Lords Sitting of 20 April 1998

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bath and Wells.

Nurse Prescribing
Baroness Cumberlegeasked Her Majesty's Government:
What is their policy on nurse prescribing.
The Minister of State, Department of Health (Baroness Jay of Paddington): My Lords, I am very grateful to the noble Baroness for giving me this opportunity to make a positive statement on behalf of the Government. I am delighted to tell the noble Baroness and the House that the Government announced this morning at the Royal College of Nursing congress that we shall provide £14 million to enable all health authorities to establish a national programme of nurse prescribing.
We are committed to extending and developing the professional role of nurses as outlined in our White Paper. National funding for training and support so that nurses can take the responsibility for prescribing is part of that programme.
Baroness Cumberlege: My Lords, is the noble Baroness aware that I am going to go out right now and crack open a bottle of champagne? I am absolutely thrilled to bits. For 12 years, with the nursing organisations, I have fought for this to happen and it really is a great day for me.
Before I get lost in all the euphoria, I understand that the Secretary of State suggested this morning that he would wish to take nurse prescribing still further, beyond district nursing and health visiting and into acute nursing. Will the Minister say whether a date has been set for that and whether a programme has been drawn up?
Baroness Jay of Paddington: My Lords, I am extremely grateful to the noble Baroness for her remarks. We are all aware of the long-running fight which she has conducted, both in and out of government, to establish nurse prescribing. I believe that she raised the issue originally in 1986, and so that is a long record.
In his speech this morning, my right honourable friend the Secretary of State for Health referred to extending the nurse prescribing situation. He referred also to the review being undertaken at present by Dr. June Crown, who is having a serious look at ways in which nurse prescribing can be extended. We are expecting the conclusion of that review later in the summer. We expect to be able to take forward some of those recommendations on extending nurse prescribing.
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There will be some legal obstacles—for example, changes which will need to be made in so-called group protocols—and we intend to take action on that as well.
Lord Naseby: My Lords, before the Minister drinks too much champagne, should she not look at the catastrophic reduction in the immunisation programme for MMR and should she not be giving that her top priority?
Baroness Jay of Paddington: My Lords, that is somewhat wide of the Question. As the noble Lord will be aware, the Chief Medical Officer made a very clear policy statement on that subject immediately before Easter in which he encouraged all parents not to be disturbed by the media discussion of that matter. He urged parents to take up MMR immunisation on behalf of their children.
Lord Quirk: My Lords, while welcoming the moves towards making greater use of our nurses and health visitors, might I ask if the Minister will consider making more systematic and structured use of our pharmacists, who also have a large amount of skill which is at our disposal in the community?
Baroness Jay of Paddington: My Lords, the Government certainly acknowledge the role of community pharmacists. Indeed, we are including them in our proposals for extending primary care arrangements in the same way as for nurses and health visitors.
Baroness Gardner of Parkes: My Lords, will the Minister tell us whether any thought is being given also to nurse anaesthetists? I welcome the nurse prescribing and I hope that the day will come when we shall have adequately trained nurse anaesthetists. But will she tell us what is to be done about the great shortage of nurses? Does she believe that the present very high entrance qualifications are deterring people? The drop-out figures were announced this morning as being very high. Does she think that there is now a need for a secondary level of nurses to be trained to replace those very highly skilled nurses whose services will no longer be available for more basic nursing?
Baroness Jay of Paddington: My Lords, several supplementary questions have been very wide of the original Question tabled by the noble Baroness, Lady Cumberlege. I should be delighted to have a general opportunity to discuss nursing policy, and perhaps the noble Baroness and others may wish to raise that in an Unstarred Question or in some other form of debate.
As regards improving the recruitment and retention of nurses, the Secretary of State referred to that in his speech this morning to the Royal College of Nursing congress. It is something which we are taking very seriously. Just before Easter I was involved in the launch of a nationally arranged resource pack for all local health authorities which is intended to encourage nurse

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recruitment. The Secretary of State announced this morning that an extra £4 million will be targeted on trying to establish better ways to achieve that locally.
Earl Howe: My Lords, picking up the point made by my noble friend Lady Cumberlege, is it not the case that in the pilot schemes that have been running until recently nurses have been able to prescribe only from the nurse formulary? Does the noble Baroness not agree that in the longer term it would be desirable for prescribing powers to be extended to specialist nurses and that all such nurses should be able to prescribe from the full British formulary?
Baroness Jay of Paddington: My Lords, the question that the noble Earl raises is part of the subject of the review by Dr. June Crown to which I referred in one of my answers to the noble Baroness, Lady Cumberlege. It is, of course, something which the Government will be looking at very positively. The noble Earl is right to express it in the longer term. At this point we do not want to put any exact date on that particular extension.
Lord Ewing of Kirkford: My Lords, as the Royal College of Nursing is a UK-wide college, can my noble friend say whether the statement made at its annual meeting this morning was UK-wide or does it apply just to England and Wales?
Baroness Jay of Paddington: My Lords, the plan described this morning relates only to those health regions which are in England. Wales, Northern Ireland and Scotland are at varying stages of piloting and developing their own versions of the scheme. It seems unlikely that they will reach very rapid conclusions in that respect, but they are carrying out the sort of pilots which might produce the same kind of decisions which were made by the English Department of Health this morning.
Baroness Cumberlege: My Lords, with regard to the £14 million which has been set aside and which I very much welcome, can the Minister say whether that is money which has been top-sliced from allocations to health authorities or whether it is new money?
Baroness Jay of Paddington: My Lords, this is new money to train nurses. As I am sure the noble Baroness is aware, there will be a substantial training programme involved. I believe that it is estimated that we will probably need to train nearly 20,000 nurses to take up this particular form of prescribing. That will obviously take some time actually to plan and achieve.

Nuclear Weapons in the Gulf
2.44 p.m.
Lord Jenkins of Putneyasked Her Majesty's Government:
Whether it is correct that they were not consulted by the US Government on the possible use of nuclear weapons in the Gulf area and are not involved in
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nuclear war planning, and whether they agree that such discussions would undermine the non-proliferation treaty and nuclear disarmament.
The Minister of State, Ministry of Defence (Lord Gilbert): My Lords, we and other allies have regular discussions with the US over alliance nuclear planning. NATO's nuclear deterrent forces help ensure the peace and stability that will allow nuclear disarmament to be taken forward. Your Lordships may be relieved to know that Her Majesty's Government are not engaged in planning any nuclear wars at this time.
Lord Jenkins of Putney: My Lords, I thank my noble friend for that Answer. However, so that I may thank him with even greater conviction, will he be so good as to tell the House how he draws the line between consultations on nuclear matters with the US, in the circumstances which he has described, and discussions prohibited by the non-proliferation treaty?
Lord Gilbert: My Lords, as I am sure my noble friend is aware, various discussions are carried on from time to time under the procedures of the nuclear planning group. The details of those discussions are, of course, highly confidential.
Lord Chalfont: My Lords, just in case there should be any misunderstanding, can the Minister confirm that there is nothing whatever in the nuclear nonproliferation treaty which forbids consultation between nuclear weapons powers?
Lord Gilbert: My Lords, there is nothing of which I am aware that includes such a prohibition.
Lord Wallace of Saltaire: My Lords, can the Minister tell the House more about consultation with the United States about loose nuclear weapons in the former Soviet Union, about which there is a great deal of active concern in the US? Further, can he say whether her Majesty's Government are also involved in the various programmes to ensure that nuclear materials which are still not fully guarded in the former Soviet Union are now being safely removed and disposed of?
Lord Gilbert: My Lords, I shall respond as best I can to the noble Lord's question. Of course, this is a matter of concern for Her Majesty's Government, as, indeed, it is for any other government who might be affected by a nuclear accident or by dispersal of weapons into insecure hands on the part of malevolent people in the Soviet Union. As far as I am aware, Her Majesty's Government are not contributing any funds to those programmes but are actively engaged in discussions about them.
Lord Craig of Radley: My Lords, does the Minister agree that the possession of a nuclear capability was probably a powerful deterrent to Iraq making use of chemical or biological weapons during the conflict in the Gulf with horrendous casualties on our side?
Lord Gilbert: My Lords, it is not for me to seek to interpret the thought processes of Saddam Hussein.

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However, I can note, as no doubt the noble and gallant Lord has done, that he was not reluctant to use chemical weapons against allies who did not possess nuclear weapons, nor against his own people, whereas he was very reluctant to use any capability that he may have had in that respect in the recent Gulf conflict.

House of Lords Reform
2.48 p.m.
Viscount Montgomery of Alameinasked Her Majesty's Government:
Whether the announcement by the Baroness Hayman on 25th March in the Statement on the Greater London Authority that "there is no substitute for democracy" (HL Deb, col. 1279) will also be applied to any proposed reform of the House of Lords.
The Lord Privy Seal (Lord Richard): My Lords, perhaps I may begin by congratulating the noble Viscount. To succeed in linking my noble friend's answer about a London authority with the Government's proposals on reform of the House of Lords is lateral thinking of a very high order. If I may say so, the noble Viscount is obviously extremely skilled at textual badinage. I am sure that he is also very good at crosswords. Turning to the Question, I assure the House that, as set out in our manifesto, the removal of the rights of hereditary Peers to sit and vote will be the first stage in a process of reform to make the House of Lords more democratic and representative.
Viscount Montgomery of Alamein: My Lords, I thank the noble Lord, Lord Richard, for those compliments. However, I am quite hopeless at crosswords. In the light of his comments and the fact that the reform of the House of Lords is a relevant subject at the moment—it has been discussed both inside and outside this Chamber—can he explain in what way politically appointed life Peers have more democratic legitimacy than others who arrive here by accident of birth?
Lord Richard: My Lords, it occurs to me that those of us who are life Peers in this House are here for what we are meant to have done and not for what our parents are meant to have done.
Lord Renton: My Lords, is the noble Lord aware that, although the democratically elected House of Commons should always have the last word, it is a valuable part of our constitution and in the interests of democracy that we should have the power to ask the Government and the House of Commons to think again, and that we are more likely to do so effectively if we have a degree of independence of party political influence? Therefore, if we were democratically elected we would become a mere microcosm of the other place and a rubber stamp.
Lord Richard: My Lords, I agree with the first part of the noble Lord's question. Of course the second
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Chamber has, and must continue to have, the right to ask the elected House of Commons to think again. However, I do not share the connection that the noble Lord makes between the hereditary peerage and independence of political party. I am sorry to inform the noble Lord that according to the figures that is just not true. Some 360—I believe I have the figure correct—hereditary Peers take the Conservative Whip. On the whole, when they enter the Lobbies they tend to do what the Conservative Whips are pleased to see them do; namely, vote with the Opposition. As regards the Cross-Benchers, the Labour Party has consistently said that it is in favour of retaining an independent element in a reformed House of Lords.
The Earl of Halsbury: My Lords, has the noble Lord the Leader of the House read the article in this morning's edition of The Times to the effect that the appointed working Peers do not turn up to do any work?
Lord Richard: My Lords, I read the article in The Times this morning. I should be interested to see an analysis of how often the hereditary Peers turn up to work. I suspect that the level of absenteeism among those who are here by accident of birth rather than by appointment is rather larger than it is in the case of the life Peers.
Lord Rodgers of Quarry Bank: My Lords, may we take it from what the noble Lord the Leader of the House so clearly said that the Government's mind is now made up on how to proceed and we may take it for granted that a Bill will be included in the Queen's Speech? I hope the noble Lord will not say that it is not the habit of governments to declare their intention in advance of the Queen's Speech. That is simply not the case. The present Home Secretary and previous ones have often said well in advance what the Queen's Speech was likely to contain.
Lord Richard: My Lords, it is not the habit of governments to reveal what will be in the next Queen's Speech. Having said that, the noble Lord is as capable as I of doing the political arithmetic.
Lord Strathclyde: My Lords, does the noble Lord the Leader of the House not think that the time has come to have a better informed debate on this subject? Does he not feel that the Government should now publish an options paper to consider various alternatives for a reformed and—in the words of his party's manifesto—more democratic House?
Lord Richard: My Lords, I do not think it is appropriate to publish an options paper. My party's policy was clearly set out in its manifesto, upon which it was elected with an overwhelming majority.
Earl Russell: My Lords, is the noble Lord the Lord Privy Seal aware that what he said about a first stage in effect repeats the preamble to the Parliament Act

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of 1911? We are still waiting for a second stage. Can the noble Lord give us any reason to think that we shall have reached the second stage before the year 2011?
Lord Richard: My Lords, someone once said that a week in politics is a long time. Eighty years in politics is almost infinity. As I believe I said previously, I regard a Bill to remove the right of hereditary Peers to sit and vote as unfinished business from 1910.

Guardsmen Fisher and Wright: Judicial Review
2.54 p.m.
Lord Burnhamasked Her Majesty's Government:
What was the decision of the court in the judicial review on 25th March of the cases of Guardsmen Fisher and Wright.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs): My Lords, although the hearing of the judicial review concluded on 26th March the judge, Mr. Justice Coghlin, reserved judgment.
Lord Burnham: My Lords, I am disappointed by the noble Lord's Answer because we had a fairly firm assurance that the judgment would be given before Easter, and, if not, certainly in the week after Easter. However, as that has not happened can we have an absolute assurance, as we have been promised in the past—some of us are unhappy about that—that whatever decision is reached, either by the judge or by the Secretary of State, the decision about the release of these men will in no way be governed by political considerations?
Lord Dubs: My Lords, on the first point, the Government cannot control a decision of the judiciary, nor should we do so. We shall have to await the judge's views. On the second point, I give the noble Lord that assurance.
Earl Alexander of Tunis: My Lords, does the noble Lord agree that it is a disgrace that these serving soldiers have languished in prison for doing what they considered to be their duty?
Lord Dubs: My Lords, the Government are not able to agree with that proposition. Those two soldiers were sentenced through a due process of law in the courts. We have to say that justice was done in that case.
Lord Campbell of Alloway: My Lords, will the noble Lord confirm that the release of these guardsmen—I take his point as regards his previous answer—will not be delayed by arrangements for the release of prisoners under the peace process? I seek a categoric assurance.
Lord Dubs: My Lords, I shall explain the relationship between prisoners such as Fisher and Wright and the decisions made under the agreement reached last week in
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Belfast. There will be established, subject to legislation, a sentence review body which will consider the situation of all prisoners who have been convicted of scheduled offences. Fisher and Wright were convicted of scheduled offences. Therefore this process will be subject to the decision of the sentence review board. We hope that the legislation, subject to Parliament's wish, will pass through Parliament by the end of June this year. It will then be for the independent sentence review body to decide in what order and under what priorities it proceeds to consider various prisoners' cases.
Lord Campbell of Alloway: My Lords, on a point of clarification, I seek an assurance. I listened with the greatest attention, but surely the noble Lord can give that assurance in view of his answer.
Lord Dubs: My Lords, if we leave the decision to an independent body it is difficult for me to give an assurance as to how that independent body will work. However, in general terms the answer is yes. If the sentence review body takes a long time to reach the case we are discussing, the Government have already given a commitment that the Life Sentence Review Board—which will stay in existence—will reconsider the case in October 1998. I gave an undertaking that 12 months after the previous occasion on which the body considered the case, the Secretary of State would ask it to reconsider the case. That still holds good. These bodies are independent. The decision about Fisher and Wright will not be delayed as a result of the peace process; indeed it may be accelerated.
Lord Ackner: My Lords, will the Minister concede that the embarrassment which has arisen out of the case of the two guardsmen is the inevitable consequence of a politician exercising the judicial function of deciding how long a person convicted of murder should stay in prison?
Lord Dubs: My Lords, no, I would not concede that point.
The Earl of Carlisle: My Lords, should the sentence review body make a decision which was not in favour of the early release of the two guardsmen, would Her Majesty's Government consider putting the case to the Sovereign so that she could exercise her prerogative of mercy?
Lord Dubs: My Lords, I have indicated that two procedures will be running in parallel: the Life Sentence Review Board procedure which is already in existence; and, subject to new legislation, the sentence review body. Either will be able to make a decision about the two guardsmen. In the circumstances, I think that it would not be appropriate to refer the case elsewhere.
Lady Saltoun of Abernethy: My Lords, how can soldiers do their duty if, in the course of doing it to the best of their ability, often in very difficult circumstances, they are rendering themselves liable to be sued for murder if they kill someone in error?
Lord Dubs: My Lords, I agree that of course our soldiers and the RUC in Northern Ireland have carried out

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a very difficult task over many years in a brave and exemplary manner, and that their lives have been at risk. Indeed quite a few of them have been killed in the course of doing their duties. That has to be clear and accepted by all, as I am sure it is.
However, we also have the rule of law. We also have independent courts. It was the court that decided that these two men were guilty of murder. It is part of our system that the courts make those decisions and not governments.
The Duke of Norfolk: My Lords, it is all very well to reply, as the Minister has done, but we who have served in the Army ourselves are taking a great interest in the lives of the two guardsmen. I am proud to have marched with the infantry for 30 years of my life. We do not wish to have the judicature interfered with in any way, but these two guardsmen have been in prison for five years. They did an act in the heat of the moment in the discharge of their duty. We should like the Government to recommend to the judicature that those guardsmen should get off as soon as possible.
Lord Dubs: My Lords, when prisoners are given life sentences in Northern Ireland the Life Sentence Review Board normally does not look into their cases until they have served 10 years. In this particular case, and quite exceptionally, the LSRB was asked to look into the case after five years. It will be asked to look again at the case a year later—that is, next October. I should have thought that that goes quite some way towards meeting the noble Duke's point. Each case has to be considered in the particular circumstances relating to it. That has been done in the case of Fisher and Wright.
Lord Burnham: My Lords, in the light of what the Minister said, on the last occasion of a judicial review of these cases, which was some time in the middle of last year, was not the recommendation that the two guardsmen should be released last October? Was that recommendation turned down by the Secretary of State and not by the judges?
Lord Dubs: My Lords, last October the Life Sentence Review Board gave its confidential recommendations to the Secretary of State. The Secretary of State considered those views and all other facts relating to the case and asked the Life Sentence Review Board to look again at the matter a year later. As I said earlier, that is next October. I do not think that the judicial review decision urged release. I believe that the decision related to the procedures surrounding the way in which the case had been handled.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lords Dubs will, with the leave of the House, repeat a Statement that has been made in another place on the Irish settlement.
It may also be for the convenience of the House to know that some additional business has been tabled for Wednesday, 22nd April. At the end of business on that
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day, that is to say after the debate in the name of the noble Lord, Lord Vivian, and the Private Member's Bill in the name of the noble Lord, Lord Evans of Parkside, my noble friend Lord Dubs will move two affirmative orders arising from the peace settlement in Northern Ireland. These orders are being laid today.

Social Security Bill
3.4 p.m.
Report received.
Lord Goodhartmoved Amendment No. 1:
After Clause 1, insert the following new clause—
ADJUDICATION STANDARDS COMMISSIONER
(" .—(1) The Secretary of State shall appoint an Adjudication Standards Commissioner.
(2) The Adjudication Standards Commissioner shall keep under review the exercise by the Secretary of State of the functions transferred to him by paragraph (a) of section 1 above and in particular the accuracy of decisions made by him or on his behalf under sections 9, 10 and 11 below, and the time within which such decisions are made.
(3) The Adjudication Standards Commissioner shall report annually to the Secretary of State in the light of the review referred to in subsection (2) above and the Secretary of State shall lay a copy of his report before Parliament.").
The noble Lord said: My Lords, I beg to move Amendment No. 1 in a House which, although rapidly emptying, is still somewhat fuller than it has been for almost the whole of the previous debate on the Bill.
The amendment brings back part of an amendment that I moved at Committee stage. In its original form, the amendment made the adjudication standards commissioner responsible for giving guidance on law and for ensuring the proper training of persons making first tier social security decisions as well as for reviewing the standards of decision making. The additional guidance and training functions were criticised by the noble Lord, Lord Higgins. On reconsideration, I believe that he was correct to criticise them. Therefore this amendment drops those functions. The present amendment leaves the adjudication standards commissioner responsible only for reviewing and reporting on standards of first tier adjudication.
Adjudication standards are, sadly, low. The chief adjudication officer's report for 1996–97 found that there were adjudication deficiencies in 45 per cent. of income support cases examined by him, and in 37 per cent. of family credit cases. The chief child support officer found that there were deficiencies in 57 per cent. of child support cases examined by him. That is a lamentable record and indicates that close and continuous monitoring of standards is essential.
How is that to be achieved? At col. 50 of Hansard of 30th March, the noble Baroness, Lady Hollis, said that agency chief executives would be responsible for the monitoring and general oversight of the system. She continued that there would also be external monitoring of that system. But the only external monitoring that she mentioned was by the National Audit Office and by the president of the appeal tribunals. National Audit Office

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monitoring is mainly concerned with the audit of the accounts of the Department of Social Security. The National Audit Office is quite plainly a body which is unsuitable to review adjudication standards.
The president of tribunals will report only on those cases which go to appeal. That is useful so far as it goes, but he will be dealing only with a limited and unrepresentative sample. It follows therefore that the main responsibility is, as the noble Baroness, Lady Hollis, said, on the chief executives to monitor their own agencies. Chief executives, like the rest of us, are only human and it is an inevitable tendency, of which I think we are all aware, that when we report on the performance of our own organisation we aim to present it in the best possible light.
At Committee stage I quoted from the comments of the presidents of the Independent Tribunal Services of Great Britain and Northern Ireland. I shall do so again. The quotation appears at col. 46 of Hansard of 30th March. It states:
"'Once the Chief Adjudication Officer … ceases to exist, there will be no independent means of assessing consistency and reliability of decision-making. If such a system is not established, and it is left to the Chief Executive of the relevant agencies, we fear that it may not achieve the priority it deserves when competing for funds in a pressured business environment. The absence of such a system may actually threaten achievable efficiency at first-tier level"'.
External monitoring of the performance of those responsible for taking the first year decisions is of the highest importance to the maintenance of proper standards of adjudication. The Government's proposal in Amendment No. 68, grouped with this one, is for internal monitoring only. The proposal for an independent adjudication standards commissioner is a better way of achieving the higher standards which I am sure all of us in this House wish to ensure. I therefore ask the Government to think again on this question.
Lord Higgins: My Lords, I have listened with care to the noble Lord, Lord Goodhart, who rightly recounted what occurred in Committee. He rightly draws attention to concern in relation to the standard of the decisions that are being made. However, I note that government Amendment No. 68 may also be relevant to this matter. We shall no doubt wish to consider carefully the Minister's remarks on this subject.
We are about to enter into what may well turn out to be a fairly exciting Report stage. Perhaps I may say a word about the situation that has now arisen. In addition to Amendment No. 68, just referred to, there are a very large number of government amendments. That is in many ways extraordinary, given that the other place dealt with the matter in Committee over many weeks. At the beginning of the Committee stage, I thought it right to draw your Lordships' attention to a particular group of government amendments; namely, those which in effect implement a large part—indeed, perhaps the central piece—of the Chancellor of the Exchequer's Budget. Since I am not fully conversant with the technical side, perhaps I may ask the Minister to respond in her normal sympathetic way and say whether there have been financial resolutions in the other place
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supporting these amendments, and whether, if they are carried in this place, it is the Government's intention to move them in another place.
There is considerable concern that the way in which these amendments are being put forward means that they are likely to bypass totally the normal procedure for examining amendments in another place. They are appearing for the first time in this place; they will then return to the Commons as Lords' amendments but with no Committee stage during which the other place can take them into account, nor indeed a Report stage. I therefore hope that the Government might, at an appropriate moment in the discussions—the matter may arise more clearly on Thursday—be able to give us some indication as to exactly how they intend to continue. Would it be possible for these matters to be introduced in a further social security Bill which I believe the Government have in mind when the normal courtesies to the other place could be fulfilled and there would be a reasonable opportunity for Members there to examine the matters in considerable detail?
I do not wish to detain the House further on this matter. However, as we proceed through the mass of amendments before us, we shall need to examine carefully the extent to which the Government's method of proceeding is appropriate. My own feeling is that there are grave dangers in going about the matter in this way, since the legislation will not receive appropriate detailed examination. That said, we look forward to hearing the noble Baroness's comments on Amendment No. 68.
3.15 p.m.
Earl Russell: My Lords, I cannot follow the noble Lord, Lord Higgins, down the very tempting path that he has indicated. It is a basic parliamentary principle that each House is sovereign over its own proceedings. Another place is perfectly capable of making its feelings clear to us should it so wish. I do not believe that we have the authority or the competence to set ourselves up as champions of the procedure of another place. It will do that if it so wishes.
I welcome, as I did previously, government Amendment No. 68, which, so far as it goes, is a good one. However, I remember saying in Committee that I should very much hope to find in that amendment the word "independent". I cannot find it, and that is a significant omission. It is a basic principle that one should not be judge and party in one's own court. Under this Bill, the Secretary of State will at least run the risk of appearing to infringe that principle. It is therefore important that somewhere in the system an element of genuine independence should be inserted.
I have just been reading the Minister's reply to this amendment in Committee. She spoke the language of authority over the judicial process. She stated:
"we will ensure that decision-making under the new system is of the highest quality".—[Official Report, 30/3/98; co1.49.]
There appears to be no doubt in the Minister's mind that this is a proper subject for the Secretary of State's own authority.

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I should feel a good deal happier if there were at least some independent monitoring of this process. So before we enter into a great constitutional argument and refer to courts and so on and so forth, the Minister might avoid a good deal of trouble were she to accept this amendment in the revised form in which it now stands.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, in responding to this amendment and Amendment No. 68 with which it is grouped, perhaps I may revisit the points made rather ingeniously by the noble Lord, Lord Higgins, in terms of House procedures. I endorse the view put by the noble Earl that it is for the Commons to champion its procedures rather than for us. However, so that there need be no misunderstanding between us, I do not believe that the way in which we are handling this matter necessarily bears the interpretation put upon it by the noble Lord. It might therefore be for the convenience of the House if I repeat the Government's position on that in order to provide an opportunity to return to the matter on reflection, either later on Report or at Third Reading.
My understanding is that national insurance matters come under social security legislation and therefore cannot be included in a finance Bill. As all governments must, the Government have to respond to changing circumstances. It would not be unusual for government amendments to be tabled in respect of Bills that have passed through the Commons and are proceeding through this House. Were that not to be the case, this House could never introduce new material into any Bill, and by definition, when the Bill returns to the Commons, there is the opportunity to amend or reject our amendments and, if the House is so minded—though Heaven forfend$—enter into a game of ping-pong. So in that sense we are doing nothing different. Were we to follow the line of the noble Lord's thinking—namely, that this House is somehow invading the Commons' privilege if it introduces new material which has not been subject to Standing Committee scrutiny in the Commons—the House of Lords would indeed be turned into a poodle and do nothing ever more than comment on the drafting, punctuation and syntax of Commons' debates and never introduce or raise policy issue debates. That is an important consideration in relation to a Bill which, for all kinds of reasons of which your Lordships are aware, has taken a great deal of time to handle. Furthermore, between the beginning of the Bill and the Report stage in this House we have had not only the Budget but the welfare reform Green Paper, both of which introduced new and relevant matters.
As regards the issue of Commons' privilege, it is true that contributions payable into the National Insurance Fund are the subject of Commons' privilege. But it is a privilege that Members of the Commons are able to waive. They will be invited to do so when the Bill returns there. The national insurance changes have been broadly welcomed. During this Session, we must legislate to give businesses the time that they need to be able to operate the system from April 1999. That is why we are handling the matter in this way. The money
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resolution passed at Second Reading in the other place covers all similar new measures. It is the case, is it not, that the noble Lords, Lord Higgins and Lord Goodhart, may still pursue some of their more detailed concerns in relation to national insurance? I entirely take their point. This is not a party-political matter. We are all concerned to achieve the right solutions. I believe we share a common diagnosis of the problems and any contributions the noble Lords can give us that we could take on board would be warmly welcomed. As a former Minister, the noble Lord will understand that one is dependent upon the professional advice that one receives on the matter. I have tried to address the issues of procedure and money resolutions raised by the noble Lord, Lord Higgins, in rather ingeniously supporting an amendment which had nothing to do with the subject.
I turn now to Amendment No. 1 moved by the noble Lord, Lord Goodhart, and government Amendment No. 68 with which, for the convenience of the House, it is grouped. Both amendments are concerned with the arrangements for overseeing the new decision-making system. Amendment No. 1 seeks to raise again the issue of independent monitoring of decisions made under the new arrangements as set out in the Bill. I shall discuss later why we do not feel we can accept the amendment. Amendment No. 68 is a consequence of the debate on Clause 1 of the Bill at Committee stage when my noble friends Lord Evans of Parkside and Baroness Turner of Camden tabled amendments, with support from all sides of the House, to make it a requirement on the face of the Bill for there to be annual reports on standards of decision-making. In the light of that discussion, I was happy to accept the spirit of the amendment and to give a commitment to come back at Report stage with an appropriate government amendment to put the requirement on the face of the Bill. Amendment No. 68 does just that: it makes it a requirement for a report on standards of decision-making to be prepared annually or at such times or intervals as may be prescribed.
I can assure the House that it is our intention to produce reports annually or as near to each year as possible. Our current thinking is that reports on standards of decision-making will be included as part of the annual departmental report. Publication dates are prone to vary slightly according to the timing of the Budget.
I also wish to follow up a point made by the noble Lord, Lord Higgins, at Committee stage. He asked whether there would be targets against which standards of decision-making should be judged, and again I promised to consider the matter and come back to him. The reports on the quality of decision-making produced by the Secretary of State will include measurements as regards achievement of targets and the standards to which decisions have been made. We shall discuss with agencies what form these targets will take.
The amendment meets the concerns expressed in both Houses on reports on standards of decision-making. It sets out a clear requirement for there to be reports on standards of decision-making on an annual or near-annual basis. It also makes it a requirement for such reports to be laid before each House of Parliament.

