Lords Sitting of 13 January 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 Bradford.

Lord Neill of Bladen
Sir Francis Patrick Neill, Knight, QC, having been created Baron Neill of Bladen, of Briantspuddle in the County of Dorset, for life—Was, in his robes, introduced between the Lord Wilberforce and the Lord Jenkins of Hillhead.

Computer Games: Classification
2.47 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they propose to modify the system of classification under which the computer game Grand Theft Auto, which allegedly involves thefts of cars and driving at excessive speeds to evade police cars, has been granted an 18 certificate.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, there are currently no plans to change the system of classification for computer games, which, if they show gross violence, human sexual activity or criminal activity likely to encourage similar acts in real life, must be submitted to the British Board of Film Classification and are then subject to the same level of classification as videos. The computer game Grand Theft Auto has been granted an 18 certificate by the BBFC and it is therefore considered suitable for supply only to adults. Its supply to anyone under the age of 18 is an illegal act subject to criminal penalties. The maximum penalty for supplying a computer game in breach of its classification is six months' imprisonment, a £5,000 fine, or both.
Lord Campbell of Croy: My Lords, I am grateful to the noble Lord. In reply to a previous Question he indicated that the Government are greatly concerned and have the situation under review. As they aim to be tough on crime and on the causes of crime, should criminal offences of this kind be allowed to be presented as games or normal pastimes? Are the Government now ready for computer games on burglary and mugging, bearing in mind that it is mostly young people who play these games and not the adults who bought them?
Lord Williams of Mostyn: My Lords, the Home Secretary has recently appointed Mr. Andreas Whittam Smith to be president of the BBFC and to be the designated authority for the classification of videos under the Video Recordings Act. It may well be young
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people who watch these games, but I repeat that it is an 18 classification and its supply to anyone under the age of 18 is a criminal offence. If there is any evidence of such supply, it should be reported to the appropriate authorities for them to take criminal proceedings.
Lord Avebury: My Lords, is the Minister aware that demonstration copies of Grand Theft Auto are being distributed with magazines on sale to the public but that my 12 year-old son, who has played the demonstration copy, assures me that he is not motivated to go out and steal cars?
Lord Williams of Mostyn: My Lords, I am very pleased to hear that excellent news. But it still remains the fact that the supply of such a video for reward is a criminal offence. It may be that the noble Lord, Lord Avebury, would therefore wish to have a private word with his son.
Lord Campbell of Croy: My Lords, does the Minister agree that such games are played by young people in their homes and that it is difficult to know what goes on in the home? Does he also agree that as the Government have made tackling crime one of their three priorities during their presidency of the European Union, they should take any measures that would reduce car crime in this country? We have the worst record for that in western Europe.
Lord Williams of Mostyn: My Lords, the noble Lord is right. Such video games are commonly played in the home. Self-evidently, I would suggest, parents have a responsibility to supervise their own children. One has to strike a suitable balance between banning everything that can conceivably be a pleasure to any section of the population and protecting the vulnerable. We think that at the moment the law is about right.
Lord Geddes: My Lords, at what stage in the production process does such a game have to go for certification? Do all such games have to go for certification?
Lord Williams of Mostyn: My Lords, a game has to go for certification when it is at its final stage of production. It is then a question of whether the video game is exempt under the Video Recordings Act. If it is within one of the categories that I mentioned earlier, it loses its exemption and therefore needs to be classified.
Lord Swinfen: My Lords, can the Minister tell the House whether this video game or any similar game is available in any of Her Majesty's prisons?
Lord Williams of Mostyn: My Lords, I do not know whether any such games are in any of Her Majesty's prisons; but I do know that the Director General of the Prison Service, Mr. Richard Tilt, is keenly concerned that no video or video game should be shown to any inmate in any part of Her Majesty's prison estate if it has an inappropriate classification for the age of that inmate.

Religious Cults: Advice in Schools
2.53 p.m.
Baroness Sharples Baroness Sharples asked Her Majesty's Government:
Whether they will encourage schools to make use of advisers to raise awareness among secondary pupils of the techniques used to involve and retain young people in religious cults.
Lord Williams of Mostyn: My Lords, a number of schools already invite people with relevant experience to talk to pupils about religious cults. It is for schools and local education authorities to decide whether and, if so, how this should be done.
Baroness Sharples: My Lords, I thank the Minister for that Answer. But is he aware that many families are suffering extreme distress because youngsters in such cults are often ordered to disconnect themselves from their relatives outside and, even if they leave the cult, they may be followed and intimidated? What can be done about that? Will the recent Protection from Harassment Act help?
Lord Williams of Mostyn: My Lords, this is a worrying problem and one sympathises with any family that is broken up by the activities to which the noble Baroness refers. It seems to the Government that if a child is involved—that is, someone under the age of 18—sufficient protections are available at present. If the person involved is over the age of 18, there is the possibility of civil injunction or, as the noble Baroness rightly observed, using the protection against harassment legislation. If criminal acts are evidenced, I would urge anyone with knowledge of them to bring them to the attention of the appropriate authorities.
Lord Mackie of Benshie: My Lords, can the Minister tell the House whether the Moonies, as they are known, are on the increase, whether their numbers are static or whether they are, happily, declining?
Lord Williams of Mostyn: My Lords, I simply do not know. They seem to have mass weddings, so perhaps they are on the increase.
Baroness Blatch: My Lords, does the Minister agree that there is a growing body of evidence that some of the recruiting methods of such cults are causing great disquiet not only to those who look on from afar but also to the families and the young people involved? Although persons aged over 18 may be involved, is it not a good insurance policy to warn young people before they reach the age of 18 that such techniques exist? When I was a Home Office Minister, I found great reluctance in the Home Office to take this matter seriously.
Lord Williams of Mostyn: My Lords, I am sorry to hear that the noble Baroness experienced that in the Home Office. When she was a Minister, the noble Baroness answered a Question—I happen to have a copy
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with me—about related problems and rightly commented on the difficulty of definition, in that one man's religion is another man's cult. There are undoubtedly dangers for young, impressionable minds and it seems to the Government that it is appropriate in the relevant part of the syllabus, such as religious education, religious instruction and discussions on different religions and cults, to warn young people of the dangers. Again, there is a difficult balance to be drawn between the teaching of mainstream religion and the activities of proselytizing cults. Local education authorities, head teachers and those who provide religious instruction should be alert to that. By and large, I am in agreement with the sentiments expressed by the noble Baroness.
Lord Milverton: My Lords, does the Minister not agree that the danger of some of these so-called cults and religions is that those who are taken in by them lose their minds, in that they lose the capacity to reason and to think? That is a danger which all mainstream religious bodies and schools should point out. No person, young or old, should be forced to lose their mind or their capacity to reason and to think intelligently about matters of religion.
Lord Williams of Mostyn: My Lords, I agree with the sentiments expressed by the noble Lord. Apart from the responsibility of those who teach young people in schools, mainstream religion equally has duties which the noble Lord doubtless discharged in his pulpit in past years.
Baroness Macleod of Borve: My Lords, does the Minister know how many cults are currently operating in this country?
Lord Williams of Mostyn: No, my Lords. It is not a question that is capable of a rational answer because one man's religion is another man's cult and one man's orthodoxy is another man's doxy. I really do not think that I can offer a sensible or helpful answer.

Social Security Spending
2.58 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
Whether social security spending is more likely to be reduced by measures taken inside the Department of Social Security than by measures taken outside it.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, it is true that, as the noble Earl said, much DSS expenditure is demand-led, but that does not mean that government overall have no control over the level of that spending. This Government intend to focus their policies on reducing the need for social security, so that social security no longer pays the bill for social and economic failure. That is why we are investing in the New Deals for the unemployed, lone parents and sick and disabled people, to help them to

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make the most of their abilities. For such initiatives to be successful—I know that the noble Earl has previously been concerned about the point—they require co-ordinated initiatives across Government; in other words, joined-up policy, which we shall seek to deliver.
Earl Russell: My Lords, I thank the Minister for what she said about meeting needs. Does she agree that as governments cannot substantially reduce the number of people with disabilities, nor the rate of relationship breakdown, and as no government are ever likely to set out to reduce the expectation of life, the only way in which governments can significantly reduce the need for social security is by increasing the amount of employment, which is not the responsibility of the Department of Social Security and which cannot be achieved by reforming the welfare state?
Dealing specifically with welfare-to-work, am I right in believing that entitlement lasts for only six months? If at the end of that period the person cannot find a job, does he recover the right to benefit, does he get more welfare-to-work or is he handed over to the Salvation Army?
Baroness Hollis of Heigham: My Lords, the noble Earl makes several points and I shall do my best to answer them. He said that the Government could not affect the need for pensions, the level of disability or the relationship background. He is absolutely right, but that does not mean that the Government do not have the ability to help people meet those issues. For example, although pensioners are living longer, over a million of them fail to claim the income support to which they are entitled. We can help them to do that. We also know that inequality among pensioners is widening, which is why we seek to help more future pensioners go on to a new secure funded second pension.
Equally, it is true that society has become more sensitive to disability issues. But it is also the case that the number of people who claim incapacity benefit has trebled since 1979, not so much because people have gone on to benefit but because they are not coming off benefit since they do not have the opportunity to return to the labour market as they would wish. They can be helped in that regard by welfare-to-work.
Similarly, in the case of relationship breakdowns we can help by making the Child Support Agency deliver financial support and ensuring that society produces the child care that lone parents need. It is not black and white. We can take initiatives to ensure that marginalised groups return to the mainstream of society. I agree with the noble Earl that all these initiatives depend on the Chancellor of the Exchequer and the country delivering a sound and prosperous economy. We shall work to those ends.
Lord Higgins: My Lords, referring to external reductions in social security spending mentioned in the original Question, can the Minister clarify the position with regard to the so-called affluence test which received widespread publicity earlier in the week? If it was not simply a sound bite on the part of the Secretary of State, can the Minister tell the House what level of
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income the Government regard as "affluent"? Will that be dealt with in the Green Paper for which we have been waiting for a very long time? When does the Minister expect that document to be published?
Noble Lords: Short answer!
Baroness Hollis of Heigham: My Lords, a call has been made for a short answer. It would help not to have five questions to answer. However, I shall do my best. What we seek to do by affluence testing is to resolve the problem, which I am sure the whole House recognises, of how to target benefits without getting into some of the traps associated with means testing. I am sure that all noble Lords recognise that that is a problem. Affluence testing will allow us to reduce benefits to those who already have high incomes and are well able to support themselves. For example, it could be based upon an individual's tax position.
Lord Morris of Manchester: My Lords, in a recent interview on the Government's review of disability benefits, the Prime Minister spoke of fraud in the system now totalling £5 billion. How has that figure been computed? Is it based upon evidence from the DSS or a guestimate by the Treasury?
Baroness Hollis of Heigham: My Lords, I believe that the £5 billion was a combination of suspected fraud and possible confirmed fraud in respect of some of the earlier benefits, together with error. That figure emerged from a project undertaken by the previous government. At the moment we are in the middle of a benefit integrity project which has already received about 30,000 replies from disabled people. Thus far we have seen no cases of confirmed fraud. However, we have discovered that in about 20 per cent. of cases there are errors in payment—sometimes too much and sometimes too little. There is a problem to be addressed, but I am happy to confirm that the benefit integrity project has revealed no cases of confirmed fraud.
Lord Garel-Jones: My Lords, has the Minister's department been able to locate a single lady in the United Kingdom whose income is sufficiently high to generate the savings in benefit suggested by the Secretary of State? Can the Minister explain to the House the difference between affluence testing and means testing?
Baroness Hollis of Heigham: My Lords, the difference between affluence testing and means testing could be the difference between means testing and taxation. I am sure that noble Lords understand the difference between the two. As to maternity payments, your Lordships will be aware that there are one or two high flyers in this country who would be entitled, given the reported levels of earnings and salaries, to draw that level of maternity benefit. But there is a problem. Maternity benefit is paid in conjunction with earnings. However, insurance contributions are not concomitant with earnings. That was the difficulty upon which the Secretary of State quite properly focused.
Baroness Ludford: My Lords, can the Minister explain why the Government do not believe that the way to deal with affluent people receiving benefits is to raise the top rate of tax since at the moment people who earn £1 million a year pay the same top rate of tax as those who earn £27,000 to £30,000 a year?
Baroness Hollis of Heigham: My Lords, the Government are determined to abide by the manifesto commitments on which they were elected. One of those commitments was not to raise the personal levels of income tax.
Baroness Turner of Camden: My Lords, does my noble friend agree that the important point is not to save money in the social security budget but to ensure that people who really need money—in particular pensioners—get it when they require it? Can she explain what is being done in that connection?
Baroness Hollis of Heigham: My Lords, my noble friend is absolutely right to draw attention to the particular problems of pensioners. We know that, while on average pensioners have grown more prosperous over the past decade, the wealth of the top 20 per cent. has grown twice as much proportionately as that of the bottom 20 per cent. That is why we need to extend access to a secure, funded flexible pension to all pensioners, including those who may be carers and unable to work in the labour market. My noble friend is absolutely right. If we are to address the pensioner poverty of the future, we must ensure that all pensioners have access to a secure old age.
Lord Marlesford: My Lords, does the Minister realise that some of us on this side of the House believe that the Government are taking the right line in attempting to focus the limited available resources by way of benefit on those who need help? Indeed, some of us would regard it as immoral to give benefit to people who do not need it when that means not giving adequate benefit to those who do. Does the Minister agree that the following are two small steps in the right direct: first, that child benefit should be taxed; and, secondly, to end the nonsense whereby all pensioners in many cities, particularly London, have free public transport, and to do that by deeming it to be a taxable benefit?
Baroness Hollis of Heigham: My Lords, such questions as these land on the Minister's table and are continually under review.
Earl Russell: My Lords, I am sure that the Minister is aware that publicity from government sources has drawn attention to the fact that disability living allowance in some cases goes to people on above average income. Will the Minister bear in mind that without disability living allowance many of these people would never have earned the income, and that disabled persons and the Exchequer would equally be the losers?
Baroness Hollis of Heigham: My Lords, I well take that point. It was the previous government who introduced DLA, with our full support. I am well aware
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that DLA has transformed the lives and opportunities of many disabled people. I am sure the House agrees that we must ensure that the money goes to those who most need it in order that they can enter the mainstream.
Lord Stoddart of Swindon: My Lords, is my noble friend aware that many of the 9 million pensioners have been extremely concerned by recent newspaper reports that the state pension, which they believe they have paid for during their working lives, will be removed? Can the Minister give an absolute assurance—I hope that she will be able to—that existing pensioners in particular will not be affluence tested and will continue to draw the state pension, dynamised each year by the cost of living, for which they believe they have paid?
Baroness Hollis of Heigham: My Lords, yes, that was our manifesto commitment. We shall continue to be committed to it.

Wales: Agri-environmental Scheme
3.10 p.m.
Lord Roberts of Conwy Lord Roberts of Conwy asked Her Majesty's Government:
What consideration has been given to an all-Wales agri-environmental scheme.
Lord Williams of Mostyn: My Lords, my right honourable friend the Secretary of State for Wales announced in July 1997 that he would set up a new all-Wales agri-environmental scheme. A working group, comprising representatives of farming and environmental interests, has considered the details of management prescriptions for the new scheme. My right honourable friend will take decisions on its conclusions shortly.
Lord Roberts of Conwy: My Lords, I am grateful to the Minister for that reply. Does he agree that, with the more adverse farming conditions we now have, an agri-environmental scheme is becoming even more essential in order to keep economic and social stability in rural Wales? It seems that such schemes are necessary in many parts of rural England, judging by the Countryside Commission's latest report which appeared today.
Lord Williams of Mostyn: My Lords, I agree entirely with the noble Lord's proposition; namely, that farming has not merely an economic place but an important social place in the fabric of Welsh life. I am happy to say again how much importance the Government attach to that. There is no doubt that farming conditions in parts of Wales have been adverse through no fault of farmers or those who work with farmers. Obviously that adds weight to the initiative which the Secretary of State set out last July.
Lord Hooson: My Lords, throughout Wales one finds people in favour of an all-Wales agri-environmental scheme whose standards, one hopes,

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will follow those of the Tir Cymen pilot scheme. The real question relates to the amount of resources the Government are prepared to put behind such a scheme. A scheme that did not cover all Wales would be undesirable, because one would have bits and pieces here and there. An all-Wales scheme is bound to need a great deal of resources. Are the Government prepared to put the resources necessary behind the scheme?
Lord Williams of Mostyn: My Lords, the noble Lord is right. The matter needs to be looked at on an all-Wales basis. I agree that the Tir Cymen pilot scheme has produced invaluable lessons. As to funding, I cannot specify the precise allocation of funds which will be available. That depends, first, on the Secretary of State's consideration of the representations, and, more fundamentally, on the outcome of the Government's comprehensive spending review. I can, however, please at least one Member of your Lordships' House—my noble friend Lord Bruce of Donington—by pointing out that we shall have 50 per cent. of the money back from Europe.
Baroness Young of Old Scone: My Lords, perhaps I may press my noble friend a little further on the all-Wales scheme. It is a desirable development which I hope can be hastened. If we look back at some of the agri-environmental schemes in Wales we see them failing dramatically. We are at crisis point in Wales in terms of the natural environment, species and habitats, in particular. Can there be some examination in the announcement of the scheme of targeting towards those habitats and species which are in most pressing danger at the moment? We are close to losing many species from Wales, probably once and for all.
Lord Williams of Mostyn: My Lords, my noble friend has made an important point. The scheme's objective will be to protect and enhance the landscape, wildlife habitats, and historic features of the Welsh countryside by encouraging the introduction, with financial assistance, of environmentally beneficial farming practices, hope that answer fully meets my noble friend's concerns.
Lord Elis-Thomas: My Lords, will the Minister confirm that his right honourable friend the Secretary of State has received positive advice from the Countryside Council for Wales on the need for an all-Wales scheme? Will he ensure, along the lines suggested by the noble Lord, Lord Roberts of Conwy, that the level of remuneration in the scheme will be adequate to meet the current serious income crisis within the Welsh agricultural sector?
Lord Williams of Mostyn: My Lords, we have had useful representations from the Countryside Council for Wales as to the precise level of funding. I must rest upon my earlier answer, which is that it is dependent upon the comprehensive spending review.
Lord Mackie of Benshie: My Lords, will the Minister confirm that any agri-environmental scheme will be in addition to the protection given under the CAP at present?
Lord Williams of Mostyn: My Lords, decisions about precise funding mechanisms, their level and how they are to be deployed must await the Secretary of State's consideration of the representations made. As is well known, reform of the CAP is a priority of the Government during their presidency.
Lord Bruce of Donington: My Lords, my noble friend was kind enough to refer to me in connection with the UK's rebate in respect of the contribution that it makes to European funds. Is he aware that in 1996 £5 million of such receipts went to five individuals (£1 million each) in this country, and that the benefits received back from the Commission are not as evenly spread as I am sure he would wish?
Lord Williams of Mostyn: My Lords, I was aware of that figure in 1996. Plainly the regime then in power misplaced its priorities—to put it at its kindest. We aim to avoid the mistakes of our predecessors, there having been ample opportunity for us to learn from their errors.
Earl Peel: My Lords, I am sure that the Minister is aware that a great deal of money has been spent over the past decade or so on agri-environmental schemes. Will he assure the House that he is satisfied that the level of monitoring in place on those schemes has been sufficient to ensure that the schemes have been a success, because it seems to me that there is not much point in creating an environment if we do not have the specie that should go with it?
Lord Williams of Mostyn: My Lords, the noble Earl makes a sound point. There has been monitoring in Wales, about which I am presently speaking. Undoubtedly the Secretary of State will bear in mind such a consideration with great scruple and care when he considers the representations that have been made to him.
Lord Roberts of Conwy: My Lords, I appreciate that what the Minister can say on funding is limited, but can he at least give the House an assurance that progress on the implementation of the scheme will not be held up by the Government's inability to spend European funds, because of the Treasury's intransigence?
Lord Williams of Mostyn: My Lords, I have never before heard it suggested that the Treasury has ever been intransigent. I am quite shocked, and I shall sit down quite soon. The progress of the arrangements will depend significantly on how quickly we obtain approval from Europe, not on how quickly we obtain approval from No. 11.

Education (Student Loans) Bill
Report received.

Greater London Authority (Referendum) Bill
3.20 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved. That the House do now resolve itself into Committee.—(Baroness Hayman.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Referendum]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 1:
Page 1, line 7, at beginning insert ("Subject to subsection (1A) below,").
The noble Baroness said: In moving Amendment No. 1, I shall speak also to Amendments Nos. 2 and 5. They deal with the anxiety being expressed from all sides of this Chamber and outside with regard to the need for the electorate who will be voting in the referendum on 7th May to know as fully as possible the details of the proposals on which their views will be sought.
I do not seek to suggest that the Government will not stick to their assurances, but I understand that the White Paper setting out the detail of their proposals will be published towards the end of March, six weeks before the referendum. The Minister nods in confirmation. Ideally, the referendum would take place after a Bill dealing with the substantive proposals had been through the scrutiny of both Houses of Parliament. We on these Benches do not wish to delay the referendum, but we believe that to have a referendum without having as much detail as possible is second best.
My Amendment No. 5 proposes a compromise, although that may not appear to be the case. I suggest that the Bill proposed by the Secretary of State—I put it in those terms because I do not want it to be argued that it could be any old Bill; it is a Government Bill—should be published at least six weeks before the date of the referendum or, more accurately, that the referendum must he six weeks after the date of that publication. I have chosen the period of six weeks to fit in with the arrangements for the publication of the White Paper. My underlying proposal is that the Bill should be annexed to the White Paper.
We often hear that the devil is in the detail between the White Paper proposals and the legislation. The detail regarding the powers of the proposed authority and, crucially, the relationship between the mayor and the assembly and the controls on the powers of each, is fundamental to the decisions which Londoners will be asked to reach on 7th May.
It is arrogant for the Government to say that their proposals will go through unchanged. However, I am enough of a realist to recognise that with their Whip in the House of Commons that is probably factually accurate. I believe that the voters need to know precisely the detail of the Government's proposals. We have been told that a summary of the White Paper will go to every household in London, but I do not believe that a summary can deal adequately with detail such as the mechanisms for controlling the mayor or throwing him out should he get too big for his boots.
The amendment would not delay the referendum, but it would lead to a more useful and appropriate referendum so that the people of London know on what their views are being sought. I beg to move.
Lord Bowness: I shall speak to Amendments Nos. 1, 2 and 5. I give the Committee notice that, depending on what is said during the debate and by the Minister in reply to Amendment No. 1, I may press Amendment No. 2 when it is called.
Sadly, if the Bill is passed unamended, we shall be seeking the approval of the people of Greater London for a government proposal which at the time we are discussing it has little form or substance. They will be invited to vote for an idea, not a proposal. The point has been made in debates on other Bills that it is a highly unsatisfactory way of proceeding to seek the views of the people in a referendum without their having the details before them so that they can see what is proposed. Indeed, the Opposition Benches require answers to the questions which were posed by my noble friend the Leader of the Opposition and my noble friend Lord Mackay of Ardbrecknish about the conduct of referenda. We shall return to that issue and shall press the Government for answers.
The Green Paper on this issue, with its 60 or more questions, gives an indication of how complex the governance of London may be. I submit that people are entitled to see the detail before being asked to commit themselves. Indeed, by seeking a positive vote in a referendum in these circumstances, the Government are asking for carte blanche to do precisely what they like when enacting the legislation.
As the noble Baroness, Lady Hamwee, said, we are promised a White Paper in March after consultation on the Green Paper. But even that is not satisfactory. It assumes—and it is a big assumption which ought not to be made—that Parliament will enact the legislation to implement the White Paper without amendment. It assumes that the Government will not at some stage change their mind over some significant matter. However, the amendment standing in my name does not ask for the legislation to be in place but merely to be published, mindful as we are of the Government's stated desire to make progress with the proposal. If the draft legislation is to be ready in time for the referendum the Government have nothing to fear from such amendments and can accept them.

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It is extremely relevant to the people of London when deciding how to vote that they have before them details and not questions or merely the results of consultation. Some of those matters are critical: for instance, the method of election of members of the assembly or of the mayor; the functions of the mayor and the assembly; its financing; whether it is to be tax raising; the powers which will come from central government to the mayor and the assembly; and what will go from the boroughs to the assembly. Planning is vitally important. All those issues can colour the attitude of people towards the proposals. Given the unfortunate mix of powers which existed between the old Greater London Council and the boroughs, people will wish to pay considerable attention to those issues.
If the amendments are accepted there will be some safeguard of a reasonable period before the vote when people will have the details before them and can give them due consideration.
Baroness Miller of Hendon: Although the Conservative Party is proud of the fact that after 18 successful years London is now regarded as probably the greatest capital city in the world, it accepts that nothing stands still. Therefore, this is an appropriate time to consider how we can modernise and reform our city for the challenges of the 21st century. However, asking Londoners to consider the changes before they have the details of them is the wrong way around.
We know that there will be a White Paper in the spring, but we do not know what will be in it. Indeed, the Government admit that they have not yet decided on the details. As was said in the other place and by the noble Baroness, Lady Hamwee, when speaking to Amendment No. 1—I am speaking to Amendment No. 2—the devil is in the detail. At the very least, we must ensure that Londoners have sufficient time to consider the details before the referendum on 7th May.
This very simple amendment seeks to do just that. It will ensure not only that those details can be examined closely, but also that the Government meet the deadline for the production of the Bill. I can see no reason for a government committed to openness and transparency to refuse the amendment.
3.30 p.m.
Baroness Hayman: I shall start these proceedings on a conciliatory note. We share the concern expressed by both Front Benches in proposing these amendments that we should ensure that those who have a right to vote in the referendum are well informed about the proposals for new London government.
We have already demonstrated our commitment to facilitating a proper debate. We printed 1 million summaries of the Green Paper to ensure that all Londoners who were interested were aware of the issues. These were distributed throughout London—through an insert in the Evening Standard, through post offices, libraries, local authorities, via many London organisations and, on demand, by post.
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Ahead of the referendum we shall ensure that every household gets a neutral and factual summary of the White Paper, setting out the proposals on which they will be asked to vote, as well as other initiatives to ensure that everybody knows what the issues are.
The questions posed by the noble Lord, Lord Bowness, will be answered in clear terms in the White Paper. The White Paper will he published during or before the week commencing 23rd March, well ahead of the referendum. That will allow six weeks of full debate on our proposals—sufficient time for all the issues to be explored. That is the proper order to follow. It follows the clear precedent established in Scotland and in Wales for a pre-legislative referendum. It has always been clear that that was what was being proposed in relation to the referendum on London government.
I must say to the noble Baroness, Lady Hamwee, that I find it rather curious that the Liberal Democrats should have tabled these amendments because in Committee in another place the Liberal Democrat spokesman, Mr. Simon Hughes, argued in terms that that would not be an appropriate way forward. He said that it would not be right and that they were not arguing that it is possible to produce a Bill before the referendum. He accepted that it would slow down the proposals and that he did not believe that to be an appropriate sequence of events. Anyone can change their mind and I understand that the noble Baroness's party has done so. But we do not believe that that is a sensible way forward.
Publishing a Bill which would be a highly complex piece of legislation, drafted in a highly technical style, would not be more comprehensible for ordinary Londoners going to the polls to vote on a referendum than a clear and comprehensive White Paper. We shall publish detailed proposals in the White Paper and Londoners will have the opportunity to consider them in the language not of those of us who are legislators but of those who are voters before they come to vote.
If Londoners vote yes, it will then be for Parliament to scrutinise the legislation, taking account of the content of the White Paper and the verdict of the people of London. The requirement to publish a Bill before the referendum would mean unnecessary complication and delay. It would do little or nothing to assist Londoners in assessing the substance of the proposals. People have waited far too long happily to tolerate further delay.
The dangers, if such are dangers, of the proposals that the Government put forward being changed apply in the same way to a Bill as they do to a White Paper. Parliament is supreme and has the opportunity and duty to scrutinise legislation and to change it. Publishing a Bill does not mean that the proposals in it are set in stone before they have become statute. It would do nothing to aid informed debate, which is what we all want from the proposals which the Government put forward.
As the spokesman for the Liberal Democrats recognised in another place, these amendments would put at risk the proposed referendum date of 7th May and with it the benefits to be gained from combining the poll with local government elections. That could result in

945
additional public expenditure of some £2 million to £3 million and risk reduced voter turnout. That could not be in the interests of democracy, the taxpayer or local authorities.
We have no interest in limiting debate on our proposals. We are sure that they will command the support of the majority of the people of London. But we do not believe that publishing a detailed, lengthy and complex technical document—namely, a Bill—would do anything to promote discussion among the voters of London. On that basis, I ask the noble Baroness to withdraw her amendment.
Baroness Carnegy of Lour: Before the noble Baroness decides what she is going to do with her amendment, perhaps I may ask the Minister whether she has had an opportunity to read yesterday's discussions in another place in Hansard. I expect that because she has been preparing for this Bill she has not done so. However, other noble Lords may have read those discussions. I beg the Minister to do so.
In the course of the debate yesterday (at col. 79 of the Commons Hansard) Mr. Tam Dalyell, the Member of Parliament for Linlithgow, made a long speech. It was carefully thought out and constructed. It demonstrated a number of political and practical problems that there are in relation to the Scottish Bill, many of which simply were not visible before the Bill was published. It is quite clear to anybody who reads that copy of Hansard that a pre-legislative referendum revealed little or nothing to the people of Scotland.
The Government should learn from that. They have made a great problem for themselves in relation to that Bill, and I am one of those who most regrets it because it will be extremely difficult to sort that out in Committee in another place and at later stages. Will the Minister convey that message to her colleagues, because a pre-legislative referendum is not quite the simple, clever idea which the Government seem to believe?
Baroness Hayman: I am sure that my colleagues will take note of the noble Baroness's remarks, although my impression was that the issues in relation to Scotland and Wales were well understood and debated as regards the pre-legislative referendums. I have not read Hansard because I have been preparing for this afternoon's debate. I believe that I heard something like the speech which the honourable Member made when I was in another place in 1978. The issues are not new.
Baroness Hamwee: First, I should make clear, as I made clear in introducing the amendment, that we are not seeking to slow down the process. I quite deliberately chose the period of 42 days because that reflected the Government's own timetable. It is important to recognise that the procedure should not be slowed down. That matter was made clear throughout this party's comments on the Bill.
My honourable friend the Member for Southwark, North and Bermondsey and I, as he has said, want to go on talking and finding the right and best way to deal with this referendum. The Minister seems to be saying
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that it is not possible or practicable for a Bill which reflects the White Paper to be prepared and published at the same time as the White Paper. She did not actually say that, but that seemed to underlie her remarks.
I accept that a Bill can he changed. Had I wished to see a purely post-legislative referendum in the sense of an Act which would come into effect only if the referendum gave the answer yes, I should have proposed that. This amendment seeks to find a mechanism which will give as much confidence as possible not just to ordinary Londoners, who of course would not read however many pages of legislation, but to the many experts outside this House and another place who will contribute to this debate and who I suspect will respond very quickly when faced with a Bill.
The combination of the White Paper and the Bill would allow that level of informed debate—much more information than can be obtained in a summary to go through a letter-box—to take place. Perhaps I may put it this way, it would also mean that the Government would not be subject to the suggestion that parts of the White Paper had slid over the more difficult areas of the proposal. I see that the Minister wishes to respond. I give way.
Baroness Hayman: Perhaps I may just respond to those points. I share the noble Baroness's wish that we should have informed debate at all the appropriate levels. Indeed, I very much welcome the prospect of debate in this Chamber and in the other place on the proposals in the White Paper. Obviously that is a matter for the business managers in both places, but I believe that we should look at the precedent as regards the Referendums (Scotland and Wales) Bill. If we are to meet the timetable that we have set ourselves—and, indeed, we want to publish the White Paper as soon as possible—we must recognise that drafting a White Paper is quite complicated in terms of putting together all the responses to the consultation document. The parliamentary draftsmen simply cannot turn that information into a draft Bill contemporaneously with the publication of the White Paper. The weeks that that would take would inevitably delay the Bill. I accept, of course, that the noble Baroness does not wish to do so.
Baroness Hamwee: I am grateful for the Minister's comments. They have indeed helped take the matter a little further. If we can discuss between now and the next stage of the Bill how a debate informed by the White Paper may take place before the referendum, that would certainly enable some of us to review our comments on the process. I hope that the Minister will be able to lean on the business managers in that respect to enable such a debate to take place. On the basis that there is a possibility of such discussions taking place within the next few weeks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bowness Lord Bowness moved Amendment No. 2:
Page 1. line 8, after ("prescribe,") insert ("but not less than eight weeks after publication of a Bill providing for the establishment of a Greater London Authority and the election of a mayor for Greater London.").
The noble Lord said: I have already spoken to this amendment, but I wish to maintain it because I believe that there is a matter of principle involved. I am most grateful to the Minister for what she said in response this afternoon. I believe the noble Baroness understands our concerns. However, as I said, there is a point of principle at stake; namely, that we have already compromised by asking for a Bill. We have not asked for legislation to be enacted and subsequently approved by a referendum.
We accept that there is a timetable to be met. Indeed, I believe that we should make every effort to get the Bill published. As the noble Baroness, Lady Hamwee, said, there will be many people at all levels who will want to discuss the legislation, the detail of which will be very considerable. In fact, it is the detail which I believe may change people's views one way or the other on the proposal. It is perhaps not appropriate this afternoon to have a debate on that detail. However, in the light of the experience of previous county-wide government in London and the problems that arose with the division of power, if people were to see such problems being repeated they may well take a different view about the Government's proposal.
With the greatest respect, it is not the same thing to say that a White Paper enables discussion about that kind of detail to take place. It is on the principle that everyone at whatever level of discussion is well informed that I want to see a Bill published, even though that is not perfect. It would enable people to study the detail of the proposals. That is why I wish to move the amendment. I beg to move.
Baroness Hayman: I urge Members of the Committee to reject the amendment. We very much want proper and informed debate to take place. I raised this matter with the noble Lord, Lord Bowness, on a previous occasion. I believe that he is lecturing the Government about the proper amount of consultation and detail which should be available before changing London government. We did not have a great deal of debate about whether Londoners should see the Bill before they voted in a referendum for the abolition of the GLC.
Lord Bowness: The Minister raised that point on Second Reading. At that time, the Conservative Party fought an election and its commitment was to abolish the GLC. Indeed, we fought a general election on the issue. However, the Conservative Party did not then say that it would submit its proposals to a referendum and that it would seek the approval of the people of Greater London. The Conservative Party chose not to take that route whereas this Government have chosen to do so. Therefore, I believe that we are entitled to ask that people should have the detail of the proposals before they express their views.
Baroness Hayman: Indeed, this Government recently fought an election saying that they would bring forward a Bill to recreate strategic government in London and that that authority would comprise a directly-elected assembly with a directly-elected mayor.
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We also said that we would introduce a Bill and have a referendum on those proposals which would be put before the people of London. We are trying to keep to that precise commitment. The noble Lord's amendment would wreck that process. It would mean that we could not combine the poll for local government in London and the referendum, which has been accepted as the most efficient way to proceed. As I said, it is a wrecking amendment; it is not about having proper debate to which we are committed. I therefore urge Members of the Committee to reject the amendment.
3.46 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 128; Not-Contents, 122.

