy something which is the fault of the system. I support the amendment.
Lord Higgins: The brevity of my remarks on this amendment in no way reflects my enthusiasm for it. The noble Lord, Lord Goodhart, has made the case very strongly indeed. The statistics speak for themselves. My noble friend Lady Wilcox has made it clear from her own experience how strong the case for it is.
My own experience in seeking to get oral hearings in individual cases is that very often the bureaucracy does not work well. I can remember one case vividly—it was a child support case—when the hearing was cancelled three times, on two occasions because the chairman failed to turn up. It is very important indeed that these matters should be organised in an efficient way. If it is possible to have a oral hearing, it is more likely that the case will receive sympathetic and accurate consideration by the body concerned. I certainly think that that is a strong argument. I look forward to hearing the Minister's reply.
The Lord Advocate (Lord Hardie): First, I shall deal with the small point raised by the noble Lord, Lord Goodhart, as to whether the word "shall" should be substituted for the word "may". This is a drafting issue. As I understand it, using the word "may" in this clause would include the issues with which the regulations may deal. The regulations may deal with other issues, whereas if the word "shall" is used it may well restrict what the regulations might deal with.
Perhaps I may put that to one side and deal with the substantive issue raised by the noble Lord, Lord Goodhart, the noble Baroness, Lady Wilcox, my noble friend Lord Borne and the noble Lord, Lord Higgins. These amendments would require regulations made under Clause 13(6) to provide for two particular matters of detail. The first is that an appellant would be entitled to an oral hearing unless he requested otherwise. The second would be to require the chairman of a tribunal to order that there should be an oral hearing when he considers that to be desirable in the interests of justice, and that he should do that regardless of the wishes of the appellant. I propose to deal with those two issues separately.
As noble Lords will be aware—there has already been allusion to this—changes were introduced to appeal tribunal procedure regulations in October 1996. The automatic provision for an oral hearing which existed prior to that date was replaced by measures which
412
ensure that an oral hearing is arranged only for appellants who request one. The position that is being adopted in the Bill simply reflects the present position and the amendment would propose to go back to the pre-1996 position.
The changes were made in 1996 because prior to that about 30 per cent. of appellants failed to attend the hearing, which led to a waste of time and money and was inefficient. I take the point made by the noble Lord, Lord Higgins, that, because of maladministration, cases have not been heard. I accept that there are unfortunate and unacceptable situations such as the case he mentioned. I would hope that in the case to which he referred, unless the chairman on each occasion had a very good reason for not turning up, some action was taken to make sure that the chairman did not turn up at any tribunal after that.
Two wrongs do not make a right. If we re-instate the position which prevailed prior to 1996 without analysing what the effect of the post-1996 position has been—I shall come to that in a moment when I deal with the statistics which the noble Lord, Lord Goodhart, mentioned and which were referred to by my noble friend Lord Borrie—that would clearly be an inefficient system which was not to the benefit of the majority of appellants. Appellants are quite properly entitled to expect as early a hearing as possible. If we can take out of the system the 30 per cent. to whom I referred, others who wish a hearing will get a hearing and a decision more quickly.
Noble Lords will also be aware that every appellant in terms of this provision retains the right to an oral hearing. The only thing that he or she has to do is to confirm whether they wish one. Where they do not request an oral hearing the appeal will be heard on the papers alone. That reflects the change that was introduced in 1996 to organise hearings more quickly and effectively when the appellant does not plan to attend.
Amendment No. 47 proposes that an oral hearing should determine an appeal unless the appellant requests otherwise. Noble Lords will appreciate from what I have said that, as far as we are concerned, this would re-invent the previous inefficiency and is not the way forward. Appellants who have no intention of attending a hearing may not make the effort to ensure that an oral hearing does not take place. To take the point made by the noble Baroness, Lady Wilcox, unless an appellant writes in and says that he or she does not want one, a hearing will be fixed. If they do not wish one, and if they do not write in saying that, we will go back to wasting tribunal time. The current provisions provide a far more effective use of the time available to tribunal sessions.
I am grateful to the noble Lord, Lord Goodhart, for the opportunity which this amendment has given us to reassure the Committee that the existing provision for oral hearings will continue. All appellants will have access to such hearings on request.
Perhaps I may turn to the second part of the amendment. Regulation 22(1C) of the Social Security Adjudication Regulations currently enables a tribunal

413
chairman to require an oral hearing where he considers it appropriate. We intend to continue this provision under the new appeals arrangements. Again, we are not making any change to that. The chairman can still, if he or she decides that it is appropriate to have a hearing, order it.
There will be cases where, although an oral hearing has not been requested by the appellant, the tribunal may consider this to be necessary. For example, the tribunal may wish to examine the Secretary of State's representative or her expert witness. I can reassure the Committee that in those cases the tribunal will continue to be able to order an oral hearing, irrespective of the appellant's wishes but this will be done only after the claimant has been invited to attend and given the reasons why it is thought that this may allow a better opportunity to examine the case.
Perhaps I may say a few words on the statistics. Information on the effect of the change since 1996 is being collected. When enough data are available we will consider whether any further change is necessary. We do not consider that we have sufficient data at the moment to draw the conclusions referred to by the noble Lord.
As regards encouraging appellants to appear in person, as my noble friend Lord Borrie has pointed out in terms of his briefing, the department itself seeks to encourage people to attend. I draw to the attention of the Committee a leaflet NI246 entitled How to Appeal. That explains the procedure and emphasises that it is in the appellant's own interest to attend the hearing, including the fact that those who do attend do better than those who do not. That message will continue to be included in leaflets from the department, which will continue to be given out by representatives and employees of the department. In addition, welfare rights organisations, with which the noble Baroness has had a distinguished association in the past, will continue to do the invaluable job that they have always done. They will emphasise to claimants that they ought to have their day before the tribunal.
I differ from the noble Baroness, Lady Wilcox, in any suggestion that we should import into this country any American experience of coloured lights and 10-minute deadlines, because that is not the culture that we wish to impress on people appearing before our tribunals. We wish them to have a full and proper hearing, not constrained by coloured lights or 10-minute sessions. They should have a full session where they can explain their concerns and the tribunal can listen uninhibited by such restrictions.
I hope that I have explained why these amendments are not appropriate at this stage. We shall continue to provide information to claimants. Chairmen will continue to have the right to insist on an appeal in appropriate cases. By following the route that the Government propose, there will be a more efficient and effective use of the available time which tribunals have to consider appeals. In those circumstances, I ask the noble Lord to withdraw his amendment.
Lord Goodhart: I am most grateful for the support that I received from the noble Baroness, Lady Wilcox, and the
414
noble Lords, Lord Borrie and Lord Higgins. The main problem arises from the fact that, as the noble and learned Lord the Lord Advocate said, before the changes to the rules in 1996, 30 per cent. of appellants did not appear for the hearings. I can understand why that is a matter of concern. It is a waste of time and money if that happens. At the same time, I am not sufficiently familiar with the procedure to know whether or not a tribunal can proceed to make a decision in the absence of the appellant. If the present position is that it cannot do so, that might be changed. If it can, and if the appellant does not turn up, it does not mean that there has to be another hearing.
Lord Archer of Sandwell: I am most grateful to the noble Lord for giving way. I have fully taken on board the arguments which the noble Lord has advanced and they are very much present in my own mind. But in fairness, if there is an oral hearing and without announcing his absence the claimant fails to appear, usually there is at least a delay because it has to be ascertained whether something has happened to the claimant. At the very best it means that the matter is resumed a long time afterwards. If it is known that a claimant proposes not to attend, then as a matter of fact everyone knows that the hearing will be much quicker. I have seen this happen. If four claimants out of five on a morning's list do not turn up, by half-past eleven the tribunal is just sitting there and nothing is happening.
Lord Goodhart: I accept what the noble and learned Lord, Lord Archer of Sandwell, has said and I recognise the problem. That has made understandable the experiment introduced in 1996. The trouble is that the figures show that it has failed because, although that may have reduced the amount of time wasted and the expense of members of the tribunal turning up and finding they have nothing to do, it has also led to a serious decline in the quality of justice administered by the appeal tribunals.
Baroness Gardner of Parkes: Will the noble Lord give way? I have not sat on social security tribunals, but for years I have sat on industrial tribunals where the situation is very similar. I have listened very carefully to the debate on this amendment, although I have not taken part in the discussions on this Bill. As I listened to the noble Lord presenting his amendment, I believe that there is a total misunderstanding as to how the tribunals work. I am totally convinced by the arguments put forward by the Minister on this point. If people could no longer have an oral hearing, I would have been all in favour of the amendment. But people have to go to the trouble of saying that they would like an oral hearing. That is a very good first hurdle for people to overcome because it weeds out so many claimants. I believe that of the 30 per cent. of claimants who do not turn up, there are many who know that their claim has no hope in the world, and that is why they do not appear. They have no case and they would just be wasting time.
We must not overlook the fact that if we greatly increase the number of cases by insisting that each person has an oral hearing, whether or not it is wanted—

415
the lazy ones will certainly not bother to opt out—we should be delaying the whole process to such an extent that it will be to the disadvantage of the really deserving people who need to have their cases dealt with. I take issue with the Minister on one matter about the traffic lights system in America, which has something to recommend it. I am not proposing—and I do not believe that my noble friend Lady Wilcox was either—
Earl Russell: The noble Baroness had a point to make, but I believe that in this House it is not the convention to make interventions quite as long as is acceptable in another place.
Baroness Gardner of Parkes: I take issue with that. This is Committee stage of the Bill and we are all allowed to speak as often as we wish and at whatever length we wish. This is not Report stage, but if I am wrong I shall be grateful to be corrected.
Lord Goodhart: Perhaps I may resume. I am grateful to the noble Baroness, Lady Gardner, but I believe that there are distinctions here between industrial tribunals and social security tribunals. For one thing, those who apply to industrial tribunals are much less likely to be among those who are disadvantaged in various ways. They are less likely to be functionally illiterate. Both those categories of people are likely to be rather highly represented among those who apply to a social security tribunal. For that reason, what is appropriate for an industrial tribunal is not necessarily appropriate for a social security appeal tribunal.
It is perfectly clear that the proportion of those who attend for an oral hearing has fallen from 62 per cent. to 44 per cent.—that is, out of every seven people who attended oral hearings before, two do not attend now, with obvious consequences on their chances of success. I take the view that it is, and remains, appropriate that the default procedure in cases involving social security tribunals should be the oral hearing. In those circumstances, I do not propose to move Amendment No. 47, but it may be a matter to which we shall want to return on another occasion because, on the figures, the current system seems not to have worked and to have been the cause of serious injustice.
Finally, I was much attracted by the suggestion of the noble Baroness, Lady Wilcox, about traffic-lights for speakers. It occurred to me that we might experiment with that in this House, possibly at the Committee stage of the European Communities (Amendment) Bill!
Baroness Gardner of Parkes: I must apologise to the noble Lord. I realise now that when I intervened in his speech, I also made a point to the Minister when I should have referred only to the noble Lord. That is where I think that I was out of order. I regret that and I apologise to the noble Lord.
Lord Goodhart: I am most grateful for that explanation.
Amendment, by leave, withdrawn.
Lord Goodhartmoved Amendment No. 46:
Page 8, line 17, at end insert (", save that the time within which an appeal shall be brought shall not be less than three months from the notification of the decision in question.
( ) Regulations made under subsection (6) above shall provide that a person may bring an appeal after the expiry of the prescribed time if a full-time chairman considers that the person has reasonable excuse for not bringing the appeal before that expiry.").
The noble Lord said: This amendment relates to the time-limit for appeals. At present the time-limit is three months and I understand that the Government intend to use the regulations, which they have power to make under Clause 13, to reduce the time-limit for appeals from three months to one month. There is little real justification for reducing the time for appeals. It is perfectly true that most people apply within one month, but those who are least likely to do so are those who are disadvantaged, and the disadvantaged often need advice and help from organisations such as citizens advice bureaux. There may well be difficulty in arranging home visits to disabled people who are unable to come to a CAB office.
A statement from Richmond CAB, which runs a disability rights advice group, is typical of comments from many CABs. Richmond CAB stated:
"We believe one month is a quite inadequate time for preparation of an appeal and will particularly work to the disadvantage of the most vulnerable who may need help to make an effective case. With the best will in the world, agencies such as CABs, who have heavy caseloads may not he able to offer a home visit to a vulnerable client in less than two to three weeks and obtaining supporting evidence within the time allowed is quite unrealistic. This assumes that the client gets in touch with us immediately the decision arrives. In many cases, it takes a while before people with disabilities who often live isolated lives find out how to contact someone who may be able to help them".
If the period is shortened, it becomes all the more essential—this is the effect of the second paragraph of the proposed amendment—to give full discretion to the tribunal to extend the period for the appeal. Since February 1996, time-limits can be extended only if the appeal has reasonable prospects of success and if it is in the interests of justice to grant leave. The reference to "interests of justice" is interpreted very narrowly and under the existing practice of the tribunals, it is considered to apply only if there are special reasons which are wholly exceptional and which relate to the history and the facts of the case, and only if the special reasons are sufficiently strong to give a reasonable excuse for the delay. The second part of that is, I think, understandable, but the first (that the special reasons must be wholly exceptional) seems to go well beyond anything that is reasonable. No official figures are available on the number of cases where late appeals are allowed, but experts believe that under current practice it is almost impossible to obtain leave.
I believe that the Government have expressed some concern about this matter. I hope that they will be willing to leave the time for appeal at a minimum of three months, but, if not, I hope that they will accept that if the limit is reduced to one month, the chairman

417
of the tribunal should be given a general jurisdiction to allow an appeal out of time whenever it is fair and reasonable to do so. I beg to move.
Lord Higgins: I believe that the Minister expressed some doubts at Second Reading about whether the restriction might be too draconian and that she said that she would give further consideration, in consultation with outside bodies, to the question of whether, if the limit were reduced, some flexible arrangement could be made so that there may be some discretion for vulnerable groups. Perhaps the Minister will comment on that in her reply.
Earl Russell: I should like to speak briefly in support of the amendment. We have a considerable number of cases—some, but not all, have been forwarded by Richmond CAB—which illustrate the reason why some such amendment may be necessary.
One case involves a recovering drug addict who, at the relevant time, was on a treatment programme and overlooked a housing benefit review form. In fact, it would have been quite difficult at that stage to get him to understand what it was all about. At present, it seems to be the case that no housing benefit claim can be backdated for more than one month even where there is continuous good cause. Where housing benefit is withdrawn, there may be eviction and other consequences which are liable not only to cause hardship to the claimant, but also considerable cost to public funds.
Another case which comes to mind (although it is not a case from Richmond) relates to somebody who was disentitled to benefit and who was illiterate. He had been required to attend a scheme, but his reader, who read his post for him, happened to be away, so he did not know what the letter said until too late, but he lost his benefit none the less. That is the sort of case in which there might be some cause for allowing appeals to go forward at a later date.
The Richmond cases also include the chronic schizophrenic who had a deep paranoid suspicion of other people. If one has dealt with any such cases, one understands—
Lord Williams of Elvel: We have had two interventions from the Liberal Democrat Front Bench. Are both spokesmen from the Liberal Democrat Front Bench speaking for the Liberal Democrat Party or are they speaking individually?
Earl Russell: We are both speaking for the party and we are amplifying the same case. I am making points entirely in support of what my noble friend said. It is a procedure which I have seen used before, and many times, by the Front Benches of all parties. I recall during the Jobseekers Bill that the noble Lord's Front Bench had three Members of your Lordships' House taking part, all amplifying each other's arguments and at much greater length than is happening now—and they did a
418
great deal of good, if I may say so. However, if the noble Lord thinks that I should not develop the case further, I shall not spend too long on it.
If one tries to approach a paranoid schizophrenic to get him to pay urgent attention to business, one is lucky if one escapes with nothing worse than a flea in one's ear. Those are the sort of cases where the one-month limit is liable to do gross injustice. I hope that the Minister will think seriously about it.
Lord Borrie: Perhaps I may first apologise to the noble Lord, Lord Goodhart, for calling him the noble Earl in the course of our discussion on the previous amendment—
Lord Goodhart: If the noble Lord will excuse me, perhaps he should be apologising to my noble friend.
Lord Borne: I apologise to both, on the same Front Bench. If the Government accept a point that I sought to make on the previous amendment (that those who are legally entitled to benefit should have a reasonable opportunity to claim and to appeal in order to obtain that benefit), surely they will agree that unreasonable hurdles should not be put in their way.
One is entitled to ask whether imposing a time limit of normally one month is an unreasonable hurdle. We have heard examples—I can cap them with similar instances—of the great difficulty faced by claimants in obtaining the advice that they very much need, especially because of the kind of people they are and the technicality and detail of social security regulations. It is not a matter of being able to obtain an appointment with an adviser tomorrow or even next week. Before one knows it the month has gone.
I believe that there is a case for saying that a one-month limit is an unreasonable hurdle. The Government may say that most people manage, as they do, to make an application, claim and appeal within one month, but surely that should be not used as an argument for saying that one month should be the imposed upper limit. That is quite a different matter. One can ask the Government why, if most people manage to appeal within a month, they worry that some will require a rather longer period. If they accept, as they must, that there are cases, admittedly a minority, in which people find it difficult to get suitable advice within a period of four weeks, surely the Government would be willing to extend the present time limit.
Lord Hardy of Wath: I echo the point that has just been made by my noble friend. In the light of my experience in the other place, I recognise the value of the services provided by citizens advice bureaux and other organisations of that kind. Members of another place are frequently involved in such cases. I held surgeries every two weeks. If a person felt it appropriate to see me, in some cases a fortnight might have elapsed before that could be arranged. The individual might ask whether I thought it worth while to appeal or whether I could assist in that appeal. If a Member of the other place received individuals of that kind, the case might be quite complicated. He might require a few days to

419
look into the matter, in which case the best part of a month would have gone by. That would not leave the constituent with very much time in which to pursue his appeal. I believe that the case that has been advanced by my noble friend deserves consideration; indeed, such a case might have been echoed in the other place a little while ago.
5.45 p.m.
Lord Hardie: I am grateful to noble Lords for their contributions to this amendment. I make special mention of my namesake my noble friend Lord Hardy. I am reluctant to disagree with my namesake, but I regret that on this occasion I may have to do so. This amendment seeks to ensure that the time limit for appealing which will be set in regulations is not less than three months. The amendment also provides that the chairman is the person who decides whether there is a reasonable excuse for not bringing the appeal before the expiry of the time limit.
The Government intend to make regulations setting a time limit of one month in which an appeal can be made, as the noble Lord, Lord Goodhart, has indicated. The Government believe that that strikes a reasonable balance between giving an appellant sufficient time in which to consider the appeal and ensuring that there are no undue delays. I accept that there are disadvantaged people who, by virtue of their situation, may well require a longer period than the more fortunate among us. However, what has been overlooked inadvertently in this amendment is that a dispute period is to be introduced.
To take the first example that has been cited relating to Richmond citizens advice bureau—the person who was housebound and required a home visit—as I understand it, the bureau said that it might be two or three weeks before it could arrange such a visit. That assumed that the recipient of the letter got in touch immediately. With the one-month dispute period, if the recipient got in touch before the end of that period, advantage could be taken of that time to enable a question to be raised as to the correctness of the decision. The appeal period would run from that point. The one-month period taking into account the dispute period will reduce what is now effectively a three-month period to a two-month period.
If the time limit for appeal was longer than two months, the Government believe that it would reduce the incentive for claimants to act quickly in order to have mistakes put right. The shorter time limit will ensure that decisions are revisited while the facts are still fresh. We believe that one month strikes the right balance. That is illustrated by the fact that, as has been observed, at present most claimants appeal within one month. I accept the point raised by my noble friend Lord Borne that that is not a complete answer to the amendment, but it is an indication that the majority of people manage to mark an appeal within a month, and if a dispute period is introduced claimants will have a two-month period in which to raise issues. Moreover, it is in line with child support appeals. The current limit for appeals in respect of child support is 28 days. Our proposals will make the provision for appeals relating to
420
benefits and child support more similar to each other and easier for appellants to understand. We believe that if there are different time limits for different benefits there is a greater risk of confusion.
This amendment would require the regulations to give discretion for a legally qualified chairman to accept a late appeal where he considered that the person had reasonable excuse for not bringing the appeal within the time limit. Current legislation makes provision in regulations which allows late appeals to be brought where there are special circumstances, as the noble Earl, Lord Russell, has observed. I hope that the Committee is reassured if I say that there will be similar arrangements in future. As has been pointed out by the noble Lord, Lord Higgins, my noble friend the Minister said at Second Reading that while most claimants appealed within a month, the Government wanted to ensure that they got the provision for late appeals right. It is important that if one has a system people have access to it and have a proper opportunity.
Earl Russell: I am grateful to the noble and learned Lord for allowing me to intervene. I listen to what he says with great interest. If he provides for a series of grounds for late appeal, will he consider the case for including one ground for unforeseen circumstances? One cannot foresee all the reasonable exceptions in advance.
Lord Hardie: I accept the noble Earl's comment. I go on to say that for the future we will discuss the details of the new arrangements with interested parties, including representatives of claimants and welfare rights organisations, through the ad hoc group that we have set up to consider draft regulations and new procedures. I am sure that that very point will be one that such organisations will draw to the attention of the Minister who deals with the regulations, if that does not already feature in them. However, we do not believe it necessary in every case for the chairman to make the decision on whether to allow a late appeal. That is unnecessarily restrictive and will be an obstacle to our efforts to establish an efficient service for appellants which makes optimum use of the expertise of panel members.
There will be occasions when such decisions can be taken by a clerk. Allowing clerks to deal with straightforward cases means that panel members could focus upon those cases which require their expertise; for example, in current regulations there is an absolute time limit of six years for making a late appeal. Any appeal after that period cannot be disposed of by a clerk under the current system. There is no prospect of such an appeal being competent, and that would be the type of thing which a clerk should be able to do in future. I hope that with the explanations I have given the noble Lord will consider withdrawing the amendment.
Lord Goodhart: I listened with attention to what the noble and learned Lord said. The main problem with which I am left is the limited discretion which at present is given to extend the time for appealing. If it is to be reduced to one month or, if one takes into account the

421
dispute period, two months, that increases the importance of giving a general discretion whenever there is a reasonable excuse.
We do not want to see similar arrangements, because they are unduly restrictive as they have been interpreted. The present rules make it extraordinarily difficult to get leave to appeal out of time. We want something considerably less restrictive than are the present rules.
I accept that the person giving the leave should not necessarily be the chairman of the tribunal, though it should probably be a member of the panel. I doubt whether it should be a matter for the clerk, as the clerk, if refusing leave to appeal in a case where there is some element of discretion, is effectively debarring the appellant from access to the next stage in the system of justice. That is not a decision that it is proper for the clerk to take.
I shall take this matter away and read what the noble and learned Lord has said. I shall be interested to hear any further comments that the voluntary organisations may wish to make on what the noble and learned Lord has said today. For today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.47 not moved.]
Lord Goodhartmoved Amendment No. 48:
Page 8, line 17, at end insert—
("( ) In deciding an appeal under this section, an appeal tribunal shall consider any issue relating to the benefit in question which is raised by the evidence before it, irrespective of whether the person bringing the appeal has himself raised it.").
The noble Lord said: Amendment No. 48 is grouped with Amendment No. 49. They are very much of a pair, although in Amendment No. 49 the lead name to the amendment is that of the noble and learned Lord, Lord Archer of Sandwell. It is one that the noble Lord, Lord Higgins, and I have also signed.
The present position under Clause 13(7) is:
"In deciding an appeal under this section, an appeal tribunal—

(a) need not consider any issue that is not raised by the appeal; and

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made".

