Lords Sitting of 29 January 1998

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

NATO Enlargement
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
Whether they will lay before Parliament additional papers on the implications of NATO enlargement for the alliance and for British defence policy to accompany ratification of the enlargement treaty.
Lord Hoyle: My Lords, I have placed in the Library the communiqué issued by NATO Defence Ministers on 2nd December. That included the conclusions of NATO's classified assessment of the military and financial implications of enlargement. We have also provided further information to the Defence Select Committee in another place to assist its ongoing inquiry into NATO enlargement. We will make further information available as and when we can.
Lord Wallace of Saltaire: My Lords, I thank the Minister for that reply. However, will he accept that it is not a great encouragement to major public debate? Will he further accept that NATO is central to British defence and that enlargement of NATO—thus the transformation of NATO—means the transformation of the context of British defence? Does he agree that a debate about NATO enlargement appears to be under way almost entirely within the United States, and that we ought to have a parallel debate here?
Lord Hoyle: My Lords, I accept that NATO is central to many matters relating to this country. We are committed to making as much information available as soon as we can. As I think the noble Lord will agree, the amount that we can say is limited by the fact that much information is classified on security grounds. After the Defence Committee has considered the information that was classified, it will be up to the committee to publish the evidence given to it by the Government and others. Over and above that—there will be a full debate both in this House and in another place before UK ratification occurs.
The Earl of Lauderdale: My Lords, does the noble Lord agree that we are in danger of becoming entangled in a whole host, a criss-cross, of conflicting claims and counter-claims of a territorial kind in eastern Europe—first against Romania by Hungary, by Bulgaria and so on, over and over again?
Lord Hoyle: My Lords, I realise what the noble Earl is saying. That is one of the reasons why, by unanimous agreement. only three countries were included in the
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first case. Romania and Slovenia were considered as candidates. The best position was that those countries must be absorbed. I believe that the noble Earl and the whole House will agree that, since NATO is essential to our defence, we must see that it is not made less secure by the absorption of other members. There is a limit to what we can do. That is the position until 1999. In future enlargement no candidate is ruled out at this stage.
Lord Jenkins of Putney: My Lords, does my noble friend agree that the case itself for the enlargement of NATO is not widely accepted? Perhaps he can assure the House that we are able to discuss the detail of the subject, about which there is considerable difference of opinion among all parties.
Lord Hoyle: Yes, my Lords, I agree that it is a matter for discussion. At the end of the day there will be a full debate in this House before ratification; indeed, each country will ratify in its own way and debates will take place. There will be an opportunity for all Members to express a view before ratification occurs.
Lord Campbell of Alloway: My Lords, is the noble Lord aware that he has answered the Question in the form in which it was put on the Order Paper? What more can be done? Is that not a matter for congratulation?
Lord Bridges: My Lords, has the Minister studied the debate which occurred during the last Session of Parliament on a Motion by the noble Lord, Lord Lester of Herne Hill, about the ratification of treaties under the Ponsonby rule? It led to some informed discussions between the noble Lord and the noble Baroness, Lady Chalker of Wallasey. My understanding is that the previous government had it in mind that in future foreign treaties should be submitted to the House with an explanatory memorandum, as happens with European legislation. Would that not be a good precedent to follow on this occasion?
Lord Hoyle: My Lords, I am indebted to the noble Lord, Lord Bridges. As much information as possible will be given. The House will agree, I am sure, that we cannot give information that is militarily sensitive on troop movements. But this Government are wedded to open government and will make as much information as possible available.
Lord Kennet: My Lords, perhaps I may echo the good wishes expressed from the Benches opposite for the fact that there is now a commitment to have a full debate in this House on the matter while it is still alive. Is my noble friend in a position to tell us when that is likely to be? Must it await the conclusion of the study by the Defence Committee of the House of Commons, or could it be before that?
Lord Hoyle: My Lords, we are not in a position to say when the debate will be. We know that ratification

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will be complete by April 1999. The debate will take place as soon as possible but I am not able to give my noble friend any date at this stage.
Lord Burnham: My Lords, in consideration of the problems associated with NATO enlargement, can the Minister state that the Government will give an absolute assurance that the costs will be taken into account in the strategic defence review?
Lord Hoyle: My Lords, NATO's initial assessment is that the cost of enlargement will amount to 1.5 billion dollars over the next 10 years. That confirms our assessment that the cost of enlargement will be manageable. The MoD's share of costs to date is 110 million dollars over the same 10 years.
The Earl of Carlisle: My Lords, can the Minister inform the House which of the former Warsaw Pact nations—and I include the Baltic states, Estonia, Latvia and Lithuania—have opted for the United Kingdom model to train and equip their armed forces? What encouragement will Her Majesty's Government give those nations through the supply of military training teams so that they can meet the criteria which NATO will set before they are allowed to join NATO?
Lord Hoyle: My Lords, perhaps the noble Lord should put down a Question on the matter. The new members have already put forward significant programmes of modernisation and restructuring. NATO's assessment of those countries' forces has at the moment produced no nasty shocks. Indeed, they are in far better condition than we expected and the whole of NATO, including ourselves, will give every assistance we possibly can.

Directors' Remuneration
3.15 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
Whether they accept the findings of the TUC report Wider Still and Wider that average highest paid director salary has increased by 53 per cent. for the period 1994–97 and average employee pay by 13 per cent. and, if so, whether the exhortation of the Chancellor of the Exchequer is sufficient to restrain such increases.
The Minister of State, Department of Trade and Industry (Lord Clinton-Davis): My Lords, the TUC report highlights the need for directors to ensure both that their remuneration is justified by performance and that they are setting an example of restraint. The Hampel report on corporate governance, which was published yesterday, supports the view that directors' remuneration is liable to have an impact both on the company's reputation and on morale within the company. My right
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honourable friend the President of the Board of Trade has said that she will give her considered response to the report in the spring.
Lord Dormand of Easington: My Lords, I thank my noble friend for that most interesting answer. Is he aware that obscene increases continue to be given to chairmen of companies, chief executives and directors? Does he agree, therefore, that the pleas and exhortations which have been made by the Chancellor of the Exchequer and others are not achieving their purpose? In those circumstances, what thought is being given by the Government to the problem?
Lord Clinton-Davis: My Lords, my noble friend has drawn attention to one aspect of corporate governance which is important. I have already indicated that excessive pay can impact on the company's reputation and on morale within the company. Those are two important components of corporate governance.
My right honourable friend will consider the element to which my noble friend drew attention, and all the aspects that have been set out in the Hampel report. Of course, included in her considerations will be the observations made by the TUC.
Lord Marsh: My Lords, do the Government have any intention of bringing in statutory regulation of wage and salary movements? If not, is it still the case that the responsibility of directors is to act within the law and in the best interests of their shareholders, rather than in response to the exhortations of passing politicians?
Lord Clinton-Davis: My Lords, I know that the noble Lord was a politician, but I do not know what exhortations he made, although I heard him from time to time. Of course we have no intention of introducing a statutory regulation on wages. What is important is that we should have an objective and sensible debate on the whole question of corporate governance. It will take place, I am sure, in the foreseeable future.
Baroness Blatch: My Lords, in order to understand what the Government mean by "being paid excessively", does the noble Lord regard that as applying, for example, to the chairman of a public company who is paid £200,000 when over the trading period the company loses, let us say, £12 million and subsequently goes into receivership? Would that prove to the Government, in their assumption about what is fair or unfair, that the director's salary was at the expense of the shareholders and the workforce?
Lord Clinton-Davis: My Lords, what an extraordinary question. It is based on one hypothesis after another—I believe there were four, but I shall check that tomorrow in Hansard. I shall not go into that range of supposition and speculation which engaged the noble Baroness so eloquently.
Lord Razzall: My Lords, is the Minister prepared to indicate in what way, when we see the Green Paper on Hampel and company law reform, the Government will

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reconcile their overall support for the Hampel report, as indicated yesterday, with their determination to legislate for another method as set out in their manifesto?
Lord Clinton-Davis: My Lords, again I indicated that all relevant considerations will be taken into account by my right honourable friend in the assessment of the position. She will make her Statement in the spring. I cannot give a specific date at the present time but I am sure that it will be reconciled with whatever it has to be reconciled with.
Lord Pearson of Rannoch: My Lords, does the Minister accept that the average increase of 13 per cent. for employees is in itself satisfactory when viewed against the rate of inflation for the period? Without going into too many hypotheses, does he accept that a number of employees might not have achieved that satisfactory rate of increase had not their highest paid director received an increase of something of the order of magnitude set out on the Order Paper?
Lord Clinton-Davis: My Lords, it is not easy to follow the correlation in the noble Lord's question. What is important is that there has been a tremendous gulf over the course of many years in the pay of employees and directors. That is a relevant consideration and will be taken into account. I shall not say anything more because I do not want to pre-empt my right honourable friend's assessment of the position.
Lord Monkswell: My Lords, surely there is ample evidence that there is no correlation between excessively high pay and performance. We can take that from the period of the last 18 years of Conservative government when the rich got richer but the country as a whole sank in the league tables of world wealth.
Lord Clinton-Davis: My Lords, there is something in that.
Lord Annan: My Lords, the noble Lord rightly said that the Government have no intention of introducing statutory regulations about increases in directors' pay. However, does he not feel that, when something scandalous has taken place, the time has come for the Government to consider how to express some mark of contempt? I say that because, when the noble Lord, Lord Marsh, says that this is a matter about which the shareholders should express their disapprobation, we all know that in the majority of cases the shareholders are the institutions, who are bandits in the same game.
Lord Clinton-Davis: My Lords, there is something in that too.
Lord Gisborough: My Lords, does not the Minister feel that the remuneration of the legal profession and other professions should be taken into account along with that of directors?
Lord Clinton-Davis: My Lords, I had a vested interest in that matter. When we are reflecting on pay
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we should reflect generally in relation not only to directors but also to the professions. The professions operate in a different way from public and private limited companies; they are partnerships. However, their remuneration reflects generally upon the situation as perceived by the public. The noble Lord is right that it is a factor to be taken into account.

Fisheries: Quotas
3.24 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What progress has been made, since the exchange of letters between the United Kingdom Government and the European Union Commission last June, in removing the anomaly of foreign fishing boats registered at British ports being allowed to catch fish within the quotas allocated to the United Kingdom.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Lord Donoughue): My Lords, a consultation paper was issued to the industry in July containing proposals for ensuring that all British registered fishing vessels maintain a real economic link with those populations in the United Kingdom dependent upon fisheries and related industries. Those proposals have since been the subject of extensive discussions with all sectors of the fishing industry. Those discussions have been completed and the Commission's views are now being sought on our proposals. Once those views are known, an announcement will be made on the way forward.
Lord Campbell of Croy: My Lords, I am grateful to the Minister for that reply. It is now seven months since the Government stated that they would introduce conditions for new fishing licences "with all speed", to use the Prime Minister's words. How fast does the noble Lord consider the process that he described as a disincentive to quota hopping, which was stated to be the objective, is going? Is there any assurance that the European Court will not again rule that that is illegal, as it did in the case of the register in the Merchant Shipping Act?
Lord Donoughue: My Lords, it has taken a few months, but we stated at the beginning that we would consult fully with the industry. We were criticised for consulting too quickly on beef bones; on this matter we consulted fully. With his knowledge, the noble Lord is aware that our fishing industry is diverse in its interests and even conflicting. It therefore took time to consult and reconcile the position. The position is now with the Commission. When we reach an agreed view with the Commission, we shall announce our plans and hope that that will be quite soon.
Our action is based upon a suggestion from the European president, who is the guardian of the European treaty. It is being finalised with the European Commission on the basis that it will be compatible with European law. We are therefore reasonably confident

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that we have done everything possible to make sure that it will not be overturned, as the noble Lord fears, by the European Court.
Lord Mackie of Benshie: My Lords, does not the Minister agree that the trouble was caused by fishermen selling their quotas overseas? That happened because there was no decent decommissioning scheme, and to obtain proper value the fishermen had to do that. Do the Government now intend to introduce a much more generous and widely embracing decommissioning scheme which will solve the problem?
Lord Donoughue: My Lords, I agree with the noble Lord. Many of our problems derive from what one might call the negligent or careless handling of fishing policy a decade ago. I agree also that decommissioning must be at the heart of any future solution to our problem. We have spent money on that and, in the light of the current spending review, are considering what funds will be available.
Lord Pearson of Rannoch: My Lords, can the Minister inform the House whether the eventual decision from Brussels as to whether it agrees with the Prime Minister's view of the matter will depend on the dreaded qualified majority vote? If so, can he give the House any indication as to how those votes stack up at the moment?
Lord Donoughue: My Lords, that is a view that is being considered by the European Commission. When we obtain its response, that will be the policy. I cannot speculate on what will happen with majority votes, but that is not a relevant factor.
Lord Stoddart of Swindon: My Lords, can I press my noble friend on that? Although the Commission may take the view that the British Government have a case, is it not the case also that any such agreement will have to be agreed by all the other member states, including Spain? If that is so, does he believe that Spain will agree to the alteration which suits them so well, in that it gives them virtually a free hand to fish exactly as they wish in British waters?
Lord Donoughue: My Lords, when we have an agreement with the Commission, that will be the agreement. I should point out to my noble friend that other member states—for instance, Belgium and France—are already implementing similar regulations.
Lord Mackay of Ardbrecknish: My Lords, will the Minister accept that the triumphant exchange of letters—"Dear Tony" and "Dear Jacques"—last June was supposed to herald the end of this problem? It is now seven months since that exchange and nothing has happened. The discussions with the Scottish Fishermen's Federation took place last August. It is coming up to five months since those discussions were completed. When are the Government going to do something about this—or am I right in thinking and
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being suspicious about the fact that the solution is not half as easy as "Dear Tony" and "Dear Jacques" supposed?
Lord Donoughue: My Lords, I do not believe that it was the assumption of any of us that any of these solutions are easy. It is quite wrong to suggest that nothing has happened. As I explained to the noble Lord. Lord Campbell of Croy, very detailed discussions have been held. As I am sure he is aware, the position of Scottish fishermen is not always the same as that of fishermen in the south west. I am firmly confident that something will happen, which will be an improvement. The important thing is to get the matter right and have a proposal which will have an effect and not take the previous government's approach with their protocol, which had no prospect of success whatsoever.
Baroness Young of Old Scone: My Lords, can the Minister tell us about some of the provisions that will not be in the agreement as regards the 50 per cent. of the catch which Spanish quota hoppers will still be permitted to land in Spain? I understand that there have been discussions between the UK Government and the Spanish Government about policing landings for under-sized and over-quota fish. Can the Minister say what response the Spanish Government have given regarding UK policing of those landings?
Lord Donoughue: My Lords, part of the letter that has been referred to concerned enforcement. We have strengthened that in this country. We have an agreement with the Commission that there will be stronger enforcement on the Continent.
Lord Gisborough: My Lords, does the Minister agree that it would be much better for British fishing if the European Commission was to get a "Dear John" letter?
Lord Donoughue: My Lords, it is a change to get a non-Scottish view. I have no comment on it.

Mineworkers' Lung Damage: Compensation
3.31 p.m.
Lord Davies of Coity Lord Davies of Coity asked Her Majesty's Government:
In view of the High Court's decision in respect of mineworkers' lung damage on Friday 23rd January, what action is being taken to meet the Government's compensation obligations.
Lord Clinton-Davis: My Lords, I wish to express at the outset the Government's real sympathy to all those miners who have suffered lung damage in the sad circumstances which led to this legal action, and to their families. The Government are seeking urgent legal and expert advice on the implications of the judgment and how best to take matters forward. In the meantime the Government's claims administrators are due to meet

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the plaintiffs' solicitors co-ordinating group next Monday to begin the process of agreeing proper arrangements for making compensation available where the Government are clearly liable.
The Government understand the vulnerability of retired mineworkers with severe emphysema. We have made it clear to our administrators that this vulnerability should not be exploited by any delaying tactics. Our objective, wherever possible, is to secure a fair and prompt settlement.
Lord Davies of Coity: My Lords, I am extremely grateful for my noble friend's reply. Before pressing him further, I would like to declare an interest. My father-in-law is 86 years of age. He spent 45 years in the pits of South Wales. He is medically assessed to have a disability with a combination of ailments comprising pneumoconiosis, emphysema and bronchitis. He has 80 per cent. disability, thereby having only 20 per cent. of normal breathing capacity. Therefore, given the age of hundreds, if not thousands, of ex-miners in similar circumstances, does my noble friend agree that this matter has to be dealt with with extreme urgency? If so, are there proposals for making interim payments in the usual way? Furthermore, is it not right that there should be a tribunal set up, chaired by a judge, to deal with the question of compensation outside the normal legal system, bearing in mind that many mineworkers entitled to compensation have died in the past eight years while awaiting this judgment?
Lord Clinton-Davis: My Lords, let me express my community of interest with my noble friend in what he has said about the travails of so many miners in the past. Miners have died even during the currency of this litigation. The question of interim payments is a difficult one. Not all the issues have been totally clarified by the judgment. It is a very complex judgment. As the solicitor representing some of the claimants said, it is a kind of test case. We are still reviewing the implications of the judgment. However, my noble friend can accept from me—and I hope that it was clear from my Answer—that we are dealing with the matter with the utmost urgency. We shall consider the question of interim payments.
As regards the last point, I do not believe that it would be particularly helpful to set up a tribunal relating to this particular litigation, which may affect many more miners. If my noble friend was asking for a wider tribunal of inquiry, I cannot comment on that today.
Lord Lofthouse of Pontefract: My Lords, is my noble friend aware that many miners will be greatly satisfied with his reply this afternoon that there will be no delay? That is unlike the procedure of the previous administration in 1993 when the Industrial Injuries Advisory Council recommended that bronchitis and emphysema should be prescribed as industrial diseases among mineworkers. There is documentary evidence that government departments, through correspondence, suggested that the matter should be delayed as long as possible as many miners would die before the recommendations were implemented, and that was done
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in order to save money. I am sure that the present Administration would never dream of doing such a thing. Will the Minister consider that there may be an easy way of dealing with these issues rather than dragging men through the courts and legislation? Will he also consider that all the mineworkers who have already been assessed and awarded industrial injuries benefits because their diseases were caused through working in the mines, and who are now receiving those benefits, should be considered for immediate compensation, again, without dragging them through the courts?
Lord Clinton-Davis: My Lords, as with all large-scale tragedies of this kind—the "Herald of Free Enterprise" springs to mind and many others—each individual case has to be considered on its own merits. It is regrettable, but it takes time. Each individual may have a claim for special damages besides the general damages being claimed, and that has to be very carefully invigilated. Having said all that, as I have indicated, I am trying, together with my honourable friend Mr. John Battle, to make sure that the oft-adopted tactics of insurance, of taking advantage of the vulnerability of a claimant or plaintiff, will not be pursued here. We give that solemn undertaking. We have given instructions to those advising us that under no circumstances should they have recourse to such dubious tactics.

Events of 30th January 1972
3.37 p.m.
The Lord Privy Seal (Lord Richard): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister on the events in Northern Ireland on 30th January 1972, which has become known as Bloody Sunday. The Statement is as follows:
"The facts that are undisputed are well-known. On 30th January 1972, during a disturbance in Londonderry following a civil rights march, shots were fired by the British Army. Thirteen people were killed, and another 13 were wounded, one of whom subsequently died. The day after the incident the then Prime Minister set up a public inquiry under the then Lord Chief Justice, Lord Widgery.
"He produced a report within 11 weeks of the day. His conclusions included these: that shots had been fired at the soldiers before they started the firing which led to the casualties; that for the most part the soldiers acted as they did because they thought their standing orders required it; and that while there was no proof that any of the deceased had been shot while handling a firearm or bomb, there was a strong suspicion that some had been firing weapons or handling bombs in the course of the afternoon.
"The timescale within which Lord Widgery produced his report meant that he was not able to consider all the evidence which might have been available; for example, he did not receive any evidence from the wounded who were still in hospital,

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and he did not consider individually substantial numbers of eye-witness accounts provided to his inquiry in the early part of March 1972.
"Since his report was published, much new material has come to light about the events of that day. This material includes new eye-witness accounts, new ballistic material, and new medical evidence.
"In 1992 the then Prime Minister said in a letter to the honourable Member for Foyle, who has campaigned tirelessly on this issue, that those shot should be regarded as innocent of any allegation that they were shot while handling firearms or explosives. I reaffirm that today.
"Last year the families of those killed provided the previous government with a new dossier on the events of Bloody Sunday. The Irish Government also sent the Government a detailed assessment which analysed the new material and Lord Widgery's findings in the light of all material available.
"I want to place on record our strongest admiration for the way in which our security forces have responded over the years to terrorism in Northern Ireland. They set an example to the world of restraint combined with effectiveness given the dangerous circumstances in which they are called upon to operate. Young men and women daily risk their lives protecting the lives of others and upholding the rule of law, carrying out a task which we have laid upon them. Lessons have of course been learned over many years—in some cases painful lessons. But the support of the Government and this House for our Armed Forces has been, and remains, unshakeable.
"There have been many victims of violence in Northern Ireland before and since Bloody Sunday. More than 3,000 people—civilians as well as soldiers, policemen and prison officers—have lost their lives in the past 26 years. It may be asked why we should pay such attention to one event.
"We do not forget or ignore all the other attacks, all the innocent deaths, all the victims of bloody terrorism. Sir Kenneth Bloomfield, a former Permanent Secretary in Northern Ireland, is currently looking at a suitable way to commemorate the victims of violence. In particular, the sacrifice of those many members of the security forces, including the RUC, who lost their lives doing their duty will never be forgotten by this Government, just as they were not forgotten by the last government. The pain of those left behind is no less than the pain of the relatives of the victims of Bloody Sunday.
"But Bloody Sunday was different because, where the state's own authorities are concerned, we must be as sure as we can of the truth, precisely because we do pride ourselves on our democracy and our respect for the law, and on the professionalism and dedication of our security forces.
"This is a very difficult issue. I have reread Lord Widgery's report myself and looked at the new material. I have consulted with my colleagues most
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closely concerned. We have considered very carefully whether it is appropriate now to have a fresh inquiry into the events of Bloody Sunday.
"I should emphasise that such a new inquiry can be justified only if an objective examination of the material now available gives grounds for believing that the events of that day should be looked at afresh, and the conclusions of Lord Widgery re-examined. I have been strongly advised that there are indeed grounds for such a further inquiry. We believe that the weight of material now available is such that these events require re-examination. We believe that the only course which will lead to there being public confidence in the results of any further investigation is for a full-scale judicial inquiry into Bloody Sunday to be set up.
"We have therefore decided to set up an inquiry under the Tribunal of Inquiry (Evidence) Act 1921. The inquiry will have the power to call witnesses and obtain production of papers.
"As required by the Act a resolution will be required to set up the inquiry. The resolution will be tabled later today in my name, and will be in the following terms:
That it is expedient that a tribunal be established for inquiring into a definite matter of urgent public importance. namely the events on Sunday. 30 January 1972 which led to loss of life in connection with the procession in Londonderry on that day, taking account of any new information relevant to events on that day.
"The noble and learned Lord, Lord Saville of Newdigate, a Law Lord, has agreed to chair a tribunal of three. The other two members are likely to be from the Commonwealth.
"It is not possible to say now exactly how long the inquiry will take but it should be allowed the time necessary to cover all the evidence now available thoroughly and completely. It is for the tribunal to decide how far its proceedings will be open, but the Act requires them to be held in public unless there are special countervailing considerations. The hearings are likely to be partly here and partly in Northern Ireland, but again this is largely for the tribunal. Questions of immunity from prosecution for those giving evidence to the inquiry will be for the tribunal to consider in individual cases, and to refer to the Attorney-General as necessary. It will report its conclusions to my right honourable friend the Secretary of State for Northern Ireland. Our intention is that they will be made public.
"Let me make it clear that the aim of the inquiry is not to accuse individuals or institutions or invite fresh recriminations, but to establish the truth about what happened on that day, so far as that can be achieved at 26 years' distance. This will not be easy, and we are all well aware that there were particularly difficult circumstances in Northern Ireland at that time.
"Bloody Sunday was a tragic day for all concerned. We must all wish it had never happened. Our concern now is simply to establish the truth, and close this painful chapter once and for all.
"Members of the families of the victims, like the honourable Member for Foyle, have conducted a long campaign to this end. I have heard some of their

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remarks over recent years and have been struck by their dignity. Most do not want recrimination. They do not want revenge. But they do want the truth. I believe that it is in the interests of everyone that the truth is established, and told. It is also the way forward to the necessary reconciliation which will be such an important part of building a secure future for the people of Northern Ireland. I ask all sides of the House to support our proposal for this inquiry."
My Lords, that concludes the Statement.
3.46 p.m.
Viscount Cranborne: My Lords, I thank the Leader of the House for repeating the Statement and for his courtesy in giving me advance notice of it. On behalf of the Opposition, I can say that if genuine and fresh evidence has now been submitted, evidence which the Law Officers advise is significant enough to warrant an inquiry, we shall accept the Prime Minister's judgment that an inquiry should take place.
Inevitably, as was clear from the tone of part of the Statement, there is a danger that a changed conclusion could be seen as an indictment of Lord Widgery. Will the Leader of the House confirm that the inquiry will be conscious of that danger? Can the noble Lord say when he will be in a position to announce the names of the other two members of the inquiry?
As far as immunity from prosecution is concerned, the Statement acknowledged that the families of the dead do not necessarily want prosecutions. Can the noble Lord say whether that wish will be taken into account when the report is available to the Government?
I welcome the fact that the Government agree with my right honourable friend the Member for Huntingdon, Mr. Major, when he was Prime Minister, when he said that those who died on Bloody Sunday were innocent victims of the Troubles.
Is the noble Lord aware that we on this side of the House welcome the decision, contrary to much speculation before the delivery of the Statement, not to make an apology before the inquiry reports?
Would the noble Lord agree that those of us who have never served in the Armed Forces should be very careful indeed before trying to second-guess, with the benefit of 25 years' hindsight, the actions of a 19 year-old soldier under fire on the streets of Londonderry?
Does the noble Lord accept that the Provisional IRA and, indeed, many other terrorist organisations in all parts of the world regularly try to provoke ill-considered reaction from young soldiers, and that those of us who have for many years studied terrorism and have had a very close association on both sides of terrorist wars in the past 30 years are well aware that that is a perfectly usual ploy among terrorist organisations? Can the noble Lord assure the House that the inquiry will take that matter into account as well?
I should like to associate this side of the House with the sentiments expressed by the noble Lord about our Armed Forces. Will he go further and agree with me that no other army in the world could have shown such a degree of discipline in Northern Ireland, in all ranks,
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as the British Army has since 1969? After all, myths are potent in all politics. Perhaps in Irish politics myths are more potent than in most places. Does the noble Lord agree that the inquiry should guard against the dangers of its conclusions being used as a weapon by one side against the majority in the Province?
As the Statement makes clear, more than 3,000 people have died in the present troubles, most of them at the hands of terrorists. Does the noble Lord agree that in our hope for peace it would be both right and helpful to have an apology, or at the very least some sign of contrition, from those terrorist gangs and their apologists for all the havoc that they have initiated in pursuit of their political aims—political aims that we in this country tend to try to pursue through peaceful means?
3.52 p.m.
Lord Rodgers of Quarry Bank: My Lords, from these Benches I also thank the noble Lord for repeating the Statement made by the Prime Minister in another place. When dealing with Northern Ireland it is an axiom that it is far better to dwell on the future than rake over the problems of the past, but this is a clear exception to that. I welcome the balanced, fair and extremely careful Statement made by the Prime Minister to which it is very difficult to take exception. My hope, which has been confirmed by the noble Viscount, Lord Cranborne, is that it will command the broad support of the House in all quarters.
The Statement sets out very clearly why there is new evidence to be assessed. I do not take that in any way as a reflection on the report of Lord Widgery so long ago at the end of an inquiry lasting 11 weeks. There is a widespread perception, right or wrong, that events went wrong on 30th January 1972. While that perception persists it is a factor which makes reconciliation in Northern Ireland more difficult.
I also pay tribute to what our Armed Forces have done in Northern Ireland in very difficult circumstances over so many years. I am sure that whatever the outcome of the inquiry there will be no disposition to start a witch hunt. In particular, the reference to soldiers aged 19 is wholly appropriate. From my experience of visits made many years ago I was very impressed by the extraordinary restraint shown by young men in very difficult circumstances where their lives and the lives of their colleagues were at stake. We must now wait for the outcome of this inquiry. I welcome the form that it will take and hope that it will put this matter finally to rest.
In those circumstances I should like to ask the Leader of the House only one question. I am sure all noble Lords agree that in accordance with the requirements of the Tribunals of Inquiry (Evidence) Act 1921 the report should be freely available and that evidence should be taken in public as far as possible. However we all know that there is an especial problem relating to the