Division No. 1

CONTENTS

Aberdare, L.

Garel-Jones, L.

Addison, V.

Gilmour of Craigmillar, L.

Ailsa, M.

Gisborough, L.

Aldington, L.

Gormanston, V.

Alexander of Tunis, E.

Gray of Contin, L.

Alport, L.

Harmar-Nicholls, L.

Ashbourne, L.

Hayhoe, L.

Astor of Hever, L.

Hayter, L.

Belhaven and Stenson, L.

Higgins, L.

Beloff, L.

Holderness, L.

Belstead, L.

HolmPatrick, L.

Berners. B.

Home, E.

Biffen, L.

Hood, V.

Blatch, B.

Howell of Guildford, L.

Bowness, L.

Hunt of Wirral, L.

Brabazon of Tara, L.

Hurd of Westwell, L.

Braine of Wheatley, L.

Ironside, L.

Bridgeman, V.

Jenkin of Roding, L.

Bridges, L.

Johnston of Rockport, L.

Bruntisfield, L.

Jopling, L.

Burnham, L.[Teller.]

Kimball, L.

Cadman, L.

Knight of Collingtree, B.

Campbell of Alloway, L.

Knollys, V.

Campbell of Croy, L.

Lang of Monkton, L.

Carnegy of Lour, B.

Layton, L.

Chalfont, L.

Lyell, L.

Charteris of Amisfield, L.

McColl of Dulwich, L.

Chesham, L.

Macleod of Borve, B.

Clanwilliam, E.

Marlesford, L.

Coleridge, L.

Mersey, V.

Cope of Berkeley, L.

Miller of Hendon, B.

Craig of Radley, L.

Milverton, L.

Crickhowell, L.

Monro of Langholm, L.

Cumberlege, B.

Monson, L.

Davidson, V.

Montgomery of Alamein, V.

Dean of Harptree, L.

Mountevans, L.

Denbigh, E.

Munster, E.

Denham, L.

Naseby, L.

Denman, L.

Nelson, E.

Dixon-Smith, L.

Newall, L.

Downshire, M.

Noel-Buxton, L.

Elles, B.

Norrie, L.

Elliott of Morpeth, L.

Northesk, E.

Erne, E.

Onslow of Woking, L.

Feldman, L.

Oxfuird, V.

Ferrers, E.

Palmer, L.

Fookes, B.

Peel, E.

Gage, V.

Perry of Southwark, B.

Gainford, L.

Pilkington of Oxenford, L.

Gardner of Parkes, B.

Rees, L.

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Renfrew of Kaimsthorn, L.

Shaw of Northstead, L.

Renton, L.

Smith, L.

Renton of Mount Harry, L.

Stodart of Leaston, L.

Renwick, L.

Strange, B.

Richardson, L.

Strathcarron, L.

Roberts of Conwy, L.

Strathclyde, L. [Teller.]

Romney, E.

Sudeley, L.

Rotherwick, L.

Thomas of Gwydir, L.

Rowallan, L.

Trefgarne, L.

Saltoun of Abernethy, Ly.

Trumpington, B.

Sandford, L.

Vivian, L.

Seccombe, B.

Westbury, L.

Selkirk of Douglas, L.

Wilcox, B.

Sharples, B.

Young. B.

NOT-CONTENTS

Allen of Abbeydale, L.

Jeger, B.

Amos, B.

Jenkins of Putney, L.

Ampthill, L.

Judd, L.

Annan, L.

Kennedy of The Shaws, B.

Archer of Sandwell, L.

Kilbracken, L.

Ashley of Stoke, L.

Kintore, E.

Barnett, L.

Levy, L.

Bassam of Brighton, L.

Lockwood, B.

Berkeley, L.

Lofthouse of Pontefract, L.

Blackstone, B.

McCarthy, L.

Blease, L.

McIntosh of Haringey, L. [Teller.]

Borrie, L.

Bruce of Donington, L.

Mackie of Benshie, L.

Burlison, L.

Mallalieu, B.

Callaghan of Cardiff, L.

Marsh, L.

Carmichael of Kelvingrove, L.

Mason of Barnsley, L.

Carnarvon, E.

Merlyn-Rees, L.

Carter, L.

Merrivale, L.

Castle of Blackburn, B.

Milner of Leeds, L.

Chandos, V.

Mishcon, L.

Cledwyn of Penrhos, L.

Molloy, L.

Clinton-Davis, L.

Monkswell, L.

Cocks of Hartcliffe, L.

Morris of Castle Morris, L.

Curric of Marylebone, L.

Morris of Manchester, L.

Dahrendorf, L.

Nicol, B.

David, B.

Orme, L.

Desai, L.

Peston, L.

Dixon, L.

Phillips of Ellesmere, L.

Donoughue, L.

Pitkeathley, B.

Dubs, L.

Plant of Highfield, L.

Eatwell, L.

Ponsonby of Shulbrede, L.

Evans of Parkside, L.

Puttnam, L.

Farrington of Ribbleton, B.

Ramsay of Cartvale, B.

Gallacher, L.

Randall of St. Budeaux, L.

Glenamara, L.

Rea, L.

Gordon of Strathblane, L.

Rendell of Babergh, B.

Gould of Potternewton, B.

Renwick of Clifton, L.

Graham of Edmonton, L.

Richard, L. [Lord Privy Seal.]

Gregson, L.

Sandwich, E.

Grenfell, L.

Sefton of Garston, L.

Halsbury, E.

Serota, B.

Hardy of Wath, L.

Sewel, L.

Haskel, L.

Shannon, E.

Hayman, B.

Shepherd, L.

Henderson of Brompton, L.

Simon, V.

Hilton of Eggardon, B.

Simon of Glaisdale, L.

Hogg of Cumbernauld, L.

Simon of Highbury, L.

Hollis of Heigharn, B.

Strabolgi, L.

Hooson, L.

Symons of Vernham Dean, B.

Howell, L.

Taylor of Blackburn, L.

Howie of Troon, L.

Taylor of Gryfe, L.

Hoyle, L.

Tenby, V.

Hughes of Woodside, L.

Thomas of Macclesfield, L.

Hylton-Foster, B.

Turner of Camden, B.

Ilchester, E.

Varley, L.

Irvine of Lairg, L. [Lord Chancellor.]

Wallace of Coslany, L.

Watson of Invergowrie, L.

Islwyn, L.

Weatherill, L.

Jay of Paddington, B.

Wedderburn of Charlton, L.

950

Wharton, B.

Williams of Mostyn, L.

Whiny, L. [Teller.]

Winston, L.

Williams of Elvel, L.

Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.
3.57 p.m.
The Chairman of Committees (Lord Boston of Faversham): I point out to the Committee that if Amendment No. 3 is agreed to I cannot call Amendment No. 4.
Baroness Ludford Baroness Ludford moved Amendment No. 3:
Page 1, line 9, leave out from ("Authority") to end of line 10.
The noble Baroness said: I wish to move Amendment No. 3 standing in the name of my noble friend Lady Hamwee. This is really a linking amendment, linking the group of amendments that we have just discussed and the two amendments that we shall discuss which concern a two-question referendum. This amendment, in striking out the words which specify what a greater London authority should be composed of, seeks to do two things. First, we should not in this Bill—which concerns the holding of a referendum—prejudge what the legislation will finally produce. Secondly, we should not impose a take it or leave it package. That links on to the question of the referendum.
This amendment, in seeking to remove those words, is in a sense consequential on the amendments we have just discussed and Amendments Nos. 6 and 8. As I have said, we should not prejudge the legislation and we should not prejudge what people will have a chance to vote on in the referendum. I beg to move.
Baroness Hayman: The noble Baroness, Lady Ludford, described the amendment as a linking, consequential amendment. That is not the Government's view of it. It amends Clause 1(1) of the Bill. The Bill states—at its heart is the Government's proposition—that we shall put a referendum to the people of London to establish a greater London authority,
"made up of an elected assembly and a separately elected mayor".
That is the proposition that was clear in our manifesto; and it is the proposition which we are committed to putting to the people of London.
In effect, the noble Baroness seeks to take out the guts of Clause 1 of the Bill because she recognises that it goes to the core of the legislation and of the Government's belief as to what is the right form of government for London.
Perhaps at this point it might be helpful to the Committee to explain—it is a theme that will recur throughout the debate—why the Government believe that having both a mayor and an assembly, separately elected, is the right composite package of government for London. We favour a mayor who will provide firm leadership, set the strategic direction and be able to get things done. At home and abroad the mayor will represent London's interests and aspirations. But checks and balances are important. The assembly is equally essential to provide a proper framework of accountability, and to scrutinise the mayor's plans and strategies and their delivery.

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This is not a package from which the Government believe that it is right that we should pick and choose. A mayor alone, unfettered by an assembly, would wield too much power; and an assembly alone would not give London the focus and the leadership it desperately needs. Together, the mayor and the assembly are the best deal for London. We are convinced that, unlike the half-considered alternatives offered by some, it will work. For London to be governed properly it is necessary to have both the mayor and the assembly coming together to create the authority. That is why we have put forward a clear, unambiguous, comprehensive, single question that allows people to express a view on that package of government being proposed for London.
I have made it clear that we favour a mayor and an assembly as a complete framework: a mayor to provide a voice for London and to articulate its interests at home and abroad; and an assembly to provide an essential framework of accountability. The two elements are the cornerstone of our proposals. To remove them from the face of the Bill would be to wreck the purpose of the Bill. I urge the noble Baroness to withdraw the amendment.
Baroness Gardner of Parkes: Perhaps the Minister will explain this point to me. The noble Baroness said that the two elements must come together. She implies, presumably, that the assembly will monitor the financial position as much as anything else. But where will the question be put to the people of London as to whether or not the authority should have tax-raising powers? Where will the money come from?
Baroness Hayman: We made it clear that we shall not propose additional tax-raising powers for the assembly. That was made clear in the Second Reading debate; it has been made clear in another place; and it will be spelt out once again in the proposal. I am giving that assurance. The disposable budgets of which the mayor will have control are the budgets of the functions which will be taken over by the strategic authority.
Baroness Gardner of Parkes: Perhaps the Minister will expand a little on that. What does she mean by no additional expenditure? Is it envisaged that there will be a precept on local authorities, or will the funding come directly from the Government? It is not clear from what she said.
Baroness Hayman: The programme budgets for the functions to be undertaken by the authority will be passed to the new greater London authority. We are making it clear that unlike, for example, the Scottish parliament, there will not be new tax-raising powers for the greater London authority, but the detail will be spelt out. Amendment No. 3 removes the two component parts of any authority and provides that the Bill will create only a greater London authority.
Lord Campbell of Alloway: Does not the amendment avoid a pre-emption? As the Bill stands, Clause 1(1) states that the authority will be,
"made up of an elected assembly and a separately elected mayor".
952
I shall support Amendment No. 7. I am asked to do so by the Council of the Royal Borough of Kensington and Chelsea. Let us suppose that Amendment No. 7 is carried. Two questions are put and it is decided that there shall be an elected assembly and not a separately elected mayor, or vice versa. Is it not far better to accept the amendment, which does no violence to the intendment of the Bill, and to leave the question open for the decision of this House as to whether, as in the case of Scotland, we should have two questions and not one?
It is right that the Labour manifesto, which I read often, makes the point that there will be an elected assembly and a separately elected mayor. But it does not make the point that people shall not be able to have one without the other. I merely ask that perhaps this point might receive consideration.
Baroness Hayman: I am grateful for the spirit in which the noble Lord puts forward his argument. It is a point to which we shall return during the course of our debates in Committee.
This is firmly at the core of the Government's position. We believe that the two elements which would form together the Greater London authority are inseparable, and therefore that is what the Bill provides. A breach of that principle then allows for the possibility of expressions of support for constitutional settlements that the Government do not believe they could responsibly implement. That is why—we shall come to the debate again and again—we do not believe that two questions are sensible.
There were indeed two questions in the referendum for Scotland, but not two questions about two variants of the constitutional body that would be set up. The additional question related to tax-varying powers. That was an issue to which the noble Baroness, Lady Gardner of Parkes, referred. But there were not two alternatives about whether there should be a Scottish parliament. The whole parcel of constitutional reform was covered by one question.
In Wales, where there was no proposal for tax-varying powers, there was only one constitutional proposal, to which assent was or was not given.
Lord Campbell of Alloway: I accept 100 per cent. what the Minister says: that that is what the Government want. But what is the object of having a referendum geared to produce what the Government want? If one has a referendum one wants to find out what the people want. I take the noble Baroness's point but I hope that she can take mine.
Baroness Hayman: I understand what the noble Lord says. As I say, we shall return to the issue. The point I seek to make is that the referendum tests support for the Government's proposal. It is not a piece of market research to see which of a number of variant constitutional settlements might meet with support from various groups. I suggest that that would not be responsible government. We have never pretended that the proposal is about putting forward a wide range of

953
constitutional settlements. It is about testing the support of the people of London for a proposition which the Government believe is a workable, responsible, creative and effective constitutional settlement for the nation's capital.
Lord Wallace of Saltaire: I wish to express my increasing anxiety as to the constitutional propriety of the Government's intentions. The heart of this Bill is about holding a referendum. As the noble Lord has just remarked, it is about consulting the people. The Minister seems to be making two other, incompatible arguments. One is that this proposal was in the Government's manifesto and therefore, on the old doctrine of the mandate, it should go through and there is no need whatever to hold a referendum. The second is that we are allowed to have a referendum only on what the Government want. The Minister referred to a new constitutional settlement. My party believes that Britain should be moving towards such a new settlement. But if we are to be told that the only new constitutional settlement we can have is the one that was written into the Labour Party manifesto, then we are rather unhappy about the proposal.
The Minister referred to, "the clear precedent of Scotland and Wales". Taking that as a precedent, in the case of Scotland the Government insisted on a two-question referendum. We need some rather clearer rules about referenda. This will not be the last referendum to be held under this Government. We may anticipate more. My party has a certain interest in the referendum that will follow the report of the Jenkins Commission on proposals for forms of proportional representation. If I understood the Minister correctly and there is no need, for example, to make clear when a referendum is held what exactly Parliament is to be asked to do, and it is possible to return to the proposals and change them, I presume that means that following a referendum the Government could change in some substantial detail what had been put to the people.
There is a distinction between referenda and plebiscites. Plebiscites are what governments do to demonstrate the illusion of consultation but to get their will. Referenda are real consultations with the public. We have moved a little bit away from parliamentary sovereignty in accepting referenda, but only a little bit. The Government are now telling us that the people of London are to be consulted a little bit, but only in regard to one particular package.
I have no doubt that the popular wish in London will be overwhelmingly to have an elected assembly. The case for a directly elected mayor has to be made. I am not entirely sure which line I take on the matter. It would be highly desirable to have a referendum in which the Government would have to make that case to the people of London. It would be an educating process, an encouragement of popular participation. That is what I thought New Labour was supposed to be about: educating the public, involving the public and persuading the public.
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I suggest that, as many of your Lordships will have noted well, there are two aspects to New Labour's approach to a new constitutional settlement. There is the side of Labour which is decentralist and in favour of more open democracy and more participation; and there is another side which wants to maintain central control, to have an appearance of consultation and to have a government who tell us what the people think as they regard themselves as representing what the people think.
The constitutional dimensions of sliding towards referenda on terms whereby only the Government decide what questions are allowed to be asked are extremely dangerous. I therefore hope very strongly that in the course of the Committee and Report stages we shall change the nature of the way in which the Government define the purpose of referenda, which seems to be the underlying purpose of the Bill.
4.15 p.m.
Lord Mishcon: If I over-simplify matters, may I be forgiven? I have a very simple mind. Would any government be responsible if they put forward a proposal—referendum or no referendum—which gave dictatorial powers to one individual without any responsibility on that individual to account to an assembly such as is suggested? Any government who did so would be wholly irresponsible.
When it comes to the question of a referendum, with true democratic backing for any such principle, the Government say this: "We think it is a good idea to have a Greater London Assembly, together with a mayor. People, do you agree with us, or don't you?" That is the simple position as I see it; and I support it.
Lord Wallace of Saltaire: The major innovation here is not the elected assembly which will, after all, reverse the extraordinarily ill thought through abolition of the GLC by Mrs. Thatcher. The major constitutional innovation is having a directly elected mayor for what is in effect a regional authority. The Government need to carry the population with them on that matter. The case needs to be made. If we are moving towards a more participatory democracy, I suggest that the case should be made in a two-question, rather than a one-question, referendum.
Lord Mishcon: I must not conduct a debate across the Floor, even though it is very tempting when the noble Lord makes any utterance to say in polite terms that one disagrees. He put forward a point of view and I tried to simplify the issue.
Baroness Gardner of Parkes: I always think highly of the comments made by the noble Lord, Lord Mishcon. However, in this instance I believe he has misinterpreted the amendment. It merely seeks to delete certain words from the Bill. It does not seek to say that there should only be a mayor, or only an assembly. It simply seeks to terminate the clause after the words,
"a referendum shall be held on the establishment of a Greater London Authority".

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That would mean that a decision could be made at any stage as to what to put to the people—whether to put the matter to them as a package or as two separate items. But deleting those words from the clause does not automatically rule out still having an elected assembly and an elected mayor if that is what the people want. I do not agree with the noble Baroness, Lady Hayman, that one is essential to the other. I understand her party-political viewpoint, but I do not agree with it. I believe that the matter should be put to the people to decide. However, I believe that the noble Lord, Lord Mishcon. is mistaken in believing that by ending the clause at this particular point we should be ruling out any options. I do not believe that to be the case.
Baroness Hamwee: I had thought this to be a rather innocent little amendment. It was drafted by me some time between Christmas and New Year when I realised that it was a requirement if we were to debate whether there should be one question or two, and to that extent it is consequential, as my noble friend described it. However, it has provoked something of an over-reaction. The noble Baroness, Lady Gardner of Parkes, and the noble Lord, Lord Campbell of Alloway, are absolutely right in their interpretation of the objective of the removal of these words; that is, not to pre-empt the subsequent provisions within the Bill.
To respond to the comments of the noble Lord, Lord Mishcon—whose disingenuous description of himself as a simple fellow was not believed by anybody—the noble Lord rightly posed the question as to whether the Government could properly give Londoners the opportunity of voting for what he described as an individual having dictatorial powers without the restraint of an assembly. That is the very point that we on these Benches seek to have debated as fully as possible. It is not only the possibility of dictatorial powers in one individual about which we are concerned. We are also concerned about the powers of the assembly to restrain that potential dictator. That is why we spoke to the previous amendment and why we seek a debate on the two elements. We shall come to that later in the Committee stage. We wanted a debate on the two elements so that that restraint can be well understood and accepted by people as being effective and sufficient. We happen to believe that the provision is unlikely to achieve that.
Lord Campbell of Alloway: Perhaps I may ask a question of practical construction. I accept that if we knock those words out we avoid pre-emption. I tried to say so when I first rose. But is it not possible to have an elected assembly without an elected mayor? Let us think about it for a moment. We have one Lord Mayor; we do not have to have another mayor. If people want an elected assembly, cannot they have one without having to have an elected mayor?
The noble Lord, Lord Mishcon, makes a good point: we cannot have an elected mayor without an elected assembly. Why cannot we have an elected assembly without an elected mayor? That is what I do not understand.
Baroness Hayman: If the noble Lord, Lord Campbell, had listened to the comments of the noble
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Lord, Lord Archer of Weston-Super-Mare, he might have heard that there is a different view on his Benches about the possibility of the combinations which might be beneficial to London.
The noble Baroness, Lady Hamwee, said that it had seemed an innocent little amendment. I understand why she and her colleagues thought that it was simply a paving amendment. However, the debate we have had on it has started to illuminate those issues to which we shall return on the two questions. They are the fundamental issues to which my noble friend Lord Mishcon referred. They concern the nature of the exercise in which we are involved in setting up the referendum and they are also the issues raised by the noble Lord, Lord Wallace.
It is absolutely correct that a policy that is in a party's manifesto could be implemented without any referendum simply through legislation. That is how we conduct ourselves in most matters of policy. Why the Government get themselves into trouble on the issue, if I may put it that way, is in trying to go beyond that, recognising that it is a constitutional issue and a major change. We have thought it proper that the proposals we put forward for government in London should be tested to see whether they have the approval of the people of London. That would accord with the values of new Labour, to which the noble Lord referred, in terms of being open, testing and consultative.
Where we draw the line is in putting ill-defined questions which could produce answers which the Government believe would be wrong and irresponsible and which they would not implement. I do not believe that that is giving real choice to people. It would be quite improper for a government who believe as strongly as we do that the two constituent parts of the assembly and the mayor must go together. Other people may disagree; Londoners may reject the proposition. That we are prepared for. What we are not prepared for is to have imposed a constitutional settlement which we believe would be fundamentally wrong. That is why the amendment is ill-founded.
Lord Dixon-Smith: I am becoming a trifle puzzled. Is it not the case that until we have the second Bill we shall not know what the constitutional settlement is? We know what its principle is and that it is suggested that there should be an elected mayor and an elected assembly to oversee him, or we assume that. But we do not know what the relationship is. Nor is there any means of devising it from the question in the paper. What is worse is that the procedure being suggested, as I understand it, permits the referendum to take place before the definition is clear. Although that has nothing to do with the amendment, it arises from the discussion that has taken place on the amendment. I am becoming a little concerned. It appears increasingly to me that we are being asked to fulfil an election commitment rather than informing and genuinely obtaining the opinion of the people of London on what the detail of the final settlement is to be. We do not have that. It is a dilemma we faced in the Welsh debate and subsequently in the Scottish debate.

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The situation is extremely difficult and I accept the Government's problems in tackling it. Producing a Bill to deal with a referendum is relatively simple. We have a brief and commendably understandable Bill, but the Committee must be concerned with what lies behind the legislation. The difficulty we face is once again that we do not have the clarity which is required for us to be able to debate the matter simply and easily.
Baroness Hayman: I suggest to the noble Lord that that is exactly why we should not add to the lack of clarity by possible fundamental differences in the structure that we propose. Perhaps I may put it this way. I revert to the issue of the devil being in the detail and exactly what detail people will know. The flesh that will be put on the bones of the Government's proposals will be made clear in the White Paper. It will be finally refined—if that is what you do to flesh—when we go through the legislative process of the scrutiny of the Bill. But the skeleton is not up for negotiation. The skeleton is that for the matter to hang together coherently we need the two parts: the mayor and the assembly, working inter—dependently. That is the Government's position, the fundamental position to which we shall return and the proposition on which we wish to test assent in the referendum.
Lord Wallace of Saltaire: I believe that if the Minister accepts that this is a constitutional question—and I must declare an interest as a member of the Charter 88 Executive—it seems to me that we are edging towards the increasing use of referenda without appreciating just how much it is changing the British constitution. We all understand the difference between a plebiscite and a referendum. A plebiscite is something which an authoritarian government pose which is intended to contain a question to which there is only one possible answer. A referendum, as I understand it, is a consultation in which it is possible for the people to choose realistically among a number of options.
The difficult question for all of us is: do we wish to accept not just the return of elected government to London but also the major constitutional innovation of a directly-elected mayor? The debate we are now having is because the Government wish to say, "You can only have one, so long as you have the other." That seems a contradictory and possibly semi-unconstitutional measure. We do not have clear constitutional rules on it and I believe that the Government should give a better answer. if not now then certainly before we come hack at Report stage.
Lord Howell: I could not disagree with the noble Lord more than I do. I am not particularly keen on referenda but what my noble friend said and what the Government propose is sensible in the circumstances of what is envisaged for London government. Indeed, I see no alternative to it.
The noble Lord, Lord Wallace, has just tried to tell us what should happen in a referendum. I may be wrong but I cannot remember any referendum being conducted except on the basis of asking the people the question
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which the government of the day wished to ask. We cannot have a referendum on what the referendum shall be about. That is exactly what the noble Lord proposes. We cannot say to the people, "We shall have a referendum and we shall have some means of finding out what question we would like to ask you so that you can affirm the answer." That is a nonsense in government and local government terms. What is proposed is perfectly simple. If we are to have an elected mayor, then there must be some elected assembly to which he is ultimately responsible. Otherwise we totally depart from democratic concepts.
My noble friend puts before us a concept and the people will be asked to say "yes" or "no" to that concept. If they say "yes", we then move to the next stage, which has properly been raised, as to what should be the relationship between the two different bodies and how it should be defined in law. But that is stage two. Stage one is to obtain the agreement of the London people to the concept and my noble friend's case has been well made out.
4.30 p.m.
Lord Archer of Weston-Super-Mare: I should like to declare a personal interest in that I have had the privilege over the past 20 years of employing the noble Lord, Lord Mishcon, as an adviser. I can tell the Committee that at no time has he suggested to me that he is a simple man.
I should like to ask one simple question. I understand the question from the Liberal Benches. But are we to have in the referendum only a question to which the Government are convinced they already know the answer? If so, in the Scottish referendum why was not the question: "Do you want an assembly with tax-raising authority?"? Why were the Scottish people asked two questions? First, they were asked whether they wanted an assembly, and, secondly, they were asked whether they wanted one with tax-raising authority.
Why in London are we not dividing those two questions? Why cannot we ask, "Do you want a tax-raising authority?"? Would it be a bad thing if the answer was "No"? At least we would know what the people of London thought. For the rest of the history of this Parliament and this Government are we only to have questions in referendums to which the Government know the answers they want and are convinced that they will get?
Lord Mishcon: The noble Lord, Lord Archer, was kind in his reference to me. But perhaps I may make it clear to the Committee that on this occasion, as over the many years about which he spoke, he has not taken my advice.
I am wondering where this debate is leading. I say that because I can remember a certain government deciding that they did not like the Greater London Council. I cannot remember them thinking it necessary to have a referendum on whether or not to abolish, as they did. the only authority that looked after Greater London. I cannot remember the then government suggesting that there should be a referendum asking,