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Amendment No. 1, tabled by the noble Lord, Lord Goodhart, and the noble Earl, Lord Russell, seeks to go much further and to reintroduce independent monitoring. It seeks the appointment of an adjudication standards commissioner to oversee and report on the accuracy and speed of decision-making. We do not believe that that would achieve any improvement in the standard of decision-making but would instead add an additional layer of bureaucracy.
There seem to us to be two particular issues which are at the heart of the amendment: first, the achievement of consistent and reliable decision-making across the agencies; and, secondly, an independent—the word emphasised by the noble Earl, Lord Russell—oversight of the decision-making process.
We believe that the measures we are putting in place will fully address these issues. Furthermore, we believe that our approach makes ongoing improvements to the quality of decision-making an integral part of the process, not an optional add-on.
Consistency will be achieved through the setting of challenging targets and standards for each agency by the Secretary of State, those targets and standards being publicly known. Agency chief executives will be directly accountable to her for the achievement of those standards. Amendments to achieve that will be embodied in the reporting structure.
We believe that this line of accountability is a crucial element of our strategy for making improvements. Agencies have given considerable thought as to how they are to meet their new responsibilities. The standards committees and arrangements for training that I described in Committee are among the many initiatives that will aid quality decision-making. They demonstrate the commitment that is felt across the department to getting this right. High standards will be achieved by making accountability for quality a central feature for every agency, not through a distant and effectively powerless monitoring body.
That brings me to the question of independence. I have sought to explain why we think that accountability, rather than an independent monitoring body alone, is the key to ensuring good service. But, of course, we recognise that there must be public confidence in the integrity of the system, and independent monitoring is important for that. That is why the National Audit Office will have its role in this area extended. We have been discussing with it how to enhance its monitoring of quality. It is not true to say that the National Audit Office is concerned only with the monitoring of accounts. We are already working with it on the implementation of the new procedures. There will be a value-for-money study in the early stages of implementation, in addition to the usual audit.
I hope that your Lordships will accept that, in bringing forward the new clause on Report, we have reflected the will of the House, and I commend Amendment No. 68 to your Lordships. However, we believe that we have in place robust monitoring arrangements to make sure that high quality decision-making is achieved and maintained. We shall
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have the annual reports by the chief executives of agencies, together with demanding targets. The degree to which those targets have been met can be scrutinised. We shall also have the annual report of the Secretary of State, the annual reports of the presidents of tribunals and the report and extended monitoring role of the National Audit Office. We believe that we have in place a full network of monitoring and audit which will ensure accountability as well as integrity of decision-making. I therefore hope that your Lordships will not be minded to accept Amendment No. 1.
Lord Goodhart: My Lords, I have to confess that I am disappointed by the Minister's reply and her failure to accept the principle of fully independent monitoring. In the circumstances, this is not an amendment which I propose to take further and I therefore beg leave to withdraw it.
Amendment, by leave, withdrawn.
Baroness Anelay of St. Johnsmoved Amendment No. 2:
Page 3, line 27, leave out ("subsection (3)") and insert ("subsections (3) and (3A)").
The noble Baroness said: My Lords, in moving Amendment No. 2, I shall, with the permission of the House, speak also to Amendment No. 3. These amendments were tabled by the noble and learned Lord, Lord Archer of Sandwell, in Committee and supported by my noble friend Lord Higgins. They could not be moved at that stage because we were all struck by a pre-emption which caught us all by surprise. I have explained to the noble and learned Lord, Lord Archer of Sandwell, that I am not trying to steal his very good ideas on this matter. I was aware that he was away last week and therefore might not be able to table these amendments. Because I supported them so strongly, I did not wish them to go by default.
I am concerned about the position of members of tribunals who are appointed for their medical expertise but who simultaneously receive payments from the Secretary of State for medical reports prepared in connection with the award of incapacity and disability benefits. Tribunals must not only be independent and impartial, as I firmly believe they are; it is also important that they are perceived to be so by all parties to appeals, most importantly by those appearing before them as appellants.
The number of those who are potentially involved in compromising the impartiality of the tribunal is, I believe, significant. Figures were released in March 1997 showing that 232 medical members of disability appeal tribunals are also approved by the Benefits Agency medical services to examine people in connection with disability living allowance or attendance allowance. Those figures were given in another place on 11th March 1997. Fees are paid by the Secretary of State to the doctors who carry out such examinations.
In February last year, of 24,401 examinations carried out in connection with DLA and AA cases, approximately 5 per cent. were allocated to doctors who

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also sit on DLA tribunals as members hearing appeals against the refusal of those same benefits. Details of those figures were given in another place on 18th March last year. In most cases the refusal of benefit will have been based on the medical examination itself.
A further 88 doctors simultaneously sit on disability appeal tribunals and perform work for the Benefits Agency on a fee-paid basis concerning incapacity benefit.
When an ordinary person appears before a tribunal as an appellant, it must seem to them self-evident that a doctor who is being paid by the DSS to carry out medical examinations on the basis of which benefit is then awarded should not at the same time sit on the very tribunal which has been set up to consider whether a decision by the DSS is correct. It is even more vital when that doctor is paid to carry out examinations in connection with the same benefit which is the subject of the appeal.
The practice of appointing to disability appeal tribunals those doctors who perform work for the Secretary of State in connection with DLA was recently accepted by a social security commissioner. However, I note that the president of the Independent Tribunal Service pointed out the controversial nature of that decision, which also has implications for the appointment of medical members to hear incapacity benefit appeals.
At present the argument is that a conflict of interest is only accepted if the doctor who is sitting on the tribunal comes across an appellant appearing before that same tribunal whom he or she had previously examined in connection with the claim for benefit actually under appeal. Indeed, that is a general rule covering all members of appeal tribunals. When I sat as a lay member of a tribunal that situation could arise. I would appear at a tribunal and only then discover that Mr. or Mrs. Smith or Mr. or Mrs. Brown who appeared before me were people whom I had advised in my capacity as a worker at the citizens' advice bureau. I would then withdraw. That same rule is applied to doctors. But the problem with that situation is that recognition of the appellant comes too late. They have prepared their case; they have prepared themselves for the trauma of appearing before a tribunal and only when they appear do they find that the case cannot be heard by one of the panel members. It may well be that the whole case is adjourned until another date.
I believe therefore that we need the amendment in order to be sure that doctors, as a group, do not have their credibility as effective members of appeal tribunals undermined. I beg to move.
3.30 p.m.
Lord Archer of Sandwell: My Lords, I am grateful to the noble Baroness, Lady Anelay, for tabling this amendment. It is true that we were not able to discuss this matter in Committee because of the procedural hiccup which none of us foresaw until the net had closed.
I will not attempt to repeat the argument stated so clearly by the noble Baroness. I agree that possibly the best example of the principle to which my amendments
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in Committee were directed is the example of the doctor who feels that he might be under pressure if he were to displease the Department of Health. That is a genuine problem which I hope my noble friend will consider.
However, I hope the noble Baroness, Lady Anelay, will forgive me if I say that I cannot go with her across the whole width of her amendment. She seeks to disqualify anyone in the employment of the Crown from being a member of a tribunal. A number of people who are in the employment of the Crown are effective and dedicated members of tribunals and do an extremely good job. They may face no danger of a conflict of interest. For example, a scientist working in the Crown's research laboratories would not necessarily have any reason to fear a conflict of interest in this kind of situation.
The amendment goes rather wider than the initiative it seeks to meet. Having said that, I will listen with great care to the reply of my noble friend because the narrower issue is one which should be addressed.
Lord Goodhart: My Lords, I rise to support the amendment and will do so briefly because all the points that could properly be made on it have been made already by the noble Baroness, Lady Anelay, and the noble and learned Lord, Lord Archer.
The present situation breaches the vital principle that a tribunal should be seen to be independent and impartial. A doctor who is employed by the DSS on other matters relating to disability may face a conflict of interest. I accept also the qualifications of the noble and learned Lord, Lord Archer, that that does not apply across the board and that there are other holders of government posts who could properly sit as members of an appeal tribunal.
The primary point is that made by the noble Baroness. It is an important one and I hope that the Government will see fit to accept the amendment.
Lord Borrie: My Lords, I feel extremely doubtful about the amendment, not only for the reasons given by my noble and learned friend Lord Archer of Sandwell—namely, that the amendment is exceedingly broad—but also on the basis that the noble Baroness, Lady Anelay, tabled the amendment in a way which concerns the credibility of medical practitioners.
As the noble Baroness explained, we are not talking here about a case where the medical practitioner is involved in examining patient A and then finds himself or herself sitting on the appeal tribunal concerning patient A. In that situation there is immediate conflict and there would be a standing down of the medical practitioner involved. But the scope of the amendment means that several hundred—I believe the number was 237—doctors who are currently employed to examine people for the DSS and act also as medical members of appeal tribunals would have to be barred. That is a drastic decision to take. It would deprive a great many people with experience in the field of examining people applying for benefit under the social security system of membership of appeal tribunals.

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The noble Baroness referred to the credibility of medical practitioners. But credibility also involves integrity. The noble Baroness appears to be questioning the professional integrity of medical practitioners by suggesting that if they are employed by the Crown to examine individuals on behalf of the department on one day they are incapable of sitting on another day as a member of a tribunal hearing decisions about different individuals.
Lawyers—two lawyers have already spoken broadly in favour of the amendment—particularly barristers but nowadays solicitors as well, may act in a judicial capacity on a number of days a month or a year in fields in which their expertise arises, and continue to practise on behalf of a plaintiff or defendant in similar cases. Their professional integrity is not questioned. Indeed, it is a feature of their professional integrity that they are capable of acting in a judicially impartial capacity on some days of the year and on other days of being the most partisan on behalf of an individual and being employed by government departments to be partisan advocates.
Therefore, for practical reasons of depriving the tribunal service of a large number of valuable members, and for reasons concerned with maintaining professional integrity, the amendment is not a suitable one for this House to pass.
The Lord Advocate (Lord Hardie): My Lords, I am sure that the reason this amendment was tabled by the noble Baroness, Lady Anelay, was a desire on her part, and also on the part of noble Lords who spoke to it, to ensure that appeals are dealt with in a fair and impartial manner; but not only that. It was in order to ensure that there is a perception of fairness and impartiality. Very often the perception is as important, if not at times more important, than the reality.
The Government share this view and believe that public confidence in the independence and impartiality of the tribunals, and of tribunal members, is crucial to the success of any appeals service, in particular to the new appeals service. While I cannot agree with the manner in which the noble Baroness is seeking to achieve our shared objective, I believe I can reassure her and other noble Lords that there will be sufficient safeguards in place to make these amendments unnecessary.
My noble and learned friend the Lord Chancellor believes that the independence of panel members is most effectively guaranteed if the power of appointment is vested in him alone, as it is in respect of other judicial appointments to tribunals for which the Lord Chancellor is responsible. We share the Lord Chancellor's view and we have therefore made provision in Clause 6 for all appointments to the panel to be made by him. The nature of the appointments will ensure judicial independence and freedom from political pressure or other influence in the selection process.
The effect of Amendments Nos. 2 and 3 would be to preclude the Lord Chancellor from appointing to the panel set up under Clause 6 anyone who is "in the
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employment of the Crown". I associate myself with the comments of my noble and learned friend Lord Archer of Sandwell, the noble Lord, Lord Goodhart, and my noble friend Lord Borrie that the way in which the amendment is framed is far too wide. It would exclude any employee of the Crown. Noble Lords will be aware that the meaning of the expression has caused much debate generally. It may help if I explain that the Lord Chancellor does not currently appoint persons such as serving civil servants to any tribunal where the state is a party to the proceedings. That would continue.
I turn to the question of the medical members, which is the crux of the matter in so far as I understand the position of the noble Baroness, Lady Anelay. The point has been made that there may be a possible conflict of interest for doctors who are involved in benefit determinations and who are also appointed to the panel. Perhaps I may, as my noble friend Lord Borrie did, split this category of doctors into two. Clearly, if the doctor has examined someone who is appearing before the panel of which the doctor is himself or herself a member, it would be inappropriate for the doctor to sit in such a case. At present, there are regulations which provide for that. The noble Baroness, Lady Anelay, referred to this point. I would hope that the problem which she experienced would not arise very frequently in the case of doctors. Unlike the noble Baroness, who would be giving advice in the context of the voluntary sector to a variety of people, where it might be difficult to identify them from reading the papers in the case of a doctor who had examined a patient, I think that difficulty is less likely to arise. However, in the event that it did arise, in terms of the existing regulations and in terms of the new regulations which will mirror them, he or she would be obliged to decline to act in that case. I appreciate that that would cause inconvenience, which is to be regretted, but in the interests of fairness and impartiality it is a necessary requirement.
I turn to the issue as to whether any doctor who has responsibility for examining a patient on behalf of the state should be allowed to sit as a panel member. On a practical level, I am advised that it would be difficult to find a doctor who had not at some time offered advice to the Secretary of State on a medical issue. We could not obtain sufficient panel members with the appropriate medical qualifications and expertise to run the appeal tribunals effectively—this point was made by my noble friend Lord Borrie—if doctors who had advised the Secretary of State at some point were precluded from appointment to the panel.
As the noble Baroness, Lady Anelay, observed, this issue was looked at very carefully by a social security commissioner in 1995. I appreciate that Judge Bassingthwaighte indicated that this matter should not be overlooked despite the decision of the commissioner. But one must bear in mind that the commissioner is the ultimate authority. The commissioner has greater authority on such matters than the president of the tribunal service. However, after exhaustive consideration of the role of doctors in the adjudication system, the commissioner in 1995 concluded that natural justice was not compromised by the presence on an appeal tribunal of a doctor who also provided

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fee-paid assistance and advice to the department in respect of other patients. Nothing in the Bill would change that position.
We understand that there could be concern from an individual appellant that a panel member sitting on a tribunal had previously been involved with him in relation to social security matters. In that situation the doctor would be required not to sit on the tribunal. I should like to reassure noble Lords that the Government will be bringing forward regulations containing similar provisions to those which now exist, which explicitly preclude any chairman or member from considering on appeal a case in which they have had any personal involvement. Currently, it is a condition of their appointment that all ITS members must be independent and impartial. If they realise from the appeal papers or when they turn up that there is a conflict, they themselves have an obligation to draw that to the attention of the authorities and to withdraw from the hearing. I can assure noble Lords that similar arrangements will apply for persons appointed to the panel. In the light of these reassurances, I hope that the noble Baroness will withdraw her amendment.
3.45 p.m.
Baroness Anelay of St. Johns: My Lords, I begin by referring to the comments made by the noble Lord, Lord Borne, as to whether I question the integrity of doctors who sit on appeal tribunals. Perhaps the noble Lord will recall that when I opened my remarks I said that I had found tribunals to be trustworthy and full of integrity. I did not myself question that. But those who appear in front of them might well say with regard to myself, "Well, she would say that, wouldn't she?", as I sat as a member for 14 years. I was trying to put myself in the position of those who appear before the tribunal. It is certainly my experience that people who appear in front of tribunals do not have the same perception as those who sit on them and that there have been occasions when appellants who had been through a series of medical decisions—if one is suffering from severe medical problems one tends to appeal again and again—found that there was a person on the tribunal who had some time back sat on one of their cases and had rejected them but was not debarred at that stage from dealing with that appeal.
I accept the point made so clearly by the noble and learned Lord, Lord Archer of Sandwell, that my amendment goes too wide. The noble Lord, Lord Goodhart, made the same comment. I was trying only to look at the compromise situation of doctors employed by the DSS. On that basis alone, I would ask leave to withdraw the amendment, and I also take encouragement from the words of the noble and learned Lord the Lord Advocate with regard to the safeguards which the Government intend to introduce. If there were to be further rules with regard to the position of doctors and others who find themselves hearing cases where they had been personally involved, I would welcome that. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]

The Irish Settlement
3.49 p.m.
Lord Dubs: My Lords, with the leave of the House I shall now repeat a Statement being 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 successful conclusion of the multi-party talks in Belfast.
"It is my privilege to be able to tell the House that a comprehensive political agreement was reached late in the afternoon of 10th April—Good Friday. The text has been published as Command Paper 3883. A copy is being sent to every home in Northern Ireland. I am very grateful to the Post Office for providing this service at business rate, so people across Northern Ireland have a chance to study the agreement in detail.
"The Government's main aim through these negotiations has been to secure political stability and lasting peace for all the people of Northern Ireland. As a result of the Belfast Agreement, that goal is now in sight.
"This is a unique agreement born of a unique set of negotiations—involving unionist, nationalist, republican and loyalist around the same talks table. This is a situation in which, though compromises have been made, everyone can be a winner. Everyone's political and cultural identity is respected and protected by this deal.
"Northern Ireland politics for so long has been seen as a zero sum game: this agreement demonstrates the potential for the people of Northern Ireland to move beyond that into a new type of politics in which everyone can gain. It represents a sensible, fair and workable way forward for both communities.
"I want to pay a particular tribute to the negotiating teams of all the parties involved. They have fulfilled the duty placed upon them by the people they represent. I would also like to pay tribute to a group, often vilified, who have worked for so many years to bring about this agreement often at personal risk to themselves and their families—the UK and Irish civil servants.
"It is important when we are talking about all these positive developments that we do not lose sight of the terrible price that has been paid by the victims of violence and their families. No amount of progress in the search for lasting peace will bring back those loved ones who have been lost or take away the pain felt day in day out by their families.
"I hope that Ken Bloomfield's Victims' Commission will, later this month, provide us with some practical suggestions as to how we can best recognise the suffering endured by the victims of violence and their families. Many of those families say to me similar words to those in the agreement itself that,
'the achievement of a peaceful and just society would he the true memorial to the victims of violence'.

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"The main elements in the agreement are: first, on constitutional issues, the British and Irish governments have formally resolved our historical differences through the general and mutual acceptance of the principle of consent, which means Northern Ireland is part of the United Kingdom, and will stay that way for as long as that is the wish of a majority of the people who live there, and it means that if the people of Northern Ireland were formally to consent to the establishment of a united Ireland, the government of the day would bring forward proposals, in consultation with the Irish Government, to give effect to that wish.
"Under the agreement, the Irish Government will bring forward proposals to amend the Irish Constitution to bring it into line with this understanding, and the necessary changes will be made to British constitutional legislation.
"Secondly, there will be greater democratic accountability in Northern Ireland through the devolution of a wide range of executive and legislative powers to a Northern Ireland assembly.
"In the assembly, posts of executive authority will be shared on a proportional basis and safeguards will be in place to protect the interests of both main parts of the community.
"Thirdly, there will be a north-south ministerial council bringing together those with executive authority, north and south, to work together by agreement on matters of mutual interest. Those participating on the council will be mandated by and remain accountable to the assembly and the Irish Parliament. At least six 'implementation bodies' will be identified within the next six months to put decisions taken by the council into effect on a cross border or all-island basis in specified areas. More such bodies or mechanisms may be established by agreement between the two sides, north and south.
"Fourthly, there will be a British-Irish council to bring together our two governments and representatives of devolved administrations in Northern Ireland, Scotland and Wales, and from the Channel Islands and the Isle of Man. This development builds on the Government's key programme of constitutional reform.
"Fifthly, there will be a new British-Irish agreement to replace the Anglo-Irish agreement of November 1985. This new agreement will be brought into effect as soon as the other elements of the deal are in place. The British-Irish agreement sets out the new shared understanding on constitutional matters. It also creates a new British-Irish intergovernmental conference which will deal with all bilateral issues between the two governments. And in recognition of the Irish Government's special interest in relation to Northern Ireland there will continue, as now, to be regular meetings between me and the Irish Foreign Minister.
"However, in future, relevant executive members of the Northern Ireland Administration will also be involved in these meetings to discuss non-devolved
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issues which arise in relation to Northern Ireland. The existing joint Anglo-Irish Secretariat at Maryfield will close before the end of this year.
"The agreement also includes a range of measures to enhance the proper protection of basic human rights including a new independent human rights commission in Northern Ireland to consult and advise on the scope for defining rights supplementary to those in the ECHR which the Government are already in the process of incorporating into our law across the UK.
"A public consultation is already under way about the proposals in our Partnership for Equality White Paper. Subject to that consultation, those proposals—including the establishment of a powerful new equality commission—are reflected in this agreement along with other proposals to encourage parity of esteem between the two main political and cultural traditions.
"Finally, the agreement looks ahead to the creation of a normal and peaceful society in Northern Ireland. It establishes a clear process for the decommissioning of illegal weapons that can start forthwith and a commitment by all the parties to work constructively in good faith with the independent commission and to use any influence they have to achieve the decommissioning of all paramilitary arms within two years of the referendum. It commits both Governments to reducing the profile of security measures and emergency legislation as the threat to peace and good order reduces.
"There will be an independent commission to consider what kind of policing service would be appropriate in a Northern Ireland free from the threat of terrorist violence and capable of fully commanding the support of both communities. There will also be a parallel review of the criminal justice system. The agreement also commits both governments to put in place mechanisms to provide for an accelerated programme for the release of prisoners. Let me be clear, this is not an easy issue for anyone. But it is an indispensable part of this agreement.
"For our part, the British Government will establish an independent sentence review body to look at each prisoner on a case by case basis to determine their eligibility for release. Most eligible prisoners will qualify for release on licence within two years. If the circumstances allow, the remainder will be released at that point. It must be emphasised however, that this timeframe is variable, depending on the degree of genuine commitment to peace.
"Prisoners associated with groups who do not maintain a complete and unequivocal cease-fire will not qualify. Those prisoners who do qualify, will be released on licence and returned to prison if they engage in any further terrorist activity.
"These are crucial safeguards and a briefing note giving more detail of the proposed arrangements has been placed in the Libraries of both Houses.
"This agreement was made possible by the efforts of many people, most of all by the leaders of the political parties involved in the negotiations. The

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House will, I am sure, wish to join me in also paying tribute to them and to the exceptional chairmanship skills of Senator George Mitchell and his fellow independent Chairmen, former Prime Minister Harri Holkeri and General John de Chastelain.
"No less crucial was the constant support and the direct involvement of my right honourable friend the Prime Minister, particularly over the last few crucial days of the negotiations. His efforts were matched by those of the Taoiseach, Bertie Ahern, who rose above the personal tragedy of his mother's death, to play an equally decisive role. Honourable Members will also appreciate the enormous value of having a broad political consensus in support of the talks process, both here at Westminster and in the Irish Parliament.
"I should like to pay tribute to the work of the right honourable Members for Huntingdon and the Cities of London and Westminster and to the noble Lord, Lord Mayhew, and his colleague the right honourable Member for Devizes. Equally, successive Irish Prime Ministers and Ministers for Foreign Affairs in the Republic have played a crucial role over many years. I would also like to thank President Clinton in particular, who has been an invaluable support for the talks process.
"Many other governments and individuals across Europe—especially in the European Union—and throughout the world have given years of their lives in help and support to the search for a lasting peace in Northern Ireland; and their messages of support keep coming in.
"I am laying an order today setting 22nd May as the date for a referendum. A parallel referendum will be held in the Republic of Ireland on the same day. If both are successful, elections should be held to the new Northern Ireland assembly before the end of June.
"Following the election, the assembly and the north-south ministerial council would operate in "shadow" mode, making the necessary preparations, until the main implementing legislation, which I intend to bring forward as soon as possible, has been enacted and brought into effect.
"The agreement reached on Good Friday is a significant turning point in the history of Northern Ireland. But let us have no illusions. It will take a long time to repair the physical and emotional damage of the past and bring about a real sense of reconciliation and partnership. The people there have suffered a great deal of hardship and pain. To their strength we must give all our support in the weeks and months ahead.
"Pressures on all sides will seek to bring this agreement down. The best way we can help to fight those pressures is to give this agreement the overwhelming support of this House; and to give the people of Northern Ireland the chance to choose the future, not the past, in which to live. In the end, the decision rests with the people of Northern Ireland. The choice is theirs".
My Lords, that concludes the Statement.
4.1 p.m.
Lord Cope of Berkeley: My Lords, is the Minister aware that we welcome this agreement? We believe that it provides the basis for a new democratic mechanism for Northern Ireland and that it gives important support to the Union.
I echo the congratulations that have been paid to all those who have been involved in the negotiations and in bringing about this agreement. Senator George Mitchell, Mr. Harri Holkeri and General John de Chastelain have played very important parts with legendary patience. I echo also the tributes that have been paid to successive Prime Ministers, including the present Prime Minister and Mr. John Major, and to successive Secretaries of State, including my noble and learned friend Lord Mayhew. All of them, and all the parties concerned, have worked extremely hard to bring about this agreement.
The Minister said that the Government have published the agreement and sent a copy to every household in Northern Ireland. Will they also publish widely a document containing the important letters of interpretation of the agreement which have been sent, we understand, by the Prime Minister to Mr. Trimble and, I think, to Mr. Maginnis and others? Apparently, some of those letters contain important statements about the effect of prisoner releases and other matters and they are crucial to understanding the agreement. The Minister referred to a briefing note being placed in the Library, but I believe that some formal and public document is required if people are to rely on such matters when deciding how to vote in the forthcoming referendum.
We all recognise that the agreement does not yet mean total peace. We hope and pray that some ex-terrorists and their supporters have become democrats, but we know that some others have not. Even if as a result of the agreement they no longer see a political motive for terrorism, there is still a financial motive in the form of the rackets. Therefore, it is not yet time to relax security in Northern Ireland or the rest of the United Kingdom.
Can the Minister make it clear that decommissioning will be an important part of the criteria that will be used to decide which terrorist-supporting organisations have accepted a permanent cease-fire and that only the acceptance of such a cease-fire will allow their representatives to participate in the executive or prisoners belonging to those organisations to benefit from the increased remission? Will the Minister confirm that as long as some terrorist organisations remain active, it is essential that the Royal Ulster Constabulary should remain fully effective and that the Secretary of State should remain responsible for security and answerable to Parliament? Can the Minister further confirm that as long as any of the Armed Forces of the Crown remain in Northern Ireland in support of the civil power, responsibility for security will remain in Whitehall, answerable to Westminster?
Finally, I echo what was said in the Statement by the Secretary of State about the victims. We welcome the work that is being done by Sir Kenneth Bloomfield and look forward to his report being published. I believe that the Minister said that that would happen later this

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month. Last week while visiting the Province I was reminded that although some of the victims and their families want the prisoners to rot for as long as possible, there are many others for whom the best memorial to their loved ones is that a solution should be found and that others should not have to suffer as they have done.
4.7 p.m.
Lord Holme of Cheltenham: My Lords, I am grateful to the Minister for repeating the Statement made in another place. This is an extraordinary moment because although there may be trouble ahead—we can certainly assume that there will be serious difficulties in the next weeks and months—nothing can dim the extraordinary nature of this achievement. So often in this House in recent years we have had occasion to bemoan the state of affairs in Northern Ireland, so it is a happy moment to be able to say that Good Friday represents a good agreement.
An agreement which brings together British and Irish leaders in the form of the Prime Minister and the Taoiseach is truly remarkable when one considers the history of the Troubles of the past 25 or 30 years and the much longer history of difficulty between the British and Irish nations. It has been truly remarkable, therefore, to find this degree of unity. I am glad that the Statement remembered the role of the previous administration and the Ministers who served in it. It is right to do so because this achievement relates not only to the past few weeks, but is due also to the efforts made by many people over many years, including previous Secretaries of State. If I have one regret, it is that the Secretary of State prior to the noble and learned Lord, Lord Mayhew—I refer to Peter Brooke—was not mentioned in the Statement. His was a remarkable paving role for this achievement.
The role played by the United States in this agreement has been crucial. It is difficult for British and Irish Governments to swallow the fact that the American Administration has played a crucial role, but in recent years the learning curve of the United States about the real nature of the Northern Irish problem has been very steep and very successful. The roles played by the President and by Senator George Mitchell and his co-chairmen have been very great.
We are now in a state of precarious momentum. We must keep up that momentum and reduce the risks. That means that we need the largest possible majority in the referendum—not just in the Republic of Ireland where the agreement is supported by all parties, but in Northern Ireland itself. I am sorry that some distinguished noble Lords from the Cross Benches who normally speak in the Unionist interest are not able to be here this afternoon because their interventions when we last discussed the possibility of an agreement were notably pessimistic. I hope that they will be there, alongside the leader of the Ulster Unionist Party, supporting the agreement wholeheartedly.
The question of security thereafter will quickly be upon us. If a referendum in the North and in the South shows high levels of support for the agreement—far
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higher than the normal majority that we require in a democracy—does the Minister agree that there can then be not the slightest shred of legitimacy or the slightest excuse of fighting a great battle for those who continue to take up arms? Does he agree that once the referendum, north and south, has decided that this is the way forward those who pursue violence must be hunted down, caught and imprisoned and that there can be no excuse for continuing violence?
I slightly regret that in the Statement reference was made to "a deal". It is important to turn that into genuine dialogue. This is a beginning; it offers no more than the possibility of a new start. It means that the unionists and nationalists of Northern Ireland, particularly those who pursue the peaceful constitutional path like the SDLP and Ulster Unionists, must turn the heroic effort of overnight negotiation into a continuing dialogue to underpin a peaceful future for Northern Ireland.
Like the noble Lord, Lord Cope, I ask the Minister to clarify the exact nature of the understanding given to Mr. David Trimble about the prohibition on the involvement of parties who have not eschewed violence and started substantially to decommission in the process of the assembly and government. I should like to understand exactly what that is. Like the noble Lord, Lord Cope, if there are letters in existence I should like them to be published.
Finally, the basis of the settlement, not merely the fact that it has been arrived at, of devolved powers so that greater self-government and responsibility can be undertaken in Northern Ireland—shared power so that decisions are not exercised on behalf of one side of the community and proportional representation so that all shades of opinion are fairly represented, with the emphasis on human rights—is part of the general constitutional revolution that the Government, with the support of these Benches, have taken forward in Great Britain as a whole. I believe that of all parts of the United Kingdom it has the greatest relevance in Northern Ireland, and in that sense we support it most warmly.
I do not want to sit down without referring, among those who have made a contribution, to my noble friend Lord Alderdice, the leader of the Alliance Party, who is not able to be here this afternoon. Noble Lords will recognise that to assume that in Northern Ireland there are only two sides does not do justice to those who look for a non-sectarian basis for progress in the Province.
4.13 p.m.
Lord Dubs: My Lords, I thank the noble Lord, Lord Cope, for his support and welcome for this particular agreement. He asked whether the correspondence that had taken place between the Secretary of State and the Prime Minister and various Northern Ireland politicians could be placed in the Libraries of both Houses. Essentially, these exchanges were private communications between participants in the process. It would not be normal practice to place such correspondence in the Libraries. However, some of the contents of the correspondence has already been made public and there has been much public comment