Amendment No. 49 deletes that and restores the status quo.
Amendment No. 48 replaces subsection (7)(a) by a subsection which provides:
"In deciding an appeal under this section, an appeal tribunal shall consider any issue relating to the benefit in question which is raised by the evidence before it, irrespective of whether the person bringing the appeal has himself raised it".
It is arguable that Amendment No. 48 is not strictly necessary, because the effect of the deletion under Amendment No. 49 would be to maintain the status quo which Clause 13(7)(a) seeks to alter.
Tribunals are of course currently supposed to be inquisitorial and to inquire into all issues arising out of the evidence, not merely to confine themselves to those issues which have been raised or argued by the parties.
422
It is not necessary, and should not be necessary, for a tribunal to trawl through the case for issues that are unlikely to arise, but where it has reason to believe that an issue may arise, surely the tribunal should look into it. It is, after all, usually dealing with claimants in person who are not familiar with regulations and who are often unable to analyse their own technical problems. Tribunals will have power to look at the issues raised on appeal, but Clause 13(7) appears to be intended to dissuade them from doing so by relieving them of that necessity and giving an indication that they are not supposed to go outside the parameters of the arguments that have been presented to them.
However, in fact the position is that tribunals should be under a duty to look at all the issues raised on the evidence, whether raised by the appellant or not. Clause 13(7)(b) raises a different point which is, as I have said, whether the tribunal can look not only at issues not raised by the appeal but take into account a change of circumstances. That is not raised by Amendment No. 48. It might therefore be more appropriate if it were dealt with by the noble and learned Lord, Lord Sandwell, because it is covered by Amendment No. 49 in his name. I beg to move.
Lord Archer of Sandwell: As the noble Lord said, Amendment No. 49 is somewhat more radical than his moderate Amendment No. 48. Amendment No. 48 would mitigate the effects of this subsection; my amendment would abolish it.
The subsection, as the noble Lord said, makes two separate provisions. First, it absolves the tribunal from considering any issue:
"not raised by the appeal".
I am not wholly clear what that means. Does it mean not raised in the letter of appeal; does it mean not raised by the appellant or on his behalf at the hearing; or does it mean not required to be determined in order to ensure a just outcome of the appeal? Merely as a matter of drafting, that needs to be clarified or, I venture to prophesy, it may give rise to endless problems in adjudicating, and ultimately to long and costly litigation. I do not normally spend a great deal of time trying to prevent the legal profession from making an honest living, but on this occasion it would be better if it were looked at again.
Let us assume in broad terms that the provision means, "If you want the tribunal to consider a question, however relevant to entitlement or the calculation of benefit, you must research and raise it yourself". I shall return to that provision in a moment.
Secondly, and separately, the subsection at present provides that the tribunal is concerned to review the original decision only in the circumstances then obtaining. If there is a change of circumstances, the claimant must go back and make a new claim, and the process has to begin all over again. As the noble Lord, Lord Goodhart, said, those provisions are independent one of the other. Ideally, they might have been debated together, but I fear that I have precluded the Committee from taking that course by the form of my amendment.

423
Perhaps I may follow some of the arguments used by the noble Lord, Lord Goodhart, in relation to the first provision. It has been well stated by the Child Poverty Action Group that the present function of the tribunal is, in a sense, inquisitorial as opposed to the adversarial approach which is normal in most of our traditional courts and tribunals. It is under a duty to satisfy itself what is a just and lawful outcome of the appeal and it is not confined to the arguments of the parties.
That is important because many—probably most—of the claimants who appear before the tribunals are not expert in the relevant regulations and, for whatever reasons, frequently do not take expert advice. They depend on the expertise of the tribunal. I agree with the noble Lord that everyone must use common sense. The tribunal cannot spend hours exploring every point which might have been overlooked. Conversely, whatever the provision in the statute, if the tribunal discovers a possible issue which has been overlooked, no doubt it will endeavour to address it. I believe that the provision as drafted sends an unfortunate signal. I should he grateful if my noble and learned friend could look at it and I await with interest his explanation why it was thought necessary to include it.
The second provision is more specific and it will change what has become a practice in the independent tribunal service. Without any statutory provision, but by decisions of the social security commissioners, tribunals have acquired the power to look at all the circumstances prevailing at the time when the appeal is heard. Therefore, a tribunal could make a fresh decision and it would not be restricted to pursuing an issue which may by then have become outdated.
A problem arose with the introduction of incapacity benefit. That benefit depends on what an applicant can or cannot do at the time when the doctor applies the test based simply on a list of function descriptors. Sometimes a person's capacity or incapacity to perform a particular physical function may change from day to day. All of us, with aches and pains which accumulate as we grow older, have our good days and bad days. But the functioning of those who have a serious clinical handicap may change from day to day. Sometimes the tribunal members will say to an appellant, "The test does not refer to trouble with walking, but you were limping when you came in. May we ask you a few questions about that?". There may be no reference to any mental disability, but at the hearing it may become clear that there is some mental disturbance.
The tribunal members may not have the necessary medical qualifications to administer the all-work test. Tribunals were reluctant to adjudicate on circumstances which have arisen since the test was applied. That practice was considered last year by a tribunal of commissioners. It ruled that tribunals should consider the circumstances at the date of hearing. Admittedly, that led to difficulties because tribunals frequently found themselves adjourning cases for further medical evidence. It may be that the provision in Clause 13(7)(b) is intended to deal with the difficulty relating to incapacity benefit. I hope that my noble and learned friend will be able to address the issue.
424
Judge Bassingthwaighte, in his memorandum, comments that he supports the provision in relation to incapacity benefit for the reasons that I have endeavoured to indicate, but he sees no necessity for it in relation to the other range of benefits. In particular, the child support appeal tribunals, which operate less as a procedure for adjudication but more as what Professor Whiteley recently described as "being in the business of dispute processing", frequently hear appeals precisely because there has been a change of circumstance.
The Child Poverty Action Group, which has great experience in this area, believes that it would be quicker and more economical to permit tribunals to dispose of the whole case and it would subject claimants to fewer delays and hardships. I will listen to what my noble and learned friend says in explanation; but my initial reaction is that that provision attracts all the disadvantages and none of the advantages. In due course, I propose to move it.
Lord Higgins: I am not sure whether we are having another intervention from the Liberal Democrat Front Bench in the light of the intervention from the Labour Back-Benches. The noble Lord is no longer in his place. In the light of our discussions last night on Gilbert and Sullivan, I was reminded of the traditional performance of "The Gondoliers".
I believe that the amendment proposed by the noble and learned Lord, Lord Archer, to which I have added my name, is preferable. Two points arise in relation to Clause 13(7). As regards paragraph (a), I cannot help believing that the draftsman was having a bad day. I believe that no harm would he done by leaving it out and that the draftsman was merely thinking of something to say. As regards paragraph (b), the noble and learned Lord appeals to his great experience of these issues and it appears to be positively objectionable. Since the objective of all Members of the Committee is to improve the Bill, it would be, from the point of view of those affected by the legislation, if not a great matter an advantage not to have the restriction in the Bill. As the noble and learned Lord, Lord Archer, said, looking at the matter practically, the restriction that it would impose is objectionable. I hope that the Minister, whatever his brief may say, will have listened to the debates and decided to leave out Clause 13(7)(a) and (b) so that we can make rapid progress.
Lord Hardie: I am always keen to make rapid progress and I assure Members of the Committee that I always listen to the debates. I hope that that was illustrated on Monday. Clause 13(7) requires tribunals to concentrate on a decision which has been appealed against and enables them to focus their attention on the issue or issues which are in dispute or the issues which are irrelevant. I say to my noble and learned friend Lord Archer that the interpretation of paragraph (a) is the third option. I will explain that in a few minutes.
The group of amendments seeks to nullify the focus which we are seeking to direct. I wish to explain to the Committee why we believe that the focus is essential. As regards Amendment No. 48, the purpose of the

425
provision in Clause 13(7)(a) is to clarify the proper role of the appeal tribunal which has become obscured by contradictory case law. The noble Lord, Lord Goodhart, referred to the commissioners' decisions. During the years, some commissioners have ruled that the tribunal must reconsider every aspect of the appeal decision, even those aspects which are not in dispute. Other commissioners have taken a different view.
The provision in Clause 13(7)(a) seeks to address that problem by making it clear that the tribunal's function is to focus its attention on the issues in dispute. That will avoid the uncertainty which currently exists and enable the preparation of papers for tribunals and hearings to be dealt with more speedily. We believe that claimants want a fair, quick and accessible service and that our proposals achieve that.
Amendment No. 48 places an obligation on the tribunal to reopen the whole decision before it. However, it is important for the tribunal to make a judgment on whether issues are relevant to the appeal decision, otherwise it may become bogged down in hearing aspects of the case which are not in dispute. That runs completely contrary to our aim.
Of course, we fully recognise—and this is the point which I made at the beginning to my noble and learned friend Lord Archer—that there will be times when, in the conduct of a hearing, the tribunal becomes aware of issues which are relevant and which should be considered, even though they did not form the basis of the appeal. I wish to assure Members of the Committee that that clause as it stands does not prevent the tribunal looking at any other issue. Rather, it gives the tribunal a discretion to do so when it considers it to be appropriate.
Amendment No. 49 seeks to delete subsection (7). I had intended to deal with that in more detail when we reached Amendment No. 50 in the name of the noble Earl. However, it may be appropriate to say something at this stage and perhaps refer back later to what I said.
It is important for the tribunal to focus on the circumstances which pertain at the time at which the decision being appealed against was taken—not on changes which have happened during the intervening period and which should be dealt with by the first tier of decision-makers; namely, the agency. In the new system, the Secretary of State will make all first-instance decisions and the function of the tribunal will be to decide appeals on those decisions. Focusing the tribunal on the claimant's concerns—that is, on the issues in dispute—will enable the tribunal to determine the issue which was before the Secretary of State. It will ensure that rights of appeal are not lost.
For a number of reasons we do not believe that the tribunal should undertake the function of the first-instance decision-maker. First, in taking a first-instance decision, there may be a complex sequence of events and facts which cannot properly be exposed at a tribunal hearing.
Well intentioned though it is that tribunals should consider events which have occurred since the decision, I cannot support such a proposal. It is the function of tribunals to look afresh at a disputed decision, not to
426
take over the role of an initial decision-maker. If the claimant's circumstances change while he is waiting for the appeal to be heard, he should notify the relevant agency; he could put in a new claim for benefit or ask for the existing award to be changed. That would be quicker for the claimant; would achieve a result much more quickly than waiting for the tribunal to determine the issue; and it would be more cost-effective if the agency dealt with those changes, and may well take some appeals out of the system.
In addition, by allowing tribunals to make initial decisions in respect of a change of circumstance that has occurred between the decision and the hearing, the amendment would have the effect of limiting the claimant's rights. I appreciate that that is quite contrary to what Members of the Committee wish to achieve. That is because where claimants may appeal to a tribunal about decisions of the agency on facts and law, appeals against decisions by the tribunal would have to go to commissioners and the only ground of appeal then is on law. Therefore, if the tribunal gets the facts wrong, there is no appeal on that matter whereas by going back to the agency, if the agency gets the facts wrong, the tribunal can readdress those facts and correct any error of fact.
For those reasons, I respectfully submit that this group of amendments would delay the handling of appeals. Members of the Committee would be aware that the current backlog of appeals exceeds six months and is increasing. The amendments would also make the service less accessible to claimants. The overall effect would be to load tribunals with inappropriate and unnecessary burdens so that fewer appeals are cleared at each session; backlogs and delays are likely to increase; and costs will rise. That would work against our aim to create an efficient and effective appeals system. In those circumstances, I invite the noble Lord to withdraw the amendment.
6.15 p.m.
Lord Archer of Sandwell: It may be for the convenience of the Committee, if, before the noble Lord concludes the debate and withdraws the amendment, I say a few words about my amendment and then the Committee will not be troubled with it at a later stage.
I am most grateful to my noble and learned friend for his very careful reply. In relation to the first provision in subsection (7)(a), I was rather surprised when he said that of the three possible constructions which I put forward, it was the third which is really meant. First, it is not obvious from the words which are used and it may be that the draftsman will wish to consider that. But if that is what is intended, I cannot understand why it is necessary to say it. What tribunal in its right mind will consider an issue which is not necessary to the proper and just determination of the appeal which it is considering? My noble and learned friend may wish to reflect further on that.
As regards the provision in subsection (7)(b), I say this not at all by way of criticism because I know that there must be discussions on the Front Bench as the Committee stage proceeds, but I gained the impression

427
that my noble and learned friend did not have his attention on what I was saying throughout the whole of the time that I was saying it.
Some of the things which he said, I should reflect upon. I shall do a deal with my noble and learned friend. I shall read carefully what he said if he will read carefully what I said.
Lord Goodhart: I rise to speak finally to Amendment No. 48. The noble and learned Lord the Lord Advocate said that one of the purposes of Clause 13(7)(a) was to clarify the situation because of existing conflicting decisions. I make two remarks about that. First, I believe that it has been clarified the wrong way by moving away from the current jurisprudence which indicates that the tribunal should adopt an inquisitorial role. Secondly, the situation has not been clarified at all because the Bill provides that the tribunal need not consider any issue which is not raised by the appeal. That means that it will have a discretion whether or not to consider such an issue. That discretion must be exercised judicially. There will no doubt have to be litigation to decide whether or not the tribunal has exercised its discretion judicially. Therefore, we have gone round in a circle and ended up back where we started. The tribunals do not have guidance from this clause about what they can and cannot do.
However, I shall ask leave to withdraw the amendment if only because, like the noble Lord, Lord Higgins, the amendment moved by the noble and learned Lord, Lord Archer, is preferable to the one which I moved.
Amendment, by leave, withdrawn.
[Amendment No. 49 not moved.]
Earl Russellmoved Amendment No. 50:
Page 8, line 19, leave out from ("appeal") to end of line 21 and insert—
("(8) In deciding an appeal under this section, an appeal tribunal shall also consider whether the person concerned was entitled to the benefit in question during any part of the period between the decision against which the appeal has been brought and the determination of the appeal.").
The noble Earl said: This is another fall-back in case the amendment of the noble and learned Lord, Lord Archer of Sandwell, should not prevail at a later stage. I agree entirely with what my noble friend said about that amendment.
I have come to think of this amendment as the Sierra Leone amendment, and I shall attempt to explain why. The purport of Amendment No. 50 is that it provides that a tribunal shall consider whether the person was entitled to the benefit in question during part of the period between the decision and the appeal. It therefore overrides the ban in Clause 13(7)(b) on taking into account
"any circumstances not obtaining at the time when the decision appealed against was made".
Let us assume that an asylum seeker from Sierra Leone says that he attempted to apply for benefit at the port of entry but was unable to make himself understood and was sent on his way out of the airport. They say
428
that he made no attempt to apply. The tribunal spends a great deal of time trying to disentangle the story and suspects, although it is not certain, that the problem was essentially a failure in communication. However, since that asylum seeker arrived in this country, the Home Secretary has declared Sierra Leone to be a country in a state of upheaval. Therefore, he has been entitled to benefit from the time of his arrival whether or not he claimed that right at the port of entry. Nevertheless, by the time the case comes to be heard, Sierra Leone has ceased to be a country in a state of upheaval and the previous entitlement has disappeared.
Under my amendment, the tribunal would he able to find in such a case that the claimant was entitled to benefit during the period when Sierra Leone was in a state of upheaval, regardless of how the original issue was settled. If the Government's view of the matter prevails, it seems to me that three consequences would follow. First, a person with a genuine entitlement to benefit would not get it; that is one undesirable effect. Secondly, the tribunal would have to give a decision which it knows to be unjust; that I regard as a second undesirable effect. Thirdly, yet another appeal would be generated; that I regard as a third undesirable effect.
I listened with care to the noble and learned Lord the Lord Advocate. In effect, he said that the procedure that we are proposing and recommending offends against the canons of administrative tidiness. So it does; that is precisely why we are recommending it. I can understand why bureaucrats in any century may wish to take refuge behind the fortresses of bureaucratic procedure against the rising tide of untidiness in the world outside. Indeed, they have always done so.
However, social security is an essentially untidy subject. We are dealing all the time with a collection of the world's misfits. The world's misfits, often in very fascinating and sympathetic ways, are thoroughly individual and totally unpredictable. They simply do not fit into categories. So if one spends all one's time trying to force social security into a mould of total administrative tidiness, one will end up very unhappy and disappointed. It would be much better to recognise the reality of the situation and take a decision which, even if it were a little untidy procedurally, would nevertheless be just; would enable justice to be done; and, just for an uncovenanted bonus, would save public funds. I beg to move.
Lord Hardie: I dealt with this amendment when speaking to the two previous amendments on the Marshalled List. I trust that the noble Earl will not think me discourteous if I do not repeat what I said. Under the explanation that I gave previously, the answer to the Sierra Leone problem would be for the immigrant to go back to the agency in between the first application and the date of the appeal. At that time, the agency would reassess his circumstances and, if entitled, would grant him benefit.
The other point that I should make is that the agency and its staff will be instructed to reconsider cases when they are at appeal. If it is obvious from the papers that there has been a change in circumstances—as there would be in the Sierra Leone case—it would be for the

429
agency to draw the fact to the attention of the claimant and encourage him to submit a fresh claim to enable him to receive benefit at the earliest opportunity. I appreciate that that will involve a continuing training programme for the agency staff. That should ensure that they take the initiative and encourage claimants to reapply when it appears that they ought to do so. With that explanation, together with the one I gave previously, I hope that the noble Earl will feel able to withdraw his amendment.
Earl Russell: I thank the noble and learned Lord for his reply. Of course, I entirely understand why he did not repeat all that he said before, and I did not expect him to do so. I was interested in the noble and learned Lord's remarks about the Sierra Leone case. However, I see two disadvantages in that response. First, he is creating a need to make a second claim where before it could perhaps have been disposed of all in one case. Indeed, that may multiply work. Secondly, it is not necessarily a valid assumption that every asylum seeker from Sierra Leone knows that it has been declared a country of upheaval. That fact was not widely publicised in press reports and not every asylum seeker without benefit is able to buy and read newspapers on a regular basis; indeed, not all of them have the ability to do so.
In social security law, the maxim that ignorance of the law is no excuse really does not have very much place because many of these people are not in a position to have a proper understanding. I quite understand that the noble and learned Lord is concerned for the tidiness of the claiming procedure. But if the material simply does not fit into the categories that he has designed for it, the result will end up looking rather like my desk. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hardiemoved Amendment No. 51:
Page 8, line 21, at end insert—
("( ) The reference in subsection (1) above to a decision under section 11 above is a reference to a decision superseding any such decision as is mentioned in paragraph (a) or (b) of subsection (1) of that section.").
The noble and learned Lord said: In bringing forward this technical amendment we are seeking to clarify which applications made under Clause 11 will attract a right of appeal under Clause 13. As noble Lords will be aware, under our new proposals decisions of the Secretary of State will either be revised or superseded depending generally upon the timing of the application. Where an application is made to revise the Secretary of State's decision within one month after that decision is made, it will be revised under Clause 10. Once that period has ended, cases will be superseded under Clause 11 only where the application is made for specified reasons—such as ignorance of or a mistake as to a material fact, an error of law on the original decision or where there has been a relevant change of circumstances.
Where an application for supersession has no prospect of success—that is, where it is clear that there has been no relevant change in the claimant's circumstances—the
430
Secretary of State will not act on the application. The decision not to act will not be a decision under Clause 11. Therefore, it will not fall within Clause 13(1) and will not attract appeal rights. Of course, if the Secretary of State gets it wrong in refusing to entertain the application, there would be a remedy by way of judicial review.
That approach should be seen in the context of creating a modernised social security system which will allow customers to exercise their rights more effectively. If the Secretary of State has to deal formally with nugatory applications this must affect her ability to operate processes effectively. Moreover, if we were to offer appeal rights on applications which could not succeed, then more nugatory work would be created for the new appeal service, causing delays to claimants who had a justifiable case.
I have explained when appeal rights will not be offered. I will now briefly explain when they will be offered under Clause 11. Appeal rights will be granted where the Secretary of State acts on an application. This will include those circumstances when the amount of the award is not changed; in other words, by acting, the Secretary of State decides that there should be no change. It may seem odd to describe a decision as superseded where there is no change. However, that will be the case. A decision will be superseded every time that the Secretary of State issues a benefit decision in response to an application. That will be a new outcome decision which will attract appeal rights and a period of one month in which to appeal.
While our intention with the new dispute process is to encourage claimants to take responsibility for exercising their rights promptly, we also want them to do so in a meaningful way. The amendment ensures that the legislation supports that intent. I beg to move.
On Question, amendment agreed to.
Clause 13, as amended, agreed to.
[Amendment No. 52 not moved.]
Schedule 2 [Decisions against which no appeal lies]:
[Amendment No. 53 not moved.]
6.30 p.m.
Lord Hardiehad given notice of his intention to move Amendment No. 53A:
Page 56, line 34, at end insert—
("Reduction in accordance with reduced benefit direction
A decision to reduce the amount of a person's benefit in accordance with a reduced benefit direction (within the meaning of section 46 of the Child Support Act).").
The noble and learned Lord said: This group of amendments comprises Amendments Nos. 53A, 141A. 142A, 146A, 146B, 147B, 147D, 147F, 147H, 147L and 156A. This group commences with Amendment No. 53A which is a late amendment. In view of representations made to me by the noble Earl, Lord Russell, about this late amendment and concerns that he has about it, it would not be appropriate for me to move it or this group at this stage. Having said that, it is my intention to address the issues raised by these

431
amendments at Report stage after further discussion with noble Lords opposite. Therefore I shall not move the amendment.
[Amendment No. 53A not moved.]
[Amendment No. 54 not moved.]
Schedule 2 agreed to.
Schedule 3 [Decisions against which an appeal lies]:
Lord Haskelmoved Amendment No. 55:
Page 58, line 31, at end insert—
("Liability of directors etc. for company's contributions
Subject to the provisions of section 121 D of the Administration Act, a decision as to the issue and content of a notice under section 121C(2) of that Act.").
The noble Lord said: I spoke to this amendment on Monday. I beg to move.
Lord Higgins: I intervene at this point with some trepidation because I realise the matter has already been debated, although the situation remains somewhat confused after the response which we have had to a number of points which were raised. I intervene because I am anxious that the Bill should be improved. The objectives which the Government set out at an earlier stage are ones which we entirely support. However, we have grave doubts about the method of doing it.
There is a problem because we have already passed what one might call a paving amendment. If we also accept this amendment it may still be possible, in the light of the substance of the issue, to improve the matter by amendment at later stages. However, Amendment No. 100 runs to some three pages and embodies a method of dealing with this problem which seems to me to have wide repercussions, for example, for the Department of Trade and Industry. I fear that if we accept that amendment it would be difficult to claw back the situation. Indeed we may have to rely on another place to do that.
I think we can probably get away with accepting this amendment—if I may use that expression—but between now and reaching Amendment No. 100 we need to consider whether we want to include the other amendment in the Bill or whether it would be more appropriate to return to it at Report and not accept that amendment at this Committee stage. That still rather leaves the earlier one hanging in the air, but not wholly because to some extent it deals with the main substance of the Bill rather than the issue we are discussing.
Baroness Hollis of Heigham: With the best will in the world, I do not see how we can meet the noble Lord's request. When my noble friend moved Amendment No. 11—I believe that was the number of the amendment—he made it clear that that amendment, together with Amendment No. 55, was, so to speak, a semi-paving amendment on the substantive amendment, which is Amendment No. 100. In other words, they were consequentially linked, not just grouped together. If the noble Lord intended to air those concerns, he ought to have aired them when we discussed Amendment No. 11. At that point it was clear that we were discussing the
432
substantive issue. We were led to believe that the Official Opposition understood, accepted and went with—if I may put it that way—the substantive amendment. We would now experience some difficulty, therefore, in following the path suggested by the noble Lord, which is to retain the paving amendments but not to accept the substantive amendment.
I am willing to discuss this matter outside the Chamber, but my advice to the noble Lord—unless any other way forward is proposed—is that he should accept this amendment and also Amendment No. 100 but return to the matter on Report. There is also Third Reading. There are two further stages at which we can return to this matter. If the noble Lord then feels there is a preferable way forward, which commands the assent of the Chamber at Report stage, it would still be open to us to strike out Amendment No. 100 at Third Reading. That may be the better way of doing it. I do not think we can leave paving amendments floating without the substantive amendment, given that we have already debated the substantive issue.
Lord Goodhart: Before the noble Baroness sits down, I wish to reinforce what the noble Lord, Lord Higgins, has said. We are not asking for this provision to be dropped. We are merely asking for it not to be moved at this stage so that it can be brought back at Report. There are serious problems here. Amendment No. 100 causes grave problems as regards the procedure which is proposed for what we agree is a perfectly legitimate aim. Amendment No. 100 can be dealt with by means of an amendment to that amendment. However, there are great difficulties as regards the amendment we are discussing; in fact there are rather more serious problems with this amendment. If Amendment No. 100 is to be put into proper shape, I believe it is essential to place the system of appeals altogether outside the system of social security appeals, which is what Schedule 3 is concerned with. That would mean that Amendment No. 55 would simply not be amendable because it would have to disappear. There would be no other way of dealing with it.
Baroness Hollis of Heigham: I believe the noble Lord, Lord Goodhart, is making this matter unnecessarily complicated. Amendment No. 100 has already been debated as part of the debate on Amendment No. 11. That was the Committee's choice and that was what we did. Therefore I do not believe that we can defer the other two amendments to some later stage, keeping the paving amendments floating in the Bill; that is, make a break between the two stages. The right way to deal with this is to accept the judgment of the Committee on Amendment No. 11 and the subsequent amendments and, if the Chamber so desires, return to the matter at Report stage. That is the appropriate way of proceeding. As I said, we still have Third Reading if we need to do any subsequent tidying up, should the Chamber change the substantive amendment.
As regards the issue that the noble Lord, Lord Higgins, mentioned, we shall be happy to discuss this with him outside the Chamber, as we shall do with