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"Do you like the Greater London Council? If not, would you like to have an assembly of borough heads to look after London? Or would you like to have a mayor? Or would you like to have an authority?" No such question was asked. I should have thought that that was a more grave constitutional issue than the one with which we are now dealing.
I listen now to those from the Opposition Benches who seem to be so keen on having a referendum and believe that it is right to do so. As I see it—I say this with the utmost respect—the issue is a simple one. A government take responsibility for policy. This Government could do what the Conservative Government did; that is, they could introduce a Bill which would pass through the Commons and your Lordships' Chamber, which said that there should be a mayor and an authority looking after the mayor, to use shorthand words. They could have done that. They could have said, as they said in the manifesto: "London is the only capital city of any greatness in the world without an authority to look after it. We are imposing this upon the country and the people of London because it is the right thing to do, and we said that in our manifesto". Instead, the Government are searching out public opinion in London in a democratic way, asking the one question, "Do you think our policy is right in having an elected mayor and an elected assembly?"
If the answer to that question is "No", then I believe I am right in saying—I have no power from the Back Benches to say this—that the Government will think again. That is what we have to decide today. What the Government are not prepared to do in thinking again is to have, even if they have it in the worthy hands of the noble Lord. Lord Archer, a mayor of London with dictatorial authority. They would never do that. Without the authority, without the assembly, they say, "No thank you". Is not that the simple issue?
Lord Dahrendorf: This is indeed becoming an interesting discussion about what I too thought was a minor amendment. I had not intended to speak, but should like to say a few words.
We are partly talking about London and the government of London and we are partly talking about referendums. I repeat what I said in the Second Reading debate: we need to spend more time thinking about referendums. Contrary to my noble friend Lord Wallace, I feel that plebiscites are instruments to establish legislation—treaties or whatever—by the will of the people, whereas referendums are instruments to find out the will of the people. The normal process of representative government is then set in motion to put the will of the people into legislative form.
My thoughts about referendums—and I have given the matter quite a bit of thought—is that one must beware of turning them into politics or policies by multiple-choice questions. That cannot be the purpose of referendums and therefore governments should have the right, indeed the obligation, to put a proposal to the people to find out what the people think. If the proposal is a package, so be it; it is a package. If the Government
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are uncertain and do not want to do it in the form of a package, so be it. But it is for the people to express a view on the specific government proposal.
I agree entirely with the noble Lord, Lord Mishcon, that if the answer is "no", the probability must be extremely high that the Government will think again and will not try to push the issue through the Houses of Parliament, as they could. I continue to see no difficulty in asking one package question and there fore see no reason to change the specific paragraph which we are discussing.
Baroness Ludford: The debate has illustrated the difficulty faced in moving Amendment No. 3, which was to try to keep it self-contained so that it did not spill over into debates on Amendments Nos. 6 to 8 concerning the form of the questions in the referendum. On that basis I restrained myself from the temptation of talking about a two-question referendum. However, I am grateful for some of the comments which relate to that topic.
Perhaps I can make a brief comment. The Minister must address the issue of the Government's lack of confidence in their proposals. It will be up to the Government to advocate and lobby for their package, if the result of the Bill is that there is a one-question referendum. But we must also face the fact that the only excuse the Government can give for not having a two-question referendum is that they fear that Londoners may opt just for a mayor. The Government do not support that and therefore they say that they do not want the referendum to contain two questions. We should address that matter head on in a common-sense way. We know that the majority of people in London want an assembly. But as my noble friend Lord Wallace of Saltaire said, it is the question of the mayor that is the controversial point and constitutional innovation.
I do not accept the description of "multi-choice". The reality of the situation is whether we should have an assembly or an assembly plus a mayor. It is unlikely that people would opt only for a mayor. They will think of a government, a parliament, an assembly or regional and local government as a collection of people and not as one person. That is what most people will think of when they say they want the return of an elected authority for London.
We have had part of the debate on a referendum. However, in recognition of the fact that the debate on the amendment has inevitably spilled over into later amendments, I am prepared to withdraw it on the ground that what we are really talking about—the nub of this issue—is the question in the referendum. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bowness Lord Bowness moved Amendment No. 4:
Page 1, line 9, leave out ("elected assembly") and insert ("assembly of the leaders of all the London borough councils and the City of London Corporation").
The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 10 and 24. In view of the wording, perhaps I should declare an interest as a member of a London borough council, at least for the next four and a half months.
At Second Reading and in another place it was made abundantly clear that the Conservative Party accepts the need for an assembly. The argument that a mayor is unsupportable without such an assembly is one we accept entirely. However, we do not accept the need for a directly elected assembly. We submit that, if the Government really mean what they say about not creating the former Greater London Council, they will not take the dangerous step of creating a directly elected authority. That would increase the chances of conflict between the mayor and the authority, between the authority and the boroughs and between the boroughs and the mayor. It is inconceivable that directly elected members will be content with the role described in the Green Paper,
"a key role as a check and balance on the mayor".
I said at Second Reading that we want to look forward rather than back, but I believe that we need to draw on the experience of the past to ensure that the mistakes of the past are not repeated.
When the Herbert Commission recommended the creation of the Greater London Council and the London boroughs, it was always envisaged, if it was not specifically said in the report, that the boroughs would be the primary units of local government within greater London. As things turned out, for whatever reason—I do not direct these comments at any former GLC of any particular political colour—the GLC did not limit itself to what was described as a strategic role; rather it saw itself as the former LCC writ large over the whole of greater London, exercising a superior role as an upper tier authority over the boroughs. It seemed to be forgotten that while within the area of the old LCC it was the LCC as opposed to the metropolitan boroughs that had the major functions of local government, in the new arrangements the major functions and powers should have been with the new and significantly larger and resourceful London borough councils. That was the case with both inner and outer London. The only major difference between inner and outer London was that outer London boroughs exercised a role as education authorities while in inner London that role was exercised by the Inner London Education Authority, which I believe, although those who served on it will tell me if I am wrong, was technically a committee of the Greater London Council.
Notwithstanding this, members of the GLC found themselves with virtually a full-time job as members. That was at least in part a result of duplication and involvement in a host of matters which should have been left to the borough councils. If this new authority of directly elected members is created, they, like the GLC members before them, will be looking for a role. This danger can be avoided, partly, in the Act which will establish the new authority and by making the assembly indirectly elected and representative of the boroughs.
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I submit that there is nothing undemocratic about this. The leaders of London boroughs have been elected to hold office as councillors in their own boroughs; they have been chosen by their political colleagues to lead their authority.
The opposition to that notion is that the affairs of London cannot be looked after by such a body because the leaders will take only a parochial view as opposed to a London-wide view. It is difficult for me to say this, having been a London borough leader, but that is an extraordinarily patronising view. It ignores the considerable working together, of which there is now great evidence, of different groups of boroughs of different political persuasions which has taken place following the abolition of the GLC and the co-operation in doing many things which before abolition were thought capable of being done only by an upper tier authority.
It also ignores the extreme difficulty in knowing or finding in the majority of cases what is a London-wide view. London is not the homogenous unit which is often described. Its history and development are different from other cities in the United Kingdom and elsewhere in Europe. I do not like the overworked cliché of a collection of villages, but it is a collection of towns and cities that have developed very much in their own way—certainly not according to some great master plan and certainly not from one centre outwards. Those towns and cities do indeed have common interests and common problems. They are not islands and I do not suggest that they should act as islands.
The problem most often on people's lips is transport, but the transport problems of greater London extend far beyond the boundaries as they are currently drawn and as proposed in the legislation. Other problems of perhaps lesser magnitude are likely to be of concern to the neighbouring towns which make up the area of the capital rather than to greater London as a whole. It would therefore be appropriate if the leaders of the towns and cities of London were the people who sat down with the mayor to discuss these issues of common interest and provide the checks and balances the Government quite rightly want.
It is worth remembering that there are no problems within greater London that do not affect one or more boroughs. There will be no greater London problems that are problems just for the greater London authority and its members. The problems of greater London are the problems of the citizens, the people who live in the boroughs. Furthermore, the idea that this assembly should be indirectly elected is not without precedent elsewhere, certainly in the rest of Europe. In France, the different municipalities that make up a conurbation come together to exercise jointly certain functions through the medium of a district authority or the urban community. There is no suggestion of a top tier or superior authority. The urban community is the creature of those municipalities that make up the conurbation, represented usually by their mayor or a senior deputy mayor.
Given the distinctive nature of the towns and cities that make up the area of greater London, this must be a model which is at least worthy of consideration. It

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would put control of the greater London authority and the assembly firmly in borough hands; not one borough which would be able to torpedo any London-wide policy, but all working together with the mayor, which would be a great safeguard against the authority seeking to trespass beyond its remit. I beg to move.
4.45 p.m.
Baroness Hamwee: I agree with the noble Lord, Lord Bowness, to the extent that the members of the greater London authority need to have a proper job. My noble friend and I have worked out that their acronym, GLAMs—Greater London Authority members—will give them something to live up to. However, that is a rather trivial point and considerably less important than looking at the detail of the job they are to do.
The restriction on the members of the assembly interfering in matters that are beyond the strategic is an issue for the Act and for the culture of the assembly as it develops. I would be very concerned indeed if London were to get a fifth-best assembly. That is not because of the quality of the individual leaders who might comprise it, as contained in this proposal, but simply that I do not believe it would be workable.
I do not believe that leading a London borough and taking a strategic role, as has rightly been described, in this great city are two jobs that can be run together. I do not believe that for any individual there would be the time. I do not believe that a borough leader could possibly make the London assembly his or her first priority. It is not practicable as regards time.
In using the term "parochial" I say to the noble Lord, Lord Bowness, it is not because I am being patronising about it, but the job of a leader is to lead his or her borough to fight for what in those terms are parochial matters. It would be a distraction to have to deal with strategic matters and I do not believe that that could be done well. Getting a group of council leaders together might well mean that they start trading-off between themselves rather than taking an overall view.
I said at Second Reading that I have had a little experience of these issues in chairing a London-wide committee. I was very conscious of the fact that London borough members, with the best will in the world for the progress of that committee, nevertheless had to give the majority of their time to affairs in their own boroughs. I see that the noble Earl, Lord Carnarvon, is in his place. I suspect that he has had similar experiences in chairing SERPLAN, the South-East Regional Planning Conference. That was composed of members of London boroughs, districts and counties. The job at SERPLAN happened to tag along with jobs back home.
The noble Lord, Lord Bowness, referred to consultation with the boroughs. That is not ruled out by having a separate assembly. But what is most important in considering this matter, as well as the strategic overview of London, is that a group of London leaders could not act effectively as a check on the mayor. They
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would simply not have the time or the means to do so because they have to do another very important job. I hope that the noble Lord will not pursue this proposal.
Baroness Hayman: I find it fascinating that, after the debate that we have just had about the importance of choice for Londoners, there is the question of how many proposals and different variants of proposals should be put forward. In the first substantive amendment that the Opposition Front Bench puts forward we have one clear, simple question, to which the answer is either yes or no. That embodies the proposal which the Opposition believe to be the best solution for London government. That is precisely what the Government are trying to do, except that we have a different view of what is the best solution for London government. But it is certainly not a multi-option choice question as part of the referendum.
It is interesting to watch the evolution, if I may put it that way, of Conservative Party thinking on this issue. It has been evolving over months. In its manifesto for London it said:
"New Labour's plans represent a new danger to Londoners. A GLC Mark 11 and an elected mayor are the last things London needs … We do not need more government in London. If it ain't broke then don't try to fix it is the Conservative maxim".
I am glad that they have come round to the view that, as regards London government, if it is not broke, it is capable of improvement and that there is a role for a mayor and an assembly.
The proposition that we have before us, of course, gives Londoners the opportunity to vote on whether they are in favour of a mayor plus an assembly made up of the leaders of the 32 London boroughs. What it would not do is give the noble Baronesses, Lady Hamwee and Lady Ludford, the opportunity to vote for their preferred option, which is no directly elected mayor at all but a directly-elected assembly and a leader taken from within that assembly. The proposition would not allow the Government the opportunity to put forward their view, which, as we have discussed before, is a package of the two. It would merely give the people of London the opportunity to vote on the proposition which is now Conservative policy.
So let us look a little at what that means. The leaders of the London boroughs do an excellent job in representing the interests of their areas. That is their rightful role, and that is the role that we would expect them to play in relation to the GLA. There is no way in which we would wish to exclude the boroughs from working with the GLA: it is essential that they do so if the whole thing is to work smoothly. An effective borough leader would be in regular contact with the GLA.
But the GLA should not be governed by local interests. It must be able to take a strategic overview for the benefit of London as a whole. That does not mean riding roughshod over borough interests, but weighing up different positions and reaching conclusions to the benefit of London. Only a mayor, working with a directly elected assembly, can do that job.
The assembly will have a vital role to play in the new GLA. It will monitor the activities of the mayor and work with the mayor to devise strategies for London's

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development. We are proposing that the assembly be able to choose London-wide issues and investigate them, producing reports and recommendations. It is simply not feasible, as the noble Baroness, Lady Hamwee, said, to expect borough leaders, in addition to their heavy local duties, to play this role in their spare time. Londoners deserve an assembly wholly committed to working on a pan-London basis.
We have set out a strong case to support our package of a GLA made up of an elected mayor and a separately elected assembly, composed of those members elected to do a specific job. These amendments would create a lopsided authority, unable to deliver what London needs.
I have stated the case against an assembly indirectly elected and composed of borough leaders. I believe that, on consideration, the Committee will perhaps share our view that the roles of borough leader and assembly member cannot and should not be combined. The proposal certainly does not go with the spirit of offering choice and the amendments that will be put later to have more than one proposal put to the people of London. I beg the noble Lord to withdraw his amendments.
Lord Bowness: I thank the Minister for her reply. I am delighted that she recognises the Conservative Party to be evolving. At least that proves that we are not destined for annihilation in some way: evolution is a salvation. Some things evolve much quicker than others.
This is not a proposition wrapped up as one question. Indeed, Amendment No. 10, to which I have spoken, together with Amendment No. 4, make it quite clear that we would be putting to the people of London a proposition for a directly elected mayor as one question and a proposition for an assembly comprised of London borough leaders as a second question. I am perhaps anticipating the debate on later amendments when I say that I do not believe that that will produce the consequences that the Minister fears.
I am concerned when I hear the Minister say that the Greater London assembly must not be governed by local interests. If the interests of Greater London and the capital are not the sum total of the interests of the towns and cities that make up Greater London, I do not know what their interests actually are. As I said, it is difficult to find London-wide issues which have the same impact on all the towns and cities within Greater London, one on the other. The relevance of an issue in Barnet is significantly different from its relevance in Bexley, if it has any relevance at all.
It is difficult to say that borough leaders would be unable effectively to do the job of representing their respective towns and cities because of demands on their time when we do not have before us the result of the consultation, the White Paper, still less the legislation, which detail the functions, powers and responsibilities of the Greater London assembly. If we decided in principle that the boroughs and the assembly should be made up of the leaders of the Greater London boroughs and the City of London Corporation, no doubt we would have a view about how the assembly should work and no doubt the legislation would be framed accordingly.
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I am also concerned when I hear it said as a criticism that in an assembly the borough leaders would fight over their own parochial matters and would not be concerned with strategic matters. I have no doubt that any body comprising representatives, however appointed or elected, will have what one might call "constituency interests". However, it is unlikely that one particular parochial interest will be sufficient to outweigh the views of all the other London borough leaders who might conclude that they supported a particular proposal for the benefit of the whole of Greater London. There is not one single borough that does not have an interest in the affairs of at least part of Greater London and the neighbouring towns and cities.
As I said when moving the amendment, the London boroughs are not islands. They are all deeply concerned from an economic and social point of view with what goes on around them. It is a mistake to dismiss those who have the responsibility for the interests of the people who reside within the towns and cities that make up Greater London. One should not believe that such people will be unable to take a wider view in the interests of Greater London as a whole. In the majority of instances, I believe that they will be aware of the wider issues. Having said that, one should not condemn them for those particular instances when local constituency interests are important. As I have said, the problems of Greater London are the problems of the towns and cities that make up Greater London and of the people who live within them. One ignores that at one's peril. I cannot overemphasise how much frustration was caused under the previous structure of government in London by those top tier authorities which acted without regard for the interests of the localities which comprise Greater London.
I beg the Minister to appreciate that this is not a party political point. Once the authority is cut off from the roots of its towns and cities, I believe that it will be lost. I hear what the Minister says, but I believe that this is a matter of great importance. It is a matter on which I believe that we might conceivably be making a considerable mistake and I seek the opinion of the House on this amendment.
5.3 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 100; Not-Contents, 170.

Division No. 2

CONTENTS

Aldington, L.

Burnham, L. [Teller.]

Alexander of Tunis, E.

Campbell of Alloway, L.

Ampthill, L.

Carnegy of Lour, B.

Astor of Hever. L.

Carnock, L.

Belstead, L.

Charteris of Amisfield, L.

Berners, B.

Chelmsford, V.

Blatch, B.

Coleraine, L.

Bowness, L.

Coleridge, L.

Brahazon of Tara. L.

Cope of Berkeley, L.

Brain of Wheatley, L.

Courtown, E.

Brougham and Vaux, L.

Craig of Radley, L.

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Cranworth, L.

Milverton, L.

Dean of Harptree, L.

Monro of Langholm, L.

Denham, L.

Mottistone, L.

Dixon-Smith, L.

Munster, E.

Elliott of Morpeth, L.

Murton of Lindisfarne, L.

Fookes, B.

Naseby, L.

Garel-Jones, L.

Norrie, L.

Gisborough, L.

Northesk, E.

Gladwyn, L.

Onslow of Woking, L.

Granard, E.

Oxfuird, V.

Grimston of Westbury, L.

Palmer, L.

Halsbury, E.

Park of Monmouth, B.

Harding of Petherton, L.

Platt of Writtle, B.

Hayhoe, L.

Rawlings, B.

Higgins, L.

Rees, L.

Holderness, L.

Renton, L.

Home, E.

Renton of Mount Harry, L.

Hood, V.

Romney, E.

Hooper, B.

Rotherwick, L.

Howe, E.

Ryder of Wensum, L.

Howell of Guildford, L.

Sandford, L.

Hunt of Wirral, L.

Seccombe, B.

Hylton-Foster, B.

Selkirk of Douglas, L.

Jenkin of Roding, L.

Shaw of Northstead, L.

Johnston of Rockport, L.

Stewartby, L.

Jopling, L.

Stockton, E.

Kimball, L.

Stodart of Leaston, L.

Kinnoull, E.

Strange, B.

Kintore, E.

Strathcarron, L.

Knight of Collingtree, B.

Strathclyde, L. [Teller.]

Lawrence, L.

Thomas of Gwydir, L.

Lindsay, E.

Thomas of Swynnerton, L.

Lyell, L.

Ullswater, V.

McColl of Dulwich, L.

Vivian, L.

McConnell, L.

Wade of Chorlton, L.

Macleod of Borve, B.

Weatherill, L.

Marlesford, L.

Wharton, B.

Mersey, V.

Wilcox, B.

Miller of Hendon, B.

Young, B.

NOT-CONTENTS

Addington, L.

Donoughue, L.

Ailesbury, M.

Dormand of Easington, L.

Alport, L.

Dubs, L.

Amos, B.

Eatwell, L.

Annan, L.

Elis-Thomas, L.

Archer of Sandwell, L.

Evans of Parkside, L.

Ashley of Stoke, L.

Falconer of Thoroton, L.

Barnett, L.

Farrington of Ribbleton, B.

Berkeley, L.

Fitt, L.

Blackstone, B.

Gainsborough, E.

Blease, L.

Gallacher, L.

Borrie, L.

Geraint, L.

Brooke of Alverthorpe, L.

Gilbert, L.

Bruce of Donington, L.

Gladwin of Clee, L.

Burlison, L.

Glenamara, L.

Callaghan of Cardiff, L.

Goodhart, L.

Calverley, L.

Gordon of Strathblane, L.

Carlisle, E.

Gould of Potternewton, B.

Carmichael of Kelvingrove, L.

Graham of Edmonton, L.

Carnarvon, E.

Gregson, L.

Carter, L.

Grenfell, L.

Castle of Blackburn, B.

Grey, E.

Chandos, V.

Hampton, L.

Clancarty, E.

Hamwee, B.

Cledwyn of Penrhos, L.

Hankey, L.

Clinton-Davis, L.

Hanworth, V.

Cocks of Hartcliffe, L.

Hardie, L.

Currie of Marylebone, L.

Harris of Greenwich, L.

Dahrendorf, L.

Haskel, L.

David, B.

Hayman, B.

Davies, L.

Healey, L.

Davies of Oldham, L.

Hilton of Eggardon, B.

Desai, L.

Hogg of Cumbernauld, L.

Dixon, L.

Hollis of Heigham, B.

968

Howell, L.

Ponsonby of Shulbrede, L.

Howie of Troon, L.

Prys-Davies, L.

Hoyle, L.

Puttnam, L.

Hughes, L.

Ramsay of Cartvale, B.

Hughes of Woodside, L.

Randall of St. Budeaux, L.

Hunt of Kings Heath, L.

Rea, L.

Hutchinson of Lullington, L.

Redesdale, L.

Hylton, L.

Rendell of Babergh, B.

Irvine of Lairg, L. [Lord Chancellor.]

Renwick of Clifton, L.

Richard, L. [Lord Privy Seal.]

Islwyn, L.

Robson of Kiddington, B.

Janner of Braunstone, L.

Rodgers of Quarry Bank, L.

Jay of Paddington, B.

Russell, E

Jeger, B.

Sainsbury, L.

Jenkins of Putney, L.

Sandberg, L.

Kennedy of The Shaws, B.

Sandwich, E.

Kennet, L.

Sefton of Garston, L.

Kilbracken, L.

Serota, B.

Kirkhill, L.

Sewel, L.

Leathers, V.

Shepherd, L.

Levy, L.

Shore of Stepney, L.

Linklater of Butterstone, B.

Simon, V.

Lockwood, B.

Simon of Highbury, L.

Lofthouse of Pontefract, L.

Smith of Gilmorehill, B.

Ludford, B.

Steel of Aikwood, L.

McCarthy, L.

Stoddart of Swindon, L.

McIntosh of Haringey, L. [Teller.]

Stone of Blackheath, L.

Mackie of Benshie, L.

Strabolgi, L.

McNair, L.

Symons of Vernham Dean, B.

McNally, L.

Taverne, L.

Maddock, B.

Taylor of Blackburn, L.

Mallalieu, B.

Taylor of Gryfe, L.

Mar and Kellie, E.

Thomas of Macclesfield, L.

Mason of Barnsley, L.

Thomas of Walliswood, B.

Merlyn-Rees, L.

Thomson of Monifieth, L.

Merrivale, L.

Thurso, V.

Meston, L.

Tope, L.

Milner of Leeds, L.

Tordoff, L.

Mishcon, L.

Turner of Camden, B.

Molloy, L.

Varley, L.

Monkswell, L.

Walker of Doncaster, L.

Morris of Castle Morris, L.

Wallace of Coslany, L.

Morris of Manchester, L.

Wallace of Saltaire, L.

Murray of Epping Forest, L.

Watson of Invergowrie, L.

Nicol, B.

Wedderburn of Charlton, L.

Ogmore, L.

Whiny, L. [Teller.]

Orme, L.

Williams of Crosby, B.

Paul, L.

Williams of Elvel, L.

Peston, L.

Williams of Mostyn, L.

Pilkeathley, B.

Winchilsea and Nottingham, E.

Plant of Highfield, L.

Winston, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.17 p.m
[Amendment No. 5 not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 6:
Page 1, line 11, leave out ("question") and insert ("question").
The noble Baroness said: Amendment No. 6 is grouped with Amendment No. 7 in the name of the noble Lord, Lord Bowness, and Amendment No. 8 in my name and that of my noble friend Lady Ludford. Amendment No. 6 is in my name and that of the Conservative Front Bench since it is a necessary paving amendment to the alternatives proposed in Amendments Nos. 7 and 8.
The Minister described the not quite so innocent earlier amendment as a wrecking amendment. I assure her that I do not speak to Amendment No. 8 as a test of

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political machismo. It is not proposed as an amendment to wreck the Government's proposals. It is not a matter of our questions being better than theirs. I believe that it is a proper attempt to ensure that the referendum is a good consultation related ensure proposals on offer. The Government say that their proposal is a package upon which they seek the views of voters. We have already had discussion about the difference between referendums and plebiscites, different views being taken on what those terms connote and in what context they should be used. The noble Lord, Lord Bassam, in the debate on the Local Government (Experimental Arrangements) Bill before Christmas, used the term "trigger ballot". That is a term well worth bringing into the jargon. It is clear that it would trigger the pursuance of proposals, but that is not on offer here.
I cannot help but continue to regard the referendum as something nearer to a consultation than to a yes/no package, because there will be a White Paper, albeit a White Paper upon which there might have been a debate. It is not a post-legislative referendum. It is important that the consultation is conducted in a manner which permits a detailed and thoughtful response. Some voters may say "yes" to a mayor but "no" to an assembly. I must be careful how I put this, but my noble friend and I would not agree with that. The Government would not agree, so they would need to take it away and consider it.
What if the answer is "no" to the single question set Out in the schedule to the Bill? The Government have already said that it is likely that they would think again. That would be right. They would not know whether the voters' objections were to the whole package or to one or other element, because, as has been said before on the Bill, the question as scheduled contains two questions.
There may be voters who, faced with the Government's question, would say "yes", but with considerable reluctance, on one element on the constitutional package. That could be a recipe for instability. The last thing we want is that the new authority should start without the confidence of Londoners. We propose a set of questions not previously debated by either Chamber. Our amendments deliberately spell out the Government's proposed package. The question has a preamble:
"The Government propose that there should be a Greater London Authority made up of an elected Assembly and a separately and directly elected Mayor".
That is to meet the point that the Government are concerned to present their proposals as a package.
Faced with that preamble, and then the two questions, the voter, who may want to vote for one but not the other element, would know the context and what he or she was doing. The questions may be capable of improvement. It has been put to me that, "Do you agree" is an aggressive phrase, and that, "Are you in favour of', would be more gentle. No doubt there are all sorts of improvements that could be made. The form of the question, following a short description of the proposal, merits some attention.
I hope that the Minister will be prepared to consider the proposition. As I said, I do not regard it as an exercise in political machismo. Today is not the end of the parliamentary process. I hope that we will receive a considered response today so that we can consider that response before the next stage. I prefer the Tories' two questions to the Government's one question, but I prefer ours to either of the others. On that basis, I beg to move.
Lord Bowness: I speak to Amendments Nos. 6 and 7. It will not surprise the Committee to know that I prefer the Conservative amendment to those proposed by the noble Baroness, Lady Hamwee. There is no intention that this should be considered as a wrecking proposal. The amendment seeks to put the Government's proposal to the citizens of Greater London in two questions rather than one.
I read carefully what the Minister said in some detail on Second Reading. I am not convinced by her rejection of the proposal. If the Government are not prepared to take the risk that in a referendum people might not like the Government's proposals in their entirety, they should not be going down the referendum road. It has been said by other Members of the Committee and by myself that the Government have the ability and majority to legislate, if they so wish, subject to the parliamentary process. No one could have criticised them for doing that if that had been their choice. It was, however, their choice to say in their manifesto, and to bring forward proposals, that their plans should be put to the people of London. It is entirely appropriate that we should discuss and suggest that the question be framed in a way different from what the Government propose.
For anyone who wants genuinely to consult on the amendment there are no hidden risks. There is no hidden agenda. It merely puts the Government's proposals to the people in two questions. I do not believe that that presents the difficulties that the Minister outlined on Second Reading. If there were a "yes" to both questions, there would be no problem for the Government. If there were a "no" vote to both questions there might be a problem for the Government but not in the way the Minister foresaw. There is no constitutional settlement being imposed, as was suggested earlier today.
Let us for a moment assume that there is a vote in favour of the assembly but against the directly elected mayor. That would mean that people were either against the idea of a mayor or had been convinced by the arguments that will be deployed by others that the mayor is better drawn from the assembly itself. Either way, that result would not commit the Government to a particular course of action. But, clearly, they would have to think again and bring forward different proposals. Whether they chose to consult the people on those different proposals would be a matter for them. That would have happened because it was the view of the people whom they had set out to consult.
If the people vote for the mayor but reject the directly elected assembly, the arguments are the same. The Government's apparent unwillingness to accept the concept of two questions suggests that they are not prepared to argue the case for each and to trust the

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people to whom they are putting the question. They will not take the risk of putting the proposals to the people in a meaningful way. It is take it or leave it. If that is so, I wonder why the legislation road was not chosen rather than the referendum road.
It is possible for the electorate—it is sophisticated enough to look at the Government's plans as they may be available at the time of the referendum—to consider those plans and to say that it does not like part of them. When we see the White Paper it may reveal plans for a mayor who is perceived to be too powerful. There may be insufficient safeguards. The proposals for the assembly may be perceived as giving the assembly too many functions at potentially too high a cost. The people may reject the part of the proposals they do not like. That would not be end of the Government's plans to reform the government of the capital, but Ministers would need to think again in the light of the people's verdict on a particular part of the proposal.
5.30 p.m.
Lord Jenkin of Roding: I have not taken part in debates on the Bill, but I have come strongly to the view that there should be two questions. I do not wish to rehearse the arguments that we had a few minutes ago on Amendment No. 3 when we were covering the same ground. There was a good deal of debate foreshadowing this amendment.
I believe that the people of London may well take the view that they would like a mayor. I hope that I am not disclosing Cabinet secrets, but perhaps I may point out that the longest single debate which we had in the Cabinet which decided to abolish the GLC was on whether there should be retained in some form or another what was then called and has been called since "a voice for London". Such were the enormities which the GLC had been getting up to, the huge extravagances and the highly damaging policies that it had pursued, the view prevailed that if one was going to get rid of it one should get rid of it lock, stock and barrel. Therefore, there was no voice for London.
I understand how opinion has moved. I enormously admire what has been done as regards collaboration between the boroughs and the various public/private sector partnerships which have grown up over London. One can understand and have sympathy with the view that what is missing is a voice for London. Therefore, I believe that it is possible that the public will say yes. They might think of the mayors of Paris and New York, for example, and that a single powerful executive voice can represent London as a whole.
At the same time, they might well believe that it went wrong last time with the 1962 legislation and with the GLC in 1964 and that what began as a reasonable division of powers between the upper tier authority of the GLC and the boroughs became a monstrosity which in area after area was totally overriding what most people regarded as being the proper function of the boroughs. Therefore, the people might well say that they will have a mayor, but in the light of experience I do not believe that we should again risk a directly elected assembly.
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The argument which the Minister deployed—that the referendum is not about that, but about whether the public agree with the Government's package—is arrogant. I believe that the people of London are capable of examining the proposal and saying, "There are two parts to it. Yes, we want a voice for London, but we do not want to risk a second GLC". Of all the arguments that I have heard and in which I have taken part as to what should be the future of the governance of London, a common note has emerged from across the political spectrum; "We do not want a second GLC". That has been reiterated and echoed across the spectrum. The risk which people might see in the directly elected assembly is that in time it could be looking for things to do.
Lord Graham of Edmonton: I am grateful to the noble Lord for giving way. He makes great play of the current situation, believing that the people of London should be asked two questions. Why did not the same view come to the minds of those in the Administration which he served? Perhaps the noble Lord is nit-picking at the procedure, but he said that it was a case of killing the GLC stone dead, or reforming it, or winning the next election. However, without direct consultation with the people of London, he and his colleagues took away the GLC. Of course it had blemishes, but they could have been improved.
Lord Jenkin of Roding: The noble Lord will no doubt wish to make his own speech. I ask him to bear in mind that when the proposal was first put forward in the 1983 election and during the months immediately following there was an overwhelming desire to get rid of the GLC. There is ample evidence of that—
Lord Graham of Edmonton: No, no!
Lord Jenkin of Roding: What happened after the expenditure of some £40 million or £50 million of ratepayers' money on propaganda was that the argument moved the other way. I do not deny that, but that is not my point. My point is that it is possible to envisage that in a referendum on the issue the London public might say, "Yes, we want a good powerful voice for London, but we do not want to risk a second GLC".
I have never forgotten canvassing in what was my constituency in the local elections during the first year of there being no GLC precepts. During that local election, I had a warmer response on the doorsteps of Wanstead and Woodford than I had had during any election I had ever fought. The people suddenly saw that they had got an incubus off their backs and they were paying only the borough rate.
I believe that those memories will live long and that when people are asked whether they should have a London-wide body they will be looking for something like a voice for London. I believe that the referendum should give the people of London an opportunity to express their choice. Under the Government's Bill, they will not have the right to do so. Indeed, the whole issue will be muddled together in only one question. I totally

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support the proposal and I hope that when my noble friend advises us on how to respond we may support it in the Division Lobby.
Lord Archer of Weston-Super-Mare: I wish to repeat a question put to the Minister. As the noble Baroness, Lady Ludford, withdrew her amendment she had no opportunity to answer the particular question and I do not apologise for raising it again. I support the proposal that there should be two questions. Perhaps the most interesting aspect of today's debate is that the noble Baroness, Lady Hamwee, is convinced that London does not want a mayor but wants an assembly—
Baroness Hamwee: No. Perhaps I may respond immediately. I am not convinced because I do not presume to know what the whole of London wants. That is why I want Londoners to be consulted on both elements.
Lord Archer of Weston-Super-Mare: I am sure that it is understood that that is what she would want. I do not change my argument. That is what many of the Liberal Democrats want, although there were one or two interesting diversions among the speeches from those Benches. However, it seemed to be their party policy that they would like not a mayor but an assembly. We hope that that pleases the noble Baroness, Lady Hamwee. On the other hand, over here we have my noble friend Lord Jenkin who tells us that he believes it quite possible—I put it no higher—that Londoners will say they want a mayor but not an assembly.
Perhaps that proves to the Minister that we should find out what the people of London want; we have heard the argument for that clearly today. The Minister is convinced that we should have one question because that is the Government's package. Perhaps the Government are not prepared to go ahead unless they can have the package that they want. I hear the Minister. But I should like an answer to the Scottish question. Why was there not one question in Scotland which asked, "Do you want an assembly in Scotland with tax raising authority?". Why were they not asked in one question. first, whether they wanted an assembly or a government and, secondly. whether they wanted tax raising authority? I bring back the question to the Minister. Why were we in London not asked if we wanted tax raising authority? That could have been a third question for us. I repeat that I should have liked the answer to that to be "no", but it would not have stopped me wanting to ask the question of the people of London.
If there can be two questions in Scotland, why cannot there be two questions in London? I hope that the Minister will not, as she did on Second Reading and as she has mentioned today, refer to it as a half-considered alternative. I hope that the Minister realises that some of us have spent weeks thinking about this and it is not a half-considered alternative.
On Second Reading the Minister described those who could not understand this as "naive". She accused us of lecturing her. I wish to apologise immediately to the
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Minister. I am not lecturing; I hope I am not naive; but I hope that the Minister will give us a convincing answer beyond saying that the question is on the paper because the Government know the answer they want.
Baroness Hayman: I must say to the noble Lord, Lord Archer of Weston-Super-Mare, that I made the most terrible Freudian slip when I was writing my notes in preparing for this and I did not spell Weston-Super-Mare correctly. However, we all do terrible things in anxiety states.
Lord Archer of Weston-Super-Mare: I am happy to forgive the Minister on this occasion.
Baroness Hayman: The noble Lord says that he has given weeks of thinking to this issue and what is the right form of government. Some Members of your Lordships' House have given years of thinking to it.
Lord Archer of Weston-Super-Mare: That is insulting. I sat on the Greater London Council and that was my first political appointment. I had the privilege and honour of fighting against Sir William Fiske. I have spent my life time thinking about politics. But since this Bill has been published, I have considered its wording.
Baroness Hayman: I do not wish to denigrate the contribution to public life in this country made by the noble Lord. However, I wish to point out that the appropriate form of local government for London has been considered for many years by Members of your Lordships' House after the decision made by the Conservative Administration—described by the noble Lord, Lord Jenkin—to abolish the Greater London Council.
In dealing with the points made by the noble Lord, Lord Archer, perhaps I may deal with the Scottish issue, and I apologise for any discourtesy in not responding to it, but the debate moved on. As regards the issue of two questions in the Scottish referendum, there were two questions in the Scottish referendum because we were addressing two distinct issues: whether or not there should be a Scottish parliament; and whether that body should have tax-varying powers. The Government were testing assent to each of those propositions. They were stand-alone propositions and had the answer to tax-varying powers been "no", it would not have destroyed the constitutional settlement that was proposed in the first question.
The reason that we included the second question is that we take a different position from that taken by the noble Lord, Lord Archer. We do not believe that we should ask questions to which, if we receive the answer "yes", we should not then implement what was being supported because we do not think it the right way to go forward. That is precisely why there was not a second question in the Welsh referendum about tax-raising powers. I hope that answers that specific point.
The noble Baroness, Lady Hamwee, asked for a considered response and I shall try to give a considered response and set out once again the reasons that the