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protection of witnesses in Northern Ireland, and I shall be grateful if the noble Lord can give the House an assurance on that particular count.
3.55 p.m.
Lord Richard: My Lords, I am grateful for the remarks of both the Leader of the Opposition and the Leader of the Liberal Democrats.
I say at the outset that this is not a criticism of Lord Widgery. He was faced with a request from the Prime Minister of the day to conduct an urgent inquiry into this matter. I believe that the request was made the day after Bloody Sunday. He sat for 11 weeks and on the evidence available to him came up with a report. I re-read it yesterday. It is the kind of report that one would expect from the Lord Chief Justice, as he then was. It is very careful and analytical. The fact may be that he did not have access to all of the evidence, for which no conceivable blame can be laid at Lord Widgery's door. Your Lordships will have noted that the basis for this fresh inquiry is that there is new evidence which was not available to Lord Widgery and that in the view of the Government it is right that it should be considered by a fresh tribunal.
The noble Viscount asked me when the other members of the tribunal would be appointed. We felt that given the importance of this matter we should report to Parliament before confirming the appointment of the other two members, especially as their appointment would involve consultation with other governments. I cannot give a firm date. I can only say to the House that having launched the inquiry we are anxious that it should sail as soon as possible. I echo the remarks of the noble Viscount about the behaviour of the British Army in Northern Ireland. I was very briefly a Minister at the Ministry of Defence in 1969–70 and had an opportunity to visit the British Army. Those who saw the way it did its job could not fail to have been impressed. I echo many of the sentiments expressed by the noble Viscount. He invited me to say that no other country in the world could have done better. My instinct is to agree with that proposition, although perhaps I would not be as comprehensively firm as he has been.
I was asked about the public nature of the tribunal. The Act requires that the tribunal should as far as possible sit in public. That is our expectation. However, the noble Lord, Lord Rodgers, recognises that there are special circumstances in Northern Ireland. We hope that the inquiry will sit in public as much as it possibly can, but that is essentially a matter for the tribunal itself. The Statement makes clear that the report will be made public. The noble Lord, Lord Rodgers, invites me to repeat that, and I do so.
One other point emerges from the remarks of the noble Viscount. This process is totally separate from the peace process. It would be very dangerous to import consideration as to what is happening in the peace process into this tribunal, or vice versa. It seems to me that they are entirely separate. We have taken this step because we believe that there is new evidence that should be considered. In some ways the proposition is fairly basic and I hope that the House will support it.
3.58 p.m.
Lord Mayhew of Twysden: My Lords, everyone must agree that the confused events of 30 years ago in Londonderry were horrible and deeply tragic, like so many events in and connected with Northern Ireland both before and since. Can the noble Lord inform the House whether a tribunal of inquiry established under the Act of 1921 has ever been asked to investigate events as long ago as this? What is the longest period of delay, interval or lapse of time with which any such tribunal has been asked to cope? Can the noble Lord foresee that, 26 years on, there is probably a grave risk of injustice to individuals who will be compelled, by the tribunal's remarkable inquisitorial powers under the Act, to attempt to defend themselves as best they may against allegations that they will no longer be able to counter because of the enormous lapse of time, which I believe to be unprecedented?
Lord Richard: My Lords, I have no idea whether this is the longest gap between an event and the setting up of a tribunal to investigate it. I shall endeavour to ascertain the information and make it available to the noble and learned Lord. On the second point, I do not believe that this process carries a grave risk of injustice, to use the words of the noble and learned Lord. There is a feeling that the truth has not come out and there is also a feeling, certainly on this side of the House, that it is time that it did. I do not know of any other sensible and rational way to resolve that problem other than to do what the Government propose.
Viscount Slim: My Lords, may I ask the Leader of the House whether the appointment of the committee of judges was a purely political decision, taken by politicians, or whether the military advice of the Chief of the Defence Staff was sought in this matter?
Very often history shows that such inquiries can lead to castigation of the military to appease the political motives of a government or political party of the time. I have some experience in such matters and I think that hindsight 20 or 30 years later is a very dangerous thing with which to judge.
Many noble Lords have great military experience at this level, but in the other place I regret to say that there are those with no experience of military operations like this and therefore a hue and cry would ensue and the military could be most unfairly damaged.
I have no complaint about the setting up of this inquiry, but I ask the noble Leader of the House to ensure that this matter is handled very carefully.
Lord Richard: My Lords, I do not dissent from the noble Lord's remarks: of course the matter has to be sensitively, appropriately and delicately handled, and that is precisely why we have appointed a Law Lord to chair the tribunal. I would have thought that his objectivity and experience are unimpeachable.
I was disappointed to hear the noble Lord accuse this Government of setting up the inquiry for political motives. I can only tell the noble Lord that that is not so; it is being set up to look at new evidence. If the

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matter was looked at in private and a conclusion then announced, I can imagine the reaction from one side or the other whatever conclusion was reached. If it is conducted in public everyone will know that the matter has been properly looked at and examined. I am sure that the noble and learned Lord who will chair the tribunal will be very conscious of the fact that it should not turn into a pillory of one group of people or another.
In regard to the people who gave advice to the Government, I regret that it is one of those realms of government policy which, even after the Freedom of Information Act is passed, will of necessity have to remain hidden.
Lord Hardy of Wath: My Lords, I welcome my noble friend's Statement and the reference he made to the conduct of our services. My worst moment as a Member of the other place was persuading a lady, who is now dead, not to have the coffin of her 19 year-old son, who was in the Parachute Regiment, opened. Will the noble Lord accept that regret could well be expressed from all quarters?
Lord Richard: My Lords, I am grateful to the noble Lord for his words.
Lord Campbell of Alloway: My Lords, if the conduct, competence or judgment of a member of the Armed Forces is liable to be impugned—and this does happen in these inquiries—will he be able to be legally represented? I ask the question because some problems arose during the Scott Inquiry which greatly upset my noble and learned friend Lord Howe of Aberavon.
Lord Richard: My Lords, the answer is yes. It is a matter for the tribunal. During the Widgery Tribunal, certain interested groups, for example, families, had proper legal representation. The power exists for the tribunal to allow that.
Lord Hurd of Westmore: My Lords, will the Leader of the House accept that one of the most important parts of his answer today was the assurance that this process, resulting from the Prime Minister's Statement, is quite separate from the peace process? We have all heard and read in recent days that such a statement would be made, perhaps accompanied by an apology—there has not been and I welcome that—and how helpful it would be to the Prime Minister and the Secretary of State for Northern Ireland in the peace process. Can the noble Lord repeat his assurance? Is it not most important that history should not be used as a tool or pawn in a political or diplomatic process, however important that process may be?
Lord Richard: My Lords, I entirely agree with the noble Lord. This process is totally separate from the peace process and should remain so. An inquiry which will inevitably take some months to come to a conclusion can only have a peripheral effect upon the discussions that are taking place.
Lord Alderdice: My Lords, I would like to express my gratitude to the Leader of the House for repeating
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the Statement made in another place by his right honourable friend. I have heard the noble Lord say that this matter must be treated separately from the peace process.
There has been a growing view, not just on one side of the community in Northern Ireland but right across the community, that many things happened on that day that were unsatisfactory, not least that young soldiers were put into a policing situation for which they were not trained.
In every conflict there are events that take on a significance beyond their own because they appear to stand for all sorts of things. There have been many incidents over the last years where inquiries might be necessary, particularly in the case of terrorist atrocities where apologies are more than due. We should not delude ourselves at this time, when we are struggling with the difficulty of finding a settlement and reconciling as many of our people as we can, that recognition of this matter should be addressed properly and legally; but it is also a constructive demonstration of the concern in this country to make things right for the future and to do things in a proper way, for we cannot change the past.
Lord Richard: My Lords, the noble Lord speaks with deep personal feeling and commitment. His knowledge of events in Northern Ireland is considerable. I am glad that he sees the announcement of this tribunal as something that may bring the parties together, which is clearly one of the hopes of the Government.
Lord Archer of Sandwell: My Lords, does my noble friend recollect that last year at the request of the then Lord Chancellor the Council on Tribunals tendered advice as to the future conduct of ministerial inquiries? Can he assure noble Lords that that advice will be very much in the minds of those who have the conduct of this inquiry'?
In regard to what transpired on Bloody Sunday, will the noble Lord agree that the greatest contribution most of us can make is to exercise self-restraint in what we say?
Lord Richard: My Lords, I hear what my noble and learned friend has said. I hope that the memorandum will be very much in the minds of the noble and learned Lord, Lord Saville, and the other members of the inquiry because I have to confess that they are not very much in my mind at this particular moment. I will have to look to see whether there is anything in that memorandum which contradicts or amplifies anything I have said this afternoon and, if there is, I will contact my noble and learned friend.
Lord Elton: My Lords, would the noble Lord have as much difficulty as I would in recollecting in precise and forswearable terms any events on any day in 1972 in which he took part which were of importance? Are there not going to be two orders of evidence presented to this inquiry: evidence which rests on records made at or near the time, and evidence which rests on recollection at the time of the inquiry?

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I have the greatest respect for the legal profession, but I should have no confidence in my recollections of any such event at such a distance in time. It seems to me therefore not at all impossible that there will be no definitive conclusion of the inquiry, and all that it will be able to produce will be a balance of probabilities. In those circumstances, will the noble Lord assure us that thought is already being given to how the Government will react to the findings when they are made known, because that will be nearly as important as the findings themselves?
Lord Richard: My Lords, I do not believe that at this stage the Government are giving a great deal of thought—certainly I am not—as to how we shall present the findings of an inquiry that we have just set up. We have not yet passed the necessary resolution in Parliament to do so. The noble Lord is right in the sense that we do not know the precise nature of the evidence that will be put before the tribunal; we do not know how that evidence will stand up to being tested; we do not know how much of it will be recollection which may be flawed; and I do not know how much will be contemporaneous documentary evidence. All sorts of issues have to be considered. The question is not what the inquiry will look like when it finishes, but whether it is worth starting the process. The Government have concluded that they should.
Lord Glentoran: My Lords, I have to ask the noble Lord, with some cynicism, whether he agrees that this may be yet another tactical error in the Government's recent handling of Northern Ireland affairs. The admission that the noble Lord has just made that the Government have not yet thought about how they will handle this sensitive, delicate, and, as the noble Lord has admitted, unknown material that will be put before the inquiry is frightening. Does the noble Lord agree that as this is a public inquiry, Dublin and the IRA will take the evidence piece by piece and use it as presented, against the better results that might be achieved by Her Majesty's Government in their negotiations for peace? Does the noble Lord accept and understand that many people in Northern Ireland, as was stated in the press that I read this morning, will put down the fact that there is to be an inquiry to pressure from Dublin? I consider this to be a serious tactical error. I ask the Government to consider seriously how they will handle the evidence and the conclusions, because I believe that serious problems will arise.
Lord Richard: My Lords, of course we will consider how best to handle the matter. All I was doing a few moments ago was telling the noble Lord, Lord Elton, that it is premature to consider now how we will handle the findings of an inquiry that we have only just set up. Noble Lords opposite shake their heads. I do not know—they may know better than I—what the findings of this inquiry will be. It will no doubt come to a conclusion when it has considered the evidence. When it comes to a conclusion, it will no doubt communicate
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that conclusion to the Government and to the world. It is at that stage that the handling of the findings becomes important.
As to the sensitivity of the process, I emphasise that of course the Government are conscious of the sensitivity of the issue. We are having the inquiry because it is such a sensitive issue. The only sensible and sensitive way to deal with the matter is to set up a tribunal of inquiry in the terms that I have expressed this afternoon. I am sorry that the noble Lord, Lord Glentoran, thinks that we have made a major error of judgment. I do not.
Lord Swinfen: My Lords, when does the Leader of the House envisage that the inquiry will make its report, and when will the report be published? Does he think that it will be before or after the planned conclusion of the peace process, which I believe is at the beginning of May, because it could have an effect on the peace process?
Lord Richard: My Lords, I cannot give any date for the conclusion of this inquiry. It is very much a matter for the chairman and the members of the tribunal. I had better leave it there. It is almost impossible to tell until the process is launched.

Greater London Authority (Referendum) Bill
4.15 p.m.
Report received.
Clause 1 [Referendum]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 1:
Page 1. line 13. leave out ("question") and insert ("questions").
The noble Baroness said: My Lords, I shall speak also to Amendment No. 12. Amendment No. 1 is a paving amendment. The amendments deal with the question or questions to be asked in the referendum. It is a matter which was considered at some length in previous stages. During earlier exchanges the Government asked whether the Liberal Democrats and the Conservatives could come up with a set of questions upon which the two groups agreed. She criticised us, perhaps understandably, for proposing different sets of questions, although they were not far apart.
We have responded to that challenge. We have not done so because we agree on the preferred model for London government but because we believe that there should be a debate on the model—the type of debate that a referendum will engender, not the rather peripheral discussion which will occur if there is just one package/question, where the issue for debate will be the generalised issue of the government of London.
It is no secret that all the parties have different views as to the elements there might be in the government for London. The Government propose a package, and they have been clear about that: an authority consisting of a separately directly elected mayor and an assembly. Most of the Liberal Democrats support an assembly with the

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leader of the assembly taking the mayoral role. Most of the Conservatives support the idea of a directly elected mayor, and an assembly or group comprised of leaders of the London boroughs. There is a range of views in all parties. There was a reference at an earlier stage of the Bill to the leaks about discussions within the Greater London Labour Party and other Labour members in London.
In Committee the Minister talked (co1.950) about providing firm leadership, setting strategic direction and getting things done. She ascribed those actions to a mayor, and said that that was what a mayor could do. Those actions could equally well be ascribed to and carried out by an assembly with a leader. As I have said previously, the model for an assembly, a group, a parliament with a strong leader, is that of Mr. Blair. But those activities could also be carried out by a mayor subject to different types of checks than the ones which will be on offer in this package.
The Government believe that the mayor should not have too much power. I agree with that. I believe that no individual in any level of government should have too much power. The recipe of the Liberal Democrats is to write in checks so that an assembly can deal prospectively, not just retrospectively, with proposals and can he effective; in other words, involving a group of elected representatives at the start of every project and every undertaking.
I have referred before to the model of New York, often quoted, where I believe that the mayor has the support of an office of financial officers 350 strong, yet the assembly with the role of scrutinising the mayor's budget has the support of a mere 35 officials, 10 per cent. I give that as just one example of the sort of thing that worries me and noble Lords of my party. That, of course, has been our policy quite consistently.
I am aware that the package on offer from the Government is what was in the manifesto "after a referendum". Those were the words used. So I do not believe that it is of quite the same status as other manifesto items. The noble Lord, Lord Campbell of Alloway, at the last stage said:
"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".—[Official Report, 13/1/98; col. 952]
Nor does it say that there cannot be expressions of opinion about the two elements.
I am sure that the Government do not wish to suggest that the vote in the referendum will be the sort of vote one sees in a totalitarian state, where the people are required to show support for any proposal that comes from the head of state and they have no alternative. So what are we to make of the notion of a referendum, still a very new procedure in the United Kingdom? My noble friend Lord Wallace of Saltaire at the last stage distinguished between referendums and plebiscites. Plebiscites are what governments do to demonstrate the illusion of consultation but to get their will. Referendums are real consultations with the public. There are different views about what referendums should comprise, what they should be expected to
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achieve. But there is the common element that they should involve a process of education of the public and encouragement to participate, of consultation and involvement; all values which are certainly values of my party, but I believe that they are expressed to be values of new Labour.
The noble Baroness spoke at an earlier stage of not having imposed upon the Government a constitutional settlement other than the package which is on offer; a settlement, as she described the possible outcome, which the Government believed to be fundamentally wrong. Of course not. I do not believe that a referendum can impose—certainly not the referendum that we are talking about in this context; it can guide.
I agree with my noble friends Lord Wallace and Lord Dahrendorf that public debate about what is the real role of plebiscites and referendums would be useful. But even without that debate I am in absolutely no doubt that what Londoners expect is to be asked their views. The propositions are novel: a mayor, a very strong mayor with powers of which we have no experience. They expect to be able to express their views on the novelty.
The notion that this is presented as a package has been greeted with some amazement by a number of people to whom I have spoken who have not followed the detail of the argument in the way that your Lordships will have done. Their common sense approach is, "This is something on which we should be consulted. We should be able to say what we want. But there are two parts to it. We want to express our views on both parts".
I have referred to it being a package which is on offer. I hope I do not sound impertinent in saying that it is intellectually a very respectable argument to say that we propose a package, we do not want to disaggregate that package, we will ask views on that package. What I find less easy to understand is how the Government could proceed if there was a no vote because they will not know what the voters regard as being objectionable.
Our approach is quite different. It is setting out the context of the package, that the Government propose an authority made up of an assembly and a mayor. Then it asks the two questions because, whatever my preferences and those of my noble friends, and I believe those of the Conservative Party, we do not believe that any of those who support the amendment before your Lordships this afternoon would say that politicians should be pre-empting the views of Londoners. The Government may say that if only the mayor were to be approved from a two question referendum it would not wish to proceed with the mayoralty. It is up to the Government, and indeed, up to my party to argue against an authority which comprises only a mayor with insufficient checks and balances. But if, nevertheless, this is the outcome, that there is not support for both elements, then of course the Government will have to think again. I cannot believe that that is an inappropriate outcome because a constitutional settlement which does not have the resounding support of Londoners must have an element of instability.
The Minister referred at the last stage to the referendum not being an oversized research project. Equally, it is not a directive which the Government are

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bound to follow if their proposals do not receive support. She said it is a package with interdependent parts. Yes, then that is what should be argued during the referendum campaign. It is not a matter of offering two alternative choices to the people of London. If there is a preference for one element—the authority—but not for the other, there will have to be further work on how and if that element might operate. But overwhelmingly, I suggest that it is Londoners not Labour who should decide. I beg to move.
Lord Bowness: My Lords, I support this amendment that stands in the name of the noble Baroness, Lady Hamwee, and myself. This was a matter discussed in Committee. At that time I withdrew the amendment that was in my name and promised to read carefully the reply that the Minister gave to the debate on both that amendment and that of the noble Baroness, Lady Hamwee. I must tell the Minister that I have done just that. And just as I did after reading the Minister's response to the issue when it was raised during the Second Reading, I still believe that in resisting two questions the Government are seeing complications where complications do not exist.
The proposal is a very simple one. We would like the people of London to be able to vote separately on the two elements of the Government's proposal. I emphasise that the question does not seek to put before the citizens of London anything different from that which the Government are proposing. Nor, I should say for the avoidance of doubt, does it seek to have a situation where there is either a mayor alone or an assembly alone. Our reason for wanting the question to be posed in two parts is that by then, if we do not have a Bill, we shall at least have a White Paper and some of the details will be very much clearer.
It has to be said, however—and I do not believe that this can seriously be gainsaid—that having seen the details, people may well have a different view about the proposals from those which they currently hold. It is quite conceivable that a voter wishing to see an authority for Greater London might feel that the powers to be given to a directly elected mayor were, for example, too great with insufficient constraints, in which case he might wish to vote in favour of the assembly proposals but not for the mayor. Similarly, voters may dislike the powers and functions to be given to a directly elected assembly. They might consider that those constrain not just the mayor but the boroughs themselves, making it difficult for the mayor and, indeed, the boroughs to do their jobs as envisaged in the proposals or as they would seek to argue they should be done.
The Government appear to have no trust in people's ability to see the difference between the two questions and to answer something more sophisticated than this Government's demand for a simple "yes" or "no". I believe that in what will be a very complicated situation, voters may have a variety of different views and they are entitled to be given as many opportunities as possible to express them
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The problem with the Government's approach is that it must be accepted or rejected in its entirety. Indeed, the Government seem to make a virtue of that. They acknowledge it and say that it is a package which the voters must take or leave; there can be no picking or choosing. The Government say that there are no choices on offer. One is bound to ask why they bother with a referendum at all. However, I leave that to one side.
Surely it is possible for the referendum to take place against the background of informed debate and to seek a view of the public in the most meaningful way. Your Lordships will know that given that the Government have decided to go down the referendum route, at the very least the draft Bill should be available. But let us suppose for a moment that it is not. Even the Government's second-best plan envisages a White Paper with proposals being available before the vote. Even the Government propose that. Critical to that debate will be the balance of power not only between the mayor and the assembly but between the mayor, the assembly and the boroughs. As a result of that debate, it is perfectly possible for the voters to say, "We like the plans that you have for an executive mayor but not the plans for the assembly", and vice versa.
Contrary to what the Minister said at earlier stages, that does not commit the Government to proceeding with their plans for a mayor and not an assembly or for an assembly and no directly-elected mayor. The Government can make it quite clear, as they have done, that they view this as one proposal and a package and will not proceed with one element only. No doubt the Government will campaign individually for a "yes" vote on both counts but that does not preclude the proposals being divided and put to the people to seek their views on the two essentials.
If the Government fail to achieve two "yes" votes, they will have to think again on whichever element received a negative vote. It will be up to them. No one else is going to decide how to proceed. Nothing is going to be forced on anybody by having two questions and conceivably two different answers.
In Committee the Minister asked how a voter should vote who wanted a mayor and assembly but only with the proper checks and balances. I should say to the Minister that I have pondered on that question. I hope that I understood it. In asking the question she is assuming that it is only the relationship between the mayor and the assembly which is the relevant question. As I have suggested, there are the matters of functions and relationships with the boroughs which need to be considered.
I believe that the Minister's voter would vote "yes" twice if satisfied on the question which she posed and "no" to both questions if not satisfied. But the Minister did not pose the problem of a voter who is convinced about the need for a mayor, a voice for London and an advocate for the capital who likes the directly-elected concept but who is concerned about the powers and functions to be given to a new assembly.
The advocate for an assembly but not a directly elected mayor might make a similar case. Why should the voter have to make a stark choice instead of being

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able to give a considered reply to the two elements of the Government's plans? In my submission the case for two questions is very strong and is not a distinctly Conservative position.
In Committee in another place it was pointed out that not only did The Times and the Telegraph support two questions but so did the Guardian, which supported the Government's proposals in their entirety. I am sure that the Minister will be aware that the editorial in the Guardian said:
"We subscribe to neither view, but to deny them",
that is, the public,
"any expression on the ballot seems peculiar. After all, the whole point of a referendum is to allow all the people their say".
I believe that the case for two questions will be even stronger when the debate takes place against the background of the details to be put forward by the Government in their White Paper. I support the amendment.
4.30 p.m.
Lord Hunt of Kings Heath: My Lords, I have listened very carefully to the remarks of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Bowness. I have some concerns about the impact of the amendment, both in terms of the principle of the Bill before us but also in terms of the practical effect that those amendments would have which could lead to both delay and confusion and may thwart the very clearly expressed desire of Londoners to have strategic leadership in the capital as soon as possible.
As both the noble Baroness and the noble Lord pointed out, the Government are proposing a package which embraces both an elected mayor and a separately elected assembly. The proposals were based on the Labour Party's manifesto. They were incorporated within the Green Paper and the consultation that went with it.
The beauty of what is proposed is that the public in London are being given a clear choice to vote "yes" or "no" with the implications of that choice well understood. They can be very clearly implicated if Londoners vote in favour of the proposals.
Once one moves into a two question situation, that undoubtedly complicates the picture. I should say, in answer to the noble Lord, Lord Bowness, that you could end up with several outcomes: either a mayor and an assembly together, a mayor alone, or an assembly alone. The White Paper that preceded the referendum would then need to discuss that range of options. I suggest that it would present a confusing picture to the people whom we are asking to vote instead of presenting a clear-cut choice. Londoners would have anything but that.
It becomes even more complicated if a Bill must be published eight weeks before the referendum. The danger is that confusion and delay may occur. I believe that our capital city has suffered so much for too long from a lack of clear strategic leadership. The Bill offers us the clearest, quickest and most straightforward way to proceed. We should resist the amendments.
Earl Russell: The noble Lord, Lord Hunt of King's Heath, objects to the amendment for exactly the same
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reasons that I objected to the Government's decision to have a two-question referendum in Scotland. I was wrong. I believe that the noble Lord, Lord Hunt of Kings Heath, is wrong for the same reason. Both of us at different times have been too fearful. We have been too reluctant to allow the will of the people to be expressed clearly.
We have here two logically distinct questions. They are far more obviously logically distinct than the two questions put forward in the Scottish referendum. Therefore, since we actually have two questions, I believe we need to know what the people think about both questions. I am sure that your Lordships know the story of Hobson's choice: when you came to the stable you were allowed to choose any horse that you liked, as long as it was the one nearest the door. Hobson was actually a real person. I discovered the fate of his estate in the Record Office of your Lordships' House. He was a Cambridge University carrier who made a fortune of £30,000 but, because he died intestate, the lawyers got it all.
In much the same way the Government may possibly risk getting their come-uppance if they will not allow the voters to make a real and genuine choice. On opinion poll evidence at present, it is perfectly clear that it is overwhelmingly likely that a "yes" would be given to both questions. I know that people tend to get anxious, but I really do not think that the Government need to be this anxious. I believe that they can afford to take the risk.
Baroness Ludford: My Lords, I just wanted to remind the Minister that, in Committee, she quoted with approval part of the speech that my noble friend Lord Dahrendorf made on Second Reading. She said that he was absolutely right when he said that,
"referenda should not he 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 of London do not like the Government's proposals—for two separately elected components of the Greater London authority—the Government will have to think again".—".— [Oflicial Report, 15/12/97; col. 430.]
I believe that the Minister quoted those words because she thought that the arguments expressed supported her case. However, I suggest to her that those words could equally support the argument for two questions in the referendum.
The first point made by my noble friend Lord Dahrendorf was to say that the Government must argue for their proposals. What we have heard is the suggestion that, with two questions in the referendum, the Government will have the proper democratic duty of arguing and explaining their proposals very strongly and that the quality of debate will be all the higher for it. In other words, the interests of Londoners in the debate is likely to be greater and there will be the prospect that some of the issues facing a London authority will be discussed, rather than what is happening at present with the debate being distorted by speculation on the personality who is likely to run for the position of mayor. That is most unhealthy.