433
the national insurance issues. My understanding is that the DTI was consulted on the matter and raised no objections to it. The policy reasons for the noble Lord wishing to defer this matter may be groundless. That would be good news if it were the case. I suggest that the Committee accepts that this matter has already been debated. In that sense it has already been accepted and will be included in the Bill. However, if the Chamber is unhappy about that, noble Lords can return to the matter on Report and table an amendment to what will then be the revised Bill.
Lord Higgins: I certainly accept that the matter has been debated. It will be quite clear from that debate that neither this side of the Chamber nor those on the Liberal Benches were happy about it. I intervened at this stage because it seems to me that when we reach Amendment No. 100 we shall run into problems. However, given what the noble Baroness has said, let that be the case. We shall have to try to sort out the mess later.
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Clause 42 [Child support: appeals to appeal tribunals]:
Lord Hardiemoved Amendment No. 56:
Page 27, line 5, at end insert ("against the refusal").
The noble and learned Lord said: In moving this amendment, I shall speak to Amendments Nos. 57 to 61 and Amendment No. 141.
Amendments Nos. 56 to 58 tighten the drafting of Clause 42 and clarify which child support decisions are appealable.
As presently drafted, Clause 42 gives the circumstances under which a right of appeal relating to child support exists. However, the clause does not state explicitly which decisions can be appealed. These amendments address this issue.
The decisions which can be appealed under the amended clause will be the same as at present; namely, a refusal to make a maintenance assessment; the amount and effective date of a maintenance assessment; the cancellation of a maintenance assessment; and the refusal to cancel a maintenance assessment. This amendment does not remove any appeal rights currently held by child support clients. It merely clarifies which decisions can be appealed against.
Amendment No. 59A removes a restriction on what a tribunal can do when it allows an appeal. In contrast to existing child support appeal rules, we want tribunals to be able to determine the outcome of an appeal—where appropriate—when they allow an appeal. This amendment achieves this by removing a limitation in the Bill as drafted.
Amendments Nos. 59, 60, 61 and 141 make minor drafting changes in respect of child support appeals. If Members of the Committee wish clarification of the amendments, I can explain them in more detail. I beg to move.
On Question, amendment agreed to.
Lord Hardiemoved Amendments Nos. 57 to 61:
Page 27, line 12, at end insert ("against the amount of the assessment or the date from which the assessment takes effect").
Page 27, line 22, at end insert ("against the cancellation or refusal").
Page 27, line 24, leave out from ("of") to ("as") in line 25 and insert ("that right and, in the case of a right conferred by subsection (1) or (3), such notice of the decision").
Page 27, leave out lines 26 to 30.
Page 27, line 32, at end insert ("and
(b) such provision with respect to proceedings before appeal tribunals as the Secretary of State considers appropriate.
( ) The regulations may in particular make any provision of a kind mentioned in Schedule 5 to the Social Security Act 1998.").
Page 27, line 38, after ("decision") insert ("or assessment").
On Question, amendments agreed to.
Clause 42, as amended, agreed to.
Clause 14 [Redetermination etc. of appeals by tribunal]:
6.45 p.m.
Lord Goodhartmoved Amendment No. 62:
Page 8, line 33, leave out ("shall") and insert ("may").
The noble Lord said: Since I put down this simple and limited amendment, I have considered Clause 14 rather more closely, as perhaps I should have done earlier. It seems to me—I hope that the Committee will excuse my raising this point—that the real issue is whether Clause 14 should be in the Bill.
I am distinctly puzzled by the clause. Clause 14(1) states:
"This section applies where an application is made to a person under section 15(10)(a) below for leave to appeal from a decision of an appeal tribunal".
That links with Clause 15(10)(a) which states:
"No appeal lies under this section without the leave of the person who constituted, or was the chairman of, the tribunal when the decision was given or, in a prescribed case, the leave of such other person as may be prescribed".
Clause 15(10) provides for the usual perfectly straightforward and acceptable requirement for leave to appeal in certain circumstances. Clause 14, in effect, is requiring in certain circumstances the person who is asked to give leave to remit it for determination by a different tribunal rather than giving leave. That will produce some very peculiar circumstances.
The person from whom leave is sought will normally be the tribunal chairman. The regulations may provide for someone else to do that no doubt if the chairman is not available. That person could be another member of the tribunal or perhaps someone else on the panel. Clause 14(2) will have a peculiar and awkward effect, if the person hearing the request for leave thinks that the appeal was wrongly decided. That may arise in two different cases. First, the person from whom leave was sought was a member of the tribunal that heard the case but was outvoted. Where a tribunal is divided on a question of law, there is a strong case for sending it up to the next level to be decided by the commissioner. But in this case, that cannot happen. If the person who is asked to give leave was in the minority, of course he will consider that the decision was erroneous. That goes

435
by definition. If he were in the minority, he must consider the decision erroneous. He is therefore not only entitled but hound under Clause 14 to send the matter back for redetermination.
Clause 14(2) states:
"If the person considers that the decision was erroneous in point of law, he shall set aside the decision and refer the case either for redetermination by the tribunal or for determination by a differently constituted tribunal".
Let us say the chairman of the tribunal was outvoted. He wants to say, "It is an important and difficult case. I was in the minority. But I think the appropriate thing to do is to send it up for decision at the next level by the social security commissioner". He then has to say to the appellant, "But I cannot do that. I should like to; but because I consider the decision was erroneous, I have to send it back for redetermination".
Secondly, the person from whom leave is sought is what I might call an outsider—someone who was not a member of the tribunal that heard the case from which an appeal is sought. Occasionally it will be obvious that the tribunal made a mistake in law, perhaps by overlooking a specific regulation. That may happen more often if we have non-legally qualified chairmen, as we discussed the other day. But more commonly it will not be an obvious mistake, and the person from whom leave is sought will have to consider not only whether there is a point of law of sufficient difficulty and importance to justify the appeal, he will also have to say to himself, "Do I think that the tribunal got it wrong? If I do, I then have to send it back for redetermination and I cannot give leave to appeal".
That seems to lead to the suggestion that if at first sight he thinks that the tribunal got it wrong, he may even have to hear as full argument as may be available so that he can make up his own mind. Surely, if a person thinks that there is a point of law of difficulty and importance, he should be able to send it to the commissioner even if his own personal view is that the tribunal, or the majority of the tribunal, were wrong.
Clause 14(3) makes provision where the person from whom leave is sought thinks that the decision was right, but both the parties consider that the decision was wrong in law. If they think the decision was wrong in law and they agree on the reasons why it was wrong, there is a case for sending the case back. But, frankly, I believe that will happen rather rarely. More often, the parties will have different reasons for thinking that the decision was wrong. In those cases, surely again the person hearing the application for leave to appeal should be able to send the case to the commissioner and not back for another rehearing. What happens then if a new tribunal reaches the same view as the first? Does the case have to shuttle backwards and forwards between the tribunals?
I do not think that Clause 14 raises a point of principle. It simply introduces an ill thought-out form of procedure which is likely to stop cases going to the commissioner that should go, or require a second tribunal to examine matters again before they do go to the commissioner.
436
I would ask the Minister whether this matter might he reconsidered; there is a problem here. The Government might re-examine the drafting to try to see whether what is thought to be achieved by Clause 14 is in fact needed, and perhaps return to the matter on Report. I beg to move.
Lord Hardie: I accept that this clause introduces an entirely new provision and a new concept. The intention, again, is to speed up the process where an appeal tribunal has made an error in law by allowing the issue to be re-determined, either by the same tribunal or by a differently constituted tribunal.
At present, there is a right of appeal to social security commissioners or child support commissioners. This provision would not do away with that right of appeal, but it may dispense with the need to go to the commissioners in certain circumstances.
Perhaps I may deal first with Clause 14(3). Where it is clear to all the principal parties that the tribunal has made an error in law, the only way currently to correct that is to go to the commissioners. There are very limited exceptions to that rule. Many of the mistakes are procedural; for example, the failure by a tribunal to record properly the reasons for the decision.
Social security commissioners are overwhelmed with hundreds of cases which could be quickly and easily dealt with by a tribunal hearing. In that situation, what the commissioners do is refer the matter back to a differently constituted tribunal, or to the same tribunal to give reasons. But obtaining a commissioner's decision can take up to a year after the tribunal hearing. The outcome of that, as I said, is often simply to return the matter to another tribunal for a re-hearing. As noble Lords will see, there is a huge waste of time and resources involved in putting matters right, particularly when everyone agrees that there has been an error. We feel that claimants and appellants would be better served if the effort were spent on consideration of cases which raised issues of legal substance and dealing with them more quickly.
When a person seeks leave to appeal against the decision of an appeal tribunal, two procedures are provided for in this clause. First, as the noble Lord, Lord Goodhart, observed, if the person considering the application agrees that the tribunal erred in law, then he or she will set aside the decision. That will be done by the chairman of the tribunal or the single person. If the chairman is not available, regulations will provide for another panel member to consider the application. The case may be referred for a re-hearing to the same tribunal or to a differently constituted one.
I accept the point that we perhaps ought to look at the drafting of subsection (2) because of the concerns raised by the noble Lord. But apart from that issue, I respectfully suggest that this clause is an improvement and is of benefit to claimants. In indicating that I will examine the drafting of subsection (2), it may be that, having reflected, I shall return with the same wording. However, I certainly undertake to look more closely at the wording of that subsection.
Regarding the other points, I hope that noble Lords will accept that there is some force in the thinking behind this position—particularly where everyone agrees that there

437
has been an error, and especially a procedural one—that there ought to be a much quicker remedy to appellants than having to wait for a year for the case to come before the commissioners.
Lord Archer of Sandwell: I wholly approve of lateral thinking. This, as my noble and learned friend said, is a novel provision. I am not aware of any other jurisdiction anywhere where it has been introduced. It may be none the worse for that. It may be a pioneering proposal. However, the part which troubles me is my noble and learned friend's suggestion that, if everyone thinks there has been a mistake, then it should not be necessary to go to the commissioner.
That is not what subsection (3) says. The subsection says that if the parties think that there has been a mistake, then it does not matter what the chairman or the person acting as chairman believes about it. All that is being proposed by the noble Lord, Lord Goodhart, is that there should be some input from the chairman or whoever is acting judicially in the matter. As he says, it may be that the parties think that there has been a mistake for quite different reasons. If two parties, for different reasons, think there has been a mistake, then the chairman will have no discretion, but will have to send the matter back. That is the point which troubles me. I am not sure that that is what principally troubles the noble Lord.
Lord Goodhart: There is no point of principle here. It is simply a point of workability. When the noble and learned Lord, Lord Hardie, perhaps has a chance to examine my remarks in more detail, he will appreciate that, if the obligation to send a case back for redetermination in subsections (2) and (3) is mandatory in certain circumstances, it could lead to results that are totally absurd.
I suspect that the problem might well be cleared up in both subsections simply by making it optional on the person hearing the application to send it back for redetermination rather than by making the matter mandatory. I hope that the noble and learned Lord will re-examine the matter and return with what may well be simply a minor amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 agreed to.
Clause 15 agreed to.
Schedule 4 agreed to.
Clause 16 agreed to.
Clause 17 [Procedure]:
Lord Hardiemoved Amendment No. 63:
Page 12. line 21, after ("that") insert—
("(a) an application for leave under section 15(10)(b) above; or
(b)")
The noble and learned Lord said: These amendments relate to the handling of applications for leave to appeal to the social security commissioners. The amendments provide that, where he considers it appropriate to do so, the chief commissioner may direct that such applications be considered by a tribunal of commissioners.
438
Subsection (7) of Clause 17 provides that the chief commissioner may direct that an appeal which involves a question of law of special difficulty may be dealt with by a tribunal of commissioners. That approach, which reflects current law, already works well. Other commissioners will normally follow the tribunal of commissioners' decision when subsequent appeals raise similar points of law. That assists in the orderly development of caselaw and speeds the handling of appeals generally.
The chief commissioner, Judge Machin, has identified that not only appeals but also certain applications for leave to appeal would benefit from that approach. In recent years there have been instances where an application for leave to appeal and its determination were of crucial importance to a substantial number of other applications. Here, too, determination by a tribunal of commissioners would help ensure clarity and consistency.
Although such a power is likely to be exercised infrequently by the chief commissioner, it offers clear benefits for the development of social security law. I therefore commend these amendments to the Committee. I beg to move.
On Question, amendment agreed to.
Lord Hardiemoved Amendments Nos. 64 to 66:
Page 12, line 22, after ("the") insert ("application or").
Page 12, line 26, at end insert ("; and the presiding Commissioner shall have a casting vote if the votes are equally divided").
Page 12, line 26, at end insert—
("( ) Where a direction is given under subsection (7)(a) above, section 15(10)(b) above shall have effect as if the reference to a Commissioner were a reference to such a tribunal as is mentioned in subsection (7) above.").
On Question, amendments agreed to.
Clause 17, as amended, agreed to.
7 p.m.
Schedule 5 [Regulations as to procedure]:
Lord Hardiemoved Amendment No. 67:
Page 60, leave out lines 36 to 38.
The noble and learned Lord said: In moving Amendment No. 67, I shall speak also to Amendments Nos. 68 and 69. These are purely drafting amendments to simplify the wording in Schedule 5.
Amendment No. 67 removes the definition of a "competent tribunal" from the schedule as the other two amendments make the definition unnecessary. Amendments Nos. 68 and 69 remove references to "a competent tribunal" and insert clearer references to "an appeal tribunal or a Commissioner" and to "the Secretary of State, an appeal tribunal or a Commissioner". These amendments do not have any effect other than to simplify the wording in Schedule 5.
On Question, amendment agreed to.
Lord Hardiemoved Amendments Nos. 68 and 69:
Page 60. line 41, leave out ("or a competent tribunal") and insert (", an appeal tribunal or a Commissioner").
Page 60, line 44, leave out ("him or such a tribunal") and insert ("the Secretary of State, an appeal tribunal or a Commissioner").
On Question, amendments agreed to.
Lord Hardie moved Amendment No. 70:
Page 61. line I, after ("out") insert ("or reinstatement").
The noble and learned Lord said: I beg to move this amendment in order to put on the face of the Bill, the provision for appeals that have been struck out to be reinstated.
In the other place my honourable friend the Parliamentary Under-Secretary for Social Security explained how the powers to strike out are to be used and also how appeals that have been struck out can be reinstated. He told that Committee that appellants would be informed in writing about why their appeal had been struck out; and, if they did not agree, they could go back to the agency and make the case for it to be reinstated. I hope that noble Lords will agree that this amendment is a helpful clarification. It puts on the face of the Bill the assurances given by my honourable friend that struck-out appeals can be reinstated when it is appropriate to do so.
Earlier today my noble friend the Minister informed your Lordships that the Government intended to meet the concerns raised by the Select Committee on Delegated Powers and Deregulation. She recommended that the strike-out regulations should be subject to affirmative procedures. It is the Government's intention to ensure that strike-out procedures are fair and that there is a proper balance between the provision of a framework for a faster appeals service and preserving individual rights. This amendment confirms appellants' rights to have their struck-out appeals reinstated where appropriate.
On Question, amendment agreed to.
Lord Goodhartmoved Amendment No. 71:
Page 61. line I, at end insert—
("3A. Where regulations are made under paragraph 3 (striking out of proceedings) above they shall provide that:

(a) an order for the striking out of an appeal may only be made by a member of one of the relevant panels who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1991;

(b) no such order shall be made unless the person bringing the appeal has been given an opportunity of showing cause, within such period as is prescribed, why the appeal should not be struck out;

(c) such a person shall have the right to apply for an appeal which is struck out to be reinstated on any ground within such period as may be prescribed.").

The noble Lord said: At present an appeal can only be struck out for want of prosecution. Under paragraph 3 of Schedule 5 to the Bill there is a power to prescribe the grounds for striking out by regulation. This will, as was said in Committee stage in another place, enable appeals to be struck out on wider grounds than simply want of prosecution. They can, for instance, be struck out if there is no prospect of success or if they are
440
frivolous or vexatious. That in itself is not, we believe, objectionable. We accept that the existing power is too narrow and we do not object to prescribing further grounds by regulations, provided they are subject to the affirmative procedure. We therefore welcome Amendment No. 130, which requires the affirmative procedure for prescribing the grounds for striking out.
However, it is essential, in our view, that the power to strike out should be exercised by a panel member and not by a clerk. A clerk is someone who is appointed by the Secretary of State under paragraph 6 of Schedule 1. There must, in our view, be some point at which the claimant has guaranteed access to someone who is not an employee of the Secretary of State.
The first-year decision would be taken by someone who is an employee of the Secretary of State. We are alarmed by the prospect of an appeal against the decision of one employee of the Secretary of State being struck out by another employee and the appellant or claimant therefore never being able to get outside the loop. We believe that that would be contrary to natural justice.
The Government stated in Committee in the other place that decisions to strike out under the regulations would be taken by panel members and not by clerks, and we welcome that. However, we believe this is something which is not just desirable but is essential to ensure natural justice and it is a matter of sufficient importance that it should be in the statute.
We also believe that it is preferable that the power to strike out should be vested in not just any member of the tribunal but in a legally qualified member, and that is what our amendment states. The essential element of the amendment is that the power to strike out should be vested in someone who is at least a member of the panel.
Some strike-outs may not need legal knowledge because of a missing time limit. But if, for example, an appeal is being struck out on the grounds that it is frivolous or vexatious, whoever decides on the application to strike out would need to have an idea of what that concept means. The concept of an appeal being frivolous or vexatious is familiar to lawyers, but I venture to suggest that it is not likely to be familiar to lay members.
I assume that it is contemplated that the striking-out will effectively be ex parte—that is, that the member considering it will look at the papers and decide without hearing the views of the appellant. If so, it is obviously essential that the would-be appellant should have a chance to come back and explain why the appeal should not be struck out. We welcome the fact that there will be a possibility of reinstatement, as was mentioned by the noble and learned Lord the Lord Advocate, but here again we should like to see enshrined in the statute itself a right for the appellant whose appeal has been struck out to come back before the person who struck it out and show cause.
While entirely accepting the principle of widening the grounds of striking out, we feel that this widening brings with it an obligation to ensure in statute, not just in regulations, that any application to strike out must be heard by a member of the panel, and, if possible, a

441
legally qualified member of the panel, in order to avoid the risk that the claimant will never in any circumstances be able to have his case looked at by someone who is not an employee of the Secretary of State. I beg to move.
Lord Higgins: I am very conscious of being sandwiched between two lawyers. In view of the remarks of the noble Lord, Lord Goodhart, about laymen not understanding the concept of frivolous and vexatious, I feel that I should perhaps have consulted my wife. It seems to me that the argument put forward by the noble Lord was very convincing and I hope that we might have a reasonable response from the Minister.
Lord Hardie: I always endeavour to give a reasonable response. I start by reassuring the noble Lord, Lord Goodhart, that not only will the regulations give appellants the opportunity to make representations as to why their appeal should not be struck out; they will also enable appellants to apply for their appeal to be reinstated. The regulations will deal with how that is to be done. Whether or not that will be by making representations to the person concerned. I can certainly say that there will be provision for that.
I can give the noble Lord further reassurance. As I understand it, his concern is that any decision to strike out should be at the instance of a member of the panel, although he goes on to say that that should preferably be a legally qualified member. I can give the assurance that it will be by a member of a panel and not by a clerk or other employee of the Secretary of State. That again will be covered in the regulations.
The only issue between us is whether this member of the panel has to be legally qualified. I can assure your Lordships that persons who sit on tribunals will receive adequate and appropriate training before doing so and, in consultation with the Secretary of State and chief medical officers, the president will arrange for the training of all panel members. The training will cover areas such as relevant legislation, the powers of appeal tribunals and how those powers are to be used, together with the procedural rules relating to tribunals and commissioners. Panel members will also receive training in the conduct of hearings so that the facts can be established and decisions reached by applying the law to those facts. The president of the tribunals will be closely involved in the designing of the training programme itself, so that all panel members will be given appropriate training. It will be ultimately for the president to decide which panel members are qualified to take decisions such as striking out. If there are some who are not, then he would decide that and he presumably will have a list of people who are qualified to do that.
This amendment seeks to place on the face of the Bill the detail of procedural arrangements for striking out appeals. In our view it is more appropriate for such matters to be addressed in secondary legislation. To do otherwise would clog up the Bill with unnecessary detail. We have already indicated that in terms of the Minister's Statement today, we have accepted the
442
recommendation of the Select Committee on Delegated Powers and Deregulation about the nature of these regulations. With those assurances, I would hope that the noble Lord would withdraw his amendment.
Lord Goodhart: I think the real issue between us is whether this particular provision should go into the statute or into regulations. I very much welcome what the noble and learned Lord the Lord Advocate has said about the content of the regulations. On the whole, I do not think there is anything there that causes me particular concern but it was my feeling that ensuring that the actual striking out would only be carried out by someone who was a member of a panel was a matter of sufficient importance to justify that going into the statute, even if all the rest of the matters could be dealt with properly by regulations. However, I do not propose to take this matter further and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5, as amended, agreed to.
Clauses 20 and 21 agreed to.
7.15 p.m.
Clause 22 [Suspension in prescribed circumstances]:
Lord Hardiemoved Amendment No. 72:
Page 14, line 31, leave out subsection (4).
The noble Lord said: In moving Amendment No. 72, I should like to speak, with the leave of your Lordships, to Amendments Nos. 73, 74 and 75. The Government are putting forward these amendments for two reasons: first, to reflect concerns expressed at Second Reading; and, secondly, to deal with a technical drafting point. As regards the first of these, in response to concerns expressed by the noble Earl, Lord Russell, at Second Reading, the amendments clarify the circumstances where entitlement to benefit may be terminated following the suspension of payment of benefit. It had been the intention to explain this in regulations; but we accept the strength of the noble Earl's argument and we have decided to make this matter clearer on the face of the Bill.
The intention has always been that entitlement will terminate only where someone fails to comply with an information requirement that the Secretary of State imposes after she has suspended payment of benefit. The suspension will be lifted when the required information is supplied. If the claimant fails without good reason to do so within a specified period, then benefit will terminate. The noble Earl, Lord Russell, said that creating new grounds for this entitlement is on the level of creating new criminal offences: they are equally serious to those at the receiving end. I would certainly agree that terminating any award of benefit is a serious matter. However, while that action is a serious one, it is also one which is justified. It is one which does not infringe the rights of the claimant.
It may be helpful if I explain in more detail how this power will be exercised. Once a suspension has been imposed, steps will be taken to resolve the doubt or gather the information to decide whether the reward