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and discussion upon it. Therefore, we shall look sympathetically at the request to see what can be done to meet the point raised by the noble Lord.
The noble Lord asked about matters concerning the cease-fire and decommissioning. We want to see total decommissioning as quickly as possible. We welcome the commitment in the agreement by talks participants to use their influence to achieve this in two years. The agreement represents a package. I argue strongly that all the elements of that package are closely interlinked. The onus is on the participants—the two governments, the parties, unionists, loyalists, nationalists and republicans—to implement all aspects of the agreement in good faith. The agreement cannot work unless all of the participants act in good faith and give effect to the undertakings that they have provided. We see that as a complete package, and we wish the matter to be judged as a whole.
At the present time policing and security matters will remain under the Secretary of State. Other than in the very short term, there will be a change in such arrangements, only if the security situation justifies such a change. But we have not reached that position yet because, regrettably, there are a number of terrorist organisations on both sides which have not subscribed to the cease-fire and still practise violence and murder. Therefore we have to keep the security forces on the alert to deal with such a threat. The Secretary of State will retain her full responsibilities in these circumstances.
I also thank the noble Lord, Lord Holme, for his support. Perhaps I was not very clear in what I said earlier. I repeat my comments relating to Mr. Peter Brooke:
"I should like to pay tribute to the work of the right honourable Members for Huntingdon and the Cities of London and Westminster".
If that was not clear I apologise. Certainly, my right honourable friend the Secretary of State wanted to pay tribute to Mr. Peter Brooke, and other Secretaries of State who played such an important part in getting us to the present position.
The noble Lord asked a number of other questions. I very much agree with him that this is just the start and a good deal of hard work must still be done. The Government are not sitting back on the basis that they have done it. Only this morning my right honourable friend the Secretary of State said that there was a great deal of work still to be done and the real challenges to take forward the process begin now. The noble Lord also asked about violence and decommissioning. The assembly is for those parties who have taken part in the agreement and have subscribed to peace and consent. I believe that the agreement makes clear that the test must be that the parties continue to believe in a peaceful way forward. I have already referred to decommissioning and the desire of the Government to see this matter as a complete package.
I also join the noble Lord in paying tribute to the noble Lord, Lord Alderdice. I am very much aware, both from his contributions here and on the occasions that I have met him in Northern Ireland, that he has also played a very important part for the good in the politics
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of the Province and should be thanked for his contribution to the achievement of the successful agreement on the afternoon of Good Friday. I believe that I have dealt with all of the main questions put to me by the noble Lord. If not, I shall write to him.
4.17 p.m.
Lord Fitt: My Lords, over centuries many dramatic statements have been made in this House in relation to the conduct of various affairs. Normally, those statements are made amidst great controversy. A painting in a corridor of this House records the famous rejection of the Home Rule Bill in 1893. Had the outcome been different we might not have had to suffer many of the events in the years that have followed.
I believe that it may be a little premature to refer to this agreement as a settlement. It is not. One can only hope daily that it will become a settlement. In the House of Commons today I observed that the Leader of the Ulster Unionist Party, Mr. David Trimble, sat alone on his Bench without the support of his parliamentary colleagues. I believe that that must be regarded as being as serious as it looks. There is not agreement even among the major political parties in Northern Ireland.
I believe that it is time for everyone who is concerned with Northern Ireland to state where they stand on the agreement. I have no hesitation in saying that I fully support the agreement. I call on anyone in Northern Ireland who has listened to my voice over the years to vote "yes" in the referendum. It is the only possible way; there is no alternative.
I should like to place firmly on record—perhaps to the total disagreement of some of my former colleagues—my support for the RUC. Had it not been for the RUC over the past 30 years Northern Ireland would have descended into absolute anarchy. It is only by the dedicated service of those policemen that there has been a civilised outcome to the events of the past few years. This agreement is only the beginning. There are many people in Northern Ireland, including myself, who are very concerned about the possible early release of convicted prisoners. I refer particularly to those who have lost their fathers, mothers, friends and colleagues.
Will continuing representations be made to the IRA, a terrorist organisation, to do what it can to make public the burial grounds of those people it murdered from within the Catholic community and whose bodies are, as yet, unidentified? There is great sadness and sorrow among those who have lost their loved ones and who cannot visit their graves.
The Minister is entitled to ask for the support of all elected representatives. I wish him well in all his efforts, and the efforts of everyone else in Northern Ireland, to bring about a massive yes vote in the referendum.
Lord Dubs: My Lords, I thank the noble Lord for his support for the agreement. The House knows of the enormously important role that he has played over many years in seeking to move Northern Ireland away from

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violence and towards peace and reconciliation. That is appreciated by the whole of the House and by many, many people in Northern Ireland.
Noble Lords: Hear, hear!
Lord Dubs: My Lords, yes, it is an agreement. It is not yet a settlement and we have to make further progress. I thank the noble Lord for urging people to vote yes in the referendum.
I would also thank him for voicing his support for the RUC. I endorse what he has said. The RUC has played a brave and difficult part in the most appalling circumstances over the past 25 or 30 years. Many members of the RUC have lost their lives doing their duty of protecting the whole of the people of Northern Ireland. We owe them a great debt.
I appreciate the difficulties about early release of prisoners. The Secretary of State is fully aware of the difficulties there will be in moving forward in such a way that ensures that victims retain a sense that justice has been done.
I take particularly to heart the comment made by the noble Lord that we must see what pressure we can exert to identify the burial places of people who have been murdered by terrorists, the locations of which are not known. These should be located in order to give the relatives some sense of ease—which is all one can give them, other than a sense that there may be a long-term peace for Northern Ireland.
Baroness Park of Monmouth: My Lords, decommissioning is a vital issue and I would ask the Minister for certain clarifications.
The agreement says that the Independent International Commission on Decommissioning and the governments have been developing schemes which can represent a workable basis for achieving the decommissioning. It goes on:
"Both governments will take any necessary steps to facilitate the decommissioning process to include bringing the relevant schemes into force by the end of June".
It will be very difficult for people to vote in full knowledge of what is to happen if they do not know, at least in rough outline, the content of those schemes. It may be published somewhere, but I do not remember having seen a clear statement of what the intention is in terms of the actual working of the decommissioning process.
Lord Dubs: My Lords, we had a debate on an order here some while ago which put in place a scheme for decommissioning. In order to facilitate the process of the handing-in of arms—weapons, guns, bombs—those handing them in will have to be exempt from criminal charges, otherwise they will not hand them in. That is difficult. At the same time, where arms are not being handed in, the Army and the RUC will be busy hunting down all people who have illegal weapons. We have in place a scheme for the decommissioning body to receive weapons, either by arms being handed over directly or by tip-offs as to where they are located.
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It is important that weapons should not be used. At the moment the real test of these initiatives is that there will be proper peace and that none of the paramilitary bodies, who in the past or at present have an association with any of the parties taking part in the talks, will ever use their weapons again.
Then we have to see how quickly we can achieve decommissioning. The Government want to see decommissioning as soon as possible and we are putting in place all the necessary legislative measures as a matter of urgency. We welcome the fact that all the participants have made a commitment to use their influence to achieve decommissioning within two years. We expect all of the parties that have arms to honour the commitment they have made and to ensure that decommissioning takes place.
Baroness Park of Monmouth: My Lords, does the ordinary public in Northern Ireland know how it is going to operate?
Lord Dubs: My Lords, there has been a lot of publicity in Northern Ireland about all this. I take the point of the noble Baroness. I will consider with my ministerial colleagues whether there are ways in which we can publicise these arrangements more fully than they have been.
Lord Blease: My Lords, I join with other noble Lords in thanking all those who have participated over a vast number of years in trying to cope with the terrible problem of Northern Ireland and peace in Ireland. I thank all those who have been engaged in seeking to find an agreement over the past few nights and weeks.
The decommissioning of arms is one of the most important aspects of the way forward for the agreement. A commission has been established and from time to time it will be dealing with the decommissioning of arms. Are any arrangements yet agreed for the frequency of reporting of the surrender of arms? In order to gain the confidence of the people it is important that they should realise that this is an on-going situation. It is no use waiting for two years for them to find out. If some surrender of arms were to be announced next week, that would be a great way forward for peace.
Will the commission be making statements to Parliament through the Minister for Northern Ireland or will the commission report frequently to press conferences? It is important that Parliament is aware of this, but it is more important that the people of Northern Ireland, Ireland as a whole and the whole of the British Isles, know about the frequency, amount and from where arms are surrendered. If that were announced they would feel that something was being achieved.
Lord Dubs: My Lords, I thank the noble Lord for his support for the agreement. As to his specific question, he is absolutely right that confidence will be significantly enhanced in Northern Ireland when we are able to give positive news about successful decommissioning taking place. I assure the noble Lord that we will ensure that any such good news on

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decommissioning will be communicated to the people of Northern Ireland as soon as it happens. I hope that we will be able to do that before too long.
Earl Russell: My Lords, I join in the warm welcome and cautious optimism. Will the Minister agree that two changes in mainland Britain have contributed to this agreement? One has been a fundamental change in the attitude taken on this side of the water to Roman Catholics. We understand now that we are a country which was divided by the Reformation and that we have a Catholic heritage as well as a Protestant one. We can take pride in both. Allegiance to the Union Jack is something far wider than allegiance to a Protestant cause.
The other change, as the references to the European Convention on Human Rights in the Statement have illustrated, is that we are far less enthusiastic about the sterile majoritarian view that the winner takes all. In the circumstances, is it now clear that loyalism must be loyalism to the pluralist, diverse Britain of Queen Elizabeth II and not to the mythological Protestant England presided over by King Billy?
4.30 p.m.
Lord Dubs: My Lords, I am tempted to ask how I begin to answer that. I think that the noble Earl is taking advantage of me and the House in what might be an animate version through the paths of British history. Let me say to him that of course we are seeking in Northern Ireland to achieve the positive relationship between Catholics and Protestants and people of all other faiths, or of none, that we have had for a long time in most parts, if not all parts, of Britain. It is proper that the relationship which we have here should be extended to Northern Ireland. I hope that the agreement will play its part in helping to achieve that. I hope the noble Earl will forgive me if I do not pursue the history of religion in this country over the past few hundred years.
As regards human rights matters and the intention of the Government to bring the European Convention into law here, of which the noble Lord is aware, I do not see that as a matter of majoritarianism; I see it as a matter of establishing the rights of all individuals. All individuals should have rights and the law is there to protect them whether they live in Britain or Northern Ireland.
Baroness Denton of Wakefield: My Lords, I assure the Minister that mine will be a practical and pragmatic statement. Furthermore, I assure the noble Earl, Lord Russell, that what he is talking about is, in fact, actually taking place in Northern Ireland. The news covers the extremes but there is already much integration and pluralism.
I would like to add my congratulations to those who brought forward the agreement on Good Friday, and in particular to the Secretary of State and her colleagues. Anyone who has worked in Northern Ireland will understand that many people in the Province do not believe anything that a British Government Minister says, which makes it twice as hard to bring things forward.
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I should also like to point out—and I suspect that it will be left to me to point out—this is the first time that we have had women at the negotiating table. It is difficult to identify their contribution as such, but it must be a step forward. I should like also to praise those who had not previously taken part in negotiations. They have kept their feet on the ground, and even this Friday they had to point out that the future of the people of Northern Ireland was no laughing matter. With people like that participating, the future was bright.
In addition to the praise for the RUC, I praise the Army. Every time the going gets tough we are required to bring back military support, taking soldiers away from their families and putting them into a situation which is always fraught. Without them there would have been more deaths. I worry about the fact that, because politics was at the top of the agenda, it was said of the last death in Belfast, "Not to worry too much. It was probably non-sectarian". There is a great danger that we worry only about sectarian activities and not about living and quality of life in Northern Ireland.
I have two specific questions for the Minister. The agreement contains many cross-border bodies serviced by officials. Such bodies inevitably cost money. No one has said where the money is coming from. Can the Minister assure me that it will not come from areas of need such as health and education or from economic support? Secondly, while a visit from President Clinton may be desirable—though not everyone thinks so and certainly not before the referendum—would it not be more practical if the President turned his support to encouraging more funds from the IFI in order to bring together industrialists who would look at inward investment and support for the Springvale complex which the Secretary of State announced last week?
Lord Dubs: My Lords, may I say to the noble Baroness that I am delighted she is in excellent voice. I know that she established a very good reputation in Northern Ireland over the many years that she has served there so well and effectively. Whatever else may be said about any other British Minister, I know that the people of Northern Ireland always believed what she said to them. Certainly, that is what they are telling me now. It is a privilege for me to be able to follow in her footsteps, at least as far as her agricultural responsibilities were concerned. I am also grateful to the noble Baroness for the tribute she paid to the Secretary of State and other members of the ministerial team.
I welcome her comment that it is the first time that women have played a prominent part in such negotiations in Northern Ireland during many years. That is another first, and I thank her for drawing attention to it.
I am also grateful to her for the tribute she paid to the Army. We talked about the RUC earlier. The Army has also played its part in very difficult circumstances. Young soldiers have been faced with dangers to themselves and threats to their lives. Sadly, a number of members of the Army and other British troops have lost their lives in the troubles in Northern Ireland. I take her point that if a murder is not sectarian it is still a murder. Simply to dismiss a murder by saying, "It isn't sectarian,

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that's all right then" is not acceptable. We must have a society where murder of any kind is completely unacceptable, and murder is murder.
I take the noble Baroness's point about the support we have had from the United States for many years and from President Clinton in recent years. I do not know whether he will pay a visit and if so when, but certainly any support that the American Government are able to give us through the International Fund for Ireland, or by encouraging investment into Northern Ireland, would be most welcome. That would play a very large part in helping to reduce unemployment and to bed down the peace process more firmly.
The noble Baroness also asked about money for the cross-border activities and implementation bodies. I cannot say at this stage just where that money will come from, but as a Government, we have made a commitment that health and education are our priorities and we will not cut health and education in order to achieve that. We shall have to find the money from somewhere else, not from health and education.
Lord Mason of Barnsley: My Lords, I should like to add my congratulations to everyone who has paid tribute to the establishing of this historic agreement. Is the Minister aware that with such vast constitutional changes—for instance, a Northern Ireland assembly; a North/South ministerial council; a British/Irish council; and a British/Irish intergovernmental conference followed by reviews and commissions on the future of the RUC, of prisoners, of decommissioning, of human rights and so forth—the size of the task ahead will be enormous? We have always said that if there were to be a change it would be by the consent of the majority of the people. I am pleased that that is included in the deal. That has always been the guiding principle and, therefore, in the referendum the people of Ireland will now be determining their destiny.
The Minister is aware of the many issues that have been raised. I shall cover them briefly because I am concerned with matters that will arise for consideration before the referendum takes place. I refer to the future of the RUC; the premature release of terrorist killers; decommissioning, especially those dissident forces outside the deal; and continuity of the IRA, the Irish National Liberation Army and the Ulster Loyalist Forces. Many assurances have to be given on these questions which are still to be answered before the referendum. I hope that the Minister and his group within the Province will be able to give all the assurances necessary in order to get this referendum through.
Lord Dubs: My Lords, I thank the noble Lord for his support. I know that he speaks on the basis of long experience as Secretary of State for Northern Ireland, and he is well remembered there.
It is certainly the case that these are immense changes. It will be a difficult task to ensure that they are implemented and that the process continues at a good pace. I also agree with him that there are a number of difficult issues. Some of them will be the subject of
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legislation which will be laid before this House in the near future when there will be a chance to discuss them in detail. But it is right that not only the House but also the people in Northern Ireland should be fully aware of all the details so that they can make the most informed possible decision when they come to vote in both the referendum and, it is to be hoped, in the subsequent elections.

Social Security Bill
4.40 p.m.
Consideration of amendments on Report resumed.
Clause 7 [Constitution of appeal tribunals]:
Lord Archer of Sandwellmoved Amendment No. 4:
Page 4, line 3, at beginning insert ("Subject to subsection (1A) below.").
The noble and learned Lord said: My Lords, with this amendment it may be for your Lordships' convenience to discuss also Amendments Nos. 6, 7, 8 and 11.
This group of amendments relates to an issue which was the subject of much comment on Second Reading and in Committee, although in Committee some of our contributions were subject to the procedural constraint which was mentioned earlier by the noble Baroness, Lady Anelay. Nevertheless, the noble Baroness was able to make an extremely persuasive argument and was supported by the noble Lord, Lord Goodhart, and to some extent myself, although perhaps having the training that I have of another place, I was more troubled about the rules of order.
I do not propose today to repeat the arguments. I appreciate the advantages of having available a range of expertise among tribunal members. But one essential expertise is an expertise specifically in conducting a judicial hearing; in identifying the issue which falls to be decided; and in marshalling the arguments which have been presented. That is an expertise which is more likely to be found among lawyers. No doubt those were very largely the considerations which motivated the noble Lord, Lord Goodhart, and the noble Earl, Lord Russell, to table their Amendment No. 8 and the noble Lord, Lord Higgins, and the noble Baroness, Lady Anelay, to table their Amendment No. 11.
Being a natural peacemaker, following our debate in Committee, I considered whether there might be a compromise solution to the problem. There is. It might be provided that although it may not necessarily be the chairman who possesses the legal qualification, at least one member of the tribunal shall have such a qualification, leaving it to the president to decide who should take the chair on any specific occasion.
I hope that normally, if the tribunal consists of more than one member, the member so qualified would be in the chair. That would not necessarily and invariably follow from the suggestion in the amendment.
Accordingly, I ventured to table Amendment No. 6 which proposes that compromise. I am grateful to my noble and learned friend the Lord Advocate for discussing it with me through the medium of the international telephone system. I say at once to the noble

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Lords, Lord Goodhart and Lord Higgins, that it was simply the geographical distance between us which precluded me from giving notice of what I was proposing to do.
I am sure that it would be in the interests of expedition if I were now simply to revert to silence so that your Lordships might have the reaction of my noble and learned friend and other noble Lords. Amendment No. 4 is a paving amendment for Amendment No. 6 and I beg to move.
Baroness Anelay of St. Johns: My Lords, at this stage, with the permission of the House, I shall speak to the other amendments which have already been mentioned by the noble and learned Lord, Lord Archer of Sandwell. My noble friend Lord Higgins and I have our names to Amendments Nos. 7 and 11 which are grouped with Amendment No. 4.
The noble and learned Lord has mentioned already that the substantive difference between Amendment No. 4 and our amendment is that Amendments Nos. 4 and 6 deal with a compromise situation, as it has been described, whereby at least one member of the tribunal would be legally qualified, whereas our amendments refer to the fact that the chairman should be legally qualified.
I state immediately that I should be in favour of a legal qualification being present at the tribunal in whatever capacity it were held. Therefore, I see the reason behind the amendments moved by the noble and learned Lord. In Committee, I argued in detail the reasons why I believe that a legally qualified, as I then said, chairman (but now I would say "member") is essential to the effective operation of the appeal tribunals. I shall not abuse the Report procedure by repeating those arguments at length.
As has been mentioned earlier, we were rather pre-empted by a matter of procedure, and at that stage I confined myself very carefully to the terms of my amendment. I was rather relieved that other noble Lords were not so constrained and therefore we were able to have a full discussion on the issue of whether or not a legally qualified chairman was an advantage to a tribunal.
I have sat as a member of a tribunal for 14 years during the period in which lay chairmen were removed and the element of having legally qualified chairmen was introduced. From personal observation, I felt that that did nothing except improve the operation of tribunals.
Social security law is notoriously complex and over half of those who appear are unrepresented and therefore, by definition, are disadvantaged if there is no legally qualified person available at the tribunal to interpret the complex law which must be dealt with. Although, as I mentioned, I recognise that not all lawyers are perfect in every respect, I believe that they possess abilities which they can exercise—and I am looking very carefully at the noble and learned Lord the Lord Advocate as I say this—which cannot be possessed by laymen and which are essential to the fair operation of a tribunal hearing.
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I recognise also that although the Government have carried on from the previous government the very proper objective of getting decisions right first time, in practice, often when an appellant comes to a tribunal it is only to find that the papers have not been prepared properly nor the law properly interpreted. Therefore, it is an advantage if one has a legally qualified member there to assist in the unravelling of the case.
I merely endorse the words of the noble and learned Lord, Lord Archer of Sandwell. I believe that his compromise fully meets the objectives which I sought to achieve in my own amendments.
Lord Goodhart: My Lords, I rise to support the amendments in the name of the noble and learned Lord, Lord Archer of Sandwell, and I speak also to the amendment in the name of my noble friend Lord Russell, which seeks to insist on a legally qualified chairman.
I should say at once that while I might have preferred that the requirement was for a legally qualified chairman, I find the compromise of the noble and learned Lord, Lord Archer of Sandwell, totally acceptable if, as I hope, it is acceptable to the Government.
As we know, the requirement for a legally qualified chairman was introduced 14 years ago in 1984 as a result of a report a few years previous to that by Professor Kathleen Bell which found that tribunals without legally qualified chairmen had low standards. The noble Baroness, Lady Anelay, confirmed from her own experience that the introduction of legally qualified chairmen improved the standards.
Tribunals need, if not a legally qualified chairman, at least a legally qualified member. One would expect that the legally qualified member would normally be the chairman because tribunals must consider evidence properly; they must identify the relevant facts; they must reach the proper conclusions on those facts; they must identify the law to be applied; and they must apply the law correctly. Those are all skills in which those who have been legally trained are likely to perform better than those who have not.
I certainly would not say that a member of a tribunal without legal qualifications will always get it wrong or that a member with legal qualifications will always get it right. But I believe that it is significantly more likely that a legally qualified member will get it right.
In Committee, the noble and learned Lord, Lord Hardie, said that he would reflect on the argument that the chairman should be legally qualified. He has had time for reflection, and I trust that that reflection will have borne fruit in his willingness—as I hope it will prove to be—to accept the compromise put forward by the noble and learned Lord, Lord Archer. I simply endorse and repeat the comments of the presidents of the Independent Tribunal Service, quoted previously in our debate of 30th March:
"We are not therefore comfortable with the proposition that a single decision maker conducting an oral hearing alone should not he a lawyer or he legally trained. The demands of conducting and recording the proceedings and decisions of a tribunal in such a sensitive jurisdiction are such that it is argued that it may simply be too great a demand to place on such a person. Further, where the

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tribunal is made up of more than one person, the chairman will invariably require legal training because of the additional procedural skills involved".—[Official Report, 30/3/98; col. 124.]
As I said, I endorse those comments. Similar views have been expressed by the NACAB, the Legal Action Group, the Child Poverty Action Group and the Law Society.
Finally, I should like to read out one comment from the Legal Action Group, which is a pressure group concerned with the improvement of access to justice:
"The need for tribunal chairs to be legally qualified has become more, rather than less, pressing, because of both the complexity of the law and the procedural skills involved, including conducting proceedings and recording the decision. The chair has a pivotal role not only in ensuring that the law has been correctly applied, but also in substituting for legal representation. Appellants in social security cases are frequently unrepresented, and are often hopelessly at sea when a legal problem arises. People will frequently be vulnerable, socially excluded, and economically disadvantaged. For some, English will not be a first language, and many will have poor literacy skills, ill health and, increasingly, mental health problems. Many will be unable to understand the law, or to argue their case by reference to the legal rules. Part of the inquisitorial role of tribunals is to ascertain the matters in issue, elicit evidence and reach a view on the facts, as well as to identify and consider any issue of law pertinent to the case".
That is in the context of the assumption that the legally-qualified member would be the chairman. However, it puts the point very strongly and clearly. Therefore, I shall be happy to support the noble and learned Lord's amendment.
Lord Dormand of Easington: My Lords, before the noble Lord sits down, perhaps he could explain to someone who is completely ignorant of all legal matters what is so magic about the five-year period mentioned twice in his amendment? I should point out that the amendment of my noble and learned friend does not mention that period at all so, presumably, the noble Lord has a special reason for specifying it. Can he tell the House what that reason might be?
Lord Goodhart: My Lords, the five-year period is one which appears in the Courts and Legal Services Act 1990 as the minimum period of service required for the holding of certain legal posts. It is not essential, but anyone with less than five years' experience would be unlikely to have the necessary experience for conducting an appeal tribunal of the kind under discussion.
Lord Hardie: My Lords, I shall deal, first, with Amendments Nos. 4, 6, 8 and 11, which all deal with the now-familiar subject of the legal qualifications of tribunal chairmen or members. As has been observed, we debated the subject of legal qualifications at length in Committee. I acknowledge the strength of feeling expressed by noble Lords on that and on this occasion. As the noble Lord, Lord Goodhart, reminded the House, I undertook to reflect on whether all tribunals need to have a legally-qualified chairman.
Before dealing specifically with the amendment moved by my noble and learned friend Lord Archer, I do not wish to understate the difficulties involved in the proper recording of evidence, the identification of
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relevant facts, the reaching of proper conclusions, the identification and application of the correct law, and so on. However, like my noble friend Lord Borrie, who intervened in Committee when we discussed this issue, I remain convinced that, with appropriate training, there are a number of appeals which could be determined by a person without formal legal qualifications.
We want new arrangements for handling appeals which are more effective and efficient. In considering further the need for a legal presence on tribunals, we have looked again at the number of appeals which could be dealt with by a single non-legally qualified panel member and the administrative arrangements for selecting those appeals. It appears that less than 5 per cent. of appeals could be dealt with in that way.
Given the small number of cases involved and the complexity of the administrative arrangements, we have concluded that there would be little benefit in introducing such an arrangement at this time. In reaching that conclusion, we have been helped by the opinions of the President of the Independent Tribunal Service, Judge Michael Harris, who recently briefed Ministers on the administration of ITS.
The same arguments about small numbers of cases and complex sifting arrangements also apply to two and three-member tribunals. In view of this, and in view of the concerns that have been expressed about this issue in your Lordships' previous debates and today, the Government have concluded that, for the time being at least, there is a case for the retention of lawyers on all tribunals.
We may wish to revisit the issue in the wake of welfare reform. In saying that, it will be apparent to your Lordships that we will not readdress the issue in the course of the proceedings on this Bill. We therefore support the amendments tabled by my noble and learned friend Lord Archer—namely, Amendments Nos. 4 and 6. In view of the statements made by the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart, that they will accept the compromise proposed by my noble and learned friend, I believe it is unnecessary for me to explain why we will not accept the other amendments in the grouping. In the interests of economy of time, I shall simply say that that is our position. I invite the noble Baroness and the noble Lord to withdraw their amendments on the basis of my outline of the Government's position.
Lord Archer of Sandwell: My Lords, I am most grateful for the support expressed by the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart. Indeed, I am especially grateful to my noble and learned friend for his open ear. I accept that the Government cannot pledge their good behaviour in perpetuity, but my noble and learned friend could not have said fairer than that.
On Question, amendment agreed to.
Lord Goodhartmoved Amendment No. 5:
Page 4, line 3, leave Out ("one, two or").
The noble Lord said: My Lords, this amendment relates to the question of whether tribunals should necessarily, as at present, contain three members. Before I launch on the subject, I noted that the noble and learned Lord the Lord Advocate said in his last response that this was one of the matters that the Government had considered. The noble and learned Lord referred to the problems of "sifting", and so on. Therefore, I am not entirely sure whether the Government propose to retain three-member tribunals or to maintain their present position in the Bill; namely, that it should also be open to have one, two or three-member tribunals. The noble and learned Lord indicates that that is so. In that case, I shall proceed with my amendment. I was, perhaps, hoping for too much in that respect.
We believe that a three-member tribunal is an important safeguard. That is particularly so when one is handling large numbers of appeals very quickly. It may seem odd at first sight to insist on a three-member tribunal when an appeal from the tribunal lies to a social security commissioner sitting alone. But a case goes to a social security commissioner only when it raises some point of importance or uncertainty and is, therefore, certain to be looked at very carefully by the commissioner.
Cases going to the ordinary second-tier appeal tribunal may often be simple and straightforward and the facts in law may be entirely clear. However, one member going through a string of apparently simple and straightforward cases (and those are the cases that will be assigned to a one member tribunal) may well tend—and this is something that I feel I might do myself in that position—to lose concentration, especially where these are being dealt with as paper hearings. The member of the tribunal will miss the case that has hidden in it a real issue that needs to be looked at but is not necessarily all that clear on the surface. This is much less likely to happen if three people are considering the case. I do not believe that great savings would be gained from having one or two-member tribunals. I believe there would be a real loss of effective justice if the three member tribunal was not a requirement of the law, as it is now. I beg to move.
5 p.m.
Baroness Anelay of St. Johns: My Lords, I support this amendment, to which I have added my name. Originally I had tabled exactly the same amendment in my name and therefore when I saw this amendment I simply added my name to it to save time. I, too, was somewhat encouraged for a few moments by the words of the noble and learned Lord the Lord Advocate with regard to the complexity of the Government's proposals. They have had to introduce that complexity in order to sift cases to render them capable of being dealt with by one and two-person tribunals. The noble and learned Lord also referred to small numbers of cases. It is not acceptable for this House to introduce further complexity in tribunal structures for a small number of cases. Three-person tribunals constitute a much fairer way of hearing cases. Appellants would not know whether one, two or three
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persons would hear their case. I believe that an appellant whose case is heard by a three-person tribunal is in a much better position.
I believe that the current system works well. The so-called flexible model which the Government have described will alter the balance of fairness as between appellants whose cases are heard by three-person tribunals and those whose cases are heard by just one person. The balance of fairness will also be altered as between appellants and the Secretary of State. If we accept the proposals in the Bill that the number of persons on a tribunal could vary between three and one according to the substance of the appeal, we must accept that an administrator would have to identify in advance the precise issues which the appeal raises and therefore which experts will be needed. The noble Lord, Lord Goodhart, mentioned that. Decisions would already be made in advance of the appeal being heard. Judgments would be made as to whether it was a complex, simple or meritless case and whether any particular expertise would be needed on the part of the tribunal members.
However, I have a far more prosaic argument as someone who has sat on these tribunals week in and week out over many years and has seen the grinding work that is carried out and the difficulties that are faced by the independent tribunal service in summoning tribunal members on a regular basis. My argument is a straightforward and practical one. I believe that if an administration has the chance of summoning three, two or one members, it will inexorably work towards the easiest solution; namely, to summon just one member. At present if three members are summoned and one is sick or unable to attend for business reasons, it is open to the appellant whether he wishes the case to proceed with just two members being present.
The Bill already addresses problems such as the possibility that two members of a tribunal may disagree and how one deals with that disagreement; namely, rather than adjourning, the matter would be decided on the spot. I believe that the difficulties that have been faced on occasion by the tribunal service in summoning members for three-person tribunals would be obviated in future by simply failing to seek three members when it had determined that three members was the appropriate number of people to hear a case. It would be so easy to slip into the administrative convenience of summoning only one or two. I believe that would undermine the fairness of the system.
Decisions about the merits and the complexity of a case would have to be made before a hearing took place. I believe that could tend to favour the Secretary of State. On many occasions I have heard appeals covering perhaps eight or 10 cases in a day. I have looked at the papers of a case in advance and thought that the result was a foregone conclusion. It seemed to be the open and shut case which those who had drawn up the papers had obviously believed was the case. However, as the hearing progressed a different story emerged and it was vital that three people were present with varying expertise in order to tease out information and properly to evaluate the evidence. There may be facts which simply have not been recorded or have not been discovered or there may be a basic misunderstanding of