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The second point made by my noble friend was that if the people do not like the Government's proposals the Government will have to think again. The point has been well made in this debate that the referendum is a consultative process. In that respect, perhaps I may answer a point made by the noble Lord, Lord Hunt, who said that the referendum would be based on the proposals in the manifesto. If the manifesto and the General Election result were all that was necessary, one could say that there was no point in having a referendum. If we are to have a referendum, it is because we want the specific approval of Londoners for the scheme put forward by the Government. If the Government have to argue strongly for their proposals for an assembly and a directly-elected mayor—which, as my noble friend Lady Hamwee pointed out, is a constitutional innovation in that it is rather novel—I believe that the debate will be all the stronger.
Another important point which has arisen from the debate is that the Minister has said at various stages that the Government are wary of the situation where voters could reject the assembly and opt only for a mayor and that, as they do not support having a mayor only, they would be unable to implement that result. I believe that would be dealt with by the fact that, clearly, they would have to think again. However, I hope that the quality of the arguments will ensure that it will not come to that.
Can the Minister also address the following point? If voters are faced with the package only and do not like one element of it, they will have to vote "no" to the whole package. If they are not happy with the suggestion of a directly elected mayor, they will have no option but to vote against the assembly. That seems to me to be a very sorry situation and is one of the reasons why we on these Benches have consistently supported the restoration of a strategic authority for London. We would prefer a first-best solution, but a second-best solution is better than no London authority.
We are worried that the atmosphere in which this proposal will be debated will rather sour the debate. Frankly, it looks as if the Government are open to the charge of being rather arrogant in imposing only a single package and, indeed, that they may be getting rather defensive about the whole idea of a London authority. The spirit in which this should be presented and debated is that of an exciting step forward in that London will be better governed when it has a London authority. If the Government are coming over as rather stubborn about this—indeed, perhaps rather defensive—and unwilling to argue strongly for the different elements in the package, there is a risk that the nature of the reception that Londoners will give the proposal will be slightly discouraging and we shall end up with less support and enthusiasm for what should be a bold and exciting step forward.
Before the Minister replies, I should add that it is important for us to remember that the amendment is supported by those who actually want a directly elected mayor. Supporting this amendment does not depend on whether you want the outcome of only an assembly or only a mayor; indeed, it is supported by those who simply want the quality of democracy and of debate to
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be enhanced by giving Londoners the choice. The Government would go up in the estimation of all those who support democracy and who vote for choice if they were to concede that the best way in which the referendum can be conducted is to allow Londoners not to have their vote distorted by the package approach.
4.45 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman): My Lords, we have been through this territory both in another place and in your Lordships' House on several occasions. I shall try to restate the Government's position on the issue of two questions as clearly as I can. The noble Baroness, Lady Hamwee, was very clear in her exposition and very frank as regards the history of the two Front Benches opposite finally finding a form of words upon which they could agree in terms of the proposed amendment. The noble Baroness accepted that, in a sense, that masked a very real disagreement between those two Front Benches and certainly in regard to this Front Bench about the best constitutional settlement for London.
There is disagreement on the issue. The Government's position is absolutely clear-cut. It was clearly stated in our manifesto and, indeed, it has been there all along. We believe that there should be a Greater London authority comprising a directly-elected mayor and a separately directly-elected assembly. We have stated that we need the leadership and the legitimacy of a directly-elected mayor and the accountability and the monitoring of a separate, directly-elected assembly. Moreover—and I say this to the noble Lord, Lord Bowness, because it represents the difference between us—we believe that those people should be separately elected to that job. In other words, they should not be doing it as a second job to their leadership of the London boroughs. I know that the noble Lord's party believes that there should be an indirectly-elected assembly, in the same way as the noble Baroness's party believes that there should be an indirectly-elected mayor. These are absolutely legitimate political differences for parties to hold.
I have no problem with these arguments being propounded by parties. Indeed that was done during the general election campaign to some extent. The Government's position was clear and has been consistent. I believe that the position of the Liberal Democrats was clear; namely, they have never been in favour of a directly elected mayor. The noble Lord, Lord Bowness, has accepted that the Opposition—
Lord Ogmore: My Lords, I thank the Minister for giving way. I am sure that most noble Lords know exactly what the noble Baroness means. However, I should be grateful for some clarification. When she uses the words "directly elected", does she mean that both the assembly and the mayor are directly elected by

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the electorate of London? Or, is the assembly elected directly by the electorate and the mayor elected by the assembly? There may be slight confusion here.
Baroness Hayman: My Lords, the noble Lord has illustrated the kind of confusions and difficulties we get into when we start opening up different options. The Government's proposition is quite clear; namely, that there should be elections for a mayor. There will he a slate of candidates for the mayoralty. There should be elections for the assembly. There will be names of people and the constituencies they would represent. The voting systems will be set out in the White Paper. As I say, there will be separate elections for the assembly. There will be a disposition of powers between the mayor and the assembly; the inter-relationships will be set out clearly. Those two together will form the Greater London Authority to which we committed ourselves in our manifesto.
Earl Russell: My Lords, I am grateful to the Minister. Before she concludes I hope that she can answer the question of my noble friend Lady Hamwee. If the manifesto concludes the matter and the package cannot be divided, why do we want a referendum?
Baroness Hayman: My Lords, I can assure the noble Earl, Lord Russell, that I have not finished yet. However, he has thrown me slightly. I was trying to express the matter clearly. There are different views as to the most appropriate way forward. Those views can be propounded by different political parties and put to the electorate at a general election. To an extent that was done. The general election of last year gave a clear endorsement to the Government. Perhaps my next point will answer the questions of the noble Earl, Lord Russell, and the noble Baroness, Lady Hamwee. The Government also committed themselves to testing the assent of the people of London to a Greater London Authority.
I rather resent the accusations of totalitarianism and not giving the people any choice. We are imposing another layer of assent and public consultation. We saw what happened when the GLC was abolished. One does not need a referendum to change government in London; one can do that by Act of Parliament. However, we stated in the manifesto that we believed it was important to create strategic, city-wide London government and to test whether the people of London agreed with the Government's proposition. We never said that we would also offer them propositions that appealed more to the Liberal Democrats or to the Conservatives.
I wrote down what the noble Earl, Lord Russell, said. He said that in the past we had been reluctant for the will of the people to be clearly expressed. We are trying to allow the will of the people to be clearly expressed. I stress the importance of the word "clearly". I suggest to the House that there would be no clarity in the kind of propositions that have been put forward by the noble Lord, Lord Bowness, or the noble Baroness, Lady Hamwee. If we detect different degrees of support for different parts of the package, the Government will have to think again. How will the electorate know what
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their clear choice is when a variety of results could emerge on the issues of whether the mayor or the assembly should be directly elected? The noble Lord, Lord Bowness, said people were considering many other issues, for example the relationship with the boroughs.
Lord Bowness: My Lords, I am grateful to the noble Baroness for giving way. I hope she will concede that I did not say there were an even greater number of outcomes; I said there were a number of issues that the people would wish to consider when casting their vote. I did not argue for more than two questions. That strictly limits the possible outcomes.
Baroness Hayman: My Lords, it strictly limits the possible outcomes but people would not know with any clarity what the outcome of their vote would be as they would not know how other Londoners would vote and they would not know what the Government's response would be. I return to the accusation of totalitarianism and imposing a referendum to which people can vote only yes. That is not correct; people can vote yes or no.
Baroness Ludford: My Lords, I hope the Minister will address that point. People may have to vote no when they are voting no to only one element of the package. However, they will be forced to vote no to the whole thing precisely because the Government are not giving them the option to vote no to only one element. Would it not be better to have some government for London rather than none if people's votes are being distorted by the Government's refusal to give choice?
Baroness Hayman: My Lords, I cannot agree with the noble Baroness that it is definitely better to have some government rather than none. Neither I nor the Government want to have an unaccountable mayor. We do not think that is the right way forward. I do not wish to see—I do not think those on the Bench opposite wish to see this—a recreated GLC without the leadership and the counterbalance of a mayor. We need some clarity here. We were accused of not being able to risk the judgment of the people. However, we are willing to risk the judgment of the people on the package that we are putting forward. I do not think it is appropriate to analyse the speeches of a noble Lord in his absence in terms of the thinking behind them. I believe that the words of the noble Lord, Lord Dahrendorf, that I mentioned were absolutely clear. People can read them in the Official Report and draw their own conclusions.
Lord Archer of Weston-Super-Mare: My Lords, I have listened to the argument with great interest that was academically given to the House with all the forensic skill of the noble Baroness. Will she be kind enough to explain to me why in Scotland there could not have been one question: "Do you want an assembly with tax raising authority"?
Baroness Hayman: My Lords, in Scotland there were two separate issues which were not interdependent. They were separable constitutional areas. The reason we

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had one question in Wales was because the issue of tax raising powers was never proposed as something that would be implemented. In the case of Scotland there was a package of constitutional measures, without a pick-and-mix; for example, "Do you want a first Minister or not a first Minister?", or, "Do you want to change it around, or anything else?" There were two separate issues comprising the constitutional set-up of the Parliament and the tax varying powers. There was a clear yes or no answer to either question. I have said time and again that the Government's case is quite clear; namely, this issue concerns responsibility of government. I have forgotten the point that was raised by the noble Baroness, Lady Ludford.
Baroness Ludford: My Lords, I referred to the danger that people would have to vote no to the whole package.
Baroness Hayman: My Lords, I apologise to the noble Baroness. The noble Baroness said that people would have to vote no when they were only 90, 80, or 70 per cent. against a measure and that they would not be able to express the nuances of their views. I am afraid that life is sometimes like that. At general elections we have to take the totality of a party's policies and come to a view on them. It would be irresponsible of the Government to offer the people of London the possibility of splitting up a constitutional settlement when the Government do not believe that would be in the interest of Londoners. We are willing to risk the judgment of the people of London on the proposition for which we shall definitely argue. We have no temerity about that. We are not uncertain about the robust nature of the proposals, but we wish to see some clarity.
Lord Bowness: My Lords, the Minister speaks about the robustness of the proposals. Does the noble Baroness agree that there are no proposals? The Government have produced no White Paper or Bill. The Government intend to put forward an unknown proposal to the people of London. They are not even prepared to divide the proposal so that the people of London can make a considered judgment when they have a few details, which will presumably come from the White Paper rather than the Bill as we would prefer.
Baroness Hayman: My Lords, I can assure the noble Lord that there will not be "a few details" in the White Paper. The White Paper will be comprehensive. It will deal with all the issues with which this House is rightly concerned across the range of complex issues involved in the government of London. The White Paper will be published in the week of 23rd March. We shall make sure that a summary of that White Paper goes through the door of every household in London.
We have talked seriously in this House about how we can make people aware clearly of the details of the proposal. To do so clearly, and to give proper information, in such a complex area will not be aided if many variable answers may result—the mayor without the assembly; the assembly without the mayor. If we are to have clarity, we cannot also have a variety of outcomes other than "yes" or "no".
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That leads me to another issue that I hope your Lordships will consider carefully if the amendment is pressed to a Division. I refer to the behaviour of the Chamber, and the amendment which was passed in Committee. The noble Lord, Lord Bowness, discounted his victory in Committee; but victory it was. The Committee amended the Bill so that a Bill has to be published eight weeks before a referendum is held. The Government advised your Lordships' House that that was not appropriate. We thought that it was wrong. We did not think that it would aid clarity and understanding; and we knew that it would delay fatally the referendum. It would mean that we could not hold the referendum on 7th May of this year, the same day as the local elections. Nevertheless, the Committee took a different view. It took the view that there should be a Bill and those who propounded the amendment were clear that it should contain the detail of the Government's proposals. The Bill should not contain clauses which provided for the relationship were there to be an assembly but an indirectly elected mayor, or, alternatively, the relationship were there to be a directly elected mayor with an indirectly elected assembly. The noble Lord, Lord Bowness, was clear that the Bill should contain the specifics of the Government's proposals so that people knew exactly what they were voting for or against.
Lord Bowness: My Lords, I hope that the noble Baroness will forgive my intervention. I do not wish to delay the House longer than necessary. Does the noble Baroness agree that we proposed that there should be a Bill? That is the decision of the House as it stands. The Government's proposal—it is second best in our view—is that there should be a White Paper with proposals. Does that not support—
Baroness Farrington of Ribbleton: My Lords, perhaps I may remind the noble Lord that we are on Report. This is the third intervention and interruption of the Minister's winding up speech. Normally one is considered sufficient.
Lord Bowness: My Lords, clearly I am in the hands of the House. But the Minister referred specifically to what I said. It seems to me that she was misinterpreting the position we put to the House.
We want as many details as possible put forward. Does the Minister agree that in the light of those details it would be quite possible for the people to express one view about one aspect and a different view about another?
Baroness Hayman: My Lords, that is the point on which I differ with the noble Lord. While I do not think that it is justified, there is an intellectual coherence in being more specific, getting more detail, and having the legislation in front of people before they vote in the referendum so that they know the government's proposals and exactly what would be entailed in voting "yes" or "no" for the package of the greater London authority, which is the assembly and a mayor.
The House should consider carefully whether we should ask another place to amend the Bill in two diametrically opposite directions. The amendment

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already passed asks for more clarity and more detail on the exact government proposals. This amendment increases uncertainty. It has been said by Members of both parties opposite that the Government would have to think again as a result of the different votes and degrees of support there might be for one proposal or another on the mayor or the assembly. This House rightly prides itself on being scrupulous about the internal consistency of its decisions. I do not think that it would be sensible, the House having amended the Bill in one direction, then to amend the Bill in a completely different direction.
Each amendment has a logic of its own. It makes the outcome either more black and white, more certain, with a more specific background against which people vote "yes" or "no"; or it opens up the situation and makes the referendum less a test of assent to a given proposition and more a consultative exercise on different options. But together the amendments pull in completely different directions. Together they destroy what was a clearly set out commitment by this Government in their election manifesto to implement proposals for a directly elected authority for London; that it should comprise two separately directly elected elements, and that we would test that proposition with the people of London. We were willing to risk the people of London rejecting what we put forward. As a responsible Government we were not willing to put before people a false menu of a constitutional settlement for London which we do not believe to be workable or in the interests of the capital. On that basis I urge the noble Baroness to withdraw her amendment.
Baroness Hamwee: My Lords, the Minister suggested that disagreement between the two Front Benches was masked by the amendments. That is not so. I and the noble Lord, Lord Bowness, have been perfectly clear about our decisions. It is not a question of masking disagreement but of reaching agreement as regards part of the process.
I shall not take up too much of your Lordships' time in responding. I sense that noble Lords would not be entirely tolerant of the arguments being rehearsed fully again. However. perhaps I may respond to points made by the noble Lord. Lord Hunt, and the Minister. It was suggested that there could be several outcomes to a referendum containing more than one question. I hope that I have made the position clear, but I shall do so again. I am not suggesting that if the votes do not produce the package that the Government are promoting they would then be bound to proceed immediately with one element.
It has also been suggested that this amendment is inconsistent with the one agreed by your Lordships at the previous stage—the question of publication of a Bill before the referendum. The Government immediately went on record as saying that they would reverse that amendment in another place. I recognise that that will not be the end of the process. However, I propose this amendment in the light of that history.
It has also been said that the will of the people can be clearly expressed by means of one question, but that more than one question would lead to a variety of results. I dealt with that point by explaining that I do not propose that the results would mean an immediate move to some other form of constitutional settlement.
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The matter can be simply summed up in this way. There are entirely different approaches to assessing the will of Londoners. We have heard the Government's approach. We do not agree with it. I seek leave to test the opinion of the House.
5.11 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 111; Not-Contents, 104.

Division No. 1

CONTENTS

Addington, L.

Marlesford, L.

Alderdice, L.

Masham of Ilton, B.

Alexander of Tunis, E.

Massereence and Ferrard, V.

Annaly, L.

Mayhew to Twysden, L.

Ashbourne, L.

Merrivale, L.

Bath, M.

Meston, L.

Bathurst, E.

Methuen, L.

Beaumont of Whitley, L.

Milverton, L.

Bethell, L.

Monckton of Brenchley, V.

Blaker, L.

Monro of Langholm, L.

Bowness, L.

Monson, L.

Brahazon of Tam, L.

Naseby, L.

Broadbridge, L.

Norfolk, D.

Brougham and Vaux, L.

Norrie, L.

Burnham. L.[Teller.]

O'Cathain, B.

Calverley, L.

Ogmore, L.

Carlisle. E.

Park of Monmouth, B.

Carnock, L.

Platt of Writtle, B.

Charteris of Amisfield, L.

Rawlings, B.

Chorley, L.

Razzall, L.

Clanwilliam, E.

Rea, L.

Clark of Kempston, L.

Redesdale, L.

Colwyn, L.

Robson of Kiddington, B.

Cope of Berkeley, L.

Rodgers of Quarry Bank, L.

Crickhowell, L.

Romney, E.

Cumberlege, B.

Rowallan, L.

Dacre of Glanton, L.

Russell, E.

Denham, L.

Seccombe, B.

Dixon-Smith, L.

Skidelsky, L.

Donegall, M.

Stallard, L.

Elliott of Morpeth, L.

Steel of Aikwood, L.

Elton, L.

Strathclyde, L.

Erroll, E.

Strathcona and Mount Royal, L.

Feldman, L.

Sudeley, L.

Garel-Jones, L.

Swansea, L.

Gisborough, L.

Swinfen, L.

Goodhart, L.

Taylor of Warwick, L.

Gormanston, V.

Teynham, L.

Granard, E.

Thomas of Gresford, L.

Haig, E.

Thomas of Gwydir, L.

Halsbury, E.

Thomas of Swynnerton, L.

Hamwee, B.

Thomas of Wallis Wood, B.

Harding of Petherton. L.

Thurlow, L

Higgins, L.

Thurso, V.

Holderness, L.

Tope, L.[Teller.]

Hood, V.

Tordoff, L.

Jenkins of Putney, L.

Trenchard, V.

Kenyon, L.

Tugendhat, L.

Lindsey and Abingdon, E.

Tugendhat, L

Linklater of Butterstone, B.

Wallace of Saltaire,L.

Ludford, B.

Weatherill, L

Mackay of Drumadoon, L.

Westbury, L

Mackie of Benshie, L.

Wharton, B

McNair, L.

Williams of Crosby, B.

Maddock, B.

Winchilsea and Nottingham, E.

Mar and Kellie, E.

Young, B

355

NOT-CONTENTS

Acton, L.

Irvine of Lairg,L.[Lord Chancellor.]

Allenby of Megiddo, V.

Amos,B.

Janner of Braunstone, L.

Ampthill,L.

Jay of Paddington, B.

Archer of Sandwell, L.

Jeger,B.

Barnett, L.

Kennedy of The Shaws, B.

Bassam of Brighton,L.

Levy, L.

Berkeley,L.

Lincoln,Bp

Blackstone,B.

Lockwood,B

Bledisloe,V.

Lofthouse of Pontefract,L.

Borrie,L.

Lovell-Davis, L.

Brooke of Alverthorpe, L.

McIntosh of Haringey, L.[Teller.]

Bruce of Donington,L.

Mallalieu,B

Burlison,L.

Milner of Leeds, L.

Carmichael of Kelvingrove,L.

Mishcon,L

Carnarvon, E.

Molloy,L.

Carter,L.

Monkswell,L.

Cledwyn of Penrhos,L.

Montague of Oxford,L.

Cocks of Hartcliffe, L.

Morris of Manchester,L.

David,B.

Murrary of Epping Forest,L.

Davies of Coity, L.

Nicol, B.

Davies of Oldham, L.

Peston, L.

Desai,L.

Pitkeathley, B.

Diamond, L.

Plummer of St. Marylebone, L.

Dixon,L.

Ponsonby of Shulbrede, L.

Donoughue, L.

Puttnam, L.

Dormand of Easington, L.

Ramsay of Cartvale, B.

Dubs, L.

Randall of St.Budeaux, L.

Evans of Parkside, L.

Rendell of Babergh, B

Falconer of Thoroton, L.

Renwick of Clifton, L.

Falkand, V.

Richard, L.[Lord Privy Seal.]

Farrington of Ribbleton, B.

Rogers of Riverside, L.

Fitt, L.

St. Davids, V.

Gallacher, L.

Serota, B.

Gilbert, L.

Sewel, L.

Gladwin of Clee, L.

Shore of stepney, L.

Gordon of Strathblane, L.

Simon, V.

Gordon of Potternewton, B.

Simon of Highbury, L.

Hardie, L.

Strabolgi, L.

Hardy of Wath, L.

symons of vernham Dean, B.

Haskel, L.[Teller.]

Taverne, L.

Hayman, B.

Tenby, V.

Healey, L.

Thomas of Macclesfield, L.

Hilton of Eggardon, B.

Thomson of Monifieth, L.

Hogg of Cumbernauld, L.

Turner of Camden, B.

Hollis of Heigham, B.

Walker of Doncaster, L.

Howie of Troon, L.

Watson of Invergowrie, L.

Hoyle, L.

Wedderburn of Charlton, L.

Hughes, L.

Whitty, L.

Hughes of Woodside, L.

Williams of Elvel, L.

Hunt of Kings Heath, L.

Williams of Mostyn, L.

Hutchinson of Lullington, L.

Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.
5.20 p.m.
Clause 4 [Referendum: supplementary]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 2:
Page 2, line 30, at end insert—
("( ) Where the polls referred to in subsection (1) are taken on the same day—

(a) polling for the referendum shall be between the hours of 7 in the morning and 10 at night on the day of the referendum: and

(b) polling for the election shall be between the same hours and regulations shall be laid pursuant to section 36(2) of the Representation of the People Act 1983 accordingly.").

The noble Baroness said: My Lords, this is an amendment to Clause 4, and I hope it is a less contentious issue. It returns to the question of polling
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hours and proposes that polling in both the referendum and in local council elections shall be from the hours of seven in the morning to 10 at night.
We previously focused on the hours of the referendum. I take the point that has been made that if the hours of the referendum and the borough elections held on the same day are different, there could be confusion. Noble Lords will be familiar with the argument over the need not to disenfranchise those who travel long distances and work long hours in London. At a previous stage, the noble Lord, Lord Tugendhat, commented on our becoming more of a 24-hour society. I accept what was said about encouraging turnout through other means and not only relying on the polling hours, although I suggest that that is not an adequate answer to the point which I and other noble Lords made.
I also understand the point about the costs, but there are costs to democracy. It was said that there could be administrative disruption, but that would not be the case if the hours of the two polls were the same. It was also said that the local election results would be delayed. Yes, but only by one hour.
Returning to the question of extended hours leading to higher turnouts, it was accepted that there was no evidence either way. The Minister said that if there was any evidence as to the effect of hours on turnout, then she would bring the matter back to the House. I know that very often in local elections there is a rush to vote between the hours of 8 p.m. and 9 p.m. when the polls close at 9 p.m. I also know that sometimes there is great difficulty in persuading people to turn out and vote straight away when they come home at 8.30 p.m. Because I live opposite a polling station, I have seen people turn up before 8 o'clock in the morning thinking that they can vote on the way to work but they find that the polls have not opened.
I believe it is likely that the referendum will be regarded as more like a general election than a local election and therefore the hours should be those of a general election. I realise that the hours are a matter for statutory instruments. So too are the hours of the local elections, but under other legislation. Hence my reference to the Representation of the People Act 1983. I hope that the amendment will give the Government the opportunity to convince us, with evidence, if there is any, that we will not disenfranchise—I use the word deliberately, knowing the argument on absent voting—those who wish to exercise their vote but who, for good reasons, find themselves unable to do so because of the pressures of work and other pressures in their lives. I beg to move.
Lord Hunt of Kings Heath: My Lords, as the noble Baroness said, it is a slightly less contentious issue than the amendment we have just debated. As someone who always draws the short straw at general elections and seems to be responsible for taking numbers outside polling stations between the hours of 9 p.m. and 10 p.m., I have waited in vain for many people to come through the doors when it is cold and dark. I have taken a particular interest in the issue. My experience has been reflected by many other people, not just in London but

357
in other parts of the country. One needs a good deal of convincing before extending the hours suggested in this way in relation to the London referendum.
As the noble Baroness said, it will cost extra money. I have seen one estimate which puts it at around £0.5 million. I suspect that it would also disrupt the preparations which returning officers have to make for the election and to meet the challenge of running two elections on one day.
We should not consider the matter in isolation. We have in place a government review of electoral procedures which may well consider the issue of hours of voting, alongside a number of other issues. Surely it would be better to consider the whole issue of procedures and hours of voting in relation to voting generally rather than specifically in the case of just one election. We could spend £0.5 million more effectively in terms of public information about the nature of the referendum and the issues to be decided.
At heart, the issue that will most get people to the ballot box is the degree to which people in London feel it is important. That does not rest on whether there is an extra hour in the morning or evening, it rests on the importance of having a mayor and elected assembly in the city. That is what will get people to the ballot box, not this amendment.
Baroness Ludford: My Lords, the noble Lord, Lord Hunt, opened his remarks by referring to the inconvenience for tellers of having to stay at polling stations until 10 p.m. I venture to suggest that the convenience of tellers is not the issue. It is the convenience of voters that is the point. In a world, particularly London. where supermarkets are open all night, or certainly till late in the evening, it is strange that our democracy should lag behind in terms of convenience for citizens.
The noble Lord, Lord Hunt, made the point, if I did not misunderstand him, that if people think it important enough, they will make sure that they get to vote. I should have thought the more interested they are. the more they wish to vote and the more they wish to express opinions, the more frustrated they might be if they turn up, as my noble friend Lady Hamwee suggested, on their way to work and find polling stations do not open until 8 a.m.
The noble Lord may be right, there may be implications for future elections if voting hours are looked at. But this time we want the maximum turnout, as the Minister rightly stressed at numerous points, we want the maximum support and consent of Londoners and it is important that Londoners are able to vote in the greatest possible numbers. They may find it strange that they were not given the best opportunity to do so.
Lord Archer of Weston-Super-Mare: My Lords, I read carefully the Minister's speech on Second Reading. I wonder whether she will be able to tell us, when she comes to the Dispatch Box, how many people or what percentage of people voted between the hours of 9 p.m. and 10 p.m. in the general election. She kindly said she would look into that. During that speech she
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also said that she would tell us of other ideas that she had to ensure that people realised that this was happening and in particular the way in which proxies would be held. I only remind her of those matters because, rather than making a long speech saying that that is what I want, I shall assume that the answers will be in her speech.
5.30 p.m.
Baroness Hayman: My Lords, that is my cue. As has been said, I do not think there is any debate within the House about the ends with which we are concerned. We all wish to maximise participation in the referendum and in elections generally. We are talking ahout the means and the priority for resources as well as the most appropriate way forward.
We are committed to a major publicity campaign advertising the referendum and the ways in which people can vote. It will make clear the possibilities for proxy and postal voting. At an earlier stage of the debate the noble Lord, Lord Archer of Weston-Super-Mare, asked about the circumstances in which people will be eligible for a proxy or postal vote. I explained that those eligibilities had recently been made more extensive and easier and that we would be publicising the ability to claim a postal or proxy vote.
We shall incorporate that information in the leaflet that will go to every London household. It might amuse the noble Lord to know that my 18 year-old son received a birthday card this week from the local borough. On the back it said,
"If you are going to he away on 7th May"—
I can assure the House that this relates to local elections; it is not anticipating anything—
"then you can apply for a postal vote or have someone vote for you. Simply call the above number and we will help you make the necessary arrangements".
Earlier it said,
"You don't need proof of identity. It is hassle free".
The publicity is therefore already starting in that regard.
I return to the undertaking that I gave at Committee stage that I would look carefully at the question of disruption, the difficulties and the voting patterns. Extending polling hours would disrupt local authority preparations and add significantly to the costs of the referendum, with no guarantee of higher turnout as a result. Furthermore, the amendment would not allow us to make best use of the resources we have available to maximise the opportunity for Londoners to vote.
Before I address the amendment in more detail, perhaps I can respond to the points raised in Committee by the noble Lord, Lord Elton, on a similar amendment concerning the arrangements for a debate on the draft secondary legislation arising under this Bill. I am sure that noble Lords will understand that the use of secondary legislation to make detailed provision in respect of electoral matters is well precedented. The secondary legislation to which the noble Lord referred in Committee will be subject to the affirmative resolution procedure. The House will therefore have an opportunity to debate and approve the secondary legislation concerning arrangements for the referendum.