443
ought to be revised. This will generally involve asking the claimant to give that information. In the vast majority of cases the matter will be resolved in a few days and the suspension lifted. However, there are cases where there is no response and under current provision there is no power to close the claim. Instead, the suspension simply continues indefinitely. On the face of it, this may seem harmless because there is no loss to the Exchequer. However, because the cases remain in the system, they can distort the statistics and the performance information; but, more significantly, they are vulnerable to fraudulent activity. It was because of this uncertainty that we added a termination provision at Report stage in another place.
If I understand the noble Earl, Lord Russell, he is more concerned about how we reach that point and so I will turn now to the procedure by which termination will take place. The regulations we intend to make under the subsection will impose a time limit within which the claimant must respond to a request for information. It will be their failure to respond which will trigger the new power. We intend to set out in the regulations that claimants will have one month in which to respond to requests for information. We believe this to be a reasonable period. It mirrors the period to be allowed in Clause 23, a separate suspension provision. It also brings clarity of the provision to claimants and administrators alike.
I would stress that while one month will be the standard period, the regulations will allow for the period to be extended if there are good reasons for doing so. I can assure your Lordships that officials will act reasonably at all times, taking into account the nature of the information to be provided and the individual circumstances. It will be at the end of the month of the extended period that entitlement will be terminated.
Finally, if entitlement is terminated, the claimant will be given a new outcome decision which, as with any decision, can be disputed via revision or appeal.I apologise to your Lordships for having spoken at some length, but I am conscious of the concerns that have been expressed about this new power and I wanted to take this opportunity to provide your Lordships with reassurances.
I prefaced the above explanation by saying that there were two reasons for bringing these amendments. I turn now briefly to the second, technical reason. Clauses 22 and 23 are separate suspension and termination provisions. Clause 23 already explicitly states that termination will follow a failure to provide information. Initially we thought we would simply add a similar provision to Clause 22. However, that would have meant either adding a reference to Clause 23, the new information requirement provision, or cross-referencing to this provision in Clause 23. Either way, this would have made the legislation more difficult to follow. Instead, to ensure that the drafting is clear, it is proposed to add a separate clause covering both examples of termination. I am pleased to have been able to explain how the new power in Clause 22 will be used. I hope that the noble Earl, Lord Russell, has been reassured
444
that the department will discharge its duties objectively and to the satisfaction of all parties. I commend these amendments to the Committee, and beg to move.
Earl Russell: I should like to thank the noble and learned Lord very warmly for what he has done. It has not abolished the gap between us but it has narrowed it very substantially, and I am very grateful.
On Question, amendment agreed to.
Clause 22, as amended, agreed to.
Clause 23 [Suspension and termination for failure to furnish information etc.]:
Lord Hardiemoved Amendments Nos. 73 and 74:
Page 14, line 43, leave out subsection (3).
Page 15, line I, after ("section") insert ("and section (Termination in cases of failure to furnish information) below").
The noble Lord said: I beg leave to move these two amendments formally. I have already spoken to them.
On Question, amendments agreed to.
Clause 23, as amended, agreed to.
Lord Hardiemoved Amendment No. 75:
After Clause 23, insert the following new clause—
TERMINATION IN CASES OF FAILURE TO FURNISH INFORMATION
(". Regulations may provide that, except in prescribed cases or circumstances, a person—

(a) whose benefit has been suspended in accordance with regulations under section 22 above and who subsequently fails to comply with an information requirement; or

(b) whose benefit has been suspended in accordance with regulations under section 23 above for failing to comply with such a requirement,

shall cease to be entitled to the benefit from a date not earlier than the date on which payments were suspended.").
The noble Lord said: I beg to move Amendment No. 75. I have already spoken to this.
On Question, amendment agreed to.
On Question, Clause 24 agreed to.
On Question, Whether Clause 35 shall stand part of the Bill?
Lord Archer of Sandwell: I apologise for interrupting the smooth flow which we had achieved. I understand the problem which Clauses 25 and 26 are intended to address.
Noble Lords: Clause 35.
Lord Archer of Sandwell: I am sorry. I misheard.
Clause 35 agreed to.
Clause 59 agreed to.
Lord Hardiemoved Amendment No. 76:
Transpose Clause 59 to after Clause 72.
The noble and learned Lord said: This is a wholly technical amendment to relocate Clause 59 into the part of the Bill dealing with benefits. I beg to move.
On Question, amendment agreed to.

445
Clause 25 [Decisions involving issues that arise on appeal in other cases]:
On Question, Whether Clause 25 shall stand part of the Bill?
Lord Archer of Sandwell: All things come to those who wait. I apologise for having twice interrupted the smooth flow of our business. As I was saying, I appreciate the problem which Clauses 25 and 26 are intended to address. Although I appreciate that there cannot be a grouping in this case, it may be in the interests of expedition if I may be permitted to mention in speaking to Clause 25 some of the matters which it has in common with Clause 26.
Sometimes a question of principle arises for discussion on a specific case and upon that decision there may depend the decision in numerous other cases. They may be first instance decisions—the subject matter of Clause 25—or they may be decisions on appeal—the subject matter of Clause 26. In either situation it clearly would be inviting chaos and be extremely profligate of time and expense to say that all the depending cases should proceed to an individual decision and that each dissatisfied claimant should then pursue such further remedy as may be open; and if they are awarded a benefit which transpired not to be payable, that should be paid and, if necessary, subsequently recovered. Clearly, of course, it would be more sensible to await a decision on the question of principle which can then be applied to all the cases. I at least would not seek to dispute that.
However, that leads to some further questions. First, who is to decide whether the outcome of a specific case really does depend on the decision in the lead case? In other words, who is to decide whether it really is a lookalike case? The Bill's answer in both situation is: the Secretary of State. But in relation to the first instance decisions, falling within Clause 25, that confers on the Secretary of State a discretion whether to put the whole process on ice, with no powers for the claimant to proceed to appeal. In relation to appeal cases, within Clause 26, the proposal is even more startling. The Secretary of State is a party to the proceedings. Should we really leave a party to the proceedings to decide whether the proceedings should be stayed and whether they really do require to await a decision in the lead case.
That has been described by Deputy Commissioner Edward Jacobs as the constitutional difficulty. It raises the question: should the tribunal not have at least a discretion as to whether the proceedings should be stayed; and if it should, then no legislation is necessary. It is open now to a tribunal chairman to direct that a particular case shall not be listed until some other event; for example, until the law has been clarified.
The problem is dealt with in the presidents' circular 9. One of the prospects floated in circular 9 is the possibility of class actions. As I understand it, my noble and learned friend the Lord Chancellor is already considering whether class actions should be generally introduced into our system. It is not a simple question
446
because one would have to ensure that all those involved had an opportunity to make representations as to whether they should be part of a class action; whether, for example, they do have a lookalike case. There are possible ways of organising this. NACAB or some other non-governmental organisation may attempt to take under its wing all the claimants concerned to see whether it is possible to organise between them how the matter should be conducted.
That brings us to the second question: is the applicant to have no opportunity of arguing whether his case really is a lookalike? He or his representative may wish to say, "But the issue in my case does not depend on a decision in the lead case. It is distinguishable for these reasons"; and someone should have an opportunity of hearing that submission and considering it.
In circular 9 it is assumed that the president would give a directive, because at the time that was drafted this proposal had not come forward. The Bill makes no corresponding provision for addressing arguments to the Secretary of State. What the Bill provides is that a decision on the question whether a claimant is entitled to some or all of the benefit claimed shall be suspended at the discretion of the Secretary of State. That would be tolerable if some of the issues addressed by the noble Earl, Lord Russell, on Monday were taken into consideration. It may be sensible not to pay the whole of the benefit until the issue is resolved. But, meanwhile, the claimant may be getting deeper into debt; losing his or her house; having no longer a meal in the larder or a pair of shoes which do not let in the rain.
My noble and learned friend was kind enough to write to me on this subject and I really am grateful to him for that. He pointed out that the Government have put down an amendment to ensure that arrears are paid back to the date of the claim. That clearly is a welcome concession. But for the claimant it is not really a solution to be assured that after you have starved your estate will be duly paid.
Administrators like to see administration conducted neatly and economically. The noble Earl, Lord Russell, made that point earlier today. They are none the worse for wanting to see things conducted tidily. However, some of us are also concerned that they should be conducted fairly. Those of us who have seen for themselves the daily lives of some of the underprivileged may be anxious to see that they are also conducted with a measure of compassion.
I agree that there are no easy, painless answers, but I hope that my noble and learned friend will, if he cannot satisfy us today, take back Clauses 25 and 26 and consider whether there may not be a fairer and more compassionate solution.
Earl Russell: I agree entirely with everything the noble and learned Lord, Lord Archer of Sandwell, has said. We have here a quite remarkable example of what appears to me to be unaccountable power. I take the point that the Secretary of State is taking a decision in which she may appear to be an interested party; and, of course, like any other human being, she is capable of error. I do not understand how such error can be

447
controlled. I hope I may be forgiven for taking a leaf out of the noble and learned Lord's book and mentioning one or two points which may concern Clause 26 as well.
Normally one would rely on judicial review to control the mistaken exercise of this power. However, when I look at Clause 26. I find in subsection (7)(b)(i) that the powers which can be controlled include,
"an application for, or for leave to apply for, judicial review of the decision under section 31 of the Supreme Court Act 1981".
I am not aware, though I am an amateur in these matters, of any case where Parliament has previously taken power to forbid the use of the power of judicial review.
Indeed, having followed some of the arguments of the noble and learned Lord, Lord Woolf, and others, I am extremely interested in the relationship between the powers of Parliament and the strength of the principles of natural justice. I believe that here Parliament is attempting to venture into constitutional territory where, so far as I am aware, it has never ventured before. It is attempting to use the power of statute to override the principles of natural justice. Whether Parliament can do that, so far as I am aware has never yet been determined. There are some types of legal case which it is much better and in all our interests not to have determined at all because victory either for one side or the other creates a tilt in the balance of power within our constitution which can be very disturbing.
As someone concerned with the principles of judicial independence, I am considerably concerned about the powers in Clause 26(2) where the,
"Secretary of State … may serve notice requiring the tribunal or Commissioner"
to do something. That the Executive can require the courts to do this, that or the other is not my understanding of how things have usually worked here. In fact, it is a possibility, the extension of which has quite alarming implications. Meanwhile, as the noble and learned Lord said, the claimant is left without benefit.
I am reminded, sorrowfully, of the story of the Englishman, Irishman and the Scotsman. The Englishman's hat blew off and fell down a well. They could not reach it, but they decided that if the Irishman held on to the top of the well and the Scotsman held onto the Irishman and the Englishmen held onto the Scotsman, he could just reach the hat. Just as the Englishman was reaching down to pick up the hat, the Irishman at the top said, "Hold on hard while I spit on me hands". The claimant, like the Irishman, may hold on, but it will not do him much good.
7.30 p.m.
Lord Higgins: I do not wish to detain the Committee for very long. I have much sympathy with the view which the noble and learned Lord, Lord Archer, has expressed with his vast experience in these matters. There would seem to be a very serious problem here inasmuch as the Secretary of State would seem to be an interested party. While, as the noble Earl, Lord Russell said, anyone can make errors, it is obviously rather more suspicious if one is made by an interested party.
448
Between now and Report stage we need to give further thought to the extent to which these matters can be resolved. I particularly take the point about people awaiting benefit, but who do not get it while this no doubt sometimes very lengthy legal process takes place.
The other point, which is a cause of particular concern, is to what extent the arrears are paid. On the assumption that meanwhile the person has not become totally destitute or homeless, one must at least hope that the arrears are back-dated to a reasonable date.
Lord Archer of Sandwell: I am most grateful to the noble Lord for giving way. In fairness, my noble and learned friend has tabled an amendment to ensure that that at least happens and was kind enough to write to me accordingly.
Lord Higgins: If I recall correctly, that refers to Clause 27. The only point I sought to make in that context was how far the arrears go back. If the case is not regarded as being in the same category as the case which arose originally, which is the lead case, do the arrears go back beyond the date when the lead case was first put forward? It may be that I have misunderstood the situation and that that is not possible. All these cases are decided centrally and it may be that they are not so interrelated in time as one would wish.
Lord Hardie: I am grateful to noble Lords for raising issues on Clauses 25 and 26. The background to this matter is that under the current arrangements adjudication officers are obliged to decide all cases put to them. Until last year the adjudication officer would decide the case, but in the vast majority of cases of the kind in question, the Secretary of State would step in and suspend the payment of benefit until such time as the lead case was decided.
Following a decision of the High Court in November 1996, the power to suspend payments of an award of benefit in look-alike cases has not existed. That has serious consequences where the lead case is decided in the Secretary of State's favour. First, it has serious consequences for the claimant whose benefit must be reduced to the correct amount, but he or she may have taken on extra financial commitments on the basis of the original incorrect award. Secondly, it has serious consequences for the taxpayer who must foot the bill for the overpaid benefit before the lead case is decided. Reference was made by my noble and learned friend Lord Archer to the question of recovery. I believe that he accepted that it is difficult to recover benefit in many cases when it has been overpaid.
Clause 25 is intended to provide a simple solution which is seen as being fair to both the claimant and the taxpayer. In future, the Secretary of State will make the substantive benefit decision and there will be no need to decide entitlement and then suspend payments. Instead, the Secretary of State can defer making a decision; in other words, she can stay a case where she considers that the outcome of a lead case would mean that there was no entitlement to benefit.

449
I can understand the constitutional concerns that have been raised. But in that regard it has to be borne in mind that we are protecting both the claimant and the taxpayer by this procedure. Customarily, claimants will not have increased benefit until the law has been settled. That is a better arrangement than the current one. As soon as the lead case is settled, any increase in benefit due can be paid immediately rather than the claimant having to wait for it to be determined by a tribunal or the commissioner.
In addition, where some benefit will still be due whatever the outcome, regulations will allow the Secretary of State to decide a case on the basis that the decision in the lead case would be unfavourable to the claimant. The benefit entitlement not affected by the decision in the lead case can then be paid. I understand, appreciate, and sympathise with the unfortunate situation that people find themselves in when benefit is suspended. We are not aiming to suspend the totality of the benefit—only the element of it in dispute in that situation affected by the lead case decision.
What amounts to a look-alike case will be drawn up by the department in conjunction with lawyers, and guidance will be issued to staff on the identification of such cases. When it has been decided that it is a look-alike case, that decision will be intimated to the claimant so that he or she is aware of the decision. In addition, an explanation will be given as to why the Secretary of State believes that it is a look-alike case and why the claimant will have to await the outcome of the lead case for either the entire benefit or, more likely, a particular part of his or her benefit.
The notification letter will also make it clear to the recipient that if he or she considers that the circumstances are different from the lead case; or if circumstances have changed or do change, or if he or she suffers undue hardship, that person should contact the agency without delay. Any response from the customer on any of those issues would involve agency staff taking a further look at the circumstances. Thereafter, a further letter would be issued explaining the outcome of that further determination. I would expect that in hardship cases relief would be given, assuming that the claimant was entitled to benefit under the hardship rules.
That is the scheme that is envisaged and it is our view that it is a prudent new provision which will reduce the level of confusion which currently surrounds the issue. It will avoid those cases, sometimes quite large numbers of cases, which require unnecessary double handling as a result of awards being made and then suspended. It will allow decisions to be deferred or payment to be made in part and revised if necessary. Any benefit due which is not affected will be paid. It would not be right to make payments when the legal position is unclear and entitlement to benefit is in doubt. Those arrangements will reduce the opportunity for over-payment, to the benefit of the claimant and the taxpayer, while affording claimants the opportunity to bring to the attention of agency staff particular hardship problems peculiar to them, which will then be addressed.
450
I turn now to Clause 26 and to a point made by the noble Earl, Lord Russell, with regard to subsection (7)(b). As I understand it, the noble Earl suggested that we were excluding judicial review. If I have misunderstood, I apologise, but if that was the suggestion, perhaps I should point out that it is not our intention to exclude judicial review. If the complainant is aggrieved by a decision to suspend, there will still be an opportunity of judicial review. The reference to "judicial review" in subsection (7) refers back to paragraphs (a), (b) and (c) of subsection (6) so that, under subsection (6), an appeal against a decision is pending, and is treated as such, if there is an application for judicial review. It is not the Government's intention to exclude the supervisory jurisdiction of the courts in England and Wales or in Scotland. I hope that noble Lords opposite and my noble and learned friend will be satisfied with that explanation.
Lord Archer of Sandwell: I appreciate that my noble and learned friend has tried hard to address the problem, and I hope that he will forgive me if I say that I am not wholly satisfied. There are three reasons for that. First, my noble and learned friend pointed out that a person can always go back to the agency to make representations and it is hoped that officials in the agency will consider any such representations. However, we are speaking of a judicial process and it is normal in a judicial process to write in the right to make representations and to have them considered. The idea that the agency will probably, if it has the time, look at the letter that one has written and that it may do something about it is not enough in a judicial process.
Secondly, there still remains the constitutional problem that, as the noble Earl said, a member of the Executive, such as the Secretary of State, is sending a direction to a tribunal. Even presentationally, there must be better ways of presenting it than that. We really must reconsider this matter.
Thirdly, as the noble Lord, Lord Higgins, said, the gist of this is the effect on the unhappy claimant. I thought that my noble and learned friend took perhaps a little too much pleasure from saying, "If only part of the benefit is in dispute, we will pay the other part", rather as though that were a generous gesture. If my noble and learned friend told me that I owed him £5 and I said that I owed him only £3 and then tendered only £3, that would be an act of justice, not of generosity. This matter requires to be addressed further. However, as I appreciate that these are difficult questions, for this evening I shall not seek to oppose the Motion that the clause stand part of the Bill.
Clause 25 agreed to.
Clauses 26 and 43 agreed to.
Lord Haskel: I beg to move that the House do now resume. In moving this Motion, perhaps I may suggest that the Committee stage begins again not before 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

The Lindisfarne Gospels
7.45 p.m.
The Lord Bishop of Durhamrose to ask Her Majesty's Government whether they would support the relocation of the Lindisfarne Gospels from the British Museum to the north east of England.
The right reverend Prelate said: My Lords, I am grateful for this opportunity to move the Unstarred Question which stands in my name and to turn your Lordships from legislation to inspiration. I could not help but be delighted to see just now a noble Lord reading the Gospels during parts of the legislative process.
I seek the mind of the Government on an issue which is causing considerable public interest in the north east of England. But the questions surrounding the location of the Lindisfarne Gospels are far from being of interest to only one region of the country. The issue touches on matters religious, cultural, social and commercial which help to shape the whole nation. I hope, therefore, that your Lordships will not interpret my question as a piece of special pleading from the north east but will seek to understand the wider implications of the principles at stake.
Your Lordships will need a little reminder of the unique place which the Lindisfarne Gospels has in the history of the country. The Roman mission in the north, spearheaded by Paulinus, after initial success ultimately failed and the region relapsed into paganism. Paulinus retreated to the safety of Rochester, a movement I have been glad to reverse. In the seventh century, Irish monks from Iona established missionary-minded religious communities at Lindisfarne, Jarrow and Wearmouth. From this base not only did the faith flourish and expand, but the monasteries became great centres of piety, learning and art.
The Lindisfarne Gospels has emerged as the most significant of a group of manuscripts produced at those monasteries in the seventh and eighth centuries. It is one of the world's masterpieces of book painting and one of the nation's greatest treasures. It was crafted in honour of St. Cuthbert and arrived in Durham with his body nearly 300 years after his death. The bodies of Cuthbert and Bede have remained in Durham to this day, together with many documents and artefacts. That is why Durham has remained a focus of pilgrimage for the pious, the curious and the scholar. The gospels remained until the dissolution of the Durham monastery, when it was brought to London and eventually found its way into the private collection of Sir Robert Cotton. In the 18th century it was made over to the nation and incorporated into the British Museum as part of its foundation collection—hence the involvement of today's Government. A bland government statement today to the effect that this is really a question to the British Library will disappoint many people in the north east. Your Lordships will note from that brief résumé that for well over half of the 1300 years of its history the Lindisfarne Gospels has been located in the north east and for only 250 years has been in the British Museum and is now housed in the British Library.
452
The Lindisfarne Gospels remains of huge religious significance. It was never simply a book from which to read but a powerful symbol of the revelation of God. As such, the gospels has been the focus of worship and veneration. But part of its significance is its association with the monastery and the remains of Cuthbert. Of course, the gospels is of great value to scholars—historians, artists, calligraphers and many others—but I am sure that they do not dismiss the contemporary religious significance as mere sentimentality. I understand that a digitalised copy will soon be available. I venture to suggest that this is ideal for scholars closely to examine the pages in a library or museum context in London.
The concept of pilgrimage is undergoing a contemporary revival. Cathedrals and other religious sites are often the focus of such pilgrimage. Durham Cathedral alone has almost half a million visitors per year. The juxtaposition of St. Cuthbert's tomb and the gospels, which was created in his memory so shortly after his death, would be a powerful and magnetic attraction for modern pilgrims who seek to recapture the holiness and values which Cuthbert made central to his life and legacy.
Closely associated with its religious significance, the Lindisfarne Gospels represents an important cultural focus. Your Lordships may be aware that the north east is one of the most clearly identifiable regions in the country. Part of this identity arises from its history and place in the Industrial Revolution. The beginning of the railway, coal-mining, steel making and shipbuilding industries can be seen in the north east. The people of the region have suffered greatly from the economic and technological revolutions of recent times. But great pride is still focused on the contribution which the region made to the wealth of the nation over the past 200 years.
Perhaps of even more lasting significance is the history of the area which defines the north east as a centre of religion, culture and artistic activity, particularly in the 7th to 10th centuries. It was this strength which enabled the region to be a fortress against invasions from the north and from the east across the sea. Many of the civic authorities look back to their foundation in this period. The interweaving of faith, scholarship, skills and creativity are still the foundations of much of the identity of the north east. The presence of the Lindisfarne Gospels would fit perfectly into this setting and enhance the sense of local cultural pride which has sustained the character of the region over many centuries and through much change of fortune.
Unless you know the north east it is perhaps difficult to grasp the social significance of its history. In the Durham dales as well as in the great conurbations people are still proud to say, "This is where St. Cuthbert walked", or, "This is where Bede wrote his great history", and they are drawn to the tombs in Durham Cathedral, which remain an icon of their identity. The grandeur of the cathedral's setting should not conceal that it is very much a people's cathedral where schoolchildren flock in their thousands and ex-miners