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the legal significance of information which should have been supplied. I believe that without the retention of the three-member tribunal system there is a real danger that the fairness of the operation of the system for the appellant will be severely compromised. On that basis I support the amendment.
Lord Borrie: My Lords, the model of the three-member tribunal is now something of a tradition as it dates from the time of Lloyd George and the insurance legislation of 1911. Because of its success in the inter-war years it was retained by the Attlee government of 1945. That success has been undoubted. I refer to the "plus" points that the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay of St Johns, have commented upon. The appearance of fairness and the different experiences of the members of the three-person tribunals are perceived to be most helpful and are almost certainly objectively extremely helpful. It is a model that is worth following and bearing in mind.
Nowadays we all think of the tribunal system as being part of our general judicial system. Even though that tribunal system has lasted for so long in relation to social security matters and has been copied elsewhere in fields as varied as industrial tribunals and employment appeals tribunals and the restrictive practices court, it is by no means the only or indeed the principal way in which matters are determined judicially in this country. Far more typical is the decision made by one person—sometimes of course with a jury which has a different role from those who sit on a tribunal. Certainly the tradition in the High Court and in the circuit courts of this country of the individual High Court judge or the circuit judge reaching a decision—I hope and believe—is perceived to be fair. However, that is, of course, subject to appeal. That is thought to be perfectly fair and reasonable.
I accept that the model of three-member tribunals is a good one. One would not wish to depart from it for any frivolous reason. The Government appear to want to depart from it because it is an expensive system and one that involves a great deal of personnel and administration. Some cases that must be dealt with at present by a three-person tribunal could be dealt with by one or two persons. They need not necessarily be qualified in relation to certain medical problems; a medical practitioner may determine such questions. However, it seems to me that there is a gap in the arguments of those who support this amendment saying, "This is the norm; this is the model; and this must always be the case". There is a difference between saying, "This is the norm", and, "This is one about which we should have no flexibility", with no possibility for the administration to say when it has studied the case with all due care that it can be dealt with properly by one member or two members. There must be sufficient reassurances—I thought that we were given them by my noble and learned friend the Lord Advocate on the previous occasion—that if there is any doubt whether there should be one or two members there should be two members. If there is any doubt whether there should be two or three members, there should be three members.
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I read into the speech of the Lord Advocate the proposition that if for some reason the papers have been misread or not adequately understood, or the case turned out to be more difficult than had been originally perceived, one would say, "Halt, we had better convene a full three-member tribunal". The amendment allows no flexibility; and that is its weakness.
Lord Archer of Sandwell: My Lords, I agree with my noble friend Lord Borrie that whether one requires a three-member tribunal depends largely upon the issue which the tribunal has to address. We are dealing here with social security tribunals. The issues they have to address are very much of their own nature. Even in social security tribunals, some decisions can be, and sometimes are, decided appropriately by a chairman alone; for example, in interlocutory matters which arise in the course of the proceedings.
However, I should have thought that normally there are two great advantages in having a three-member tribunal. The first is the opportunity to discuss the matter. It is not an arithmetical question which falls to be decided. It is not a question of whether someone did or did not do something, but of the needs of a particular individual. There is a great deal to be said there for an opportunity for discussion. I have seen the chemistry which arises when a member of the tribunal who was perfectly clear about the issues comes to a different point of view after discussions with colleagues.
The second great advantage is how the tribunal appears to those who come before it. It makes for greater confidence to see someone on the tribunal who has shared your own problem, who has had the same kind of experience. It is the Government's own case that there is something to be said for the application of more than one expertise in the resolution of the issues we are deciding. For that reason, I follow my noble friend, too, when he says that in the majority of cases there is probably an advantage in having three members but that it does not follow that one has to have three members on every single occasion.
The noble Baroness, Lady Anelay, asked who is to decide on any specific occasion what expertise the tribunal will have, and how many members. I believe that my noble and learned friend gave us some assurance at Committee stage. If I may say so, the assurance that he gave at one stage was not wholly in accordance with the letter from my noble friend Lady Hollis at an earlier stage. I think that there is time for that to be resolved. We may receive some assistance when the Minister moves Amendment No. 9. The issue which among others has to be decided is whether there will be regulations which tell us which categories of case can be addressed by fewer than three members, and which categories ought always to have three members. In advance of our debate on Amendment No. 9, perhaps my noble and learned friend can offer us some reassurance on that matter too. I believe that there is a real problem to be addressed here and I am sure that he will address it.
5.15 p.m.
Earl Russell: My Lords, the Government's position on this issue, and that of the noble Lord, Lord Borrie,

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depends on a great deal of confidence in the ability to conduct the sift accurately and reliably, and to identify in advance from the papers which types of case will need which kinds of panel. My noble friend Lord Goodhart dwelt on the difficulties of the case in which there is a hidden and unforeseen issue. The Minister appeared unpersuaded. But I, too, have some little experience. It is known, I think, to some of your Lordships that five years ago in the medium of my own college I became involved in a case to which a great deal of publicity was subsequently attached. In my view, the principal error in that case, from which most of the subsequent confusion arose, was forming a clear opinion from the papers before hearing the parties. Therefore, in supporting the amendments, I, too, know just a little about that of which I speak.
Lord Hardie: My Lords, perhaps I may deal briefly with the comments made by the noble Earl, Lord Russell, about his experience almost five years ago. I think that noble Lords are well aware of the noble Earl's involvement in that case and the support he gave to the individual concerned. However, my recollection is that that was a criminal case. The noble Earl's comments about sifting might not be apt in the context of criminal procedures when discussing social security provisions.
I have listened carefully to the comments made by noble Lords opposite and by my noble friend and my noble and learned friend. I also share their concern that appellants must receive a fair hearing, but, like my noble friend Lord Borrie, I do not think that this can be achieved by having only a statutory provision for three-person tribunals in every case. That is the system we currently have within the ITS. Although a huge variety of issues come before the tribunals, it does not appear appropriate to us that identical provision should be made for every appeal. Even the most straightforward appeals have to wait in line to be heard by a three-person tribunal when they could be heard equally effectively by a single or two-person tribunal.
I shall deal later with the point raised by my noble and learned friend Lord Archer about the regulations and who determines what cases will be decided by one, two or three-member tribunals. I simply remind noble Lords of the statements that I made in Committee, to which my noble friend Lord Borne alluded today. I hope that those statements will give some comfort to noble Lords about the proposals we have in mind.
Under the present system, where an appeal hearing is finally arranged it is not unusual for it to be adjourned, at great inconvenience to everyone, because one of the members cannot attend. It is little wonder that appeals currently take on average more than six months to resolve and some take a year or more. I mentioned those statistics in Committee and I make no apology for reminding noble Lords of them. I think that such a delay is quite unacceptable when one is deciding the entitlement or otherwise of a claimant to benefit.
It has been suggested today, and it was suggested previously, that the Government are introducing the changes to the appeals system just to save money. It is true that there may be some small saving in abolishing
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the statutory requirement for a three-person tribunal in all cases. However, the primary aim is not to save money. Indeed, there may be some increased costs in setting up the new service; for example, in the recruitment of panel members and in their training. We want to improve the service to claimants by introducing a streamlined, simple and efficient appeals process. The scope for improving the existing system is limited by the rigid framework of current legislation. The five appeal tribunals have different constitutions, different powers and different rules. All appeals have to be heard by three persons. That limits the scope for directing the appropriate expertise to different cases and makes hearings difficult to arrange.
We believe that greater flexibility in the composition of the tribunals will improve the service for all appellants. I have already reminded noble Lords of my remarks on unacceptable delays and have referred to the times involved. As the noble Lord, Lord Renton, said in Committee—he is not presently in his place—justice delayed is justice denied. Such delays cannot be tolerated. The flexibility that we are introducing will assist in improving the service to claimants and in reducing delays by using one and two person tribunals for appropriate cases; three person tribunals will have more time to deal more expeditiously with cases which are waiting to be heard.
However, I wish to reassure noble Lords that the greater flexibility does not mean a gradual move towards single person tribunals as the norm. Indeed, the majority of appeals will continue to need two or three person tribunals because of the nature of the issues raised. Very many appeals—for example, those relating to incapacity benefit—will require medical and legal expertise. Those relating to the mobility and care components of disability living allowance will need the expertise of a tribunal member with knowledge or experience of the needs of disabled persons.
But there are some cases which do not require the expertise of two or three tribunal members—for example, an appeal which is solely about whether a claimant satisfies the residence and presence requirements for a particular benefit could be heard by a legally qualified panel member sitting alone. In the light of amendments that have been accepted, it will be appreciated that one person tribunals will be comprised of a legally qualified person.
As I explained in Committee, we have amended Clause 78 to make regulations under Clause 7 subject to the affirmative procedure. That deals with the point raised by my noble and learned friend Lord Archer. That will give Parliament the opportunity to scrutinise our proposals on which type of appeal will go to different types of tribunal—the regulations will specify that—and to satisfy itself that all appeals will be dealt with by people with appropriate expertise.
To deal with the prosaic argument of the noble Baroness, Lady Anelay, these regulations would prevent the administrative drift that she fears. If the regulations, subject to the affirmative procedure, specify what type of cases will go to which category of tribunal, it will not

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be open to administrators to decide that a case allocated for three people will be heard by two. That will not be an option.
I assure noble Lords that the Government will ensure that the high standards of tribunal decisions are maintained. No panel member will sit on a tribunal without proper training in the relevant legislation, in the powers and procedures of tribunals and in the conduct of hearings. The president will approve individual panel members for their expertise and suitability to sit on tribunals hearing particular types of appeal. He will also be responsible for arranging the training of panel members, in consultation with the Secretary of State and the chief medical officers, as appropriate.
As I said, I propose to speak at the same time to Amendment No. 69 standing in the name of my noble friend Lady Hollis. I understand that the new president of the Independent Tribunal Service, his honour Judge Harris, has recently written to the noble Lord, Lord Higgins, and the noble Earl, Lord Russell, about the difficulties he is experiencing with social security appeal tribunals. He has expressed serious concerns about his ability to continue to operate these tribunals with a chairman and two wing members. He fears that, unless some action is taken now, the delays will increase and the number of outstanding appeals will rise even further in the interim period before the establishment of the new appeals service. The only consequence of that will be a further delay to claimants in the determination of their cases.
The president has asked the Government to take action to allow the Independent Tribunal Service a more flexible regime for the composition of social security appeal tribunals during the transitional period. The Government have therefore responded to Judge Harris's concerns by tabling an amendment to Schedule 6 which will enable the flexible tribunal composition to be introduced as soon as possible after Royal Assent for social security appeal tribunals. Amendment No. 69 will allow social security appeal tribunals to comprise either a chairman sitting alone or a chairman sitting with one or two wing members. That will provide the Independent Tribunal Service with the required scope to continue to hear social security appeals with fewer people available. It would also allow some early testing of the practicalities of the move to flexible tribunal composition.
I invite noble Lords to give effect to the wishes of Judge Harris. He is surely in the best position to judge what is required for the efficient operation of the service of which he is—
Baroness Anelay of St. Johns: My Lords, I believe that on Report I am allowed to ask a question of the noble and learned Lord. He referred to the letter that was sent to my noble friend. Does he agree that the reason advanced by the judge in that letter for the fact that it is difficult to empanel sufficient people at present is simply that the bringing forward of this Bill, with the provision introduced by the Government to change the system of empanelment has reduced the morale of those who have been sitting as lay members of tribunals.
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As I recall from a brief reading of the letter, the judge refers to people leaving the system "in droves". I believe those are his words. I hope that the noble and learned Lord will confirm my understanding of the letter; namely, that the judge is not saying that he endorses fully what the Government seek to do within the Bill and recommends the adoption of its provisions, but that, given the difficulties that he faces because of reduced morale among lay members who are now leaving the service, he finds it difficult to operate under the present conditions and therefore, since he has to operate on the basis of a belief that the Government's will may prevail and the provision may go through, he seeks in the best possible way to continue good administration and to expedite the introduction of the three-two-one system. I hope that the noble and learned Lord will be able to clear up that point.
Lord Hardie: My Lords, I am grateful to the noble Baroness for that intervention. It is stated in the letter that that is part of the reason for his concerns; namely, members are leaving because of the changes that are about to occur. However, at paragraph 6 of the letter, the judge also states:
"it is important that we have the opportunity of testing any proposed change before fully committing ourselves to it. I happen to believe that some reduction in the lay element for some types of appeal would not jeopardise our ability to reach fair decisions. It would also reduce our training burden, ease the work of the administration in arranging the attendance of members, and, in some cases, improve our ability to get through the workload quicker. This last point is particularly important in the context of reducing the time which it now takes to get an appeal heard".
So that is obviously a factor which the judge has in mind. It is clear that in the paragraph referred to he supports the flexibility offered by this system. I accordingly invite noble Lords to support government Amendment No. 69. In the light of my remarks and particularly in view of the statements that I made in Committee which I do not think it necessary to repeat but which I confirm we are not departing from—statements about erring on the side of caution, to which my noble friend Lord Borrie referred—if there is doubt, the matter will go to a two member tribunal; if there is doubt as to whether it should be a two or three member tribunal, it will go to a three member tribunal. There will be affirmative regulations, subject to the scrutiny of this House, setting out the type of cases which will go to single member, two member or three member tribunals. In those circumstances I invite the noble Lord to withdraw the amendment.
5.30 p.m.
Lord Goodhart: My Lords, I recognise it as a step forward that regulations will be made under Clause 7 to identify the way in which different appeals will be allocated to different tribunals and tribunals with different numbers of members. I also welcome the fact that this will be dealt with by the affirmative resolution procedure. I regret that the noble and learned Lord the Lord Advocate did not go further and accept the desirability of preserving the present structure of tribunals, for the reasons put forward from this side of the House. However, I believe that at least some of the

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sting of the amendment has been drawn by the Government's acceptance of the necessity of having a legally qualified member of a tribunal. That means, of course, that, if it is a one-member tribunal, that member will have to be legally qualified. Of the two issues—whether there should be a legally qualified member or whether there should be a three-person tribunal—I believe that having a legally qualified member is the more important. In those circumstances, it might be regarded as churlish to take this matter further. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Archer of Sandwellmoved Amendment No. 6:
Page 4, line 4, at end insert—
("(1A) The member, or (as the case may be) at least one member, of an appeal tribunal must—

(a) have a general qualification (construed in accordance with section 71 of the Courts and Legal Services Act 1990); or

(b) be an advocate or solicitor in Scotland.").

On Question, amendment agreed to.
[Amendments Nos. 7 and 8 not moved.]
Lord Hardiemoved Amendment No. 9:
Page 4, line 10, leave out subsection (3).
The noble and learned Lord said: My Lords, your Lordships will recall that during Committee I promised to consider issues raised by my noble and learned friend Lord Archer about the regulation-making power in Clause 7(3) and about the way expert assistance will be given to tribunals. Amendments Nos. 9, 10 and 26, if I may speak to them together, will, I believe, fully meet those concerns.
Amendments Nos. 9 and 10 make it clear that regulations shall be made, to provide for the composition of appeal tribunals; the procedure to be followed for allocating cases among differently constituted tribunals; and the manner in which expert assistance is to be given to the tribunal. It has always been the Government's intention to make regulations to provide for those matters. These amendments put that intention beyond doubt, on the face of the Bill. I should like to remind the House that the regulations made under Clause 7(3) will be subject to the affirmative resolution procedure, as I said in speaking to Amendment No. 5.
Amendment No. 26 is a tidying amendment which moves the regulation-making power in respect of the procedure which takes place on an appeal or an application before an appeal tribunal to Schedule 5 to the Bill. Schedule 5 deals with regulations as to procedure, and the power would fit more appropriately there.
I trust that these amendments address the concerns raised by my noble and learned friend Lord Archer and other noble Lords. I beg to move.
Lord Archer of Sandwell: My Lords, I am most grateful to my noble and learned friend. Once again he has demonstrated the listening ear. It is a pleasure to
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hear some of the speeches that we have heard from the Front Bench today. May there be many more such speeches in the years to come.
Baroness Anelay of St. Johns: But not for too many years to come, my Lords! But this is not a day for being churlish, as other noble Lords have said. I welcome the fact that the Government have brought forward these amendments in reaction to some of the comments made by noble Lords at Committee stage.
At this point I simply refer to the fact that Amendment No. 10 says:
"Regulations shall make provision with respect to—

(a) the composition of appeals tribunals;

(b) the procedure to he followed in allocating cases among differently constituted tribunals".

We come back to the point I made earlier: I still find difficulty in understanding at this stage how regulations will make the direction about allocation clearly and effectively enough for that allocation to be made fairly. If it is simply the case that regulations are to say that, if the appeal to be heard concerns DLA, a member shall have experience of working in the medical field or have themselves been disabled, that gives a qualification in that way. If the regulations merely say that, if the appeal is on a matter of income support, there will be no such restrictions on membership, or if they say that, if the appeal is contested there shall be three members and if it is not contested there shall be only one, or if they say that where an appeal seems to be unmeritorious there shall be only one member, there will he all kinds of difficulties. There may be cases which are unmeritorious in the eyes of the sifting organisation which later become meritorious. We then get back to the position, which the noble and learned Lord himself earlier recognised, where adjournment after adjournment has to take place, with all the attendant frustrations and difficulties for everyone, particularly for the appellant. In addition, appeals on DLA can be very different in character, not only with regard to the law which is to be discussed but also with regard to the way in which the evidence is to be tested.
Although I genuinely accept that these are welcome amendments, I remain to be convinced that the problems which we discussed at Committee and again on Report can be resolved simply by saying that regulations will wave the magic wand, particularly when none of us has yet been able to see those regulations. I would not expect the Government to be able to give details of them at this stage. They have been very prompt in replying to comments made by noble Lords.
All of us, including those far more experienced than I in these matters, recognise that one can make mistakes. With regard to the previous group of amendments, the noble and learned Lord the Lord Advocate referred to the letter sent to a few noble Lords—not to myself—by the new President of the Independent Tribunal Service. I am aware that most noble Lords will not have had the advantage of reading that letter. I therefore feel constrained in quoting from it but, since it has been referred to, I shall do so. The noble and learned Lord the Lord Advocate referred to paragraph 6 and adduced

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it as evidence that the new president, appointed in January, supports what the Government are doing. However, the president, the highly qualified judge, concludes paragraph 6 by saying that he may be wrong in saying that the flexible approach is the right way of going about the matter:
"But I may be wrong, and I want to be in a position to report to the Government on this issue before a new arrangement is fully implemented".
I can only congratulate him on his perspicacity. I hope that, by accepting the amendments that the Government have put forward, we shall not leave ourselves in the position of having regulations which do not answer the queries we have put forward. Other people may be wrong, not just ourselves.
Lord Goodhart: My Lords, I welcome the amendments. I hope that it will be possible to give an equally warm welcome to the regulations when they are laid before the House.
Lord Hardie: My Lords, the regulations will, of course, be framed in consultation with the President of the Independent Tribunal Service and the ad hoc group, which includes NACAB and others. It is intended that they will deal with a requirement that tribunals on incapacity-to-work cases would include a medical practitioner and that cases on disability living allowance would require a doctor and someone with experience of disability, as well as a lawyer.
Secondly, the regulations concerning the allocation of cases would ensure that similar cases were allocated consistently to similar types of tribunals. Administrators would be able to seek the advice of a legally qualified member of the panel if, exceptionally, there were any doubt about the appropriate constitution of the tribunal to consider an appeal. These matters will all be dealt with in the detail of the regulations. I am sure that the noble Baroness, Lady Anelay, and others will scrutinise them carefully when they come before this House.
On Question, amendment agreed to.
Lord Hardiemoved Amendment No. 10:
Page 4, line 23, at end insert—
("() Regulations shall make provision with respect to—

(a) the composition of appeal tribunals;

(b) the procedure to be followed in allocating cases among differently constituted tribunals; and

(c) the manner in which expert assistance is to be given under subsection (4) above.").

On Question, amendment agreed to.
[Amendment No. 11 not moved.]
Schedule 1 [Appeal tribunals: supplementary provisions]:
Baroness Anelay of St. Johnsmoved Amendment No. 12:
Page 57, line 41, leave out ("Secretary of State") and insert ("President").
The noble Baroness said: My Lords, in moving Amendment No. 12, with the leave of the House I shall speak also to Amendment No. 13. Similar amendments
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were moved in Committee by the noble and learned Lord, Lord Archer of Sandwell. Today I seem continually to persist in stealing his good ideas. The effect of the amendments is to give the president of tribunals power to,
"appoint such officers and staff as he thinks fit for the President and for appeal tribunals".
I supported these amendments in Committee when they were moved by the noble and learned Lord, Lord Archer, because they raise a fundamental issue which extends to all courts and tribunals; that is, what is to be the relationship between the judiciary and administrators? When the noble and learned Lord, Lord Archer, withdrew the amendments in Committee, he said that what troubled him about the response of the Lord Advocate was that there seemed to be little indication in his reply that the Government had reflected upon this difficult question.
I brought back the amendments on Report to give the Government an opportunity to tell the House whether or not they have been able to reflect further and also whether or not the Minister has now read the report, Tribunals, their Organisation and Independence. I note that at Committee stage the noble and learned Lord, Lord Archer, in his customary generous manner, offered to supply the Lord Advocate with a free copy. I beg to move.
Lord Archer of Sandwell: My Lords, I share the curiosity of the noble Baroness, Lady Anelay. I rise only to add one factual point to what is known already to your Lordships; that is, I came prepared with a copy of the report of the Council on Tribunals, only to discover that my noble and learned friend had already procured a copy for himself.
5.45 p.m.
Lord Hardie: My Lords, I can confirm that I have read the report.
Amendments Nos. 12 and 13 seek to transfer from my right honourable friend the Secretary of State to the president of appeal tribunals the responsibility for appointing officers and staff for himself and for those tribunals.
It is clear from the full debate in Committee and from the points raised by the noble Baroness, Lady Anelay, today that the concerns centre on three issues. First, the potential for undermining the independence of the appeals system if responsibility for the administration of appeals is removed from the president; secondly, the potential for conflict between the president and the administration in terms of accountability; and, thirdly, the potential for a conflict of interest if the Secretary of State is responsible both for first-tier decisions and the administration of appeals.
I propose to address each of those issues in turn. But first I should like to reiterate a point I made in Committee. The Government's proposal to transfer the responsibility for administration from the president to the Secretary of State, and to establish an executive agency to deal solely with the administration of appeals, so that administration is separated from the judicial

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function is not a new or strange concept within appeals systems. Rather, it is the current system of a judge as president with responsibility for administrative as well as judicial functions, which is unique to the Independent Tribunal Service.
Separation of administration and judicial functions happens in other appeal systems; for example, pensions appeal tribunals are administered by the Court Service, an executive agency; industrial tribunals and employment appeal tribunals are administered by the Employment Tribunals Service, also an executive agency. Our proposals will mirror those arrangements.
The noble Baroness, Lady Anelay, suggested that the independence of the president and of appeal tribunals would be enhanced if the president retained his current responsibility for appointing administrative staff to support their work. In saying that, I am assuming that the noble Baroness is adopting the argument of my noble and learned friend Lord Archer of Sandwell.
We are fully committed to preserving the independence of the president, of appeal tribunals and of the decisions they make. The provisions we have made in Clauses 5 and 6 for the Lord Chancellor to appoint the president and all panel members enhances their independence. The president will be the judicial head of appeal tribunals. He will be responsible for approving panel members for their expertise and suitability to deal with particular types of appeal. He will also be responsible for arranging the training of all panel members, in consultation with the Chief Medical Officers and the Secretary of State, as appropriate. I can assure noble Lords that the Secretary of State will have no role in the functions of appeal tribunals or in the decisions they make.
During Committee and again today, reference was made to a report by the Council on Tribunals, Tribunals, their Organisation and Independence. I have now had the opportunity to read the report and have found that it is generally supportive of the measures we are introducing. I do not propose to go through the areas in which I found support, but if noble Lords require clarification, I can do so. There are eight in number.
On the question of accountability, my noble and learned friend Lord Archer suggested during Committee that if the senior administrator or chief executive were answerable to the president, it would be the president who could be summoned to the Public Accounts Committee. Currently, the president is responsible for the administrative as well as judicial functions and he delegates responsibility for administration to a chief executive. However, neither the president nor the chief executive is accountable to Parliament for the performance of ITS.
This lack of accountability for performance within the existing system has the effect of limiting improvements in efficiency and service to claimants. We intend to put that right by separating responsibility for administration from judicial functions, an approach endorsed by the Council on Tribunals. Importantly, the chief executive may be appointed accounting officer, directly responsible to Parliament for the public money spent on administration and the efficiency of the service provided.
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We do not believe that the changes we are making provide the potential for a conflict of interest. The setting up of an executive agency to deal with the administration of appeals is a measure which is welcomed by the Child Poverty Action Group, among others. Agency status will enable the new appeals service to operate at arm's length from Ministers, and separate from the agencies that are involved in first-tier decision-making.
It is the Secretary of State and not the president who will be responsible for the appeals service as a whole and it is she who will be accountable to this House for the standards of administration and the public money spent. In view of her responsibility and accountability, we believe the Secretary of State should exercise the power, through the appeals agency chief executive, to appoint administrative staff to support the president and appeal tribunals.
I hope that I have been able to reassure noble Lords that our proposals for the new system are already tried and tested in other systems and that the essential elements of it are supported by the Council on Tribunals' report and welfare rights organisations. For those reasons, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Anelay of St. Johns: My Lords, I am grateful to the noble and learned Lord for reflecting further and for reading the report of the Council on Tribunals. Like him, I will not list specific areas in the report, in my case where they do not agree with the Government's way forward. However, I take seriously the arguments he put forward with regard to accountability issues and I shall read carefully what he said in Hansard. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Earl Russellmoved Amendment No. 14:
After Clause 8, insert the following new clause—
ENTITLEMENT TO CERTAIN BENEFIT PAYMENTS AND INFORMATION AND EVIDENCE REQUIRED TO SUPPORT CLAIM
(" .—(1) The Secretary of State shall, in such manner as is prescribed, inform with sufficient particularity a person wishing to make a claim for a relevant benefit what information and evidence is required to support the claim.
(2) Subject to paragraph 4 of Schedule 1 to the Jobseekers Act, where the Secretary of State makes a decision awarding income support, or jobseeker's allowance, the claimant shall be entitled to payment from no later than the date when the claim for it was made.").
The noble Earl said: My Lords, we covered much of the basic arguments on this amendment in Committee. We were left with the issue behind the basic argument, which is the Department of Social Security's immense confidence in its own judgment.
The basic purpose of Amendment No. 14 is to reverse the onus-of-proof regulations introduced in October 1997. The point of those regulations was that the start of a claim could be delayed if the claimant was late in providing supporting evidence except in certain specified circumstances set out in regulation. It is easy

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to list circumstances in which the claimants may not be to blame for not supplying supporting evidence. The department's reply to that is that it can foresee all those circumstances and specify them in regulations.
That is a remarkable piece of confidence. The Department of Social Security increasingly reminds me of an 18th century enlightened despot. It is benevolent; it means well; but it has great confidence in its ability to do well according to its own standards of judgment. It does not very often see the need for those standards of judgment to be checked against an external point of reference. For example, exemption is provided in the regulations for mental illness, but we all know that many of those suffering from mental illness have not yet had it diagnosed and may be just as much handicapped as those who have had it diagnosed. There is provision for them to get help if it is needed, but those who most need help are very often those who least know that they need it.
I have not seen any provision in the regulations specifically for illiterates, although they might be covered under the provision that help is needed. I remember discussing in this Chamber a case involving an illiterate who had been summoned to attend the courts. The person who read his letters for him happened to be away for that week so he waited until he came back to get the letter read. When his reader did come back he found that it was too late and that he had already been disentitled to benefit. That is just the kind of thing that no department foresees. We may now foresee that particular case because it has happened before, but this regulation-based method of legislation is one which leads to the endless locking of stable doors after horses have been stolen. It does not lead to the recovery of the horses.
It has been argued by the department that claimants need to be under an incentive to get their supporting evidence in on time. But that argument can apply only to those who do not genuinely need the benefit. If you do genuinely need a means-tested benefit, you are actually in need; you need the money now. This is like an argument that people will not put in their claims for winning the lottery unless they have an incentive to do it. Camelot has thought of a lot of things but I do not think that it has yet thought of that one.
The necessity is very far from instantly apparent. Indeed, there are many people, especially people who may have just suffered a traumatic event, who do not get paper in on time simply because they cannot find it. When I think of the task of finding paper in my study I can think of the possibility of taking a month to find a document I need badly, even when I know perfectly well what it is I need and I know I have to look for it. I do not by any means believe that I am unique in that.
These are a bureaucratic series of provisions capable of causing gross hardship, imposed, I have no doubt, in the fullest good will but showing a confidence in the
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department's judgment which is the kind of confidence to which I think none of us in this world is really entitled. I beg to move.
Lord Hardie: My Lords, this amendment to a large extent repeats the one put down by the noble Earl and the noble Lord, Lord Goodhart, at the Committee stage which was not pressed. The amendment has been redrafted, but the change does not overcome the Government's fundamental objection to it. Our objection is that it is unnecessary because the group which it aims to protect is already protected by existing legislation.
Subsection (1) seeks to place new statutory obligations on the Secretary of State to inform claimants of evidence requirements in such a way as will be prescribed in regulations. I am fully aware of the importance of ensuring that claimants understand what they are expected to provide when they make a claim. That is why we introduced the evidence or onus of proof regulations, to which I shall come later. However, we believe that the best way to achieve this is through agency communications and procedures, not through regulations.
Claim forms for benefits already request the required information and we will be looking to improve these forms further. In acknowledging that we will be looking to improve the forms, the department is not complacent. It recognises that improvements can always be made to any system. Regulations could remove the flexibility to experiment and to innovate in order to continue to improve the effectiveness of our communications.
I turn now to subsection (2) of the proposed new clause. The concerns of the noble Earl cover two issues relating to the date of claim; first, the relationship between the date of claim and the evidence or onus of proof requirements; and, secondly, the backdating of claims for benefit. These are separate issues. It may be helpful to your Lordships if I explain how the evidence regulations on backdating work to understand better why the amendment is unnecessary.
The evidence requirement regulations currently apply to income support and jobseeker's allowance. They apply only after a claim has been made. Those words are significant. Once the claimant has indicated an intention to claim, he or she has one month in which to provide the evidence and information required by the Secretary of State to satisfy evidence requirements. If this is done within that period then the date of the first contact is the date of the claim and the date from which benefit will be paid. The vast majority of people have no difficulty in complying with these regulations.
However, I acknowledge, as the noble Earl pointed out, that there will be people, often vulnerable groups, who for reasons beyond their control cannot provide the information or evidence required. These people are explicitly recognised by the exemption criteria written into the regulations. Perhaps I may pause to consider the examples used by the noble Earl. Although they are not specifically referred to in the exemption to the evidence requirements, they are the kind of cases that the department would look at sympathetically and would