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I realise that that does not provide scope for amending the Order in Council, which was the main anxiety raised. However, I emphasise again that we have placed the draft secondary legislation in the Library for consultation and are happy to receive comments on that draft.
As the noble Lord, Lord Archer of Weston-Super-Mare, reminded the House, I said that I would look to see whether there was any available evidence of voting patterns and flows to see exactly when people cast their votes in elections. I have to report back that the data in London is limited. However, the figures we found indicated that in the last general election turnout in the three London parliamentary constituencies for which figures were available—the three Ealing constituencies—between the hours of seven and eight in the morning and nine and 10 in the evening numbers were below the average for the rest of the day. Taken together, something over 6 per cent. of those voting throughout the day did so between seven and eight in the morning and something over 5 per cent. between nine and 10 at night.
Noble Lords who have canvassed in elections will know—my noble friend Lord Hunt mentioned this—that the figures for the last hour of polling tend to reflect the efforts of canvassers to get people out to vote in the last hour, whatever hour that may be. That can happen whether the last hour is between eight and nine or nine and 10. It does not strike me therefore that that makes an overwhelming case for special arrangements to be put in place to extend polling hours in this instance, particularly when we consider the administrative costs of such a measure, its potential impact on other aspects of the referendum and local elections and the ready availability of absent votes for those who cannot vote at any other time. I must stress again that not all of those voting between seven and eight and nine and 10 do so because they cannot vote at any other time
We are seeking to hold an efficient combined poll. In drawing up our proposals we have greatly appreciated the hard work and co-operation of London local authorities and returning officers in preparing for the poll. Their views deserve our attention. Mr. David Wechsler, the chief executive of Croydon, in his capacity as chair of the Working Party of London Chief Executives on Electoral Matters—a group which represents all London returning officers—wrote to my honourable friend the Minister for London expressing his concern about discussion in Committee in relation to extending polling hours. In his letter he sets out a number of objections. In particular, he highlights the delay and higher costs that would arise. Subject to his agreement, I shall be happy to put a copy of that letter in the Library of the House.
Those are the considered views of the working group representing all returning officers in London. They are concerned, as are we, about extending polling hours. Amendment No. 2 would disrupt meticulous preparations and add significantly to costs for what we believe would be a limited return in terms of increased turnout. The chair of the Association of London Government, Mr. Toby Harris, also wrote to the
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Minister for London to express his concerns, again in relation to the increased costs and delay in getting out the results.
Local authorities calculated that increasing polling hours would lead to additional costs—hiring staff for additional hours and extending the rent of polling stations and count venues comes to about 8p per elector—of some £400,000 or £500,000. That represents an increase of almost 50 per cent. on the total budget that we have available for referendum administration. That money will have to come from somewhere. Local authorities and returning officers would rightly resist such a burden falling upon them. The only alternative would be to use the limited resources set aside for other aspects of the referendum, particularly the publicity. I do not believe that that would be desirable.
It is crucial—we debated this at great length at an earlier stage—that people are informed about the referendum, about the detail of the proposals and that they can come to informed conclusions on the issues on which they will be voting. I would be reluctant to cut back on that exercise of informing the population. As I said earlier, we intend our campaign to focus on reaching those who may need an absent vote; those who may not be able to get to a polling station whatever hour it is open; and those who may not be able to get there before seven in the morning because they would need to be there at six in the morning.
The noble Baroness, Lady Ludford, said that we have a 24-hour society. No extension will cover everybody's convenience in terms of personal attendance. That is why it is important to make the option of absent voting well known, so that there is a high turnout in that regard.
Lord Archer of Weston-Super-Mare: My Lords, perhaps the Minister will allow me to intervene. I apologise for not warning her that I would bring up this matter. She used the words "our campaign". I hope that it will be a campaign in which all sides of the House can join on equal terms, that it will not look as though it is a campaign being promoted by 10 Downing Street or by certain Ministers in the Labour Party in the Lower House and that those of us who are just as interested as they are will be allowed to express our views. We will not have the £500,000 to spend that the Minister mentioned.
Baroness Hayman: The noble Lord, Lord Archer of Weston-Super-Mare, tempts me to talk about campaigns and the effectiveness of the campaigning by individuals and parties as well as the Government. I should make it clear that the campaign about which I am talking involves informing people about the election taking place. It is factual, non-partisan campaigning. It is not campaigning for a yes or no vote or for a particular candidate. It is a campaign to inform people about the election which, I believe, is correctly government responsibility.
In that very limited, specific and non-partisan campaigning—I hope that a variety of individuals and groups will be involved in the referendum campaign as in the local government election campaign—I believe that we have made a correct assessment of where limited

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funds should best be applied. We have a fixed budget for the referendum drawn up, bearing in mind constraints on public expenditure. We have taken the view that the best use of available funds is to have a substantial absent-vote campaign. Such a campaign may also have valuable spin-offs for other elections, for example, for people who experience difficulty in attending polling stations. They may realise for the first time just how easy it is to obtain an absent vote and to apply for it in subsequent elections. That would do much more for extending democracy than simply a one-off extension of hours in this particular referendum.
On the broader issue, the Government are committed to improving access to democracy. Last week the Government launched a review of electoral procedures. The working party charged with carrying out the review includes representatives of central and local government and of the main political parties. In that context, clear recommendations will emerge on improving people's experience of participating in the democratic process. Some of the wider issues that have been brought to bear in this debate will be properly covered there. That is the proper avenue for those kinds of areas to be addressed. In view of what I have said, I urge the noble Baroness to withdraw her amendment.
Baroness Hamwee: My Lords, I take the point that work is being carried out on electoral procedures. With some reluctance, I shall not push for an alteration as there might be further alterations very close at hand in the pipeline.
The noble Lord, Lord Hunt, said that he had drawn the short straw in having to be outside a polling station between 9 and 10.00 p.m. It is an even shorter straw to have to run a committee room, trying to get people to continue working between those hours. That is my experience. But I shall volunteer for that. I do not discount the point about cost and hours. That could lead one to ask why in general elections and European elections polling hours are two hours longer. I note that the Minister understands the thrust of that point.
She said that the application is not hassle-free. It is not very difficult, but it has to be made early. I believe it has to be 13 working days before the election. I have checked rather quickly so I might be wrong, although I do not think so. On this occasion it will mean an application by 20th April. That is the Monday following the week in which Easter Monday falls. In other words, that will be the week after the Easter holidays. I also guess that it will fall within some school holidays. Those who are able to be away for Easter are likely to be absent until that weekend.
There is the hard work that the political parties will do besides the information published in the press. People are unlikely to catch up with the need to make an application until it is too late to do so. I was fascinated by the figures available from Ealing. They were 6 per cent. and 5 per cent.—11 per cent. overall. Some of those people may have voted at other times, but that appears to me to be far too large a percentage to discount. I hope that the expressions of concern raised at various stages of this Bill on this matter, even if they are not to have any effect on the conduct of the polls
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on 7th May, will feed into the work on the electoral arrangements in a constructive manner. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Baroness Hamwee Baroness Hamwee moved Amendment No. 3:
Page 2, line 30, at end insert—
("( ) Where the polls referred to in subsection (1) are taken on the same day registered electors may apply to vote by post or proxy at the referendum and the election on a single form.").
The noble Baroness said: My Lords, this amendment refers to a related matter. It is a probing amendment regarding the application form to be completed by electors who apply for absent votes. The Minister has advocated the use of the absent voting procedure. The published forms ask if the applicant requires an absent vote either in general or for particular elections.
I raise the point because I understand that when the county and general elections coincided, there was some confusion. Two forms were required from voters, one for each election. It may be that the point was not considered early enough in the arrangements for the elections. I am sure the Minister will agree that it is important to make the application as easy and as straightforward as possible.
I can well imagine voters saying, "I have filled in that form". The proxy will go to the polling station or open the envelope for the postal ballot, and find only one ballot paper. I do not believe any noble Lords would want to see that situation. I hope that the Minister can give some assurances about necessary steps being taken, which I would not wish to see on the face of the Bill. Alternatively, perhaps she can give an assurance that if the box for the local government election is ticked, that refers to the referendum for London, if that takes place on the same day. I beg to move.
Baroness Hayman: My Lords, I hope that I can reassure the noble Baroness on this point. I understand her concerns. We would certainly not wish the circumstances she described to occur.
This amendment seeks to ensure that people can apply for a postal or proxy vote for the referendum and the local election on a single form. I hope to explain to the House why this amendment is unnecessary.
We have made quite clear in the secondary legislation in Part I, Schedule 2, paragraph 7(1) that anyone who applies for a postal or proxy vote for either the referendum or the local election will automatically be sent an equivalent postal or proxy vote to participate in the other poll, unless they specify that they do not want one. Therefore, there is no need for this amendment. If people apply for one or the other, they will get both. They need not of course exercise their vote if they do not wish to do so. But we are determined that no one should miss out on their chance to vote in both polls. That will be made clear.
As I said earlier on in talking about opening hours—I note the point that the noble Baroness made earlier about the timeframe for applying for postal and proxy votes—we hope that because people will he getting

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information about that well in advance of the poll at the same time as information about the referendum, it will encourage them to apply early on and in good time. With those assurances in mind, I hope that the noble Baroness will be able to withdraw her amendment.
Baroness Hamwee: My Lords, that reply is extremely helpful. I am sorry that I did not spot that detail in the draft of the secondary legislation, which I have read. It is the sort of document which causes one's eyes to glaze over a little. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 4:
After Clause 4, insert the following new clause—
INDEPENDENT STATUTORY COMMISSION
(" .—(1) The Secretary of State shall appoint an independent Statutory Commission, which shall monitor the conduct of the referendum provided for under this Act, and shall, in the light of the referendum and of the referendums carried out under the Referendums (Scotland and Wales) Act 1997, draw up recommendations for the conduct of future referendums, having regard to the 1996 Report of the Commission on the Conduct of Referendums.
(2) Any report containing recommendations under this section shall he laid before each House of Parliament.").
The noble Lord said: My Lords, in moving this amendment, I shall speak to Amendments Nos. 8, 9 and 10. Some noble Lords may recognise these amendments. I see the noble and learned Lord the Lord Advocate in his place. He will certainly recognise them. They are exactly the same amendments that I proposed to the Referendums (Scotland and Wales) Bill. I shall try to shorten my arguments although I notice a number of noble Lords in the House who were not present when I advanced them as regards the earlier Bill, including the Minister. As a new Minister is to answer me this time, I live in the hope that I may get a slightly more positive answer than I received from the Lord Advocate. However, the very fact that the noble and learned Lord is here suggests that he will ensure that the noble Baroness does not stray from the text.
We are moving towards the third referendum in less than a year, with the probability of more to come. I shall not go into the detail of whether referendums sit comfortably in our Westminster model. It is a model that has served us well over time and I am pretty sceptical about the use of referendums inside our model of parliamentary democracy. However, we know that the Government intend to have a number of referendums in the future. As their so-called "reform"—I prefer to say "change"—to the constitution is of a very piecemeal fashion, who knows what other piece they may decide to try to change? If they have a grand plan, they are certainly not telling us.
If we are to continue to have referendums, it really is time that we had a proper generic referendums Act. We should not conduct each referendum piecemeal. The noble Baroness would not get into problems such as
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those she encountered earlier this afternoon on the question in the referendum if she took my advice on board.
The Constitution Unit and the Electoral Reform Society established a Commission on the Conduct of Referendums in April 1996. Those two bodies are not naturally in my part of the political spectrum but, as I said in August, if we are to have referendums, I very much agree with the commission's conclusions. The commission's briefing paper states:
"The conduct of referendums should be entrusted to a statutory independent body, accountable to Parliament, in order to ensure maximum confidence in the legitimacy of the results. This could he a free-standing commission—a 'Referendum Commission'; or an Electoral Commission, if one were established.
The responsibilities of an Independent Commission could include: advising on the wording of the referendum question: liaising with and funding campaigning organisations: the fair presentation of public information and equitable access to the broadcast media: and the organisation of the poll …
A generic Referendum Act could establish an Independent Commission and a statutory framework for the efficient, fair and consistent conduct of referendums. Those matters which will be different in each referendum and are likely to he of Parliamentary concern could he the subject of primary legislation on each occasion".
I shall probably quote from that document once or twice again.
I stress that the commission's membership was by no means narrowly drawn. Perhaps I may mention a few of those who served on it. It was chaired by Sir Patrick Nairne; its vice-chairman was Dr. David Butler and, to take just three names at something like random, the membership also comprised the noble Baroness, Lady Gould of Potternewton; the noble Lord, Lord Holme of Cheltenham, and Mr. John Whittingdale, MP, from my party. The commission was broadly based and its conclusions were very clear. I do not think that those conclusions represented a minority view. I hope that the Government will give me some reassurance that they will address this issue.
When I raised such issues in August, I was told that I could not expect the Government to establish a commission in the time available between August and the holding of the Scottish and Welsh referendums. I was told that that was impossible; and that was more or less that. I have no doubt that the noble Baroness will say the same thing now, but I must advise her that I do not accept that argument now because the Government have had since last August to deal with the issue and to come forward with a more substantial and more positive reply than that which they gave then. I am afraid that the same argument simply will not do today.
It is interesting to note that if a proper Bill were introduced we could discuss then some of the issues that I raised in August. I am raising one or two of them again today, but I could certainly have kept the House going all evening (if I had chosen to do so) by tabling a series of amendments covering a variety of issues that should be properly addressed. As happened last time, the noble Baroness will have to bring forward orders to change the Representation of the People Act. As I said previously, you will only be able to understand those orders if you sit in the Library with a copy of the

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Representation of the People Act beside you and work your way through it. The orders will change legislation which Parliament passed and which was designed specifically for general elections with parties and candidates. That legislation is to be changed in a piecemeal way to meet the circumstances of referendums. That is not satisfactory.
An independent commission could address a number of issues. Indeed, paragraph 47 of the report outlines them. It refers to:
"advising on the wording of the question; allocating funding, to campaign groups; liaising with and acting as moderator between any campaign groups; acting in an ombudsman rôle to deal with any complaints; monitoring balanced access to the broadcast media; providing public information, including a balance statement of the opposing arguments; supervising the organisation for each polling station; counting and declaration arrangements".
All of those matters could be dealt with by the commission. That is the first part of my argument.
The second part of my argument is that a generic Act would mean that guidance could be drawn up. Guideline No. 1 states:
"Guidance should be drawn up dealing with organisational, administrative and procedural matters associated with holding a referendum. Established guidelines should include fixed rules for some matters (for example, the organisation of the poll, the election machinery and the count). For other matters, on which it is impossible to determine rules in advance (for example. wording the question), the guidance should state how a decision should be reached".
It is not an elegant way to conduct a referendum if part of the argument here and in another place relates to what the question should be. Having sat through the arguments on why there should be two questions in the referendum Bill relating to Scotland which the Government advanced against amendments which some of us tabled to provide that there should be only one question, it was most interesting to listen to the Government turning that argument on its head in relation to London. A commission could sort out just such issues. They would therefore no longer be matters of party argument on the Floor of the House with decisions having to be made in the Division Lobbies and, dare I say it, the Government being defeated. My suggestion would hugely help in any future referendums which the Government intend to hold.
I am not asking for such an electoral commission to be set up; I am using this amendment, as I used the same amendment in the summer, as a trigger to start the process. I am saying, "Let us have a commission that can inspect how the London referendum works. Let us have a commission that can look back at how the Scottish and Welsh referendums worked and then propose to government—and government can come to Parliament with—a generic Bill before we have the next referendum". I believe that that will be on the day that Tony and Gordon agree that we ought to join the single currency. I hope that we shall have a generic Act before then and that we shall not have to go through the same procedures then as today.
I turn now to my three other amendments. They would not need to be discussed if we had an Act such as I have suggested. Amendment No. 8 is straightforward. I raised the same argument last time and I received
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assurances, but I am afraid that I shall have to raise the same points again and get assurances again that no public money will be paid to any organisation established to campaign for either side on the question and that no civil servants shall engage on the side of—I presume—the Government's case in any referendum. I received perfectly satisfactory reassurances from the noble Lord, Lord Sewel, last time and I hope that I shall receive such assurances this time, but if we had a generic Act, I would be saved asking the same questions every time.
The same point is made on broadcasting. Guideline No. 17 states:
"A balance should he maintained between the 'Yes' and 'No' viewpoints rather than between the different political parties. Broadcasters should be encouraged to provide a limited amount of airtime for setting out the arguments for each option in the referendum. The content of such broadcasts would be the responsibility of any formally recognised campaign organisations. In the absence of such organisations the Independent Commission should appoint production companies to produce such broadcasts. Party political broadcasts should not normally be transmitted during the referendum campaign".
I would be grateful if the noble Baroness could provide me with assurances in that regard.
In a contribution from the noble Baroness a few moments ago I noted that the Government had set in train a review of electoral procedures. I would be perfectly willing to withdraw my new clauses if I received an assurance from the Minister—normally, the Government are teased about reviews—that the whole subject would be seriously considered and that the Government intended to act upon it; otherwise, I have to say that the procrastinating reply that I received in August will not do this evening. I beg to move.
6 p.m.
Baroness Hayman: My Lords, these amendments address important issues about the conduct of the referendum. I hope to be able to reassure the House as to how we intend to proceed and make clear to the noble Lord, Lord Mackay of Ardbrecknish, that these amendments are unnecessary. Amendment No. 4 seeks to establish an independent statutory commission which would monitor the conduct of the referendum and make recommendations as to the conduct of future referendums. I was not present for all of the prolonged discussions on the referendum Bills for Scotland and Wales, but I am well aware of the keen interest that the noble Lord has taken in these matters. I hope that he will not be too disappointed when he discovers that I shall not respond any more favourably to his amendment than did my noble friends at that time.
The noble Lord is right to anticipate that the Government cannot accept Amendment No. 4 because of some practical problems concerning the London referendum. An independent commission would need careful preparation: a clearly defined remit and so on. No doubt there would be pressure for inter-party consultation on its role. It would not be possible to have such arrangements in place in time for a referendum on 7th May. Any delay in the date of the referendum would lose the advantages of a combined poll, add about

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£3 million to the costs and diminish the advantage in terms of turn-out both for the local elections and the referendum.
I should like to make clear that the Government's position does not depend simply on the issue of timing. My noble and learned friend the Lord Advocate does not need to be here to keep me in line on this matter. I totally agree with the stance that he took during Committee stage on the Scotland and Wales Acts that the Government see no need to set up such a commission. Each referendum is different. There are bound to be different arrangements appropriate to referendums of different scale. Current arrangements whereby Parliament makes specific provision for each referendum have served us well in Scotland and Wales and I believe will do so in London.
I do not agree with the noble Lord that his amendment would obviate the need for debate on specific issues. The prolonged debate on the wording of the question in this Bill shows that Parliament takes a keen interest in matters such as the wording of a proposition in a referendum. The answers to issues such as how many questions should be on a ballot paper or their wording will depend not on generalities but the issues in the particular referendum in question. It is quite right that Parliament should have the opportunity to consider the legislation which provides for each referendum, to debate the detail and press the Government to explain their proposals. I do not believe that this amendment should be accepted.
I turn to the amendments relating to broadcasting. We believe that these are unnecessary given that all broadcasters are obliged by law to maintain due accuracy and impartiality in reporting any matters of political controversy or current public policy. I do not believe that it is appropriate to legislate in this Bill on this matter. To add further provision on top of the long standing general obligation or to give a new role to an independent commission would serve merely to muddy the waters. The broadcasters are answerable to their independent regulators and the courts for satisfactory compliance with their duty to maintain due accuracy and impartiality. I am confident that the existing framework of regulation will be quite adequate to ensure that impartiality is respected during this referendum campaign.
Amendment No. 10 would require the independent commission to monitor the publication and distribution of campaign material. Amendment No. 8 would prohibit the use of public funds to fund campaign organisations. We have made it absolutely clear that we do not intend to provide any state aid to campaign either for or against the proposal. I am happy to repeat that undertaking to the House today. We do not believe that it is feasible to try to identify umbrella campaign organisations as potential candidates for financial support. If people wish to oppose or campaign in favour of our proposals they are free to do so. But the Government will spend their money on ensuring that people are fully informed about the referendum so that they are able to exercise their right to vote. Government-funded publicity will be factual and neutral. A summary version of the White Paper will be distributed to every household and there will be other
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initiatives to ensure that everyone in London is aware of the issues. Information about absent voting in particular will be integral to the campaign.
The creation of an independent commission is not necessary to ensure that the proposed referendum on the GLA is both fairly conducted and effective. Obviously, campaign material produced by organisations either pro or anti the proposition put by the Government will not be impartial. Provided that it is within the law—for example, that it is not obscene or libellous—its content is and should remain a matter for those who produce it. Moreover, I see no reason significantly to delay the holding of this referendum for which the people of London indicated their support at the general election when two important fair and successful referendums have already been conducted during the course of this Parliament.
We do not believe therefore that these amendments are necessary. We have made our position quite clear on questions of campaign funding and will follow the precedent set in Scotland and Wales.
As far as concerns the specific issue of Civil Service conduct, the Cabinet Office will publish clear guidelines well in advance of the referendum. They will be based on the normal rules which apply to civil servants as respects political impartiality. Similar guidelines were in place in Scotland and Wales and I believe that they proved to be wholly sufficient for the task.
I hope that I have reassured the House that the provisions in place will ensure that the referendum is conducted in a fair and proper manner. I urge the noble Lord to withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Baroness for the assurances that she gave about the Civil Service, funding and broadcasting. I expected the assurances as I received them when we discussed the Scotland and Wales Bills. I am grateful to her for giving them to me on this Bill.
However, I am not nearly so happy with the answer provided by the noble Baroness to Amendment No. 4. In my original contribution I said that the Government had had since last August to prepare for an independent statutory commission if that was what they agreed to. It seems perfectly clear—perhaps a little clearer from the reply of the noble Baroness than in August—that the Government have no sympathy with the idea of either an independent statutory commission for referendums or a generic referendums Act. I believe that an Act would be helpful. Of course, for each referendum a piece of primary legislation would be needed, but it would be a small piece of primary legislation that simply slotted into the generic Act. That Act would govern all other issues that the orders govern under the Representation of the People Act. The argument of the noble Baroness could be applied to the Representation of the People Act. Each time there was a general election another series of rules could be brought forward. We have not gone down that road, but have used a more sensible method.
I am not always, although frequently, persuaded by my own arguments, but on this occasion I am persuaded by the arguments in the report of the commission. The more

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I read them the more persuasive I believe they are. I shall not be put off quite as readily as I was in August. I shall demonstrate my seriousness about this matter by asking for the opinion of the House. Whatever the outcome, next time the Government propose a referendum I sincerely hope that they will between now and then take the kind of steps that the commission has proposed. I wish to test the opinion of the House.
6.10 p.m.
On Question, Whether the said amendment (No. 4) shall he agreed to?
Their Lordships divided: Contents, 33; Not-Contents, 116.

Division No. 2

CONTENTS

Bowness, L.

Kenyon, L.

Broadbridge, L.

Kilmarnock, L.

Burnham, L.[Teller]

Mackay of Ardbrecknish, L.

Carnock, L.

Marlesford, L.

Charteris of Amisfield, L.

Mayhew of Twysden, L.

Coleraine, L.

Merrivale, L.

Cope of Berkeley, L.

Milverton, L.

Dacre of Glanton, L.

Monro of Langholm, L.

Dixon-Smith, L.

Moson, L.

Donegall, M.

Monteagle of Brandon, L.

Feldman, L.

Naseby, L.

Granard, E.

Ryder of Wensum, L

Halsbury, E.

Strathclyde, L.[Teller.]

Harding of Petherton. L.

Strathcona and Mount Royal, L.

Hunt of Wirral, L.

Sudeley, L.

Jeffreys, L.

Thomas of Swynnerton, L.

Tugendhant,L

NOT-CONTENTS

Acton, L.

Gould of Potternewton, B.

Addington, L.

Hamwee, B

Allenby of Megiddo, V.

Hardie, L.

Amos, B.

Hardy of Wath, L.

Archer of Sandwell, L.

Haskel, L.

Ashley of Stoke, L.

Hattersley, B.

Barnett, L.

Hayman, B.

Bassam of Brighton, L.

Hilton of Eggardon, B.

Beaumont of Whitley, L.

Hollick, L.

Berkeley, L.

Hollis of Heigham, B.

Borrie, L.

Howie of Troon, L.

Brooke of Alverthorpe, L.

Hoyle, L.

Bruce of Donington, L.

Hughes, L.

Burlison, L.

Hughes of Woodside, L.

Carter, L.[Teller.]

Hunt of Kings Heath, L.

Cledwyn of Penrhos, L.

Irvine of Lairg, L.[Lord Chancellor.]

Clinton-Davis, L.

Currie of Marylebone, L.

Janner of Braunstone, L.

David, B.

Jay of Paddington, B.

Davies of Coity, L.

Jeger, B.

Davies of Oldham, L.

Jenkins of Putney, L.

Desai, L.

Kennedy of The Shaws, B.

Dholakia, L.

Lester of Herne Hill, L.

Diamond, L.

Levy, L.

Donoughue, L.

Lockwood, B.

Dormand of Easington, L.

Longford, E.

Evans of Parkside, L.

Lovell-Davis, L.

Falconer of Thoroton, L.

Ludford, B.

Farrington of Ribbleton, B.

McIntosh of Haringey, L. [Teller.]

Fitt, L.

Gallacher, L.

Mackie of Benshie, L.

Gilbert, L.

McNair, L.

Goodhart, L.

McNally, L.

Gordon of Strathblane, L.

Maddock, B.

370

Mallalieu, B.

Russell, E.

Meston, L.

Serota, B.

Milner of Leeds, L.

Sewel, L.

Mishcon, L.

Simon, V.

Molloy, L.

Simon of Highbury, L.

Monkswell, L.

Stallard, L.

Montague of Oxford, L.

Stoddart of Swindon, L.

Morris of Manchester, L.

Strabolgi, L.

Murray of Epping Forest, L.

Symons of Vernham Dean, B.

Nicol, B.

Taverne, L.

Peston, L.

Thomas of Gresford, L.

Pitkeathley, B.

Thomas Of Macclesfield, L.

Ponsonby of Shulbrede, L.

Thomas of Walliswood, B.

Prys-Davies, L.

Tope, L.

Puttnam, L.

Turner of Camden, B.

Ramsay of Cartvale, B.

Walker of Doncaster, L.

Randall of St. Budeaux, L.

Wallace of Saltaire, L.

Razzall, L.

Watson of Invergowire, L.

Rea, L.

Wedderburn of Charlton, L.

Redesdale, L.

Whitty, L.

Rendell of Babergh, B.

Williams of Crosby, B.

Renwick of Clifton, L.

Williams of Elvel, L.

Richard, L.[Lord Prily Seal.]

Williams of Mostyn, L.

Rodgers of Quarry Bank, L.

Winchilsea and Notingham, E.