453
still bring their banners. The presence of the Lindisfarne Gospels in the north east would greatly enhance this sense of history and identity.
Of course, I must declare an interest in all this, especially as I deal now with the commercial aspect of this possible move. It is worth noting that tourism is a fast-growing industry in the north east. While prudent planning has attracted much inward investment and new industry, both urban and rural areas are finding new employment opportunities in the tourist industry. The region is developing as a centre for the arts, and many historical sites are interlinked as attractions to visitors. A great deal of lottery money has recently found its way to the north east, and for that we are very grateful. There are new arts centres on the south bank of the Tyne and major new projects north of the Tyne in Northumbria. Four universities—one of the greatest, dare I say, being Durham itself—attract scholars from around the world and many who go to those universities are medieval history students. It has been said to me that the gospels must stay in London for the sake of accessibility to scholars worldwide, yet these days access to the north east is easier than to central London from many parts of the world.
I recognise that to move such an important and irreplaceable treasure could take place only after a great deal of consideration and planning. I do not ask that the gospels be moved without proper provision for its security and preservation; nor do I raise questions of ownership. I simply ask the Government and the British Library to consider three steps of a long-term plan: first, let the north east display a digitalised copy as a token of good will and earnest expectation; secondly, allow the Lindisfarne Gospels itself to visit the north east, with due care and preparation, at the time of the millennium; thirdly, when the first two stages have given all concerned the opportunity to reflect on their success, openly and publicly to consider the gospels' permanent placement in what I believe is its rightful home. I look forward to other contributions on this matter and to the Government's response.
7.56 p.m.
Lord Strabolgi: My Lords, I am sure that all noble lords are grateful to the right reverend Prelate the Bishop of Durham for raising this important subject. I have listened carefully to his speech. I realise that some people in the north east hold deep feelings on this matter, which is understandable. I have always been drawn to this period. When I was much younger I made a special study of the art and manuscripts of the early Saxon period with particular reference to the age of Bede.
The manuscript known as the Lindisfarne Gospels is one of the most important national treasures in the country. Although I note what the right reverend Prelate has said, it is essential that the gospels be kept in the nation's capital in the National Library. I believe that is important for several reasons. The manuscript on vellum dating from about 700 AD must be kept with other national treasures in controlled environmental conditions in cabinets with special lighting. It should be
454
kept in London where it can be compared with other items of Anglo-Saxon art, such as the treasures from the Sutton Hoo ship burial now in the British Museum and other manuscripts in the British Library from the early Anglo-Saxon period.
The gospels should also be displayed where it can be seen by the maximum number of people. I understand that 1 million visitors a year are expected in the new public gallery of the British Library which is to open on 21st April. That has been made possible by the generous gift of —1 million by Mr. John Ritblat. The Lindisfarne Gospels has been one of the most important treasures in the British Museum for the past 250 years when this manuscript was bequeathed to the nation—the whole nation—by Sir John Cotton, the grandson of Sir Robert Cotton, the great 17th century antiquary and collector of early medieval manuscripts.
A permanent transfer to Durham would, I suggest, create a dangerous precedent. How many other claims would follow? At all events, any transfer would require primary legislation by Parliament. I believe that the worst solution of all would be for the gospels to be shuttled backwards and forwards between London and the north east, with possible adverse effects through being subjected to varying climatic conditions and the danger of damage in transit. I do not suggest that vellum should be compared with marble, but the fate of Canova's Three Graces, which has suffered a crack through constant journeying between London and Edinburgh, should be a warning.
I strongly believe that the Lindisfarne Gospels should remain in the British Library, which is one of the world's great libraries, a centre for international scholarship and serving a huge range of people both here and throughout the world.
8 p.m.
Baroness Rawlings: My Lords, I agree wholeheartedly with the right reverend Prelate the Bishop of Durham. The Lindisfarne Gospels is a masterpiece and an outstanding historical, artistic and religious artefact. I thank him for initiating this debate so eloquently. I disagree though with the practical implications drawn from the judgment by those who campaign for the gospels to be relocated to the north east of England. Like the noble Lord, Lord Strabolgi, we firmly believe that the gospels should remain in the British Library in whose care it has been for the past 25 years.
In 1972, the British Library Act amalgamated a number of institutions, including the library of the British Museum, to where the gospels were moved in 1753. We do not object to the relocation on the grounds that security and environmental control arrangements may be insufficient in the proposed locations, whether it is Durham Cathedral or the Laing Gallery in Newcastle. They can be upgraded, even if some campaigners greatly underestimate the cost of so doing. Nor do we object to the relocation on legal grounds. As noble Lords will be aware, the terms of the British Library Act forbid the library to dispose of any articles that have been transferred to it from the British Museum.

455
The Museums and Galleries Act 1992 relaxes that provision by allowing transfers between certain institutions, but those are, by and large, only national museums, galleries and libraries. A permanent transfer would therefore require legislation. If there were a sufficiently strong case to relocate the gospels, the law could obviously be changed. As the very division within the campaign suggests, arguments which back the case for relocation are weak.
It is argued that the gospels is a sacred text and should be kept in a sacred place in the historical and natural context of where it was made; keeping it in the British Library secularises it and tears it away from its roots. I am surprised by that interpretation of the meaning of "sacred" and "context". My understanding is that the core of the Christian message is to extend the domain of the sacred from the narrow confines of the temple and the law to the whole of life. Furthermore, the message of salvation is not just for one people but is universal. Accordingly, there is no necessity for sacred texts to be kept within a sacred precinct. Indeed, they should be made accessible to as many people as possible:
"to the many., not the few"—
dare I quote the Secretary of State?
Furthermore, normally when we speak of studying something in its context, we mean in its cultural context, not in its physical context. If the argument that a work of art should be studied within its physical context were to be taken to its logical conclusion, most of our collections would explode and be scattered to the four winds.
I acknowledge however the importance of the gospels to regional identity, but it would be wrong for it to be politicised and used to strengthen the case for regional government. We oppose the introduction of regional government. It would take away powers from local authorities and add yet another tier of bureaucracy.
Our view is that the gospels should stay in the British Library. The British Museum, that great centre of excellence, has firmly taken a similar line. It has refused the permanent return of the Lewis Chessmen to Stornoway and the Lindow Man found in Cheshire to Manchester. Both the library and the museum have international standing and enormous scholarship and ensure free access seven days a week to a vast public from all over the world. The British Library expects, as the noble Lord, Lord Strabolgi, said, 1 million visitors a year to its new exhibition galleries at St. Pancras, provided by the generous donation of Mr. Ritblat. Access to the gospels will be further widened by means of the turning-the-pages computer animation system. In comparison, the Laing Gallery in Newcastle, where the gospels was exhibited in 1996, attracted only 72,000 visitors over three months.
The library houses also the greatest collection of medieval illuminated manuscripts in the world. It allows the gospels to be studied alongside them and other great national treasures. It can also provide the expert care it requires in optimum storage and display conditions. We urge the Minister to continue to back the British Library's position: that the public interest is best served by the library remaining the prime home of the gospels.
8.5 p.m.
Lord Birkett: My Lords, I must first declare an interest because I am the chairman of the National Sound Archive. There is no connection between the NSA and the Lindisfarne Gospels, but it is part of the British Library and so I may be thought to be parti pris in the matter.
I am pleased that the right reverend Prelate welcomed the electronic turning-the-pages device because it is imaginative and has an enormous future. Turning the pages electronically is very much better than turning them manually when, as I understand it, the curator is occasionally allowed to turn the pages but not unless he has a technical expert at his side. That device is a welcome idea not just for the north east but for London and many other places.
I can see the idea being extended. Illuminated manuscripts and books of all sorts are ideally suited to such a technique. I can imagine applying it to the four gospels published by the Golden Cockerel Press in the earlier years of this century, and magnificently illustrated by Eric Gill. At least I would have suggested that had not the British Library suffered such swingeing cuts in its income.
Although I admire the eloquent advocacy in this matter of the right reverend Prelate, I, too, am of the opinion that the permanent home of the Lindisfarne Gospels should remain in London. The right reverend Prelate spoke of pilgrims. Pilgrims come to the British Library. They may not be wholly or partially religious pilgrims; they may easily be scholarly pilgrims. They come because the collection of illuminated manuscripts in the British Library is second to none. It may be second to the Vatican, but I am not sure. There may be an argument between the two libraries about that.
As the noble Baroness, Lady Rawlings, said, it is in the context of other treasures that many scholars want to see the Lindisfarne Gospels and not just for their own sake. There is beginning to be, not just in this country but around the world, a fashion for reclaiming works of art and objects of historical interest. The reductio ad absurdum of that movement would be that every nation had only its own national treasures; that all the Patinirs, the Breughels, Rembrandts and Van Goghs in the world would only be in Holland. The Italians would groan under the weight of their renaissance treasures. There would not be a Benin bronze except in Benin.
That is obviously a reduction ad absurdum, but the reallocation of things around the world would cause chaos in the world of museums and libraries and do very little good. I believe that there is a great deal to be said for finding objects that one would not expect in a national or local collection. The mixture of the world's treasures is only to be welcomed. Property obtained as a result of looting during wars should be returned. Here we are dealing with the Lindisfarne Gospels. It must be over four centuries since Sir Robert Cotton first acquired them, and nearly three centuries since his grandson gave them to the nation. So in this case, as in many others, we should resist this interchange of art around the world, and keep things much as they are.
8.10 p.m.
The Earl of Carlisle: My Lords, it is always fun to follow the noble Lord, Lord Birkett. He mentioned looting. In my opinion, the Lindisfarne Gospels, where they lie at present, are stolen property. His late Majesty of happy memory, King Henry VIII, removed them from the custody of the Prior of Durham in 1537. They were bought by Sir Robert Cotton, into whose family my family married, and then they became part of the collection of the British Museum. They should be returned to the place from which they were stolen—that is Durham Cathedral—or Chester le Street. They were stolen because of their sumptuous gold binding. It was removed but a new binding was made in the 19th century.
It is a privilege to be a Member of this House, to take part in this debate and to follow the 93rd Lord Bishop of Durham. The right reverend Prelate, who is one of the busiest men in Europe, has corresponded with me and I am grateful for his advice, wisdom and guidance. He urged me to make a vigorous contribution. I shall do so in the same way as his forebears urged my predecessors in the north of England to make a vigorous contribution at the Battle of the Standard in 1138, at Neville's Cross in 1346 and at Flodden in 1514. Then we faced an enemy from the north; today the opponent is in the south in London.
The right reverend Prelate mentioned the cultural, spiritual, social, economic and commercial issues. I put them into one group, which is regeneration. I declare an interest. For four years I lived in Durham, in Easington village. During that time I fought three elections; in the old English kingdom of Bernicia, in Northumbria and in Durham. I was well aware of what happened in the 1080s when of the map of Britain and the Domesday Book, the Conqueror said hie est vasta; this is waste.
Lord Stockton referred to the descendants of the men who beat the Kaiser. The north needs to go through a regeneration; a spiritual, economic, social and cultural regeneration. What better way of starting and continuing that regeneration by returning the Lindisfarne Gospels to Durham?
I was most disappointed by the handout from the British Library. The Secretary of State states that the Gospels can have only one permanent home. I assume that he means the British Library. If he had said that they should have one permanent home which is Durham Cathedral, I would be happy. The British Library is allowing the north to have what I would call a print out with rotating pages. That is unsatisfactory and most disappointing.
The Museum and Galleries Act 1992 provides that certain objects can be transferred between institutions. If primary legislation is required, I hope that the Government will allow time for a Bill to be presented in another place by the Member of Parliament for Houghton and Washington East, Mr. Fraser Kemp. Perhaps the Minister will tell the House whether time will be given for such a Bill and whether the Government will support it. Already an Early Day Motion has been tabled which has attracted 60 signatures, some of whom are Members on the
458
Government side. Secondly, will the Minister tell the House how many days a year the British Library will make available the Gospels for public viewing? We cannot yet see the Lindisfarne Gospels until 23rd April.
There are precedents. I hope that the Dean and Chapter of Durham, who I am sure will receive the support of everyone in the north east in asking for the gospels to be returned, will cite as examples the Stone of Scone, which has been returned to Edinburgh; the Bayeaux Tapestry, which is extremely well presented in Bayeaux; at the way in which the Canterbury Gospels are displayed in Canterbury; and at the Book of Kells in Trinity, Dublin.
I lived for one year in Braunschweig near Wolfenbiittel. The Herzog August Library and the Getty Museum generously allowed the William the Lion Psalter to be displayed in the Wolfenbiittel library. That is a magnificent display. I should like to see the Lindisfarne Gospels in Durham Cathedral not only alongside the tomb of Bede and the Shrine of Cuthbert but also alongside their companions, the Durham Gospels. I salute the Lord Bishop.
8.15 p.m.
Lord Murton of Lindisfarne: My Lords, the origins of the Lindisfarne Gospels are closely connected with the great Northumbrian Saint and Bishop, St. Cuthbert. Indeed, the book containing the gospels was written and illuminated in his monastery on the island of Lindisfarne around 698 AD by the monk Eadfrith, 11 years after the death of St. Cuthbert. A tailpiece or colophon inserted in the book some 250 years later makes it clear that the book was dedicated specifically "For God and St. Cuthbert".
The book itself is a remarkable example of a fusion of Roman, Celtic and Anglo Saxon styles and it is, in this context, one of the greatest works of art ever produced in this country. Written in the Latin of St. Jerome's Vulgate, it was later interlined with a translation into Anglo Saxon in the 10th century by the monk Aldred. This is not the time or place to attempt to describe in detail this amazing work depicting the Four Evangelists, the elaborate carpet pages, the comparative or canon tables on the four gospels and the list of liturgical readings and related matters. A finely illustrated book by Janet Backhouse in the Department of Manuscripts in the British Library has provided a definitive masterpiece on the subject.
All I wish to do is to underline the fact that the Book of the Gospels remained close to the body of St. Cuthbert for the next 841 years until Henry VIII's commissioners arrived at Durham; and also to describe briefly something of its earlier history.
In 875 AD, the monks of Lindisfarne and their followers had fled in the face of Viking raids on the Northumbrian coast, taking with them St. Cuthbert's body, the Gospel Book and other treasures. They wandered the north of England and south-west Scotland for seven and a half years before coming to rest at a monastery at Chester le Street in what is now County Durham.

459
In crossing the Solway Firth on their way to Scotland, with the ultimate intent of reaching Ireland, they lost the book overboard in a storm. Miraculously, it was found unharmed on the northern shore at low tide the following day. Over the years, historians have attempted to trace the route of these wanderings by reference to the list of the more ancient churches dedicated to St. Cuthbert.
After 113 years at Chester le Street, further raids on the north-east coast caused the little community of monks to move temporarily to Ripon. It was on their way back that the well-known legend occurred. The horse-drawn cart carrying St. Cuthbert's bier and the book broke down and became immovable at a place called Dun Holme. This was taken as a sign that the saint wished this to be his final resting place; so a little church was built for him at Durham.
However, the monks had to flee again; this time back to Lindisfarne. The date was 1069 and the threat was Duke William of Normandy, who had embarked upon a punitive expedition against his new and unruly subjects in the north. William retired south, having laid waste to Northumbria, and the monks returned to Durham. In 1093, work began on the great cathedral church to be raised in St. Cuthbert's honour.
St. Cuthbert's shrine in Durham remained undisturbed until 1539 when the commissioners of Henry VIII desecrated it and removed all its treasure to the Jewel House in the Tower of London. The Lindisfarne Gospels must have been included because later they came to light, despoiled of their jewelled and gilded covers, in the possession of one Bowyer, the Keeper of the Records in the Tower.
From Bowyer, the book passed into the ownership of Sir Robert Bruce Cotton, a distinguished antiquary who was MP for Huntingdon in 1604. His magnificent library ultimately was given to the nation by his heirs and it became one of the foundation collections of the British Museum in 1753.
Durham Cathedral's Treasury is fortunate in possessing the fragments of the innermost coffin of the saint, together with his pectoral cross, his portable altar, his ritual comb and vestments placed later in the coffin by King Athelstan in 934AD.
The British Library has the St. Cuthbert Gospel of St. John—known as the Stonyhurst Gospel—of the 7th century, found in the coffin of St. Cuthbert when his body was placed in the cathedral shrine in 1104. And, of course, the library holds the Book of the Lindisfarne Gospels itself.
Both those books are historically of the first importance to this nation. They are national treasures and they should remain together in the British Library where indeed the Gospels of Lindisfarne have now been for close on 250 years.
8.21 p.m.
Lord Quirk: My Lords, I would not have ventured to speak on this subject had I not had the benefit of lengthy discussion with my friend, Professor Eric Stanley of Oxford. His learned observations so enriched my own views as to dispel my diffidence.
460
But first I should declare an interest—in fact, two interests. I confess a loyalty not only as one honoured with a Durham doctorate but as one who worked there as a professor in the 1950s. Already then there was much talk about repatriating the gospels, talk no doubt given fresh impetus by contemporary arguments for the transfer from Copenhagen to Reykjavik of precious saga manuscripts collected 300 years earlier by Arni Magnusson.
So I have sympathy with those who would move the Lindisfarne manuscript back to Durham, if not indeed to Northumberland where, as we have just heard, it spent its first 100 years, or to Chester-le-Street which was its home for the next 200.
But I declare also my loyalty to the British Library, having just completed a stint of 13 years as advisory committee chairman. If it had not been for the scholar, Sir Robert Cotton, this beautiful manuscript would very probably have vanished. Instead, it has been on display in Great Russell Street to many generations of admiring visitors, and from the 21st of this very month it will be on even grander display in the new British Library at St. Pancras. And there, in my view, it should stay. Care has always been lavished on the book with all the scholarly and technological expertise so richly available in this national library. As has already been mentioned, the latest achievement is an electronic viewing system providing high quality digitised images shortly to be enjoyed in the north east through an agreement with the Northumberland County Council.
History has played some very odd tricks with medieval manuscripts. What is the unique Gothic bible, the Codex Argenteus, doing in Uppsala rather than somewhere in Germany, perhaps Aachen? What is a unique codex of Anglo-Saxon poetry doing in Vercelli, halfway between Turin and Milan? Well, provided such treasures are properly cared for—as these are—they contribute to the charm of museum visits and to the wider dissemination of unfamiliar cultures. So I shall not be pressing the Prime Minister as president of the European Union to seek repatriation of the Vercelli book, any more than I would want to see the Book of Kells moved from Trinity College, Dublin, back to Ceanannas Mor where it was created over a millennium ago.
In any case, if Durham seeks repatriations, why start with the Lindisfarne Gospels? Why not the manuscript of St. John that was once actually in St. Cuthbert's coffin but which is now in the library of Stonyhurst College in Lancashire? Or what about the Codex Amiatinus, the grandest of all Vulgate bibles, written in Bede's Northumbria but now where? Not in the Vatican, where it was presumably headed, but in the Medici Library in Florence where it is virtually inaccessible to anyone wanting to see it. I give a further example. For nearly 200 years, major work by the Venerable Bede in another early Northumbrian manuscript has reposed in what was the Imperial Library, now the Public Library, in St. Petersburg.
I would not myself campaign for any of these manuscripts to be moved, but since the Lindisfarne Gospels are a national British treasure long since cared

461
for in the national British Library, I respectfully put it to our friends in the north east that there may be more appropriate targets.
Perhaps I may end by venturing another word of advice. Once moves begin, where will they end? The right reverend Prelate will know that among the precious manuscripts in Durham's Chapter Library, one used to be in Hexham, another in Somerset's Witham Friary, another in York, another in Coventry. My Lords, need I say more?
8.25 p.m.
The Viscount of Falkland: My Lords, I find myself in a difficult position this late in the debate. The eloquent and elegant advocacy of the right reverend Prelate carried me along completely. I can see the force of his feelings and his arguments when he represents obviously deeply held feelings in the north east in wishing that priceless manuscripts of this kind should find their way to their original location. At least as a result of his speech, I shall find my way to Durham very shortly, which I have not visited since I was a recruit at Catterick Camp when I was doing my national service. I have passed it many times and felt like taking a detour on my way further north. This year, I shall certainly do that.
The arguments are interesting on both sides. They lead on to other issues which may possibly engage us in your Lordships' House at a later stage. For example, there is a need for a balanced strategy between the conservation of our heritage and our culture against the imperatives of tourism. A debate on that subject would not go amiss in your Lordships' House.
Of course, as the noble Lord, Lord Birkett, and other noble Lords have pointed out to us, it is ironic that we should rather illogically now be so keen—not only us British but other countries—to gather together into one place works of art or pieces of culture which are perceived to belong rightfully in those areas when in fact nowadays, with all the benefits of travel and communication, as noble Lords have said, there is no real reason why we should worry too much that, for example, all Turner or Constable paintings should be collected together in one place. In a way, it is a pleasant surprise to visit a gallery in another country and find British paintings or to go to a German gallery and find Italian paintings or sculpture.
Therefore, I am extremely sympathetic to the views of the right reverend Prelate, backed up by the passionate, as usual, advocacy of my noble friend Lord Carlisle. I am extremely grateful to my noble friend for giving me some very interesting reading material which, together with the interesting speech of the right reverend Prelate and by delvings into Encyclopedia Britannica, I at least go out of this debate a better-educated person.
However, the arguments for keeping such valuable manuscripts in the British Museum are, on balance, compelling. After all, the cost of keeping such pictures, sculptures and manuscripts in the condition in which they should be kept is extremely expensive. For example, a manuscript needs to be inspected every day.
462
It needs to be seen that there is no deterioration and it must be kept in the right atmosphere and the right light. I ask rhetorically, how would we know—and perhaps the Minister will be able to tell us; indeed, he may even sing to us—how it will be financed if these manuscripts are taken back as suggested by the right reverend Prelate?
How can we be sure that there will be the necessary income to maintain the manuscripts in the way that they are being maintained now in the British Museum if funding is uneven and if, for example, through pilgrimage or tourism, the income cannot be created to maintain that level of care? Many people will read the report of our debate tonight and they will also be interested to know the answers to these questions. Perhaps the Minister will be able to give us some of them.
8.31 p.m.
Lord McIntosh of Haringey: My Lords, what does the noble Viscount want, a Gregorian chant? The whole House will be grateful to the right reverend Prelate for raising the matter and permitting what has been a brief but remarkably well-informed debate. I am selfishly especially grateful to him because, when he tabled the Question, I took the opportunity to go to see the Lindisfarne Gospels and they were shown to me personally. I must say that that was a revelation and a wonderful experience. I had already visited Lindisfarne Holy Island and Durham Cathedral, so I view the matter objectively, I hope, both from the point of view of where the gospels are now and where it is proposed that they should be returned to.
I suggest to your Lordships that there are three basic issues that we have to consider for the Lindisfarne Gospels and for all comparable treasures. First, there is the issue of availability for scholarly research; secondly, there is the issue of public access; and, thirdly, there is the issue of conservation.
As for scholarly access, the gospels are peculiarly important for scholars because they contain not only a good version of the Vulgate Latin but also the first known translation into Old English of the gospels. Therefore, scholars of Old English, as well as Biblical scholars, need especially to be able to see them. The right reverend Prelate suggested that it would be possible for scholars to look at the computer images on the electronic viewing system, of turning-the-pages. I have to tell him that I believe he is wrong; indeed, scholars need to see the original. For example, they need to be able to see erasures and the pricking of the vellum which laid out the lines and the images rather than see a computer image. As is well known, scholars do come to the British Museum to see the gospels and the other treasures in the department of manuscripts. They come especially from elsewhere in London, from Ireland and also from the United States. Therefore, from that point of view, I suggest that their location in London is the more appropriate.
I turn now to the issue of public access. This is not simply a matter of numbers. My noble friend Lord Strabolgi referred to the number of visitors when the