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probably exempt in any event. I am thinking of the example of the person who was illiterate and through not fault of his own was unable to understand that there was a time limit within which he had to make the application.
For people in the vulnerable categories who are covered by exemptions the date of the claim will also be the date of the first contact. In other words, under the current evidence requirements the regulations have been drafted so that no one should lose benefit. I hope your Lordships will be reassured to learn that this will not be changed under the new system.
The time limit for providing evidence to support a claim for income support or jobseeker's allowance should not be confused with the time limit for backdating a claim for benefit. The evidence regulations are concerned with events after the claim has been made. Backdating the date of claim is concerned with events before the claim is submitted. People usually claim income support or jobseeker's allowance immediately because, as the noble Earl observed, they have an immediate need for the money. However, benefit will continue to be backdated by up to three months if there are special reasons for delaying a claim. Those reasons would include illness, disability, domestic emergencies and incorrect information by the department. Another example used by the noble Earl at the Committee stage was bereavement. That would fall within the category of a domestic emergency. The department would look upon that favourably. Subsection (2) of the amendment would not improve on the provisions. For these reasons we cannot support it.
I have listened carefully to what has been said and I sympathise with the concerns expressed by the noble Earl. I fully appreciate that he and other noble Lords quite properly wish to protect vulnerable groups. I can assure the House that the Government already do so, will continue to do so and are committed to doing so. I hope that I have reassured the noble Earl that the amendment is unnecessary and I trust that he will feel able to withdraw it.
6 p.m.
Earl Russell: My Lords, I thank the noble and learned Lord for what he said about the claimant who was illiterate and the reader who was away. Unfortunately, that is not what actually happened in that case: he did lose benefit. The noble and learned Lord has also illustrated the great value of the concession that he made earlier about lawyer-members of appeal panels. He has set out to discern the principle behind the regulations and attempted to apply that principle to the kind of cases that I have cited in just the sort of way for which legal skills are most valuable.
But behind that there still remains a very real area of disagreement. I did not suppose for a moment that I had overcome the Government's most fundamental objections. We have here a clash of cultures which is even more a constitutional matter than a social security matter. We are here arguing about two different methods of legislation. Legislation by detailed regulation involves confidence in the department's capacity to enumerate in advance all possible causes of hardship.
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I am sure that the noble and learned Lord is already aware of the comments on that subject in the Renton Report which I have repeated many times and will not repeat again today. We have a culture clash here to which we shall return. I hope that over the years we shall have a little more meeting along the edges of it. I do not believe that we are getting any further tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Appeal to appeal tribunal]:
Lord Goodhartmoved Amendment No. 15:
Page 7, line 41, at end insert—
("() Regulations under subsection (6) above shall provide that—

(a) a person's appeal shall he determined at an oral hearing, unless he requests otherwise;

(b) the panel member who constitutes the appeal tribunal or, as the case may be, is its chairman shall order that there be an oral hearing where he believes one to be desirable in the interests of justice, irrespective of the wishes of the person bringing the appeal.").

The noble Lord said: My Lords, I believe that this is an amendment of considerable importance. Since October 1996 the rule has been that appeals are dealt with on paper unless the appellant asks for an oral hearing. This amendment seeks to reverse that position and return to the situation as it was until October 1996—that is to say, the appellant will get an oral hearing unless he or she asks specifically for a paper appeal. At first sight one might think that there was some justification for the present rule, and indeed there is to some extent.
The noble and learned Lord, Lord Hardie, pointed out during the debate in Committee on this amendment that 30 per cent. of appellants failed to attend the oral hearing at the time when an oral hearing was automatic unless a paper hearing was asked for. As he rightly said, that involved a waste of time and money. Again, it can be said that it is not difficult to ask for an oral hearing if that is what the appellant wants. It was pointed out by the noble and learned Lord that the Government's literature properly explains the right to an oral hearing and refers to the greater success rate that is obtained as a result of such a hearing.
That would be fine were it not for the astonishing difference in the success rates of oral and paper appeals. In 1996 the success rate was 53 per cent. where the claimant appeared in person or was represented at the tribunal hearing. Where the appellant did not appear and was not represented, the success rate was 13 per cent. As regards incapacity benefit, where a personal appearance is particularly important, there was a 57 per cent. success rate for attended appeals and a 7 per cent. success rate for non-attended appeals. It may be that people with stronger cases are more likely to request oral hearings, but that cannot remotely account for the full difference in the success rates between attended and non-attended hearings.
I suggest that there are two other reasons at least for the difference in the success rates. The most important one is that claimants are unlikely to understand the regulations or be skilled in presenting their cases on paper. They need help in explaining their case and at an

971
oral hearing that help is obtained from the tribunal. If essential facts have been omitted from a written case they may be brought out by the tribunal. In a paper appeal that cannot be done because there is nobody there to answer questions that the tribunal might wish to ask. Another reason might be a feeling by the tribunal that if the appellant does not want an oral hearing he or she cannot have a serious case to make.
It stands to reason that if claimants have to ask for an oral hearing a good many of them will not do so. Tony Lynes, who is an expert in this field, has estimated that as a result of the 1996 changes to the procedure, some 10,000 people a year lose benefits to which they are entitled. The noble and learned Lord the Lord Advocate, in the debate at Committee stage, said that the Government do not have sufficient data to draw conclusions. Mr. Lynes has written to me to confirm that success rates for attended and unattended hearings since the change in procedure have remained roughly constant, but the proportion of hearings which are attended has fallen steadily. Mr. Lynes accepts that the DSS statistics on which its conclusions are based are not as complete as they should have been. But the problem of waiting for more statistics from the DSS is that the opportunity for action will have passed. It is unlikely that any initiative to increase the percentage of oral hearings will come in future from the DSS given that there will indeed be some increase in the time and expense of appeals if that change is made.
It may be that there will be no new legislation on appeal tribunals for some years to come. Indeed, I hope that there will not be because that will prove that the new system has succeeded. So this may well be the only opportunity we have for many years to go back to the system of making oral hearings a default procedure, which is a procedure which takes effect unless the appellant asks specifically that it should not. We surely know enough already to be satisfied that the October 1996 changes have worked an injustice and I believe that that should be reversed now. I beg to move.
Lord Higgins: My Lords, we have already discussed this matter at some length. The statistics are fairly impressive. Perhaps the Minister can confirm that the chance of success on appeal is three times as great if there is an oral hearing as opposed to the matter being dealt with on paper. That being so, we would need to consider further what attitude one should take to this matter.
I have more problems with the second part of the amendment which refers to there being an oral hearing where the panel member or the chairman,
"believes one to be desirable in the interests of justice, irrespective of the wishes of the person bringing the appeal".
The noble Lord, Lord Goodhart, has just pointed out that about one-third of the people who are expected to appear at an oral hearing do not do so. As regards the second part of the amendment, I am not clear as to what happens if the chairman decides that there should be an oral hearing, but the appellant does not appear. Perhaps
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that is a point on which the Minister can comment. We may give further consideration to the matter between now and Third Reading.
Lord Hardie: My Lords, this issue has been discussed a number of times during the passage of this Bill. I have listened carefully to the arguments of the noble Lord, Lord Goodhart, as to why he believes that this amendment is necessary. I would like to explain to the House why we have taken our position. Noble Lords will recall, as the noble Lord, Lord Goodhart, outlined, that there used to be automatic provision for an oral hearing. But as I said in Committee, officials found that about one-third of appellants failed to attend the hearing, which resulted in an inordinate waste of hearing time. That is expensive to set up and it also causes delays to others when arrangements are not used.
We were concerned about the amount of time people have to wait—it is even longer if hearings are set up to no purpose. As a result, a change was introduced under which an appellant had the right to an oral hearing, but an oral hearing was not automatically set up unless the appellant requested one.
The forms that are sent out are quite clear. The front page explains clearly that there is an advantage to the appellant in asking for an oral hearing. Indeed, there is a specific question asking, "Do you want a hearing?" and the applicant has to tick either the "yes" or the "no" box. The appellant should therefore be aware of the advantage of going to a hearing if he so chooses. The change that was introduced allowed the Independent Tribunal Service to organise hearings more quickly and effectively. We believe that it is a sensible system and we want to retain it.
We want people to get the benefits to which they are entitled, but we also believe people have a responsibility to make claims, to provide information, and to make appropriate representations to receive benefit.
This Bill does not remove the right to an oral hearing. The right remains. All appellants receive a letter asking them to confirm whether they want an oral hearing. The letter states:
"If I do not hear from you within 14 days of the date of this letter I will assume you wish the appeal to be decided on the papers".
That is to cover the situation where an appellant chooses not to return the form.
A leaflet is sent out with the letter, which explains the difference between an oral hearing and an appeal decided on the papers. It is made very clear that all the appellant has to do if he or she wants an oral hearing is to request one—by ticking the box on the enclosed form, and sending it back in a pre-paid envelope. As my noble friend Lord Borrie indicated in Committee, the leaflet attached to the appeal form clearly points out that claimants who attend the hearing of their appeals usually do better than those who do not.
We are asking people to confirm that they do want a hearing. The noble Lord's amendment would require people to say that they do not want a hearing. The risk is that people will not make a decision until the day—and then not turn up, as in the past; and, as in the past, a proportion of hearings will be convened unnecessarily.

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The noble Baroness, Lady Gardner, described in Committee her experience on industrial tribunals where the situation is very similar. She highlighted that claimants who realise their appeal has no chance of success often do not turn up for their hearing as they would be wasting their time, but these people may not opt out of an oral hearing. This means that oral hearings are arranged for people who do not want one and the whole process is delayed, to the disadvantage of those people who are entitled to benefit and to have their case dealt with as expeditiously as possible.
My noble and learned friend Lord Archer told us that he, too, had seen tribunals where the claimants simply do not turn up, leaving the tribunal waiting for customers. It is unfortunate that resources could be wasted in that way when there are thousands of people who are waiting for their appeal to be heard. There is no question that we should return to that position. Appellants can exercise their right to an oral hearing, but they must shoulder the responsibility for the simple process of letting the appeal service know that is what they want.
The noble Lord, Lord Goodhart, supported a similar amendment in Committee. In moving this amendment today, he suggested that following the introduction of paper hearings in 1996, the proportion of hearings attended has fallen from 62 per cent. to 44 per cent. and the success rate from 40 per cent. to just over 30 per cent. Those figures, however, relate to single year quarters. It is difficult to rely upon a single quarter as indicative of a general trend. However, I should also add that there are doubts about the validity of the published figures due to problems with the Independent Tribunal Service's computer system. A new computer system is being introduced. We are committed to undertaking an evaluation of the 1996 changes when robust data is available and will publish the results. We expect to be able to do so later this year.
I believe it is reasonable to expect people to think carefully about their appeal and to decide whether they want the oral hearing to which they have a right. If they make a positive choice, we believe they are more likely to turn up for the hearing. The fact is that all appellants have to make a decision about whether to turn up for an oral hearing. They should not leave it until the last minute.
The second part of the amendment would place on the face of the Bill a requirement for tribunals to order oral hearings irrespective of the applicant's wishes. This provision already exists under Regulation 22(1)C of the Social Security Adjudication Regulations. It is our intention to retain it, as we think it is a valuable tool for tribunal chairmen. For example, the tribunal may wish to examine the Secretary of State's representative or her expert witness. An oral hearing will be convened if the tribunal considers it necessary, but only after the claimant has been invited to attend. The claimant will also be given the reasons why it is thought that this may allow a better opportunity to examine the case. I do not, however, believe it is necessary to write this on the face of the Bill. With those assurances, I hope that the noble Lord will withdraw his amendment.
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Before sitting down, perhaps I may answer the point raised by the noble Lord, Lord Higgins. The chances of success are greater if one attends a tribunal. That is explained to all applicants in clear terms. It is explained that it is in their interests to attend. Therefore, they can make an informed choice. I appreciate that some people have less ability to take in information than others but, as the noble Earl, Lord Russell, explained, such people often receive assistance from friends who can read or they can obtain help from citizens advice bureax which would, I am sure, direct them to having a hearing. I invite the noble Lord to withdraw his amendment.
6.15 p.m.
Lord Goodhart: My Lords, the noble and learned Lord's arguments would be very convincing were it not for the enormous disparity in the success rates between oral and paper hearings. For that reason, I believe that every effort must be made to give priority to oral hearings and to encourage people to seek such hearings. I believe that the system that has been in operation since October 1996 has been a cause of genuine injustice in probably thousands of cases. For that reason, on this occasion I feel it necessary to take the opinion of the House.
6.17 p.m.
On Question, Whether the said amendment (No. 15) shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 100.

Division No. 1

CONTENTS

Addington, L.

Razzall, L.

Beaumont of Whitley, L.

Rodgers of Quarry Bank, L.

Calverley, L.

Russell, E. [Teller.]

Carlisle, E.

Sandberg, L.

Dacre of Glanton, L.

Steel of Aikwood, L.

Falkland, V.

Thomas of Gresford, L.

Geraint, L.

Thomas of Swynnerton, L.

Goodhart, L. [Teller.]

Thomas of Walliswood, B.

Hooson, L.

Thomson of Monifieth, L.

Ludford, B.

Tope, L.

McNally, L.

Tordoff, L.

Maddock, B.

Ullswater, V.

Mar and Kellie, E.

Waddington, L.

Meston, L.

Wallace of Saltaire, L.

Methuen, L.

Williams of Crosby. B.

Newby, L.

Winchilsea and Nottingham, E.

Perry of Walton, L.

Wynford, L.

NOT-CONTENTS

Acton, L.

Clinton-Davis, L.

Ampthill, L.

Cocks of Hartcliffe, L.

Archer of Sandwell, L.

Coleraine, L.

Ashley of Stoke, L.

Craig of Radley, L.

Barnett, L.

Currie of Marylebone, L.

Bassam of Brighton, L.

David, B.

Berkeley, L.

Davies of Coity, L.

Blease, L.

Davies of Oldham, L.

Borrie, L.

Desai, L.

Brooke of Alverthorpe, L.

Dixon, L.

Burlison, L.

Dormand of Easington, L.

Carmichael of Kelvingrove, L.

Dubs, L.

Carter, L.

Erroll, E.

975

Evans of Parkside, L.

Merlyn-Rees, L.

Ewing of Kirkford, L.

Milner of Leeds, L.

Falconer of Thoroton, L.

Mishcon, L.

Farrington of Ribbleton, B.

Molloy, L.

Fitt, L.

Monkswell, L.

Gallacher, L.

Montague of Oxford, L.

Gilbert, L.

Morris of Manchester, L.

Gladwin of Clee, L.

Murray of Epping Forest, L.

Gordon of Strathblane, L.

Nicol, B.

Graham of Edmonton, L.

Orme, L.

Hanworth, V.

Palmer, L.

Hardie, L.

Pitkeathley, B.

Hardy of Wath, L.

Prys-Davies, L.

Haskel, L. [Teller.]

Puttnam, L.

Hattersley, L.

Ramsay of Cartvale, B.

Hayman, B.

Randall of St. Budeaux, L.

Hilton of Eggardon, B.

Rendell of Babergh, B.

Hogg of Cumbernauld, L.

Renwick of Clifton, L.

Hollis of Heigham, B.

Richard, L. [Lord Privy Seal]

Hoyle, L.

Rogers of Riverside, L.

Hughes, L.

Sefton of Garston, L

Hughes of Woodside, L.

Sewel, L.

Hunt of Kings Heath, L.

Simon, V.

Irvine of Lairg, L. [Lord Chancellor.]

Simon of Highbury, L.

Stoddart of Swindon, L.

Islwyn, L.

Stone of Blackheath, L.

Janner of Braunstone, L.

Strabolgi, L.

Jay of Paddington, B.

Symons of Vernham Dean, B.

Jeger, B.

Taylor of Blackburn, L.

Jenkins of Putney, L.

Taylor of Gryfe, L.

Kennedy of The Shaws, B.

Thomas of Macclesfield, L.

Lockwood, B.

Turner of Camden, B.

Lofthouse of Pontefract, L.

Varley, L.

Lovell-Davis, L.

Wedderburn of Charlton, L.

McIntosh of Haringey, L. [Teller.]

Whitty, L.

Williams of Mostyn, L.

Mallalieu, B.

Winston, L.

Mason of Barnsley, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.26 p.m.
Lord Goodhartmoved Amendment No. 16:
Page 7, line 42, leave out ("may") and insert ("shall").
The noble Lord said: My Lords, I beg to move Amendment No. 16. The purpose of Amendments Nos. 16 and 17 is to retain the three-month period for appeal and give greater discretion to allow appeals out of time. As the noble and learned Lord, Lord Hardie, confirmed at Committee stage, the Government intend to impose by regulations a one-month limit for appeals to appeal tribunals. It is true, as the Government have said, that most people if they intend to appeal do so within one month, but those who do not are likely to be the most vulnerable: the disabled, the mentally ill, the very old, the immigrant and the illiterate. They are the people who need help. While there are organisations which will give claimants help, they may not know where to go. They may take some time to find out where to go to get help. The organisations which provide help may take some time to organise a visit or meeting to enable claimants to find out what the situation is and to give them advice as to whether an appeal should be brought and how to bring it.
At Committee stage I read comments by the Richmond citizens advice bureau. I do not propose to repeat them at this stage. Those passages can be found at col. 416 of the Official Report of 2nd April. Those
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comments are made by people who have great experience of the system and I believe that they make a very strong case for a longer and more flexible time in which to appeal. The noble and learned Lord, Lord Hardie, said that the appeal period de facto would be two months because time would run only from the end of the one-month dispute period. I am not clear what is meant by "dispute period", but I understand from what the noble and learned Lord has said that that period arises only if some action is taken by a claimant within one month of the decision to query that decision. Effectively, we are back where we started; that is, people who do not know what to do will not initiate the dispute provision.
The problem occasioned by the reduction in time for an appeal would matter less if there were greater flexibility in allowing leave to appeal out of time. The present position is that under regulations made in February 1996 time limits can be extended only if an appeal has reasonable prospects of success and it is in the interests of justice to grant leave. The reference to "interests of justice" has been interpreted very narrowly. Under the existing practice of tribunals the power to extend the time limit is considered to apply only if there are special reasons which are wholly exceptional. In the view of the citizens advice bureau, in practice it is virtually impossible under the present system to obtain leave to appeal out of time.
The noble and learned Lord, Lord Hardie, said that new regulations for setting time limits would be discussed with the interested parties. However, in replying to this amendment at the Committee stage, he gave no undertaking to relax the present criteria for leave to appeal out of time. If the regulations provided that a chairman of the tribunal or another legally qualified member of the panel could give leave to appeal out of time whenever the complainant had a reasonable excuse for failing to comply with the time limit, that would to a very great extent draw the sting of the reduction in the standard time for making an appeal.
Is the noble and learned Lord the Lord Advocate willing to accept that the corollary of shortening the time is that the present criteria for appealing out of time should be relaxed and leave to appeal should be capable of being given whenever there is a reasonable excuse for failing to comply with the time limit?
6.30 p.m.
Lord Borrie: My Lords, at the Committee stage I spoke generally in favour of the amendment, partly because the Government had already indicated that most people made their application within a month. It was not logical to say that just because most people made their application within a month that should be a rule, an outside limit, and that anybody who applied outside one month would not be entitled to make a claim.
The argument goes completely the other way. If there are only a few people who apply beyond the month, why are the Government being so rigid in saying that there must be a one-month time limit? The Government must bear in mind the kind of points made by the noble

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Lord, Lord Goodhart, both today and more extensively at the Committee stage and the quotations of the Richmond CAB and so on.
As to the point that the kind of people who are likely to apply for social security benefits need advice and do not know where to go, I suggest that they may go to the citizens' advice bureau or some other adviser. They in turn then need time to consider whether the claim is justified, and before you know where you are the four weeks are up. The Government suggest that only in a minority of cases more than a month expires before the claim is made.
In response in Committee, my noble and learned friend the Lord Advocate mentioned the dispute period, which would add one month. I would be grateful if the noble and learned Lord could explain that further. As I understand it, if in the example I mentioned the CAB—which is a lot more knowledgeable than individual claimants about these things—simply put in a claim without any reasoning it would have another three or four weeks in which to substantiate the claim. The claim would then be allowable.
If that is so, the Government have modified what some thought was the rather rigid position of having only one month within which to make a claim. I am not sure that that entirely solves the problem because, as I asked a moment ago, if only a relatively few number of claimants claim outside the one month period, why do the Government stand firm on this being an outside limit with no possibility of the claim being made at a later date?
Lord Hardie: My Lords, perhaps I may first respond to the points raised in relation to Amendment No. 16 where it is proposed to change the word "may" to "shall" in Clause 12(7). I can assure the House that we will make regulations under the power in Clause 12(7) to prescribe the time and manner in which appeals may be brought. As I indicated in Committee, in this context "may" and "shall" have the same meaning. It is drafting convention that leads us to prefer "may".
The real issue is Amendment No. 17, which seeks to ensure that the time limit for appealing is not less than three months. As I stated in Committee, the Government intend to make regulations setting a time limit of one month in which an appeal can be made. We have previously stressed our view that rights go hand in hand with responsibilities. A person who is dissatisfied with the decision has the right to appeal, but the responsibility to do so within the time limit rests with the appellant. We believe that one month is a reasonable period and most appellants make their appeal within one month.
As to my noble friend Lord Borrie's point, if people know that they have a month within which to appeal they will aim to achieve that target. The one-month period must also be seen in the context of the dispute period. That point was raised by the noble Lord, Lord Goodhart. The effect of the dispute period and the appeal period is that
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effectively one has two months within which to lodge an appeal. The decision will be issued and there will be one month in which to dispute it.
Lord Goodhart: My Lords, is this provision in the Bill or does it arise somewhere outside the Bill? I have looked for it but am unable to find anything of that kind in the Bill.
Lord Hardie: My Lords, I will try to have it confirmed. My understanding is that it is in the regulations. That is just being confirmed.
There will be in the regulations a provision for a month's dispute period. Within that one-month period, if there is a dispute and if the department considers that the decision was wrong, the department will correct the decision, confirm it and intimate that to the claimant. If the department considers that the decision is correct, that again will be confirmed in writing. If the claimant is unhappy with the decision at the end of the dispute period he has a further month in which to appeal.
As to the proposal in the amendment that the chairman should have a discretion to extend the appeal period, regulations will cover the question of late appeals and make provision for them.
Returning to the question of the timescale, the effect of the dispute period is that an aggrieved claimant would have two months within which to lodge an appeal. This would have the effect of ensuring that appeals were lodged reasonably soon after the decision complained of and, it is to be hoped, tribunals would be seized of the decision sooner rather than later. The longer one allows for an appeal to be lodged the more likely it is that people will wait until the last minute before doing so. It is human nature to delay until the last minute, at least for some people.
Lord Higgins: My Lords, I am still trying to adjust to the rules of order in your Lordships' House. I apologise if I am not correct in intervening at this point.
I have had considerable difficulty in understanding the point which the noble and learned Lord the Lord Advocate made earlier. I am not clear whether he was saying that the existing regulations provide for this two-month period or whether it is the intention that future regulations would cover the two-month period. I am not at all clear how this two-month period comes about.
Lord Hardie: My Lords, the two-month period is a combination of two separate months. The first month is a dispute period within which a claimant may raise concerns about the decision with the department. At the end of that month a letter will be issued confirming the decision or stating the final decision. So the claimant will receive a letter indicating what the decision is. If the claimant is unhappy with it he goes back to the department. If the department accepts there is a mistake it will issue a corrected decision. If it does not accept there is a mistake it will issue a letter confirming the original decision.

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At the end of that period of a month, the appeal period will commence. There is a period of one month after that within which one has to lodge an appeal. The regulations to which I have referred are future regulations which will be made under Clause 9 of the Bill.
The amendment which we are considering would also require the regulations to give discretion for a legally qualified chairman to accept a late appeal where he considers that the claimant has reasonable excuse for not bringing the appeal within the time limit. There are at present late appeal provisions. They were tightened in February 1996. The changes that were introduced at that time were to help chairmen decide special reasons under which late appeals could be admitted. That was necessary because over a number of years the application of special reasons had become diluted, with some chairmen granting applications where there were no special reasons, and there was no consistency across the country. I am able to say that the department is discussing with the Independent Tribunal Service and welfare rights organisations the new provisions for regulations on late appeals. They will be brought forward in conjunction with and after discussion with these parties, who obviously have an interest, both from the point of the view of the tribunal service and from the point of view of claimants.
We are anxious to ensure that we get the provision for late appeals right. As I have said, we will discuss these with interested parties, including claimant representatives, through the ad hoc group that we have set up to consider draft regulations and new procedures. In doing so, we will have regard to the sort of instances described by the noble Earl, Lord Russell, at Committee where some of the most disadvantaged people are unable to make their appeal within the time limits.
We will also give consideration to the suggestion to include a ground for unforeseen circumstances, but we see no reason why a general time limit of one month—in practice, with the dispute period, two months—which is manageable for the vast majority of appellants, should be extended. We feel that that would have the effect of delaying appeals unnecessarily.
I should like to repeat a point that I made previously concerning the requirement for legally qualified panel members to make decisions on late appeals. We consider that it is unnecessary for a legally qualified panel member to make that decision of whether to allow a late appeal in every case. Such a restriction would be an obstacle to our efforts to establish a modern, efficient service and a service which makes optimum use of legal expertise. There will certainly be occasions where decisions on straightforward cases can be taken by a clerk. They will be rare, but, for example, current regulations specify an absolute time limit of six years for making a late appeal but clerks are not allowed to dispose of those appeals. In no way could an appeal be allowed after that period. That is the sort of issue which could competently be dealt with by a clerk and does not require a legally qualified member.
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With the explanation and assurances that I have given, I hope that the noble Lord will feel able to withdraw the amendment.
6.45 p.m.
Earl Russell: My Lords, before the noble and learned Lord sits down, he said, if I have him right, that "may" means the same as "shall". When he said that, was he speaking with the case of Pepper v. Hart in mind and, if so, how far does the principle extend?
Lord Hardie: My Lords, I was not speaking with the case of Pepper v. Hart in mind. I think that it is a principle of draftsmanship with which the noble Lord, Lord Goodhart, will be familiar.
Lord Goodhart: My Lords, in view of the fact that discussions are continuing with voluntary organisations concerned with these matters, and in the hope that the Government will be prepared to introduce a greater degree of flexibility in regulations than exists at the moment, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
[Amendment No. 17 not moved.]
Schedule 2 [Decisions against which no appeal lies]:
[Amendment No. 18 not moved.]
Lord Hardiemoved Amendment No. 19:
Page 59, 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: My Lords, with your Lordships' permission I shall speak to the group of amendments comprising Amendments Nos. 19, 81, 83, 76, 79, 80, 82, 84, 87, 88, 78, 104, 85 and 86. They all amend provisions relating to child support appeals to ensure that parents with child support assessments can have related issues considered easily and effectively.
The procedure which a tribunal follows in dealing with a departure from a child support assessment differs in detail from other appeals because decisions are largely discretionary. Amendments Nos. 81 and 83 insert a provision maintaining the existing rules which govern how a tribunal approaches these issues.
In addition, Amendments Nos. 19, 81 and 83 clarify the appeal rights against a reduced benefit direction. These amendments ensure that claimants are able to appeal the decision to reduce benefit based on its foundation in child support legislation.
Turning to the second group of amendments, Amendments Nos. 76, 79, 80, 82, 84, 87 and 88, these provide for appeals relating to the requirement that certain groups of non-resident father pay a contribution to child support maintenance by deduction from their benefit. These amendments correct an omission from the initial draft of the Bill.
I now turn to Amendments Nos. 78 and 104. These amendments provide a delegated power which will enable us to extend the appeal rights available against