Rogers of Riverside, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.20 p.m.
Clause 6 [Exclusion of legal proceedings]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 5:
Page 3, line 11, at end insert ("except in circumstances where different guidance has been received by the counting officers in one or more areas on the conduct of the count").
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 6 and 7. The amendments relate to Clause 6 which provides:
"No court shall entertain any proceedings for questioning the number of ballot papers counted or votes cast as certified by the Chief Accounting Officer".
The clause was contained in the Scotland and Wales legislation. My noble and learned friend and fellow clansman Lord Mackay of Drumadoon probed the Government on this point. We received what at the time was a satisfactory reply from the Lord Advocate.
Noble Lords: What has changed?
Lord Mackay of Ardbrecknish: My Lords, the change is that with the Welsh referendum some serious problems arose. They did not arise on the "No" side; they arose on the "Yes" side. The matter was drawn to our attention by no less an organisation than the Caerphilly Constituency Labour Party, which expressed some concern—I have to say in total privacy—and sent letters which, unfortunately, winged their way outside the sacred walls of the Caerphilly Constituency Labour Party to people such as me.
The letter from the secretary, Mr. Lamb, indicates a number of concerns that the constituency Labour Party had about the conduct of the count. The clause relates to the conduct of the count. There were a number of problems. It was concerned, for example, about the information it was given; about where the ballot boxes

371
came from; about the list; and about the way the count was conducted. Although the letter does not say it, I understand from other papers it was concerned that it could not see the official mark.
I suggested in August, in order to be helpful to the Government, that I thought the day of official marks was over and done with. The Government told me that it was not and that they were important. So, they were important. The scrutineer should have been able to see them. The whole question of who were the scrutineers and whether there were enough of them was part and parcel of the same problem.
The Caerphilly Constituency Labour Party was in the difficult position of having that concern in the constituency of the Secretary of State for Wales. It recognised that and its letter stated:
"Of paramount importance was the fact that the implication of what in our view contravened the Representation of the People Act 1949, 1969 and 1983, and the Referendum Act should not become a formal issue because of our MP's position as Secretary of State for Wales. Ultimately the buck stops at the Welsh Office, and we realise that politically we have to be extremely careful because of Ron's position there".
I appreciate its concern for "Ron's position", but the issues it raised were important: the number of polling agents; the boxes and verification not being announced; the counting officer would not allow polling agents to know which were "Yes" and which were "No" allocations; the design of the ballot paper made it almost impossible for polling agents to see official frank marks, to the extent that even the top paper was invariably covered by a counting officer's hand; some supervisors allowed their counting assistants to count haphazardly, with ballot papers being turned face down, upside down—particularly regarding potential spoils—no announcement of the count proper being started in part was made; polling agents were not allowed to check the final bundles; and there was inordinate delay in announcing the result. Out of 145 boxes, after the first 50 boxes or so had been counted, five out of a total of 10 teams were taken off verification, thus prolonging the count.
I do not want to prolong my remarks, but those matters are all of concern. The biggest concern was that doubts arose that evening about how to count papers which were not marked with a cross. It was easy enough when in answer to:
"Do you agree that there should be a Welsh Assembly?"
people put "Yes" or "No"instead of a cross. That was clear. The problem arose with "I do not agree" with the answer "Yes" or "No", because there was a double negative. There was some doubt about that.
During the course of the count the officers in that counting station asked for and received advice about what to do. It was advice which was not transmitted to everyone judging at all the counts throughout Wales. That is a serious point, which is why I tabled Amendment No. 5 which provides that one should not be able to go to court unless:
"different guidance has been received by the counting officers in one or more areas on the conduct of the count".
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Amendment No. 6 relates to observers admitted to the count not receiving full access. If the Caerphilly Labour Party had not been in the embarrassing position of having the Secretary of State for Wales as its MP—it is doubly embarrassing because that portion of the Welsh Labour Parzty seems to have been in favour of the "Yes" vote—I suspect that the matter might have been taken further. It could not have been taken any further because of the clause in the Scotland and Wales legislation.
I am concerned that if something like that arose with the London referendum, no one aggrieved who believed that there was a legitimate point to be made would have recourse to the courts if your Lordships pass the clause unamended. With that explanation of why I tabled the amendments—as a fall-back—I suggest leaving out the clause altogether so that people could challenge in the courts on any grounds, not just the two I exempt. I beg to move.
The Solicitor-General (Lord Falconer of Thoroton): My Lords, I hope that I shall be able to establish that the concerns of the noble Lord. Lord Mackay of Ardbrecknish, are misplaced. As he pointed out, the purpose of Clause 6 is the same as that of an identical clause in the Referendum Act 1975, the Scotland and Wales Act 1978 and the Referendums (Scotland and Wales) Act 1997. The aim of the provision is to ensure that the Government can respond without delay to referendum results.
As my noble friend Lady Hayman explained in Committee, the clause is designed to prevent any, save serious, challenges to the certification of votes or ballot papers under the Bill. Any challenge which was to be made in court would be time-consuming. So long as there was an application before the court, there would be considerable doubt about the fate of the legislation establishing the GLA. In effect, the position would be politically frozen until such a court challenge were brought to an end. The provision is designed to exclude all, save serious, challenges to the certification of votes or ballot papers under the Bill.
We recognise that the clause does not prevent all possibility of legal challenge in connection with the certification of referendum votes. The courts are rightly jealous of their jurisdiction, and look carefully at provisions which seek to oust their jurisdiction. There is a substantial body of case law, including an important decision of this House in its judicial capacity, concerning the proper interpretation of such statutory provisions.
Should any legal proceedings be brought challenging the certificates of the chief counting officer, or a counting officer, it would be for the courts to decide, having regard to the case law and the particular circumstances of the case, whether a challenge could be entertained in the light of Clause 6. A balance is being struck between the clause stopping challenges which are not serious, but with the court having power to investigate those challenges which might be serious.
I have taken some trouble to explain what the clause means, because I can see that, on the face of it, its terms are all-embracing. It may be helpful if I remind your

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Lordships that there is a presumption that Parliament legislates in the full knowledge of the existing state of the law. Clear and express provision would be needed in an enactment to over-rule the effect of the case law to which I have just referred.
It is therefore within the conventions for a well-precedented clause such as this one to be enacted in the knowledge that it is not the end of the matter. Like all other similar provisions, it is subject to the construction of the courts and the intervention of the courts in those cases that the courts think are serious enough.
The noble Lord, Lord Mackay of Ardbrecknish, appeared to suggest that he was satisfied with the answers that my noble and learned friend the Lord Advocate had given to the noble and learned Lord, Lord Mackay of Drumadoon, because he introduced the amendments on the basis that things have changed because of the position in Wales. The noble Lord, Lord Mackay of Ardbrecknish, identified a number of matters which he said gave cause for concern. The most important one that he identified being advice given on how to deal with something other than a cross in relation to those who wanted to vote "No".
The position, as the Secretary of State said, is that there were 22 counting areas in Wales. In relation to the problem of a cross rather than a "No" or a "No" rather than a cross—I cannot remember which—the chief counting officer gave advice which was disseminated to 20 out of 22 areas on the night. In respect of those two areas where it was not disseminated there may have been a few hundred "no" votes which were not recorded in accordance with the advice given by the chief counting officer. It would not therefore have affected the result. Moreover, it would have been most unsettling for there to be a court challenge that would have not made any difference.
In my respectful submission that is a very good example of why one needs a clause like this. If there are more serious complaints about the conduct of the Welsh referendum, the Scottish referendum or any other referendum, including this one, to which this clause applies then, as I have made clear, this clause would not prevent the courts considering whether or not such a challenge should be considered by those courts. I believe it is a sensible balance, I believe it permits the matter to be dealt with quickly and efficiently but gives the court a residual jurisdiction in relation to serious cases.
Perhaps I may turn to the particular amendments proposed and deal with them very briefly. First, with Amendment No. 5 the noble Lord, Lord Mackay of Ardbrecknish, seeks to insert the words,
"except in circumstances where different guidance has been received by the counting officers in one or more areas on the conduct of the count".
That, in my respectful submission, is an ill-conceived suggestion for an amendment. The effect of it will be to make the courts consider that the only circumstances in which they can intervene is where different guidance has been received by the counting
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officers in one or more areas. On the basis of the speech the noble Lord made that is the last thing that he would want. Moreover there may well be good reasons in relation to the London count as to why different guidance should be given in one area as opposed to another.
I take just one example. The City of London. which is one of the areas for the poll in Greater London, will not be having local elections. It would therefore be sensible that different instructions or guidance be given there as to how the poll should be conducted in other areas where there will be local elections.
Having said that, I would say that it is my hope that the chief counting officer in the London referendum will issue guidance to counting officers well in advance of the count and that he will consult with experienced returning officers before doing so. Moreover, if we are talking about guidance aimed at ensuring consistency in the way in which doubtful ballot papers are to be judged, clearly I would hope that the guidance given will be the same for all boroughs.
More than that I cannot say without entering into matters which will, under this Bill, be the responsibility of the chief counting officer. But noble Lords can be reassured that we have the problems well in mind. It is on that basis that I urge the noble Lord to withdraw this first amendment.
As to the second amendment, the particular circumstance which he suggests should be an exception to Clause 6 is where observers admitted to the count have not received full access to scrutinise all aspects of the count as they are entitled to do under the Representation of the People Act. The aim expressed in this is an aim with which I am fully in agreement. We have provided in the draft secondary legislation currently available in the Library of the House for the appointment of observers to scrutinise both the poll and the count. We have already included in it a provision which is absent from previous referendum legislation enabling counting observers to be present at the dispatch and receipt of postal ballot papers. They will, of course, also be present at the count itself and, in general, all those things which are normally required to be done in the presence of counting agents at an election are, at the referendum, to be done in the presence of these specially appointed counting observers.
Again, however, inserting the exception, will have the effect of limiting the effects of the circumstances in which the court would intervene to those referred to in the exception rather than to those cases which the court itself determines are sufficiently serious to justify intervention.
There are three short points in relation to the appointment of observers. First, if organisations campaigning for a particular referendum outcome want to have counting observers they must invite the counting officer to appoint their representatives. I understand that in some cases organisations in Wales failed to respond to counting officers' requests for nominations with the result that they were not

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represented. Therefore, it is for each campaign side to ensure that they have made the request to the counting officer to have representatives present.
Secondly, in view of the terms of the proposed amendment, it seems to me worth reminding your Lordships that there is nothing even in ordinary election law which says that every counting agent has the right to observe everything. Electoral legislation says that counting agents are entitled to attend the count which should be arranged so that they have all reasonable facilities to observe the proceedings and that certain things must be done in their presence if they have attended for that purpose.
The present clause is only apparently an all-embracing exclusion of legal proceedings. For the reasons I have indicated Amendments 5 and 6, far from having the effect of extending the circumstances in which the court can intervene, will, I believe, limit them.
Finally, if what the noble Lord, Lord Mackay of Ardbrecknish, described as his fall-back position were adopted—namely, to leave out Clause 6 altogether—there would not be the balance between preventing non-serious applications, but on the other hand leaving the court with a residual discretion. I therefore ask whether, upon reflection, the noble Lord will consider withdrawing all three amendments.
6.30 p.m.
Lord Mackay of Ardbrecknish: I am grateful to the noble and learned Lord for his detailed reply. I have listened to it with great care and I can divide it into two parts: one part is the same reply we received from the noble and learned Lord the Lord Advocate in August, which satisfied us at the time, that the courts would still have a role in certain circumstances. I am pleased to have a repeat of that assurance. On the second part, which really arose from the problems in Caerphilly, it has been useful to have on record what really ought to have been done. I hope that similar problems will not happen for any local Labour parties in London at the referendum on London.
In trying to keep my remarks short I omitted to say that another of the complaints was that the observers were not allowed into the postal vote part. I was therefore delighted with the assurance from the noble and learned Lord that it would be clear that observers will be able to attend the postal vote, sending out and opening, as they do at General Elections. I thank the noble and learned Lord for that assurance.
It is an interesting point. The noble and learned Lord suggested to me that in Wales it would not have made any difference. I do not think that is the point. These things cannot be done by looking backwards. Nobody knew that it would make no difference. Indeed, a lot of the problems in Caerphilly arose
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because the local Member of Parliament, the Secretary of State, declared that it was the 6,000 majority in Caerphilly that actualy delivered the "yes" vote for his party in Wales by a margin of 6,700. How he actually knew that that was the case is quite hard to decide, given the fact that it was a bigger area. But never mind; he said that.
I know that I will be accused of being theoretical but let us assume for a moment that it had been even closer in Wales. Than I think the importance of the points made by the local Labour party there are underlined. There should not be any doubt about the result. It is interesting that the story started in a Scottish newspaper. I suspect that the Welsh newspapers did not want to touch it for a variety of reasons. However, when the Scotsman started the story, it raised very serious issues which deserved to be aired both in the press and in your Lordships' House.
The noble and learned Lord will be pleased to hear that I accept his assurances. I hope that the words which he spoke on the two specific issues will be heeded. I am grateful to him for his remarks about postal votes. I am persuaded by the noble and learned Lord's argument about the general principle and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 to 10 not moved.]
Clause 7 [Functions of the Local Government Commission]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 11:
Page 3, line 26. at end insert ("and
( ) specifying the electoral systems for the purposes of the election of members of any assembly and of any separately elected mayor established following the referendum held by virtue of Part I").
The noble Baroness said: I return to the issue of the electoral systems to be used in the elections, if there are to be elections, following the referendum.
At the last stage, we approached this matter in the context of the powers of the Local Government Commission and my noble friend and I realised that we had concentrated particularly on the systems to be used for the election of members of the assembly. I shall use this occasion to put on record our concerns about ensuring the fairest systems, both for the election of the assembly members and also for the directly-elected mayor, if there is to be one.
It may be that the Minister will tell me that since the direction to be given under Clause 7 will specify the number of electoral areas and the number of members, that direction cannot be given unless full consideration has been given to the electoral system to be applied. The need to reflect the size, cultural diversity and general differences across London needs to be recognised and I believe that a proportional system argues for quite large constituencies in order that that proportionality can be reflected.
For example, if the constituencies for the London authority are based on two or three boroughs, there would be problems of fairness because of the different sizes of the London boroughs. I do not choose the

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example of a constituency coterminous with any London borough because I believe that the Government have ruled that out.
As regards the mayor, it is important that voters are able to express their full preferences; in other words, to go on voting until they have exhausted their preferences. That may mean voting all the way down a list of eight or 10 candidates. As I have observed before, among other things, it gives one the opportunity to register who is one's least favourite candidate by putting him at the bottom of the list.
More important, a fully preferential system allows everyone to have the opportunity to vote for the winner and to generate something of a feeling of ownership of the result. Even if one's preference for the eventual winner is half way down the list, one has, at least to some extent, signed up to that candidate.
In addition, it does not require the voter to make any tactical decisions. Genuine preferences can be expressed all the way down the list.
If the voting system is first-past-the-post, to which we are all so accustomed, it will be entirely possible, given the large number of candidates, for the winner to have the support of a very low proportion of electors. That would be an undesirable outcome. The system to which some people have pointed which is in between, known as the supplementary vote, allows, as I understand it, only two choices. Of course that is a little fairer. It allows a little more expression of preference. But it is more complicated than simply voting one's way down a list. It means that one cannot put one's least favourite candidate at the bottom. It means that one must exclude all but two of the candidates in voting. If the position is that there are two clear favourites in the campaign, voters will have to guess which of those two is most likely to do well; in other words, such a system would not achieve the involvement of electors in the way that other systems may do. I beg to move.
6.45 p.m.
Baroness Hayman: My Lords, the noble Baroness, Lady Hamwee, has returned to the discussion which we had in Committee on the basis that the Local Government Commission should be able to make recommendations on the electoral systems to be used both for the mayor and for the assembly. I accept her point that we dealt mainly with electoral systems for the assembly at an earlier stage and that the argument applies to both.
Perhaps I may take the opportunity to restate why the Government find unacceptable the argument that the commission should have that responsibility. I understand very clearly that the noble Baroness and her party feel strongly about electoral systems. She made those views clear in proposing the amendment today. The Government do not dispute that that is a crucial issue for the assembly and the mayor. In fact, in the Green Paper New Leadership for London, we asked seven separate questions about electoral systems and we are now spending considerable time and effort analysing consultation responses to that Green Paper.
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We shall set out in the White Paper proposals, after looking at the results of the consultation, as to how the mayor and assembly should be elected. I suggest to the House that the results of that consultation, the details of the electoral system, will be a vital piece of the jigsaw which adds up to people's understanding of the proposition put forward in the referendum.
But this amendment would devolve important questions of policy to the Local Government 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 that commission to make recommendations on how the mayor or members of the assembly should he elected. We have said that we shall set out clear proposals on how the election should be conducted, and that quite rightly, the commission will then be asked to provide expert and independent advice on the technical framework necessary to put that policy into practice. That is the right way round. The commission should not be asked to make recommendations beyond its remit on policy issues.
As I said to the House at an earlier stage, such amendments would make it nearly impossible to write the White Paper. If the commission were to be asked to make recommendations, presumably it would not be acceptable for the Government to pre-empt those recommendations by publishing their own proposals on electoral systems in the White Paper. In turn, that would reduce clarity and certainty as to the basis for the new assembly.
In that case, the people of London would be forced to vote in the referendum without having a clear idea about how the mayor and assembly would be elected. That is not good for democratic choice and I do not believe that it is good for informing clearly and specifically on the Government's proposals.
How the mayor and assembly will be elected are very important issues. I do not dispute that for a moment. However, we believe that they are integral to people having a clear understanding of the proposals which we are putting before them. Therefore, I do not believe that there is a case for asking the Local Government Commission to make recommendations on electoral systems. Such central policy should and will be addressed in the White Paper. On that basis, I urge the noble Baroness to withdraw the amendment.
Baroness Hamwee: My Lords, I thank the Minister for her response. Of course, I accept the difficulties inherent in the amendment as put forward. The noble Baroness has indicated her understanding of our desire to get on record our concerns about the election of the mayor, as well as the assembly with which we dealt last time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
In the Schedule:
Baroness Hamwee Baroness Hamwee moved Amendment No. 12:
Page 6, leave out lines 3 to 7 and insert—
("The Government propose the establishment of a Greater London Authority made up of an elected assembly and a separately elected mayor, both to be elected by Londoners.
Question I: Are you in favour of an elected assembly?
Put a cross (X) in one box:

YES⁭

NO⁭

Question 2: Are you in favour of an elected mayor?
Put a cross (X) in one box:

YES⁭

NO⁭")

The noble Baroness said: My Lords, I spoke to this amendment when moving Amendment No. 1. I beg to move.
On Question, amendment agreed to.

Human Rights Bill [H.L.]
6.50 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)
Lord Simon of Glaisdale: My Lords, I am very sorry to interrupt my noble and learned friend while he is on his feet. However, I wish to draw attention to the time at which we are starting to debate again this important measure. It is ten minutes to seven o'clock in the evening. We had a full day of deliberations on the first day of the Report stage and the proceedings went on until midnight. At that time we covered 31 amendments. Even allowing for those amendments which are marked on the groupings list as having been previously debated, which is not entirely accurate, there are certainly 33 more amendments to consider this evening.
It is quite inappropriate for us to start on such deliberations at this hour. No more important measure is likely to be before your Lordships' House this Session. At the beginning of the last Parliament we repeatedly sat very late hours. However, after repeated protests, the Rippon Committee. which studied the sitting hours of the House, reported on the matter. After that, the then government loyally abided by those recommendations. But we are now right back to pre-Rippon days in the conduct of this Bill; indeed, that committee might just as well not have reported. I endeavour to protest at our being asked to consider the Bill in this way.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, one day was originally set down for consideration of the
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Bill on Report. It was anticipated that that would be quite sufficient. As it happens, a number of us present in the Chamber today remember that our discussions and deliberations on Report took rather a long time and, therefore, a second day was provided by agreement between the usual channels. We do not believe it to be unreasonable to get on with the Bill. Indeed, many of the issues, if not flogged to death, have at least been carefully examined on a number of previous occasions. As I said, we do not believe it to be unreasonable to get on with the proceedings at ten minutes to seven on a bright evening.
Lord Mackay of Drumadoon: My Lords, I support the sentiments behind the noble and learned Lord's submission. Undoubtedly constitutional Bills of this nature bring forward unexpected problems of considerable difficulty; indeed, we encountered that situation on the first day of the Report stage. Therefore, while I truly appreciate the Minister's wish to get on with the Bill, I hope that he will take to heart the observations that have been made.
I anticipate that many unexpected problems may arise, which will take much longer to debate than originally envisaged, during the course of our consideration of other Bills which come before your Lordships' House this Session. I am sure we all agree that it is thoroughly undesirable to be discussing at midnight constitutional reform of such importance, as was the case on the previous day of the Report stage.
Lord Ackner: My Lords, I believe that the Third Reading of the Bill is scheduled for 5th February. Moreover, on the same day, the Third Reading of the Greater London Authority (Referendum) Bill will also take place. On that occasion, could we not come before the latter Bill on the Order Paper so that we can get a clear start?
Lord Henley: My Lords, perhaps I may also intervene from these Benches. In response to the noble and learned Lord, Lord Ackner, my understanding—and this is subject to discussions between the usual channels—is that it is the intention next week that this Bill will be dealt with before the Greater London Authority (Referendum) Bill, which preceded us today.
Lord Lester of Herne Hill: My Lords, obviously we could spend a great deal of time discussing how much time we should spend on the legislation and complaining about the lateness of the hour. However, that would not be profitable. I understand the Government's problems in handling their business and, indeed, I have sympathy with them in that respect.
It is because the Report stage took so long last time that we are here again this evening. It was because the House was so thinly attended on the last occasion—as, indeed, is the case this evening—that I did not move an important amendment on proceedings, but indicated that I would do so on Third Reading. It is for the same reason that I have given advance notice that I shall not

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be moving an important amendment tonight about the human rights commissioner but, again, will do so on Third Reading.
I realise that Third Reading is not normally the occasion to do so, but it seemed to me to be the best way of reconciling the need to get business through with the need for a full debate on important issues. I believe that to be a satisfactory outcome, even though I realise that the noble and learned Lord, Lord Simon of Glaisdale, will continue to be unhappy about the situation for quite understandable reasons.
Lord Williams of Mostyn: My Lords, I shall respond as briefly as I can. I take the point made by the noble Lord, Lord Lester; namely, that the longer we spend discussing the timetable the longer the time taken will in fact be. I take the point made by the noble Lord, Lord Henley, and also that made by the noble and learned Lord, Lord Ackner. Such matters will be discussed by the usual channels. If we were by some happy chance to go before the London matter next Thursday 5th February—my birthday—then I would be able to bear it with some fortitude.
On Question, Motion agreed to.
Clause 7 [Proceedings]:
[Amendment No. 32 not moved.]
Clause 8 [Judicial remedies]:
Lord Ackner Lord Ackner moved Amendment No. 33:
Page 5, line 11. at end insert ("to give full and effective protection to Convention rights").
The noble and learned Lord said: My Lords, in the immortal words of my old friend the noble Lord, Lord Campbell of Alloway, who I am sorry to see is not in his place in the Chamber, I can deal with my amendment very shortly. I do not do so because of the way that it has been referred to in the groupings list today, because it is quite wrongly described as already having been debated. I had a discussion with the usual channels about the matter well before lunch and persuaded them that it was wrong. I have confirmed with the noble Lord, Lord Williams, that my noble and learned friend the Lord Chancellor has been informed that this amendment will be moved; indeed, it had not been moved previously.
Your Lordships will recall earlier attempts to amend Clause 1 so as to make specific reference to Article 13 of the convention which reads:
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity".
Your Lordships will also recall that, when the matter was raised originally in Committee on 18th November, my noble and learned friend the Lord Chancellor said that the provision gives effect,
"to Article 13 by establishing a scheme under which convention rights can he raised before our domestic courts. To that end, remedies are provided in Clause 8. If the concern is to ensure that the Bill provides an exhaustive code of remedies for those whose convention rights have been violated, we believe that Clause 8 already achieves that and that nothing further is needed".—[Official Report. 18/11/97; col. 475.]
The noble and learned Lord the Lord Chancellor then added, also at col. 475, that if Article 13 were mentioned,
"The courts would be hound to ask themselves what was intended beyond the existing scheme of remedies set out in the Bill".
When the matter came before your Lordships on 19th January at Report stage my noble and learned friend the Lord Chancellor said,
"Our objection is that the amendments add nothing to the scheme in the Bill. On the contrary, the only effect they could have is to disturb the carefully crafted structure of the Bill in some unforeseen way. I do not know what the courts would make of amendments which, on the face of it, contain nothing new. I therefore suggest that the amendments would either cause confusion or uncertainty".— [Official Report, 19/1/98; col. 1266.]
One thing which my amendment will not do is to cause confusion or uncertainty because in order to make assurance doubly sure it adds the words of the amendment to Clause 8 of the Bill. It therefore does no violence of any kind to the Bill as it stands. It makes it perfectly clear that all one is seeking to do is to ensure that the words,
"to give full and effective protection to Convention rights"
get rid of any doubt as to the overall cover of the Bill.
I appreciate that my noble and learned friend the Lord Chancellor takes the view that this is unnecessary and that it is surplusage. I refer him to what the noble and learned Lord, Lord Simon, said when the matter was before your Lordships on Report on 19th January, in particular at cols. 1267 and 1268 of the Official Report; namely, that there are occasions when additions put in for the abundance of caution pay off. He referred to the Judicature Act of 1875 which was concerned with divergences between rules of equity and rules of common law, and how a clause in that measure managed to cope with an unexpected problem which arose. The noble and learned Lord on that occasion also quoted Cromwell:
"I beseech you, in the bowels of Christ, [to consider that] you may be mistaken".
That is all this comes to. I seek my noble and learned friend's generosity in making sure, out of the abundance of caution, that the anxieties which have been expressed at the omission of any reference to Article 13 can be put happily to rest. That cannot cause any ambiguity or give rise to any difficulty or confusion. It is as short and as simple as that. I beg to move.
7 p.m.
Lord Lester of Herne Hill: My Lords, it may be for your Lordships' convenience if I try to summarise the story so far, supplementing the account explained so clearly by the noble and learned Lord, Lord Ackner. The starting point is that the White Paper indicated, in the Prime Minister's preface and in the body of the White Paper, that the purpose of the Bill was to incorporate the convention into domestic law and to create effective remedies for breaches of convention rights. The problem was that when the Bill was drafted neither the Long Title nor any provision of the Bill stated that purpose, so there was a mismatch from the start between the White Paper and the text of the Bill.

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A further problem was, and is, that, on the face of it, Clause 1(1)(a) gives the impression that Parliament is innumerate and illiterate in terms of the law of the convention by inviting us to count from two to 12 and 12 to 14, omitting Article 13 altogether, even though we know that Article 13 creates a substantive right which has to be complied with by all the public authorities of the United Kingdom, including the courts. The problem is then aggravated by the fact that although. Clause 8—with which this amendment is concerned—gives ample powers to the court to grant just and appropriate remedies there is still no link with Article 13 of the convention. Various attempts have been made to create that link. Notwithstanding the assurances that the noble and learned Lord the Lord Chancellor has given in previous debates which are, as it were, Pepper v. Hart assurances, it is essential that our courts should be able to continue to do what they have already been doing in developing the common law and in interpreting statutory discretion.
As I explained earlier, in libel cases the Court of Appeal has at least twice referred to Article 13, and the Appellate Committee of your Lordships' House has done the same in ex parte Khan. It would be most unfortunate if the deliberate exclusion of Article 13 in Clause 1(1)(a) were to be construed as intended to cut down the power of our courts to have regard to Article 13 as well as to the other substantive provisions of the convention. That is why it seems to me that the noble and learned Lord, Lord Ackner, with his skill and elegance has, as always, produced a formula which, without mentioning Article 13, creates a necessary link between the domestic obligation to give a remedy and the convention obligation that there should be an effective remedy. I cannot see that that can do any harm at all, and nor did the noble and learned Lord the Lord Chancellor indicate that it would on the previous occasion that this was discussed. It would clear up once and for all the problem I have attempted to summarise. For that reason I support the amendment.
Lord Simon of Glaisdale: My Lords, I, too, support the amendment. I still hanker after the inclusion of Article 13 because I think its omission might well have a disproportionate effect on a court of interpretation. They might well say, "Why is Article 13 exceptionally not specified in the schedule?" It is rather like when a child loses its milk teeth. Until the tooth is replaced, every eye is drawn to the gap. That might well be the effect of the lacuna.
However, my noble and learned friend Lord Ackner has skilfully gone a long way to mitigating any adverse effect by his amendment. I wish to add only this. Between the two days of Report, there has been an important occurrence. A leading constitutional lawyer—none is more eminent than Mr. Geoffrey Marshall—has written to The Times and drawn attention to two matters in which the Bill is defective. One is the absence of Article 13; and the other is the refusal to reinforce and to nominate in the Bill the doctrine of implied repeal, both of which matters were canvassed on the last occasion. Mr. Marshall seemed to think that those
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matters can now be put right only when the Bill goes to another place. He may be right on that. He is probably right as regards implied repeal because I do not think that I shall be entitled to put that down for discussion again at Third Reading.
However, if my noble and learned friend's amendment is accepted, the matter may be reconsidered at Third Reading. What he proposes can only do good: it cannot possibly do any harm. But it may be thought preferable to go back expressly to Article 13 in view of what I have just said.
In view of what Mr. Marshall wrote and what has been said by the two noble Lords who preceded me, I hope that the amendment may be accepted.
The Lord Chancellor: My Lords, we have already had a full argument on this proposed amendment. Clause 8(1) provides that,
"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its jurisdiction as it considers just and appropriate".
In my respectful view, that gives the courts the amplest discretion. I am not persuaded by an argument which proposes an amendment on the basis that it may well be unnecessary but where no specific argument is advanced as to how it may do some positive good. In my view that is likely to be productive only of uncertainty. I therefore oppose the amendment.
7.15 p.m.
Lord Ackner: My Lords, I do not know from where my noble and learned friend the Lord Chancellor gets the proposition that we have already had full argument on this issue. We have had no such thing. At Committee stage, when the Lord Chancellor criticised the suggestion that Article 13 should be referred to, I intervened before he sat down and said that perhaps the whole problem may be solved by adding at the end of Clause 8(1) the very words that are the subject matter of the amendment. Your Lordships said that if one wishes to do that one raises it on Report. That is exactly what I have done. I have raised it on Report. The matter was not referred to by way of any argument when we were on Report a few days ago. I reserved the matter specifically saying that it was a matter which I would move at a later stage.
It rather looks as though my submissions have fallen on totally deaf ears because your Lordships thought that it had already been dealt with. It had not. If I am wrong, I shall be happily interrupted to be corrected. The matter has not been argued before.
The Lord Chancellor: My Lords, I entirely accept what the noble and learned Lord says. The amendment was originally grouped with Amendments Nos. 3, 5 and 70, the purpose of which was to include Article 13 in the convention rights. Your Lordships debated that set of amendments on 19th January when I explained the Government's position: that the Bill provides a coherent and effective scheme for providing remedies and that nothing was to be gained by adding Article 13 to the list of convention rights.