463
manuscript went to the Laing Gallery in Newcastle in 1996. At present 6 million people visit the British Museum each year. As my noble friend said, it is expected that there will be 1 million visitors to the new John Ritblat Gallery in the British Library after it opens on 21st April. I should tell the noble Earl, Lord Carlisle, that the intention is that the gallery will be open on all normal opening days; in other words, there will be no restriction on its access.
It is indeed the John Ritblat Gallery which provides a very powerful argument for the retention of the gospels in the British Library. First, there will be free admission, as is the case with the British Museum and the British Library at present. Secondly, it will be quite a remarkable new gallery for which, as the noble Baroness, Lady Rawlings, said, £1 million has been given most generously. It will be for manuscripts and will include some of the greatest manuscripts in Christian history—for example, the Tyndale New Testament, the Codex Sinaiticus, Gutenberg's Bible, the Sforza Hours and other manuscripts less related to the Christian religion such as Shakespeare's first folio and the manuscript of Handel's "Messiah". Therefore, in itself, it will be an astonishing place of display.
Moreover, as other noble Lords have recognised, the gallery will also have the enormous benefit of the turning-the-pages viewing system, which uses computer animation and digitised images, together with touch-screen technology, to provide access not only to the one page which can be opened on any one day but to all of the 15 illustrated pages and, if necessary, to a sample of the remaining 240 text pages of the gospels. It will possible for every visitor to see all of the gospels, especially the illustrated parts. By using touch-screen technology, it will be possible to zoom in on the wonderful details of birds, cats and individuals and the images of the saints themselves. Noble Lords must believe me when I say it is astonishing stuff. It will be seen much more clearly through turning-the-pages than it ever could be by looking at it in a glass case.
Indeed, the whole thing reminds me of the programmes that my wife, as a senior commissioning editor on education for Channel 4, commissioned in her educational series. I have in mind in particular programmes on the stained glass windows high up in the cathedral at Chartres or on Elizabethan miniatures. That sort of technology provides for better access than could ever be achieved in any other way; indeed, better access than could ever be achieved by seeing it oneself in the place of origin. Noble Lords may remember staring up at the high windows at Chartres and recall how frustrating it is not to be able to see such noble images in detail. That is a powerful argument for the work of the British Museum. If any noble Lord doubts me, he should look at the Magna Carta, which is already on the British Library website.
The third issue is that of conservation. In physical terms the John Ritblat Gallery will have the environmental controls that are necessary: it will have controlled temperature, controlled humidity and controlled lighting. It is essential for a manuscript of
464
this kind to have such controls and to have optic lighting. But there is more to it than that. Conservation requires the availability of trained conservation staff who will be able to examine the gospels at regular intervals to make sure there is no change in their condition.
At the end of his speech the right reverend Prelate proposed a three-stage process, as he called it. First, he asked that the turning-the-pages technology should be available in the north east. On 17th March the British Library agreed with Northumberland County Council that turning-the-pages technology would be available in the north east. I can tell the right reverend Prelate without hesitation that the first of his requests has already been granted. Secondly, he asked that there should be generous loan facilities. I can answer that in the affirmative too. Discussions are taking place between the British Library and the North of England Assembly. At a cordial meeting on 20th March it was agreed that the North of England Assembly should propose that the gospels should be loaned to the north east at about the time of the millennium.
Thirdly, the right reverend Prelate requested that we should consider the gospels' permanent location. I think this evening we have considered the gospels' permanent location. I think the majority of your Lordships have concluded that it would be right for them to stay where they are. We are not relying on legislation for that. Of course the British Library Act could be changed if necessary. We are not being legalistic about it. However, the fundamental point is that made by the noble Lord, Lord Quirk, in a devastating speech; namely, that to return works of art to their original homes would be—if that were allowed to commence and continue—a wholly self-defeating exercise. It would not just break up collections—of course, it would do that—but it would deny the vast majority of people all over the world the opportunity to see at first hand the whole range of the artistic treasures of the world.
Occasionally if I have some free time after leaving the Department for Culture, I visit one room in the Sainsbury Wing of the National Gallery. In that room, which contains works of art up to 1510, I see medieval altar paintings stolen from Italian churches. They are not just paintings which could be hung anywhere but entire altar paintings. Is it suggested that they should be returned to churches, some of which are now demolished? I do not think so. I hope it will be agreed that an effective case has been made for the retention of the gospels in their present location as the most generous and imaginative way of making them available to the people of the north east of England.
I beg to move that the House do now adjourn for three minutes.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.43 to 8.46 p.m.]

Social Security Bill
House again in Committee.
Clause 27 [Restrictions on entitlement to benefit in certain cases of error]:
Lord Hardiemoved Amendment No. 76A:
Page 17, line 28, at beginning insert ("Subject to subsection (1 A) below,").
The noble and learned Lord said: In moving Amendment No. 76A I wish to speak also to Amendments Nos. 78, 79, 81, 85, 85A, 87, 91 to 97 inclusive, 132, 147E to H inclusive, 147J and 147M.
Amendments Nos. 87, 97 and 132 relate to entitlement to arrears where claimants have obtained a revision of the Secretary of State's decision. The other amendments will ensure that the provisions of Clauses 27 and 44 and paragraph 47 of Schedule 6 comply with European Community law requirements to provide an effective remedy. They will also ensure compliance with the European Convention on Human Rights (ECHR) which requires a proper determination of civil rights.
During the Bill's Second Reading in this Chamber the noble Lord, Lord Goodhart, raised concerns regarding Clause 27 and its compliance with European legislation. I am grateful to him for that. I shall explain the purpose of our amendments. I am also grateful to the noble Earl, Lord Russell, who also raised concerns about Clause 27. I hope that I shall be able to satisfy the noble Earl's concerns.
It may assist the Committee if I briefly explain the purpose of Clause 27 before I explain why the amendments have been proposed. Clause 27 deals with restrictions on entitlement to arrears of benefit following a decision by a commissioner or a court which overturns the previous view of the law. The clause replaces and clarifies existing provisions in Sections 68 and 69 of the Social Security Administration Act 1992. These provisions are complicated and have been subject to legal challenge.
The clause applies where a commissioner or a court makes a decision in a case which reinterprets the law in a particular area. But the clause as originally drafted provides that only the person involved in that case will have any increase in his benefit entitlement paid from the date of the original decision. All others affected by the new interpretation of the law would have had any increase paid from a common date set in regulations. That approach was intended to safeguard public funds.
However, in the light of what was said at Second Reading, we have looked again at the construction of the clause and have concluded that to ensure compliance with European law—and to satisfy, at least as far as possible, the concerns of noble Lords opposite—amendments are required.
Amendments Nos. 76A and 85A will ensure that when the outcome of an appeal overturns an understanding of the law, arrears will be payable in look-alike cases where the Secretary of State withheld making a decision as a decision in a lead case was pending; required an appeal tribunal or a commissioner to refer a case to her so that she could withhold making
466
a decision until after the lead case was decided; and where the Secretary of State supersedes the decision of a tribunal or a commissioner as a consequence of the decision in a lead case. I hope that that will answer the question posed by the noble Lord, Lord Higgins, when we discussed Clauses 25 and 26.
Amendments Nos. 91 and 96 provide similar provisions for child support in Clause 44 as do Amendments Nos. 147E and 147M, which relate to paragraph 47 of Schedule 6.
Amendments Nos. 78, 79, 81 and 85 will ensure that people who have lodged an appeal against a decision before the date of the commissioner's or court's determination in the lead case will have any arrears of benefit paid from the date they become entitled to the relevant benefit. This will ensure that where claimants have done all that they could to correct an error by appealing, they will not be disadvantaged when the point of law in a lead case is decided favourably to them.
Amendments Nos. 92, 93, 94, 95, 147F, 147G, 147H and 147K will ensure that similar provisions will apply where a person has appealed against a child support decision before the date of the commissioner's or the court's determination in the lead case.
The restrictions on payment of arrears will still apply to claimants who did not appeal against the Secretary of State's decision and are nevertheless affected by the re-interpretation of the law. Amendments Nos. 87, 97 and 132 will clarify in the Bill and in the Social Security Administration Act 1992 that this includes claimants who obtained a decision from the Secretary of State, or a revision or supersession of that decision but did not subsequently appeal. Claimants in this position will have any change to benefit or maintenance applied from a common start date—the date of the "determination" of the commissioner or the court in the lead case.
The department always seeks to act within the law. However, there are occasions when a long-standing interpretation of the law is overturned by the courts. Without a power to restrict arrears, the new interpretation could mean that increased benefit would be payable to large numbers of people from the date of their original benefit decision. Allowing windfall payments of arrears of benefit for past periods following a reinterpretation of the law would not be an effective use of limited resources.
The department spends £100 billion of public money each year. We want to make sure that expenditure is focused where need is greatest. This clause, as amended, will mean that the department can fulfil the requirements of European Community law and the European Convention on Human Rights while at the same time exercising proper stewardship of the public purse. It makes sure that changes in interpretation of the law do not result in large unforeseen public expenditure consequences to people who have not made the necessary application. What is more, trawling through thousands of cases to find the ones affected would cost time and money—money better spent on improving services for all claimants.

467
I hope that I have assured the Committee that the amendment will ensure that the Bill's provisions restricting benefit entitlement in these circumstances comply with the requirements of European Community law and the European Convention on Human Rights.
Perhaps I may again acknowledge the constructive contributions made at Second Reading on this clause. I trust that the amendments will reassure the Committee on the concerns voiced during that debate. I beg to move.
Baroness Anelay of St. Johns: First, I confirm that the explanation given by the noble and learned Lord satisfies the points previously made by my noble friend Lord Higgins with regard to arrears.
I have to take issue—that may be too strong a word—on a few points. I am somewhat bemused by the explanation given by the Minister. Had it come from Members of our Benches when we sat on the other side of the Chamber, it might have raised more than just one eyebrow of those who belong to the Minister's party. I am pleased to hear the Government taking such great care of the national purse. However, I question the use of the word "windfall" in this context. I am aware that there are occasions when a policy intention is frustrated unexpectedly. What one had thought was the law is not the law because of the way it has been determined in another place. That can happen, and people can find themselves eligible to receive benefits to which they did not appreciate that they were entitled but hoped that they were. I would not call that a windfall. I would have said that that was the money to which they were entitled. Whether those people consider it a bonus is another matter. I believe that they would simply consider it as benefit to which they were entitled and upon which their case had been proved.
I welcome the fact that the Government have approached the problem of the incorporation of the European Convention on Human Rights in the Bill. Perhaps I may be somewhat cheeky and venture to suggest that this is the first Bill going through your Lordships' House where the Government have managed to address the problems of both the incorporation of the ECHR and the consequences of devolution in one Bill. I hope that this is a good sign for activity by the Government on those bases in future Bills.
Lord Goodhart: I do not wish to say much on this occasion. I fear that I may trespass on what my noble friend Lord Russell may say on the next group of amendments. I know that he will wish to expand somewhat on the effect of the amendments in the current group.
However, I am most grateful to the noble and learned Lord the Lord Advocate. This has moved a substantial way in the direction we sought at Second Reading. I am particularly grateful that the Government have taken on board the points that I and others raised on the European Convention on Human Rights. Therefore so far as the amendments go we welcome them.
Lord Hardie: I would not suggest for a moment that the noble Baroness could ever be cheeky either in this House or elsewhere.
468
Perhaps I should clarify the use of the word "windfall". I had in mind people who had not claimed benefit. The provisions which we shall bring into effect, subject to the amendment being accepted, will be to the benefit of the people who thought they were entitled to benefit, and claimed. They would obtain the benefit. But in respect of those who had not so claimed, involving trawling through records, I think that it would be seen in the nature of a windfall if they were to receive a cheque for a substantial sum of money in respect of payment over a number of years. I commend the amendment.
On Question, amendment agreed to.
Earl Russellmoved Amendment No. 77:
Page 17, line 33, after ("decision") insert ("on another case").
The noble Earl said: In moving this amendment, with the leave of the Committee, it might be convenient if I were to take with it the question that Clause 27 stand part. It is in the next group. One reason is that I would have to say at least three quarters of the same thing which does not seem a good idea. Another reason is that it will take me some time to work out exactly how many amendments in the group might be made redundant by the amendment just put forward by the noble and learned Lord the Lord Advocate. My impression is that it would make a number of them redundant, but probably not all of them. Since the issues involved are all quite technical, and since they are all interrelated, it might be as well to take them all together.
All of these issues relate to what is known colloquially as the anti-test case rule. The effect of that rule is: if there is a test case which establishes a principle in consequence of which it becomes clear that many other people have an entitlement to benefit, the entitlement to benefit goes back only to the time the case was decided, not to when they originally acquired what is now seen as the entitlement.
That rule is not new. It has been the subject of a good deal of litigation and parliamentary proceedings. It led to some drama in this Chamber during debate on the Social Security Bill in 1990, when, I regret to say, I disgraced myself by having the House count it out—which, I assure your Lordships, was not my intention.
I was quite relieved when that provision came before the Court of Appeal. Lord Justice Millett said that the Secretary of State's interpretation of the clause to which I had objected was "so unreasonable that Parliament could not possibly have intended it". The provision with which we were dealing in 1990, which tried to prevent the courts from upsetting the anti-test case rule, directed the courts to treat past judgments as if they had not been made. Lord Justice Millett said that that was an attempt, not so much to change the law, as to rewrite history.
So the question which is behind all this argument about the anti-test case rule is how we understand the concept of entitlement—whether, in fact, we accept the principle of Lord Justice Scarman that all social security law rests on the concept of entitlement, in which case the entitlement was there from the

469
beginning; or whether we treat it as more a matter of grace and favour. The noble Baroness, Lady Anelay, touched very expertly on that issue.
I am, I must admit, on the entitlement side of this argument. I regard it as akin to the concept of a peerage in abeyance. It may be in abeyance—in one or two recent cases possibly as far back as the reign of Henry VII—but once the matter is resolved, it is clear that all the intervening generations were in fact Peers, even though that was not perceived by the Committee of Privileges of this House. Similarly, it might be argued that an entitlement is an entitlement, whether or not the courts have yet perceived it. The alternative interpretation has the effect, as it were, of suspending claimants from a sky-hook with no visible means of support. But since we dealt with that argument in relation to Clause 25, I do not need to enter into it again.
This Bill does not invent the anti-test case rule. What it does is to extend it from claims and reviews to appeal tribunals, social security commissioners and the courts. It extends that sort of control over the operation of the courts into a much higher area of the law, and therefore makes the possibility of collisions between the legislature and the courts rather more acute than before.
This string of amendments, beginning with Amendment No. 77, restricts the operation of Clause 27 so that it shall apply only to cases where, in consequence of a decision in the lead case, a person makes a new claim for benefit or applies for his case to be revised. I shall read Hansard carefully to see exactly how that fits with the remarks of the noble and learned Lord. It is a question that I cannot resolve on the sudden, but I am very interested in comparing the two matters together. It disapplies the anti-test case rule where a claim has been postponed under Clause 25 or the Secretary of State has revised or superseded a decision, exercising her powers under Clause 26. There again, I shall look with great care at the amendments the Minister has put forward. Again, it is not a decision I should want to make on the sudden. Or, it disapplies the anti-test case rule where the initial decisions on a lookalike case were made in accordance with the case law that was then binding. It disapplies them—that I did not hear in the noble and learned Lord's amendment—where the test case was made under regulations subsequently found to be ultra vires. If that were allowed, the Secretary of State would in effect be benefiting from her own poor decision-making, which would be, to say the least, undesirable.
On the other hand, clause stand part—which I confess I regard as the preferable option—would altogether stop these extensions of the anti-test case rule into the higher areas of jurisdiction. One of the amendments prevents the extension of the anti-test case rule to the European Court of Justice.
I listened with great interest to what the noble and learned Lord had to say about European law. I do not think I heard him say that he was stopping the extension of the anti-test case rule to the European Court of Justice. If I am mistaken, I apologise to him, but I did not hear it.
470
It is doubtful whether Parliament has the power to bind the European Court of Justice. Indeed, it is more than doubtful; it seems to me in the very highest degree improbable that it has. The pillars of the European Court of Justice arise under the treaties; they do not arise from any Act of this Parliament. There is, I think, a very strong case for arguing that that is something which cannot actually be done. It raises the whole question on which the noble and learned Lord, Lord Slynn of Hadley, touched in his resolution of Bate's case, to which I referred earlier; whether the whole of this principle of the anti-test case rule is in fact compatible with European law at all. That is a question which has not yet been the subject of any judicial proceedings, and on which many doubts have been expressed—in this House, in the Court of Appeal and in the Appellate Committee of this House. It is one good reason why the anti-test case rule should be dropped altogether.
The noble and learned Lord will say that that will have a consequence for public funds. Indeed it will, and it is a matter that should be taken seriously. But one has to set two possible wrongs in balance against each other. Wherever any proceedings are pending, something has to be done pending their resolution. That something will be to the detriment of either one party or the other; there is no way that that can be avoided. I would have thought that there was a case for arguing that these things ought to be resolved in the interim period in the interests of the claimant, who is less able to bear the loss, rather than in the interests of the taxpayer, who is collectively rather better able to resolve the loss, and that the underlying principle which reconciles the two of them is that justice should not be unduly delayed, a principle of which I know the Government are perfectly well aware, as we all are. I beg to move.
Lord Hardie: These amendments, as the noble Earl observed, overlap considerably some of the amendments that we have just dealt with. I am pleased to say that the Government support the general thrust of the amendments that the noble Earl has brought forward, but we think and hope that we have addressed those concerns in the amendments to which I spoke a few moments ago.
Amendment No. 77 seeks to clarify that the provisions of the clause do not apply to the lead case. I can assure your Lordships that it was never the intention that the restrictions on arrears provided for in this clause should apply to that case. The provisions of the clause will apply to other cases to which the new interpretation of the law applies. Full arrears will be payable in the lead case. Accordingly, the amendment is unnecessary.
Amendment No. 80 seeks to ensure that the restrictions on arrears of benefit do not apply to decisions made in lookalike cases by an appeal tribunal, a commissioner or a court. The Government have been concerned that claimants should be entitled to an effective right of appeal against a decision of the Secretary of State, an appeal tribunal or a commissioner. As a result, we tabled Amendments Nos. 78, 79, 81 and 85 which will ensure that the provisions of the clause will apply only to decisions made by the Secretary of

471
State. The government amendments will also ensure that the clause complies with obligations arising in EC law and the European Convention on Human Rights. Claimants will have an effective remedy against decisions.
Amendments Nos. 82 and 84 would allow unlimited arrears for people who happened to have applied for a revised decision or applied for a decision on their entitlement to be superseded before the date of the commissioner's or court's determination in the lead case. Claimants who did not apply for a revision or supersession before the relevant determination would have any award of, or increase in, benefit limited. This would lead to inconsistent and unfair treatment between claimants.
The proposed amendments would also have other implications. A significant period of time may have elapsed before a commissioner or a court reinterprets the law. Potential arrears of benefit may be considerable. For reasons I have already explained, it would not be appropriate to pay those arrears in cases where there was no outstanding claim prior to the decision in the lead case.
Amendment No. 83 proposes that a decision of the Secretary of State to revise a claimant's entitlement to benefit should be made in accordance with an earlier decision of a commissioner or court. However, the clause is drafted in such a way that the relevant determination must have been made in order for the Secretary of State to revise a decision. Therefore the amendment would appear to be unnecessary.
Amendment No. 86 seeks to remove paragraph 4 of the clause. Paragraph 4 puts beyond doubt that restrictions on arrears will also apply where the commissioner or court determines that regulations are invalid for the period before the relevant determination. As your Lordships will know, the Secretary of State makes regulations based on her understanding of the powers laid down by Parliament. If that power is misunderstood, there are well-established procedures for handling these cases, and the restrictions of Clause 27 will apply.
Amendment No. 88 seeks to exclude decisions of the European Court of Justice from the restriction of the clause. The Bill makes it clear that decisions of the European Court of Justice are determinations by a "court", so restrictions on arrears apply. It is not a new provision. The words are on the face of the Bill to clarify existing legislation. The amendment seeks to exempt these judgments and would result in potential unlimited backdating of arrears. It would be unfair to exempt the decisions of the European Court of Justice while maintaining that the restrictions apply to decisions of other courts.
Amendment No. 89 would remove the subsections of the clause which allow regulations to be made to prescribe how the date of the relevant determination shall be determined. The amendment would specify that only the first decision on an issue, made in the claimant's favour, will be a relevant determination. We intend to prescribe how the determination of a higher court is to be treated as if it had been made on the date of a determination of a lower court. For example, a commissioner may decide a case in one way, the Court of Appeal take an opposite
472
view, and this House, sitting as the Judicial Committee, decide that the commissioner's interpretation is correct. The regulations would clarify that the date of the relevant determination would be that made by the commissioners. These regulations will apply equally when cases are determined in the Secretary of State's or the claimant's favour. The first decision made by a commissioner of the court which is subsequently confirmed by a higher authority will be the relevant determination subject to any further appeal. Therefore this amendment is unnecessary.
Amendment No. 90 proposes to insert a new subsection in the clause which will ensure that decisions made by the Secretary of State under Sections 25(4) and 26(3) or (5) are not subject to the restrictions of the clause. I hope that the noble Earl, Lord Russell, will be reassured to know that the Government have tabled amendments which we have already dealt with and which have addressed many, if not most, of his concerns in this area. I have already explained the amendments in full to the Committee and do not think it is necessary to repeat what I have said. In those circumstances I would invite the noble Earl to withdraw these amendments at this stage. He has of course indicated that he would wish to read specifically about the government amendments. In the light of that I would invite him to withdraw his amendments.
As far as clause stand part is concerned, I think I have effectively dealt with the thinking behind Clause 27 in part-outlining the Government's amendments when I spoke earlier. I would again invite the noble Earl to withdraw his opposition to that.
9.15 p.m.
Earl Russell: I thank the noble and learned Lord most warmly for that reply. I am sorry to have put him to the trouble of going through some of these things twice, but this is by way of being the Schleswig-Holstein of social security law, and at times I feel rather like its Lord Palmerston.
I think the noble and learned Lord has gone a very long way towards meeting what I was worried about in the amendments. I think it would be extremely unwise of me to reach any final decision tonight on whether he has met all or only part of my concerns. Certainly he has met a large part of them.
I was considerably reassured by a number of things that he said, although I am still, I must confess, a little concerned about the European Court of Justice. Clearly I shall not be pressing these amendments tonight but I shall be reading the answers carefully and deciding what to bring back.
On the basic thinking of Clause 27 itself, there is still a great deal that divides us, but granted that the noble and learned Lord still adheres to the basic framework of the clause, he may well have gone as far to meet me within that assumption as he could. I am in any case extremely grateful to him and beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Hardiemoved Amendment No. 78:
Page 17, line 34, after ("made") insert ("by the Secretary of State").
The noble and learned Lord said: I beg to move Amendment No. 78 formally.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before calling Amendment No. 79, I should inform the Committee that if this amendment is agreed to I cannot call Amendment No. 80.
Lord Hardiemoved Amendment No. 79:
Page 17, line 36, leave out from beginning to ("in") in line 37.
The noble and learned Lord said: I beg to move Amendment No. 79 formally.
On Question, amendment agreed to.
[Amendment No. 80 not moved.]
Lord Hardiemoved Amendment No. 81:
Page 17, line 38, leave out ("by the Secretary of State").
The noble and learned Lord said: I beg leave to move Amendment No. 81 formally.
On Question, amendment agreed to.
[Amendments Nos. 82 to 84 not moved.]
Lord Hardiemoved Amendments Nos. 85 and 85A:
Page 17, line 41, leave out ("by the Secretary of State").
Page 17, line 43, at end insert—
("(1A) This section does not apply where the decision of the Secretary of State mentioned in subsection (1)(b) above—

(a) is one which, but for section 25(2) or (3)(a) above, would have been made before the date of the relevant determination; or

(b) is one made in pursuance of section 26(3) or (5) above.").

The noble and learned Lord said: I beg to move these amendments en bloc formally.
On Question, amendments agreed to.
[Amendment No. 86 not moved.]
Lord Hardiemoved Amendment No. 87:
Page 18, line 14, at end insert—
("( ) It is immaterial for the purposes of subsection (1) above—

(a) where such a decision as is mentioned in paragraph (b)(i) falls to be made, whether the claim was made before or after the date of the relevant determination;

(b) where such a decision as is mentioned in paragraph (b)(ii) or (iii) falls to be made on an application under section 10 or (as the case may be) 11 above, whether the application was made before or after that date.").