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child support decisions. They allow us to specify additional appeal rights as child support policy and operations develop.
Finally, Amendments Nos. 85 and 86 correct a minor drafting error in the provisions of the new Schedule 4C introduced into the 1991 Child Support Act.
I commend these amendments to the House. I beg to move.
On Question, amendment agreed to.
Clause 13 [Redetermination etc. of appeals by tribunal]:
Lord Goodhartmoved Amendment No. 20:
Page 8, One 10, leave out ("shall") and insert ("may").
The noble Lord said: My Lords, Clause 14(10) provides that no appeal shall lie from a tribunal to a social security commissioner unless leave to appeal is given by the chairman of the tribunal which decided the case, if available, or of a social security commissioner. Clause 13, which is somewhat back to front—one might have thought that Clause 13 would follow rather than precede Clause 14 but that is a matter for the parliamentary draftsmen—provides that the person to whom the application for leave is made must, in certain circumstances, instead of giving leave or refusing leave, set aside the decision and refer the case back for redetermination by the tribunal. Those circumstances are two: first, that the person hearing the application for leave thinks that the decision of the tribunal was wrong in law; or secondly, that both the parties to the appeal think that the decision was wrong in law, whether or not the person to whom the application for leave is made agrees.
Originally, in Committee, I took the view that what is now Clause 13 was in fact wholly misguided. The noble and learned Lord, Lord Hardie, persuaded me that that was not so and that there are cases—for example, where it becomes obvious that a mistake in law has been made by the tribunal, perhaps because a regulation has been overlooked—in which it is appropriate, instead of referring the matter up the tree to the social security commissioner, to pass it straight back to another hearing before the tribunal. Therefore, I accept that there should be a power to order a redetermination, either by the same or another tribunal as appropriate, on an application for leave to appeal to avoid the need to go back up the tree to the commissioner and then be sent down again for redetermination of the case.
But the person to whom the application for leave to appeal is made should have a power to take the short cut of sending it back and never be under a duty to do so, because a mandatory obligation to order a redetermination produces some absurd results.
Let us take the decision of a three person tribunal: there is a split decision; the tribunal has been unable to agree. That particular appeal has raised an important point of law. The chairman believes that it is therefore suitable that that important point of law should go to the commissioner. If the chairman was in the majority, he can give leave to appeal. But if the chairman was the odd one out, then he obviously thinks that the decision of his colleagues was wrong. By definition he does so.
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Therefore, he is bound by Clause 13(2) to refer back the case for redetermination. That is a completely ridiculous result.
Under subsection (3) as it is to be amended, the case would be referred back if both the parties believe that it was wrongly decided. But let us assume a case in which the claimant believes that the tribunal was wrong in law because it gave him too little and the Secretary of State believes that the tribunal was wrong in law because it gave too much. Therefore, the case would simply be in limbo and it could not reach the commissioner even though it was entirely suitable to do so.
This is not by any means the most important amendment to come before your Lordships' House and there is no point of principle here. But there is what seems to me to be an obvious drafting misconception which is producing potentially some very odd results. Therefore, I ask the noble and learned Lord the Lord Advocate to accept the amendments or, alternatively, to refer back Clause 13 for redetermination. I beg to move.
Lord Higgins: My Lords, I am surrounded by lawyers, but there seems to be a degree of unanimity about this. I listened with great care to the noble Lord, Lord Goodhart, and, subject to being persuaded the other way by the Minister, the noble Lord, Lord Goodhart, seems to have a good point.
In an earlier discussion on a previous amendment, we were told that there was no difference between "may" and "shall" in relation to drafting. Now we all seem to be agreed that we should change "shall" to "may". I am not quite clear what is the relationship between those two issues.
Lord Hardie: My Lords, in supporting Amendment No. 20, I should like also to speak to Amendments Nos. 21 and 22. Our previous debates on this matter have resulted in our decision to improve the drafting of the clause through Amendments Nos. 20 and 21. In fact, when the Government amendment was tabled, it was in identical terms to that tabled by the noble Lord, Lord Goodhart. Hence, the name of my noble friend Lady Hollis has been added to that amendment. However, we can support Amendment No. 22 and it may be helpful if I explain the Government's thinking.
Where leave to appeal against a decision of a tribunal is sought, Clause 13(2) requires that, if the chairman or other person considering the application agrees that the tribunal erred in law, he will set aside the decision. The case may then be referred for re-hearing by a tribunal. The intention is to prevent cases being passed to the commissioners unnecessarily.
Where the chairman does not consider that the tribunal erred in law, he may grant leave to appeal to the commissioner. If the chairman is not available, regulations will provide for another panel member to consider the application.
Amendment No. 20 will give the chairman the power to remit a case to a tribunal or grant leave to appeal to the commissioners instead of, as currently drafted, impose a duty on them to remit the case to a tribunal

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where they considered there had been an error in law. That introduces an element of discretion and that is the difference between "may" and "shall" on this occasion.
During debate in Committee, the noble Lord, Lord Goodhart, raised the question of a chairman, outvoted at the tribunal, and he raised that point today. As drafted, the subsection could require him to consider the application for the decision to be set aside. That might place him in a difficult position.
I promised to give the matter further consideration and am now pleased to support Amendment No. 20. Government Amendment No. 21 is a simple tidying amendment.
I turn now to Amendment No. 22. Currently, even if all the parties to an appeal agree that a tribunal decision is wrong in law, the appeal must proceed to a commissioner. Of course I agree that there may be different reasons for thinking that something is wrong in law, as the noble Lord, Lord Goodhart, has indicated. But if everyone is agreed, for different reasons, that it is wrong in law, on any view, the decision is wrong. There are very few exceptions to the rule which requires that a decision wrong in law must proceed to a commissioner.
The effect of that is that commissioners have to deal with many appeals which a tribunal could resolve more easily and quickly. Many of those appeals relate simply to procedural errors; for example, where a tribunal has failed adequately to record facts or give adequate reasons for a decision. From my experience as a chairman of a tribunal, I am aware that many of the commissioners' decisions relate to the fact that a tribunal has failed to give adequate reasons for a decision. If parties were agreed that there were not adequate reasons, it seems inappropriate to burden the commissioners with that.
Clause 13(3) requires that where the principal parties to the appeal agree that the tribunal's decision was wrong in law, the tribunal chairman must set aside the decision and refer the case to a different appeal tribunal for determination. That will have the effect to which I referred that commissioners will not be burdened except in cases which concern substantive points of law. That is a more sensible use of the expertise of commissioners.
The effect of Amendment No. 22 would be that even in cases where the appellant and the Secretary of State agree that the decision was wrong in law, chairmen could refuse to refer the case for redetermination. Such discretion is not appropriate in those cases. If the principal parties to the case agree that the decision was wrong in law, there is little value in passing on the case to the commissioner. Appellants could be denied speedy resolution of their appeals and backlogs and long delays at the commissioner stage would continue.
I hope that my explanation has clarified for the noble Lord, Lord Goodhart, why the Government consider Clause 13(3) as drafted offers benefits both to claimants and to the commissioners and that he will, therefore,
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not move Amendment No. 22. As I indicated, I support Amendment No. 20 and will move Amendment No. 21 in due course.
7 p.m.
Lord Goodhart: My Lords, I greatly welcome the fact that the Government have accepted Amendment No. 20. As regards Amendment No. 22, I must say that I still believe that the Government are wrong. It is well known in the ordinary courts to have situations where both parties think that the judge has got part of the decision wrong and where the conclusion is one which satisfies neither party. I believe that that could well occur from time to time—although I do not suppose that it will be at all frequent—in the appeal tribunals here. However, I am quite happy to accept half a loaf rather than no bread. In the circumstances, it is not my intention to move Amendment No. 22.
On Question, amendment agreed to.
Lord Hardiemoved Amendment No. 21:
Page 8, leave out lines 13 to 16 and insert ("each of the principal parties to the case expresses the view that the decision was erroneous in point of law,").
On Question, amendment agreed to.
[Amendment No. 22 not moved.]
Clause 14 [Appeal from tribunal to Commissioner]:
Lord Hardiemoved Amendment No. 23:
Page 10, line 2, leave out ("The Lord Chancellor may by regulations') and insert ("Regulations may").
The noble and learned Lord said: My Lords, in speaking to this Amendment I shall, with the leave of the House, speak also to Amendments Nos. 24, 25, 64, 65 and 66: The amendments are designed to ensure that the Lord Chancellor retains the necessary regulation-making powers in respect of proceedings before commissioners. Section 189(2) of the Social Security Administration Act 1992 provides the Lord Chancellor with the power to make procedural regulations with respect to proceedings before commissioners. Section 189(10) goes on to state that the Lord Chancellor must consult the Lord Advocate before making regulations under the administration Act. Both subsections are repealed by the Bill.
Amendment Nos. 65 will re-enact the provisions to ensure that, as now, only the Lord Chancellor will be able to make regulations in respect of proceedings before commissioners. The regulations in respect of proceedings may relate to the determination of any matter by commissioners, or leave to appeal to, or from, the commissioners. Where the Lord Chancellor proposes to make such regulations he shall consult the Lord Advocate. In the light of that amendment, references to the Lord Chancellor's regulation-making powers in Clauses 14 and 15 are no longer necessary. As a result, Amendments Nos. 23, 24, 25 and 64 remove references to the Lord Chancellor in Clauses 14(11), 15(6) and consequently Clause 77(1).
Amendment No. 66 simply clarifies that the definition of a commissioner in Clause 77 has the same meaning as in Chapter 11 of Part I of the

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Bill, as a reference to "Commissioners" is made in Amendment No. 65. The amendments clarify the Lord Chancellor's regulation-making powers in respect of proceedings before commissioners. I trust that your Lordships will agree to them. I beg to move.
Baroness Anelay of St. Johns: My Lords, I simply rise to ask a question of the noble and learned Lord. Indeed, far be it from me to object to anything which I suppose strikes out reference to the Lord Chancellor in such matters. However, be that as it may, reference is made in Amendment No. 65 to consultation with the Lord Advocate. In Committee, I recall that we removed Clause 7 with regard to the Lord Advocate's powers. As noble Lords will recall, that was as a direct result of the procedure that will be required upon the introduction of devolution.
The question that I have for the noble and learned Lord is: does he foresee that there will be any further amendments put forward on Third Reading with regard to the Lord Advocate's powers, or absence of them? It appears that we are having a considerable number of government amendments placed before us in an attempt to improve the Bill—amendments which are of their own, shall we say, promulgation or gestation, rather than being prompted by either of the Opposition parties. Since the Bill started its passage through another place last July, there have been several months in which to consider the administrative side of such matters. I am somewhat concerned that there appears to be quite a large number of amendments that might, perhaps, have been thought through earlier. Therefore, can the noble and learned Lord tell the House whether there will be other consequential amendments on Third Reading with regard to devolution matters.
Lord Hardie: My Lords, this is not a matter which is consequential upon devolution. I certainly do not anticipate any further alteration in the powers of the Lord Advocate during the course of the proceedings on this Bill.
On Question, amendment agreed to.
Lord Hardie: moved Amendment No. 24:
Page 10, leave out lines 5 to 7.
On Question, amendment agreed to.
Clause 15 [Appeal from Commissioner on point of law]:
Lord Hardiemoved Amendment No. 25:
Page 11, line 5, leave out subsection (6).
On Question, amendment agreed to.
Schedule 5 [Regulations as to procedure: provision which may be made]:
Lord Hardiemoved Amendment No. 26:
Page 64, line 9, at end insert—
(" . Provision with respect to the procedure to be followed on appeals to and in other proceedings before appeal tribunals.").
On Question, amendment agreed to.
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Clause 17 [Finality of decisions]:
Lord Hardiemoved Amendment No. 27:
Page 12, line 27, leave out from ("to") to end of line 28 and insert ("such a decision, or on which such a decision is based, shall be conclusive for the purposes of—

(a) further such decisions;

(b) decisions made under the Child Support Act; and

(c) decisions made under the Vaccine Damage Payments Act.").

The noble and learned Lord said: My Lords, in moving Amendment No. 27 I shall, with the leave of the House, speak also to Amendments Nos. 74 and 77. In Committee we had the opportunity to debate the provisions in the Bill which make decisions final, and which allow for regulations to be made for findings of fact contributing to such decisions to be made conclusive for the purposes of further decisions. I explained that the purpose of these provisions was to allow, by regulations, for findings contributing to decisions to be made once only. Findings or determinations made in relation to one benefit or business area could be made to apply across the whole system, without the need for the matter to be re-investigated. I subsequently wrote to noble Lords giving a fuller explanation of the policy underlying the provisions with more details of how we expect them to work in practice. In fact, the letter emanated from the department in my name because I was absent at the time in question.
These technical amendments ensure that subsection (2) of each of the finality provisions for benefits, child support and vaccine damage payments, mesh together properly. They do not change the policy as set out in earlier debates and subsequent correspondence.
As currently drafted, the Bill may only allow regulations to provide for findings contributing to decisions on benefits, child support and vaccine damage payments to be conclusive for the purpose of further decisions in those particular benefits or business areas. Our intention is that we should be able to make findings contributing to any decision covered by the Bill conclusive for the purpose of any other decision covered by the Bill. The amendments achieve this by ensuring that each of the provisions enabling sub-issues to be conclusive cross-refers to the others.
It is our aim for the future development of the welfare system to find ways for information to be collected from claimants once only, and then used as appropriate across all areas of the department's business to reduce the burden on claimants and agencies alike. These amendments ensure that there is maximum flexibility for findings to be made conclusive in regulations across the boundaries of the Bill, the Child Support Act and the Vaccine Damage Payments Act. I commend them to the House. I beg to move.
Lord Renton: My Lords, first, may I say that I was grateful to receive a letter sent on behalf of the noble Baroness, Lady Hollis, dated 16th April on this question of finality of decisions. It is right that we should aim at finality of decisions, but there are circumstances—I should have thought—in which further facts arise

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which were not available at the time the decision was made. The decision might have been made differently if those facts had been available. It seems to me that there should be some provision for exception to finality when these further circumstances appear. I realise that it is not an easy matter. I realise that it is a matter that would not arise very often, but in order that justice should be done on those rare occasions I think we should have some provision which, so to speak, makes an exception to finality. I should be glad to go on talking a little while in order to enable the noble and learned Lord to receive the advice which no doubt he wishes to have, but perhaps by now he is in a position to reply.
Lord Hardie: My Lords, I am grateful to the noble Lord for giving me time to receive the necessary information. All new information will be taken into account and any decision can be reviewed at any time where there is a change of circumstance. In a situation where new facts apply the claimant ought to make that new information available to the department and the decision will be reviewed in the light of those new facts. Those new facts would then become the final facts for the purpose of benefits.
Lord Renton: My Lords, I thank the noble and learned Lord for that explanation, which is obviously a satisfactory one.
On Question, amendment agreed to.
Clause 18 [Matters arising as respects decisions]:
[Amendment No. 28 not moved.]
Clause 25 [Decisions involving issues that arise on appeal in other cases]:
7.15 p.m.
Baroness Anelay of St. Johnsmoved Amendment No. 29:
Page 15, line 21, at beginning insert ("Subject to subsection (2A) below,").
The noble Baroness said: My Lords, in moving Amendment No. 29 I wish to speak also to Amendments Nos. 30 and 31. Clause 25 deals with the power to stay a decision pending another decision in a lead or test case. These amendments would restrict that power. Amendment No. 30 seeks to delete the words "it possible". If those words were deleted, Clause 25(2) would state,
"In a case relating to a relevant benefit, the Secretary of State need not make the decision while the appeal is pending if he considers that the result of the appeal will be such that, if it were already determined, there would be no entitlement to benefit".
If the Secretary of State has only to consider it possible that the test case is relevant, this gives her the licence to withhold decisions in a wide range of cases. The proposed amendment does not require the Secretary of State to be certain that the test case is relevant, but it places a greater burden of certainty on her than is the case at present.
Where a decision is withheld under Clause 25, the claimant could be left without benefit for a considerable period of time while the test case is decided. In view of
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that, I believe that the exercise of these powers should be restricted to those cases where the Secretary of State is of a firm view that the test case is relevant.
Amendment No. 31 requires the Secretary of State to give the claimant an opportunity to make representations as to why a decision should not be withheld in his or her case. The reason for this is that there is no right of appeal against the exercise of the powers under Clause 25. Before 1996 the Secretary of State used the power to suspend benefit in similar circumstances. In theory, it should have been possible to get the Secretary of State to lift a suspension either on the grounds that the case was not a look-alike or because the claimant was experiencing hardship. In practice, however, I am told by the Child Poverty Action Group that the experience of advisers was that once a decision to suspend was made it was difficult to get it lifted. If the Secretary of State is required to consider representations before she makes a decision, I believe that she is more likely to consider them with an open mind. I beg to move.
Earl Russell: My Lords, this is a sensible amendment. It is a little milder than mine, which is to come next. It might perhaps therefore be rather more acceptable as a compromise. The trouble with the Secretary of State's power here is that she at least risks the appearance of acting as judge and party in her own cause, being herself a party to a number of the cases which are being disputed. It is a good idea that there should be some machinery which causes the Secretary of State to pause before making such a declaration. The noble Baroness may perhaps have found it. I shall listen to the Minister's response with a good deal of interest.
Lord Hardie: My Lords, this group of amendments seeks to alter the provisions in subsection (2) of Clause 25. Amendments Nos. 29 and 31 would make subsection (2) subject to a new subsection (2A). This would require the Secretary of State to provide a 14 day period for a claimant to make representations before exercising the provisions of subsection (2). Amendment No. 30 narrows the provision in subsection (2).
We have previously discussed the operation of Clause 25 and I shall not repeat all the arguments we rehearsed in Committee. But I should like to explain to the House why we have taken the position set out in the Bill.
In Clause 25 as drafted, if the Secretary of State considers it possible that the result of the appeal in a lead case will be such that if it were already determined there would be no entitlement to benefit in a look-alike case, she need not make a decision on that case until the appeal in the lead case has been decided. Amendment No. 30 seeks to remove the qualifying words "it possible". Presumably, the intention is to require a greater degree of certainty on the part of the Secretary of State that the case is indeed a "look-alike". But I am not convinced that removing these words will achieve this. Nor do I consider that it would be realistic to expect an absolute certainty that an appeal will be decided in a particular way.

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If there is an appeal pending in a lead case in which the Secretary of State is an interested party, she will have either made or joined in that appeal on the basis of legal advice as to the proper interpretation of the issue of law in question. She will not have acted on a whim. She therefore considers her interpretation—that there would be no entitlement to benefit—to be correct and that it should be upheld by a court. However, as a matter of common sense, this cannot be held to be an absolute certainty.
Amendments Nos. 29 and 31 would prevent the Secretary of State from exercising her power to delay making a decision until the person concerned has had 14 days in which to make written representations about why the power should not be exercised. But as the Bill stands, this would not have any material effect. If the Secretary of State were required to make a decision immediately in a look-alike case, she would make an award and then suspend payment of benefit, until the lead case was resolved. Following determination of the appeal, she might, in some cases, then be required to revise this decision. The amendment would introduce an additional administrative step into all cases which are stayed in this way, even where there is no disagreement that an individual case is a "look-alike". Any claimant who considers his or her case is not a genuine "look-alike" will be advised to make contact with the relevant office of the Benefits Agency so that the case can be reconsidered.
I hope that with this explanation the noble Baroness, Lady Anelay, will feel able to withdraw these amendments.
Baroness Anelay of St. Johns: My Lords, I am grateful to the noble and learned Lord the Lord Advocate for that explanation. I shall read carefully his words in Hansard. His closing remarks did much to reassure me with regard to Amendment No. 31 to which I have spoken. As I have remarked on previous occasions, I have no intention of clogging up the appeals process unnecessarily where that is of no material advantage to the appellant. I shall look with care at his words with regard to Amendment No. 29, and in particular Amendment No. 30. However, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 30 and 31 not moved.]
Clause 26 [Appeals involving issues that arise on appeal in other cases]:
The Deputy Speaker (Lord Lyell): My Lords, before I call Amendment No. 32 I must inform the House that if Amendment No. 32 is accepted I shall not be able to call Amendments Nos. 33 and 34.
Earl Russell moved Amendment No. 32:
Page 16, line 13, leave out subsections (2) and (3).
The noble Earl said: My Lords, this is a more far-reaching amendment. It deals with provisions in subsections (2) and (3) of Clause 26 which allow the Secretary of State, if she considers it possible that the result of an appeal would affect the determination of another, to require the tribunal or commissioner not to
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determine the appeal. That is curious language. The Secretary of State is a member of the Executive and must speak in that capacity. So we have the courts required by the Executive to take a particular type of action. That is not the language that I am used to finding in Acts of Parliament. The independence of the judiciary is a vital principle. It should be preserved. It should have at least a show of being preserved. That is not available here.
These provisions have caused some dismay to Judge Bassingthwaighte, the former president of the Independent Tribunal Service. He draws attention to a ruling by deputy commissioner Edward Jacobs who says:
"The constitutional difficulty is that it is the Secretary of State who makes the decision that a case is to be so treated"—
that is treated as a test case.
"The Secretary of State is a party [or at least would be a party if an appeal were allowed to be brought] and will be the one under the adjudication procedures to be introduced under the Bill who made the decision on the claimant's benefit which the claimant might now wish to challenge. This does seem very like a case of 'nemo judex in causa sua'. [No-one should be a judge in his own cause]".
We have here a power—shall I say startlingly expressed?—to do something about which there is at least room for some doubt as to the constitutional propriety. I am not at all happy about seeing that sort of provision in an Act of Parliament.
I am not happy either about how the provision might fare under Article 6, the fair trial provision, of the European Convention on Human Rights. It might appear, to put it no higher, to be casting doubt on the independence of the judicial tribunal which is making the ruling. As the noble and learned Lord will remember, that clause provides for a fair trial by an independent judicial authority. It will be a little difficult to assert that a tribunal to which the Secretary of State may so unambiguously give directions is independent. I hope that the Government can find some other way of going about this. It is not something with which we can be content. I beg to move.
Baroness Anelay of St. Johns: My Lords, Amendments Nos. 33 and 34 are grouped with the amendment. With the leave of the House I shall speak to them. On this occasion, I cannot be as extreme as the noble Earl, Lord Russell, and accept the amendment he has moved. But I understand the great misgivings he expressed about the clause.
Amendments Nos. 33 and 34 follow closely those which I moved with regard to Clause 25. As the noble Earl explained, Clause 26 deals with appeals which may be affected by other test cases. I believe that the arguments against my amendments here are not exactly the same as the arguments against the amendments I put forward to Clause 25. I noted that, with some mental agility, the Minister in another place tried to argue that the arguments were the same.
Amendment No. 33 deletes the words "it possible" from subsection (2), thus requiring a greater degree of certainty before the relevant powers can be used. Amendment No. 34 requires the Secretary of State to give notice to a panel member of her intention to

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exercise powers under Clause 26. That panel member is then given an opportunity to consider whether this is a case in which the exercise of those powers is appropriate. In other words, is the case under appeal in fact a look-alike case such that a decision in a lead case would affect its determination? If the panel member considers that there are grounds for believing that the lead case is not relevant to the decision on the appeal in question, he or she gives the Secretary of State notice to that effect. The Secretary of State is thus prevented from exercising her powers under Clause 26. The superior status of the appeal tribunal is thereby maintained.
If the tribunal goes on to make a decision with which the Secretary of State is unhappy, she can then appeal that decision and use her power to suspend payment of benefit under Clause 21(2)(c).
I cannot support the amendment which has been moved. I am grateful for the opportunity to speak to my amendments.
Lord Hardie: My Lords, I speak to Amendments Nos. 32 to 34.
Amendment No. 32 proposes to remove the Secretary of State's ability to direct how a tribunal or commissioner should handle a look-alike appeal. Amendments Nos. 33 and 34 would prevent the Secretary of State from exercising her power to direct the tribunal or commissioners when she had not secured the agreement of a panel member.
We had a detailed debate about Clause 26 at Committee stage of the Bill and I recognise the concerns that noble Lords voiced then and have repeated today. I should like to try to meet those concerns.
Clause 26 makes arrangements for look-alike cases which have gone to appeal. It is intended to prevent decisions being made on appeals which rest on an issue of law that is being challenged in the courts on another case. Its purpose is to reduce the burden on the appeal system which has become clogged up with look-alike cases which could be dealt with more efficiently by the department. It aims to enable tribunals and commissioners to focus their attention on other appeals and deal with them more speedily.
Under the current arrangements, there is no formal legislative provision to delay or stay appeals where the appeal concerns an issue of law which is being challenged in another case. In practice, tribunals and commissioners have often delayed listing cases of this sort. However, there is great variation in practice between different tribunals. Thousands of cases which turn on the same point of law as a lead case may be decided before the lead case is resolved. If, following the decision in the lead case, it emerges that the tribunals have made erroneous decisions in these look-alike cases, each individual case has to be appealed to the commissioners, in order to have that erroneous decision overturned. This means that the commissioners have to hear a series of straightforward appeals where the point at issue is identical—namely the point of law decided in the lead case. It also means that overpayments of benefit may have been made which are impossible to recover.
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Under the new arrangements, the Secretary of State will identify which cases are look-alikes. Subsections (2) and (3) of Clause 26 allow her to require an appeal tribunal or commissioner to return these cases to her if an appeal rests entirely on the same issue of law as in the lead case. Apellants will be advised that their appeals will not proceed and that if the lead case is decided in their favour the Secretary of State will revise or supersede the decision under appeal in accordance with the decision in the lead case. Our position is that this is more sensible than requiring commissioners to handle blocks of straightforward look-alike appeals where there is no substantive point of law to consider. Each appeal is simply a matter of applying the law as it has been interpreted in the lead case.
This new provision will be better for claimants than the current arrangements and will not be a burden on the valuable resources of tribunals and commissioners. As soon as the lead case is settled, claimants can have any increased benefit due paid immediately, rather than wait for their case to be heard by a tribunal or the commissioner. Decisions on whether to stay appeals will be taken by the Secretary of State based on guidance from her legal advisers.
Perhaps I may deal with the constitutional point—if I may put it that way—raised by the noble Earl, Lord Russell. Decisions will not be taken on a whim; they are subject to the checks and balances which are well established in administrative law. In view of the concerns expressed, we intend to consult with the president of the Independent Tribunal Service and the Chief Social Security Commissioner on the preparation of the guidance on the identification of look-alike cases.
Anyone who believes that their circumstances are materially different to the lead case should contact the appropriate office of the Benefits Agency without delay. I can assure your Lordships that any representation made by the claimant, or any evidence which is provided, will receive urgent, careful and sympathetic consideration. The claimant will receive a full explanation of the decision as to whether his or her case is a "look-alike" or not.
If a new interpretation is put on a law that has been in operation for some time, most claimants affected by the new interpretation will have arrears paid back to one common date. That is fair and reasonable. Full arrears will be paid to the lead case. People whose claim was withheld by the Secretary of State, and those who had their appeal stayed or determined unfavourably due to the lead case will also be awarded any increase in their benefit from the date of their original application.
To deal with the point relating to the human rights issue, I do not accept that this is an interference with a fair trial by an independent body. The point is that there will already be an issue which has been determined by a tribunal or which is awaiting determination. All that is happening is that the decision in this case is being delayed pending the decision in the lead case.
7.30 p.m.
Earl Russell: My Lords, perhaps I may ask for clarification. What if the tribunal thinks that it is not a look-alike case and the Secretary of State thinks it is?
Lord Hardie: My Lords, I thought I had dealt with that point earlier by indicating that there will be guidance set out indicating how one identifies a look-alike case. That guidance will be formulated in consultation with the president of the Independent Tribunal Service and with the Chief Social Security Commissioner.
Clearly the Secretary of State, if she is involved in an appeal, must obviously think that the issue is worth pursuing. If, in terms of the guidance, the case can be determined by the same legal point as in the lead case, then it is appropriate that the Secretary of State should determine that this is indeed a look-alike case.
If at the end of the day the Secretary of State, having called back the decision and having decided in accordance with the determination of the tribunal—this would arise only where the determination was against the claimant; clearly, if it was in his or her favour, the Secretary of State would find in favour of the claimant—that the decision of the look-alike case was against the claimant, then the Secretary of State would reach a similar decision. At that point the claimant would have the right of appeal to the tribunal against that decision. So we are not cutting out a right of appeal. The claimant can still appeal to the tribunal against the decision of the Secretary of State if the claimant considers that the Secretary of State is wrong in determining that this is a look-alike case.
Amendments Nos. 33 and 34 would prevent the Secretary of State from requiring a tribunal or commissioner to refer the case to her or to deal with it as though the lead case had been decided unfavourably to the claimant without the agreement of a panel member. That could result in inconsistent treatment of look-alike cases, as panel members may have different interpretations as to whether or not a case is a look-alike..
As I have indicated, we think there is a role for the judiciary in the identification of look-alike cases and in the preparation of guidance. That is where the consultation with the president of the Independent Tribunal Service and the chief commissioner would come into play.
There is a balance to be struck between judicial consideration of cases and administrative efficiency, and, where many cases turn on the same straightforward issue of law as a result of a decision in a lead case, it is our view that the arguments for continuing to allow judicial consideration of each individual case are not sufficiently strong. As it stands, the Bill will prevent cases where there is a substantive issue of law to consider from waiting in line to be decided by commissioners while a run of "look-alike" appeals are determined.
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It is our submission that these provisions are sensible, and in the light of my explanation I invite the noble Earl, Lord Russell, to withdraw his amendment, and, ultimately, the noble Baroness, Lady Anelay, to withdraw hers.
Earl Russell: My Lords, I thank the noble and learned Lord for his small crumb of comfort in relation to the guidance. But it was a very small crumb indeed. If the Secretary of State is not a competent authority to identify a look-alike case, then arguably the claimant is not either. After all, we have been talking all day about the difficulty of ordinary claimants in understanding precisely what are the legal issues behind their cases. That provision may lead to a good many representations. However, I am not at all sure that they will be directed to the cases where they are most needed.
I think that the noble and learned Lord has not entirely taken on board the case that I am making; namely, that the identification of a look-alike case is actually a judicial power. The Secretary of State is no doubt a person of very great ability and very wide knowledge. But she is not judicially qualified. She does not have the authority to take judicial decisions. I think the noble and learned Lord came very near to shooting himself in the foot at one point when he referred to courts in the past having refrained from listing cases of this type. If the courts take such a decision, they are at least a competent authority to take it. Whether it is a good thing from a social security point of view and from the point of view of the interest of the claimant is quite another question and one that is not before us at this moment. The courts at least have the authority and the knowledge and legal understanding to do it.
Part of the trouble with talking about a look-alike case is that whether matters look alike depends on exactly where you are looking from; it is not an absolute question, it is a relative one. So the Secretary of State will probably be considering only one legal principle, which happens to be the one that is the present object of departmental policy. That is fair enough. But cases may be look-alike or not look-alike from completely different perspectives, according to some completely alien legal issue which, although it has not occurred to the Secretary of State because it is not what she happens to be thinking about, would occur fairly quickly to somebody who is properly and professionally legally qualified.
Naturally, I do not intend to divide the House at this time of night. However, in begging leave to withdraw my amendment I am a long way from being satisfied that these issues have yet been properly addressed. I hope that thought about them may continue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 33 and 34 not moved.]
Clause 27 [Restrictions on entitlement to benefit in certain cases of error]:
Earl Russellmoved Amendment No. 35:
Leave out Clause 27.
The noble Earl said: My Lords, this amendment seeks to delete Clause 27. That deals with what has come to be known as the anti-test case rule. This deals with cases where there is a dispute about how far back an entitlement to benefit may go. Where there is a case that finds an entitlement in a particular place, the position under the anti-test case rule is that entitlement goes back only to the point of the judgment in the case. In fact, the judgment is being treated as if it were legislation.
In Clause 27 the anti-test case rule is extended from appeals and reviews to the High Court, to the House of Lords and even, to my great surprise, to the European Court of Justice. Here again I believe there is real room for doubt about Parliament's competence. According to my understanding, it is not within the power of Parliament to bind the powers of the European Court of Justice. Those powers are derived from the European treaties, which we in this House cannot unilaterally alter. At the very least, I hope to hear that the European Court of Justice will be taken out of this clause.
The anti-test case rule has been a matter of considerable litigation in the past and of some dispute in this Chamber. The question that arises is: what is the distinction between judgment and legislation and what is the nature of entitlement? The department's position, if I understand it correctly—and I should be grateful to be corrected if I do not—is that the entitlement is to be treated as if it were created by the judgment. But the judgment does not change the law; the judgment interprets the law as it already was from the making of the statute or the regulation which is before the court.
I believe that the entitlement to the benefit is much more like a peerage in abeyance than like something conferred for the first time by the judgment. It is the practice of this House that a peerage in abeyance is legally a peerage, whether the House's Committee for Privileges recognises it or not, until—in some cases maybe five centuries later—the House recognises that there is a valid line of succession and the person takes his or her seat. Since I accept the assumption of the noble and learned Lord, Lord Scarman, that all social security law rests on entitlement, with a few exceptions which have been made by recent legislation, I believe that that is the right way to treat the matter.
In the case of Bate v. Chief Adjudication Officer, which went to the Court of Appeal, Lord Justice Millett, commenting on the provision in the 1990 Act that the court should treat past judgments as if they had not been made, said that this provision attempted not so much to change the law as to rewrite history. He said in that case that the Secretary of State's interpretation of Parliament's intention was so unreasonable that Parliament could not possibly have intended it. The Appellate Committee of this House saw that case otherwise. There is here a real issue to be addressed.
When there is so much doubt about whether this is the right way to set about the matter, whether the function of a judgment is correctly interpreted and
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whether the nature of entitlement is correctly interpreted and a much more fundamental doubt about how far this Parliament can bind the European Court of Justice, I believe that there is something here that needs a good deal more thought and more round-table discussion, preferably in private, than we have yet had. I beg to move.
Lord Hardie: My Lords, we had a long and interesting debate on this clause during the Bill's Committee stage, at which time the Government brought forward a number of amendments to address concerns which had been expressed by noble Lords. Indeed the noble Earl, Lord Russell, and the noble Baroness, Lady Anelay, acknowledged the significant movement on the part of the Government in meeting their concerns.
I have listened carefully to the continuing concerns of the noble Earl, Lord Russell, about some of the provisions of the clause and will try to provide him with some reassurance. However, it is clear that there may be some fundamental disagreement about the Government's policy in this area and I therefore cannot promise to meet all his objections.
The noble Earl, Lord Russell, suggested a round-table discussion. I and my fellow Ministers are more than happy to discuss concerns with noble Lords at any time. If the noble Earl wishes to have a further discussion between now and Third Reading, about this or any other matter. I shall be pleased to accommodate him.
It might be helpful if I first explain the intention behind the clause. The clause deals with restrictions on entitlement to benefit where a decision by commissioners or a court overturns the view of the law that was previously applied by the Secretary of State. It replaces and clarifies existing provisions currently in Sections 68 and 69 of the Social Security Administration Act 1992. The clause applies where a commissioner or a court makes a decision in an individual case which reinterprets the law in a particular area. Where the Secretary of State makes a decision after the lead case has been decided following a claim for benefit or to revise or supersede a decision, the restrictions provided for in the clause will apply. Claimants to whom the restrictions apply will have the increase in entitlement as established in the lead case paid from a common date, set in regulations.
Occasionally, a long-standing interpretation of the law is overturned by the courts. The restrictions on arrears are intended to protect the public purse. Without a power to restrict arrears, the new interpretation of the law could mean that increased benefit would be payable to large numbers of people from the date of their original benefit decision. The Government do not believe that it is an effective use of limited resources to make large payments of arrears of benefit for past periods following a reinterpretation of the law. The Government want to target benefits better and not become involved in a system of poorly targeted and arbitrary payments. What is more, trawling through thousands of cases to find the ones affected would cost time and money—money which would be better spent on improving services for all claimants. We want to make sure that the department's expenditure is focused