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All I was saying was that in principle we have effectively debated these points. But there is nothing inappropriate, and the noble and learned Lord is well within his entitlement, in putting down the amendment for consideration now. I entirely appreciate that the amendment is to insert into Clause 8(1) a statement that the remedies granted by the courts are to be such as to give full and effective protection to convention rights.
The key point is this. Given the wealth of remedies available to a court under Clause 8(1), nothing further is needed, in the Government's judgment. We are confident that Clause 8 will allow the courts to do full justice in the cases that come before them. I repeat that it is noteworthy that on the several occasions that we have now debated this general issue, no one has been able to point to any particular deficiency within Clause 8(1).
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor. Will he deal with the point I raised: that our courts have already expressly had regard to Article 13 of the convention?
Lord Haskel: My Lords, perhaps I may remind noble Lords of the convention that once the mover of the Motion has spoken at Report any further interruptions are purely on matters of detail.
Lord Ackner: My Lords, I am just finishing my reply because I had invited the noble and learned Lord to interrupt me if I had got the position wrong.
I clearly have not. I said in terms on the last occasion that I should be moving the matter at a later stage notwithstanding the groupings. The groupings were not accepted by me. In fact I had asked, but it was overlooked, that the amendment be grouped separately. The matter has not been argued.
The Lord Chancellor has not answered the point I seek to make. It is that whereas the amendments to Clause I were, so he said, amendments which could cause confusion or uncertainty, what I propose now would do no such thing. It would make clarity doubly clear. Therefore the objection to the amendments to Clause 1 has absolutely no relevance to the amendments I put forward. That is why I had hoped that that particular point would be addressed; it cannot be in the same category as the amendments to Clause 1. That is why I did not move this amendment with those amendments.
I do not know whether my noble and learned friend the Lord Chancellor would like to deal with that point. But if he does not, then it merely means that my argument has not been properly addressed. I cannot accuse the noble and learned Lord the Lord Chancellor of a lack of generosity of spirit. When it comes to later amendments concerning judicial pensions, he has been very generous. All I can say is that I am sorry that that admirable feature of his character has not shone forth at an early stage in this particular debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 34:
Page 5, line 26, after ("account") insert (", but need not he limited by,").
The noble and learned Lord said: My Lords, this amendment raises an issue in relation to Clause 8(4) of the Bill. It arises out of a matter suggested to me by the Law Society of Scotland. The Society also gave notice of the matter to the Government. The amendment seeks to probe the issue as to whether or not, in exercising the power to award damages under Clause 8(4), a court in the United Kingdom would in any sense be limited to the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
Those of us who have from time to time considered and been involved in cases involving the European Court of Human Rights sometimes take the view that, in instances where compensation is awarded, the awards are of a fairly modest nature, and had the applicant been able to prosecute a right in the British courts under the common law for some breach of statute for a similar wrong or injury, the damages that he or she would have received, if successful, would in all probability have been somewhat larger—in some instances significantly larger—than the levels of compensation assessed by the European Court of Human Rights.
I fully accept that the words in subsection (4), "must take into account", could be construed as being such that the courts need not be limited by the principles applied. It is to probe and seek the Government's assurance that no such limitation is intended that I move this amendment. I beg to move.
Lord Lester of Herne Hill: My Lords, if I thought that the Government's intention was that the words, "must take into account", in Clause 8(4) were to be given a different meaning from the words, "must take into account", in Clause 2(1) in relation to the Strasbourg jurisprudence, I would certainly support this amendment. It would be quite wrong to fetter or clog the discretion of the English, Scottish and Northern Ireland courts in deciding upon the appropriate principles for the award of compensation for what is really to be a new form of public law tort; that is to say, a breach by a public authority of a convention right. It would be absurd, if, for example, domestic law concepts such as that of exemplary damages in an appropriate case, which is not a concept that has been developed by the European court, were to be excluded. It would be absurd if our courts were not able, in developing the common law, to stick to our own principles.
On the other hand, I support the way in which the clause as it stands is put. I look forward eagerly to the Minister's explanations. As I understand it, what is envisaged is that guidance should be given as to the case law of the European Court of Human Rights in relation to what is now called Article 41 of the convention, previously Article 50, in giving just satisfaction.
What I like about that case law is that it is fairly mean. In a routine case, the Strasbourg court does not award massive damages. It is quite right that the courts

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should be guided by that mean spirit. This Bill could be destroyed in practice if there were excessive damages awards. Therefore, it seems to me to be well calibrated. The courts "must take into account" that austere case law, but they are not restricted in a gross case where, for example, a person under colour of law deliberately and wickedly tortures somebody or inflicts upon him or her some other barbaric practice in breach of Convention rights and in a context where the Strasbourg court may not even have dealt with such a case. In that case, it is quite right that our courts should be free to use their well-known principles for the award of damages in common law cases. If my understanding is correct, then I should be opposed to this amendment.
Lord Renton: My Lords, it is very important to note in discussing this amendment, and indeed any matter to do with Clause 8, that we are not dealing with any conflict of law between European Convention law and our own substantive law, whether primary or secondary. That matter was dealt with under Clause 4, under the rubric, "Declaration of incompatibility". Here, we are dealing simply with the power of the court to award damages. In that connection we should bear in mind not only the remarks of my noble and learned friend Lord Mackay of Drumadoon, but also the comments of the noble Lord, Lord Lester of Herne Hill, in amplifying the argument.
A factor which neither of them mentioned, although they may have had it in mind, is this. There is such a thing as inflation, or at least changes in the value of money. In awarding damages, our courts would be neglecting their duty if they failed to bear that point in mind when fixing an amount of damages. I therefore see this amendment as doing no harm; indeed, it is essential.
The Lord Chancellor: My Lords, I find this amendment somewhat surprising. In connection with Clause 2, the noble Lord, Lord Kingsland, put down an amendment which stated that in determining a question which has arisen under this Bill, a court,
"shall he hound by any judgment, decision, declaration or advisory opinion of the European Court of Human Rights."
The words he sought to replace—"must take into account"—were apparently not strong enough for the noble Lord's liking.
But in Clause 8, the wording of subsection (4) is consistent with that used in Clause 2; namely, that in determining whether to award damages, or the amount of an award, a court "must take into account" the principles applied by the European Court of Human Rights in relation to the award of compensation. On this occasion, the noble and learned Lord, Lord Mackay of Drumadoon, would appear to find that phrase too restrictive, and that the courts are to be enjoined not to be limited by the principles of the European Court.
I have no hesitation in advising your Lordships that the similar expressions in two parts of the Bill will bear the same meaning. The intention of Clause 8 is that people should, so far as is possible, receive the same remedies from our domestic courts—albeit with much less delay—as they would receive if the case went to
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Strasbourg. For that to happen, it is necessary that our courts should take into account the principles adopted by the European Court of Human Rights. I see no need for the added gloss that they "need not be limited by" such principles. As I explained when talking to the noble Lord, Lord Kingsland's proposed amendment to Clause 2, the phrase, "take into account", allows the courts to use their discretion where appropriate in applying Strasbourg jurisprudence generally to cases before them. It would be unnecessary and confusing to have a different phrase in Clause 8 from that in Clause 2. It would suggest that the courts were to apply a different test in questions of damages, which is contrary to our intentions. In view of what I have said, I ask the noble and learned Lord to consider withdrawing the amendment.
Lord Mackay of Drumadoon: My Lords, I am grateful to the noble and learned Lord for his explanation. In tabling as in moving my amendment, I was indeed conscious of the terms of Clause 2 and the extensive debate we had about that matter at an earlier stage of the Bill. Nevertheless, it had struck others, as well as myself, that the matter was worth clarifying. The answer given certainly does that.
Quite how that squares with the point made by the noble Lord, Lord Lester, about exemplary damages I am less certain, particularly in view of the absence of such damages within the powers of the Scottish courts. They will be required to apply the provisions of Clause 8(4). So yet again we have an instance of how the Bill, which seeks to bring rights home to the United Kingdom, will end up having different results in different jurisdictions within the United Kingdom. However, I am grateful for the answer I have received and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.30 p.m.
Clause 9 [Acts of courts and tribunals]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 35:
Page 5. line 33, leave out from first ("of") to end of line 35 and insert ("a judicial act may he brought only—

(a) by exercising a right of appeal;

(b) on an application (in Scotland a petition) for judicial review; or

(c) in such other forum as may he prescribed by rules.").

The noble and learned Lord said: My Lords, in speaking to government Amendments Nos. 35 and 36, it may be helpful if I also speak to Amendment No. 37 by the noble Lord, Lord Meston.
I am sorry that the noble Lord has been put to the trouble of tabling again on Report the amendment that he moved in Committee. We reached his amendment rather late on the second day of Committee and therefore had less time for discussion than I had hoped.
The noble Lord will now be aware that the Government have themselves tabled an amendment to this clause to provide an enforceable right to compensation for breaches of Article 5 by judicial acts. The noble Lord will see that this is a rather more

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detailed amendment than his own, but I hope that he will accept that it makes the same provision as that which he is concerned to ensure.
May I explain the overall purpose and the detailed provisions of this amendment, because they are of some importance. It has two purposes. The first is to provide an enforceable right to compensation for breaches of Article 5 by judicial acts. The second is to preserve judicial immunity generally for judicial acts undertaken by judges, magistrates, tribunal members and court staff performing judicial functions or acting on behalf of the judge or on the instructions of the judge.
Noble Lords will remember that at Committee stage the noble Lord, Lord Meston, moved an amendment, identical to that which he has now put down on Report, to make explicit provision for the requirement of Article 5(5) that everyone who has been the victim of arrest or detention in contravention of the provisions of Article 5 shall have an enforceable right to compensation.
I indicated at Committee stage that the Government were alive to the need to make appropriate provision for the Article 5(5) requirement and that we were considering how best to give effect to this obligation in relation to judicial acts of courts and tribunals. The effect of Clauses 6, 7 and 8 of the Bill is that there is an enforceable right to compensation in relation to public authorities generally. But special provisions are needed in relation to judicial acts of courts and tribunals.
Where a complaint is made that Article 5 has been breached as a result of a judicial act or omission it will be necessary first to establish whether the judicial act complained of was unlawful, then to rule on whether the aggrieved person is entitled to compensation under Article 5(5) and then to determine the amount of compensation. In determining those questions the court will take into account the Strasbourg jurisprudence on unlawful detention and on the award of damages, as required by Clauses 2 and 8 of the Bill.
Subsections (1) and (2) of the clause require that proceedings under Section 7(1)(a) in respect of a judicial act may be brought in three ways: by exercising a right of appeal; on an application for judicial review (or in Scotland a petition for judicial review) or in such other forum as may be prescribed by rules.
A finding that an inferior court has acted unlawfully will most commonly be reached in England and Wales by way of appeal to the Court of Appeal or the Divisional Court, or by an application by way of judicial review to the High Court. The higher court will then be able to reach a decision of unlawfulness and make an award of damages. Clause 8(2) will enable the courts, which already have power to award damages, to do so in proceedings under this Bill. However, in criminal proceedings in Scotland, if the High Court on appeal finds that some act of an inferior court has contravened the complainant's rights under Article 5(5) it would have no power to award damages. It would therefore be necessary for the amount of damages to be determined by the civil courts. The clause therefore enables proceedings to be brought in such other forum as may be prescribed by rules. The Court of Appeal in England, as a single entity, has the power to award damages.
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Rules will provide as to whether the Criminal or Civil Division should hear compensation claims. Again, Clauses 9(1) and 7(2) provide the necessary powers to make rules.
Subsection (2) underlines that no new right to judicial review is being created. For example, a challenge to a decision of the Crown Court in a matter relating to a trial on indictment will be made on appeal since there cannot be judicial review in respect of trials on indictment.
Subsection (3) has two purposes. It restates the current position under common law and statutory rules that the Crown is not liable in respect of judicial acts and that judges and magistrates acting within their jurisdiction, or outside their jurisdiction if doing so in good faith, are immune from proceedings for damages. But it also makes provision that damages may be awarded to compensate a person to the extent required by Article 5(5) of the Convention in respect of a judicial act of a court.
The noble Lord, Lord Meston, has written me a most helpful letter in which he has indicated that he himself had thought of making clear in Clause 9 that existing personal immunity of judges and magistrates was preserved, but he had decided that it was probably unnecessary to do so. It is helpful to know that he had in mind the second purpose of the government amendment—that is, preserving judicial immunity—as well as the first of providing an enforceable right to compensation under Article 5(5).
I believe that now he has seen the draft of the Government's amendment to this clause, he will agree that it is helpful to spell out that judicial immunity is preserved, given the way the clause is now drafted.
Subsection (4) provides that an award of damages permitted by subsection (3) should be made against the Crown rather than against the judge personally. It also ensures that whichever Minister is responsible for the court or tribunal concerned is joined to the proceedings if not already a party. This is similar in effect to the provision of Clause 5 which provides that where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice and, on an application to the court, to be joined as the party to the proceedings. In practice, the Lord Chancellor will be the appropriate person in many cases concerning judges and magistrates, in England and Wales. In Scotland, the relevant Minister will usually be the Secretary of State. But there may be cases where the breach of the Article 5 provisions arises from a wholly proper judicial decision required by inconsistent legislation, primary or secondary legislation. In this case it would be helpful for the Minister responsible for the legislation to be joined. "Appropriate person" therefore allows me, or the Secretary of State for Scotland to nominate a person or government department.
The definitions in subsection (6) make it clear that judicial acts include acts undertaken by court officers performing judicial functions or acting on behalf of the judge or on the instructions of the judge.
At present, this clause refers both to a "judicial act", in subsection (1) and to a "judicial act of a court" in subsection (3). This may give rise to confusion and the Government will therefore be moving a minor amendment at Third Reading to clarify this small point.
I said in Committee that the amendment proposed by the noble Lord, Lord Meston, might be the best way of providing compensation for breaches of Article 5 by judicial acts. I warned the Committee then that the complex and delicate issues of judicial immunity and Crown liability for judicial decisions required consideration before an amendment was made to this clause. The government amendments before the House seek to deal with that situation. They go rather further than the noble Lord's amendment. I hope that he will therefore consider withdrawing his amendment and that the House will agree that the government amendments achieve what is required. I beg to move.
Lord Meston: My Lords, I am grateful to the noble and learned Lord for swiftly and fully meeting the point raised in the amendment moved at Committee stage. I shall not move Amendment No. 37. I am also grateful to the noble and learned Lord for explaining, in answer to the only question that I would have asked on Amendment No. 35, what is meant by the phrase.
"such other forum as may be prescribed by rules".
The amendments are most welcome.
Lord Mackay of Drumadoon: My Lords, from these Benches I offer no objection to Amendments Nos. 35 and 36, which address fully the point raised previously by the noble Lord, Lord Meston. With an element of diffidence perhaps I can ask one question. Is it proposed that these amendments will apply to the courts of the Church, about which we have had certain discussions during the passage of the Bill? If so, looking at the terms of subsection (5), set out in Amendment No. 36, I doubt that one could say,
"the Minister responsible for the court concerned".
Lord Lester of Herne Hill: My Lords, first, I congratulate my noble friend Lord Meston on introducing this matter at Committee stage and the noble and learned Lord the Lord Chancellor and his colleagues on what I regard as an appropriate and necessary amendment.
The amendments represent a significant change in existing law. As I understand it, until the Courts and Legal Services Act 1990 came into force it was possible for someone who had been unlawfully detained by order of a magistrates' court to take civil proceedings against the relevant Bench of magistrates. In cases in which imprisonment was unlawful, compensation could be paid.
Sections 44 and 45 of the 1990 Act introduced a requirement for the plaintiff to allege and prove malice before compensation could be ordered. That in effect rendered such litigation impossible and ended the right to compensation for unlawful detention by a magistrates' court. The Strasbourg case law is that
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a requirement to prove malice as a precondition to compensation does not conform to Article 5(5) of the Convention. The amendment deals with that problem extremely well. It extends to a judicial act of a court done in good faith so that damages can be awarded to compensate a person to the extent required by Article 5(5). It impliedly repeals Sections 44 and 45 of the Courts and Legal Services Act. Perhaps the noble and learned Lord could think a little further about whether one needs to have something dealing expressly with that. It deals skilfully with the problems of judicial immunity and Crown liability, as the Lord Chancellor indicated.
Lord Simon of Glaisdale: My Lords, perhaps I can raise a small drafting point on subsection (4) of the amendment. It says,
"An award of damages permitted by subsection (3) is to be made against the Crown",
and so forth. Does not that mean "may" be made against the Crown? Is not that the normal manner of drafting? Matters of drafting are not positively debated across the Floor of your Lordships' Chamber, but perhaps my noble and learned friend will consider that point with the draftsmen, if he thinks it worth considering.
Viscount Colville of Culross: My Lords, I am relieved to have it put clearly in the Bill that the judiciary is immune. In relation to what the noble Lord, Lord Lester, said, one can make a mistake in the Crown Court as well as in the magistrates' court and this is an admirable arrangement for some of us.
The only question I would ask the noble and learned Lord is this. Now that the explanatory memorandum has disappeared, I cannot check whether there is to be a financial provision introduced by another place in order to pay for all this. It will come out of the public pocket, out of the Treasury, and I imagine that it will be necessary to bring forward an amendment which we cannot introduce in this House, but which may be introduced in another place.
7.45 p.m.
The Lord Chancellor: My Lords, I am disinclined to be drawn into argument about the Church courts. The short answer is that if the noble and learned Lord, Lord Mackay of Drumadoon, had in mind the Church of Scotland or indeed the Church of England, I am not aware that they make any decisions that could breach Article 5. I have difficulty therefore in understanding how the question of compensation in relation to Article 5(5) could arise.
I note what was said by the noble Lord. Lord Lester, in relation to the interaction of these provisions by way of an amendment with pre-existing civil and statute law. However, having regard to the position of the hands of the clock, it would not be wise for me to embark extempore upon that. However, I undertake to write to the noble Lord.
The noble and learned Lord, Lord Simon of Glaisdale, invites us to consider subsection (4) from a specific standpoint. I am happy to do so. I understand the

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significance of the provision to be no more than to emphasise that the liability is in the Crown and not the judge as an individual. I shall look at that. I do not believe that any specific financial provision needs to be made for liabilities that may arise at law against government departments.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 36:
Page 5, line 38, leave out subsections (3) to (5) and insert—
("(3) In proceedings under this Act in respect of a judicial act of a court done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.
(4) An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined.
(5) In this section—
"appropriate person" means the Minister responsible for the court concerned, or a person or government department nominated by him;
"court" includes a tribunal;
"judge" includes a member of a tribunal, a justice of the peace and a clerk or other officer entitled to exercise the jurisdiction of a court;
"judicial act" includes an act done on the instructions, or on behalf, of a judge;
"rules" has the same meaning as in section 7(8).").
On Question, amendment agreed to.
[Amendments Nos. 37 and 38 not moved.]
Clause 10 [Power to take remedial action]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 39:
Page 6, line 8, leave out ("one or more of the Convention rights") and insert ("a Convention right").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 40:
Page 6, line 8, after ("rights") insert ("and, if an appeal lies—

(i) all persons who may appeal have stated that they do not intend to do so;

(ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or

(iii) an appeal brought within that time has been determined or abandoned").

The noble Lord said: My Lords, in moving Amendment No. 40, it may be convenient for me to speak also to Amendments Nos. 41 to 43. Amendments Nos. 40 and 42 place limits on the power of a Minister to make a remedial order under Clause 10 following a declaration of Convention incompatibility by a court. Both are specific responses to concerns expressed by your Lordships in Committee.
Amendment No. 40 prevents a remedial order being made following a declaration of incompatibility if there is any prospect of an appeal against the relevant court decision. That is a specific and I hope helpful response to the question raised by the noble Lord, Lord Kingsland. I summarised it shortly, but I believe rightly. The noble
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Lord asked what would happen if the remedial order procedure were initiated before all avenues of appeal had been exhausted. We believe, as we believed then, that that situation would be unlikely to arise in practice. Having said that, we see no harm in making the position clear on the face of the Bill. That is the purpose of Amendment No. 40.
The noble Lord, Lord Coleraine, helpfully raised the question in Committee as to whether or not the power conferred by Clause 10 may be used retrospectively in respect of findings in proceedings against other states or parties to the Convention. Again, we believe those outcomes to be unlikely but, having reflected on the helpful comments made by the noble Lord, Lord Coleraine, we are content to make the position clear on the face of the Bill.
Both noble Lords have re-tabled their amendments. I can assure them that the government amendments achieve what their amendments tried to do. The drafting is slightly different. But we believe, modestly, that perhaps the parliamentary draftsman has done a good job here as regards Amendments Nos. 40 and 42. In the light of my brief explanation, I hope that both noble Lords will seek leave to withdraw their amendments. I beg to move.
Lord Kingsland: My Lords, as the noble Lord, Lord Williams of Mostyn said, in effect, the terms of Amendment No. 40 match the terms of my own Amendment No. 41. I am grateful that the Government have taken this step. I have a certain attachment to my own wording, but I accept that he has covered the point. In those circumstances I shall not move Amendment No. 41.
Lord Coleraine: My Lords, I too would like to thank the noble Lord for accepting the arguments which I put forward in Committee about this small matter. I am very happy that his amendment should pre-empt mine.
Lord Lester of Herne Hill: My Lords, I, too, support this amendment and those associated with it, to which I shall speak briefly. I wish to draw attention to one matter. I realise that it is right in principle that remedial action should be confined to proceedings against the United Kingdom, made after the coming into force of the relevant section. However, there is the problem of what happens in relation to proceedings before that occurs.
That is best illustrated by the position in the case of Goodwin v. the United Kingdom. In that case there was a finding by the European Court of a breach as a result of an interpretation given by the Appellate Committee of this House. Then the problem was translating that into our own legal system without legislation, given the doctrine of binding precedent.
The problem has been exemplified more recently by a decision of the Court of Appeal in a case called Camelot. There is now an awkwardness in that there is no equivalent of the remedial procedure by subordinate legislation to give effect to a judgment of the European Court of Human Rights where it is necessary to over-rule domestic law. This problem is going to continue as regards pre-Human Rights Act cases.

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I realise that it would be wrong to seek to widen this power, but I draw the attention of the House to the problem. I am not quite sure how we resolve it if, for example, a journalist in the same position as Mr. Goodwin found that the judgment is given binding effect against him in breach of his rights under Article 10 of the European Convention on Human Rights. I draw attention to that not in order to speak against the amendment or to suggest that it should be widened. It is quite a serious practical problem that will continue to exist and will not be solved by this Bill.
Lord Williams of Mostyn: My Lords, that may be so, but the structure that we have carefully crafted is to tie in, with the assistance, which I re-acknowledge, of the propositions put forward by the noble Lords, Lord Kingsland and Lord Coleraine. We have constructed the system of remedial action specifically in the context of this Bill. We believe that we have achieved the right solution. There may be anomalies which will have to be addressed in a different way, but not—and I respectfully agree with the noble Lord, Lord Lester of Herne Hill—through remedial action. I am grateful that he has raised this question.
On Question, amendment agreed to.
[Amendment No. 41 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 42:
Page 6, line 10, after ("Rights") insert ("made after the coming into force of this section in proceedings against the United Kingdom").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 43 not moved.]
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 44:
Page 6, line 11, leave out ("one or more of the obligations") and insert ("an obligation").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 45:
Page 6, line 28, leave out ("one or more of the Convention rights") and insert ("a Convention right").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 46:
Page 6, line 34, at end insert ("and
(b)"legislation" does not include a Measure of the Church Assembly or of the General Synod of the Church of England").
The noble Lord said: My Lords, this amendment responds to concern expressed in Committee by the right reverend Prelate the Bishop of Exeter. Subsequently it was the subject of quite extensive discussions between representatives of the Synod of the Church of England and officials at the Home Office. I am most grateful for
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the opportunity that we had at those discussions. They were very helpful indeed. We proceeded on the basis that the Lord Chancellor indicated right at the outset at Second Reading that anything that would improve the Bill, consonant with its philosophic structure and basis, would be given careful attention. I am grateful for the personal discussions I had with the right reverend Prelate the Bishop of Ripon when we were able to discuss other matters of general concern to the Church of England.
As it was indicated in Committee, Clause 10 would enable a Minister of the Crown to make a remedial order amending a measure of the General Synod or of its predecessor, the Church Assembly, following a declaration of incompatibility. The Minister of the Crown could do that without any reference to the General Synod.
The Church of England, perfectly properly, pointed out that that would sit uneasily with our present arrangements whereby a Church measure can only be approved or disapproved by Parliament in its entirety—in other words, with no opportunity for amendment. To provide for amendment of a Church measure by a Minister, even in response to the serious situation of a declaration of incompatibility, would obviously have significant implications for the Church. Neither do we feel that it would be appropriate for a Minister of the Crown to be in that situation. It would not tie appropriately with our present relations between Church and state.
Therefore, we thought about it carefully, particularly benefiting by the conversations to which I have referred. We came to the conclusion that if an amendment to Church measures were required to remove a convention incompatibility, it is better done by the Church itself rather than by the exercise of the order-making power by a Minister of the Crown. I express the Government's confident hope that if there were a court declaration of convention incompatibility, then the General Synod would speedily consider whether the measure should be amended. We do not believe that the Church of England would be found inactive if its legislation were found to be in breach of human rights. We are content to leave it at that. I beg to move the amendment on that basis.
The Lord Bishop of Ripon: My Lords, from these Benches I would like to express my thanks to the noble Lord, Lord Williams of Mostyn, for tabling this amendment. For over 70 years the Church Assembly—and more recently, the General Synod—have had delegated powers from Parliament to pass measures, subject to final parliamentary approval, relating to matters concerning the Church of England. These measures are part of the primary legislation to the law of the land. As the noble Lord, Lord Williams, has said, by removing measures from Clause 10, the understanding between Church and state is preserved.
The position of the Church of England as an Established Church puts it into a unique relationship with Parliament. As the noble Lord has said, Clause 10, as it stood before this amendment, would have given Ministers the power to amend Church of England legislation without consulting the Church.