The noble and learned Lord said: I beg to move Amendment No. 87 formally.
On Question, amendment agreed to.
[Amendments Nos. 88 to 90 not moved.]
Clause 27, as amended, agreed to.
Clause 28 agreed to.
Clause 44 [Child support: cases of error]:
Lord Hardiemoved Amendments Nos. 91 to 97:
474
Page 30, line 23, at beginning insert ("Subject to subsection (1A) below,").
Page 30, line 30, after ("made") insert ("by the Secretary of State").
Page 30, line 33, leave out from beginning to ("with") in line 35.
Page 30, line 38, leave out ("by the Secretary of State").
Page 30, line 42, leave out ("by the Secretary of State").
Page 30, line 45, at end insert—
("(IA) This section does not apply where the decision of the Secretary of State mentioned in subsection (1)(b) above—

(a) is one which, but for section 28ZA(2)(a), would have been made before the date of the relevant determination; or

(b) is one made in pursuance of section 28ZB(3) or (5)."). Page 31, line 11, at end insert—

("( ) It is immaterial for the purposes of subsection (1) above—

(a) where such a decision as is mentioned in paragraph (b)(i) falls to be made; or

(b) where such a decision as is mentioned in paragraph (b)(ii) or (iii) falls to be made on an application under section 16 or (as the case may be) section 17,

whether the application was made before or after the date of the relevant determination.").
The noble and learned Lord said: I beg to move Amendments Nos. 91 to 97 en bloc formally.
On Question, amendments agreed to. Clause 44, as amended, agreed to.
Clauses 29 to 34, 36, 37 and 39 agreed to.
Clause 45 [Vaccine damage payments: decisions superseding earlier decisions]:
Lord Hardiemoved Amendment No. 98:
Page 32, line 25, at end insert—
("( ) Such notice as may be prescribed by regulations shall be given of a decision under this section.").
The noble and learned Lord said: In moving Amendment No. 98, I wish to speak also, with the leave of the Committee, to Amendments Nos. 99 and 138.
We now come to a group of amendments of a technical nature relating to the Vaccine Damage Payments Scheme. As such, I hope noble Lords will allow me to present them as a set rather than take each one individually.
Amendment No. 98 is a minor, technical amendment to Clause 45. Clause 45 inserts a new Section 3A into the Vaccine Damage Payments Act 1979. In effect, it replaces the current section—Section 5—which deals with reconsideration of the Secretary of State's decision on a claim for a vaccine damage payment and provides for claimants to be notified of decisions. New Section 3A as currently drafted does not contain provision for notifications. This amendment provides a regulation-making provision to deal with the notification of decisions.
Amendment No. 99 is a technical amendment to Clause 46. It allows the Secretary of State to make regulations on the procedures to be followed by appeal tribunals that hear appeals against vaccine damage payments decisions. Clause 46 replaces Section 4 of the Vaccine Damage Payments Act. That section includes provision for regulations to be made for the procedure

475
to be followed when determining matters referred to tribunals. The power needs to be carried forward and this amendment does no more than that.
The final .amendment is Amendment No. 138. The principle of finality is fundamental to the system of decision-making. A vaccine damage payments decision, once made, should be binding both on the department and on the claimant until it is reversed or changed on appeal. This amendment to Schedule 6 ensures that decisions made by the Secretary of State will be final until reversed under Clause 45 or changed on appeal under Clause 46. This ensures consistency across the parts of the Bill relating to social security benefits, child support and vaccine damage payments. I commend the amendments to your Lordships. I beg to move.
On Question, amendment agreed to.
Clause 45, as amended, agreed to.
Clause 46 [Vaccine damage payments: appeals to appeal tribunals]:
Lord Hardiemoved Amendment No. 99:
Page 32, line 38, at end insert ("and
(b) such provision with respect to proceedings before appeal tribunals as the Secretary of State considers appropriate.
( ) The regulations may in particular make any provision of a kind mentioned in Schedule 5 to the Social Security Act 1998.").
On Question, amendment agreed to.
Clause 46, as amended, agreed to.
Clauses 47 to 58 and 60 to 62 agreed to.
Clause 63 [Recovery of contributions etc.]:
On Question, Whether Clause 63 shall stand part of the Bill?
Lord Goodhart: Just by way of comment, I wish to raise the point that distress is an extremely archaic remedy. I think it is time that we restricted it where it does exist or perhaps abolished it altogether rather than extended it. I am sorry to see it in the Bill as an additional remedy for the recovery of the contributions.
Clause 63 agreed to.
Baroness Hollis of Heighammoved Amendment No. 100:
After Clause 63, insert the following new clause—
(". After section 121B of the Administration Act there shall be inserted the following sections—
Liability of directors etc. for company's contributions.
121C.—(1) This section applies to contributions which a body corporate is liable to pay, where—

(a) the body corporate has failed to pay the contributions at or within the time prescribed for the purpose; and

(b) the failure appears to the Secretary of State to be attributable to fraud or neglect on the part of one or more individuals who, at the time of the fraud or neglect, were officers of the body corporate ("culpable officers").

(2) The Secretary of State may issue and serve on any culpable officer a notice (a "personal liability notice")—

(a) specifying the amount of the contributions to which this section applies ("the specified amount"); and

(b) requiring the officer to pay to the Secretary of State—

476

(i) a specified sum in respect of that amount; and

(ii) specified interest on that sum.

(3) The sum specified in the personal liability notice under subsection (2)(b)(i) above shall be—

(a) in a case where there is, in the opinion of the Secretary of State, no other culpable officer, the whole of the specified amount; and

(b) in any other case, such proportion of the specified amount as, in the opinion of the Secretary of State, the officer's culpability for the failure to pay that amount bears to that of all the culpable officers taken together.

(4) In assessing an officer's culpability for the purposes of subsection (3)(b) above, the Secretary of State may have regard both to the gravity of the officer's fraud or neglect and to the consequences of it.
(5) The interest specified in the personal liability notice under subsection (2)(b)(ii) above shall be at the prescribed rate and shall run from the date on which the notice is issued.
(6) An officer who is served with a personal liability notice shall be liable to pay to the Secretary of State the sum and the interest specified in the notice under subsection (2)(b) above.
(7) Where, after the issue of one or more personal liability notices, the amount of contributions to which this section applies is reduced by a payment made by the body corporate—

(a) the amount that each officer who has been served with such a notice is liable to pay under this section shall be reduced accordingly;

(b) the Secretary of State shall serve on each such officer a notice to that effect; and

(c) where the reduced liability of any such officer is less than the amount that he has already paid under this section, the difference shall be repaid to him together with interest on it at the prescribed rate.

(8) Any amount paid under a personal liability notice shall he deducted from the liability of the body corporate in respect of the specified amount.
(9) In this section—
"contributions" includes any interest or penalty in respect of contributions;
"officer", in relation to a body corporate, means—

(a) any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act as such; and

(b) in a case where the affairs of the body corporate are managed by its members, any member of the body corporate exercising functions of management with respect to it or purporting to do so;

"the prescribed rate" means the rate from time to time prescribed by regulations under section 178 of the Finance Act 1989 for the purposes of the corresponding provision of Schedule I to the Contributions and Benefits Act, that is to say—

(a) in relation to subsection (5) above, paragraph 6(2)(a);

(b) in relation to subsection (7) above, paragraph 6(2)(b).

Appeals in relation to personal liability notices.
121D.—(1) No appeal shall lie in relation to a personal liability notice except as provided by this section.
(2) An individual who is served with a personal liability notice may appeal to an appeal tribunal against the Secretary of State's decision as to the issue and content of the notice on the ground that—

477

(a) the failure to pay the amount specified under subsection (2)(a) of section 121C above was not attributable to any fraud or neglect on the part of the individual in question;

(b) the individual was not an officer of the body corporate at the time of the alleged fraud or neglect; or

(c) the opinion formed by the Secretary of State under subsection (3)(a) or (b) of that section was unreasonable.

(3) The Secretary of State shall give a copy of any notice of an appeal under this section, within 28 days of the giving of the notice, to each other individual who has been served with a personal liability notice.
(4) Where an appeal under this section—

(a) is brought on the basis of evidence not considered by the Secretary of State, or on the ground mentioned in subsection (2)(c) above; and

(b) is not allowed on some other basis or ground,

the appeal tribunal shall either dismiss the appeal or remit the case to the Secretary of State, with any recommendations it sees fit to make, for him to consider whether to revise his decision as to the issue and content of the personal liability notice.
(5) In this section—
"appeal tribunal" means an appeal tribunal constituted under Chapter I of Part I of the Social Security Act 1998;
"officer", in relation to a body corporate, has the same meaning as in section 121C above;
"personal liability notice" has the meaning given by subsection (2) of that section;
"revise" means revise under section 10 of the Social Security Act 1998."").
The noble Baroness said: This amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Clauses 64 to 66 agreed to.
Clause 67 [Rates of short-term incapacity benefit]:
Baroness Hollis of Heighammoved Amendment No. 101:
Page 46, line 4, leave out ("£62.45") and insert ("£64.70").
The noble Baroness said: Amendments Nos. 101 and 102 change references to rates of benefit in Clause 67 in line with the increased rates of benefit provided by the Social Security Benefits Up-Rating Order 1998. These are simply uplifting arrangements and I am prepared to stop at that point and simply say that I commend the amendments to the House. Obviously, I am very happy to give a very full explanation if the Committee is so minded. I beg to move.
On Question, amendment agreed to.
Baroness Hollis of Heighammoved Amendment No. 102:
Page 46, line 7, leave out ("£59.90") and insert ("£62.05").
The noble Baroness said: I have already spoken to this amendment.
On Question, amendment agreed to.
Clause 67, as amended, agreed to.
Baroness Hollis of Heighammoved Amendment No. 103:
After Clause 67, insert the following new clause—
VALIDATION OF CERTAIN HOUSING BENEFIT DETERMINATIONS
(" .—(1) Subject to subsections (3) and (4) below, in so far as a housing benefit determination made before 18th August 1997 purported to determine that housing benefit was payable in respect of—

(a) charges for medical care, nursing care or personal care; or

(b) charges for general counselling or any other support services,

it shall be deemed to have been validly made if, on the assumption mentioned in subsection (2) below, it would have been so made.
(2) The assumption is that, at all material times, such charges as are mentioned in subsection (1) above were eligible to be met by housing benefit where the claimant's right to occupy the dwelling was conditional on his payment of the charges.
(3) Where the effect of a review carried out on or after 18th August 1997 was to revise the amount of housing benefit payable in respect of any validated charges—

(a) the revision shall be deemed not to have been validly made in so far as it had the effect of increasing that amount; and

(b) housing benefit shall cease to be payable in respect of those charges as from the beginning of the period for which the benefit was paid on the first pay day after the review.

(4) Housing benefit shall not be payable in respect of any validated charges for any period falling after—

(a) 5th April 1998 where the rent is payable at intervals of a whole number of weeks; and

(b) 31st March 1998 in any other case.

(5) In this section—
"the dwelling", in relation to a housing benefit determination, means the dwelling in respect of which the determination was made;
"housing benefit determination- means a determination under section 130 of the Contributions and Benefits Act or the corresponding provisions of the Social Security Act 1986, or a decision on a review of such a determination;
"medical care" includes treatment or counselling related to mental disorder, mental handicap, physical disablement or past or present alcohol or drug dependence;
"pay day" means a day on which housing benefit is paid;
"personal care" includes assistance at meal-times or with personal appearance or hygiene;
"validated charges" means charges in respect of which housing benefit is payable only by virtue of subsection (1) above.").
The noble Baroness said: We now move on to another subject.
These Amendments Nos. 103 and 161 propose to legitimise, from the date of Royal Assent, most payments of housing benefit where this has incorrectly met charges for general counselling and support or personal care. This will prevent local authorities from having to reassess past housing benefit claims and will ensure that local authorities are not required to refund to the department subsidy for benefit previously incorrectly paid for these services.
This has a long history. Housing benefit is a means-tested benefit that helps people on low incomes pay their rent. It is designed so that it also helps with their accommodation-related service charges. In supported accommodation the rent and service charges often contain an element to cover charges for personal general counselling and support. These can be covered by housing

479
benefit, but only where the so-called 50 per cent. rule is satisfied—that is to say, where the majority of the time spent in providing services is spent in providing other, accommodation-related services which housing benefit is able to meet. For the most part we are talking about warden-supported accommodation.
We understand that the majority of local authorities may have been adopting a wider interpretation of the provision of adequate accommodation than is permitted by case law. They may therefore have been meeting a wider range of charges for general counselling and support than intended. Of these a small minority of local authorities may also have been meeting charges for personal care; for example, counselling for drug-alcohol addiction, or supervising the taking of medication. Housing benefit was never intended to meet such charges. This is why charges for personal care are outside the scope even of the housing benefit primary legislation.
A Divisional Court judgment on 24th July 1997 upheld the department's view and earlier case law, that only those service charges for general counselling and support which relate to the fabric of the building satisfy the basic housing benefit eligibility criteria in that they relate to the provision of adequate accommodation; for example, arranging for adaptations to cope with a disability, or undertaking minor repairs such as unblocking sinks.
Outside commentators have estimated that some 500,000 vulnerable tenants on housing benefit, such as the elderly, people with learning disabilities and those with mental health problems, may have received benefit for a wider range of service charges than permitted under the court ruling. We are conducting a major research project to quantify the extent to which supported housing is dependent on housing benefit. But it is clear that many tenants were getting benefit for charges which were not permitted by the regulations.
The court ruling meant that as of July 1997 there was the danger of a potential crisis in community care. The Secretary of State immediately announced a broadly cost-neutral package of measures to prevent this. As a result, first, interim regulations were introduced on 18th August 1997 to allow housing benefit to meet all reasonable charges for general counselling and support in existing supported accommodation, payable as a condition of occupying the dwelling.
Secondly, a compensation scheme was introduced at the end of December last year to enable local authorities to compensate landlords of such accommodation who had lost income because housing benefit was no longer meeting charges for personal care.
Thirdly, we have actively moved forward consideration of the future funding of supported accommodation, which is subject to an ongoing inter-departmental review, by publishing, and seeking views on, the Government's long-term objectives. Over 200 responses have been received from a wide variety of stakeholders and are helping to inform the debate. We intend to implement a sustainable funding system as soon as possible. But this is an extremely complex area with possible repercussions across the supported housing sector. We want a stable, rational funding regime which protects and maintains this extremely important component of community care.
480
In the mean while, we have acted quickly to introduce a package of measures to provide stability for tenants and landlords in existing supported accommodation. This new clause now seeks to provide stability for those local authorities which have previously met a wider range of support charges from housing benefit than intended.
The bulk of local authorities' expenditure on housing benefit is subsidised by the department. Lower rates of subsidy are paid for incentive areas where authorities have most scope to control spending; for example, overpayments caused by local authority error attract no subsidy. Outside commentators have further estimated that housing benefit claims assessed on a wider interpretation of the law than intended may have cost up to £500 million a year. The majority of any incorrect expenditure would have been subsidised by, and therefore would otherwise be refundable to, the department. However, those payments have helped to meet support charges which have enabled many thousands of vulnerable people to live independently in the community. We believe therefore that the right course is to legitimise those payments as properly made.
The new clause will, therefore, first, remove from authorities the administrative—and costly—burden of calculating overpayments which may, in some cases, go back to the start of the present housing benefit scheme in April 1988. Secondly, it will ensure that authorities are not required to refund to the department the subsidy previously paid in respect of support charges for either general counselling and support or personal care. Thirdly, it will prevent vulnerable claimants from having to repay benefit overpaid in respect of these support charges where this would otherwise be considered appropriate.
I am sure that the Committee will regard the amendments as entirely benign. I commend them to the Committee and I beg to move Amendment No. 103.
9.30 p.m.
Lord Higgins: I fear that, over time, my Treasury halo may have become somewhat tarnished; nonetheless, I find this an extraordinary proposition. The Minister was kind enough to write to me about it. However, for reasons for which I am sure were not her fault, I received the letter only this evening. I do not know the reason for that, but it matters not. The noble Baroness was kind enough to write to me and I had an opportunity during the dinner hour to look at her letter. I have also listened to what she has had to say.
At this stage, I should like merely to ask some questions. In her earlier remarks, the Minister uttered a throw-away line about the provision being "cost neutral". I am not at all sure about how it is cost neutral other than the fact that the money has been spent and we are now proposing to validate it. Perhaps that is what the noble Baroness has in mind. At all events, that is my first question.
Secondly, given the court case—apparently there is no question of reversing it or of appealing against it; indeed, it seems difficult to appeal against the decision given, that in all the circumstances now described, it seems a most sensible decision—I am not clear about what the basis of any payment has been since July 1997. Perhaps we could be told something about that.

481
Other complex questions also arise. First—I admit my inexperience here—when the Committee stage begins in another place financial resolutions are provided to the Committee. My understanding is that we do not normally have those resolutions before us; but I am not clear about the financial resolutions which support this proposal. Why was it not raised—the Government knew about it in July 1997—during Committee stage in another place? Given the financial responsibilities of the other place, it would have been much more appropriate for it to have been raised there rather than here. Can the noble Baroness tell the Committee what financial resolutions there are to support the clauses now before the Committee?
Secondly, is it appropriate that the central exchequer should pay? While I admit my ignorance in this matter, presumably this forms part of the grant from the central exchequer to local authorities for housing benefit. Clearly, this money has not been spent on the intended purpose. If so, why is it now proposed to let the burden fall wholly on the Treasury rather than in part on local authorities? I would have thought that to some extent the cost should fall on the council tax payer. I may be quite wrong about that and I am quite prepared to be corrected. But it appears that the distribution of money between one local authority and another has been rather arbitrary, in as much as it depends not on the particular social service needs on which the money has been spent but the allocation of housing benefit between the same local authorities. Therefore, the allocation is somewhat difficult to understand. Is it to come out of the contingency fund? If not, from where is it to come? Given the commitment of the Government to stick to the former government's public expenditure plans, is this in addition to those plans? If so, are there to be savings elsewhere? Perhaps that is what is meant by "cost neutral". If so, I am sure that the Committee would like to know where the savings are to be made. It may well be that one should spend it on something other than the particular items that have been covered.
The noble Baroness has said—I understand why—that these are all highly desirable objectives, such as dealing with the problems of mental handicap, medical care and alcohol and drug dependence, but if Parliament had intended that it should be spent on these matters it would have allocated the money accordingly. It is extraordinary that just because a mistake has been made it is suddenly decided to reallocate expenditure from housing benefit, for which it is intended, to these other admittedly highly desirable matters but not matters on which Parliament has intended the money should be spent. It is now proposed that by these nice, quick amendments to the Social Security Bill £500 million should be reallocated to other quite different purposes.I am not unsympathetic to the need to provide such facilities but, with great respect, this is not the way in which we should be allocating resources between one competing use and another. The case has not been made out. As I understand it, it is an entirely accidental allocation of resources.
482
In that context, since the decision has apparently been made by local authorities, in the absence of these amendments are the local councillors liable to be surcharged? The noble Baroness has said that a minority of authorities has been meeting charges for other personal care which are specifically precluded from being met by housing benefits. If local councils have been doing this at least someone should question, without nodding this matter through at a late hour, the other place not having considered it, whether it is appropriate that local councillors should effectively be indemnified in this way.
The wording of the amendment is also somewhat curious. It provides that the:
"charges for general counselling or any other support services"—
that is wide wording—
"shall be deemed to have been validly made if, on the assumption mentioned in subsection (2) below, it would have been so made".
It continues:
"The assumption is that, at all material times, such charges",
and so on.
So it is deemed on the one hand on the basis of an assumption. We are apparently being asked to validate that assumption. That, I am afraid, was rather off the top of my head, in the sense that I had not turned my mind to that matter previously. It may well be—I shall well understand it—that the Minister may not be able to answer all those questions this evening. If that is so, we might need to return to the matter on Report.
Let me stress that with my remarks about Treasury halos, I am not in any way saying that that money has not gone on entirely admirable causes. As far as one can see, it has. It seems equally clear that it is not some expenditure which the other place intended it to be spent on.
Finally, if we agree to this clause, and it goes into law, does that mean that the NAO and the PAC will feel that they have no right to inquire into why that happened in the first place? I am not making a partisan point. It has clearly happened, as the Minister said, since 1988. So we can go back to the old Labour government to see what happened then. Perhaps the Minister will give us such information on these points as she can, and we might return to it on Report.
Earl Russell: I thank the Minister for this amendment and for the great clarity with which she expounded it. I shall offer it at least one and a half cheers, but I still have one or two questions to ask. As the noble Lord, Lord Higgins, spoke off the top of his head, perhaps I might make some attempt to respond to him off the top of mine. First, the matter of the financial resolution: we in this place neither have, nor can have, any financial resolutions. We have no authority to do any such thing. Any decisions made in this place which have relevance to expenditure are, in effect, merely recommendations

483
to another place which may act on them or not as it sees fit. So should there be any financial resolution, it would be for another place to make it when it arrives.
Lord Higgins: I entirely take the point that the noble Earl, with his great experience, makes. I fully understand. I am merely asking whether they exist.
Earl Russell: As I understand it, and again speaking off the top of my head, they cannot exist until another place has possession of the Bill, because it cannot make a resolution for a Bill that it does not have. As for why it has not been done earlier, this is a purely speculative point, and I shall be interested to know whether it is correct, but the timing of the appearance of the amendment suggests that it may have something to do with authority derived from the Budget, which, I am sure we all agree, we are not supposed to anticipate. I do not know whether that is the answer, but it is obviously a possibility.
As for the money which has been spent, that has been spent, as was then understood by many people—I have heard the matter discussed in exchanges at Question Time in this place before now—under what were believed to be valid vires. As far as I can understand, Parliament believed that the vires were sufficient to justify the spending of the money as it was being spent. The noble Lord, Lord Higgins, shakes his head. He may wish to respond, and I shall certainly give way to him if he does.
Lord Higgins: As I understand it, that is true of a great deal of the expenditure, but some of it was specifically precluded from being met by housing benefit; that is to say, I assume legislation said, "You must not spend money for housing benefit on these things".
Earl Russell: I am not aware of there being any such legislation. The point is that it was understood to be being spent in the support of housing. But as the Minister explained so lucidly, where one is dealing with supported housing of any sort, inevitably there is an overlap in which one cannot make a precise division between what is spent on the support services and what is spent on the housing. That applies just as much, say, to children's services in a women's refuge as it does to facilities for dealing with disabilities in a retirement home for the aged. That is inevitably the case. As I understand it—I have heard the Minister speaking of it previously—it was believed that Parliament had provided sufficient authority. As to why the matter should not be left to local authorities, the noble Lord, Lord Higgins, hits his own nail on the head: they would be liable to surcharge while we, mercifully, would not.
We have a curious mirror image of the debates we had earlier on the anti-test-case rule. The Government have responded in a way similar to that which I recommended not so long ago. I can and must welcome that with considerable warmth. The action that has been taken in respect of arrears was the easiest way of dealing with what could have been a severe practical problem. I am glad that the Government have done that.
484
I also understand about the long-term review. I welcome the review in principle, without prejudice to any comments I may make on its findings. But what I do not understand is where the costs are falling now. The costs must fall somewhere and I would like to know whether a study has been made of the effects of the amendment on the financing of women's refuges. There is always a considerable overlap between the housing charges and the support service charges. If the costs do not fall on housing benefit, they do not just disappear or the whole nature of the housing is destroyed and it probably has to close down.
If the costs do not fall on housing benefit, where do they fall? If between now and the review they are supposed to be falling on the local authorities, they are capped and subject to standard spending assessment. The local authorities may well discover that they are in danger of having to find the money by defaulting on some other statutory obligation. That could create even further legal trouble. If the costs are not falling on housing benefit, where are they falling, or is the provision falling instead? Those are questions to which I should be grateful to have some answers.
9.45 p.m.
Baroness Hollis of Heigham: I hope that the Box notes will arrive in time for me to answer in particular some of the later issues raised by the noble Earl. I was much taken aback by the mild ferocity of Treasury assault on what I thought was a benign resolution. I console myself with the fact that the noble Lord, Lord Higgins, has forgotten more than I will ever learn about Treasury finance. But, equally, he is talking to someone who has chaired a local authority finance committee for many years and knows how such finance operates.
I wonder whether the noble Lord, Lord Higgins, is missing a substantive point. Much of the argument has been addressed by the noble Earl, Lord Russell, so perhaps the Committee will forgive me if I repeat what he so elegantly explained. Since the early 1970s, local authorities have been bringing people out of what would otherwise have been long-stay residential care, or avoiding the need for them to go into long-stay residential care, by offering supported housing. I refer primarily to housing for the elderly, in the public and private sectors, and halfway housing for those coming out of refuges for battered women. With increasing generosity, in the late 1970s and early 1980s, local authorities offered accommodation for people with severe learning disabilities. In my city there is such a sheltered housing scheme for people with severe learning difficulties.
Let us examine such a situation. You are a district council, which means that social services are run by a county council of a different political persuasion not necessarily sharing your philosophy of trying to support people in the community. You are a district council and you want to build a sheltered housing scheme for a number of people with severe learning difficulties. They and their families wish them to remain in the community. That means that the housing you build must have, for example, double sound insulation because