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Government do not believe that two questions are appropriate. The reasoning falls into two parts. I shall deal first with the fundamental issues and then deal with some of the technical issues.
The noble Lord, Lord Dahrendorf, said quite clearly—and I think he was right—that we are dealing with two major issues here, one of which is the nature of the referendum and the nature of the exercise which this Bill is trying to set up. That was a point to which the noble Lord, Lord Wallace, alluded. The other issue deals with the appropriate and best form of government for London.
Perhaps I may repeat—I apologise if I am restating some of the earlier debate—that the nature of the referendum is not some sort of mega opinion poll. It is not an oversized market research project, canvassing a range of constitutional options. It is not the largest focus group ever seen by any spin doctor. It is a proposition to test the assent of the people of London to the proposals which the Government are putting to them.
I must suggest to the Committee that it is not arrogant to say that as a government. It is responsible of a government to make absolutely clear what are the proposals. Perhaps I may illustrate that. Earlier this afternoon, the Committee voted for an amendment that said we should publish a Bill with the White Paper weeks before the referendum takes place. If we have two questions on the ballot paper giving, as I shall suggest later, not two possible answers but up to five possible answers, what will the Bill say? The Bill could not describe the detail to enable Londoners to be clear as to what they were voting about because there will be several different propositions to be voted upon. There is the proposition that we have talked about. There is the proposition which the Liberal Democrats would like of a directly elected assembly without a directly elected mayor. There is the proposition referred to by the noble Lord, Lord Jenkin, of a directly elected mayor without a directly elected assembly. How could that be expressed clearly and definitively within the Bill when there are several different propositions?
I return to how we see the referendum in the process. It is a staging post in our proposals to bring forward a strategic, city-wide authority for our capital. We made clear our commitment to a balanced and accountable constitutional settlement of a greater London authority comprising a separately elected mayor and a separately elected assembly in our manifesto. We made it clear also that we should test support for that proposition through the mechanism of a referendum.
The Government's conviction is that for London to have the best from its authority, it is necessary to have both a mayor and a separately elected assembly. That is why we have put forward a clear and comprehensive single question. The noble Lord, Lord Bowness, suggested that there are two parts to the question. If we had not explained what the authority comprised, we should be accused of not giving the detail that people needed to understand what they are voting on. We have put forward a clear and comprehensive single question that allows people to express a view on that package.
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To argue for more than one question both misunderstands the nature of the referendum proposed and threatens the integrity of the greater London authority that we are proposing. The noble Lord, Lord Jenkin, said that in his view, there was a great theme of not wishing to recreate an elected authority like the GLC. We have made it very clear earlier that we have no intention of recreating the GLC. However, the noble Lord's view was that public feeling was that there should not be another elected assembly.
I should point out that another theme has emerged as a result of the views expressed regarding the proposals; namely, that we should not have a mayor untrammelled by any form of democratic accountability to a separately elected assembly. That is a very serious and fundamental part of the package that we believe to be the best for London. Indeed, London needs both the visibility and the advocacy of the elected mayor and the accountability and the balance of the elected assembly. The authority will be an interdependent whole, not two separate entities which could exist successfully independent of one another. For those reasons I believe that the amendments before the Committee today are fatally flawed. They threaten both the nature of the referendum that we are suggesting and the absolute essence of the authority that the Government believe to be right.
It has been said during the debate that there are no hidden risks in the proposed questions. I have to challenge that view. I believe that the questions, which look so simple, about offering choice do not do so. Clearly and simply, there are two choices and two questions. I certainly do not dispute that there are a number of views, as mentioned by the noble Lord, Lord Archer, which illustrate differing opinions as to how London should be governed. Today we have discussed the views of the Front Benches in this Chamber. However, I am sure that there are other views about other constitutional arrangements that could be made. I should like to prove to Members of the Committee that even the limited range of options expressed from the Front Benches in this Chamber as regards the best form of London government would not be clearly and unambiguously addressed by the two questions proposed in either amendment.
Let us start with the Government's position. It has been stated that the Government's proposal would be voted on by way of these two questions because people could vote "yes" to both of them. However, as I have made clear, the dual elements of the mayor and the assembly are two parts of one proposal. How, with the amendments, would I as a London voter be able to express my choice—and I stress "my choice"—that I want a mayor and an assembly and that, if I cannot have both of them and the checks and balances are not in the package, then I would rather have neither? How do I express that view with those two supposedly simple questions?
I move on to the Liberal Democrat position which, I understand, is that the best answer would be an assembly that is directly elected and a mayor who is not. How would one differentiate when people vote for a directly elected assembly but say "no" to a directly

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elected mayor? How would one know whether those people wanted a mayor elected by, or in some way coming out of, the membership of the assembly rather than some sort of collective leadership which did not have a mayor?
The mayor without an assembly—or, to be more specific, a mayor with an indirectly elected assembly comprising borough leaders—is of course the position of the noble Lord, Lord Bowness, and his party. Indeed, that is what we voted on earlier. But how does the Londoner who agrees with the proposition that, as well as an elected mayor, there should also be an assembly but indirectly elected, differentiate himself on these two questions from the Londoner who wants an elected mayor but no assembly at all? That is not such a wild position. In the process of evolution of the noble Lord's party, I believe that that was its position for a little while. It is possible that some of its supporters in London still adhere to that view. How does that voter make it clear on these two questions that that is what he is looking for?
Both versions of the questions do not offer clear choices to voters. They raise the prospect of people's votes carrying the day for a package with which they do not agree. That is not good for democratic choice, for clarity or, indeed, for an effective authority. It is a recipe for confusion. Two questions would force people to guess what the outcome of their vote would be and then oblige them to vote accordingly.
The British people showed some sophistication as tactical voters in the last election in their determination to get rid of the last government. However, I do not believe it to be proper to rely on them to do so again in a referendum on the governance of London.
As I explained, there are a range of possible outcomes to the two sets of questions—a mayor and assembly together, a mayor without an assembly, and an assembly without a mayor. But even these outcomes do not reflect the essential detail of the preferred positions either of the Government Front Bench or of the Liberal Democrats which are, respectively, a mayor with an indirectly elected assembly and a mayor indirectly elected from a directly elected assembly.
Given the range of possible outcomes that two questions could produce, we must also consider just how voters would make an informed choice. Great play has been made about the importance of clarity over the issues in the referendum. I support that; indeed, that is what we were talking about in terms of having a debate and in terms of the White Paper spelling out most clearly the implications involved. However, it would be practically impossible to provide clarity and certainty if the two questions were posed on whether to have a mayor and an assembly separately with all the variations and permutations that I described. I do not believe that people would find the choice on the ballot paper clear and comprehensible; indeed, it would be extremely confusing if a White Paper had to show alternative versions of what was actually on offer for Londoners as regards the alternative permutations that might be the result of the referendum.
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There are severe technical deficiencies with a two-question referendum. However, the crux of the matter to which I wish to return is that the proposed amendments offer the possibility of outcomes which the Government believe to be wrong and unworkable. I do not believe it to be correct or justified to accuse the Government of arrogance in that respect. It is not the arrogance of power; it is the responsibility of power of a governing party. It is wilfully to misunderstand both the nature of the referendum that we propose and the strength of feeling of the Government that it would be wrong to put to the people of London a package which they would not be willing to implement.
I can do no better than to quote the words of the noble Lord, Lord Dahrendorf, expressed on Second Reading when he said that,
"referenda should not be exploratory and open-ended. They should test the views of the people about government proposals. The first duty is therefore that of government to make such proposals and to argue for them … If the people … do not like the Government's proposals—for two separately elected components of the Greater London authority—the Government will have to think again".—[Official Report, 15/12/97; col. 430.1]
That is absolutely right. That is a risk that the Government are prepared to take. We have been accused of not having the courage to put our proposition to the people and allow for a range of options. That really is an unreasonable construction of the position in which the Government find themselves. We intend to seek the consent of the people to a considered package—an entire framework for government. Londoners will have been fully informed of the Government's proposals in a comprehensive White Paper to be published well in advance of the referendum. They would then be able to vote in the full knowledge of what they are voting for, or what they are voting against. That is clear, fair and democratic. There has been some talk about the possible totalitarian nature of referenda and plebiscites. It is not totalitarian to put one question: it is totalitarian to have only one possible answer.
The Government accept the possibility that the people of London will not agree with the proposition placed before them. We favour a mayor and an assembly as a complete framework—a mayor to provide a voice for London and articulate London's interests both at home and abroad and an assembly to provide essential checks and balances. Those two elements are the cornerstone of our plans for a new authority for London. It is on that package that we intend to seek the consent of Londoners.
Our proposed single question will deliver a decisive referendum outcome. If there is a yes vote, we can get on with delivering our proposals. If Londoners vote no, we shall not implement those proposals. It is as simple and as straightforward as that. But there will be a clear expression of public opinion, one way or the other. That, as I said earlier, is exhibiting not the arrogance of power, but the responsibility of power in preparing workable proposals which, if approved, the people can trust—we have had talk of trust—will be implemented.
We have consulted widely on these proposals and we are paying close attention to the views put to us. This referendum now seeks to establish the consent of the

979
people of London to those considered proposals. It will underpin London's new democratic settlement. We are willing to subject our proposals to the verdict of Londoners. What we are not willing to do is extend to Londoners unworkable, ill-advised propositions that we would not be prepared to implement. I do not believe that any responsible government should do that. For that reason I urge the Committee to reject these amendments.
6 p.m.
Baroness Ludford: The Minister remarked early in her reply that the proposals for London government had been debated by parliamentarians for years. That is, of course, right, but they have not been debated by the people of London who have not been given that chance. They have had to say yes or no or to have their vote for particular parties at particular elections interpreted, indirectly, as an indication of their preferences. That is why it is right to have a referendum as people may have voted Labour in the general election last May for a host of reasons. They may not have focused on the proposals for London government. That is why it is right to test those proposals in a referendum. What is not right is to create a take it or leave it situation. Many of the Minister's arguments are forced and artificial. There is a danger that her arguments may be turned on their head.
The Minister said that if we adopted a two question referendum, either our version or the Conservative version, if people were unhappy about the links between the assembly and the directly elected mayor, they may be driven to vote no, no. I put it to the Minister that if there is only a single question for the package, those people who are unhappy with one element of the package—let us say that they do not want the assembly, they only want the mayor, although that is the opposite of what I believe—will be driven to vote no and the Government will not know why they have voted no. Therefore the same arguments apply to the Minister's package as apply to splitting the question into two elements.
On the same point, the Minister said that people might be driven to vote no, no because they did not know the details of the relationship we are discussing. That reinforces the arguments that were dealt with earlier this afternoon for putting a great deal more flesh on the bones of the proposals as regards the checks and balances of the assembly on the mayor. That is precisely the reason we want Londoners to have those details before they vote; namely, so that they will know the relationship between the mayor and the assembly. It is precisely because it is salutary for parliaments and governments to have to address the concerns of the people that it is wise to give people an opportunity to have a real debate and real choices.
The Minister placed a great deal of emphasis on the fact that the Government find these proposals convincing. If I may say with respect, that is neither here nor there. It is the people of London who need to be convinced by the proposals. The Minister defended herself against the charge of arrogance. I feel that she must be sensitive to that charge if she addresses it at all. That charge could be made to stick if Londoners are not given a choice in this matter. In answer to the point
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made by the noble Lord, Lord Archer, about Scotland, the Minister said that in the case of Scotland there had been two questions because there were two distinct issues—the parliament and executive for Scotland, and the tax raising powers—and that an answer of no to the tax raising question would not have destroyed the constitutional settlement because the aspects were separable. I suggest to the Minister that that is precisely the case as regards the Government's proposals for the government of London; the two elements of mayor and assembly can be separated. We see that in practice. In Paris, for example, there is an assembly which elects the mayor. In Paris there is not a directly elected mayor. It is perfectly practicable to have an assembly which elects its own mayor, leader or whatever.
I believe at one point the Minister said that people would not know whether there would be collective leadership or one leader of the assembly. I believe that she is in danger of entering the realms of fantasy. The norm of government in this country is to have a leader elected by an assembly, parliament, council or whatever. I have called some of her arguments forced and artificial. I refer to the question: why will you not allow the people of London to choose? Her only real answer to that question is: we do not want them to have the choice because we believe that we are right. The Minister does not have any credible answers and she has been forced into giving incredible responses.
I am afraid that I am guilty of the charge that was levelled by the noble Lord, Lord Archer, at my noble friend Lady Hamwee. It was I who said that I thought that the people of London would not vote for a directly elected mayor only. I could be proved wrong and I am ready to be proved wrong. I cannot say I would be happy to be proved wrong. However, that gives me, as it gives others, the strongest incentive to campaign before May to convince people according to our beliefs on what would be best for London. It is in precisely that context—and not in the context of a take it or leave it package—that Londoners are likely to be most engaged and most involved in the outcome. The people of London did not agree with the Tories when they abolished the government for London. The word "stability" has been mentioned on several occasions this afternoon. I believe there is a common wish in this Chamber to create a system of government for London which will last a long time, will be stable and will deliver good government for London. The best basis for securing that is to allow Londoners to have the maximum debate on the options.
Baroness Hamwee: I have paused to see whether there are any further contributions. My noble friend has responded to a number of points made by the Minister. When she asked what Londoners might expect by way of leadership if they voted for an assembly but not a directly elected mayor, I wrote down "Blair". As my noble friend has said, most government bodies and parliaments have a leader who is a voice of that body. It is quite reasonable—of course this would be part of the debate—to allow Londoners to make that assumption.

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The Minister said that we must not have a mayor untrammelled by an assembly. That was pretty much the same point as that made by the noble Lord, Lord Mishcon, earlier. We are still not convinced that it is possible for an assembly to have sufficient control over a directly elected mayor. That is why we want to have a debate on this matter and that is why we wish to present the two points separately to the electorate of London.
The Minister also said that if the answer is a clear no, proposals will be dropped. I fear that that could lead to shelving something which the voters want—one element of that package.
I do not think that the Minister addressed the point that the amendment proposes a preamble to set the context. However, I shall read Hansard to check whether she addressed that point.
In introducing Amendment No. 6 I said the matter is so serious and capable of continued debate that I shall be prepared to consider it again. It is an issue to which I believe we must return. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1, as amended, agreed to.
Schedule [FORM OF BALLOT PAPER]:
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): I call Amendment No. 7. If the noble Lord, Lord Bowness, intends to move it, I must point out that if the amendment is agreed to it will pre-empt Amendments Nos. 9 and 10 and I shall not be able to call them.
Lord Bowness Lord Bowness had given notice of his intention to move Amendment No. 7:
Page 6, leave out lines 3 to 7 and insert—
("Question 1: Are you in favour of a directly elected mayor for Greater London?
Put a cross (X) in one box:
YES□
NO□
Question 2: Are you in favour of a directly elected assembly for Greater London?
Put a cross (X) in one box:
YES□
NO□")
The noble Lord said: I was under the impression that I had spoken to the amendment when we discussed Amendment No. 6.
In replying to that debate, the Minister, interestingly enough, referred to the many discussions that have taken place over the years about the form of local government in London. For a moment I wondered whether she was agreeing with me that what had gone before, and what we might now undertake, was the reorganisation of local government in London.
In replying to noble Baroness, Lady Hamwee, the Minister accused me of wanting to put ill-advised propositions to the people. I ask only that we put the Government's proposals to the people. The Minister said that if there was a no vote to the composite question that the Government wish to put she would have to think again. If there were two questions, that is all that we ask the Government to do in the event of a no reply to one of them.
The referendum does not commit the Government to anything, especially if the answer is different from that which they seek. In the face of a no vote for an assembly, I would not expect the Government to legislate for an executive mayor with no checks and balances and no kind of assembly.
In Amendment No. 7 we do not ask the Government to put our alternative proposal for an assembly of borough leaders. We are putting the Government's own proposals. If that were refused by the people, the Government would have to think again; and likewise if there were a positive vote for an assembly and against a mayor.
I believe that the alternatives envisaged by the Minister regarding the outcome are too confusing and would not give the result which she suggests. However, like the noble Baroness, Lady Hamwee, I believe that the form in which we put the question is one of the most important factors in connection with the proposals. Like the noble Baroness, I shall read again carefully what the Minister said. With regard to Amendment No. 7, and the form of the question, I reserve the right to return to the matter at a later stage in our deliberations.
[Amendment No. 7 not moved.]
[Amendment No. 8 not moved.]
6.15 p.m.
Lord Bowness Lord Bowness moved Amendment No. 9:
Page 6, line 3, after ("government's") insert ("draft").
The noble Lord said: I shall not detain the Committee long on Amendment No. 9. It is very short. It provides that the word "draft" should be inserted on the form on the ballot paper. We have discussed already that these can be only draft proposals, given that we shall not seek the public's view on legislation that has already passed through Parliament. I hope that the Minister will concede that in the interests of accuracy people should understand that the proposals are not firm and that the question should include the word "draft". I beg to move.
Baroness Hayman: I understand the spirit of what the noble Lord argues. We do not believe that the amendment is necessary. We have made it clear that the White Paper will set out clear and detailed proposals for the establishment of a Greater London authority, and that the people of London will be able to make an informed decision in the referendum on the basis of those proposals.

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Clarity is tremendously important. That is one of the reasons that I argued that the more possible variations, the more uncertain the results, the less clear the position, the more one is in a position of having to analyse people's motivations for their votes.
I do not believe that inserting this single word would assist. I suspect that those who are suspicious of government would seize upon the fact that these are only draft proposals and would throw back at us that we were asking for carte blanche for draft proposals which we might change at any time in the future. We shall certainly enable Londoners to make a clear and considered judgment on clear and detailed proposals. But I do not think the suggestion that the insertion of the word "draft" would help is correct.
Lord Bowness: I thank the Minister for her reply. I do not pretend to be happy with it. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10 not moved.]
Schedule agreed to.
Clause 2 agreed to.
Clause 3 [Counting officers]:
Lord Bowness Lord Bowness moved Amendment No. 11:
Page 2, line 14, after ("certify") insert ("the total number of eligible electors in the area for which he is appointed,").
The noble Lord said: In moving Amendment No. 11 I shall speak also to Amendments Nos. 12 to 14.
In respect of Amendments Nos. 11 and 12, I believe that it is necessary and desirable properly to ascertain the measure of support in specific parts of the capital for the proposals. People will want to know how their borough voted. I hope that the Government will be able to give a favourable response to this group of amendments.
My principal concern relates to Amendments Nos. 13 and 14. Those amendments provide that at least 50 per cent. of the persons entitled to vote in the referendum shall have voted, and that at least 30 per cent. of the people entitled to vote shall have voted in favour of the proposal.
The Government have embarked upon the reorganisation of the government of Greater London. I shall be interested to hear whether the Minister perceives that as a regional or local government reorganisation. However, the Government seek the approval of the voters of Greater London through a referendum. They propose a system of regional or local government which will be unique in the United Kingdom. For the first time there will be a direct election for an executive official. The structure will not at this time be replicated in any other authority in the United Kingdom. To that end it is quite unlike any other reorganisation of the government of London which has taken place in the past.
The Minister took me to task for referring to the abolition of the former GLC as a local government reorganisation. But, I repeat, that is essentially what it was—the removal of one tier of local government in its area and a redistribution of the functions between the
984
remaining first tier authorities. That happened more recently elsewhere within the United Kingdom and was certainly not described as anything other than a local government reorganisation. It was not very different, I suggest, from the creation of the LCC or the redistribution of functions between the former metropolitan counties and the metropolitan districts. But this reorganisation will be different.
The noble Baroness, Lady Ludford, alluded to this matter in a previous debate. London has always struggled to find a lasting form of government. There is a history, albeit over different areas from time to time, of a struggle between what might be described as the top tier, or the centre, and the boroughs, the old metropolitan boroughs and, as they now exist, the London boroughs. At different times one or the other has been in the ascendency. I have no doubt that it would be to the benefit of the area of the capital as a whole if there could be an acceptance of a particular form that the governance of the capital should take.
I suggest that all the reorganisations, not merely the abolition of the GLC, have been surrounded with controversy. It would be a pity if this reorganisation suffered in the same way. One way to ensure that it does is to have a particular solution imposed upon it by a minority of voters. It is for that reason that we propose two thresholds: the first to ensure that at least 50 per cent. of the electorate, or 2½ million of the 5 million voters of Greater London, have voted; the second to ensure that the proposals are approved by at least 30 per cent. of the possible voters, or 1½ million voters, of Greater London in total. It is, I suggest a modest proposal, but one which, if accepted, would at least enable the Government to know with a degree of confidence that their proposals had the support of a majority of the people. I beg to move.
Baroness Hamwee: My noble friend Lord Tope has just suggested that I should have checked the figures before the debate. We believe that it is not impossible, indeed not unlikely, that all London boroughs. or certainly the majority of them, have governments imposed on them at local level. It had occurred to me before, although I have not pursued the figures, that were this test to be applied to some local government elections it would produce a very embarrassing answer, possibly even to some of us taking part in this debate.
We have had discussions around the question of thresholds in connection with other referendums. I do not regard it as a part of the way in which our system works to require that a threshold is to be met. It is the fault of politicians if we cannot stir up voters to express their support or opposition to whatever or whoever is being proposed. After all, our voters have the right not to vote.
I wonder too in this case what the outcome would be if the thresholds were not met. Would there be no government for London and no mayor? Or would it mean, in the case of members of the assembly, members for some parts of London but not for others? I simply leave that idea hanging in the air.

985
We do not support—in fact we very much oppose—the suggestion of thresholds both for turnout and for support. It may be that our democracy in the United Kingdom will move forward and that better turnouts will be achieved. I do not believe that requiring a level of turnout is the way to achieve participation in the democratic process.
Lord Archer of Weston-Super-Mare: I wonder whether the Minister would consider the comments made by the noble Baroness, Lady Hamwee, at Second Reading, which I expected her to mention. I think that everybody in this Chamber who believes that London needs a mayor, a Greater London authority, or whatever it might be, believes it would be sensible for as many people as possible to vote. It would not be incredible to suggest that if the turnout was over 50 per cent. one would feel more confident.
I gained the impression from the Secretary of State for Scotland that one of the things that most delighted him was the turnout in the Scottish referendum. I believe exactly the same. It is vitally important that we have a high turnout.
To return to my former point, I wonder whether the Minister will reconsider the point made by the noble Baroness, Lady Hamwee. Perhaps the time allowed for voting on this one occasion should be extended. No one could then say that the voting figures would have been higher if people coming into London early in the morning and those going out of London late at night had had the opportunity to give their opinion. Will the Minister be kind enough to consider that point?
Baroness Hayman: We shall deal with the issue of opening hours when we debate a separate amendment shortly. However, it is interesting that the noble Lord, Lord Archer, poses the question in that way. The debate then enters the realms of matters raised in relation to the two questions—of analysing the "might-have-beens", the motivations, the "what-would-have-happened-ifs", and of what people really meant when they voted "yes" to one and "no" to the other. It raises all sorts of elements that work against clarity and simplicity. We believe that there are great virtues in clarity and simplicity in terms of this referendum.
The Government are opposed to artificial thresholds. We very much support the view of the noble Baroness, Lady Hamwee, in her contribution to the debate on the amendment rather than on her specific point at Second Reading about the dangers of artificial thresholds. They can be turned into wrecking devices, and any figures are open to argument and interpretation.
As my honourable friend the Minister for Transport in London made clear in another place, this referendum will be advisory, as is the case with all pre-legislative referenda. The referendum is a device employed by Parliament to test the views of the public on a clear proposition and point of principle—in this case whether Londoners are in favour of our plans for a Greater London authority.
986
After the referendum it will be for the Government and Parliament to reflect on the results. That is why the insertion of any form of threshold would be inappropriate. The people of London will vote in a referendum and Parliament will take that vote into account. I share the views expressed about maximising the turnout. There are many effective ways of stimulating interest and making people feel really involved in the issue.
While I do not want to bandy definitions and semantics with the noble Lord, Lord Bowness, I hope and believe that when we come to the election for the Greater London authority, it will be seen as less dry than simply a reorganisation of local government. We are seeking to create strategic city-wide leadership for the capital of this country. That is an exciting and important development. We need the commitment and participation of as many Londoners as possible.
We are confident that we shall have a high turnout in May and a real vote of clear support for our proposals. But even in the event of a low turnout, there is no case for allowing those who stay at home effectively to be counted as "no" votes. That is reading into them a motivation of which we cannot be certain. Staying at home hardly indicates burning opposition. If Londoners wish to accept or reject our proposals, they must participate in the referendum. We will give them that opportunity, and encourage them to use it. That we believe is the democratic way to proceed.
These amendments, if enacted, could produce a situation where we held a referendum, the people of London could turn out in their millions to make their democratic choice and the chief counting officer would be unable to certify the results if fewer than 50 per cent. or 30 per cent. had voted in a manner acceptable to the noble Lord, Lord Bowness, in his proposition. That would be a ridiculous situation. The people of London deserve to know how they have voted. Parliament, having provided for the referendum, would be entitled to ask what the answer was. It would then be obliged to take account of that answer and the votes cast. They would have to consider them in their deliberations. But I suggest to the Committee that imposing false and arbitrary thresholds would not be helpful on this occasion. I urge the noble Lord to withdraw his amendment.
6.30 p.m.
Lord Elton: Before my noble friend replies, perhaps I may comment on what the noble Baroness said in opening. She invited the Committee to remember that this was merely an advisory process and that it would be open to Parliament thereafter to decide that, because a turnout had been low, the "yes" vote was not sufficiently vigorous to justify a change.
The reality is that—and Wales is the proof of this—if there is the narrowest of majorities or the lowest of turnouts, the Government will let out a shout of delight and say: "This is what London wants". Therefore we have to treat it as though it is more than an advisory device, as though a substantive question was being answered.

987
That brings me to the point made by the noble Baroness, Lady Hamwee, which was taken up by the Minister. My noble friend referred to her Second Reading speech and, not having heard it, I pause for a moment to recollect. The noble Baroness said that as in an election, one should be satisfied with a low turnout and if one objected to the result of an election or a referendum on a low turnout, one should also object to the imposition, by minority, of a government on a local authority or on the whole of London.
That is not a fair comparison because when we come to a general election or local authority election we have to produce an incoming administration. We cannot have a vacuum. Someone must appoint whoever will occupy the position of power for the next four years or however long it is. But we do not have to have a change in London; it is perfectly acceptable to leave things as they are. It would not be an end to the world, nor would there be an end to the government of London. Therefore, we need more than acquiescence by a majority in a decision by a minority. That adds great strength to my noble friend's argument that there should be a threshold. Perhaps the Minister would like to tell us whether she would regard a majority on a 25 per cent. turnout as being sufficient grounds for endorsing the Government's policy.
Lord Harris of Greenwich: I find some of the arguments which have been addressed by the Conservative Party during this debate pretty strange. The noble Baroness referred to the idea that non-voters could impose a veto, but in my view that is ludicrous. If people feel strongly on the issue or have a firm view one way or the other, they will come out and vote. If there is a disappointingly low turnout, the Conservative Party and those who agree with it can use it in the argument which will take place in both Houses. However, the idea that the non-voter can veto a major proposal for a constitutional change is one of the strangest that I have ever heard in this Chamber.
Baroness Hayman: I am not sure that I can add a great deal to that. Perhaps I may respond once again on the issues. We are opposed to artificial thresholds. The results of the referendum will have to be considered by both government and Parliament. Government have made quite clear that if the proposals are not voted for by a majority then they will not pursue them. That is a risk that we will take. We would be disappointed, but we will respect the democratic will of the people of London and reflect it. Once we go beyond that proposition, we get into a murky area. We run into all the dangers of interpreting the votes of people who abstained. I suggest that that is dangerous and urge the noble Lord to withdraw his amendment.
Lord Bowness: I thank the Minister for her reply. Perhaps I may deal with the points made by the noble Baroness, Lady Hamwee. Like my noble friend Lord Elton, I consider there to be a significant difference between elections and what the Liberal Democrat Front Bench has just described as "constitutional change". The desire to have constitutional change endorsed by a
988
significant majority rather than imposed by a small minority is something about which we are entitled to be concerned.
Baroness Hamwee: Perhaps I may intervene, if the Minister—I mean the noble Lord. The slip was not even Freudian. If the noble Lord, Lord Bowness, has finished demolishing me, perhaps I may ask him where his proposition fits in with the Salisbury convention. I do not understand. One can have a minority of people voting for a government who have said that they will take certain constitutional changes forward, but when putting them to the vote one requires a particular threshold, whatever the vote for that government in the first place.
Lord Bowness: I am sorry if I gave the impression of seeking to demolish the noble Baroness. I certainly would not wish to take such drastic action.
It is quite novel for someone from the Opposition Front Bench to be put in the position of answering questions. I am not sure that I have to answer, but I shall do so. We return again to the point that the Government have chosen to take the matter forward by way of a referendum. As has already been said this afternoon, of course there was an election; of course the Government have manifesto commitments and they could have chosen to legislate for this arrangement in London without putting it to a referendum. Having decided that it should go to a referendum, it is entirely legitimate for us to argue that we want to satisfy ourselves that a majority of people in London are in support.
My noble friend Lord Elton referred to the Minister's remarks about the referendum being advisory and the Government having to reflect on the result. There seems to me to be a difference in the views being expressed by the Minister. On the one hand she says that the Government would have to reflect on the result. On the other hand she appears to accept that a "yes" vote would give the Government all the authority they need to proceed with their proposition.
If there is to be genuine reflection, then I ask the Minister how derisory the vote has to be before the Government do not proceed with their proposals. What is the threshold that the Minister would find acceptable? Clearly, by saying that the Government would reflect upon the result, the Minister must have in her mind a result which would put into question the implementation of the proposals. It seems to me to be entirely appropriate that we should seek proper endorsement of the proposals. These amendments are in a group and the Minister did not deal with Amendments Nos. 11 and 12 and the declarations in respect of various entries. But whatever her response, if she is to make one, I shall wish to press the point made in Amendment No. 13 when it is put to the Committee.
Baroness Hayman: As regards the issue of reflection on the result, Parliament would reflect on the result of an advisory referendum. It is not possible for a referendum to bind Parliament. Parliament must scrutinise the legislation.