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The amendment removes those measures from Clause 10. It does not affect the status of such measures as primary legislation and the courts therefore cannot strike them down. However, as the noble Lord said, the courts have the power to declare an incompatibility between the convention and measures, and the power under this amendment to remedy that incompatibility lies not with the Government but with the Church of England.
The Church of England—I am confident that I speak for other Churches also—does not wish to escape its proper obligations under the convention. We have been seeking an assurance that the Bill cannot be used to require the Church to act in ways contrary to its religious principles and beliefs.
This generous and welcome amendment gives a substantial assurance to the Church of England in this regard. I should like to express once again my thanks not only to the noble Lord, Lord Williams of Mostyn, but also to his officials for their careful consideration of this issue and my pleasure at the outcome.
In response to the noble Lord's final hope, I wish on behalf of the Church of England to give an assurance that if ever the courts made a declaration that a Church measure was incompatible with convention rights, the Church would of course give consideration of the utmost seriousness to the introduction of an amending measure into the General Synod for the purpose of rectifying the situation.
8 p.m.
Lord Hughes of Woodside: My Lords, I do not want to become involved in a contentious debate about Church versus state. That issue was probably debated at length earlier. However,I am unconvinced that there is any need to exclude the Church from any of the Bill's provisions.
I should like clarification on one or two points. As I understand the amendment from the way in which it was moved, and from the response from the right reverend Prelate, it basically restores the position to what it was before this Human Rights Bill was introduced. There is no real attempt to put the Church of England in an especially privileged position other than the especially privileged position that it was in before.
The whole purpose and thrust of the Bill is to repatriate the human rights Convention. No human rights have been taken away from anyone. We all understand the certain derogations in the Bill, but they in no way affect Article 9 of the Convention, which deals with religious freedoms.
Perhaps I may ask a question. Is it possible for someone who feels aggrieved by the procedures of the Church still to go to Strasbourg if he or she wishes? In other words, I seek confirmation that there is no cut-off point and that nothing in the amendment prevents that happening. If that is so, there would be no problem, but if it were the case that the purpose of the amendment inadvertently—if perhaps not advertently—was to reduce the possibilities of anyone going to Strasbourg to exercise their rights, in my view that would represent unfair discrimination in favour of the Church. I hope that an explanation of that point can be given.
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If there are difficulties such as I have suggested, I hope that the Government will look again at this amendment to ensure that nothing is done which takes away the rights of any individual who may have a grievance against the Church.
Lord Goodhart: My Lords, on the first day of Report stage, I spoke against the much wider amendment (which was defeated on a Division) to exempt the Church of England and, indeed, other religious bodies from much of the effect of this Human Rights Bill.
On this occasion, I speak in support of the amendment which has been moved by the noble Lord, Lord Williams, because it seems to me to do no more than what is perfectly proper, which is to secure that the existing arrangements for the constitutional settlement between Parliament and the Church of England are maintained as now. We on these Benches are entirely happy with that.
Lord Williams of Mostyn: We are grateful for the generous response of the Church of England as articulated by the right reverend Prelate the Bishop of Ripon and for his positive assertion, which we welcome and accept, that the Church of England would not be found wanting or dilatory were a declaration of Convention incompatibility to be made in respect of any court order.
To answer the specific question asked by the noble Lord, Lord Hughes of Woodside, nothing in this Bill takes away from any citizen of this country the opportunity of the journey to Strasbourg if that were eventually required. The whole point of the Bill is, to coin a phrase, to bring rights home. The Church of England is not being exempted from the provisions of this Bill. We are dealing with the relationship between Church measures and legislation. It is because Church measures can be only approved or disapproved—not amended—following parliamentary discussion and scrutiny that we think that the remedial fast-track procedure is not appropriate for the reasons outlined briefly by the noble Lord, Lord Goodhart, upon which exposition I cannot improve.
On Question, amendment agreed to.
Clause 11 [Remedial orders]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 47:
Page 6, line 35, leave out from beginning to ("may") and insert ("A remedial order").
The noble Lord said: My Lords, this is a drafting amendment. In Committee the noble Lord, Lord Meston, commented that the phrase "a remedial order" seemed to make its first entry into our world in Clause 11 although the power to make it was conferred by Clause 10. Scrutiny of the Bill will show that the phrase does not appear first in Clause 11, but in Clause 6(6)(b) which is concerned with acts of public authorities. It is not defined in that clause but in Clause 21, which defines a number of expressions used in the Bill. Clause 21 states that "remedial order" means,
"an order under section 10".
I agree with the noble Lord that the drafting of Clause 11 could be improved. Where we detect improvements, as is now notorious in your Lordships'

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House, we are always willing to act upon them. That is why this drafting amendment has been tabled. I beg to move.
On Question, amendment agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 48:
Page 7, line 3, at end insert—
("( ) The power to amend or repeal primary legislation under this section may be used only where it is deemed necessary to correct the incompatibility with the Convention rights.").
The noble Lord said: My Lords, this amendment draws on the report of the Select Committee on Delegated Powers and Deregulation, paragraph 23 of which states:
"This [remedial fast-track procedure] is a Henry VIII power of the utmost importance, which the Committee wishes to draw to the House's attention …We have noted the Lord Chancellor's statement to the House at Second Reading that the power can only be used under strictly limited circumstances. Without strict limitations, a secondary power of such potential width would be unacceptable".
On 27th November, at col. 1143 of Hansard the noble Lord, Lord Williams of Mostyn, said in reply:
"It is clear from Clause 10(2) that a Minister will be empowered to make only such changes (apart from any consequential changes) as are appropriate to remove the incompatibility".
The Minister was referring to appropriateness as being the test.
The purpose of this amendment is to require the fast-track procedure to be invoked where it is not merely appropriate but necessary in order to give effect to the court's declaration of incompatibility.
When the Lord Chancellor replied, he indicated that the Government had considered with great care the report of the Select Committee on Delegated Powers and Deregulation and had concluded that Clause 12 was adequate. The noble and learned Lord then said these important words:
"In the present Bill remedial orders are limited specifically to amendments to legislation which are necessary to remove an incompatibility with the convention".—[Official Report, 27/11/97; col. 1145.]
That is not what the Bill says; it is what the amendment says.
I regard it as of great importance that the words of the Lord Chancellor should be reflected on the face of the Bill because of the unease on all sides of the House, shared with different levels of disquiet, about Henry VIII clauses. I note that when we come later to Amendment No. 49 we shall look at attempts to impose further safeguards on the fast-track procedure. My attitude to those amendments will be greatly affected by the reply from the Government Benches to this amendment, and whether the Government are willing to create the necessary safeguard. I know it will be said that it goes without saying and that the courts are likely to read into the Bill a test of necessity and not just appropriateness, but the words "appropriate" and "necessary" are not the same. Therefore, it is very important that before delegated powers to amend primary legislation are invoked—powers with which I entirely sympathise for the reasons given by the noble
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and learned Lord the Lord Chancellor during the previous debate—the test of necessity should be on the face of the Bill. I beg to move.
Lord Henley: My Lords, I support the amendment moved by the noble Lord, Lord Lester of Herne Hill. He referred to my amendments which are in the next group. Those amendments take the idea somewhat further and I believe are more in line with the suggestions made in paragraph 24 of the sixth report of the Delegated Powers Scrutiny Committee. Obviously, I would prefer to go down the line of Amendment No. 49 and the associated amendments, but if the House is unwilling to go that far at this stage I should like to support Amendment No. 48. If the House is prepared to accept both I shall be even happier because the two groups of amendments are not incompatible. I believe that my amendments, to which I shall speak at slightly greater length, do more to achieve that which was suggested or recommended by the Delegated Powers Scrutiny Committee.
Baroness Williams of Crosby: My Lords, this particular amendment attracted a good deal of support in Committee. We were then told to go away and ponder the matter further. The noble Lord, Lord Williams of Mostyn, said that he would also ponder further upon it. He said at the time that I was pressing for both belt and braces. That is correct. I see no objection to the combination of belt and braces. Indeed, that may be a very useful motto for everyone to bear in mind on some occasions.
I cannot see any objection to this amendment. Either it is the Government's intention to draw as narrowly as possible the powers that Ministers will have under these clauses or it is their intention to try to satisfy Parliament that the powers used are absolutely essential. I believe that on both tests this amendment is not objectionable. I hope that in responding the Government will make it plain either that they accept it or that there are very good reasons why they cannot do so.
Lord Simon of Glaisdale: My Lords, I too support the amendment. Your Lordships are now sensitive to the allegation of Henry VIII powers, particularly since the setting up of the committee which investigates them. These provisions allow the Henry VIII provision to go to quite unnecessary lengths. I ask your Lordships to look at Clause 11(1) which provides that a remedial order may make consequential provision. In subsection (2) it is provided that subsection (1) powers include powers to amend or repeal primary legislation—that is the Henry VIII proposal—including primary legislation other than that which contains the incompatible provision; in other words, it goes beyond what is required to remove an incompatibility and what is consequential to that. Put another way, the provision in this amendment is necessary. It picks up the word used by my noble and learned friend in justifying it. It is necessary in order to limit the quite undesirable ambit

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of the Henry VIII provision; in other words, it includes other primary provisions beyond what is incompatible and consequential on the incompatibility.
Lord Coleraine: My Lords, I should also like to express my support for the amendment moved by the noble Lord, which I believe the noble Baroness, Lady Williams, moved in Committee. I have one query on the drafting which centres on the word "it". I believe that the word should be "power". Obviously, the remedial order will not be made except where it is deemed necessary to correct the incompatibility with Convention rights. The Government will not amend the legislation except where necessary to correct an incompatibility, but it is important to make clear that it is the power which is deemed necessary.
The Lord Chancellor: My Lords, I confess that I am a little puzzled. Your Lordships will appreciate that the amendment under consideration is an amendment to Clause 11, not Clause 10. Therefore, the subject matter under consideration is correctly addressed by the noble and learned Lord, Lord Simon of Glaisdale. Clause 10 allows a remedial order to be made to amend a piece of primary legislation so as to remove an incompatibility that has been found to exist in one of its provisions. Clause 11(1)(a) provides that a remedial order under Clause 10 may contain such incidental, supplemental, consequential and transitional provisions as the person making it considers appropriate. Clause 11(2)(a) provides that the power to make incidental changes includes power to amend or repeal primary legislation, including primary legislation other than that which contains the incompatible provision.
Thus, Amendment No. 48 bites on the power to make incidental changes to legislation in addition to the main changes necessary to remove the incompatibility. I gained the impression from the language used by the noble Lord, Lord Lester, that he believed his amendment would alter the whole basis for remedial orders. But they are made under Clause 10 and this amendment relates only to the ancillary powers in Clause 11.
I hope that I can reassure your Lordships, as I and my noble friend Lord Williams of Mostyn sought to do both at Second Reading and in Committee, that the Bill contains sufficient safeguards to meet concerns about the powers conferred under Clauses 10 and 11. These powers have been carefully tailored to ensure that a remedial order can perform the job that it is designed to do; namely, to remove incompatible provisions of legislation in an effective and tidy way. A remedial order would not be used, and in our view could not be used, for any other purpose.
Lord Simon of Glaisdale: My Lords, would not the word "consequential" be sufficient to tidy up the amendment?
The Lord Chancellor: My Lords, I will explain in a moment the effect of Clause 11(1)(a). It provides that a remedial order under Clause 10 may contain such incidental, supplemental, consequential and transitional provisions as the person making it considers appropriate.
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Clause 11(2)(a) adds that this provision includes a power to amend or repeal primary legislation including primary legislation other than that which contains the incompatible provision.
It is in relation to that power only that the amendment would bite. It would limit the power to make incidental, supplemental and consequential changes to primary legislation which were themselves deemed necessary to correct an incompatibility with the Convention. In doing so it would prevent the amendment or repeal of provisions of other primary legislation that are not in themselves incompatible but whose amendment or repeal would be a natural or sensible corollary to the successful curing of the incompatibility of the legislation found to have been wanting. In other words, the effect of the amendment would negate the purpose of the provision which is made in Clause 11 for changes incidental to this which are needed to correct the incompatibility.
For example, there may be cases where changes to other legislation which is not itself incompatible, are necessary not to remove an incompatibility but for consequential or supplemental purposes. For example, if a section of an Act has been deleted, any references to that section in other Acts would be otiose and should also be removed. Changes under this category would be ruled out by the amendment.
The Government understand the desire to ring-fence the powers in Clauses 10 and 11 so far as possible, consistent with the purposes of the remedial order; but we believe that the existing provisions provide appropriate safeguards. I will list the elements. The order-making procedure is only available where a declaration of incompatibility under Clause 4 or a Strasbourg court judgment has been given or there is an urgent need to replace subordinate legislation quashed on convention grounds. Crucially, for present purposes, the power is to be used to remove incompatibility found by the UK or the Strasbourg court, and plainly it cannot be used in any connection for any other purpose.
The power to make incidental, supplemental, consequential and transitional provision is not novel; it is a well precedented supplementary vires provision. I emphasise "supplementary". It is not a basis on which a Minister could properly tackle some unrelated issues. Supplementary provision can only be added to a Clause 10 order, and the object of the Clause 10 order must be to remove the incompatibility found by the United Kingdom or Strasbourg court. In other words, while the power extends to amending other legislative provisions, it is heavily circumscribed because of the plain purpose of Clause 10.
Our view is that it is necessary to have the extra powers in Clause 11 in addition to the main powers in Clause 10 if the job is to be done properly and remedial orders are to make proper sense. We think that the amendment would make this impossible.

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The purpose of Clause 10(2) and Clause 11(1)(a) is to ensure that the removal of an incompatibility is complete so far as the statute book goes. As we see it, that is all that there is to it, and on that basis I hope the noble Lord will withdraw the amendment.
Lord Lester of Herne Hill: My Lords, that was a most powerful and impressive reply, which I should like to read in Hansard and think about tomorrow. If I have been guilty of a certain confusion of thought, then I plead guilty as between Clause 10 and Clause 11. I understand why the noble and learned Lord the Lord Chancellor had gained that impression of what I said.
I do not share the view of noble Lords who have criticised Clauses 10 and 11 as creating a vast Henry VIII clause with jackboots added on, doing violation either to parliamentary accountability or rule of law. I made clear at an early stage that I approve of this fast track procedure for the reasons given by the Lord Chancellor—that is to say, it is to uphold the rule of law to ensure that a declaration of incompatibility in judgments of the European Court are speedily and effectively translated by Parliament into effective remedies required, among other things, by Article 13 of the convention. Therefore I have no disagreement with the purpose of Clauses 10 and 11.
Much of what the noble and learned Lord said sounded like a judgment of the Appellate Committee in the House of Lords in an argument of vires about whether a particular form of delegated legislation came within or outside Clauses 10 and 11. I believe that the law Lords would be most likely, if not certain, to give a judgment in that way.
We have been given assurances, which I should like to consider further, about the need to ring-fence the safeguards the Lord Chancellor has indicated and the difficulty of seeking to limit the remedial orders in Clause II by a test of necessity when one does not, for obvious reasons, seek to limit the power to take the legal action by a similar test of necessity in Clause 10.
I hope I will not be considered by noble Lords who have been generous enough to support this amendment to have sold the pass; but I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Procedure]:
Lord Henley Lord Henley moved Amendment No. 49:
Page 7. line 7, at beginning insert ("subject to the provisions of subsections (1 A) to (1 D)").
The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 52, 53, 54 and 59. We have briefly discussed the matters in relation to the earlier amendment which, sadly, the noble Lord, Lord Lester of Herne Hill, did not press to a Division. The other amendments in this group, Amendments Nos. 50 and 55 and 51, 56, 57 and 58, are all different approaches to the same issue and I trust that on this occasion we have all found the right clause to put them in. Even if they are not in the right clause I
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hope that the Government will not address the issue tonight because that matter could be resolved on another occasion.
I suspect that the group of amendments in my name and in the name of my noble friend are nearest to the approach put forward by the Delegated Powers Scrutiny Committee.
I moved similar amendments at Committee stage and therefore I do not intend to speak at great length on these amendments. I received a degree of support from the noble Baroness, Lady Williams, and then I offered her a degree of support on her amendments, just as I do on these amendments. Having debated the amendments, I have made some modifications to appease the Government by reducing the period of delay from 60 days to 40 days; but I suspect that that was unnecessary because the Government's amendments now seem to accept a 60 day delay period. I made the concession but it was not necessary.
At Committee stage I made reference to the report of the Delegated Powers Scrutiny Committee. I will not repeat paragraph 24 of that report except to remind noble Lords of the sentence which stated that the House may wish to consider whether there is a case for developing a new procedure to scrutinise such orders modelled on that for the second stage parliamentary scrutiny of deregulation orders.
It is important that Parliament has a means of amending these orders. That is what my amendments do, and what, I regret to say, the other amendments do not do. It would obviously be possible, if one followed the lines pursued by the Minister's amendments, for the Executive to produce amendments following the consultation period. That is not sufficient. This is one of those occasions where it is important that Parliament itself can make amendment to the orders before they go through.
Committee stage was some time ago, and since then we have had the final stages, which the Minister will remember, of the Special Immigration Appeals Commission Bill. That Bill came to this House for the last time on 2nd December last year, and, as I understand it, it was designed to rectify a problem following a judgment of the European Court of Human Rights.
As the Minister will remember, my noble friend Lady Blatch, who was at the time dealing with Home Office matters, on a number of occasions pressed amendments to that Bill, but they were resisted in this House by the Minister. Following my noble friend failing to move, as it were, the Minister, but no doubt on his advice, his colleagues in another place agreed largely to accept the points put forward by my noble friend. Again, I hope on his advice, his honourable and right honourable friends in another place accepted the spirit of her amendments.
Without my amendment, it would not be possible for Parliament to make those amendments. No doubt the Minister will respond that it would be possible for the Government, should they wish, to use primary legislation to rectify those problems. Similarly, it would be possible for the Executive, in moving the orders

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following that procedure to make amendments, but it would not he possible for this House or another place themselves to put right the wrong. That is why I believe that my amendments are the right way to take forward this matter. I beg to move.
8.30 p.m.
Lord Goodhart: My Lords, I have been asked by the noble Baroness, Lady Amos, whose name stands first in the list of those tabling Amendments Nos. 50 and 55, but who is unable to be here tonight, to speak to those amendments on her behalf.
On the issues raised by the amendments, the parties seem to have been moving, to some extent, towards a consensus, but unfortunately they have not quite reached it. We who have tabled the amendments, welcome the amendments to be moved by the Minister. We also have a good deal of sympathy with the amendments tabled by the noble Lord, Lord Henley.
Two principles are involved. One is that there should be an opportunity to scrutinise a draft remedial order before it takes effect; the second is that there should be power to revise or amend a draft order in the light of defects shown up by that scrutiny.
I shall look first at the question of scrutiny. It will of course be for the Government to decide whether to invoke, in any particular instance, the fast-track procedure. If they do so, the purpose of the scrutiny will not be to review that decision, and decide whether or not it was correct, but to look at the draft of the proposed order to see whether it is an appropriate and effective way of correcting the incompatibility which has been discovered by the court, and to ensure that the order does nothing more than correct that incompatibility.
Wide public consultation will not be needed. What will be needed is expert scrutiny by a body familiar with parliamentary draftsmanship. That body should be a human rights committee, either of each of the two Houses or a joint committee of both. I recognise that it is of course for Parliament to decide whether to set up such a committee, and not for legislation. Our amendments are intended to emphasise the importance of ensuring that there is scrutiny by an appropriate committee, without being prescriptive as to the nature of that committee. So far as Amendments Nos. 52 and 53 seek to achieve the same purpose, we of course agree with them.
The Government's White Paper on the Bill made it clear that they would welcome the creation of a parliamentary human rights committee or committees. I assume that that remains their view. I should welcome confirmation of that and also that the Government see scrutiny of draft remedial orders as one of the functions of a parliamentary human rights committee.
I turn now to the question of amendment. It is surely pointless to have scrutiny if the result of the scrutiny cannot be taken into account in deciding the final form of the order. It is not generally open to either House to amend the text of a draft Order in Council. The amendment moved by the noble Lord, Lord Henley, is an ingenious solution to that problem, though in our view it involves some element of overkill and may lead to unnecessary delay, because it will require, before the order can come
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into effect, two successive 40-day periods—one involving the looking at what may be called a pre-draft and then the actual draft.
I hope that the fast-track procedure will be rarely needed, and that when it is needed it will often be easy to see what amendment is needed to ensure the compatibility of the existing legislation. For that purpose, an 80-day stand delay will not be needed. But it may not always be as simple as that. It is important that the Government should have power to amend an Order in Council by means short of the withdrawal of the existing order and the laying of a new order.
In Committee, the noble and learned Lord the Lord Chancellor took the view that Clause 12 was adequate as it stood. He also at that stage took the view that a 60-day period of consideration was unnecessary. On the latter point, the Government's view has now changed. Amendment No.58 will extend the period for consideration to 60 days. Presumably the point of the Government's amendments, extending the period of consideration to 60 days, is to enable more detailed consideration of the draft Order in Council to take place. But what is the point of having a period for scrutiny and consultation if the draft has already been laid before the House in a form which can be amended only by withdrawal and relaying?
The consultation process may well make it clear that the order is capable of improvement. I would ask the noble and learned Lord the Lord Chancellor to reconsider whether it would be possible to introduce a procedure to enable that order to be revised after it has been laid before the House in draft.
Baroness Williams of Crosby: My Lords, this is an important group of amendments. One of the reasons why the noble Baroness, Lady Amos, and I moved the original Amendments Nos. 50 and 55 was to give a substantial parliamentary element to the consideration of remedial orders. I greatly welcome the new amendment tabled by the Minister. I have just one reservation. It is the one made by my noble friend Lord Goodhart; that is, it makes no reference to the scrutiny by Parliament as distinct from consideration by the Executive.
I recognise that the Minster has gone some way towards meeting the point raised in Committee by extending the period of consideration to 60 days, but I should be most grateful if he, or his noble and learned friend the Lord Chancellor, would say a little more. I recognise the difficulties because the noble and learned Lord the Lord Chancellor has said more than once that this must be a matter for Parliament; but if it is a matter for Parliament it is one where the Government's assurances and statements will be taken into account. Perhaps a little more could be said about how the Government consider the possible responsibilities and developments of the committee were it to be set up.
The Lord Chancellor: My Lords, I certainly agree with the noble Baroness that this is an important group of amendments. In Committee your Lordships discussed in some detail the procedure for making a Clause 12 remedial order. There was undoubtedly feeling that the procedure should be amended to make it easier for

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Parliament to exercise its scrutinising role. Amendments were tabled on that occasion to lengthen the period for consideration of remedial orders to provide for the scrutiny by a parliamentary committee and to enable them to be amended by Parliament. Similar amendments have been tabled for Report. They are before your Lordships again. In Committee, we undertook to reflect on the concerns that had been expressed. As your Lordships will see, we have responded and we have concluded that some changes to the procedure should be made, although we have not adopted all the suggestions made in Committee. Nonetheless, we hope that the government amendments will give a measure of satisfaction.
The first change we propose relates to the period for consideration of draft remedial orders. Under Clause 12(1)(a), no remedial order may be made unless a draft has been approved by Parliament. No period of time is prescribed for this procedure, so it would be possible for a draft to be approved, and an order made, very soon after the draft was laid before Parliament. The effect of government Amendments Nos. 51, 57 and 58 is to provide a minimum period of 60 days' consideration before a draft of the order may be approved by Parliament. The noble Baroness, Lady Williams of Crosby, was good enough to call attention to that. This is designed to allow interested parties an adequate period of time in which to comment upon a draft remedial order. It responds to amendments tabled in Committee by the noble Lord, Lord Meston, and to one aspect of the amendments tabled by the Opposition.
I ought to point out that the government amendments depart from those tabled in Committee in not providing a 60-day period for the consideration of urgent remedial orders made under clause 12(1)(b). In these cases the order will expire after 40 days unless approved by Parliament. These orders are to be made without prior parliamentary approval, and we do not want to extend the time in which they may have effect without such approval. A 60-day period for consideration of these orders would simply delay the point at which Parliament could, if it chose, express its disapproval of the order.
The other change that we propose is in the government Amendment No.56. It would require a remedial order, or draft, to be accompanied by an explanatory statement. This would contain particulars of the court case in which the declaration of incompatibility had been made, and would seek to explain what the incompatibility was. It is designed, therefore, to facilitate the consideration of remedial orders by Parliament.
We think this would be helpful because we still believe, as we said in Committee, that it would not be appropriate to create a statutory, and I emphasise statutory, requirement for the scrutiny of remedial orders by a parliamentary committee, as the amendments in the name of the noble Baroness and others would do. We assume that this will be the parliamentary committee on human rights, and we have said before, and I say again, that we would welcome the establishment of such a committee, but it is a matter for Parliament. We do not want to anticipate what the functions of that Committee might be. As we said in Committee, it is not normal practice for provisions of this kind to be set out in statute, and I have to say that I do not think there is a case for departing from
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the normal practice on this occasion. But I made perfectly plain what the position of the Government is in relation to the establishment of a parliamentary committee on human rights. Nor do we think it necessary to provide for the amendment of remedial orders once made or laid in draft, as proposed in the Opposition amendments. Statutory instruments cannot be amended. An instrument has to be revoked, remade or another amending instrument made, and remedial orders are no different. The advantage of the draft affirmative resolution procedure in Clause 12 is that Parliament can decline to approve so the order cannot be made and a further order would then have to be prepared to meet Parliament's concerns; otherwise the incompatibility desired to be removed would simply continue. The explanatory document that we propose will make it possible for Parliament to have an informed debate about the incompatibility which has been exactly identified by a court and what the Government's proposals are for removing it.
In proposing these changes I can say that I am conscious of looking ahead to the possible establishment of a parliamentary committee on human rights. Such a committee, I can readily say, would be able to look afresh at the issue of procedure in the light of the experience gained in operating these provisions. If it recommended that a closer Parliamentary scrutiny of remedial orders was needed, I am sure that the Government would be very much influenced by that. But for the present, although we cannot accept the Opposition amendments or those in the name of the noble Baroness, and others, I hope the House will accept, particularly in the light of the explanations that I have given, that we do offer the government amendments for approval by your Lordships' House in a spirit of conciliation and as improvements which go some considerable way towards meeting the concerns expressed in committee. I beg to move.
8.45 p.m.
Lord Henley: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for having gone just a little way towards meeting some of the demands and requests made both by myself and by noble Lords from the Liberal Democrat Benches.
However, I have to say that I do not think that the noble and learned Lord went far enough on this occasion. I referred earlier, as did other noble Lords, to the report from the Delegated Powers and Deregulation Committee. I can assure the noble and learned Lord that whenever that Committee made recommendations when we were in government we were always most scrupulous in taking up those recommendations and in acting upon them. It would be right if we allowed the House at least to have the opportunity on this occasion to consider the matter.
I appreciate that the noble and learned Lord has made a number of concessions. He has lengthened the period of delay from 40 days to 60 days at a time when I was suggesting bringing it down from 60 days to 40 days. I do not think that the actual period of time available for scrutiny of these orders is a matter of great importance. What I do believe is important is that Parliament itself, and not just the Executive, has some power, some ability, for developing a procedure whereby it can amend these orders. That is what was recommended by the Delegated

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Powers and Deregulation Committee and that is what I think this House ought to be given the opportunity to consider this evening. For that reason I do not wish to withdraw these amendments. I wish to test the opinion of the House.
8.50 p.m.
On Question, Whether the said amendment (No. 49) shall he agreed to?
Their Lordships divided: Contents, 14; Not-Contents, 63.

Division No.3

CONTENTS

Annaly, L.

Jenkin of Roding, L.

Astor of Hever, L.

Kingsland, L.[Teller.]

Burnham, L.

Lucas of Chilworth, L.

Byford, B. [Teller]

Lyell, L.

Clanwilliam, E.

Naseby, L.

Coleraine, L.

Renton, L.

Henley, L.

Rowallan, L.

NOT-CONTENTS

Acton, L.

Hunt of Kings Heath, L.

Allenby of Megiddo, V.

Irvine of Lairg, L. [Lord Chancellor.]

Amos, B.

Archer of Sandwell, L.

Janner of Braunstone, L.

Bassam of Brighton, L.

Jay of Paddington, B.

Berkeley, L.

Kennedy of The Shaws, B.

Blackstone, B.

Levy, L.

Borrie, L.

McIntosh of Haringey, L. [Teller.]

Brooke of Alverthorpe, L.

Mallalieu, B.

Carter, L. [Teller.]

Mishcon, L.

Chandos, V.

Molloy, L.

Cledwyn of Penrhos, L.

Monkswell, L.

Clinton-Davis, L.

Montague of Oxford, L.

Currie of Marylebone, L.

Murray of Epping Forest, L.

Davies of Oldham, L.

Pitkeathley, B.

Desai, L.

Prys-Davies, L.

Donoughue, L.

Ramsay of Cartvale, B.

Dormand of Easington, L.

Randall of St. Budeaux, L.

Dubs, L.

Rea, L.

Falconer of Thoroton, L.

Rendell of Babergh, B.

Farrington of Ribbleton, B.

Richard, L. [Lord Privy Seal.]

Gilbert, L.

Rogers of Riverside, L.

Gordon of Strathblane, L.

Serota, B.

Gould of Potternewton, B.

Sewel, L.