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where need is greatest. This clause means that the department can exercise proper stewardship of the public purse by making sure that changes in interpretation of the law do not consequently result in a large amount of unforeseen pubic expenditure.
The noble Earl, Lord Russell, referred to the question of binding the European Court of Justice. The provisions of this clause, and those currently included in Section 68 of the Social Security Administration Act, do not seek to bind the European Court of Justice. The clause restricts arrears in certain cases where a new interpretation is placed on the law by a commissioner or a court. Subsection (6) makes it clear that decisions of the European Court of Justice are determinations of a "court". It is not a new provision. Restrictions on arrears in look-alike cases will apply equally following decisions made on a lead case by the European Court of Justice and decisions made by other courts. The provision does not propose to bind the European Court of Justice. The restrictions of the clause do not apply to the lead case which is decided by the European Court of Justice. In his judgment on the Bate case, the noble and learned Lord, Lord Slynn, was not persuaded that the result of the application of the anti-test case rule was incompatible with European Community Law.
An analogy was made with peerages in abeyance. I regret that I am unable to advise noble Lords of the precise reference, but it is my recollection that there was a report of the Committee for Privileges about peerages in abeyance. The noble Earl referred to a period of 500 years. My recollection is that the committee indicated that after a hundred years peerages in abeyance ought not to be resurrected. If I am wrong, I shall write to the noble Earl about that.
I believe that we are all agreed that this is a very complex area of social security law. I have tried to explain these provisions as clearly as I can. I have also pointed out the Government's wish to meet as many of your Lordships' concerns as we possibly can and I have indicated our willingness to have further discussions with any noble Lords who wish to have such discussions. I have also indicated that we have moved a considerable way forward on this matter. In the light of my explanation, I commend the clause to the House and hope that the noble Earl will feel able to withdraw his amendment.
Earl Russell: My Lords, I am grateful to the noble and learned Lord for what he said about the European Court of Justice. That was extremely helpful and clarified a great deal. I am grateful to him also for his offer of a meeting. However, what is really needed here is better communication between the Executive and the judiciary.
I will be extremely glad of a meeting if there is a prospect of any change in the clause. However, I doubt that there will be between now and Third Reading. If we can arrange a much wider round table discussion to help to improve communications between Ministers and judges roughly along the lines recently suggested by the noble and learned Lord, Lord Ackner, that would be very helpful. Were such a thing possible, I would be extremely proud to participate in it.
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The noble and learned Lord referred to the law being "re-interpreted". That is absolutely correct. But it is not the same as the law being changed. If the law is re-interpreted, it means that previously it was incorrectly perceived. Obviously, there must be protection for what happens when cases are re-opened after a long time. But I ask again the question I asked before: which is more in need of protection, the claimant to a means-tested benefit or the public purse? I admit that a balance must be struck, but it is not self-evident that as a general matter of principle the public purse is always entitled to the greater protection.
In relation to the earlier point of peerages in abeyance, I look forward to the noble and learned Lord's letter. My recollection is that a peerage which had been in abeyance since 1497 was revived by the Committee of Privileges in this House in the recent past. That is, to be precise, 501 years. That was the reason for the choice of 500 years; it was not simply a figure of speech.
It is possible, when we read the noble and learned Lord's report, that it turns out, as prudent rulings do, to contain the word, "normally". That is merely a hypothesis, but it seems to me to meet all the known evidence.
The disagreement between us about the nature of "entitlement" remains wide and deep. I thank the noble and learned Lord for the care he has taken in attempting to answer the questions. He attempted to take them seriously and has done his level best to narrow the gap between us as much as possible. There remains an underlying difference. It is not the kind of issue which, if we can possibly avoid it, we should resolve in the Division Lobbies. As with so many other issues, there is a culture clash and those are best resolved by interpretation. With that principle in mind, I withdraw my opposition to this clause standing part of the Bill, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 50 [Payments treated as remuneration and earnings]:
Lord Haskelmoved Amendment No. 36:
Page 35, line 19, at end insert—
("(1A) After subsection (5) of that section there shall be inserted the following subsection—
"(6) For the purposes of section 3 above regulations may make provision for treating as remuneration derived from an earner's employment any amount on which the earner is, by virtue of any provision of sections 140A to 140H of the 1988 Act, chargeable to income tax under Schedule E in respect of an acquisition of shares or an interest in shares." ").
The noble Lord said: My Lords, in moving Amendment No. 36 I shall speak also to Amendments Nos. 37, 38, 110 and 111.
At Committee stage in this House, we said that we intended to introduce amendments at Report to change the national insurance treatment of employee-acquired shares which are subject to risk of forfeiture or conversion. These measures are needed to keep national insurance in step with income tax changes announced in another place by my right honourable friend the Chancellor of the Exchequer in his Budget. These

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changes affect a small number of payments made in the form of shares outside Inland Revenue approved employee share schemes.
When we debated this matter during Report on 2nd April, the noble Lord, Lord Higgins, raised the matter of Commons' privilege. He also raised it earlier today. My noble friend Lady Hollis, when responding to Amendment No. 1, replied to that point and it is not therefore necessary for me to repeat the arguments. Perhaps I can move straight to the amendments.
The amendments deal with the national insurance treatment of non-approved schemes involving restricted shares and convertible shares which are not able to be used in Inland Revenue approved schemes. I will not detain the House with a detailed account of those schemes, though I shall be happy to say more if noble Lords find that helpful.
The Finance Bill inserts new Sections 140A to 140H into the Income and Corporation Taxes Act 1988. Those sections change the income tax treatment of shares carrying a risk of forfeiture and of convertible shares. The inserts will help businesses by giving them legislative certainty about the tax position. Similar changes are needed so that business will also have legislative certainty for national insurance purposes. The amendments do precisely that.
The new amendments to mirror those Budget income tax changes are placed in Clause 50 because they also require an amendment to Section 4 of the Social Security Contributions and Benefits Act 1992 which treats certain kinds of payments as earnings for national insurance. Amendment No. 36 provides for regulations to match the income tax changes. There will be a direct read across to the relevant tax provisions when they are introduced. Amendment No. 37 is a minor change which simply provides greater clarity by inserting the full title of the Income and Corporation Taxes Act 1988. Amendment No. 38 provides that the regulations made under Clause 50 shall come into effect after the passing of the Finance Act 1998, but will have effect in relation to this type of share acquired on or after 6th April.
We intend to use the regulations to provide for liability in respect of shares acquired on or after the date that the amendment was introduced; that is, 9th April 1998. This is important because it will enable business to apply the same regime for tax and national insurance as early as possible. Amendments Nos. 110 and 111 amend Clause 84 so that this measure comes into force following Royal Assent.
We believe that these arrangements provide the most practical way to mirror in national insurance legislation the income tax changes in the Finance Bill. They will ensure that business is not faced with the burden of administering two different sets of rules over an extended period. I beg to move.
Lord Higgins: My Lords, as the noble Lord pointed out, in Committee and again earlier today we raised the question of the relationship between the two Houses. I do not wish to pursue that point in any detail now; it arises more appropriately on some of the later amendments.
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These amendments relate to a fairly narrow and technical point, as I understand it. It is essentially an anti-avoidance measure on the part of the Treasury and when that is debated in another place it will no doubt be duly considered. As the noble Lord rightly pointed out, the measure brings into line with the tax changes the changes in relation to social security provisions.
What gives me more concern is that the distinction between a national insurance contribution and a tax has now disappeared effectively to vanishing point. The contributions are now to be transferred to the Inland Revenue, so they come under its province rather than otherwise. In addition, for the first time the Government are fundamentally undermining the contribution principle which has been the main reason for maintaining the distinction between taxation, pure and simple, and national insurance contributions in the past.
People will now be allowed to have the benefit of social security payments without, in some cases, having contributed. The contributory principle is therefore being undermined. This is a fundamental matter. There will be no distinction at all between tax and national insurance contributions. I am not clear why the Government are timing it in this way. The timing is somewhat strange. Indeed, the Government's own brief accepts that it is unusual. Effectively, the change is backdated on the one hand and delayed in implementation on the other.
The amendments suggest that the provision will come into operation only when the Finance Bill receives Royal Assent. It is highly unlikely that the Finance Bill will not receive Royal Assent. I presume that what is intended is that the provision will come into operation only if this set of tax clauses come into operation. Otherwise we will be landed with the situation whereby the social security benefits side is implemented but the tax side is not. That would be an absurdity.
Having said that, what the amendments together with the proposals in the Finance Bill do is to remove the income tax charge when the shares are given to someone and impose it when, for want of a better expression, they are cashed in. As has rightly been pointed out, that means that a possible way of avoiding taxation is prevented. I make no complaint about that. However, it brings out another point. This is said to be a national insurance contribution, but the charges that will be imposed as a result of the amendments impose a contribution on people for which they will get absolutely nothing. The fact that they are paying the contribution will in no way entitle them to any increased benefits. That brings through once again my fundamental point that national insurance contributions are now pure and simply a tax.
I do not want to delay the House, but I wish to raise one point which was made by the noble Baroness in her opening remarks this afternoon. She said that it would not be possible to make any of these changes with regard to national insurance contributions in the Finance Bill. If it is now the case, as I believe it is, that national insurance contributions are a tax, I am not clear what the basis is for the noble Baroness's assertion that this could not be done in the Finance Bill. All the horrible

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problems of timing which the amendments now present in terms of the implementation being delayed but when they are finally implemented being backdated, which is a strange situation to envisage, would be overcome if the whole matter could be tied up in the Finance Bill. As I understand the position, the Bill is not to receive a Second Reading until tomorrow, so there is time for the matter to be sorted out. Having said that, I understand why the Government are proceeding as they are with the basic decision on taxation. In due course it will no doubt be considered in another place.
8 p.m.
Lord Goodhart: My Lords, I agree with the noble Lord, Lord Higgins, that the distinction between tax and national insurance contributions has now for all practical purposes been eliminated. I may have more to say about that when the Report stage resumes on Thursday, but I do not propose to deal with it now.
These amendments are directed to stopping an extremely artificial tax avoidance scheme which will enable companies to provide benefits to a small number of "fat cat" employees without having to pay employers' national insurance contributions. It will not affect employees' national insurance contributions because anyone who benefits from the scheme will be earning more than the upper earnings limit anyway. The companies which make use of this scheme will, as a result, be throwing a greater burden on other contributors and other taxpayers. I therefore give completely wholehearted support to this group of amendments.
Lord Haskel: My Lords, perhaps I may point out to the noble Lords, Lord Higgins and Lord Goodhart, that national insurance and income tax are entirely separate. National insurance is what it says. One gets benefits from national insurance by being insured. Income tax is what it says. It is a tax. If the noble Lord, Lord Higgins, would recognise that there is a difference between the two, he would not have such difficulty in understanding why these regulations are having to be handled in the way that they are.
Lord Higgins: My Lords, I am most grateful to the noble Lord for giving way. The fact is that the additional contributions which will be collected as a result of the amendments in no way give any additional benefits.
Lord Haskel: My Lords, I take the noble Lord's point. We are dealing with it in this way because it is a national insurance matter and we have to deal with it in national insurance legislation. All employees pay national insurance charges on earnings. After a certain level the effect on benefits is non-existent. I think I have dealt with the points that the noble Lord raised. I beg to move.
On Question, amendment agreed to.
Lord Haskelmoved Amendments Nos. 37 and 38:
Page 35, line 21, leave out ("1988 Act") and insert ("Income and Corporation Taxes Act 1988").
Page 35, line 22, at end insert—
("(3) Regulations under subsection (6) of section 4 of the Contributions and Benefits Act (as inserted by subsection (1A) above)—

(a) shall not he made before the passing of the Finance Act 1998: but

(b) may make provision having effect in relation to acquisitions on or after 6th April 1998.").

On Question, amendments agreed to.
Lord Haskel: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Sport: Listed Events
8.7 p.m.
Lord Lofthouse of Pontefractrose to ask Her Majesty's Government what is their response to the report and recommendations of the Advisory Group on Listed Events.
The noble Lord said: My Lords, I am deeply grateful and indeed privileged to have the opportunity this evening to speak in your Lordships' House and to draw the Minister's attention to the report and recommendations of the Advisory Group on Listed Events, which is chaired by my noble friend Lord Gordon of Strathblane. Any comments I make are no criticism of my noble friend or any members of the advisory group. I am satisfied that they have looked at the overall situation and have come out with recommendations which on the evidence available they believe are the correct ones.
Before I present my case I just want to say to the House that over the weekend a note was sent to my home telling me that my late friend Lord Howell was to support me and speak in the debate tonight. I can do no more than associate myself with the many wonderful tributes which we have seen in the national press this day. He was a personal friend of mine for many years and he was a friend to many other people in this Chamber. We all mourn his loss and we shall miss him greatly.
I shall attempt to speak on two issues in relation to the recommendations of the report made by the advisory group. The first is the principle of listing events. The argument against listing events is that sporting bodies are quite capable of managing their own affairs and have the sense to be able to dispose of their television rights in a manner which is lucrative and which affords them widespread coverage. That is understandable to a point.
However, these are times when the numbers of children participating in sport are falling and when youngsters need more than ever to be exposed to the influence of sport for the good of their own health and that of society. The prime marketing tool for any sport is for it to be freely available on television at the press

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of a button. Children in particular are especially impressionable and acknowledge as their heroes those whom they see on television on a regular basis.
There is a fear that, if sport disappears from free to air television, then children will not be captivated by sport and will not be drawn into wanting to emulate their sporting heroes. I certainly share that view. In that respect, the benefits of sporting activities for youngsters, both in terms of their healthy well-being and of the social co-operative virtues which team sports especially convey, are well established. For children to opt out of sport would be for them to miss out on those benefits and so become more and more unhealthy and undisciplined. An extra burden would then be placed on the state, which must pick up the pieces of this decline.
The comparative viewing figures achieved by sport on terrestrial and satellite television speak volumes for what is at stake. As an example, in Rugby League the Silk Cut Challenge Cup-ties broadcast live by the BBC regularly attract an audience of between 4 million and 5 million. In contrast, the Super League matches on Sky Sports average between 150,000 and 200,000. Similarly in Rugby Union, while as many as 7 million watch England internationals on BBC, the matches shown on satellite television have viewing figures similar to those I referred to on the Rugby League scene.
The marketing effect, then, of terrestrial television making sport freely available is colossal. Its potential impact on youth and the health of the nation is huge. Can we really trust sport to realise the unseen benefits in that regard or are the administrators blinded by the huge sums of cash which are offered by satellite television in exchange for their rights? Do we require instead legislation to save sporting governing bodies from themselves to guarantee that the next generation of British youngsters sees sport for itself and is inspired by its example?
The second point I would like to present to the House is the national spread of Rugby League, which means that the Challenge Cup Final is indeed an event of national importance—contrary to the findings of the Advisory Group on Listed Events. I form the opposite view to the review. I do not believe that the group has done enough in-depth research into the case for Rugby League. I must emphasise this evening that I am putting the case for only one match a year—the Rugby League Cup Final.
There is also the international spread of Rugby League and the fact that 16 nations now play the game, with 10 recognised as senior test-playing countries, which is more than for cricket. Rugby League in this country has 26 full-time development officers working to spread the game at junior and youth levels in places such as the North East (Gateshead), South Wales (Cardiff), Scotland (Glasgow) and Ireland (Dublin). Each of these target development areas has a thriving amateur league at junior, youth and open-age levels, which gives the lie to the theory that the game is confined to Yorkshire, Lancashire and Cumbria.
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Through the Rugby Football League and the British Amateur Rugby League Association, known as BARLA, there has been created a league called the Rugby League Conference, which draws together 16 leading amateur clubs in the Midlands and the South in a competitive environment—which will in time take them to semi-professional status—including towns such as Birmingham, Oxford, Worcester, Bedford, Ipswich, Cheltenham, Chester and Leicester. That is the spread of Rugby League football in our country today.
Rugby League is the fastest growing sport in universities and institutes of higher education, with 68 student teams now playing the game in all parts of England, Scotland, Wales and Ireland, and the first national development officer for the women's game, Jackie Sheldon, was appointed only last year.
BARLA itself in a quarter of a century has increased the number of teams playing Rugby League from 200 to 1,400 teams. That is success. We wish that success to continue, but we do not believe it will if the youngsters who today are keen on playing Rugby League are denied seeing the jewel in the crown, the Rugby League Cup Final. That will be helpful for their advancement.
I say to my noble friend Lord Gordon that each of the factors I have described bears witness to the wrong done by the Advisory Group on Listed Events in denying Rugby League a place in the national consciousness. It does and it will continue to grow apace in future years as the professional and amateur arms work in unity together.
The Rugby League Challenge Cup is an English institution, despite its perceived parochial northern base. As such, the annual final at Wembley goes out to a worldwide audience of millions and is part of the high profile British sporting heritage and should therefore be protected for the benefit of the people.
The foundation of the sport is the amateur game under the jurisdiction of the British Amateur Rugby League Association. I have already described its progress. It is estimated that there are nearly 100,000 people playing the amateur game throughout this country. One can imagine the contribution of recreational hours that that gives to many young people who enjoy playing this wonderful game. Many of the players taking part are unemployed due to the industrial decline in the areas where the game has been traditional. Terrestrial TV is the perfect vehicle for promoting this "all-action sport" to the nation. The Rugby League Challenge Cup is probably the most famous rugby competition in the world. The final is staged in the country's national stadium, Wembley, and is watched by a worldwide audience.
I bring my contribution to a close to enable others to have more time to make theirs, but first I must say that, apart from the issue of encouraging youth interest, a major problem has developed especially in the strongholds of Rugby League but also, I believe, throughout the country. In my own area, which I was privileged to represent in another place for many years, most of the Rugby League teams received financial help from the mining industry. Many former miners who are

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now elderly are disabled as a result of chest diseases or have other disabilities. Many are lifelong Rugby League supporters who love the game. They cannot get out of their houses because of their disabilities, but they are being denied the right to see the game that they have supported and loved all their lives. Why? Because they cannot afford commercial television. That cannot be right. Of course, I acknowledge that finance comes into most things and that, when somebody like Murdoch comes along and offers millions of pounds, the clubs are under a great temptation to accept. In many ways, I think that that is ruining a great game, though I can understand the temptation. However, people are much more important than finance and generations of people, and many old people, are now being denied the right to see sport simply because Murdoch has control.
I was worried when I read the Answer to a Question that had been tabled in another place by Sir Raymond Powell about who had given evidence to the group. I noticed that Mr. Maurice Lindsay was among the names. That same Mr. Maurice Lindsay was the main negotiator in the Murdoch deal.
According to the Guardian, the other day, a recent poll asked whether such sports should be protected, and 73 per cent. of the public agreed that they should be. I am being nodded at and it is time for me to sit down. I have gone over my 10-minute limit, but as we all sat in the Chamber waiting for the other debate to finish, we now have an hour and a half instead of one hour for this Unstarred Question, so I do not think that I need apologise.
8.23 p.m.
Viscount Astor: My Lords, we must all be grateful to the noble Lord, Lord Lofthouse of Pontefract, for initiating this debate. I join the noble Lord in paying tribute to the late Lord Howell whose contributions to your Lordships' debates on sport we all greatly enjoyed.
I must congratulate the noble Lord, Lord Gordon of Strathblane, on his useful report. There is much with which one can agree, but it also gives me an inviting target as I believe that its main conclusion is flawed and wrong, but for very different reasons from those put forward by the noble Lord, Lord Lofthouse. So I shall attack the report from the opposite end, as it were.
There seems to be a view that free-to-air sport is diminishing and that the public are losing out. I believe that nothing could be further from the truth as ITV alone has increased the amount of sport shown this year by 50 per cent. A quick glance at the newspapers for last week reveals that BBC1 put on "Match of the Day", showing Blackburn v. Arsenal, on Monday. That was followed by the UEFA Cup semi-final on BBC1 on Tuesday. On Wednesday, ITV scheduled the Champions League semi-final and on Thursday it showed the European Cup Winners Cup, Chelsea v. Vicenza, both live. There is plenty of high quality sport on BBC, ITV and Channel 4, and I advise any noble Lords who do not want to listen to this debate that there are two hours of snooker on BBC2 tonight.
Television has transformed sport. It has provided money but, even more importantly, it has made sport more popular. Sporting events are now more accessible
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to the public; they are safer; and many more people attend them. Yesterday I went to Watford football ground to watch Saracens and Newcastle play rugby. There was a crowd of nearly 20,000—a record for a club game. The match was shown on BSkyB with highlights on terrestrial television. Television and its investment in sport have made rugby popular.
I believe that the report was right to point out that many take differing views. Some believe that there is too much sport on television and that the logical place for live coverage of events of long duration should be special channels catering for those who want to watch such sport. However, the report also pointed out that it is right to say that the enjoyment of sport on television is a force for cohesion in society where events are of national interest or importance. We had a long debate on that during the passage of the Broadcasting Bill in 1996. I believe that the results of that Bill have worked. The voluntary code, adopted by the Central Council of Physical Recreation, has worked. Indeed. I understand that in the past 18 months no complaints have been made to the monitoring committee.
The report attempts to take a voluntary code, which is working, and to place it in regulations, ruled by the ITC. I believe that that would be a wrong and retrograde step. As your Lordships are aware, sport and broadcasting are rapidly changing worlds. We shall have digital terrestrial television later this year. The report's proposals could be detrimental to its success. The direction in which sport on television is going means that sport will be available in a way that the viewing public actually want. There will he live coverage for those who wish it, with highlights for those who do not want to watch hours of sport. There will be a mix for others. Parts of some events will be shown on specialist channels with, say, the final on free-to-air networks. There will be a mix of events on both free-to-air networks and specialist channels. That mix is wanted by both the sports rights holders and the viewers.
I agree with and fully support one suggestion in the report. I refer to the unbundling of sporting rights. Again, we have had a debate on that in your Lordships' House. I believe that we should have gone further. Broadcasters should be able to bid for the sports and particular events that they want to show.
However, all is not had because changes are already happening, driven by the sports themselves which want unbundling. The market is solving the problem. I realise that those on the Benches opposite regard it as strange that the market should solve a problem, but that is what is happening—and it is working. I refer to what is happening in English cricket. The English Cricket Board wants a mixture. It is clear that it wants to negotiate a fair price for broadcasting rights, but that does not mean that it will simply sell them to the highest bidder. It does not want to walk away from terrestrial television. The bodies believe that they must decide what to have and that the mix must be right.
The report dealt with this matter in a rather strange way. It suggested that if a sporting body was free-to-air somehow it would achieve better sponsorship contracts and matters of that kind. The right balance must be for the sporting bodies themselves.