989
The Government have made their position clear. The threshold for acting is a majority of those voting being in favour of the proposition. That is the only clear way to proceed, otherwise we are making assumptions about the opinions of those who have not voted that we cannot justify. We would be in the same position as before of discussing the difficulty of interpreting motivation.
Those who have stayed at home are said to have voted against the proposition. But it could equally be said that they were in favour of the proposition, because if they were profoundly opposed they would have gone and voted accordingly. It is not in the interests of clarity or good government to have artificial thresholds. We have made our position clear. It is not possible to bind Parliament by referendum. I made the point that Parliament would reflect on both the turnout and the views expressed.
Lord Bowness: I do not wish to detain the Committee unnecessarily. The Minister has not dealt with Amendments Nos. 11 and 12, but perhaps we can come back to those at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 12 not moved.]
Lord Bowness Lord Bowness moved Amendment No. 13:
Page 2, line 19, at end insert—
("( ) The Chief Counting Officer shall not certify the total of votes cast for each answer under subsection (4) above unless at least 50 per cent. of the persons entitled to vote in the referendum for the whole of Greater London have voted.").
The noble Lord said: I have already spoken to this amendment. I beg to move.
6.42 p.m.
On Question, Whether the said amendment (No. 13) shall be agreed to?
*Their Lordships divided: Contents, 71; Not-Contents, 141.

Division No. 3

CONTENTS

Banbury of Southam, L.

Dean of Harptree, L.

Belstead, L.

Dixon-Smith, L.

Berners, B.

Downshire, M.

Bethell, L.

Elton, L.

Birdwood, L.

Fairhaven, L.

Blaker, L.

Fookes, B.

Blatch, B.

Gardner of Parkes, B.

Bowness, L.

Gisborough, L.

Brabazon of Tara, L.

Gray of Contin, L.

Burnham, L. [Teller.]

Harlech, L.

Byford, B.

Higgins, L.

Carnegy of Lour, B.

Holderness, L.

Carnock, L.

HolmPatrick, L.

Chelmsford, V.

Home, E.

Chesham, L.

Howe, E.

Coleridge, L.

Inchcape, E.

Colwyn, L.

Inglewood, L.

Cope of Berkeley, L.

Jenkin of Roding, L.

Craigmyle, L.

Jopling, L.

Crickhowell, L.

Keyes, L.

990

Kimball, L.

Rotherwick, L.

Kingsland, L.

Ryder of Wensum, L.

Knight of Collingtree, B.

Seccombe, B.

Luke, L.

Selkirk of Douglas, L.

Marlesford, L.

Sharples, B.

Massereene and Ferrard, V.

Shaw of Northstead, L.

Merrivale, L.

Skelmersdale, L.

Miller of Hendon, B.

Sterling of Plaistow, L.

Monro of Langholm, L.

Stockton, E.

Mottistone, L.

Stodart of Leaston, L.

Murton of Lindisfame, L.

Strathclyde, L. [Teller.]

Naseby, L.

Thomas of Gwydir, L.

Newall, L.

Trumpington, B.

Palmer, L.

Tugendhat, L.

Park of Monmouth, B.

Wilcox, B.

Young, B.

[*The Tellers for the Not-Contents reported 141 names. The Clerks recorded 140 names.]
6.53 p.m.
[Amendment No. 14 not moved.
Clause 3 agreed to.
Clause 4 [Referendum: supplementary]:
Lord Bowness Lord Bowness moved Amendment No. 15:
Page 2, line 26, after ("shall"), insert (", subject to subsection (IA) below,").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 16. There has already been reference to the hours the polls will be open. Since by common consent it appears that this referendum is more than a mere local government matter, it seems that the voters should be given the maximum opportunity to cast their votes. I am sure we will be told that if that were to happen it would create enormous difficulties. However, I believe that every effort must be made to overcome them.
Two elections on the same day is not unknown. Indeed, that is what is proposed in this instance. The referendum question or questions will he on separate ballot papers from those being issued for the local government election taking place on the same date. We ask that polling stations should be open for the extra hours. I am not a returning officer and it is not for me to go into the practicalities, but if there is a statutory prohibition on local government voting papers being issued between specified hours, then between those hours no local government papers will be issued. If people want to vote in the local elections and referendum they will attend the poling station during the normal local government polling hours. If they wish to vote in the referendum but are unable or unwilling to vote for their council candidate, they may attend during the extended hours. Indeed, it must be the case that any voter attending during the normal local government voting hours can exercise a choice as to whether he or she votes in one or both polls being held on the same day. Therefore, the voters may create some of the difficulties which it may be suggested would be caused by accepting the amendment.
Similarly, there must have been instances—indeed there were on 1st May this year—of parliamentary elections being held on the same day as local elections.
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I am sure that the great experience of returning officers across Greater London can be drawn upon to cope with this matter. We have to remember that we are talking about Greater London. We are talking about a high proportion of the voters being commuters, many of whom will leave home very early to get into central London and many of whom will return home very late at night.
On an earlier amendment I emphasised the need for there being acceptance of the outcome and some stability in the future governance of Greater London. Therefore, whatever the outcome of the referendum, the participation of the greatest number of people is to be encouraged. I beg to move.
Baroness Hamwee: I was grateful for the introduction to this amendment given to me earlier by the noble Lord, Lord Archer of Weston-Super-Mare. We support the amendments. As I said at Second Reading, and as the noble Lord, Lord Bowness, has said, if we expect people who live on the outskirts of Greater London and who work the long hours which so many people do work in central London to be able to take part in this election—we want as many as possible to take part—we should seriously consider the extension of hours proposed in the amendment.
I appreciate that there are more possibilities for postal and proxy votes than there were some years ago. The regulations governing postal and proxy votes have been loosened. Nevertheless, applications for postal and proxy votes have to be in so relatively early during the course of any campaign that when one knocks on a door during an election campaign one finds voters who say, "I have missed it. I did not know that I could apply for a proxy vote. I am almost always away from home for hours which preclude me from voting between 8 a.m. and 9 p.m. and it is now too late. I have lost my democratic rights". I have been embarrassed when trying to explain and to some extent defend that system.
Local elections should take place between the hours of 7 a.m. and 10 p.m. Indeed, I suggest that there could be some confusion. I differ from the noble Lord, Lord Bowness, on this point. It would he preferable for the hours of the referendum and the local council elections to be the same. I am not aware of what the technical requirements would be to change the hours of local government elections. Perhaps this is the opportunity to ask the Minister to explain what would be required to extend the hours for that one occasion. I hope that the Government will be addressing this point in their review of local government. On this occasion I believe that Londoners should be given the opportunity to vote before 8 a.m. and after 9 p.m. on both matters.
Lord Monson: Perhaps I may put a contrary view. To keep polling stations open for 15 hours at a stretch is an expensive business, particularly if the count then has to take place in the small hours of the morning, as usually happens. I take the points made by other noble Lords about commuters. However, as I understand it, in the United States the voting for presidential elections and all other elections normally finishes at about 6 p.m.

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Commuting distances in the United States are probably greater on average than they are in this country. Therefore, I am not in favour of the amendment.
7 p.m.
Lord Archer of Weston-Super-Mare: Perhaps I may speak against that. The impression is that polling finishes at 6 p.m. It finishes in one part of America three hours before that takes place in another part of America. That gives the impression of voting finishing at 6 p.m., but it carries on until 9 o'clock. I still feel very strongly that this is a one-off situation. Even if the Minister is going to speak against this amendment, I wonder whether she might consider going back and saying that there is strong feeling on the matter. It is a one-off situation.
In the previous debate the Minister said that she hoped that there would be many ways—and I totally agree with her—of getting people to vote. There is the need to gain their enthusiasm and let them know that this great debate is taking place. They need to know that the vote is taking place.
The truth of the matter is that we live in the goldfish bowl of politics. We discuss it every day of our lives. Those of us who have worked in the other place or who have canvassed on the street, know that people are not all that interested in politics. Only a tiny percentage of us are vitally interested in it. In order to make sure that we get everyone who possibly can to vote on the subject, I believe that the Government should reconsider and say, "Let us on this one occasion have no excuses for there not being a high vote. Let us have no excuses at all so on this one occasion let us have a vote that starts at 7 a.m. and ends at 10 p.m.".
I can understand the Minister being told by civil servants, "This will cost a lot of money and be very inconvenient. It will be hard to carry out". Why do we not just say, "Rubbish! We want to carry it out and get the highest vote possible"? If, as the noble Baroness, Lady Hamwee, said, in local government reorganisation this matter is already being considered, perhaps this referendum is the ideal event on which to make it work. I ask the Minister to reconsider this matter very seriously indeed because I know that she wants the highest vote possible.
Lord Tugendhat: Perhaps I may briefly support my noble friend Lord Archer of Weston-Super-Mare on this point. I take up the reference to the United States. I believe it to be notoriously the fact that voting figures in the United States are among the lowest in the Western world. Perhaps the rather limited voting hours contribute to that. It is also a sad fact—I speak as a former London MP, although that was a long time ago—that the turnout in London tends to be rather lower than in the rest of the country. There are a number of reasons for that. It is difficult to maintain the register. People move from one flat to another and so forth. Nonetheless, there are very great difficulties about voting in London. The turnout figures at national, local and European elections reflect that situation.
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Therefore, when there is a one-off poll of this sort in the process of creating a new system of government in the nation's capital, it seems, as my noble friend said, extremely important that there should be the maximum turnout, whichever way people wish to vote. Therefore, if one is going to keep the polls open longer there is a very clear justification for it.
I add one final thing. I know that we have a modernising government and one that believes in a young Britain and all the rest of it. Therefore, it will not have escaped the attention of Ministers that shops, offices, places of business and entertainment now keep very different hours from the past. If the Government are going to modernise our institutions, including, as I understand it—and there is a committee meeting this very day—this House; if they are going to change the State Opening of Parliament and all kinds of other things, it is a very small request to make that they should try to ensure that the largest possible number of Londoners can vote in a matter that concerns them as deeply as this.
Baroness Hayman: I certainly share the views which have been expressed that we should try to make sure that the largest possible number of Londoners participate in the vote on the setting up of the Greater London authority. For that reason I welcome the sentiments behind these amendments. It is clearly in the interests of democracy that all who wish to vote are able to do so. That consideration is at the heart of the Government's plans for the referendum.
I am interested in the points made about how in future we may think about less conventional ways, if I may put it that way, of voting and enabling people to register their choice, and may perhaps think a little more outside the box than simply adding an hour in the early morning and late at night. Any time that one adds an hour and has cut-off hours, there will be some people whose working or travelling patterns are affected by that.
Details for the combined poll will properly be addressed in secondary legislation. I am pleased to be able to inform the Committee that draft secondary legislation was placed in the Library of the House yesterday. I hope that that will answer some of the queries of the noble Lord, Lord Bowness, that he felt I had not addressed on previous amendments. I hope that makes it absolutely clear that it will be possible to see, from the declaration of local results, borough by borough, how people have voted. We have no interest in being anything other than transparent in these issues.
It is our intention that, as far as possible, arrangements for the referendum should mirror those for borough elections. Arrangements for local polls, including opening hours, are well established. I agree with the noble Baroness, Lady Hamwee, that it would be very confusing to have two different sets of hours operating for the two elections that are taking place. When general and local elections coincide on the same day, the hours are standardised. We intend to do that for London, but to follow local polling hours. Obviously, that is not a course of action that Members of the Committee have suggested.

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I believe that there is little evidence advanced to the effect that extending the voting hours would have the sort of marked effect on turnout that we are all seeking to achieve. Turnout in London elections was 46 per cent. in 1994 and 48 per cent. in 1990. It is already relatively high for local elections. It suggests that perhaps polling hours are a less significant influence on voting behaviour in London than in places such as rural Scotland or rural Wales, where people may have to travel very considerable distances to vote.
Nevertheless, I take the point that has been made during the Committee's deliberations, that there are difficulties for those who have long journeys to work, those who work particularly long hours or those who have other difficulties in getting away from work. We are committed to ensuring that everyone who wants a vote can get one, either in person, by post or by proxy. Those who cannot attend their local polling station because of personal or work commitments would be able to apply for an absent vote. The availability of absent votes is going to be central to the publicity campaign, making it clear to Londoners that the referendum is taking place.
Lord Archer of Weston-Super-Mare: Do the Government yet know what the word "absent" means? Will it mean, "I cannot be at my place of voting because of work in central London" or does it mean that one has to be abroad or away completely?
Baroness Hayman: The absent voting regulations are much more generous now than they were when I was fighting elections and perhaps when the noble Lord, Lord Archer, was doing so as well. Anyone whose circumstances, including their work situation, are such that they cannot reasonably be expected to get to their polling station during polling hours is entitled to an absent vote under Section 7 of the Representation of the People Act 1985. It is certainly not a matter, which was my preconception, that one had to certify that one would be abroad or anything like that. The regulations are much more widely drawn now.
It is quite simple to apply to the electoral registration officer to do so. As I have said, we shall be taking steps to ensure that how to do so is much more widely known. I believe that the problem is much more with people not understanding the availability of proxy votes than it is with opening hours. Absent votes can either be in person, by post or at the polling station by proxy—that is if one can get someone else to go to the polling station on one's behalf.
We are committed to spreading the message that everyone who wishes to vote will be able to do so. The Committee may be interested to know that we are already talking to several major employers to explore how we can reach specific groups of workers who may have difficulty in getting to a polling station and encourage them to register for an absent vote. We want to ensure that everyone has the opportunity to exercise their democratic rights in both the referendum and the local elections. I hope that there will be a spin-off in terms of increased turnout for the local elections.
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I have set out our plans for maximising voter participation. I do not believe extending the hours for the referendum poll to run from 7 a.m. until 10 p.m. would add significantly to that effort.
Extending the referendum vote would cost more, delay the count and, we believe, provide very little advantage in terms of increased turnout, certainly compared to what a wholehearted campaign about publicising absent votes could achieve. A combined poll in which people could cast one vote but not another at certain times would be near impossible to administer. Extending polling hours for local elections would create severe administrative problems for boroughs. Local authorities prepare well in advance for their own polls and would not thank us for additional complications, especially when they have the extra burden this year of preparing for a combined poll. It is not simply a matter of Whitehall civil servants. It is a question of taking into account those who actually have to administer such elections.
I hope that I have been able to allay any concerns about the way in which we intend to proceed. I stress once again that anyone who is unable to vote because of work or other commitments will be entitled to an absent vote. I urge the noble Lord, Lord Bowness, to withdraw his amendment.
Baroness Hamwee: I do not know whether the Minister can help the Committee with regard to what would be required to extend the voting hours for council elections on the same day. I raised that matter earlier because I accept the point about difficulty and confusion arising if the voting hours were different.
The Minister says that the Government do not believe that there would be any significant advantage to be gained by extending the hours. My observations are personal and, I suppose, anecdotal. However, over many years I have been aware that in my area where turnout at local elections is generally over 60 per cent.—it is not an area in which people do not take any notice of what goes on—many people find themselves unable to vote despite an awful lot of literature coming through the door and very many reminders from people knocking on doors about the absent vote facility, of which the Minister reminded the Committee.
I have seen people in substantial numbers in polling stations early in the morning and late at night during general elections. The Minister sounds confident, but I shall be interested to know whether the Government have any hard evidence about the hours of the day at which people tend to vote.
Lord Harris of Greenwich: I wonder whether the Minister will reflect further on this matter before we return to the Bill on Report. If she does so, that would probably enable her to answer the specific question put by my noble friend Lady Hamwee about whether it would be possible to make arrangements to extend the hours of local government elections before the poll for the referendum. That is an important consideration.
During the Minister's speech I noted one phrase which is an old friend from the past. The noble Baroness referred to "well tried and tested arrangements." Some

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of the most unconvincing speeches I made when I was a Home Office Minister contained those dread words prepared by officials. If it is argued that relatively few additional people would vote if the hours were extended by two hours in the way suggested, it raises the question of whether we could save a great deal of money by limiting the hours of voting during parliamentary elections. I should be surprised if the present Government took that view; we would certainly be firmly opposed to it. I am not asking the Minister to commit herself to anything, but it would be helpful if she could at least reflect on the matter between now and Report.
7.15 p.m.
Baroness Hayman: I wish to be helpful to the Committee but I am also anxious not to deceive noble Lords in terms of a commitment to move on this issue. The Government are extremely concerned about the difficulties that would be caused by extending the hours for this poll. It would be expensive, administratively disruptive and would delay the results of the local elections. It is not impossible to do it; it could be done by secondary legislation.
In the sense that I cannot give the noble Baroness, Lady Hamwee, the answer to her question about the number of people who vote at particular times, I am willing to take that point away and return to it on Report. We all live by anecdote and I suspect that some people will always just miss the poll whatever the time at which it opens and closes. Therefore, there is an inherent difficulty in that proposition. However, if it would help the Committee if I were to bring back whatever evidence we have about voting patterns and flows, I certainly undertake to do so on Report. I cannot say with any confidence, however, the Government having taken a firm view in another place, that they will do anything other than that on Report.
Lord Elton: The Minister said that draft secondary legislation was available in the Library. I have had a quick look at it. The draft proposes that the hours of polling shall be between 8 a.m. and 9 p.m. on the day in question. However, that is a draft. I wonder whether the Minister will be able to tell us on Report what arrangements might be made to enable us to discuss that draft effectively. By convention, this House cannot amend subordinate legislation. Therefore, some sort of debate would be required before the subordinate legislation could be formally tabled. It may take a little time to work out how to get round that, but it will be worthwhile if the Minister could do so between now and Report stage.
Baroness Hayman: That is another reason for saying that I shall consider something rather than give an immediate response to it. I cannot give the noble Lord an off-the-cuff response, but I shall certainly look into the issue.
Lord Bowness: I am grateful to the Minister for her response to this amendment and the debate. I am sorry
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that the decision has at this stage been made to standardise on the local government hours of voting rather than on the parliamentary hours of voting. I understand the argument about expense. Whether or not that expense is worthwhile is another argument. I am not sure that I understand the point about administrative problems, given that the hours 7 a.m. to 10 p.m. are used for parliamentary elections. However, I look forward to hearing the Minister's response on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved.]
Clause 4 agreed to.
[Amendment No. 17 not moved.]
Clause 5 agreed to.
Clause 6 [Exclusion of legal proceedings]:
On Question, Whether Clause 6 shall stand part of the Bill?
Lord Bowness: I hope that I shall not take up too much of the time of the Committee, but the wording of Clause 6 is specific. It states:
"No court shall entertain any proceedings for questioning the number of ballot papers counted or votes cast".
That is very specific indeed.
The Minister in another place, on 24th November at col. 715, said that it would be for the courts to reach a view on whether they should entertain such an application. He said:
"They would reach judgment as to whether in practice clause 6 should apply, or whether it should not because it would be wrong for it to oust their jurisdiction".
The Minister later said:
"When first considering the clause, I expressed some concerns on that ground, but I am satisfied that this is a proper provision, which is designed to prevent frivolous challenges, while not preventing a genuine challenge".
Lastly, in the same column he said:
"I hope that I have satisfied the Committee that the clause is a safeguard to prevent frivolous litigation. It does not cut across fundamental rights".—[Official Report, Commons; 24/11/97: col. 715.)
I hope that in replying to this debate the Minister can tell us why the clause does not mean what it actually says. It is very specific. The Minister is aware that there have been concerns expressed about some elements of the Welsh referendum. I believe it is inappropriate that we should seek to pass legislation which on its face ousts the jurisdiction of the courts. I am aware that there was a similar provision in the Welsh and Scottish Bills. While that may be claimed as a precedent, it does not mean necessarily that that is a good thing. Without wishing to detain the Committee any longer, perhaps the Minister can concentrate on the assurances given by her colleague in another place. Can she explain to the Committee why this does not mean what it says?
Baroness Hayman: Clause 6 is a valuable protection to ensure that the Government can respond swiftly to the referendum results. I and other Ministers share the difficulty experienced by the noble Lord, Lord Bowness.

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The clause does not prohibit legal challenge where there has been some form of misconduct about a referendum count. The purpose of the clause is the same as that behind the equivalent clauses in the Referendum Act 1975, the Scotland and Wales Acts of 1978 and the Referendums (Scotland and Wales) Act 1997. There is therefore precedent for this measure in previous legislation. Perhaps the noble Lord will say that that is another phrase that I should not be using at the Dispatch Box. The noble Lord, Lord Bowness, said that issues had been raised about the conduct of the referendum in Wales. I understand that my right honourable friend the Secretary of State for Wales has today answered comprehensively a Parliamentary Question in another place on that topic.
I return to the intent of this particular clause. This clause is designed to prevent a frivolous challenge to the counting of votes or ballot papers. The Government recognise that the provisions in the Bill do not amount to an absolute bar on legal proceedings as the courts may construe Clause 6 as not ousting their jurisdiction in appropriate cases, such as one involving a flagrant breach of the law by a counting officer in the conduct of the referendum. I can assure the Committee that there is no question of the courts being unable to consider appropriate cases. We recognise that the courts are rightly jealous of their jurisdiction and look carefully at clauses that seek to oust their powers. There is therefore a substantial body of case law concerning the proper interpretation of such statutory provisions. Should any legal proceedings be brought challenging the actions of the chief counting officer or a counting officer it would be for the court in accordance with case law and the particular circumstances of the case to decide whether a challenge should be entertained in the light of Clause 6. For example, if it could be shown that a counting officer had failed to carry out his statutory duties or had acted in any way deemed to be ultra vires the courts might intervene despite the terms of this clause.
I hope that I have reassured the noble Lord and that he will feel able to support the clause.
Lord Bowness: I am grateful to the Minister. I always experience difficulty in pursuing legal matters in this House. Perhaps I should not take this point any further. The Minister has informed the Committee that the precedent lies in the Welsh and Scottish Bills. Of course, a clause of this kind has not been tested subsequent to the passing of those Bills. The words "any proceedings" give me great cause for concern. However, I shall read what the Minister has said.
Clause 6 agreed to.
[Amendments Nos. 18 to 20 not moved.]
Clause 7 [Functions of the Local Government Commission]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 21:
Page 3, line 15, leave out ("If the Secretary of State so directs,").
The noble Baroness said: I beg to move Amendment No. 21 and speak also to Amendments Nos. 27 and 34. At first glance the Bill appears to leave to the Local Government Commission a considerable amount of flexibility and discretion with regard to a number of
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important matters. However, at second glance the Local Government Commission can submit a report only if it is so directed by the Secretary of State. The first amendment in this group seeks to take out the opening words of this clause so that the commission is required by statute to report and is not dependent upon the direction of the Secretary of State. Further, the direction that the Government propose should be given by the Secretary of State under subsection (2) which I seek to remove is one that covers the total number of electoral areas and the total number of members.
These are important matters. The number of electoral areas and the number of members are inter-dependent and inextricably part of decisions about the electoral systems. For the purposes of this debate I take it as read that there will be two elections, one for the mayor and one for the members of the assembly. In a later grouping of amendments we shall debate the importance of systems that allow for proportionality and voter choice. In this group of amendments I seek to ensure that the hands of the Local Government Commission are not fettered by an imposed direction that will enable it to undertake only a technical exercise as to how to implement the Government's preferred system. I beg to move.
Baroness Hayman: These amendments remove the power to issue a direction to the Local Government Commission specifying matters such as the total number of electoral areas and members for which the recommendations in the commission's report must provide. When we debate the next group of amendments perhaps we shall see more clearly precisely why they have been proposed. We believe that these amendments are unnecessary. The White Paper will make our proposals on electoral arrangements quite explicit. The Local Government Commission will have to operate within a clear policy framework when it draws up its recommendations on the boundaries and the number of members of electoral areas in Greater London. The directions provided for in the Bill will reflect the policy proposals set out in the White Paper. These will include matters such as the number of electoral areas and the members of the assembly. The White Paper will be crucial in helping Londoners to decide how to vote in the referendum. I do not believe that it would be helpful to suggest that there should be no mechanism by which the commission should be instructed to take account of the White Paper and to leave out critical details upon which Londoners had voted. That does not sit very comfortably with giving Londoners a real choice.
The commission and Secretary of State will be operating in the context of a clear policy framework set out in the White Paper. Government policy with respect to electoral systems, the number of electoral areas and the number of assembly members will have been made explicit. The discretion of the Secretary of State will therefore be far more limited than some people have believed. The approach here is well precedented. The provisions contained in Part II of the Bill are based on those in Part II of the Local Government Act 1992 which provide for the structural review of English local government and for periodic electoral reviews of counties and districts.

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I emphasise that there is clear precedent for the provisions in Part II of the Bill. Clause 7(2) is necessary in recognition of the fact that the commission is concerned with first elections rather than reviewing existing arrangements and enables the Secretary of State to set the detailed policy framework that will have been outlined in the White Paper.
We therefore believe that our proposals in Part II follow another well-precedented approach. I stress again that clear detail will have been laid out in the White Paper. It is only right in that context that a mechanism should exist for directing the commission to take that into account when drafting its report. I hope that the noble Baroness will feel able to withdraw the amendment.
7.30 p.m.
Baroness Hamwee: It is probably better to have the debate on the later group of amendments at this stage, because we seem to have consequential amendments which precede substantive amendments. I feel almost as simple as the noble Lord, Lord Mishcon. I shall await that debate, and read the Minister's answer on this group of amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ludford Baroness Ludford moved Amendment No. 22:
Page 3, line 18, leave out ("him") and insert ("the Secretary of State").
The noble Baroness said: This set of amendments provides for an open, consultative method of arriving at the best electoral arrangements for a democratic and representative London assembly. If Clauses 7 to 11 stand as drafted there will be little scope for the LGC to be creative and consultative, because the directions as to electoral areas are constraining. The number of members and even the names of the constituencies will be subject to directions. That does not leave a great deal for the LGC to consult upon and involve other parties in arriving at its recommendations.
Perhaps I can contrast that, first, with the Jenkins Committee on electoral reform, which has already been mentioned today, which was given a set of criteria against which to work but which was otherwise free to think the thinkable. The second contrast is with the experience of Scotland, where the Scottish Constitutional Convention worked in a consensual way, bringing together not merely parties but trade unions, churches and voluntary organisations. Part of the reason for the massive Yes vote in Scotland was that the groundwork had been through that consensual, consultative method. We want no less for London.
The Secretary of State's ability to give guidance to the LGC, meets part of the test that the Minister mentioned in her previous remarks. It is true that guidance is better than directions. The amendment would enable the Secretary of State to require the commission to have regard to it. I think the Minister used the phrase "have regard to", or "take account of'.
The reserve power remains under Clause 9, that once the report is submitted to the Secretary of State, in accordance with Clause 7, the Secretary of State may then direct the commission to submit a further report. In the first instance, we propose that the LGC should be given a framework within which it can come up with a system which is likely to receive the maximum support and, again, meet the test of long-term stability and consent.
The amendments provide that the matters upon which the Secretary of State may give guidance could include—it is obviously not an exhaustive list—the timetable for the report, and criteria such as fairness, proportionality and voter choice.
We on these Benches start with the motive that we want an effective assembly with popular support, not one crippled from the start by a bad voting system. We contend that a bad voting system would be first-past-the-post. We see the dangers created by a one-party state with disaffected voters who are alienated and so often do not turn out to vote. That has produced examples such as Hackney, Glasgow and Doncaster and, to some extent, the GLC. The first-past-the-post system is tried and tested, but it may be the residents who have been tried and tested by the experience of living under first-past-the-post regimes. We believe that there should be a proportional system which reflects London's diversity and ensures a fair, geographic spread of representation.
Voter choice is an important criterion to which the LGC should have regard. That principle is essential in order to reflect the diversity of London's population, and to achieve gender balance. Ethnic minority representation is important in London. It will come as no surprise to the Committee to hear that the preference of the Liberal Democrats is the STV which gives the optimum combination of voter empowerment to express preferences and proportionality between parties. We favour the pure form of STV as used in Ireland, North and South. The Committee need not fear that I shall launch into a discussion of all the possible permutations of STV or any other system, because I am not qualified to do so. Obviously the test of a Liberal Democrat is that one can run an STV election, and unfortunately I cannot.
I want the LGC to go into all the possible permutations. One of the things it might look at is the 50-page report produced by the Electoral Reform Society in response to the Government's Green Paper. That is meaty material. We on these Benches will undoubtedly have to compromise on what will emerge as the eventual system, as will others, to achieve our goal of a consensual system suitable for London.
It is also our view that a genuine constituency basis is needed. The commission would need to look at the best configuration of constituencies. If it were already subject to a direction from the Secretary of State to specify the electoral areas, the number of members and the names of the constituencies, it would be so hide-bound that it would be unable to come up with the best solution. A London-wide single list would, even if proportional, fail to reflect the diversity of Londoners and fail to make Londoners feel that that body belonged to them by reflecting geographical differences.
The commission must also consider the size of an assembly. We believe that it must be large enough to achieve proportionality and to allow all Londoners to feel represented. There is a danger that that will not be achieved if the assembly is too small. However, if it is too large we shall have the problems experienced by the GLC. We also want it to be large enough to provide enough person power to carry out the work of scrutinising the mayor. The Government put emphasis on that. We believe that a membership of 40 or 50 best meets that criterion. However, we are arguing for the Local Government Commission to bring together a forum of interested parties—political parties, voluntary organisations and pressure groups such as the Electoral Reform Society, Charter 88 and others—and to publicise and invite comments on its recommendations before it reports.
There is considerable common ground between the comments of the Electoral Reform Society and the response of the Liberal Democrats to the Government's White Paper. We see considerable merit in the idea of constituencies which pay regard to the historic counties in London. There would be, say, five large multi-member constituencies whose boundaries reflected historic routes and geographic attachments. That has a great deal of resonance in London; for instance, the postal address of Kingston is Surrey, although it is a London borough. Furthermore, Middlesex carries weight for people in cricket clubs, for instance.
We wish to put those ideas into the melting pot because we believe that there is considerable mileage in them. However, we believe that first-past-the-post single member constituencies which group boroughs together should be firmly ruled out. There are many pitfalls in that approach, but I must not take up too much time in spelling them out. The advantage of having large multi-member constituencies is that they need not be the same size. There would be no need for continuous boundary reviews because one could alter the number of members representing each constituency. Sufficient members would be elected in each constituency to achieve the desirable proportionality and genuine ethnic representation.
The purpose of the amendment is not to set out the electoral system but to suggest that the Government should give guidance—not directions—to the Local Government Commission to go out and consult and to consider what would be the best tailor-made system for London that has the best chance of receiving maximum support. I beg to move.
7.45 p.m.
Baroness Hamwee: The Chamber appears to have emptied, but I suspect that that has more to do with the state of Members' stomachs than their interest in this part of the Bill. I hope that that is the case. In speaking to the amendment, I speak also to the amendments grouped with it.
In tabling the amendments I was hoping to tempt the Minister into giving assurances as to the criteria which the Government are considering with regard to the
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electoral systems in respect of members of the assembly and the mayor. If at this stage we can obtain suitable assurances we might be satisfied; if not, we might seek other devices to raise the subject.
My party is identified with concern—in the case of some people, with passionate concern—with voting systems. Like my noble friend, I do not aspire to that, but I am glad that others can get their computers working on STV elections. I asked those in my party who had been examining the issue how the electoral outcomes might be affected by different types of systems. I was told, "We do not know. There are too many variables, unless you want us to go away and come up with a very long report about the numbers in each constituency used in different types of systems". I did not ask for that work to be done. Therefore, in supporting the amendments, I have no idea whether there would be any electoral benefit to one party or another.
I hope not. I hope that in examining the issues we can concentrate on what the voters wish to see. I support proportional systems because I believe that they enable as many people as possible to feel that they have voted to be represented by somebody who is elected. Even if that vote has not come as number one, coming high on the list gives you some sense of ownership and a feeling of pride, which is desirable. Furthermore, a fully proportional system allows one to put at the bottom of the list one's least favourite candidate. There is a good deal to be said for allowing the voters to express views against candidates as well as for them.