485
people with severe learning difficulties can sometimes make a great deal of noise by head-banging or in using their equipment. There is also a need for extra warmth. That is clearly part of the cost of the property, the accommodation, reflected in subsidy and reflected, perhaps, in rent charges and housing benefit that people receive. That is not a problem.
But secondly, one must ensure that the caretaker, warden, good neighbours, on the site also check that the gas taps are turned off regularly every night. Is that an accommodation issue or a care, support, counselling issue? It can probably be argued that it is an accommodation issue but that is beginning to get into the grey area. It is covered by housing benefit.
But thirdly, some of the tenants need to be rounded up, if I may express the matter in that way, to get to the bus for the day centre. Is that covered by housing benefit or not? It is probably not now but until July 1997 it was widely believed that that was a legitimate extension of the sort of housing provision which needed to be made for a group of clients clearly identified as needing those services in order to remain in the community.
The problem was compounded when the social services department was run by one authority and housing services by another. If the housing authority did not provide the services, then the housing could not be provided, because the other authority would not fund the counselling and support services which were needed. Therefore, we were persuaded that that was the right, generous, decent and cost-effective way forward. We took that step and we took it with good grace. Up until July 1997, we all believed that we were operating within the law, although we accepted that, under housing powers, we were running services which were overlapping and could be shared with social services.
In July 1997, the courts ring-fenced very much more tightly and precisely what could be covered by housing benefit. That meant that local authorities which were providing such services needed to have the arrangements put on an interim footing. The matter became ultra vires only after the court had ruled. But, once the court had ruled, there had to be some immediate help available so that councils did not find themselves in the very situation which the noble Lord described of knowingly making payments for which they had no authorisation by law and therefore betraying their fiduciary duty to the ratepayers.
However, it would take time for that to get through to primary legislation. No legislation was coming forward. Therefore, in August 1997, the Government introduced their first tranche of interim measures to legitimise continued payment for those services. However, there was still an area of services left uncovered by those interim regulations which we are addressing this evening; that is, payment for counselling services which local authorities have continued to expend.
We all accept that this is not a permanent basis for funding but it is a holding operation until more permanent and satisfactory arrangements can be made. The noble Lord, Lord Higgins asked me whether or not
486
that £500 million had been misspent. He asked me whether it had been legally misspent, however desirable the spending may have been.
It is not so much a matter of public funds having been misspent. It is more a case that money has come from the wrong pot. It has come via housing benefit moneys into district councils' housing services instead of coming via DoH and DETR funds into the revenue support grant for social services to fund those counselling services to add on to the housing support services offered by district councils. That is what the problem has been. I have no reason to believe that the total money spent would be £1 more or £1 less had it come by different routes. But in future it is clear that it would have to come by different routes to be legal. As that is a much more frail vessel, it is right to legitimise the arrangements that have been made and to seek to make permanent funding arrangements.
Therefore, the amount of money has not been overspent. It has been spent by one public body, thus saving money for another public body—the Department of Health and, through that, the DETR. Therefore, there has been no additional expenditure. It is merely that it has come through the wrong pipeline. We have been seeking to legitimise that and I am sure that that is right. The regulations of 18th August 1997 validated the making of such payments as part of housing benefit. With this measure, we are now introducing the principle into the Bill.
The noble Lord, Lord Higgins, asked about financial provisions. The financial provisions in Clause 76(2) cover that, as do the money resolutions for this Bill. The money resolution has already been taken in the other place. The wording is similar to that of Clause 76. I believe that we are covered in that respect.
I hope the noble Earl, Lord Russell, will allow me to write to him on the specific issue of refuges to see whether the problem that he fears exists. I have no reason to believe that it does, but perhaps I might double check on the situation.
I hope that I have assured the noble Lord that, first, no one was behaving irregularly or improperly before July 1997. It was only then that the law was clarified to limit what local authorities could properly do. Secondly, the powers taken in August 1997 were an immediate and speedy response to legitimise the position of local authorities so that they did not find themselves in ultra vires situations. Today, we are taking that on to the primary face of the Bill and legitimising it in that way. But obviously we need to have a permanent source of authorised funding to allow this to happen. There is no reason to believe that anyone has behaved improperly; indeed, they have not. There is no reason to believe there has been any over-expenditure; there has not been. Moreover, there is no reason to believe that it does not have the full support of the other place. I believe that those were the questions which were addressed to me by the noble Lord.
Lord Higgins: I am most grateful to the noble Baroness. I am mindful of the point which the noble Earl made with regard to financial resolutions and so on.

487
However, it seems to me that the noble Baroness has merely described what happened. Nonetheless, it would seem that money which was allocated by Parliament for one purpose was not used for it and that money which was not allocated, for example to the question of alcohol abuse or whatever, was actually used for such purposes. Indeed, the noble Baroness's letter refers to the fact that certain money—and this was a point that I made in my intervention to the noble Earl—was specifically precluded from being used on housing benefit. I presume that that was in the legislation. Otherwise, I am not clear why the noble Baroness's letter makes that particular point.
Once one says that all this is highly desirable and, "We would have spent the money on it if we had thought to get it authorised, but we have used some other money for that purpose", the whole system of financial control comes unstuck. I ask the Minister: is this something that the NAO or the PAC have looked at, or is it something that they will be precluded from looking at if we pass this amendment tonight? I still have not received an answer to the point about cost neutral, which I did not understand.
In answer to what happens now—the point made by the noble Earl—if I understand the amendment correctly, it says that we can go on spending the money in this way until 5th April 1998 or in other cases 31st March 1998. However, I am not clear what happens afterwards. On the one hand, this seems to be retrospective legislation but, on the other hand, it stops dead at this moment—or, at least more accurately, on 5th April or 31st March. As I said, I am not clear what will happen now. Where will the money come from in the future?
As to the Money Resolution, if indeed the other place did pass it, why was this matter not tabled as an amendment either in Committee or on Report in the Commons? Clearly the other place is better qualified to deal with such matters than we are, given the restraints under which we operate?
Baroness Hollis of Heigham: I shall take, first, the money point because I do not wish to mislead the noble Lord in any sense. On the noble Lord's primary point about being cost neutral, I can tell him that of course it is cost neutral. Indeed, if it had not come through this route, it would have come through another. That is absolutely correct. This sort of expenditure is proper local authority expenditure reimbursed by central government. The only dispute is which bit of central government it should have come from. That is what we have been discussing.
Lord Higgins: I am most grateful to the noble Baroness. She knows infinitely more about local government than I do. However, it is not the case that if it did not come from this route then it would have come through another. If it did not come from this route, Parliament would have needed to authorise it coming from another route.
Baroness Hollis of Heigham: Yes. I do not know what the philosopher's term is for sort of "counter factual" or whatever. But, given that Parliament wished local authorities to provide this kind of housing, it was clear that local authorities had to be reimbursed for the
488
additional costs of providing not just the bricks and mortar, but the service element to enable such people to remain in the community, and to pay for that through their housing benefit costs.
When a local authority produces housing benefit for, say, a private home, 95 per cent. of that money is reimbursed by central government—that is, for private sector housing benefit. If that had not been the way of funding these additional service costs up to July 1997, it would instead have been funded by—as it was in some unitary authorities—the DoH through the revenue support grant being paid by DETR to local authorities through the personal social service element in the revenue support grant, which would then have gone into this form of expenditure. Either way it would have come through that route. However, it went through the housing route rather than through the social services route. The August 1997 decision legitimised as an interim arrangement the expenditure on those support services for local authority services which are covered by housing benefit. This amendment legitimises those local authorities which currently fund those personal counselling services—about 40 local authorities are doing so—in the private sector. That way we ensure that we do not see the unintended collapse of care in the community for the most vulnerable people because a legal judgment in July 1997 has subverted all of our understanding as to the basis on which the housing benefit writ may run.
On the point about housing refuges, I am advised that if the refuges were in existence at the time we are discussing—I refer to the interim arrangements which were introduced in August 1997—housing benefit would continue to meet all reasonable charges for general counselling and support in line with our commitment to maintain the supported housing sector pending implementation of long-term sustainable funding mechanisms. I believe therefore that the point that concerned the noble Lord has been fully addressed.
I am not sure that I can take this much further as we have such fundamentally different perceptions of the nature of public expenditure. I believe that what we are attempting here is a kind of technical adjustment to correct a legal decision to ensure that community sheltered housing does not collapse. It is broadly cost neutral because the money would come from public funds one way or the other. The court ruling has made irregular the funding by one route; in the longer term it will probably have to follow a different route. In the meantime we are trying to keep in place arrangements to legitimise the payments that have been made since July 1997, which otherwise would have been ultra vires. As I said, I am not sure that I can go much beyond that. However, if there are further questions relating to the Treasury aspects I should be happy to try to provide a fuller answer in writing to the noble Lord if he cares to write to me.
10 p.m.
Lord Higgins: I do not wish to detain the Committee any longer. I shall consider carefully the point which the noble Baroness has made about local government finance.

489
Why was this not discussed in the Commons at the appropriate moment? Will the NAO and the PAC be able to consider this?
Earl Russell: Perhaps I can assist the noble Lord, Lord Higgins, on that point. When the Bill returns to another place it will have already approved the Bill. The only things the other place will have power to address will be our amendments. Those are the only things that will properly be before the Commons. If we have no amendment that bears on this subject, the Commons will have nothing to address. Unless we pass this amendment, we shall not give another place the vires to address the issue at all.
Lord Higgins: With respect, that was not the point I made. I asked why the provision was not debated in the Commons at an earlier stage.
Baroness Hollis of Heigham: I wonder whether I should share the joke that my noble friend has just conveyed to me. As I understand it, the provision was not discussed in the Commons because at the time it was not realised that it had to be discussed in the Commons. It was not realised that that was necessary. The Committee will appreciate that I am rather grateful that the hour is late and that the Chamber is as empty as it is before I confess to the failure of all sides in this matter. I include the Opposition's failure to hold us to account and our failure to realise that we had a problem to resolve. At least, I have included us all in the problem.
On Question, amendment agreed to.
Lord Morris of Manchesterhad given notice of his intention to move Amendment No. 104:
After Clause 67, insert the following new clause—
DISABILITY LIVING ALLOWANCE: PROTECTION OF AWARDS FOR LIFE
(" . After section 76 of the Contributions and Benefits Act, there shall be inserted the following section—
"A wards for life: protection.
76A. No provision of this Act shall be so interpreted as to give the Secretary of State power, by regulation or otherwise, to end the entitlement to disability living allowance, or a component thereof, of any living person to whom that benefit has been awarded for life, except where the Secretary of State can show that the benefit was originally awarded in error."").
Baroness Hollis of Heigham: My noble friend Lord Morris is unwell. That is the reason he has asked me to say that he is not in a position to move the amendment.
[Amendment No. 104 not moved.:]
Clause 68 [Discretionary payments out of social fund]:
Earl Russellmoved Amendment No. 105:
Page 46, leave out lines 18 to 34 and insert—("(b) payments of prescribed amounts to meet other needs, in accordance with directions given or guidance issued by the Secretary of State.").
The noble Earl said: With the leave of the Committee, it might be convenient if, in addressing Amendment No. 105, I speak also to Clause 69 stand part. The issues overlap considerably, and I do not wish to make the same speech twice.
490
The Social Fund is divided into a series of different categories. We are particularly concerned with budgeting loans which are repayable, and community care grants which may not be. In the past the situation has been that if an application to the Social Fund was not perfectly fitted to the category for which it was designed, it was possible to consider whether there was an eligibility for another category. I have a copy of a Written Answer in another place on 2nd March. The number of applications for which this was done in the financial year 1996–97 was 13,837. In the current year to the end of January, it was 11,173.
The power to do that, as I understand it, is being limited by the Bill, save for a series of conditions which may be laid down in regulation. It seems to me that this can be a mistake. There are many cases where this ability may meet a very real need. There are cases every year where people are found to be too poor to be eligible for a loan under the Social Fund. There is something rather curious about the idea of being too poor to get help out of the social security system. Therefore the ability to convert from one heading to another where that seems appropriate, in order, and according to conditions and terms of relevance, should be left in place. It should not be controlled and limited to a series of regulations laying down specific exceptions.
The point continues to apply that in drafting regulations we cannot foresee all possible suitable cases. I beg to move.
Baroness Hollis of Heigham: Amendment No. 105 would effectively mean that the current wording of the Social Security Contributions and Benefits Act 1992, as it refers to the Social Fund, would be retained.
In order to explain why we do not support the amendment, it might be helpful to describe the purpose of Clause 68, and thus conjoin, as the noble Earl has done, both the clause stand part discussion and debate on the amendment.
Clause 68 defines in primary legislation for the first time the three separate elements of the discretionary Social Fund: namely, budgeting loans, community care grants and crisis loans. This is a fundamental change from the current legislation, which does not distinguish between the three different types of discretionary payments which the Social Fund provides.
Our purpose in doing this is to enable the Social Fund to be more straightforward for applicants, and for those who deal with their applications. I am sure that many Members of the Committee and the noble Earl will be aware of the difficulties experienced at present by claimants and Benefits Agency staff in relation to the Social Fund.
Under current legislation, each application has to be treated as if it were a request for assistance from any one of the three parts of the discretionary Social Fund. This means that each applicant has to complete a lengthy application form and provide enough information for staff to consider all three types of payment. Yet much of the information would be irrelevant. As a result, applicants find the Social Fund scheme confusing, unclear and time-consuming.

491
We believe that Clause 68 will improve the Social Fund. By defining it into three separate, parallel funds, we make it possible for people to apply for, and give only the information relevant to, the particular type of payment they are seeking. We shall be able to introduce simple and specific application forms. We will make improved information freely available through forms and leaflets on each type of discretionary payment. Those arrangements will enable people to identify and apply first time for the specific payment which best fits their particular need and circumstances.
The noble Earl has raised questions as to whether people will know which to apply for—particularly, I suspect, people who may have difficulty in understanding or coping with applications as such. Perhaps I may give an example. A single person with literacy or learning difficulties wishes to apply to the Social Fund for replacement bedding but is not sure how to go about it and has difficulty in completing forms. If he or she, or someone on their behalf, contacts the local benefits office, they will be able to obtain advice about the Social Fund from Social Fund staff, either by telephone or by calling at the office. They will also be able to receive help with completion of the appropriate application form. In the event that a person is unable to attend the office due to a medical condition, it will be possible for a visiting officer to attend the applicant's home.
I have myself pressed this point. I understand the fear that has been expressed that claimants will be forced down the route of budgeting loan applications rather than being encouraged to apply for grants where those may be more appropriate; and that they will no longer be able to have loans converted to grants following the review.
These issues also arose during the course of the consultation exercise that we conducted. For example, they were raised by CPAG. We have considered them very carefully. Of course we are concerned to ensure that, where someone's circumstances warrant the award of a grant, they should receive one. But we think the way to improve arrangements is to make more explicit the circumstances for which grants or loans could be paid, and that is exactly what our simpler forms and improved information will do. We shall be consulting welfare rights groups, such as CPAG, NACAB and other interested organisations, on the content and design of the new forms and leaflets.
Another concern expressed was whether people would need to submit all three applications at once, just to be on the safe side. No, that will not be the case. Anyone in doubt can apply to Benefits Agency staff to find out which type of application seems most appropriate. I assure your Lordships that the advice will be genuine and objective, and that there will be no question of staff being instructed to press people towards loans rather than grants. If a grant appears appropriate, that is the advice that will be given. Indeed, where staff are dealing with a budgeting loan application, but know from their previous knowledge of the applicant that a grant may be more appropriate, they will be able to invite a grant application.
To reinforce the noble Earl's point, we will be expanding guidance to Social Fund staff to emphasise the importance of taking into account a particular situation —
492
for instance, someone may apply for a budgeting loan but be refused it because he or she is too poor to pay it back, and that may therefore be a contributory factor in putting the family under exceptional pressure and thereby qualifying them for a community care grant. Thus I hope that, by expanding the guidance to staff, we will also ensure that they, too, have a responsibility to ensure that they seek to help claimants in that way.
Let me briefly give an example of when a loan or grant is appropriate. Let us take a lone parent with two young children who applies for help with bed and bedding for the elder child. The applicant states that the child started wetting the bed several months ago; that bed and bedding are now ruined; that the child is currently having to share the applicant's bed. The applicant also states that the child has developed behavioural problems due to bullying at school and the relevant authorities are involved in trying to resolve the issue. In such circumstances, a community care grant is likely to be appropriate due to it being accepted that the particular circumstances have placed the family under exceptional pressure. However, if the problems relating to the child did not exist and it was merely a case of replacing the bed and bedding due to routine wear, a budgeting loan would be appropriate, as it gives an interest-free source of funding to the parent.
I could give other examples, but it is late and I do not wish to delay the Committee. This clause is crucial to the introduction of the faster method of decision-making for budgeting loans contained in Clause 69. This clause will allow us to improve consistency of treatment, clarity of decision and efficiency in the administration of budgeting loan applications. It reflects our aim of modernising the benefit system through better use of technology.
It will mean that, when it comes to determining the budgeting loan, the considerations that will apply will be the length of time someone has been on benefit and the size of their family. This will allow lone parents in particular who have been on benefit for a long time and therefore have problems of dealing with the wear and tear that affects their goods to be able to get the budgeting loan without any of the questioning and cross-questioning that currently occurs and which may delay or defer their claim.
Our purpose in bringing forward Clause 68 is to enable the discretionary Social Fund application and decision procedure to be simplified for claimants, staff and taxpayers alike. I hope that in that context the noble Earl will feel able to withdraw the amendment.
I now turn to the government amendments with which this amendment has been brigaded. The purpose of Clause 73 of the Bill is to allow discretionary Social Fund payments to be covered by the existing overpayments and adjustments of benefit legislation contained in Section 71 of the Social Security Administration Act 1992. This is the legislation that gives the Secretary of State the power to recover overpayments of benefit where it has been determined that they were obtained by misrepresentation or the failure to disclose material facts. The method and terms of recovery will be the same as those for recovering overpayments of benefit.
Amendments Nos. 105B, 105C and 105E to Clause 38 have been brought forward to make explicit the procedure for dealing with discretionary Social Fund overpayments.

493
As amended, Clause 38 will allow "appropriate officers" in the Benefits Agency to review a discretionary Social Fund determination on the grounds that the person who applied for the payment misrepresented or failed to disclose a material fact. This will enable the officer to determine whether an overpayment has occurred as a result of the customer's misrepresentation or failure to disclose information and, if so, the amount overpaid. The Secretary of State can then recover the amount overpaid, under provisions introduced in Clause 73.
When reviews of Social Fund determinations under Part VIII of the Contributions and Benefits Act are carried out, the current procedure is that the whole of the award is looked at again. However, overpayment reviews are a special case. The "appropriate officer" needs only to consider questions arising as to whether a person obtained a discretionary Social Fund payment by misrepresentation or failure to disclose information. Amendment No. 105C ensures that the "appropriate officer" need only consider circumstances which relate to an overpayment determination. Amendment No. 105E requires the "appropriate officer" to act in accordance with any general directions and guidance issued by the Secretary of State when dealing with overpayments. The amendments also apply to reviews on these grounds by Social Fund inspectors.
There are other, related amendments which I fear I have to explain to the House in order that, given Pepper v. Hart, the understanding outside is complete.
Amendments Nos. 105D, 105F and 105G are consequential technical changes. They ensure that "appropriate officers" and Social Fund inspectors only follow the limited review procedures when reviewing determinations on the grounds that the applicant misrepresented or failed to disclose information. I should like to assure the Committee that nothing in these amendments affects applicants' rights to apply for a review, either of the original determination in their case or of the determination that there has been an overpayment. They have a right of review, first, to a second "appropriate officer" in the Benefits Agency and then, if they wish, a further review to a Social Fund inspector at the Independent Review Service. These are technical but important amendments which enable the powers in Clause 73 to be exercised effectively.
I turn penultimately to Amendments Nos. 105H and 105J. Amendment No. 105H will limit the effect of Clause 73 to overpayments relating to payments made on or after the day on which the clause is commenced. This will make clear the date from which the provisions in Clause 73 will apply. It will ensure that Clause 73 does not apply to all discretionary Social Fund overpayments since 1988, when payments from the fund began. Such retrospection would be administratively difficult and almost impossible to undertake.
Amendment No. 105J is a technical amendment which tidies up the legislation. It removes subsection (2) of Clause 73, as this provision is now included in the schedule before Schedule 6, which contains other transitory provisions.
494
The Committee may wish to cross-question me on these amendments. Many of them are technical. I commend the amendments to the Committee.
10.15 p.m.
Earl Russell: I should like to thank the Minister warmly for the great lucidity with which she replied to the amendment and introduced her own amendments. It seems that, as she gets more tired, she becomes more lucid. However, I will promise not to drive her too far down that road. I have no objection to any of the government amendments. I welcome several of the things the Minister said in reply to my own. I welcome the point about guidance, drawing attention to the possibility of grants for those who are too poor to get loans. That I welcome very warmly. I also welcome what she said about the length of time people are on benefit. That is a point which could be worth further exploration because it is an extremely interesting one. I am afraid overall though that her answer did not convince me that the Bill as at present drafted has got it right.
I hear a bell—we have alarms and excursions! But I hope we have no need for an excursion, not for a few minutes anyway.
I was reminded many times while I was listening to the Minister just now of what I had said about the excessive pursuit of tidiness. It seems to me that the Bill, with its attempts to classify applications to the Social Fund under three heads, is an attempt to run an orderly filing system. An orderly filing system and an orderly real world do not always go together.
There are two general areas of objection that I have to the Bill as it stands, and one is that it tends to assume a great deal of knowledge in the applicants. A great many people do not even know that it is possible to obtain grants under the Social Fund.
Secondly, it has too much faith in the ability of claimants to get clear answers by ringing up or going to the office and asking. The Minister had faith in the possibility of telephoning, which would have been better justified had the free line not been closed down last summer. Telephoning benefit offices is getting a little difficult. I think there would have been a better case for this ability to rely on the clerks if we had not had in place the change programme, which I understand is now known by the curious euphemism of the "modern services programme". That illustrates the derogatory possibilities in the word "modern". That, as I understand it, is doing far more damage to the administration of benefit offices than most of us are yet aware of. It is something of which we are going to hear a great deal more.
For these among other reasons, I am still not satisfied. I hope to return to this at a later stage of the Bill, but for the time being and before the Minister becomes any more lucid, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 68 agreed to.
Clause 69 agreed to.
House adjourned at twenty-three minutes past ten o'clock.