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The report is what one gets if one puts together people of differing views on a committee. They come up with a recommendation which to an extent is a compromise. I do not believe that that compromise is generally welcomed by the sports bodies or the commercial broadcasters. I am not sure that it will produce better viewing for the public. The noble Lord, Lord Lofthouse, questioned whether one could trust the sports bodies. We can and should trust those bodies. I accept that in the past some have made mistakes, and they realise that. They also realise that in some cases they do not appeal to youth, which they know to be important. The Broadcasting Act works. I believe that the concept of a B list means more regulation and is detrimental to sport. The report speaks about an acceptable level of secondary coverage on generally available terrestrial channels to be decided by the ITC. I believe that that gives to the ITC a role that it does not want.
Having said that, I am sure that the noble Lord, Lord Gordon, must be pleased by one matter. His report has been attacked by both sides. Perhaps it means that his report is rather sensible because it has been attacked by both sides. It would be a pity if it was attacked by only one side or, even worse, by nobody. There are differing views, but each has merits. I recognise the merit of much of what the noble Lord, Lord Lofthouse, said. I hope that the Secretary of State will take serious note of all the views expressed this evening in your Lordships' House and the views expressed in the report.
8.31 p.m.
Lord Addington: My Lords, I thank the noble Lord, Lord Lofthouse, for giving us the chance to discuss this important subject. I also join in the tribute to Lord Howell. One would always listen to Lord Howell on a subject of this kind even if one did not agree with him. The fact that one always listened to him is perhaps the greatest compliment that this House can pay him.
As to the final recommendations in the report, I do not agree with the list but, I would not anyway. I am a Rugby Union fan. I believe that Rugby Union should come higher up the list. That is my prejudice out in the open. The little graze on the top of my forehead proves that I am still playing the game although not quite as fast or as well as I once did. When we talk about sport we always have this kind of disagreement. If the committee had been appointed by others perhaps the list would have been slightly different. The noble Viscount, Lord Astor, said that it was a very good list if one liked association football or soccer. There is a lot of it about at the moment and I have been rather inundated by it. It is always washing around at the back of events.
A good deal of the concern in this area is that we are attacking a situation in which certain sports have their moment of glory compared with the main spectator sports in this country such as association football. For example, the five-nation rugby tournament extends over four or five weekends a year when everything revolves around that sport. Rugby League has its one great day and then its test series. There is a sampling process in which people are exposed to certain sports on certain
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days and they are shown in a good light. This is not always to one's taste. Up until the age of 10 I did not believe that anyone played tennis other than for two particular weeks in the summer. I also believed that they wore only white outfits. Wimbledon created that impression. There was a great concentration on sports in blocks which meant that every sport had its moment in the sun.
The current arrangements for the broadcasting of sports is beginning to attack that. If one does not have access to cable or satellite systems one begins to feel that one is losing out. The fact of the matter is that television works and can create tremendous interest. One example of its power and limitations occurred 10 years ago when everyone expected Rugby Union, Rugby League and association football to be swept aside by American football. We were all told that it would happen. Ultimately, the game was ruined when people saw the whole game instead of just the highlights. I do not believe that a sport which appears to last for one hour and takes five hours to play will ever fit into our sporting culture. But everyone was told that that game would take over. Both Rugby Union and Rugby League have said at various points in the past that one will sweep the other under the carpet. Neither of them will do that. A cultural base is required to attract a sport and we have proven that quite satisfactorily.
We are in danger of pushing certain sports off the broadcast air waves altogether or into little ghettoes. Ultimately, the multi-channel approach may save us because there will be so many channels readily available that virtually all sports will be available at all times. There is also a danger that a sport will become a series of glossy jerseys running around and marketed like soap powder or soft drinks. The exciting bits of the sport will be priced out of people's reach. One will see it only secondhand. The fact is that highlights do not and cannot convey the whole of the sport. Sports are about pressure and how people react to it; it is about how people develop games. A sport is a contest which takes place over a period of time, possibly with very short bursts of activity. But the highs and the lows must be seen to get the whole drama and excitement, and highlights do not do that.
Both the noble Lord and the noble Viscount who have spoken have referred to the fact that steps must be taken towards unbundling. The noble Viscount, Lord Astor, said that the marketplace might already be doing that. It is right to say that the marketplace created the problem in the first place. We must allow events at least to be recorded as live even if they are not live, because that is what the sport is really about. Unless one manages to do that in one's broadcasting, ultimately one misses the essence of it.
The report responded to the framework given to it. Thus, it could make recommendations only similar to those that it did. I hope that the noble Lord who is to speak next agrees with me. We must try to take a step forward in this matter and consider why we are interested in it. Sport is a huge part of the cultural and social life of this country. It means different things to different people, but it is watched for a variety of reasons, one of which is its internal drama. Thus, to

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cherry-pick the greatest moments is pointless. It is like having a video of the 100 greatest goals and watching it 20 times. The ball always goes into the back of the net. If one has the highlights one knows that the ball will always go into the back of the net. That is not about sport; effectively it is all about repeating an exercise. As the noble Lord, Lord Lofthouse, has pointed out, the health and social benefits of sport, particularly for the young, are incredible. They give a sense of belonging to a group and a sense of achievement and pride and can instil discipline in order to achieve a result in constructive competition. That is something that we must encourage.
Television is the mass media par excellence and it is the one that most people look to. Unless we get the coverage of sport on television right ultimately it will be damaged. One may well drive certain sports into tiny ghettoes which are watched by only a small number of people. We must achieve sporting democracy in this country. One does not play a sport because one is brought up in a certain area or goes to a certain school; one plays it because one wants to try it. Television took steps towards this but it has now stepped back from it as a result of financial pressure on sporting bodies who never have enough money for all that they want to do, be it the development of the particular sport or whatever. They grab the money to meet the needs and problems that they face at the moment. Ultimately, they may destroy themselves by turning themselves into tiny participating groups. I hope that for the foreseeable future the structure can be changed to address this problem.
8.40 p.m.
Lord Gordon of Strathblane: My Lords, all previous speakers have paid tribute to the late Lord Howell and I am happy to join them. The noble Lord, Lord Astor, referred to the memorable debate on the 1996 Act when Lord Howell's amendment was carried by a huge majority. That effectively marked the turning of the tide. Death is never timely, but it is particularly cruel that Lord Howell was not spared for another few days to participate in the debate. I say so out of no self-interest because I strongly suspect that Lord Howell would have felt that the report of the committee of which I was chairman did not go far enough and that we should have listed every sporting event and put Sky and cable television out of business. That is a perfectly respectable view, and one which has been hinted at in the debate. I, however, think it is a wrong view.
First of all, let me take up the point made by the noble Lord, Lord Addington. He is correct to point out that our report was produced in response to stated criteria. I say that not to shelter behind the criteria. I support the criteria, and the Secretary of State was wise to consult separately on the criteria against which we should judge whether an event should be listed and then appoint a separate body—our committee—to look at which events met the criteria.
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It is important to realise that, even if an event is listed, we do not control whether or not it is seen on terrestrial television. If an event is listed but the terrestrial broadcaster does not offer a fair price, then the event is not seen on terrestrial television.
If the bodies running the sports referred to share the views expressed in this House that the missionary activity, as it were, of terrestrial television is all important, then even if the price offered by Sky is higher they will opt for terrestrial television. Let me point to one example, the Open golf championship. The Royal and Ancient has deliberately stayed with the BBC despite a higher offer from Sky.
As to the criteria, the main criterion is that the event has a special national resonance, not simply a significance to those who ordinarily follow the sport concerned. It is an event which serves to unite the nation, a shared point on the national calendar.
I should declare an interest. As chairman of the committee which produced this report, I am very happy to justify its recommendations and urge the Secretary of State to accept them.
Let me refer to the changes we have made to the status quo. At the moment the status quo provides for the events listed, thus protecting full live coverage. If an event is not listed, nothing is guaranteed. I concede the point made by the noble Viscount, Lord Astor, that we have a voluntary code which is working well. I pay tribute both to the CCPR and the sports bodies for making it work well. It is, however, rather early to judge whether it will survive the test of full market forces.
One also has to bear in mind, without being unduly cynical, that perhaps people are on their best behaviour at the moment. There has been a change of government, and the election of a government which perhaps has not been as favourable towards non-terrestrial broadcasters as their predecessors. The fact that the Government looked immediately at this issue might have persuaded some sports organisations to behave slightly more responsibly than they might otherwise have done.
As to the changes that we have made to the criteria, the most publicised change is that we have removed full live coverage protection from Test cricket and placed it on to the secondary coverage protection list. We have done so for a very simple reason, which I hope does not cause offence to aficionados of cricket. It is very difficult to defend 30 days of cricket as a fixed point in the national calendar. It is a shared summer, not a shared point. If you list Test cricket then, logically, you should list Premier League football which, in total, takes up less time than the summer Test matches.
Another change we made, in response to one of the subsidiary criteria, was that the national team should be involved. I am a great fan of the World Cup—I would watch every match—but we cannot say that a match not involving one of the home nations is something of national resonance. Therefore we have said that World Cup matches which do not involve the home nations are not listed, with the exception of the semi-finals and final.

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We have added, entirely logically, coverage of the European championships. In many ways they are just as important as the World Cup and, without being unduly pessimistic, perhaps the home nations stand a greater chance of progressing further in that tournament.
That is what we have done in terms of the listed events. Nothing else has been changed. We have added considerably to the protection afforded to sports which were previously denied any protection whatsoever other than that provided by the voluntary code. We thought that the existing system was inflexible in that it was all or nothing and we were anxious to reduce the impact of exclusivity.
Exclusivity is not the epitome of market forces. It is a denial of market forces. Why people who want a free market should think of exclusive coverage—which means paying more to keep the other fellow out and not compete—I do not know. Taking an analogy, if I owned a supermarket chain and bought up the entire supply of milk and said "You cannot buy milk even in a corner shop; you must come to my supermarket to get milk. Not only that, we will not sell you milk on its own but you have got to buy butter, eggs and bacon when you come in", would the Government of the day stand by idly and do nothing? I suggest that it would be regarded as unthinkable.
There is a danger that we can carry this too far. I do not think it is necessary to ensure that every store is allowed to stock a particular brand of trainer shoe for children. We might allow people to have a monopoly to sell one product like that, but not if the product is important enough, like milk. As the noble Lord mentioned, it is a force for the cohesion of society if certain sporting events are generally available on terrestrial television.
The noble Viscount, Lord Astor, mentioned that the market was doing this to some extent. I agree that there are some forces working in the direction of what we are trying to achieve. The point made in the report about advertising and sponsorship is important. The revenue gained by the broadcaster from selling broadcasting rights is only part of the equation. If that means that he puts his sport on a cable or satellite channel with much smaller audiences, as the noble Lord, Lord Lofthouse of Pontefract, has pointed out, then the advertiser or sponsor would feel cheated and say "I want a wider audience for my product".
If sports are shown on terrestrial television they will secure more sponsorship and bigger advertising deals, which are equally important in raising revenue. Let me give an example from my own part of the world. We had a tournament called the Bells Scottish Open—sponsored, as the name indicates, by Bells Scotch Whisky—which took place at Gleneagles and was building up in importance because it was held the week immediately prior to the Open. Then the owners of the television rights decided to sell them to Sky. Bell's withdrew its sponsorship and the event no longer took place at Gleneagles. It lasted one further year, limping along at Carnoustie and now no longer exists as an event. That is a salutory lesson.
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Even those who are not inspired by the altruism of making the sport available to young people—the missionary activity to which the noble Lord, Lord Lofthouse, referred—may well feel that, in their own self-interest, terrestrial television is the right way ahead. But there is a difficulty here. Knowing that the noble Lord, Lord Thomson of Monifieth, will be intervening later in the debate, I will simply refer to the rules of public service broadcasting. It is up to public service broadcasters to provide a wide range and balance in their programming. I must ask noble Lords, in all honesty, can we really say that ball-by-ball coverage of Test match cricket for 30 days in the summer does not despite the schedule, which should be serving a much wider audience than simply cricket lovers? I think the answer is that full coverage of certain events of long duration properly belongs on channels devoted entirely to sport. I agree that it is perhaps regrettable at the moment that such channels are only available by payment of an extra subscription.
Lord Orme: And it is a large one as well!
Lord Gordon of Strathblane: My Lords, it may well be a large one, but that is exactly why we have made sure that the alternative for those who do not want to pay that large subscription is not nothing but secondary coverage, which should be quite meaningful.
I therefore feel that the ITC is the proper body to administer this. We considered, obviously, the report of the DEMOS think tank which recommended that we should have an "Ofsport" just as we have Oftel and Ofwat. We decided that the ITC was the proper body to do this. But we must ensure that the secondary coverage provided is a meaningful alternative for the viewer who does not subscribe to cable or satellite. By meaningful coverage, I mean that within perhaps an hour of the finish of the event proper edited highlights are available. I agree with the noble Lord, Lord Addington, that in many cases that is not perfect. I accept that, but there are many cases where it is slightly better. Those of your Lordships who have watched the Open Golf Championship will be aware that in the last few minutes there is only one couple coming down the fairway. The whole thing slows up. Highlights can remove the long hours. Talking of long hours, I take the broad hint that I may be indulging in them unless I finish rather quickly, so I will.
It is important that the Secretary of State accepts the recommendations. It is important that the ITC ensures that secondary coverage is meaningful. As a final point I would simply say that if eight people drawn from widely different backgrounds, as the noble Lord, Lord Addington, says, reach a unanimous conclusion, perhaps that augurs well for the general acceptability of our report.
8.53 p.m.
Lord Orme: My Lords, I believe that my noble friend's analogy with supermarkets cornering the milk market could get him into some difficulty because that market is being cornered already in certain products and certain areas.

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I am very disappointed with this report. It has weakened the case for national sporting events to be on television, both terrestrial and independent as a right. That is a blow to millions of people on small incomes who cannot afford cable television. I can afford it and so can many other people, but many people from inner city areas, who I represented when I was in the other place, cannot. People complain about the cost of a television licence for BBC, which is £92 a year, but to watch sporting events on Sky costs me and other people £360 a year. Many people cannot afford to have cable TV.
I should like to deal specifically with the issue of cricket. My noble friend mentioned cricket coverage 25 days a year. That is exactly what Sky intend to show if it takes control of the coverage. It will put cricket on a sports channel. I would like to know why BBC and ITV cannot have a sports channel. Why should it just be Sky? Let us face it, at the back of all this we are dealing with the Murdoch millions. That is where the pressure is coming from; he is capturing markets. One can already see in pay-to-view television, for instance, how boxing started out at £15 for an evening's entertainment. That has gone up to almost £17 and is increasing all the time. What would happen if the company finished up with a complete monopoly? There is a real problem in that regard.
I turn to the issue of cricket. I declare an interest here as a member of Lancashire Cricket Club and a lifelong cricket supporter. I believe that Test Match cricket is second to none in its appeal to millions of people. But, compared to soccer and rugby, cricket is a minority sport. We want to get more people playing and more people watching, but the one way not to do so is to put it on Sky or cable television because they will remove it.
I know that those involved in cricket want more money. I know that they lobbied my noble friend's committee very strongly with regard to cable TV companies being able to buy out television companies. In the short term, they may receive the money, but in the longer term there is the question of attracting young people into watching and playing cricket like many other sports.
We can see what is happening now in soccer; how it is being handled and diverted into certain areas where it is impossible for people to watch. I know that cable television operates very professionally, but there is a real danger here. It is a danger that the advisory committee, in my opinion, did not take into account. I believe that it has seriously weakened the case for listed events, and I believe that is the thin end of the wedge.
If we give cricket to cable television it will be game, set and match so far as the major sporting events in Britain are concerned; that is, soccer, rugby, tennis, which is going in that direction, and cricket. That is the area where it will have an effect upon our national viewing. For instance, on the question of 25 to 30 days coverage of cricket, many older people watch Test Match cricket in the daytime. Many of them are retired, many are on low incomes. They cannot afford Sky or cable TV and therefore have to rely on terrestrial
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television. I do not believe that the committee took into account the effect of moving Test Match cricket away from that particular area.
I shall be interested to hear what my noble friend has to say about the Secretary of State. I believe that the Secretary of State must take into account the many views which have been expressed in reply to my noble friend's advisory committee. He must look at the issue from the point of view of what is best for the majority; what is best for those who cannot afford cable television; what is best for those who want to see such events. I hope that the Secretary of State rejects many of the proposals.
9 P.m.
Lord Thomson of Monifieth: My Lords, the noble Lord, Lord Lofthouse, has done the House a good service by introducing this timely debate on an extremely important report. I very much agree with the noble Lord and other noble Lords who have spoken that it would have been an even better debate had Lord Howell been spared to take part in it.
The noble Lord, Lord Gordon of Strathblane, and his colleagues have made a courageous attempt to balance the intensely opposing and difficult conflicting interests in the broadcasting of great sporting events. From these Benches, we broadly support the conclusions that the committee has reached.
I am a Scot and I speak about cricket, as did, no doubt, the noble Lord, Lord Gordon, conscious that cricket is not a major sport in Scotland. But I should say to noble Lords who are concerned about it that there is a real practical problem about cricket in the modern broadcasting scene because of the length of each match—a Test Match is a five day match—and the cumulative effect of 30 days. If only cricket were like Wimbledon, for example, where you could have a final day or two with the climax of the event as operates in relation to Wimbledon, it would be a different matter. But sadly cricket is a very special sort of game which does not lend itself to that kind of finality. Given the present state of the England cricket team, generally the fifth day is not required for that purpose.
Therefore, I personally support what the committee has recommended to the Government in that respect. However, I do not underestimate the courage that the Secretary of State may require if he is to remove the home Test Matches from among the "Crown Jewels" of protected events. I hope that he will have that courage.
As the noble Lord, Lord Gordon, emphasised—and I very much agree with him—the price of the kind of proposals which the committee makes, and which applies in particular to the major changes that there would be in relation to cricket Test Matches, is that there should be effective arrangements for secondary coverage. I appreciate that the noble Lord, Lord Gordon, and his committee had the terms of reference and the framework set for them. But we on these Benches take the view that the report itself does not and, indeed, could not really go to the root of where the public interest lies in achieving the right balance between the free-to-air viewing on terrestrial channels, which is still the major

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source of broadcasting for the large majority of viewers and will be the major source of broadcasting for quite a long time ahead, and the pay-to-view television of satellite or cable.
The heart of the problem is that paid-for broadcast sport has been allowed to become a virtual monopoly of one operator; that is, Rupert Murdoch's Sky Television. In the absence of effective statutory regulation, Sky Television has naturally made the most of its monopoly. We should not complain about it acting as a monopolist does act, but we do complain about the inadequacy of the legislative arrangements to deal with that.
The noble Viscount, Lord Astor, mentioned the English Cricket Board. The information which the BBC has given to me—and perhaps has also given to him—is rather different from the view which the noble Viscount expressed. In relation to next year's cricket world cup, the BBC reports that,
"the ECB sold all rights into one market, effectively making Sky the broker for the extent of live coverage on terrestrial television. Their interest, naturally, is to release as little as possible free to air—for instance should England reach the semi-final, only those with the ability to pay will see any live coverage".
That is a very unsatisfactory situation.
Therefore, within the two-tiered system that the committee has recommended to the Government, it will be vitally important to have effective arrangements for secondary coverage. That was the issue with which we wrestled during the course of the 1996 Broadcasting Bill in which Lord Howell played such a prominent part. The result of that was the voluntary code and the compromise arrangements which arose out of that.
I do not follow those matters as closely as I once did, but I do not know whether I am pleased or puzzled by the fact that the code and monitoring arrangements do not seem to have been needed to be brought into operation at all. I feel very sceptical about the way it is operating and I feel that there is a great need to strengthen those arrangements. Speaking personally, I know only that to watch live Premier League football, I not only have to subscribe to BSkyB but I also have to buy a bundle of other channels to which I do not wish to subscribe. I only know that to watch "Match of the Day" on BBC—and that is a poor substitute for live BBC football—I have to sit up too late on a Saturday night for a septuagenarian like myself, or get up too early on a Sunday morning, which is even worse.
Even within the limits of the report, it has the aim of ensuring that,
"there is good secondary coverage available on free-to-air channels".
That will demand, I believe, more vigorous implementation of the code by the sports rights holders and more vigorous regulation by the broadcasting authorities. If I read the report rightly, I believe that that was the thrust of what was said.
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However, it probably demands more than that. Indeed, I was encouraged by the fact that the committee in its major recommendation about secondary coverage said that the Secretary of State,
"should investigate the possibility of such a revised framework",
which the report describes and,
"if its implementation proves impossible … he [should] introduce early legislation to facilitate it".
From these Benches we strongly endorse that aim. In fact, I would go further. I believe that what is required to deal with the new broadcasting landscape with its proliferation of channels is a new broadcasting Bill, which will deal quite fundamentally and fairly with the present distortion that exists in broadcast sport between pay television and public service television.
Surely in a world where the digital channels are now going to proliferate—and I echo what the noble Lord, Lord Orme, said—it should be practicable and possible as a matter of public policy to ensure that some of these new digital channels can be dedicated free-to-air channels, covering the sports that substantial sections of the population enjoy. It is my hope that what will eventually arise from this useful report will be the Government's acceptance of its recommendations.
9.8 p.m.
Lord Skidelsky: My Lords, perhaps I may, first, add my tribute to those already expressed to the late Lord Howell, whose contributions on sporting matters will be sorely missed in this House, not least tonight. I, too, welcome the report. I believe that the Government are in a quandary over the live coverage of sporting events on television.
The Secretary of State has given a commitment that major sporting events will remain on what is mistakenly called "free to air" television. I say, "mistakenly", because of course it is not free. On the other hand, the Government are under pressure from sporting bodies to allow them to strike the best deal that they can. That deal will almost certainly be with Sky, which is owned by Rupert Murdoch, who naturally wants to increase the number of subscribers to his programmes. It is a nice circle to square, and the Government sensibly set up a committee which has produced a sensible report—a report, which the noble Lord, Lord Lofthouse, has given us the opportunity to discuss tonight.
As the noble Lord, Lord Gordon of Strathblane, reminded us, his report was in response to published criteria which had been issued. A-listed events must be broadcast live on BBC, ITV or Channel 4—the main ones being the Olympics, international football championships, the Wimbledon finals, the Grand National and the Derby. There is a further category of B-listed events which can be broadcast live on satellite TV, provided that edited highlights are also available on free to air terrestrial channels.
The noble Lord, Lord Addington, objected to edited highlights. I must confess that I am an unrepentant highlight person, except for Jimmy Connors of whom I can never get enough; indeed, I buy all full-length videos of his matches. I even hold the heretical view that edited highlights of our own debates in this House

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are rather more enjoyable than the live, full-length versions. Test matches have been moved to List B because the time that they take presents serious scheduling problems. That seems to be a sensible compromise.
I said that I welcome the report, but I wish it had been a bit more forward looking. I shall return to that point later. I agree with the report when it says that sporting events which have a "national resonance" and represent a,
"shared, fixed point on the national calender",
should continue to be listed. Such events provide unifying moments which reinforce our sense of national identity in an enjoyable and perfectly harmless way. In ancient Greece they interrupted wars to enable the Olympics to take place. We have turned our great sporting occasions into substitutes for war, which must be an improvement.
However, the fact remains that these events would not be available to the whole population if they were shown exclusively on a subscription or a pay-per-view basis. Indeed, 97 per cent. of households have television but, whereas the licence fee is £91 a year, Sky Sports costs £300 a year. I did not quite agree with the noble Lord, Lord Orme, that people have an unlimited right to watch as much cricket on television as they like. That seemed to be the thrust of his argument. But I believe that other viewers have rights. Public service broadcasting has to strike a balance between the rights of aficionados and those who want to watch other programmes.
Lord Orme: My Lords, I said, in effect, that there will still be 30 days of that viewing if it passes to cable television, as cable has three sports channels. The point I was making, which I think the noble Lord, Lord Thomson, endorsed, was that ITV and BBC should have their own sports channels; in that case the viewing I mentioned would not impinge on other programmes.
Lord Skidelsky: My Lords, I thank the noble Lord for that intervention. That may well become possible when digital television is introduced. I shall discuss that in a moment. I am presenting one side—the side for listing. On the other hand, it is undoubtedly true that more money would come into sport if franchises were auctioned off to the highest bidder. Funds from satellite television have transformed football finances, the current contract being worth £742 million a year to the clubs. The noble Lord, Lord MacLaurin, chairman of the England and Wales Cricket Board, argued last year that the Government should lift restrictions on the sale of test match rights on exactly those grounds. The ECB has commended the advisory group's report which proposes in effect to do that.
The broader context for this debate—as my noble friend Lord Astor has pointed out—is the huge increase in choice of programming that the new technology makes possible. I believe that will help to solve many of the problems of access which have troubled some noble Lords this evening. The current analogue terrestrial broadcast technology offers five channels. Digital terrestrial television will offer 30 channels from
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the autumn. Digital satellite will offer the possibility of up to 200 channels from this summer; in theory, cable could support up to 1,000 channels. That will break up the Sky monopoly in due course. The reason for this proliferation is that digital compression allows use of the spectrum to be much more efficient than current analogue technology and will hugely increase the capacity of the different delivery platforms. This does not necessarily mean that there will be more choice of what to watch, but there will certainly be more of whatever it is you choose to watch. As satellite sports channels have shown, some people are willing to pay a significant premium to get a lot of what they are interested in.
A general, all-purpose TV channel, which is all the current analogue terrestrial channels can ever be, cannot compete with the scope for specialisation which the new technology offers. The likely growth of subscribers to digital terrestrial will surely undermine not only the monopoly of Sky as at present but also the case for the old licence basis of financing. Eventually people will pay for whatever package of channels they want. In the meantime I wish to congratulate the advisory group on a balanced report. I am sure that the Government will give serious thought to its recommendations as well as to the views expressed here tonight.
9.17 p.m.
Lord McIntosh of Haringey: My Lords, this debate is, of course, overshadowed by the sudden death of Denis Howell. I cannot hope in any way to emulate his lifetime of experience, skill and knowledge in sporting matters. I remember that he never took himself too seriously and was always willing to accept or even make jokes about himself. I was reminded by an obituary today of his story about refereeing a match in which the young Jimmy Greaves played. He had cause to be in dispute with Jimmy Greaves and asked, "Who do you think is refereeing this match?", to which Jimmy Greaves replied, "I don't know but I'm sure it isn't either of us." Denis Howell was a great man and we would have benefited greatly from his presence tonight. He had intended to be present.
I suppose that I have peculiar qualifications to speak in this debate in the sense that I vary between having a small interest in sport and no interest whatsoever, with no interest in sport being the dominant characteristic. Perhaps that is a good thing, as I can be entirely neutral as between the claims of different sports for attention and coverage. As noble Lords know perfectly well that my response to the Question of my noble friend Lord Lofthouse will be to stonewall rather than to give the Government's response to the advisory group's report, I can do so with a good deal of conviction without any personal prejudices coming into the matter. I suppose I also represent a group referred to by the noble Lord, Lord Skidelsky—those who are interested in other subjects on television or radio; those who believe (to adapt the famous phrase) that coverage of sport has increased, is increasing and should be diminished. I hasten to say that that is not the view of the Government.

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The advisory group's report is a quite remarkable document in a short space. It recognises the argument for wide availability of sport. At the same time it recognises the needs of the sports themselves. Noble Lords are right to demand that the Government should think carefully about the recommendations of my noble friend Lord Gordon and his colleagues before coming to a conclusion and making that conclusion public. I can confirm straight away that this debate will be an important part of the consultation process. For that reason again I shall not attempt to pre-empt the conclusions the Government may draw.
It is significant that my noble friend's report was unanimous despite the wide variety of membership of the group—a deliberately wide variety consisting of members of great distinction in all matters relating to sport and broadcasting. Reference has been made to the criteria which the Secretary of State set down for the report. Minimal criteria are prescribed in the Broadcasting Act 1996, but after extensive consultation the Secretary of State felt—I have heard no disagreement with that tonight—that it was necessary to be more explicit in setting out the criteria for listing than was possible in legislation.
Of course the advisory group could have taken the populist view and simply recommended a much longer list, as my noble friend Lord Gordon rightly said. But the group recognises that, whether or not we like it, sport is now big business. It requires investment in facilities, in providing for the safety and comfort of those who go to see sporting events, and in particular in training and bringing new people into sport. When I read some of the reactions to the report, and having heard some of the contributions tonight, I wonder whether it follows that the best deal, as the noble Lord. Lord Skidelsky, said, will almost always be Sky. I thought that the example given by my noble friend Lord Gordon of the Scottish Open was a good one.
It is important to remember that, in considering the best deal for them, the governing bodies of sports in this country will not simply take the largest amount of money available from the deal itself but will be concerned with the possibilities of sponsorship, advertising support and, above all, the popularisation of the sport. As has been rightly said, that is more possible from terrestrial television with its much larger audiences than from Sky. Sky, pay-to-view and subscription television will always be more restricted to fans for obvious economic reasons—and, as my noble friends Lord Lofthouse and Lord Orme rightly said, on the whole to the better off fans. That is a serious problem. But the popularity of sports will be very much greater if the boards of control take into account what can be achieved indirectly by making their sports available on terrestrial free-to-view television. I do not know any alternative to that phrase.
At the same time, it is quite right to say that none of these issues is set in concrete; they are not going to survive the arrival of digital television from the end of this year—although I suspect it will take much longer to be fully operational than some people now think. Clearly, digital television will need attractive
1020
programmes in order to justify investment by viewers in the set-top boxes or in the new television sets themselves. Clearly sport will play some part. But a very large part of digital television is going to be free-to-view and will overcome some of the problems of competition between sport and other subjects on our television screens, whether terrestrial, satellite or cable.
So I do not accept the view of the noble Viscount, Lord Astor, that somehow my noble friend's report is detrimental to the development of digital television. I take rather the view of the noble Lord, Lord Skidelsky, that we shall have to see how digital television advances. It may well be that whatever decisions we take now in relation to listed events will have to be changed when digital television takes root.
There have been a number of references to individual sports—notably and most powerfully to Rugby League by my noble friends Lord Lofthouse and Lord Orme. We recognise the devotion of many thousands, perhaps even hundreds of thousands or millions, of people to Rugby League. However, it is important that we should not get into the habit of thinking of listing, in the sense in which it is used here, as an honours list, and that if an event is listed it is somehow a better or more important sport. That is not the issue at all—
Lord Lofthouse of Pontefract: My Lords, perhaps my noble friend will give way. I certainly appreciate the point that he just made. However, does he not think that the request that I have made on behalf of rugby—namely, one match a year, to the massive benefit of the youth who have an interest in the game and the elderly who want to watch television—is a rather modest request and that serious consideration should be given to it?
Lord McIntosh of Haringey: My Lords, of course I understand the powerful emotion behind that idea. The point that I want to make about all the reactions to the Gordon Report is that listing does not mean that any particular match will be shown on terrestrial television. It is simply not true to say that if an event is listed it will be shown on terrestrial television, and that if it is not listed it will not be shown. I sought to argue that the case for a wide audience for Rugby League, and for the Challenge Cup in particular, does not depend on whether or not the event is listed. It seems to me highly unlikely that, even if it is not listed, the Rugby League authorities themselves will go for an exclusive deal with Sky which would stop the event being shown on terrestrial television. There are failures in logic, at least in some of the press discussion that I have seen. Listing gives no certainty of showing on terrestrial television, and non-listing does not give certainty of exclusive pay-to-view or subscription deals, or the exclusion of terrestrial deals. That is the context in which we should be examining the whole issue of listed events.
I recognise of course the force of the arguments for the importance of Rugby League football and the force of the arguments by my noble friend Lord Orme for cricket; but I remind him that the noble Lord, Lord MacLaurin, the Chairman of the English Cricket Board, has himself said that, whether or not there is listing, he

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wishes to keep English cricket on terrestrial television. Since he is a member of the body that makes decisions about the deals that are done with broadcasters, I believe that that should be taken with a considerable degree of seriousness.
No one will be satisfied with everything that is said in any report, particularly a report which obviously has within it an element of compromise because it is unanimous. However, I believe that the welcome which my noble friend Lord Gordon has received from the Liberal Democrat and Conservative Front Benches
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ought to weigh with my right honourable friend the Secretary of State. He will make his own decision. I am not in any way pre-empting that decision, but I believe that the debate we have had this evening will help him to do that. I hope that it will be possible for him to make his decision responsibly and after proper consideration, within a very few weeks. I repeat the expressions of gratitude which have been made to my noble friend Lord Lofthouse of Pontefract for introducing this important subject.
House adjourned at twenty-nine minutes before ten o'clock.