My noble friend referred to the issue of size. Size is related to the workload of the new authority. The make-up of the constituencies must also reflect the strategic nature of the authority. Unlike noble Lords on the Conservative Benches, we wish to get away from a narrow borough outlook.
Lord Graham of Edmonton: Where are those on the Conservative Benches?
Baroness Hayman: It is the Conservative Bench! The noble Baroness, Lady Ludford, tempted us to debate the merits of various electoral systems. Perhaps she will understand if at this stage of the Committee's deliberations I resist that temptation and confine myself to the import of the amendments that are before us. They offer a completely different perception of how the Local Government Commission would proceed in its report on electoral arrangements for the authority. The Government cannot accept the case made out in the amendments.
The White Paper will set out a clear policy framework for electoral arrangements for the new authority. Rightly, the Local Government Commission will be asked to provide expert and independent advice on the technical framework that would be necessary to put that policy into practice should it be approved by Parliament in a main Bill. We believe that the commission should not be asked to make recommendations on what are essentially policy questions. The White Paper will set

1005
out in precise terms the policy framework to be followed on electoral matters. That will then form the package of proposals on which the people of London will vote.
The Bill as it stands confers new functions on the Local Government Commission, requiring it, at the direction of the Secretary of State, to prepare a report recommending the electoral areas into which Greater London should be divided for the purpose of electing members to any assembly established following the referendum, the number of members which should be elected for each elected area and the name by which each area should be known. The Bill requires that any direction made by the Secretary of State must specify the total number of elected areas into which Greater London should be divided for elections to the new assembly and the total number of members for which the commission's recommendations should provide.
The amendments to Clause 7 would give the commission a much broader role—that was acknowledged in the arguments put forward—with a free rein to make recommendations after consultation with many other interested bodies on electoral systems including the election, the system for the election of the mayor, electoral areas and the number of members to be elected.
The Government cannot accept these amendments. They devolve important questions of policy to the commission, asking it to consider issues which are far beyond its remit. The commission is an independent body which advises on boundary issues. There is no case for asking the Local Government Commission—this is quite unlike issues relating to future electoral systems—to make recommendations about how the mayor or the members of the assembly should be elected.
The Government have stated their intention to publish a White Paper which will set out detailed proposals relating to electoral systems. The tenor of the earlier debate was that there should be clarity and that the people of London would understand what they were voting for in the referendum. It would be rather at odds to have what in effect would be a half-baked White Paper because it would be impossible to write a clear and comprehensive White Paper if the commission were given the task of making recommendations on all aspects of electoral arrangements. It could not pre-empt the commission's deliberations. In that case the people of London would be forced to vote in a referendum without having a clear idea about how the mayor and assembly are to be elected. That cannot be good for clarity or democratic choice.
The procedures set out in Clauses 7 to 10 governing the role of the Local Government Commission are well precedented. They take as their model Part II of the Local Government Act 1992 which makes provision for the structural review of English local government and for periodic electoral reviews of counties and districts.
The Government are now spending considerable time and effort analysing consultation responses to our Green Paper New Leadership for London. That asks seven separate questions about electoral systems. Quite properly, we shall set out in the White Paper our proposals after looking at the results of that consultation as to how
1006
the mayor and assembly should be elected. That will be one piece of the jigsaw which adds up to people's decisions about how they vote in the referendum.
If there is an affirmative vote in the referendum, the commission will be asked to provide technical advice as regards electoral areas. The Secretary of State will issue a direction to the commission based on the policy set out in the White Paper which will give the commission a clear framework within which to operate. We believe that there cannot be a justification for extending the commission's role into questions of policy. It would greatly muddy the waters for voters in the referendum and would take away from government responsibility for policy and for that policy to be based on the results of the consultation. I urge the noble Baroness to withdraw the amendment.
Baroness Ludford: The Minister feared that the Government would lose the ability to implement their policies. But I ask her to comment on the fact that reserve powers remain in Clause 9. Where a report is submitted to the Secretary of State, he may then, if he thinks fit, direct the commission to produce a supplementary report. Will the Minister explain why that is not considered a sufficient guarantee that the Government will be able to implement, if necessary, their key policies? I ask the Government to reflect further on whether the form of the drafting is too specific and whether they will consider introducing some flexibility into the arrangements.
Baroness Hayman: Before the noble Baroness withdraws the amendment, perhaps I may answer the specific point she raised. If the amendment were accepted, it is right that the Secretary of State would still be able to direct the commission to review the recommendations in respect of electoral areas, numbers of members for each area, and the name by which each area should be known. But he would not be able to ask the commission to review the other recommendations. We do not believe that it would be satisfactory if the commission were to recommend an electoral system completely at odds with the Government's position. That takes us back to the nub of the reason for the Government's opposition to the amendments; namely, that we believe that they put policy decisions before a body which is properly there to advise on technicalities but not to set a policy framework.
Baroness Ludford: Perhaps the Minister will reflect further in relation to flexibility in the directions which they give. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Skelmersdale): Before I call Amendment No. 23, I must inform the Committee that on Division No. 3, the correct figure for the Not-Contents was 140 and not 141 as stated previously.
[Amendments Nos. 23 and 24 not moved.]
Lord Bowness Lord Bowness moved Amendment No. 25:
Page 3, line 24, leave out ("such electoral area") and insert ("London Borough").
The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 26 and 28. Many of the arguments that I deployed in support of an assembly of borough leaders could be deployed in support of this amendment. But Members of the Committee will no doubt be gratified to know that I do not propose to deploy them at length. However, with as much force as I can muster, I suggest that an assembly should consist of representatives of areas or of London boroughs themselves. To suggest that the electoral areas should be other than a part of a London borough, or a London borough, seems to show what I can only describe as an astonishing lack of understanding of the nature of Greater London.
It goes back to the idea that London is somehow, as I described earlier, an homogenous unit where everybody believes the same, has the same interests and there is no identity of the constituent parts. I have spoken of the history and development of the towns and cities which make up the capital. It seems to me that by suggesting that the division should be other than borough based—an assembly of representatives which sought to blur those identities—denying the representatives a representative role as well as a responsibility for the area of the capital as a whole, would be a recipe for considerable conflict, lack of accountability and ultimate disenchantment and frustration on the part of the people in the individual towns and cities within the capital area. In short, I believe that it would be an unmitigated disaster.
Of course, those towns and cities have the common problems and interests of which I spoke earlier. But they also have their own identity and community. Let us not forget that the Local Government Commission has been involved in not inconsiderable controversy in other parts of the country in creating authorities where the population considered it had no affinity, one part with the other. To replace the boroughs of London with some artificially created electoral unit would be madness.
We know that in the past there has been great difficulty in creating constituencies for the European Parliament which have anything like the community of interest for which we search when creating parliamentary constituencies and, indeed, even local government wards. The London boroughs are communities. Some, like Kingston, are of enormous antiquity and of long and historic standing. Others are of more recent creation; nevertheless, they are communities which have been built by hard work and common interest.
If members of the assembly do not have an allegiance to their borough as well as to Greater London as a whole, the assembly will not be in touch with the citizens. There is nothing unusual about having a dual responsibility and interest. Local councillors have a borough or county-wide responsibility and a responsibility and interest for their own particular wards. It is never suggested that those ward interests may prevent them from taking a borough-wide view, although in particular instances they may fight that ward interest. The same is true of Members of Parliament and their constituency interests and their interests for the
1008
country. Members of the European Parliament have perhaps an even greater range of interests in terms of constituency in the UK and European interests.
We would be making the most enormous mistake if we divided Greater London into what I have described as artificially created electoral units. It is for that reason that I ask Members of the Committee and the Minister to consider and accept the fact that there is no real practical alternative but to base the electoral areas on the boroughs or parts thereof. I beg to move.
8 p.m.
Baroness Hamwee: We have already addressed some of the issues raised by the amendment. Although the noble Lord spoke very passionately about local links, I shall simply say that the strategic task for the proposed body is one where I believe close local links are not as important as they are for other political jobs. Indeed, there are others to undertake the more local jobs—others elected both to another place and to borough councils, though sadly not, in London, to parishes.
The noble Lord said that London is not homogeneous. Neither, I suspect, are many of the boroughs as they are now constituted. I know that many comments have been made about how things were better when there were smaller boroughs, so I do not follow the noble Lord on that argument. The noble Lord did not raise the thorny question that is inherent in the proposal; namely, the different sizes of populations and electorates in the different London boroughs. The noble Lord mentioned Kingston, which has a relatively small electorate of, say, 140,000. I believe that the population of the noble Lord's own borough of Croydon is of the order of 300,000 or 330,000, but I am sure that he will correct me if I am wrong. Nevertheless, even if I have not worked out the figures accurately, the population sizes are very disparate. Indeed, the proposal could, frankly, be quite unfair. The noble Lord may say that there are different numbers for each borough, but that would mean that we would have a very much bigger assembly than anyone is contemplating at present.
On these Benches we recognise that a degree of geographical link is important; indeed, it should not be entirely ignored. That is why my noble friend mentioned the possibility of constituencies which are linked to the old counties. I have come to realise that people's memories and sentiments as regards history run much deeper than one might suspect.
Baroness Hayman: It became apparent in the noble Baroness's closing remarks that the noble Lord, Lord Bowness, was perhaps a little too certain when he said that there were absolutely no practical alternatives to borough-based constituencies. It is an issue about which I understand the noble Lord feels passionately and one to which there was a great deal of response in the Green Paper consultation process. The Government made their position quite clear on the question of electoral arrangements for the new authority. In a way the new amendment is the opposite of amendments which we have just discussed. The latter aimed to give more flexibility to the Local Government Commission to

1009
bring forward a wider range of proposals than that directed by the Secretary of State. The noble Lord's amendment would limit the possibilities and reduce flexibility.
In the Green Paper we stated that a range of different electoral arrangements might be appropriate for the new authority. As I said, during the consultation process we received a large number of responses on electoral issues which we are considering carefully. Final proposals for the new authority, including the issues dealt with by the noble Lord, will be clearly set out in the White Paper to be published in March. It is on these proposals that the people of London will have the opportunity to vote.
As my honourable friend the Minister for Transport in London emphasised in another place, there is no advantage in fettering consideration of consultation responses by legislating in this Bill in the way proposed. It will be for the people of London to make a judgment on proposed electoral systems in the referendum in May, as part of the package presented to them.
Indeed, these amendments could justifiably be seen by the public as an attempt to frustrate progress towards a new Greater London authority. If the amendments were passed, but the package of proposals approved in the referendum did not include borough-based electoral areas for the assembly, the paving provisions in Part II of the Bill would be useless. That would threaten early elections to the new London assembly, perhaps by up to a year.
I should point out to the noble Lord, Lord Bowness, that the proposals in the White Paper may well reflect the arguments that he has put forward. Following consideration of responses to the Green Paper, it is possible that it will be clear to everyone that the Government accept that borough-based constituencies for the assembly are the best way forward. However, we have stated quite clearly—and these are the issues to which the noble Baroness, Lady Hamwee, referred—that we do not believe there is a case for duplicating the local representational roles of borough councillors, MPs or Euro-MPs. As well as reflecting local interests and concerns, it is important that members of the assembly take a strategic view. As the noble Baroness said, the boundaries of boroughs are not set in stone forever. Certainly my own borough of Camden comprises three very different areas which are not homogeneous and which in fact, in other times, were subject to different local government boundaries and were part of different boroughs.
Basically, the reason why the Government urge the noble Lord to withdraw the amendments is simply that we are still considering the consultation responses. It would wrong to pre-judge that process, and that is precisely what we would be doing if we were to agree to the amendments.
Lord Bowness: I thank the Minister for her response. I feel quite cold when I hear the noble Baroness, Lady Hamwee, saying that the new Greater London authority is for strategic matters and strategic tasks and that they
1010
are not matters for the boroughs. That is undoubtedly going down the road which led to so much trouble under the previous arrangements.
As I said earlier, the problems of Greater London are those of some or all of the boroughs which make up the Greater London area. It is just not good enough to say that some of those problems are too great for them to consider and that such matters should be dealt with by another lofty authority which can take a better view. It is the pedestrian crossing/allotment syndrome to which I referred on Second Reading; in other words, the boroughs are all right for doing minor things but we should not let them get involved in anything strategic.
We are talking about the proposed assembly. We are not talking about the assembly of borough leaders; we are talking about a directly elected assembly. Those strategic issues will impact upon the individual towns and cities. Therefore, it is vital that the representatives who sit in that assembly should have a direct linkage with those towns and cities. It is of course for the Boundary Commission to decide the number of representatives for each particular borough. The noble Baroness, Lady Hamwee, referred to the size of individual boroughs, and it is possible that there will he a grouping of boroughs. However, the amendment seeks to ensure—and this is absolutely critical—that the assembly is still rooted in the boroughs of Greater London. They are representative of the people. No Greater London authority can claim to have just a London view regardless of what the people in the boroughs think. That representational role is desperately needed. If this amendment is rejected we stand to lose that vital element. I am not persuaded to withdraw the amendment. I seek the opinion of the Committee.
8.10 p.m.
On Question, Whether the said amendment (No. 25) shall be agreed to?
Their Lordships divided: Contents, 29; Not-Contents, 102.

Division No. 3

CONTENTS

Banbury of Southam, L.

Dean of Harptree, L.

Belstead, L.

Dixon-Smith, L.

Berners, B.

Downshire, M.

Bethell, L.

Elton, L.

Birdwood, L.

Fairhaven, L.

Blaker, L.

Fookes, B.

Blatch, B.

Gardner of Parkes, B.

Bowness, L.

Gisborough, L.

Brabazon of Tara, L.

Gray of Contin, L.

Burnham, L. [Teller.]

Harlech, L.

Byford, B.

Higgins, L.

Carnegy of Lour, B.

Holderness, L.

Carnock, L.

HolmPatrick, L.

Chelmsford, V.

Home, E.

Chesham, L.

Howe, E.

Coleridge, L.

Inchcape, E.

Colwyn, L.

Inglewood, L.

Cope of Berkeley, L.

Jenkin of Roding, L.

Craigmyle, L.

Jopling, L.

Crickhowell, L.

Keyes, L.

990

Kimball, L.

Rotherwick, L.

Kingsland, L.

Ryder of Wensum, L.

Knight of Collingtree, B.

Seccombe, B.

Luke, L.

Selkirk of Douglas, L.

Marlesford, L.

Sharples, B.

Massereene and Ferrard, V.

Shaw of Northstead, L.

Merrivale, L.

Skelmersdale, L.

Miller of Hendon, B.

Sterling of Plaistow, L.

Monro of Langholm, L.

Stockton, E.

Mottistone, L.

Stodart of Leaston, L.

Murton of Lindisfame, L.

Strathclyde, L. [Teller.]

Naseby, L.

Thomas of Gwydir, L.

Newall, L.

Trumpington, B.

Palmer, L.

Tugendhat, L.

Park of Monmouth, B.

Wilcox, B.

Young, B.

NOT-CONTENTS

Addington, L.

Howell, L.

Alport, L.

Howie of Troon, L.

Amos, B.

Hoyle, L.

Archer of Sandwell, L.

Hughes, L.

Archer of Weston-Super-Mare, L.

Hughes of Woodside, L.

Ashley of Stoke, L.

Hunt of Kings Heath, L.

Barnett, L.

Irvine of Lairg, L.

Berkeley, L.

[Lord Chancellor.]

Blackstone, B.

lslwyn, L.

Blease, L.

Janner of Braunstone, L.

Borrie, L.

Jay of Paddington, B.

Brooke of Alverthorpe, L.

Jeger, B.

Bruce of Donington, L.

Jenkins of Putney, L.

Burlison, L.

Judd, L.

Calverley, L.

Kennedy of the Shaws, B.

Carlisle, E.

Kennet, L.

Carmichael of Kelvingrove, L.

Kilbracken, L.

Carter, L. [Teller.]

Kintore, E.

Castle of Blackburn, b.

Kilmarnock, L.

Chandos, V.

Kintore, E.

Cledwyn of Penrhos, L.

Kirkhill, L.

Clinton-Davis, L.

Levy, L.

Currie of Marylebone, L.

Linklater of Butterstone, B.

David, B.

Lofthouse of Pontefract, L.

Davies of Oldham, L.

Ludford, B.

Dixon, L.

McCarthy, L.

Donoughue, L.

McIntosh of Haringey, L. [Teller.]

Dormand of Easington, L.

Dubs, L.

Mackie of Benshie, L.

Eatwell, L.

McNally, L.

Evans of Parkside, L.

Maddock, B.

Falconer of Thornton, L.

Mallalieu, B.

Falkland, V.

Mar and Kellie, E.

Farrington of Ribbleton, B.

Merlyn-Rees, L.

Gainsborough, E.

Meston, L.

Gallacher, L.

Milner of Leeds, L.

Gilbert, L.

Mishcon, L.

Gladwin of Clee, L.

Molloy, L.

Goodhart, L.

Monkswell, L.

Gould of Potternewton, B.

Monson, L.

Graham of Edmonton, L.

Morris of Castle Morris, L.

Gregson, L.

Morris of Manchester, L.

Grenfell, L.

Murray of Epping Forest, L.

Grey, E.

Newby, L.

Hampton, L.

Nicol, B.

Hamwee, B.

Orme, L.

Hankey, L.

Pitkeathley, B.

Hanworth, V.

Ponsonby of Shulbrede, L.

Hardie, L.

Puttnam, L.

Hardy of Wath, L.

Ramsay of Cartvale, B.

Harris of Greenwich, L.

Randall of St. Budeaux, L.

Haskel, L.

Razzall, L.

Hattersley, L.

Rea, L.

Hayman, B.

Redesdale, L.

Healey, L.

Rendell of Babergh, B.

Hilton of Eggardon, B.

Richard, L. [Lord Privy Seal.]

Hogg of Cumbernauld, L.

Rogers of Riverside, L.

991

Rusell, E.

Thomas of Gresford, L.

Sewel, L.

Thomas of Macclesfield, L.

Shepherd, L.

Tope, L.

Shore of Stepney, L.

Tordoff, L.

Simon, V.

Turner of Camden, B.

Simon of Highbury, L.

Varley, L.

Smith of Gilmorehill, L.

Walker of Doncaster, L.

Steel of Aikwood, L.

Watson of Invergowrie, L.

Stoddart of Swindon, L.

Wedderburn of Charlton, L.

Stone of Blackheath, L.

Whitty, L.

Strabolgi, L.

Williams of Elvel, L.

Symons of Vernham Dean, B.

Williams of Mostyn, L.

Taylor of Blackburn, L.

Winston, L.

Taylor of Gryfe, L.

Young of Old scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

Division No.4

CONTENTS

Belstead, L.

Kingsland, L.

Bemers, B.

Miller of Hendon, B.

Blaker, L.

Monro of Langholm, L.

Blatch, B.

Newall, L.

Bowness, L.

Prior, L.

Burnharn, L. [Teller.]

Seccombe, B.

Carnegy of Lour, B.

Selkirk of Douglas, L.

Dean of Harptree, L.

Sharples, B.

Fookes, B.

Shaw of Northstead, L.

Gray of Contin, L.

Skelmersdale, L.

Harlech, L.

Stodart of Leaston, L.

Inchcape, E.

Strathclyde, L. [Teller.]

Jenkin of Roding, L.

Thomas of Gwydir, L.

Jopling, L.

Wade of Chorlton, L.

Wise, L.

NOT-CONTENTS

Addington, L.

Berkeley, L.

Alderdice, L.

Blackstone, B.

Amos, B.

Blease, L.

Archer of Sandwell, L.

Borrie, L.

1011

Brooke of Alverthorpe, L.

Levy, L.

Bruce of Donington, L.

Linklater of Butterstone, B.

Burlison, L.

Lofthouse of Pontefract, L.

Carmichael of Kelvingrove, L.

Ludford, B.

Carter, L. [Teller.]

McCarthy, L.

Chandos, V.

McIntosh of Haringey, L.

Clinton-Davis, L.

[Teller.]

David, B.

Mackie of Benshie, L.

Davies of Oldharn, L.

Maddock, B.

Dixon, L.

Mar and Kellie, E.

Donoughue, L.

Masham of Ilton, B.

Dormand of Easington, L.

Merlyn-Rees, L.

Dubs, L.

Meston, L.

Eatwell, L.

Molloy, L.

Evans of Parkside, L.

Monkswell, L.

Falconer of Thornton, L.

Morries of Castle Morris, L.

Farrington of Ribbleton, B.

Nicholson of Winterbourne, B.

Gainsborough, E.

Nicol, B.

Gallacher, L.

Pitkeathley, B.

Gilbert, L.

Ponsonby of Shulbrede, L.

Gladwin of Clee, L.

Puttnam, L.

Gould of Potternewton, B.

Ramsay of Cartvale, B.

Graham of Edmonton, L.

Randall of St. Budeaux, L.

Gregson, L.

Razzall, L.

Grenfell, L.

Rendell of Babergh, B.

Grey, E.

Richard, L. [Lord Privy Seal.]

Hampton, L.

Rogers of Riverside, L.

Hamwee, B.

Russell, E.

Hanworth, V.

Sefton of Garston, L.

Hardie, L.

Sewel, L.

Hardy of Wath, L.

Shepherd, L.

Haskel, L.

Shore of Stepney, L.

Hayman, B.

Simon, V.

Hilton of Eggardon, B.

Stone of Blackburn, L

Hogg of Cumbernauld, L.

Symons of Vernham Dean, B.

Howie of Troon, L.

Taylor of Blackburn, L.

Hoyle, L.

Taylor of Gryfe, L.

Hughes of Woodside, L.

Thomas of Gresford, L.

Hunt of Kings Heath, L.

Thomas of Macclesfield, L.

Islwyn, L.

Tordoff, L.

Jay of Paddington, B.

Turner of Camden, B.

Jeger, B.

Walker of Doncaster, L.

Jenkins of Putney, L.

Watson of Invergowrie

Judd, L.

Wedderburn of Charlton, L.

Kennedy of The Shaws, B.

Whitty, L.

Kilbracken, L.

Williams of Mostyn, L.

Laster of Herne Hill, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
8.18 p.m.
[Amendments Nos. 26 to 28 not moved.]
Clause 7 agreed to.
Clause 8 [Preparation and submission of report]:
[Amendments Nos. 29 to 33 not moved.]
Clause 8 agreed to.
Clause 9 [Supplementary report]:
[Amendments Nos. 34 and 35 not moved.]
Clause 9 agreed to. Clause 10 [Directions]:
[Amendments Nos. 36 and 37 not moved.]
Clause 10 and remaining clauses agreed to.
House resumed: Bill reported with an amendment

Employment Rights (Dispute Resolution) Bill [H.L.]
8.20 p.m.
Read a third time.
Clause 3 [Hearings etc. by chairman alone]:
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 1:
Page 2, line 38, leave out ("(4)") and insert ("14A)").
The noble and learned Lord said: My Lords, with this amendment, it may be for the convenience of your Lordships to discuss Amendments Nos. 1 to 8, 21 and 24. It will certainly be in the interests of expedition.
With this group of amendments we return to a discussion which has occupied your Lordships on a number of earlier occasions. The principle of relieving senior judicial officers of part of their burden by delegating that work to less senior officials probably with less experience and fewer qualifications was not invented for the purpose of this Bill. At least since the 14th century the Lord Chancellor was assisted by magistri cancellarii—the earliest chancery masters. Many of us in your Lordships' House have passed happy hours in the Bear Garden arguing before Masters of the Supreme Court matters with which it was not deemed necessary to trouble a High Court judge. And if cases are to be heard more quickly, it would be sensible to relieve chairmen of part of their burden if that can be done consistently with proper standards.
If your Lordships accept that reasoning, there remain two questions. First, what powers may properly be given to these officials whom we are calling legal officers? Secondly, how far should we seek to define those powers rigidly in primary legislation? On the first question I suspect that we are largely in agreement. But this is an experiment. I do not claim that every provision in the Bill is right for all eternity. I am wary of seeking to set it all in stone in every detail.
For myself I welcome the Government's intention as stated in our earlier debates by my noble friend Lord Haskel to conduct a pilot scheme, and a pilot scheme would be pointless unless we left some flexibility to take advantage of what was learned from that scheme.
That brings us to the second but related question: how far then should we define the duties and powers of legal officers in primary legislation? It is always a question of balance how far Parliament should delegate to Ministers a wide discretion. If the delegated powers are too wide, they may be abused by some future administration, or used in a way which Parliament would not have intended. If they are too narrow, there may one day transpire to be a situation for which we failed to make provision. As a colleague is reputed to have said in another place, "Prediction is always difficult especially when it relates to the future".
Legislation which leaves no flexibility is likely to produce a situation where everyone agrees what should be done but no one has power to do it. In our earlier debates, the noble Lords, Lord Lester, and Lord Renton—I see that at present the noble Lord, Lord Renton, is not in his place—were critical of the wide powers delegated to the Executive under Clause 5 as

1013
originally drafted. I agree that there is force in that observation. Indeed, I tried to go some way towards recognising it by moving an amendment on Report.
If I may interrupt myself, perhaps I may correct one slip in the record of that debate which arose no doubt because I was muttering inaudibly at the time. The noble Lord, Lord Lester, commented that the Scrutiny Committee had failed to comment on the breadth of those powers. When I replied, I am accused in the Official Report of saying,
"I accept what the noble Lord said: that the Scrutiny Committee overlooked this point. As a member of that committee I must share some of the blame, and I do so".—[Official Report, 20/4/97; col. 702.1
What I actually said, as I am sure the noble Lord will recollect, was,
"If the Scrutiny Committee overlooked this point I must share some of the blame".
I have subsequently checked, not least because my attitude to possible amendments to the Bill would be strongly influenced by the views of the committee. In its fourth report, the committee noted that certain clauses including Clause 5 made amendments to the Act of 1996 which modified the existing regulation-making power, but without affecting parliamentary control. It commented that some of the changes are important, but that none appeared to raise questions which the committee thought necessary to draw to the attention of the House. The noble Lord is entitled to disagree with that judgment, but it was not by oversight.
So where should the balance lie? The noble Lord, Lord Renton, has tabled an amendment which substantially repeats the amendment tabled on Report by the noble Lord, Lord Lester, and concerns legislating to empower legal officers to make interlocutory orders. I recall that, unhappily, the noble Lord, Lord Renton, had to leave before the conclusion of that debate for unavoidable reasons, but if he has read the report of that subsequent debate he will have seen that there are some duties which, as I understand it, no one would wish to preclude legal officers from undertaking and which are almost certainly not included in the term "interlocutory"—for example, making an order dismissing proceedings where the application has been withdrawn.
I understand that it is with a view to meeting that difficulty that the noble Lord, Lord Lester, has tabled his amendment. The noble Lord seeks to deal with the matter by writing into the primary legislation a list of all the powers and functions which the regulations may confer on legal officers. I hope he will forgive me if I make two comments on that.
First, if we specify in detail in primary legislation what the regulations are to say, there is no point in giving power to make regulations. The whole purpose of delegated legislation is that it should confer a degree of flexibility which could not be achieved by writing the entire context into the primary legislation.
I appreciate, of course, that the noble Lord's amendment does not seek to compel the Secretary of State to include in the regulations all the powers listed
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in his amendment. His amendment seeks to write into the Bill a list of powers and permit the Secretary of State to leave some of them out. But that would be the full extent of the Secretary of State's discretion under the noble Lord's amendment. I believe that that solution would lack the very flexibility which a regulation-making power is intended to create.
But there is a further difficulty about the noble Lord's solution. The procedures of the tribunal, the kind of orders which may be made either by or for a tribunal, are set out in regulations. The functions listed in the noble Lord's amendment are conferred on tribunals by regulations.
It is rarely if ever good practice to refer in primary legislation to matters for which provision is made in secondary legislation, as I am sure the noble Lord, Lord Renton, would agree. The reason for that is that the secondary legislation may from time to time be amended, so the primary legislation may be left making reference to a process which no longer exists or which is no longer in the same form. If the secondary legislation is amended to provide for a new process, the primary legislation will make no reference to it.
Perhaps I may offer an example. Only recently, the regulations were amended to confer on tribunals a power in effect to order interrogatories. I make no judgment as to whether legal officers ought or ought not to have power to order interrogatories. But if this Bill had already been on the statute book when those regulations were amended, and had it been in the form proposed by the noble Lord, Lord Lester, no one would have had power even to consider whether that function should be conferred on legal officers in the absence of new primary legislation to amend this Act. I do not believe that that is a situation which the noble Lord would wish to bring about.
My Amendments Nos. 5 and 8 are designed to meet the anxieties expressed on Report by specifying on the face of the legislation what a legal officer may not be empowered to do. He would not be empowered to carry out a pre-hearing review, nor any of the new procedures under Clause 2 of the Bill. He would have no power to determine proceedings except where an application has been withdrawn or the parties have reached a settlement.
And of course he would not have to be empowered to determine all proceedings even in those circumstances. He could be empowered to determine proceedings where the parties have reached a settlement in some circumstances but not in others. As my noble friend Lord Haskel has said more than once, the regulations would not be made without full consideration and consultation with those concerned.
I am indebted to the Employment Lawyers Association for advice on this Bill. I believe that the noble Lord, Lord Lester, has very good and close relations with that association. In our earlier debates he quoted from letters. I hope he will forgive me if I read from a letter which I have received from the association.' It states:
"We have carefully considered whether it is preferable to identify in the Bill the powers which Legal Officers may not exercise, or to list those powers which they may exercise. We can see arguments for both approaches. However, we consider that the latter approach

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(i.e. to list the powers which they may exercise) carries with it two dangers … First, it risks omitting from the list powers which currently exist and which it may be thought appropriate to be exercised by Legal Officers … Secondly, if further interlocutory powers were given to Tribunals by amendment of the Tribunal Rules, it would then become necessary to amend the Act to enable Legal Officers to exercise such powers. For example, in recent years, the Rules were amended to permit orders requiring parties to answer questions—"
the example to which I just referred.
"This is the type of order which. in an appropriate case, could be made by a Legal Officer. If such a new power was granted in future. it would he unfortunate if an amendment to the Act were necessary. failing which the Legal Officer could not exercise such a power".
With the assistance of the Government, I have tried to meet the concerns of the noble Lords. I hope that they will feel able to accept the proposal embodied in my amendments.
Perhaps I may add that the other amendments in this group which I hope to move are consequential on those proposals, or an attempt to tidy up drafting anomalies which came to light during our deliberations. If your Lordships wish for a fuller explanation, I will of course be happy to provide it; but I suspect that it may not increase my popularity rating. Amendment No. 1 is one of the consequential amendments. I beg to move.
8.30 p.m.
Lord Lester of Herne Hill: My Lords, I wish to speak to these amendments, together with Amendment No. 6 standing in my name and Amendment No. 7 standing in the name of the noble Lord, Lord Renton. I am grateful to the noble and learned Lord—
The Deputy Speaker (Lord Brougham and Vaux): My Lords, may I interrupt the noble Lord? If Amendment No. 5 is agreed to, I cannot call Amendments Nos. 6 and 7.
Lord Lester of Herne Hill: My Lords, I follow that point. That is exactly why I am speaking to this group of amendments at this stage.
I am grateful to the noble and learned Lord, Lord Archer of Sandwell, for his very full explanation of the position. Essentially, there has been significant progress in clarifying the scope of the powers that are capable of being delegated to legal officers. The House has a choice of three different legal methods of arriving at the same conclusion. The first method, which I tried at an earlier stage and which is set out in the amendment which stands in the name of the noble Lord, Lord Renton, was to capture the problem by referring to it as interlocutory in nature. As the noble and learned Lord, Lord Archer of Sandwell, indicated, the defect in that approach is that it fails to capture some functions which are not interlocutory.
The second approach, which I endeavoured to follow, was to list on the face of the Bill, as the noble and learned Lord indicated, everything that is indicated in the Notes on Clauses or in speeches made on behalf of the Government as to any conceivable power that might be delegated to legal officers. The problem in relation to that was well canvassed in the letter from Mr. Paul Goulding, the deputy chairman of the Employment
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Lawyers Association, to whom perhaps I may pay tribute as being an outstanding lawyer, even though a member of my chambers, and someone who is committed, as I am sure he would like me to point out, to New Labour and this Government in particular. He speaks as a very experienced employment lawyer, as do his colleagues.
In the letter, the association rightly points out that it is a question of balance. The letter explains why, on balance, the association prefers the noble and learned Lord's amendment to my own. Perhaps I may also mention one or two other matters to which the letter refers since they are important. Although the association agrees in broad terms with that approach, the letter states:
"Legal Officers should be able, in appropriate cases, to deal with interlocutory matters and disposals following withdrawal or settlement. We say in appropriate cases since there may be interlocutory disputes and also disposals following withdrawal or settlement which are sufficiently complex to justify a Chairman sitting to determine the issues. For example, where a settlement provides for payment by instalments and dismissal of the complaint only upon payment of all instalments, with a stay in the meantime. it may not be appropriate for a Legal Officer to make such an order. We hope that the Regulations which will follow the pilot study will provide a mechanism for the allocation of straightforward issues (whether interlocutory or final of the kind discussed above) to Legal Officers, while the more complex matters may still he dealt with by a Chairman [rather than a legal officer]".
The letter also emphasises the association's hope that,
"the Secretary of State will consult fully with practitioners on the pilot study, its results, and the subsequent draft regulations".
I very much hope that the Minister will be able to give some indication that those views will be taken seriously and heeded when it comes to any draft regulations.
Lord Archer of Sandwell: My Lords, I am grateful to the noble Lord for giving way. That, of course, was precisely why I included both those points in my remarks.
Lord Lester of Herne Hill: My Lords, I believe that I made it clear, but I shall now make it quite clear, that I have been persuaded both by what has been said by the noble and learned Lord, Lord Archer of Sandwell, and the proposals put forward by the Employment Lawyers Association that my two approaches—interlocutory or listing on the face of the Bill—do not adequately capture what is needed. There needs to be flexibility. I very much hope that the Minister will be able to confirm that he and his department do not consider it probable that they will wish to go beyond the list that I have made and the additional point made by interrogatories at this stage. The Government have made that pretty clear in the Notes on Clauses, but it is important in this debate to be clear as to what the Government intend by these powers. As I understand it, they intend no more than I have listed, with one or two marginal additions. Having said that, I support the amendment of the noble and learned Lord. Lord Archer of Sandwell.
Lord Renton: My Lords, I propose to confine myself to the amendments to Clause 5. When I tabled my

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amendment, Amendment No.7, the noble and learned Lord's amendments had not been put forward. I do not propose to press my amendment this evening.
However, what worried me was the opportunity for the chairmen of the tribunal to make regulations dealing with a vast range of matters. I did not think that that was right. The amendment which I tabled was the same in effect as that tabled by the noble Lord, Lord Lester of Herne Hill, at the Committee stage. I supported him then and thought that he was right. I was not so convinced by his rather elaborate amendment, Amendment No. 6, which seems to include matters which are interlocutory, or could be.
Having heard what the noble and learned Lord, Lord Archer, said and having considered carefully his amendments, although he has abandoned what I hoped might be the solution to the problem—namely the avoidance of much detail—in the circumstances we must accept it. I only add that legislation is always better, more effective and better understood by the people who have to obey it and implement it if it is not too detailed, and if it states principles rather than detail from which principles have to be inferred.
That is the reality of the situation tonight. If my amendment should be pressed, I would oppose the amendments of the noble Lord, Lord Lester. I have great regard for him and have co-operated with him on various occasions but I would oppose his amendments if he pressed them. However, I gather from what he said that he will not do so.
8.45 p.m.
Lord Haskel: My Lords, the Government fully support the initiative of my noble and learned friend Lord Archer in proposing Amendments Nos. 5 and 8, which we hope will meet your Lordships' concerns regarding the provisions relating to legal officers.
In light of noble Lords' continuing reservations, the Government have endeavoured, with the help of my noble and learned friend Lord Archer, to go some way towards resolving the problems as noble Lords see them by restricting the power taken in the Bill. As my noble and learned friend indicated, the Government are opposed to limiting the power by listing those functions, as in Amendment No. 6 tabled by the noble Lord, Lord Lester, which we consider might be appropriate on the face of the Bill. That would be against the scheme of the existing legislation.
As my noble and learned friend Lord Archer said, for obvious reasons of restriction the Government consider it to be inadvisable to refer to the provisions of secondary legislation in the primary legislation, either directly or by implication, when that secondary legislation may from time to time be altered.
We are loath to make changes to the Bill which might lead to unforeseen difficulties in the future which could only be put right by primary legislation. But I can assure the noble Lord, Lord Lester, that the points that he made will be carefully considered. That is why I am afraid that the Government cannot accept Amendment No. 6 tabled by the noble Lord, Lord Lester.
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We must also oppose Amendment No. 7 tabled by the noble Lord, Lord Renton. As has already come out in the discussion, his amendment is similar to that which he supported at the Report stage, introduced by the noble Lord, Lord Lester, in that it proposes that legal officers are limited to purely interlocutory functions. As I indicated at Report stage, the Government consider "interlocutory" to be too narrow for our purposes. In particular, we are concerned that it would prevent legal officers from making determinations where the applicant has withdrawn his case or where the parties have reached a settlement. We consider such determinations to be eminently suitable to be taken by a legal officer, but they could not be defined as interlocutory.
I therefore urge noble Lords to join me in supporting Amendments Nos. 5 and 8 tabled by my noble and learned friend Lord Archer, which would limit the functions of legal officers by preventing them from determining proceedings before a tribunal, other than in the two suitable circumstances which I have just outlined. The amendments thus specify what legal officers may not do on the face of the primary legislation, leaving the detail of those tasks which they can perform to the regulations.
I also hope that noble Lords will join the Government in supporting the initiative of my noble and learned friend Lord Archer in moving minor technical amendments to Clause 3 which are consequential upon his amendments to Clause 5. The need for these amendments only became apparent when we came to look at possible ways of meeting your Lordships' concerns relating to legal officers. They will usefully clarify the existing provisions regarding the duties which chairmen perform on behalf of the tribunal rather than as the tribunal. They will guarantee a clear distinction between those tasks which a legal officer might perform and those which chairmen carry out for the tribunal.
Perhaps I may once again assure noble Lords that all regulations giving powers to legal officers will be drafted in full consultation with the tribunal presidents. The Government regard the role of the presidents in this and in the pilot project as particularly important. Changes to the procedure regulations relating to legal officers will also be subject to consultation with the Council on Tribunals and to parliamentary scrutiny.
Lord Archer of Sandwell: My Lords, I am most grateful to my noble friend for what he has said, particularly for the last sentence. Once again I have to declare an interest. I am also grateful to the noble Lords, Lord Lester and Lord Renton, both for their conciliatory attitude and for their courtesy in telling me beforehand what was in their minds.
It is almost churlish perhaps for me to make a point in the circumstances, but I could not resist doing so. The noble Lord, Lord Lester, said that he hoped that the Government did not have in mind to confer on legal officers any powers other than the ones which were included in his list. I remind him that in the letter to which he and I referred there were two examples of

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additional powers which neither of us had thought of. I shall not go into detail, but one was an exchange of lists.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. I appreciated that. What I had intended to say and had hoped that I had said is that in addition to my list I hoped that the matters that had been referred to in that letter were the only other matters that the Government had in mind at the moment. That was for the good reason that otherwise Parliament would not be properly informed as to the Government's intentions. I did not confine it to my list, or did not mean to do so.
While on my feet, perhaps I may also make it clear that I did not wish in my earlier speech to criticise the Delegated Powers and Deregulation Committee, for whose work I have unbounded admiration. However, I doubt whether even its members are capable of anticipating all circumstances in which over-broad powers may be sought. It seems to me that what has happened in this case indicates that they may have nodded slightly on this occasion by not appreciating the need for the amendment that the noble and learned Lord has now brought before the House.
Lord Archer of Sandwell: My Lords, I am grateful to the noble Lord for both those clarifications. Perhaps I may adopt the point which he made in relation to the latter question, to reinforce what I was saying about the earlier matter. The point I was making was not that here was a power which had not been included, but that the fact that we are all at this stage thinking of matters which had not occurred to us earlier should not lead us to conclude that we have now thought of all the matters and that no one will ever think of another one. That was the only point I was making.
The noble Lord, Lord Renton, rather indicated that we have overloaded my amendment with detail. We were trying to balance an absence of detail—I have always supported the views of the noble Lord and his committee in relation to the importance of simplicity—against writing in the safeguards for which he and the noble Lord, Lord Lester, were arguing. I thought we had the balance right.
I wish to raise just one further matter. It may be that I was being somewhat dim and misunderstood the noble Lord. I thought he said that he was concerned that the regulations referred to in Clause 7 were to be made by the chairman. They are of course to be made by the Secretary of State. I apologise if I misunderstood him.
Lord Renton: My Lords, perhaps the noble and learned Lord will forgive me for intervening. I was referring to Clause 5. Fortunately he has cut out that part of Clause 5 with which I found difficulty. At the bottom of page 3 the Bill states that,
"regulations to be done by a tribunal may he done by the chairman alone."
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It worried me that the chairman alone should take on such a tremendous responsibility. However, the noble and learned Lord has left that out and replaced it with something which I find more acceptable.
Lord Archer of Sandwell: My Lords, perhaps this is not the moment to take that debate further but I am grateful for the elucidation. I would have been prepared to defend the text even before my amendment. I hesitate to say that the matter is academic because some of my closest friends are academics. However, the matter no longer arises for your Lordships.
Nothing remains but for me to wholly endorse the tribute which the noble Lord, Lord Lester, paid to Mr. Paul Goulding. I have been grateful for his help both on this Bill and on other occasions.
On Question, amendment agreed to.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendments Nos. 2 to 4:
Page 3, line 14, at end insert—
("(4A) Omit paragraph (f) (which specifies proceedings in which the person bringing the proceedings has given written notice withdrawing the case), apart from the word '`and".").
Page 3, line 22, after ("(3C)(a),") insert—
("( ) the carrying-out of pre-hearing reviews in accordance with regulations under subsection (1) of section 9 (including the exercise of powers in connection with such reviews in accordance with regulations under paragraph (b) of that subsection).").
Page 3, line 28, leave out ("as provided by that subsection") and insert ("by the person mentioned in subsection ( I )(a) alone").
The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 2 to 4 en bloc.
On Question, amendments agreed to.
Clause 5 [Legal officers]:
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 5:
Page 3, line 42, leave out from beginning to end of line 10 on page 4 and insert ("After subsection (6A) of section 4 of the Employment Tribunals Act 1996 (which is inserted by section 3(5) of this Act) insert—
"(6B) Employment tribunal procedure regulations may (subject to subsection (6C)) also provide that any act which—

(a) by virtue of subsection (6) may be done by the person mentioned in subsection ( I )(a) alone, and

(b) is of a description specified by the regulations for the purposes of this subsection,").

On Question, amendment agreed to.
[Amendments Nos. 6 and 7 not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 8:
Page 4, line 14, at end insert—
("(6C) But regulations under subsection (6B) may not specify—
(a) the determination of any proceedings, other than proceedings in which the parties have agreed the terms of the determination or in which the person bringing the proceedings has given notice of the withdrawal of the case, or
(b) the carrying-out of pre-hearing reviews in accordance with regulations under section 9(1).'").
On Question, amendment agreed to.
Clause 7 [ACAS arbitration scheme]:
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 9:
Page 6, line 25, at end insert—
("( ) A scheme set out in an order under this section may, in relation to an arbitration conducted in accordance with the law of Scotland, make provision—

(a) that a reference on a preliminary point may be made,Or

(b) conferring a right of appeal which shall lie,

to the relevant court on such grounds and in respect of such matters as may be specified in the scheme: and in this subsection "relevant court" means such court, being the Court of Session or the Employment Appeal Tribunal, as may be specified in the scheme, and a different court may be specified as regards different grounds or matters.").
The noble and learned Lord said: My Lords, the purpose of Amendment No. 9 is to make for Scotland a provision which the Bill already makes for England and Wales. The reason the Bill has to provide for that in different terms is that the existing law which is to be amended is different in the two jurisdictions.
The purpose to be addressed is to make provision for challenges to arbitration awards. We are addressing the power which the Bill gives to ACAS to prepare a scheme and to the Secretary of State to make an order bringing it into effect. The power which it is proposed to give is a wide one. There may be differences of opinion as to what use should be made of the power and where the balance should lie between the respective advantages of reviewability and finality.
I know that some of my friends would like ACAS and the Government to make a wider use of the power than they seem disposed to do. Amendment No. 9 relates not to the use which is to be made of the power, but to the width of the power itself. As presently drafted, the Bill would permit the inclusion of any of the challenges and appeals set out in Sections 67, 68 and 69 of the Arbitration Act. That relates to England and Wales.
As my noble friend Lord Haskel explained at Report stage, in England and Wales the Government propose to use Section 68 of the Arbitration Act with such modifications as are necessary for the purpose. They and ACAS propose to include in the scheme a remedy in respect of serious irregularity as defined in that section and such wider remedies as may be required by European law. As I understand it, the Government's intention is that the position should be as nearly identical in England and Wales on the one hand and in Scotland on the other as it is possible to achieve.
It was my noble friends Lady Turner and Lord Wedderburn who first alerted us to the problem of jurisdiction in Scotland. My noble friends expressed concern as to which court should exercise that remedial jurisdiction. We are probably agreed that where the complaint relates to procedural errors, the High Court is experienced in dealing with matters of that kind. But where a question of substantial employment law is involved, the court with greater experience of that is the Employment Appeal Tribunal.
I was readily persuaded of the validity of my noble friends' argument on that question, as were the Government, and that too can be achieved in England
1022
and Wales by the provisions of the Arbitration Act with the necessary modifications. But in Scotland appeals and challenges on the ground of serious irregularity do not rest on any arbitration Act. There is no Scottish equivalent of the Arbitration Act. Challenges can be provided for in any arbitration scheme without reference to any statutory power.
I claim no expertise in the law of Scotland, but my advice is that the court with jurisdiction to hear such challenges would be the Court of Session. There would be no power in an arbitration scheme to confer jurisdiction instead on the Employment Appeal Tribunal. Those challenges therefore which in England and Wales are intended to be heard by the Employment Appeal Tribunal could not be so referred in Scotland in the absence of separate provision in the Bill. That is because there can be no power at common law to invoke a jurisdiction which is set out and defined in statute.
Amendment No. 9 seeks to make that specific provision. It will not empower the Government to do anything in Scotland which it could not do in England and Wales by using the Arbitration Act provision, suitably modified. I appreciate that the amendment is moved at a comparatively late stage. There is no secret about the reason. It was when the point raised by my noble friends in relation to the desirability of referring matters of substantive law to the Employment Appeal Tribunal was being considered that the question came to light.
Lord Wedderburn of Charlton: My Lords, perhaps my noble and learned friend will allow me to intervene. Can he give us any reference either in my speeches or in the speeches of my noble friends which made a distinction between England and Scotland in the manner he now asserts? Our memory is that we made the proposals that we made in Committee as applying to both jurisdictions alike.
Lord Archer of Sandwell: My Lords, I shall try again. My noble friend is absolutely right. None of us mentioned Scotland because at that time the problem of a difference between the two jurisdictions had not occurred to any of us. Perhaps it should have occurred to me, but it did not. My noble friends Lord Wedderburn and Lady Turner raised the question of whether this jurisdiction should be exercised by the High Court or by the Employment Appeal Tribunal.
Lord McCarthy: My Lords, no!
Lord Archer of Sandwell: My Lords, my noble friend Lord McCarthy says "no". But that is precisely what my noble friends were discussing at one stage in our debates.
Lord McCarthy: My Lords, I wish the noble and learned Lord would cite such speeches. That is all we are asking of him. When did we say such things?
Lord Archer of Sandwell: My Lords, I do not believe that my noble friend Lord McCarthy did. There is no doubt that my noble friend Lady Turner, as she

1023
indicates, raised that point and I thought that my noble friend Lord Wedderburn also did so. If he did not, I withdraw the gratitude I was expressing to him for raising the matter. I am sure that, given the opportunity, I could find the reference. It was in view of what they said that we said, "They are right"; and that is what gave rise to all of this.
My noble friend does not wish to accept the accolade for having raised the matter. I should not have raised it. Perhaps the whole thing was by a side wind. I am not accusing him of committing any offence. I am trying to give him praise which I felt was due to him.
Lord Wedderburn of Charlton: My Lords, I am grateful to the noble and learned Lord. Of course we raised the point by raising the issue of jurisdiction of the Employment Appeal Tribunal. From that the noble and learned Lord remembered Scotland. I have to say to him that I always knew that Section 108 of the Arbitration Act excluded Scotland from most of that Act. I shall explain why when I come to make my speech. I had not forgotten Scotland at all.
9 p.m.
Lord Archer of Sandwell: My Lords, we are making some progress. First, my noble friend Lord Wedderburn confirms that he raised the point and so, I know, did my noble friend Lady Turner. We have got that far. So I can repeat the gratitude which I was trying to express to my noble friend Lord Wedderburn. Perhaps we can restore some atmosphere of peace.
Of course, no one mentioned Scotland. My noble friend said that it was in his mind all the time. Perhaps it was. I have never concealed the fact that my noble friend's learning on this subject greatly exceeds mine. 1 was not aware of it. Certainly, if I had ever come across Section 108—I have no reason to think that it has ever crossed my path—I had totally forgotten it. So we know how far we have got. I have not accused my noble friend of saying anything improper. In fact, I now accept that his learning on the point greatly exceeds my own.
That takes the argument to the point where I was trying to say that the amendment was moved at a comparatively late stage. It was hoped that the consultation necessary to produce the amendment would have been available at Report stage. But the consultation had not been concluded and so it was not possible to introduce it at Report stage. I was hoping at Report stage at least to give detailed notice of what was intended, but your Lordships will recollect that because of the other business which the House had to consider we were under some pressure to curtail our debates. If it assists, I confess that my explanation was less than explicit. With that mitigation, I hope your Lordships will forgive me for that.
Before I turn to the amendment set down by my noble friends, perhaps I may don an appropriate white sheet. At Report stage (recorded at col. 716 of the Official Report) my noble friend Lord Wedderburn intervened in the course of a speech I was making to refer to subsection (3) of Section 68 of the Arbitration Act. I misunderstood the words to which he was referring.
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The only explanation available to me is that I was being more than usually thick. I plead in mitigation that I was simultaneously trying to following my noble friend's intervention and to deal with a different intervention from the noble Baroness, Lady Blatch, about the length of time the debate was likely to take. So I should make it clear for the record that my noble friend's reference was accurate, and I tender an unqualified apology to him.
I am grateful to my noble friends for giving notice of their concern. As I ventured to indicate, the difference between my noble friends on the one hand and the Government and me on the other is not one of substance. It is simply a question of construction and drafting. We are agreed on what we wish to achieve in the Bill. We wish to confer a wide power on the arbitration schemes, to which Clause 7 relates, to provide for appeals and we want that power to be as nearly identical north and south of the Border as is possible to achieve. We may not be in agreement as to the use which would be made of that power when the arbitration schemes come to be made but there is no issue as to how wide the power should be and it is not in issue that it should be co-extensive in England and Scotland. The only issue is whether the Bill as amended in the way I propose achieves that purpose.
My noble friends do not think that it does, or at least they do not think it achieves it elegantly. I can only reply that until now it has not been suggested that the parliamentary draftsman has failed to achieve that result in relation to England and Wales. I am advised by the parliamentary draftsman and Scottish lawyers that, as amended in the way I propose, it will achieve that purpose in Scotland. It is true that the Bill would use different language in relation to the respective jurisdictions and I agree that where possible, if one wishes to make the same provision for two situations, it is better to use the same wording. But there are two factors which determine the form of statutory drafting. One is the result which it is desired to achieve. The other is the existing law which it is intended to amend. If that is different in the two cases, it may be necessary to use different language.
It is probably true that my noble friend's amendment may achieve substantially the same result, but those advising on draftsmanship take the view that in England, where there is an existing code relating to appeals in arbitrations, it is better to use that existing body of law than to reinvent the wheel and to seek to run another provision in parallel with it. My noble friend's amendment would in effect either ignore the existing code in the Arbitration Act or leave it to duplicate the new provision. We are not competing for the Nobel Prize for Literature. We are trying to provide a workable piece of legislation for practitioners and predictability for litigants. That is what my amendment seeks to achieve. I beg to move.
Baroness Turner of Camden Baroness Turner of Camden moved, as an amendment to Amendment No. 9, Amendment No. 10:
Line 3, leave out ("conducted in accordance with the law of Scotland").
The noble Baroness said: My Lords, Amendments Nos. 10 and 11 seek to amend Amendments Nos. 3 and 9 in the name of my noble and learned friend Lord Archer of Sandwell. In Amendment No. 10 we are seeking to remove the words,
"conducted in accordance with the law of Scotland".
and in Amendment No. 11 we are seeking to insert, after line 9,

("(i) in arbitrations conducted in accordance with the law of England. the High Court or the Employment Appeal Tribunal, and

(ii) in arbitrations conducted in accordance with the law of Scotland,").

I listened with great interest to what my noble and learned friend Lord Archer of Sandwell had to say in moving his amendment. He knows very well that we do not oppose arbitration. on the contrary, I have frequently commended him for bringing forward the Bill because I know it was intended to make things easier for dismissed employees. However, I and my noble friends believe it is important to get it right, and this, with great respect, we have been trying to do. That is what our amendments seek to do.
Incidentally, I should like to take this opportunity to thank the Minister for the patience with which he has dealt with our concerns on this issue and for the letters he has sent to us. That is very much appreciated. He has confirmed that it is the Government's intention to permit challenges on the grounds of material irregularity and that there is also a commitment to provide for any necessary appeal or referral on points of European Community law, subject to the ECJ's ruling in the arbitration cases referred to by the noble and learned Lord, Lord Archer, at Report stage. We are grateful for that assurance. Apparently, the Government believe that this can be done, as it has been explained, for England and Wales by using Part I of the Arbitration Act 1996, appropriately modified. However, as that Act does not apply north of the Border, as the noble and learned Lord, Lord Archer, has said, the Government have agreed that an amendment is required to provide powers which, if necessary, will enable jurisdiction for any appeal in Scotland to be referred to the relevant court.
However, in my opinion and in that of my noble friends, that does not really answer the problem as we see it. In fact, we believe that it could create further difficulties since very distinct differences would then exist between procedures on each side of the Border. Our amendment to the amendment seeks to maintain parallel situations in both Scotland and England and Wales. Perhaps I may explain why I believe that is necessary.
The noble and learned Lord's amendment allows for appeals in the Court of Session or in the Scottish Employment Appeal Tribunal. An appeal is an appeal is an appeal, as I understand it. Delegated authority cannot alter their nature as appeals. However, that is different from Section 68 of the Arbitration Act allowing for an application to the High Court in England, which would inevitably, I am advised, be more narrow in character than a full appeal.
The letter from the Minister, which I have already quoted, says that it is intended to allow challenges on the grounds of material irregularity. The Minister's letter caused me to look again at the Arbitration Act and particularly at Section 68. There is no reference there to material irregularity. In fact—and this is confirmed by the noble and learned Lord, Lord Archer—the whole section and the references are about serious irregularity, which I believe is probably something different. Not all material irregularities are serious.
But I suppose that serious irregularity is not a surprising term to be used in arbitration Acts since it was originally intended to deal with commercial contracts and not employment disputes. The Minister's letter refers to the power of modification. But would that power extend to material irregularities? Would it be possible to extend modification to modify Section 68 in order to deal with material irregularities?
It may then get about that there are fewer opportunities for appeal in England and Wales and that it is best to have one's case heard in Scotland. Would the appellants and their advisers manoeuvre in order to get cases heard in Scotland? If that should transpire to be the situation it would not be very good for the future viability of the scheme. As I have emphasised repeatedly, we want the scheme to be a viable one.
Surely, the sensible approach is to treat the scheme, as near as one can, exactly the same on both sides of the Border. That is exactly what our amendment seeks to do. There is then less likelihood of confusion and argument about precisely what is meant by Section 68 of the Arbitration Act. We want the scheme to be successful, but it has much more chance of being so if the procedures both north and south of the Border are not only genuinely parallel but seen to be so. I beg to move.
Lord Wedderburn of Charlton: My Lords, I support the amendment in the name of my noble friend Lady Turner. Despite the hour, it seems to me that this is a very important debate for thousands of workers and their employers. Whatever fault lies on any of us—and perhaps we all share it—this is the first occasion when we have been able to debate properly the Government's intentions and with my noble and learned friend Lord Archer what has come to be called the "safety valve" which is necessary against perverse awards.
The Minister was kind enough to write to me on 7th January explaining that the Government saw one virtue in my noble and learned friend's amendment, which is to facilitate references to the European Court of Justice. In so far as it does that, it has our full support.
As regards domestic law there was a choice as to whether or not to apply appellate rights to Scottish courts alone. In our amendment to the main amendment, the central question is why now, at the last hurdle, we are forced to invent in domestic law a special jurisdiction for appeals to the Court of Session and the Employment Appeal Tribunal in Scotland, while leaving in England only applications based on a modified Section 68 of the Arbitration Act? I comment, as my noble friends did, that applications of that sort under

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Section 68 are not precisely the same as what is usually called a right of appeal. I shall come back to that point in a moment.
I am very grateful to my noble and learned friend for referring to Section 68 in its full glory. I wholly accept that at that stage of the debate on Report he was under intolerable pressure to get on with a complicated argument which it was not possible then to rehearse in full, although we can do so now.
As I have already said, I did not—I claim no particular merit for this—in one sense forget Section 108 which states that the Arbitration Act for the most part shall not apply to Scotland. However, my noble friends and I felt that it was legitimate to rely on the speeches made (particularly by the Minister because making orders is a matter for the Secretary of State) to ensure that any problem that arose could be adjusted by a modification order under Clause 7(6).
In other words, nothing was said either at Second Reading, in Committee—it certainly was not said by us in Committee—or on Report about there being a need for a special procedure for Scotland because an order of modification for Section 68 was not available. I do not accept that it was not available. I suspect that no Scots lawyers are present, but such advice as I have been able to acquire is that an order could have been made in the same terms. I say "in the same terms" advisedly because if it was not to be made under Section 68 and Clause 7, it could have been made in the order bringing the scheme into force by quill pen, as it were, rather than by reference on a keyboard.
The Minister can use the order authorising the scheme as part of the jurisdiction. That was not excluded from such an order. Either the argument about Scots law is right, which I contest, or, if it is wrong, there is a double possibility for the Minister to make a suitable order.
My noble friend the Minister kindly wrote to me last week saying that today's amendment in the name of my noble and learned friend would, after the modifications to be made in the order,
"allow the arbitration scheme to work in the same way North and South of the Border".
Whatever the argument in Scots law, if that is the objective, why cannot we have in the Bill the same scheme for both jurisdictions? Surely the Minister has an obligation to tell us today exactly why he cannot modify Section 68 and adjust any orders that he is to make when the Bill goes through rather than have what most would see as separate Scots and English provisions. I quite understand that there may be some difficult argument behind the veil, as it were.
However, the matter goes further than that. In another letter to me, on 15th December—I join in the tributes that we pay to the Minister for his powers of keeping up with the correspondence which has quite outgunned us—the Minister spoke of his intent to allow,
"challenges on the ground of material irregularities".
I join my noble friend in asking whether that is still regarded as possible.
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Today my noble and learned friend and the Government have struck out on a totally new route. The Minister wrote to me on 7th January saying that after the necessary orders, in the result,
"the two schemes will he the same".
Even allowing for a certain licence in the phraseology, the two schemes will not be the same—and not only for the reasons given by my noble friend Lady Turner, but also because the courts in Scotland will be given a right of appeal whereas in England there is a right to make applications. A right of appeal normally includes at any rate some points of law. If the two things are meant to be the same, perhaps when the Bill goes to another place the wording can be made the same. It is not very elegant to call the same thing by two different words, especially when in law the two are different.
However, there is a deeper cause for concern. This is rather more a personal view. The Government and ACAS—especially ACAS, it seems to me—have gone into this enterprise with a fixed belief—some would say with virtually a closed mind—that they will not permit any appeals on any questions of law in pursuit of what is called "finality". Of course, arbitration awards should in general be final, but not if they are unlawful or ultra vires. I do not think that any lawyer would expect to find finality in an award with an unlawful base. Why should the law control the arbitrator who unfortunately makes a serious irregularity in his procedure, but exercise no control whatever over an award based on a fallacious interpretation of the applicable law which, under the Bill, is to be found on unfair dismissal in Part X of the Employment Rights Act?
The ACAS memorandum drawn up for your Lordships states that awards must be legally enforceable but that there will be no right of appeal on a point of law. I am not alone in finding that bizarre. It is an extremist ambition for "finality" which will give rise to one of the more important and striking own goals to have been scored by a Bill in recent times.
Why do I say that? If it is found that on its face an award does not apply the principles of Part X of the 1996 Act on unfair dismissal in England at any rate and perhaps in Scotland—we do not yet know what the right of appeal will be in Scotland—there will be no room for an appeal on the point of law. Suppose that an arbitrator awards damages, compensation and a right to reinstatement on that basis. What should the employer be advised to do? We all know what advice he should receive if he is serious in fighting the case. Many of these matters tend to be test cases for a large number of workers. He will be advised to go to a place where his legal rights and public functions are protected. He will apply to the High Court for judicial review. The arbitrator does not simply fulfil a private arrangement. It is consensual but it is a public function under a scheme drawn up by statute and is manifestly appropriate for judicial review if the facts so give effect. But neither of the parties has given consent that embraces an award that goes outside Part X on unfair dismissal.
There is therefore every prospect from the Government's perspective that whoever is right—unless "appeal" in Scotland means an appeal in the normal

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sense—sooner or later (one cannot say when) there will be an extended series of applications for judicial review in the High Court which will increase rather than decrease the same legalism which its sponsors wish to avoid. I refer to the authoritative study of Professor Linda Dickens, which pointed out a few years ago that what is crucial about legalism is not so much the jurisdiction of the appeal body but the nature of it. That was why we began the long series of debates on the Bill by trying to get the jurisdiction of the EAT extended. That is perhaps now more likely than it was in Committee.
There is a double paradox in the point. In the Arbitration Act, Section 69 permits a limited range of appeals on points of law against arbitral awards with the leave of the High Court and only where the question is one of general public importance. My noble and learned friend referred to Sections 67, 68 and 69. I am sure that they were considered. However, we have never had it explained to us why only Section 68 should be looked at. If one must give up the objections to Section 68, what is wrong with Section 69, which is about the narrowest form of application against an error of law that one can possibly imagine? It is narrower than normal judicial review and it is one that we still say should go to the employment appeal tribunal north and south of the Border.
The progress of this legislation will provide legal archaeologists with research work for years to come. It is hoped that this amendment to the amendment will lead my noble and learned friend and the Government to have another dispassionate look at the clause, especially during the remaining stages of the Bill elsewhere, so as to establish the same basic law north and south of the Border, not one that is built upon hidden arguments as far as the Bill is concerned like some legal Rubik's cube but one that is unambiguous so that the two systems of law are the same on the face of the Bill.
Lord McCarthy: My Lords, we should say, yet again, that this is intended to be a friendly amendment. The amendment, which I support, is designed to extend what would be the new subsection (7) proposed by my noble and learned friend, which applies at the moment to Scotland alone, to the whole of the UK. We see that as a halfway house towards solving the difficult problem of combining relatively autonomous arbitration, which is all one can reasonably ask for, with an exceptional ability for external reference, which is what one has the right to expect.
The words of the amendment are not full enough for us, but we will take them tonight except that, unfortunately, as presently stated, they only apply to 8.6 per cent. of the working people of this country. We know in rough terms what they would mean. We know that alleged breaches of European labour law would be dealt with in one way, whereas serious irregularities would be dealt with in another way. We know that, when we reach the position where the Government produce orders, the precise grounds, and the appropriate courts in each case, will be specified therein. At this point in the game, that seems a reasonable way of
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dealing with the problem. But we can see no reason why that solution should not be extended across the whole of the UK. But not so. The Bill leaves us with what I regard as the irrelevant, unnecessary, inappropriate intervention of the 1996 Act.
Even at this stage one is bound to ask how that came about. It cannot be that the Government—my noble and learned friend Lord Archer may be different—were not aware that they had to do something about the Arbitration Act 1996, because in the Notes on Clauses before we reached the Floor of the House, they stated:
"The new Section 212A(6) concerns the application of the Arbitration Act 1996 to arbitrations under the ACAS scheme. All arbitrations in England and Wales are covered by the provisions of the Arbitration Act unless explicitly excluded by statute. The clause provides that nothing in the 1996 Act shall apply to the ACAS scheme unless the Secretary of State in making an order approving the scheme applies the provisions of Part I of that Act".
and so on. In other words, one would have had reason to expect, if one read that, that the Government knew that they had to exclude the effect of the Arbitration Act 1996 on the operation of this Bill. Otherwise its presence would undermine the effectiveness of the Act.
The problem was that the Government went on to read back in 80 per cent. of the Act. The Act has 110 sections and four schedules, and covers 35 pages. Of that, 80 per cent., or 33 pages, still applies. Thus, we have been forced, because of the way the Government have conducted the debate, to look at the Arbitration Act 1996.
But I say that, if the provisions of Part I of the Act were applied to the day-to-day application of industrial arbitration, they would ruin the arbitration process. One would have to define the agreement, the procedure and the immunities. One would have to appoint experts. One would have a right to legal representation. One would have provisional awards, and a whole series of other things. Of course the Government will say that they would not apply all that to every arbitration under the arbitration scheme, so why is it there in the first place?
The Government may say that this is all very well, but the amendment about which we are talking does not deal with all of the provisions of Part I of the Act, it only deals directly with Section 68. But I ask noble Lords to look at Section 68, and to think how appropriate that would be in an arbitration scheme run by ACAS. There are three things to say at this point. I have to say the first to my noble friend the Minister, because I do not believe that he has yet taken it on board. The first thing is that Section 68 does not just refer to "serious irregularity". It does not just say that. It is a "serious irregularity" which causes "substantial injustice". That is what it says, and that is what the Minister will have to put in the order: "serious irregularity which causes substantial injustice". It then goes on to give nine different grounds upon which there could be an appeal, as it were, under the system: unfairness, partiality, breach of procedure, exceeding powers, a failure to deal with all issues raised, certain uncertain or ambiguous words, fraud, public policy and any admitted irregularity.
Anyone concerned with industrial relations arbitration will tell you that if these criteria were ever put in a statute or an order, it would ruin most arbitrations. Most

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arbitrations do not deal with all the issues raised. The parties raise very funny issues, many of which they do not want dealt with; they merely want to air them. You have to know which ones they want dealt with. Most arbitrators deliberately, intentionally, use uncertain, ambiguous words. They mean one thing to one side and another thing to the other. That is what arbitration is all about. Moreover, anyone who did not like the result of arbitration could allege that it was unfair and partial.
I am prepared to bet that, if the Government do not get rid of Section 68 and if our friends in ACAS take any notice of Section 68, it will be inoperable.
Of course if one is to have a sensible system of arbitration with some kind of external review we do need a list of sensible grounds. If the arbitration is unreasonable, irrational or arbitrary that might well constitute sensible, reasonable grounds, but they do not exist in Section 68. Therefore it is important for the Government to begin by getting rid of Section 68 and accepting our amendments.
I realise that that will not happen tonight. However, fortunately for the Government and for us, the Bill is only beginning its passage through Parliament. Therefore, before it reaches Second Reading and Committee in another place, there is plenty of time for ACAS and the Government to pull out their fingers and produce a draft of the scheme. If we could see a draft, we could work backwards from what the scheme suggests to what should be on the face of the Bill.
Therefore my first question to the Minister is: when can we see a draft of the scheme? Our argument has always been that something sensible must be on the face of the Bill. The further away that is from the Arbitration Act 1996 the better off we shall be.
However, if the Government persist I wish to ask a second and simpler question. Is there a precedent anywhere in the country for a Bill which produces the same orders on a different statutory base, based on geography? I take it that we shall not have different orders making different provisions, but if we are to, for God's sake tell us now because we shall ask what the difference is.
Thirdly, if the Government continue to go down the road of Section 68, do they really intend that serious irregularities qualified in the way I have specified should cover all nine grounds of that section? Surely not, because, as I say, if it did, it would make arbitration impossible.
Finally, when the Government agree, can the principles of Clause 7 be put on the face of the Bill? That may involve the dissolution of our amendment and that of my noble and learned friend Lord Archer of Sandwell, but that would be well enough. What we have argued for all along, and what this House has argued for over and over again with the previous government, is that the principles of Bills should be put on the face of them and that everything should not be left to secondary legislation. When the Government find out what the principles are, will they put them on the face of the Bill? I support Amendment No. 10.
Lord Meston: My Lords, I briefly interrupt this dialogue, if that is what it is, to say that I followed
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entirely the arguments of the noble Lord, Lord Wedderburn, except in relation to one point. He suggested that the arbitration scheme would be used in test cases. I cannot imagine anybody advising an employer or an employee, in what was known to be a test case, to use the arbitration procedure in the first instance. I imagine that the advice would be to go straight to the tribunal for an authoritative statement of the law and then the normal appeal procedures would apply.
The only other point is that I wish to question the expression used by the noble and learned Lord, Lord Archer of Sandwell, in his opening remarks when he referred to—I hope I noted it correctly—such wider remedies as may be required by European law. I suspect that such further remedies as may be required by European law will not widen significantly the ambit of appeal. They will apply in only very limited circumstances. But if he knows or thinks otherwise, perhaps he will indicate that to the House because it may be a straw at which we could all be clutching at this late hour.
Lord Gladwin of Clee: My Lords, I make a brief intervention as an erstwhile practitioner. As has been said many times before in debating this piece of legislation, on this side of the House we are very anxious that the arbitration scheme should work. From my experience of industrial tribunals, I know that for an employee who has been unfairly dismissed to be reinstated as a result of an industrial tribunal award does not happen any more. Therefore, the only way in which to deal with an unfairly dismissed employee is by internal arbitration. Therefore, this ACAS scheme is welcome. I am only sorry that we have got ourselves into this tangle.
I look forward to the response of my noble friend Lord Haskel to the question posed by my noble friends Lord McCarthy and Lord Wedderburn. But I ask him this evening to give us an assurance that as far as is humanly possible, the arbitration scheme will work in the same way north and south of the Border and that if experience shows that it is not working in that way because of some of the issues raised by my noble friends, the Government will use the powers in the Bill to revise the scheme. It would be disastrous, as my noble friend Lady Turner said, if there were a difference between Scotland and England. It would damage the scheme and trade unionists would not use the internal scheme if it is clear that it is flawed.
Secondly, I seek an assurance from the Minister that there will be the closest possible consultation with the users; that is, the representatives of the employers and trades unions. On a number of occasions I have heard my noble and learned friend Lord Archer refer to consultation with the president. I welcome that, particularly as we have a new president in England and Wales. But the people who know about such matters are the employers' representatives and the trades unions. Therefore, I seek an assurance that there will continue to be the closest possible consultation with the users so that when the scheme is published—I hope sincerely

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that it will be published very soon—we know that it is with the assent of the people who will use the arbitration scheme.
Lord Haskel: My Lords, the Government fully support the initiative of my noble and learned friend in tabling this amendment. It may be convenient for the House if I refer also to the amendments tabled by my noble friends, Lady Turner, Lord Wedderburn and Lord McCarthy. The Government have considered carefully the points raised by my noble friends Lord Wedderburn and Lord McCarthy, and I am grateful to them for contacting me well in advance of the debate; indeed, they have referred to the considerable correspondence that has taken place.
As my noble and learned friend Lord Archer made clear, his amendment is a straightforward and technical one to ensure that the proposed ACAS scheme for the arbitration of unfair dismissal disputes—here I can give an assurance to my noble friend Lord Gladwin—will work in a similar way both north and south of the Border, subject of course to the background of the different legal systems.
Arbitration law is different north and south of the Border. In England and Wales there is a codified approach to arbitration in the form of the Arbitration Act 1996, but in Scotland that is not so. Therefore, the Government propose to build upon the existing legislative framework to provide an arbitration alternative which will be available throughout Great Britain. The scheme will work in the same way both north and south of the Border, subject, as I said, to the different legal systems. It is important to emphasise that, effectively, the individual substantive rights under the scheme will be the same throughout Great Britain.
To make the same provision for England and Wales would be unnecessary. Anything that the amendment would enable us to do for Scotland can already be done in respect of England and Wales by using the Secretary of State's power to apply and modify the provisions of the Arbitration Act 1996. It is never desirable to duplicate legislation. The method chosen in the Bill is to use the provisions of the Arbitration Act with appropriate modifications.
As regards the residual right of appeal in Scotland. I should point out that there will be no appeal in Scotland on a point of law unless one is written into the scheme. Any challenge under the scheme as it applies to Scotland will be strictly limited to those specified in the scheme. The Government consider that the approach proposed by my noble and learned friend's amendment is the most effective way to ensure that the two schemes are as similar on those points as is achievable.
I turn now to the point made by my noble friend Lady Turner: namely, that people in England will seek to have their arbitration heard in Scotland. In response, I can only say that the scheme will provide that cases which would have been heard by a tribunal in England and Wales will be heard by arbitrators under the law of
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England and Wales. Similarly, cases which would have been heard in Scotland by a tribunal will be heard by arbitrators under the law of Scotland.
My noble friend Lady Turner and other noble Lords raised the question of appeal or challenge and referred to material irregularity. We have all agreed that there should be some form of safety valve to cover the situation where an individual has suffered an injustice because of the way that the arbitrator has conducted the arbitration. That may be because the arbitrator has not acted fairly or impartially or because he has not dealt with the issues placed before him. Alternatively, the arbitrator may not have conducted the procedures in accordance with what was agreed. Those examples are included in the types of serious irregularity contained in Section 68 of the Arbitration Act 1996. As noble Lords are aware, the Government intend to use their power to apply this part of the Act, modified as appropriate, in England and Wales, and a parallel provision will be written into the scheme for Scotland.
9.45 p.m.
Lord Wedderburn of Charlton: My Lords, before my noble friend leaves this point, I understand the situations he describes and what the parties can do in terms of making an application for serious irregularity, but what does he say a party should do if he finds that the arbitrator has made his award based upon principles which have little to do with unfair dismissal?
Lord Haskel: My Lords, I do not know whether that is a question one can answer at this stage. We are dealing here with material irregularity and serious irregularity. I am not sure whether the point my noble friend has made comes under that category. We cannot apply the Arbitration Act serious irregularity provisions north of the Border. Serious irregularity is specifically defined in the Act. However, we can specify what we regard to be material irregularities for the Scottish scheme by listing those which we consider appropriate from the list in the Act. We do not propose to include any other irregularities which might be called material. Our intention is therefore limited; namely, to ensure that the two schemes will be as similar as the laws permit. The powers of the Bill would extend to material irregularity.
Lord McCarthy: My Lords, the provision is based on Section 68 of the 1996 Act which mentions serious irregularity but then mentions another qualification. Is the Minister producing some additional ground or does he accept all the grounds in Section 68? Are we to have the provision exactly as it is in Section 68?
Lord Haskel: My Lords, I can repeat only what my noble and learned friend Lord Archer has said: the scheme has not yet been prepared. When the ACAS scheme is prepared, everything will be quite clear.

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I cannot give any undertaking when the ACAS scheme will be prepared. The responsibility for preparing the scheme lies with ACAS.
Lord Gladwin of Clee: My Lords, will the scheme be prepared before the Commons reaches either Second Reading or the Committee stage?
Lord Haskel: My Lords, I am not sure. I can give no undertaking that the scheme will be drafted until the Bill has completed its passage.
Baroness Turner of Camden: My Lords, is the Minister saying that the scheme will not be available until after the Bill has gone through all its stages and is on the statute book? Is that the situation?
Lord Haskel: My Lords, that is the situation. Turning to the arbitration scheme, the essential point about the scheme is that entry into it is voluntary. Both parties have agreed to submit their dispute to an arbitrator and to abide by the arbitrator's decision. They may prefer the finality which it offers, or they may seek a speedier resolution, or they may prefer greater privacy, but most importantly they will be aware that there is no appeal on points of law. Finality is an aspect of the scheme which not only the Government and ACAS—here I give an assurance to my noble friend Lord Gladwin—but also the TUC and others consider to be vital. It is clearly important that the provisions of the scheme should be different from the provisions of tribunals.
I turn to the questions from my noble friend Lord McCarthy. He asked when the scheme can be seen. I have already responded to that point. Regarding any precedent based on geography, I shall write to the noble Lord on that matter. As to whether all the measures will be included in the scheme, I am afraid that we shall have to see what the scheme provides. Can the principles be put on the face of the Bill? We think that we are putting the principles on the face of the Bill.
I do not wish to draw out the discussion further at this late hour. I conclude by saying that the Government support the amendment of my noble and learned friend Lord Archer but cannot support that of my noble friends Lord Wedderburn, Lady Turner and Lord McCarthy.
Baroness Turner of Camden: My Lords, perhaps I may respond to the debate on the amendment and on the amendment to the amendment. I am sorry that the Minister does not feel able to accept the amendment drafted by myself and my noble friends. I have listened carefully to the reasons given for the lack of support for it. I was hoping that, before the Bill reached another place, the ACAS scheme would be available and therefore it would be possible for the other place to consider what we have said here in conjunction with the ACAS scheme. I believe that that would have been easier for everyone. However, we have just been told that the ACAS scheme will not be available until the Bill has been through all its stages and is on the statute book. I regret to hear that.
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However, in the light of what has been said, in particular by my noble friends Lord McCarthy and Lord Wedderburn—they have both had extensive experience in this area; my noble friend Lord McCarthy is an arbitrator—that, when the Bill reaches another place and is in Committee there, some attention will be paid to what we have said in this House.
I believe that what we have said is quite important. From the standpoint of the future appellant, it is perhaps very important. As we have all indicated, we wanted to ensure that without any doubt the scheme on both sides of the border was exactly parallel. With respect, I do not think that the amendment by my noble and learned friend Lord Archer achieves that, but our amendment would have done. I regret that the amendment has not found greater favour with my noble and learned friend and the Minister. However, in the circumstances it is not our intention this evening to press the amendment. I beg leave to withdraw the amendment.
Lord Archer of Sandwell: My Lords, I must have made a complete pig's ear of introducing the debate. I totally failed to make clear what the amendment was about. From the speeches of all my noble friends and—I say it with pain—the noble Lord, Meston, who is usually on the ball in these matters, one would have thought that what we were proposing was that in England and Wales the methods of challenging an award were to be based on Section 68 whereas in Scotland they were to embrace everything included in the word "appeal". That simply is not what was being proposed.
There are two quite separate issues. First, what should be the extent of the power to make arbitration schemes conferred by this Bill? Secondly, and quite separately, what use should be made of that power when the schemes come to be made? The extent of the power is intended to be in the widest terms—just as wide in England and Wales as it is in Scotland. That is the intention; and that is what my amendment—and I think possibly my noble friends' amendment—would achieve. What use is to be made of that power is a quite separate matter and I fully understand the feelings of my noble friends about it. I understand their anxieties.
We have had the debate before. I do not propose to extend this debate by going into the merits of that matter tonight. But that is not what we are debating. That is not what we are talking about writing into the Bill; and that has nothing to do with either my noble friends' amendment or mine. The question as regards the Bill is how we achieve the widest power, however that power is to be used.
I have said it before; in fact I believe I have said it twice; and I have now said it again. "If I say it three times, it is true." If I have still failed to make the matter clear, there is nothing more that I can do about it.
Perhaps I may deal briefly with two matters that arose. The first relates to the modification provisions referred to by my noble friend Lord Wedderburn. The modification provision, in Clause 7(6) of the Bill enables the Secretary of State to modify Part I of the Arbitration Act. The Arbitration Act does not apply in Scotland. That is why the procedure of the modification provision cannot be used to get that result.

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The second matter relates to references to Europe. My noble friend Lord Wedderburn rather gave the impression that the advantage of the amendment moved by my noble friend was that it enabled references to be made to Europe, implying that the present scheme of the Act, as amended by my amendment, would not have that effect. Of course reference can be made to Europe whichever channel we go down.
Perhaps I may clarify the question raised by the noble Lord, Lord Meston. If I referred to "such wider appeals as were required by Europe", I meant "such further appeals"; they may not be much wider. However, we do not yet know, because the European Court is still considering the matter. So I cannot take the question any further.
There would be no point in spinning out the debate any further. I apologise if I did not make the matter clear at the outset. Perhaps in future debates I shall say it three times when I introduce such matters.
Baroness Turner of Camden: My Lords, I beg leave to withdraw the amendment.
Amendment No. 10, as an amendment to Amendment No. 9, by leave, withdrawn.
[Amendment No. 11, as an amendment to Amendment No. 9, not moved.]
On Question, Amendment No. 9 agreed to.
Clause 13 [Internal appeal procedures and unfair dismissal awards]:
Lord Meston Lord Meston moved Amendment No. 12:
Page II, line 8, at end insert ("but in no case shall the award be reduced if the employer's procedures fail to arrange for all internal appeals to he heard and determined, and for the complainant to be informed of the result, before the end of two months beginning with the effective date of termination").
The noble Lord said: My Lords, this is a better version of an amendment which it was not realistically possible to move and debate at Report stage. In Committee, Clause 13 was much improved by addition of the requirement for an employer to have notified the employee properly before the employer can seek the benefit of the new section to be inserted in the principal Act which allows for reduction of a compensatory award. This amendment is concerned with the circumstances in which it could be said that the dismissed employee has failed to appeal under internal procedures.
In some more sophisticated organisations there is more than one level of appeal. So an employee may be caught by the new provision if he or she appeals only to one level and does not then go on to exercise a right of further appeal internally.
Similarly, in some organisations the appeal procedure is more time-consuming and more formal than in others. Some internal appeals (including the Civil Service Appeal Board) are not completed until after expiry of the three months from dismissal allowed for applications to the tribunal. Employees can be caught out because they do not realise that the time limit is three months starting from the dismissal, or that operating an internal
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appeal after dismissal does not stop the clock. They can find that the internal appeal process has not been completed before it is too late to apply to the tribunal within the primary limitation period.
It is only the well-advised employee, following dismissal, who gives notice of internal appeal at the same time as launching tribunal proceedings to ensure that he or she is not caught out by the statutory time limit if the internal appeal is unsuccessful. Those without advice or without good advice can miss the boat by using up their three months in pursuing internal appeals, or they may apply straight to the tribunal, believing that appealing internally to unsympathetic senior management will not be worth while.
The amendment seeks to encourage the hearing and the determination of internal appeals within a reasonable time. That is desirable in itself for several reasons: first, because internal appeals can and sometimes do hold up tribunal proceedings; secondly, because evidence given at a properly conducted internal appeal is usually much fresher in everyone's minds than at a tribunal hearing months or even years later; thirdly, because the outcome of the appeal may remove the need for a tribunal hearing altogether or limit its use. It is also desirable, in the context of the new clause and the power to discount. So long as there is a relatively short period of three months to start tribunal proceedings—and now that is to be coupled with the risk of a discount—the internal appeal or appeals procedure should be prompt and should be completed in two months. That gives the employee a margin of a further month to consider whether to take the matter further, without having to depend on the discretion of the tribunal to allow an application out of time.
I should say that I am grateful to the noble Lord, Lord Wedderburn, for drawing my attention to the decision of the employment appeal tribunal in 1995 in the case of W.A. Goold (Pearmak) Limited v. McConnell. The decision was that it is an implied term of a contract of employment that the employers will reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance. That case concerned grievance procedures during the employment rather than appeal procedures after employment has been terminated. However, I am sure that an analogous implied term exists. In a sense, what I seek to do in this amendment is to put it on a limited statutory basis, with specific reference to the tribunal time limits. I beg to move.
10 p.m.
Lord Wedderburn of Charlton: My Lords, with the leave of the House, I merely wish to add a sentence to what the noble Lord, Lord Meston, said in relation to the decision in 1995 on the employment appeal tribunal. Some might feel that the amendment added an unbearable burden for the employer in providing grievance procedures. It was in that respect that I ventured to draw the noble Lord's attention to the decision because we already start from a base where the employment appeal tribunal has decided that it is an implied term of the contract of employment that the employer should give proper grievance procedures to

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the employee. In a sense, that is not hostile to the amendment. On the contrary, it shows that the amendment is evolutionary rather than what might be felt by the Minister to be unfortunately revolutionary.
Lord Archer of Sandwell: My Lords, perhaps I may at the outset express my gratitude to the noble Lord, Lord Meston, for his self-denying ordinance at Report stage in not moving the amendment which then stood in his name. He took that course because we were being pressed to conclude our debates on the Bill so that the House could proceed with other business.
I have much sympathy with the point that the noble Lord seeks to make. There is indeed a danger that some employers may drag their feet over the internal appeals procedure. It is important that internal appeals should be dealt with as soon after the initial cause of complaint as possible. In any event, it should be before the dispute has had time to fester and before any possibility of reinstatement is passed.
I appreciate the danger that an employee who is using the internal procedure may lose sight of the need to lodge his appeal with the tribunal within the time limit. Of course, an employee is fully entitled to submit his application to the tribunal, as the noble Lord said, within the time limit, notwithstanding that the internal appeal is proceeding. The necessary arrangements may be made to ensure that the tribunal hearing is not listed prematurely. But the noble Lord is right, the employee may not be aware of that.
However, as I think the noble Lord recognises, the amendment which he proposes does not really address the problem. The question of whether the award is to be reduced arises only if the employee appeals to the tribunal, and does so within the time limit. Conversely, the question of reduction in compensation will arise only if the employee fails to appeal by way of internal procedure.
Having said that, I believe that the noble Lord disclosed a real problem. The question then arises as to how it should be addressed. It is difficult, by legislation, to ensure that people know their rights. The best way to achieve that is to encourage them to seek appropriate advice. As we all know, advice is available from ACAS, from CABs, from trade unions and from law centres. I hope that anything which can be done to bring that to the attention of litigants will be done whether the litigants are employees or perhaps employers who do not have the advantage of a personnel department.
Beyond that, can something be done to impose statutory time limits on internal dismissal procedures? I am grateful for the reference made by my noble friend Lord Wedderburn and to which he was kind enough to refer me. But I fear that if we are looking for a statutory answer, the reply is not in this Bill. The relationship between internal procedures and statutory appeals is a complicated one in any event. I understand that the Government take the view that any changes would require detailed consultation and consideration. I appreciate the reasons for that, although my noble friend Lord Haskel may have something to say on the matter in a moment.
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Your Lordships may recollect that at Second Reading I indicated that while I would be happy to consider amendments I would feel inhibited in introducing major revisions in the absence of appropriate consultation. But I join the noble Lord, Lord Meston, in suggesting that the Government may consider initiating such consultations. If my noble friend Lord Haskel feels able to assist us on that, I am sure we shall all be grateful. That is the best I can do.
Lord Haskel: My Lords, I repeat the gratitude expressed by my noble and learned friend Lord Archer to the noble Lord. Lord Meston, for the manner in which he dealt with his amendments on Report. We are concerned that the amendment of the noble Lord, Lord Meston, would discourage parties from using the fair procedure. That is why we feel initially that we are unable to support the amendment. Our intention is that Clause 13 should encourage parties to disputes to make use of internal appeal procedures. It seems likely that it would take more than two months to conclude them. We firmly believe that, where possible, parties should resolve their disputes voluntarily between themselves rather than by recourse to a third party or to a tribunal.
Like my noble and learned friend Lord Archer, I understand the intention behind the amendment and indeed we are sympathetic to it. The Government acknowledge that there might be a problem if an employee thought that the time limit started running only once an internal procedure had been completed. The information in guidance provided by the DTI, the employment tribunal service and ACAS makes it clear that the time limit starts running from the effective date of the termination. Although we wish to encourage parties to use internal appeal procedures, an employee who is concerned about falling foul of the time limit can always make an application to the tribunal and ask that it be stayed until the outcome of the appeal. That is perfectly normal practice and tribunals are well used to dealing with such requests. That puts a certain amount of power in the hands of the employee.
My noble and learned friend Lord Archer suggested that the Government may be reluctant to make complicated changes to time limits without extensive consultation. He is right. That is because the issue is more complex than might at first appear. While it is normally relatively simple to determine the effective date of termination, determining the date on which an internal procedure is concluded is by no means straightforward. For example, there might be disputes as to whether the internal appeal had been properly commenced or taken forward. It is also not clear what the status of dismissed employees would be during the appeal. Would they remain as employees, in effect on suspension; and if so, would they be entitled to pay? The Government would need to address those questions and consult with employers and employees before considering whether it would be feasible to make any changes to the well established way in which the time limit works.

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I would therefore urge the noble Lord, Lord Meston, to withdraw his amendment, but I can assure him that the Government have taken note of the very important point he makes.
Lord Meston: My Lords, I am grateful for the response I have had and I again thank the noble Lord, Lord Wedderburn, for his assistance, although I cannot help feeling that he may have handed me a somewhat two edged sword. However, he is right in suggesting elegantly that what I sought to do was evolutionary rather than revolutionary.
I do not for a moment accept that the proposal in the amendment would impose a serious burden on employers. Nor do I accept that it would in any way discourage the use of internal appeals. It is designed, if it is designed to do anything, to encourage employers to provide internal appeals and to make sure that everyone gets on with it. It is certainly not intended to impose, and I do not accept for a moment that it has the effect of imposing, a statutory time limit on internal procedures or a major revision of the substantive time limit in the principal Act. All it says is that, if the employer is to have the benefit of seeking a reduction of the compensatory award as provided under the Bill, he can have that benefit only if he has ensured that the internal appeal is completed within a reasonable time limit of two months. I do not accept that it is in any way impossible or difficult to have the appeal dealt with within that time limit, particularly if the employee himself is required to make his application to the tribunal within three months.
I accept the point made by the noble Lord, Lord Haskel, that the whole question of effective date of termination can be complicated. But if one is looking at this in its context of the award of compensation at the end of the hearing, surely by then at least one would hope that it would be perfectly clear when the effective date of termination was. If it was not clear by then, I would suggest that the tribunal or arbitrator had failed to focus on the factual issues in the case.
I am grateful for the indications given by the Government and would not dream of pressing the amendment at this late stage. However, I do hope that further thought can be given to the point before the Bill completes its parliamentary passage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Minor and consequential amendments]:
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 13:
Page 13. line 42, leave out second ("or").
The noble and learned Lord said: My Lords, with this amendment it may be convenient to discuss Amendments Nos. 14 to 20, 22 and 23. It would certainly be in the interests of expedition.
These are technical amendments but they are significant nonetheless. They are necessary to ensure that the provisions of the Bill relating to the definition of qualified lawyers are consistent with the definition in other statutes. Your Lordships will recollect that advice from a qualified lawyer is a necessary condition for
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exercising certain rights under the Bill. The Courts and Legal Services Act 1990 altered the position in England and Wales by creating two new categories of authorised advocate and authorised litigator and allowed for the possibility of authorised bodies other than the Bar Council and Law Society to grant rights of audience in the court and rights to conduct litigation.
This has not mattered in practice until recently because the only bodies authorised to grant such rights to their members have been the Bar Council and the Law Society. The only authorised advocates or litigators have been barristers or solicitors. But I understand that several weeks ago my noble and learned friend the Lord Chancellor and senior judges approved an application from the Institute of Legal Executives (ILEX) to become an authorised body for the purpose of granting their members rights of audience before certain courts and tribunals. I am sure that noble Lords will agree that this new class of authorised advocates should be able to provide advice on compromise agreements. It is therefore necessary for the provisions relating to compromise agreements in the Bill to be amended accordingly. My amendment provides that authorised advocates or authorised litigators, for the purpose of the Courts and Legal Services Act, will qualify as independent advisers. I beg to move.
On Question, amendment agreed to.
10.15 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendments Nos. 14 to 20:
Page 13, line 43, after ("certificate") insert ("or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)").
Page 14, line 40, leave out second ("or").
Page 14, line 41, after ("certificate") insert ("or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)").
Page 16, line 17, leave out second ("or").
Page 16, line 18, after ("certificate") insert ("or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)").
Page 17, line 11, leave out second ("or").
Page 17, line 12, after ("certificate") insert ("or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)").
On Question, amendments agreed to.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 21:
Page 17. line 37, leave out from ("alone),") to end of line 38 and insert ("for the words front ", in such circumstances" to "tribunal may" substitute "any act which is required or authorised by the regulations to he done by an employment tribunal and is of a description specified by the regulations for the purposes of this subsection may".").
On Question, amendment agreed to.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendments Nos. 22 and 23:
Page 19, line 42, leave out second ("or").
Page 19, line 43, after ("certificate") insert ("or a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990)").
On Question, amendments agreed to. Schedule 2 [Repeals]:
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 24:
Page 20, line 20, column 3, at end insert—

("Section 4(3)(f), apart from the word "and".")

On Question, amendment agreed to.
In the Title:
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 25:
Line 7, leave out ("avoiding double recovery in") and insert ("about").
The noble and learned Lord said: My Lords, this amendment seeks to change the Long Title of the Bill to reflect changes made to the Bill at Report stage. I am available if your Lordships wish to press me further on the reasons. I beg to move.
On Question, amendment agreed to. An amendment (privilege) made.
Lord Archer of Sandwell: My Lords, I beg to move that this Bill do now pass.
There is much to be said in some circumstances for introducing a Bill in your Lordships' House. The other place has much to occupy its time and attention. Its debates frequently concern broad issues of policy and while they can certainly on occasions address matters of detail with a formidable degree of expertise, there are some proposals which, if they have to await the attention of a committee in another place, may suffer some delay before they reach the statute book.
A Bill that does not aspire to change the course of history but simply to oil the existing wheels may come first before your Lordships' House and be assured of a careful scrutiny by those whose experience and expertise should enable the other place to feel confidence. Little is likely to have slipped through the net by oversight.
Even before it was presented, this Bill was the outcome of extensive consultation. In your Lordships' House it received a general welcome, but it did not escape controversy over some of the detail and indeed that happened tonight. The controversy arose because in this world it is not always possible in any decision to achieve a balance which affords all the advantages and none of the price tags.
Inevitably, we are dealing with a proper balance between conflicting objectives, both within your Lordships' House and among those outside with interests to promote and views to express. There were those who placed a greater value on some objectives
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than others. The political process consists largely not of reconciling objectives if they cannot be reconciled, but in achieving a suitable balance and trying to ensure that no point of view is dismissed without proper consideration. I believe that we have achieved that. I am grateful to all noble Lords who have participated in our debates even though there may have been moments when my gratitude was tempered depending on the particular subject matter we were discussing. I am grateful also to all of your Lordships who have discussed these matters with me outside the Chamber.
I pay particular tribute to my noble friend Lord Haskel for his patience with all of us who might have made his life easier had we been less insistent on our own views. My noble friend mediated between us and the Government. He conveyed our concerns to his fellow Ministers and, where he could not satisfy everyone, I believe that no one was left with a feeling that my noble friend had failed to address his mind to their arguments or failed to explain why the Government were taking the position which was adopted. Perhaps I may add my personal thanks to my noble friend's officials who spent long periods with me, explaining what options were open and mediating between the various groups who were writing to us.
I hope that the many associations outside Parliament which wrote to me will forgive me that I was not able to avail myself of all of their suggestions. That does not reduce my gratitude for the considered advice which they tendered.
Employment law is never static. There may well be future changes to meet some of the points raised in our debates which we were not able to incorporate in the Bill. I am in the privileged position of being consulted in advance about changes in procedural regulations affecting tribunals. I shall await with interest some of the regulations following the powers which we have been discussing in this Bill.
We have not resolved every question which exercises practitioners in this area, but I believe that our efforts were worth while and that they may benefit not only practitioners, not only those who administer tribunals, but many employers and employees who may never even learn of our debates. I commend the Bill to the House.
Moved, That the Bill do now pass.—(Lord Archer of Sandwell.)
Lord Wedderburn of Charlton: My Lords, on behalf of some of my noble friends I should like to thank, first, the Minister for his patience and, secondly, my noble and learned friend Lord Archer. Even when he was wrong, he maintained a stout and firm bat against all the bowling that we could bring to bear.
There are some good things in this Bill—I should say that there are a lot of good things in it because from our Benches we have tended only to criticise it. Indeed, where the Bill is good, it is very good, but where it is bad, it is very, very bad indeed.
Lord Haskel: My Lords, I should like to congratulate my noble and learned friend Lord Archer of Sandwell

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on bringing forward this Employment Rights (Dispute Resolution) Bill, and to thank him for his considerable efforts during the progress of the Bill. He has been a tower of strength, as we must all acknowledge.
As I have emphasised on a number of occasions, we shall continue to maintain a consultative approach when we come to prepare the implementing regulations. The ACAS arbitration scheme has attracted a great deal of interest and, I detect, some concern. As your Lordships know, the ACAS Council is a tripartite body, comprising representatives of employers, employees and
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independents, independent of government. Its members have a wealth of experience in the area of arbitration. Nevertheless, I am sure that they will have heard the points made in the debates and will take note of them in drawing up their proposals for a scheme.
The Government trust that the Bill will gain the support that it deserves from your Lordships' House. I am grateful to all noble Lords who have taken part in our debates.
On Question, Bill passed, and sent to the Commons. House adjourned at twenty-three minutes past ten o'clock.