Hardie, L.

Simon, V.

Hardy of Wath, L.

Straholgi, L.

Haskel, L.

Symons of Vernham Dean, B.

Hayman, B.

Thomas of Macclesfield, L.

Hollis of Heigham, B.

Walker of Doncaster, L.

Hoyle, L.

Wedderbum of Charlton, L.

Hughes, L.

Whitty, L.

Hughes of Woodside, L.

Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendment No. 50 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 51:
Page 7, line 8, after ("Parliament") insert ("made after the end of the period for consideration").
On Question, amendment agreed to.
[Amendments Nos. 52 to 55 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 56 to 58:
Page 7, line 17, at end insert—
("( ) A remedial order (or draft) laid before Parliament must be accompanied by a statement containing—

(a) an explanation of the incompatibility which the order seeks to remove, including particulars of the relevant declaration, finding or order: and

(b) a statement of the reasons why the person making it (or proposing to make it) considers an order in those terms appropriate.").

Page 7. line 18, leave out ("In subsection (2)").
Page 7, line 18. after ("means") insert—

("(a) in subsection (1), the period of sixty days beginning with the day on which the draft was laid, and

(b) in subsection (2),").

The noble and learned Lord said: My Lords, I beg to move.
Lord Coleraine: My Lords, the noble and learned Lord has spoken to this amendment with Amendment No. 49. I should have liked to respond after he had spoken on that group of amendments, as I should have been entitled to do. However, I felt that it would be confusing to the House if I tried to intervene between the noble and learned Lord and my noble friend winding up on Amendment No. 49.
At this time, when the Government are being so generous in so many ways on this Bill, would it not be a collateral advantage for the statement to be made as set out in Amendment No. 56 to extend not only to the reasons why it is appropriate for the order in those terms to be made, but also why it is appropriate to proceed by way of remedial order?
The Lord Chancellor: My Lords, perhaps I may write to the noble Lord on that subject.
On Question, amendments agreed to.
[Amendment No. 59 not moved.]
Clause 13 [Other rights and proceedings]:
Lord Williams of Mostynmoved Amendment No. 60:
Leave out Clause 13 and insert the following new clause—
SAFEGUARD FOR EXISTING HUMAN RIGHTS
(".A person's reliance on a Convention right does not restrict—

(a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom, or

(b) his right to make any claim or bring any proceedings which he could make or bring apart from sections 7 to 9.").

The noble Lord said: My Lords, this amendment is designed to clarify the purpose of Clause 13 and to remove any possible misunderstanding. Clause 13 as presently drafted, and as it would be in this new clause, is simply to provide a saving for other human rights. It is there to ensure that if a person has existing rights, nothing in this Bill shall detract from them in any way. We believe that this amendment brings that out more clearly than the current formulation. That, briefly, is the purpose of the amendment.

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There are, of course, two kinds of relationship created in the Bill between convention and domestic law: the interpretive principle in Clauses 3 to 5, and the right to rely on convention rights against a public authority in Clauses 6 to 9. We do not wish to have any misunderstanding. We believe that the new formulation makes the position, as was intended, rather plainer. We hope that your Lordships will find the amendment to be a useful clarification. I beg to move.
9 p.m.
Lord Lester of Herne Hill: My Lords, I greatly welcome the amendment. I do so because it makes clear that which is already implicit in the Bill—namely, that the European convention contains a floor of minimum rights guaranteed under international law, but does not create a ceiling. Therefore, if Parliament chooses to go further or if the common law goes further in protecting our basic rights and freedoms, which are inherent in us as citizens and human beings, the convention and the Bill are not to restrict that. The fact that that is a minimum and not a maximum is made clear in the convention itself. It does not mean that there will never be conflict and difficult questions to be resolved as a result of people arguing that, say, the Race Relations Act is an infringement of some basic right in the convention, or other such points. It is important that one does not concentrate only upon the convention as a guarantee of rights. As the amendment makes clear, the common law will continue to develop in a creative way and no doubt the convention will be used, as the Bill makes clear, in the course of developing the common law.
I, for one, believe that one should approach convention rights through out common law and through the statute book, not round the common law or the statute book. That is to say, one intertwines convention rights into our domestic legal system. One of the many virtues of the Bill is the fact that those who have thought it through and drafted it have found ways to create very subtle connections between convention rights and our own statute law and common law. This modest looking amendment is designed to make all of that clear. It is to be welcomed.
On Question, amendment agreed to.
Lord Lester of Herne Hillhad given notice of his attention to move Amendment No.61:
After Clause 13. insert the following new clause—
("Human Rights Commissioner
HUMAN RIGHTS COMMISSIONER
.—(1) The Secretary of State may by order made by statutory instrument appoint a Commissioner, to be known as the Human Rights Commissioner, to perform any or all of the following functions—

(a) to provide advice or other assistance, including legal and financial assistance, to persons—

(i) bringing, or proposing to bring, proceedings under section 7; or

(ii) relying or proposing to rely upon a Convention right in any proceedings,
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provided that the Human Rights Commissioner considers that such proceedings raise a question of principle of general public importance;

(b) to bring proceedings under section 7 or intervene in proceedings—

(i) brought under section 7: or

(ii) where a Convention right is relied upon,
provided that the Human Rights Commissioner considers the bringing of such proceedings, or such intervention, to be in the furtherance of the main purposes of this Act;

(c) to undertake research and educational activities connected with the main purposes of this Act; or

(d) to review and report to the Secretary of State on the appropriate machinery to give effect within the United Kingdom to the Convention rights set out in Article 14 of the Convention (prohibition of discrimination).

(2) No order may be made under subsection (1) unless a draft of the order has been laid before, and approved by, each House of Parliament.").
The noble Lord said: My Lords, for the reasons that I outlined at the start of our deliberations today, I shall not move the amendment on this occasion but will return to the matter on Third Reading.
[Amendment No. 61 not moved.]
Clause 18 [Appointment to European Court of Human Rights]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 62:
Page 10, line 5, leave out ("12") and insert ("12(1) to (6)").
The noble and learned Lord said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 63, 64, 67 and 74. The issue which the amendments address was most helpfully drawn to the attention of the House in Committee on 27th November by the noble and learned Lord, Lord Ackner, when he moved his Amendment No. 97, as it was then, and spoke in the subsequent debate. I hope that the noble and learned Lord will regard the amendments that I now move as a completely satisfactory response by the Government to the issues which he then explored.
The Bill makes provision for the appointment of a UK judge to the European Court of Human Rights. It is possible, although not necessary, that the appointment will be made from among the ranks of serving judges. If that happens, the judge will be in a unique situation; and, in announcing the pension arrangements that will apply to him, I emphasise that no precedent is being set that could apply to any other position. The Government are concerned to ensure that, should a judge already serving in the United Kingdom be the preferred choice for appointment to the ECHR, he or she should not be adversely affected in pension provision when compared to every other judge serving in the UK. The amendments taken together ensure that a UK judge who is for a time serving in the ECHR will be treated for pension purposes as if he had not left his UK office.
Amendment No. 62 paves the way for that process by restoring the provision about pensions in the Supreme Court Act. It is, as I have explained, no longer appropriate to apply the rest of Section 12 to an ECHR judge, as it would mean paying his United Kingdom salary in addition to his European salary, even though he was not actively performing any judicial duties in the

413
UK. Therefore, he will not have two salaries, but only his European salary. However, it is obviously right that his pension rights should not be prejudiced.
As it is our intention that his eventual pension should be paid as if he had not had a period of service at the ECHR, it is right that the provision in Section 12(7) should remain applicable. Amendment No. 64 removes the general power to make pension provision for the ECHR judge; this is because it is replaced with a much more specific duty to make such provision. In changing the power to make arrangements to a duty to make specific types of arrangements, I am confident that the concerns expressed in Committee by the noble and learned Lord, Lord Ackner, will be met.
Amendment No. 74 introduces a new schedule to the Bill, Schedule 3. This schedule contains the detail of how that pension provision will be made. It is intended that orders made under Schedule 3 will be subject to the negative resolution procedure, and Amendment No. 67 gives effect to this. Schedule 3 imposes a duty on the relevant Minister, who will usually be the Lord Chancellor, to make an order making pension provision for any serving UK judge appointed as a judge of the ECHR. It further provides that any such order must allow a judge who is a member of a judicial pension scheme to remain in that scheme, that the terms of membership must be as if he had not been appointed to the ECHR and that entitlement to benefits will be calculated in accordance with the salary as increased from time to time of the UK office which that judge holds. The order may also contain provisions as to how contributions will be collected from the UK judge. This is needed because contributions towards dependants' benefits are normally deducted from the judicial salary received by a judge, but the judge serving in the ECHR will not be receiving a salary in this country so that alternative arrangements will be needed for the collection of these contributions.
There is also power to amend relevant judicial pension legislation in order to facilitate the proper administration of a scheme. This will enable the modification or disapplication of pre-existing legislative provisions, should this prove necessary, to enable suitable administrative arrangements to be made to give effect to the policy. It is not envisaged that this power will be needed to any extent, if at all, but the pensions legislation is inherently complex and such a power—limited for this purpose—seems prudent. These amendments together will ensure that a UK judge appointed to the ECHR will in due course receive the same pension as if the ECHR appointment had not taken place. I believe that this will remove what might have been a powerful disincentive for some of our most able and highly qualified candidates from the judiciary to seek appointment to the ECHR. I beg to move.
Lord Ackner: My Lords, in Committee, in my capacity as judicial shop steward emeritus, I raised the amendments which have resulted in my noble and learned friend the Lord Chancellor tabling on Report the amendments which he has just described. They were
414
important amendments because they dealt with a constitutional matter of some importance. Section 12(3) of the Supreme Court Act 1981 states,
"Any salary payable under this section may he increased, but not reduced, by a determination or further determination under this section".
Pension is but deferred salary. I was concerned that the judicial pension, whose value has been much reduced by the judicial retirement and pensions Bill by requiring a judge to work 20 years instead of 15 years to achieve his 50 per cent. pension—totally out of line with pension provisions in Commonwealth jurisdictions—should not be further prejudiced if a judge were to accept an appointment at the Strasbourg Court. I therefore raised the objection that if the noble and learned Lord the Lord Chancellor were to remove the protection of Section 12(3), something must be put in its place.
I am deeply grateful to the noble and learned Lord the Lord Chancellor for having fought my battle with those who normally would defeat the claim for the judicial pension to be safeguarded, and to have fought it so well, so ably and so effectively. It is an indication of the generosity of the noble and learned Lord the Lord Chancellor, although there are occasions when it is hidden so deeply that one does not immediately bear it in mind. I am most grateful.
Lord Lester of Herne Hill: My Lords, during the period since the creation of the European Court and Commission of Human Rights we have been fortunate in the quality of members of both institutions coming from this country. One recalls, for example. the very first British judge to that institution, the great international lawyer, Lord McNair, who was, I believe, the grandfather of my noble friend Lord McNair. One also recalls Sir Humphrey Waldock and Sir James Fawcett, who was, I believe, for 20 years a member of the European Commission of Human Rights. One comes to the present incumbents. I mention judges such as Sir Vincent Evans. and now Sir John Freeland, and Nicolas Bratza QC as the commissioner. They have all performed a vital public service, not always as well recognised in this country as it might have been. Most of them have been former senior legal advisers to the Foreign Office. None of them has ever been a serving British judge, or former British judge. In some ways that has been a pity because a more significant judicial contribution might have been made if we had had some of our great British judges serving in the European Court. There would have been a contrast with membership of the Court of Justice of the European communities.
I very much welcome these provisions which will enable effect to be given to some important principles. First, it is essential that members of this new European Court of Human Rights, who will become full time from November when the Eleventh Protocol comes into force, should be of the highest calibre, of outstanding quality. Some of us are concerned that with such a large court of perhaps 40 judges drawn from across Europe—east, west and central—it would be difficult to obtain judges of the highest quality.

415
Secondly, as the noble and learned Lord the Lord Chancellor has indicated, it is important that we ensure that there are no disincentives so that distinguished British jurists, whether drawn from the Bench or otherwise, are not deterred from forming that critical mass of intellectual and moral leaders who are needed if the new court is to succeed.
I therefore think that these are important provisions. They will facilitate those objectives. I ask this question only out of curiosity. Do we have similar provisions, or are they needed in respect of members of the European Court of Justice to ensure similar treatment? In my ignorance, I do not know whether similar provisions are in place. In practice, there seems to be no such problem for the European Court of Justice. It has always had judges of outstanding quality who have often sat as judges in this country before going to Luxembourg. These provisions apply only to the Strasbourg court for the good reason that the Bill is concerned only with the European Convention.
I apologise for taking so long in explaining the provisions. I welcome the amendments.
On Question, amendment agreed to.
9.15 p.m.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 63 and 64:
Page 10, line 26, at end insert—
("( ) Schedule (Judicial Pensions) makes provision about judicial pensions in relation to the holder of a judicial office who serves as a judge of the Court.").
Page 10, leave out lines 28 to 30.
The noble and learned Lord said: My Lords, I beg to move Amendments Nos. 63 and 64. If Amendment No. 64 is agreed to I cannot call Amendment No. 65.
On Question, amendments agreed to.
Clause 20 [Orders under this Act]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 66:
Page 11, line 8, after ("1(4)") insert 7(9A)").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 67:
Page 11, line 10, after (" 18(6)") insert ("or Schedule (Judicial Pensions)").
On Question, amendment agreed to.
Clause 21 [Interpretation, etc.]:
Lord Henley Lord Henley moved Amendment No. 67A:
Page 11, line, 26 at end insert ("and includes any Act of the Parliament of England or of the Parliament of Scotland passed before 1st May 1707 ").
The noble Lord said: My Lords, the amendment was put down at the suggestion of my noble and learned friend Lord Mackay of Drumadoon. It is merely a probing amendment. I hope that the noble and learned Lord the Lord Chancellor will be able to satisfy me on this matter.
He will see that in the Bill the words "public general Act" are used. Our concern is whether the phrase "public general Act" covers Acts of Parliament from the English Parliament or the Scottish Parliament passed before the Act of Union in 1707. I am advised that there are still some Acts on the statute book and could therefore be relevant. We were unsure whether "public general Act" covered those cases. An assurance from the noble and learned Lord that the words cover Acts of Parliament passed by both those Parliaments before 1707 would satisfy us. I beg to move.
The Lord Advocate (Lord Hardie): My Lords, I think it is fair to say that we are dealing here with what is a purely drafting point. This amendment would insert into the definition of primary legislation in Clause 21 of the Bill an express reference to Acts of the Parliaments of England and Scotland passed before the union of England and Scotland in 1707. As the noble Lord opposite explained, the concern is to ensure that such Acts are treated as primary rather than subordinate legislation under the Bill. At present the Bill defines primary legislation as including a "public general Act" but it does not further define what is meant by a public general Act. In fact the term is nowhere defined in legislation.
The question whether the definition of primary legislation should expressly include references to the various pre-union Parliaments was one which the Government considered before the Bill was introduced.
The issue arises not only in connection with the former Parliaments of England and Scotland, to which this amendment refers, but also in connection with the Parliament of Great Britain which existed in the period from 1707 to 1801; that is, after the Union of England and Scotland and before the union with Ireland, and in connection with the Parliament of Ireland in the period before 1801.
As noble Lords may be aware, the treaties of union themselves affirm the continuing validity of former legislation so far as not altered or repealed by the successor Parliaments. Article XVIII of the Preamble to the Union with Scotland Act 1706, for example, preserves (with certain exceptions) the validity of all,
"laws in use within the kingdom of Scotland".
Similarly there is no doubt that pre-1801 Acts of the Parliament of Ireland form part of the body of legislation in Northern Ireland. That follows from Section 1, Eighth Article of the Union with Ireland Act 1800 and the express savings provided by Section 61 of the Government of Ireland Act 1920.
We concluded that there was no need to make express provision on the point raised. The Bill invites a judge presented with a piece of legislation to conduct a very simple exercise to decide whether the legislation is primary or secondary. There can be no serious risk that the enactments of old Parliaments which preceded the United Kingdom Parliament in its present form could ever be regarded as subordinate legislation. In our view the enactments of those Parliaments must be primary

417
legislation for the purposes of this Bill. In the light of that explanation I invite the noble Lord to withdraw his amendment.
Lord Henley: My Lords, I have every intention of withdrawing the amendment, and I am grateful to the noble and learned Lord the Lord Advocate for staying here all evening purely to deal with this one amendment. I can only offer an apology to the House that, as a Peer of Ireland as well as a Peer of the United Kingdom, I failed to include Acts of the Irish Parliament and Acts of the Parliament of Great Britain that existed between 1707 and 1801. I shall not return to this matter at Third Reading. I believe that the assurances given to me by the noble and learned Lord are perfectly correct. However, should the issue arise again, I shall remember, when putting forward such amendments, to include other Parliaments as well as those that I did include. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68 not moved.]
Clause 22 [Short title, commencement, application and extent]:
[Amendment No. 69 not moved.]
Schedule 1 [The Articles]:
[Amendments Nos. 70 and 71 not moved.]
[Amendments Nos. 72 and 73 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 74:
After Schedule 2. insert the following new schedule—
("SCHEDULE JUDICIAL PENSIONS
Duty to make orders about pensions
1.—(1) The appropriate Minister must by order make provision with respect to pensions payable to or in respect of any holder of a judicial office who serves as an ECHR judge.
(2) A pensions order must include such provision as the Minister making it considers is necessary to secure that—

(a) an ECHR judge who was, immediately before his appointment as an ECHR judge, a member of a judicial pension scheme is entitled to remain as a member of that scheme;

(b) the terms on which he remains a member of the scheme are those which would have been applicable had he not been appointed as an ECHR judge; and

(c) entitlement to benefits payable in accordance with the scheme continues to be determined as if, while serving as an ECHR judge, his salary was that which would (but for section 18(4)) have been payable to him in respect of his continuing service as the holder of his judicial office.

Contributions
2. A pensions order may, in particular, make provision—

(a) for any contributions which are payable by a person who remains a member of a scheme as a result of the order, and which would otherwise be payable by deduction from his salary, to he made otherwise than by deduction from his salary as an ECHR judge; and

(b) for such contributions to be collected in such manner as may he determined by the administrators of the scheme.

Amendments of other enactments
3. A pensions order may amend any provision of, or made under, a pensions Act in such manner and to such extent as the Minister making the order considers necessary or expedient to ensure the proper administration of any scheme to which it relates.
Definitions
4. In this Schedule—
"appropriate Minister" means—

(a) in relation to any judicial office whose jurisdiction is exercisable exclusively in relation to Scotland, the Secretary of State; and

(b) otherwise, the Lord Chancellor;

"ECHR judge" means the holder of a judicial office who is serving as a judge of the Court;
"judicial pension scheme" means a scheme established by and in accordance with a pensions Act;
"pensions Act" means—

(a) the County Courts Act (Northern Ireland) 1959;

(b) the Sheriffs' Pensions (Scotland) Act 1961;

(c) the Judicial Pensions Act 1981; or

(d) the Judicial Pensions and Retirement Act 1993; and

"pensions order" means an order made under paragraph I.").
On Question, amendment agreed to.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 75:
Line I, leave out ("further") and insert ("domestic").
The noble and learned Lord said: My Lords, this is an amendment to the Title of the Bill. I moved it in the same form in Committee very late at night. I had hoped to move it before a full House this evening. There is nobody on the Government Back-Benches, so far as I can see. I believe that the noble Baroness, Lady Williams, has been faithful on the Liberal Democrat Benches, and there may be somebody else. I did the noble Lord, Lord Monkswell, a disservice; I did not see him enter the Chamber. As usual, the noble Lord, Lord Renton, has rightly come to invigilate on questions of statutory construction.
Tribute has rightly been paid to the draftsmanship and construction of the Bill. However, even with the best drafted measure the courts can be assisted by indications as to how it should be interpreted. There need not necessarily be an ambiguity. There is quite often matter for argument.
There are two, or possibly three, ways of indicating how a measure should be interpreted. The first is by examining the whole of the enacting provisions; but in addition (and secondly) in appropriate cases a purpose clause can be introduced. In my respectful submission, this was a very suitable measure for the inclusion of a purpose clause, and the noble Lord, Lord Mishcon, proposed one which met with general affirmation. He withdrew it in order to consider the matter further before Third Reading. It is erroneously reported in Hansard that the amendment was negatived. It was not, it was withdrawn.
The third method, by no means mutually exclusive with the other two, is an indication in the Long Title of a Bill. There is this to be said in favour of such an indication of construction, that unless the Long Title

419
does that, it serves no useful purpose at all. A few sessions ago we had a Long Title that ran to three-quarters of a page or even longer. We moved an amendment reducing it to four lines and finally compromised on seven lines. But even then it served absolutely no purpose. It merely reiterated what the table of contents said more conspicuously.
In the absence at the moment of a purpose clause, this is very much a case where the Long Title can be slightly amended in order to give an indication. At present, it reads:
"An Act to give further effect to rights and freedoms guaranteed tinder the European Convention".
My noble and learned friend the Lord Chancellor said quite correctly that that was perfectly true. So it is; it is a truism. There are two directions in which the Bill gives further force to the Convention. One is that it amplifies rights already given by our common law and contributes to the European Convention. The other is that it makes the Convention rights enforceable against public authorities in our own courts. But that is clear from the contents of the Bill.
What a court of construction wants to know is whether it is intended that the Convention rights should apply in domestic law. That is precisely what the White Paper said and what my noble and learned friend has said on many occasions. So all I suggest is that in place of "further effect", the Long Title should read "domestic effect". That will mean something to a court of construction, whereas the Long Title at the moment means nothing at all. I beg to move.
Lord Renton: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has put forward a case which deserves serious consideration. The word "further" is somewhat vague anyway. Further to what? We are in effect giving our domestic courts the jurisdiction relating to the rights and freedoms guaranteed under the European Convention on Human Rights. It seems to me to be a more accurate way of describing the contents of the Bill and a more precise way to use the word "domestic" than to use the word "further".
I hope that I am in order in saying that I am glad that the noble and learned Lord also raised the question of what happened to Amendment No. 1 moved by the noble Lord, Lord Mishcon, which, as he said, received a great deal of support right across the House. I was one of those who keenly supported it. I am not in a position to say whether it was actually negatived or negatived by mistake. However, when I saw in Hansard that it had been negatived, I was extremely surprised..
9.30 p.m.
Lord Lester of Herne Hill: My Lords, I realise that when it comes to questions of statutory interpretation of Long Titles, purpose clauses and statements of principle, speaking after the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Renton, I am a young boy among wise men. Therefore I shall say extremely little on the subject. However, I should like to say something.
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First, Sir Geoffrey Palmer, a former Prime Minister of New Zealand, when explaining the New Zealand Bill of Rights Act, said something rather wise. He said, "Bills are made to pass". I use that phrase when I hear critics of this Bill saying that it has diluted the milk of pure principle in some way.
I am sure that the Government chose the words of the Bill carefully to enable the Bill to pass. That may explain some curious and ingenious formulae that have been used in the Bill. I suspect that the Long Title is defined as
"An Act to give further effect to rights and freedoms".
rather than,
"to give domestic effect to rights and freedoms".
not because of some doctrinal or theological objection to the notion of giving domestic effect. That is already made clear in the White Paper, as I hope the noble and learned Lord the Lord Chancellor will agree when he comes to reply. It is clear from the White Paper that this measure is designed to give domestic effect to convention rights and freedoms; it is designed to incorporate the convention into domestic law.
I cannot read the substance of the Bill in any other way. The only matter which gives me cause for concern and made me decide to put my name down in support of the amendment is that earlier in the debate the noble and learned Lord the Lord Chancellor said something which I found extremely curious. He said something along the lines, "This Bill will not incorporate convention rights into the substance of domestic law". That seemed to me to be an almost mystical concept which I could not understand. It seems to me that if the Bill does anything clearly, it incorporates convention rights into the substance of our domestic law and it does so in a number of ways.
One way is by commanding judges to read statutes, where possible, to comply with convention law. That is where it embodies convention rights into our statute law. Another way is that it requires judges to be a public authority bound by the convention and therefore interpreting and applying the common law and statute law to give effect to convention rights. Therefore in those ways it surely does incorporate convention rights into the substance of our domestic law. If we can agree about that, it will go a long way towards assuring me that, whatever the reasons for those curious words in the Long Title, at least it is quite plain that the central object and purpose of this Bill is to give domestic effect to convention rights and freedoms. If that is clear it may well be that this amendment is otiose.
If there were any ambiguity about it then I believe that the noble and learned Lord, Lord Simon of Glaisdale, has the better of the argument. There is a powerful case. I wish that the matter had been dealt with by a purpose clause and at an earlier stage. This is the last amendment that we shall consider today. Before we say farewell to this Bill it is important that this matter is put beyond any doubt. I therefore support the amendment.
The Lord Chancellor: My Lords, the noble and learned Lord, in moving this amendment, which is the

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last that we have to consider at Report stage, took the opportunity to remark that the House was not as fully attended as it might be at this hour. In the dying moments of Report stage on this Bill, I shall give the noble and learned Lord an additional opportunity to have the last word by rebuking me yet again on my unyielding disposition in relation to this jewel of a Bill.
I do not believe that there is much that I can add to what I said when Amendment No. 75 was debated at Committee stage. The word "further" is included in the Long Title because, in our national arrangements, the convention can, and is, already applied in a variety of different circumstances and is relied on in a range of ways by our own courts.
The Bill will greatly increase the ability of our courts to enforce convention rights, but it is not introducing a wholly new concept. As I have said before, the Bill as such does not incorporate convention rights into domestic law but, in accordance with the language of the Long Title, it gives further effect in the United Kingdom to convention rights by requiring the courts in Clause 3(1),
"So far as it is possible to do so"
to construe—in the language of the statute, to read and give effect to—primary legislation and subordinate legislation in a way which is compatible with the convention rights. That is an interpretative principle.
Lord Renton: My Lords, I am very reluctant to interrupt the noble and learned Lord. I believe that he said just now that it was an Act to give further effect in the United Kingdom,
"to rights and freedoms guaranteed under the European Convention on Human Rights".
The words "United Kingdom" do not appear in the Long Title. It merely says, "further effect". If we say, "domestic effect" we make it clear that it is in the United Kingdom. The phrase that the noble and learned Lord has used would then be implemented.
The Lord Chancellor: My Lords, when I used the words "in the United Kingdom" I was not reading from the words of the Long Title. The words in the Bill are,
"An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights".
But I have not conceded that this Bill claims any extra territorial effect. I do not believe that it is a great flight of the imagination to read it as meaning in the United Kingdom.
I have to make this point absolutely plain. The European Convention on Human Rights under this Bill is not made part of our law. The Bill gives the European Convention on Human Rights a special relationship which will mean that the courts will give effect to the interpretative provisions to which I have already referred, but it does not make the convention directly justiciable as it would be if it were expressly made part of our law. I want there to be no ambiguity about that.
Lord Lester of Herne Hill: My Lords, I am extremely grateful to the Lord Chancellor; but I wonder whether he would mind explaining the difference
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between requiring our courts (as a public authority) to give effect to the convention; requiring our courts where possible to interpret Acts of Parliament to comply with the convention; requiring our courts in developing the common law to have regard to the convention rights, and requiring our courts to give effective remedies where there is a breach of those rights. What is the difference between all of that and incorporating the convention? What else would be needed over and above all that in order to incorporate the convention'?
The Lord Chancellor: My Lords, this is fast becoming something of a theological dispute and I should like to bring it to a conclusion as quickly as I may. The short point is that if the convention rights were incorporated into our law, they would be directly justiciable and would be enforced by our courts. That is not the scheme of this Bill. If the courts find it impossible to construe primary legislation in a way which is compatible with the convention rights, the primary legislation remains in full force and effect. All that the courts may do is to make a declaration of incompatibility.
I have a feeling that in these dying moments of Report stage we are behaving in a way in which judges sometimes behave at the end of a very long case. It is almost as if they cannot bring themselves to depart from the case and to be left to consider it themselves, and question after question continues. I have given the best argument that I may.
Lord Simon of Glaisdale: My Lords, I am quite satisfied that my noble and learned friend has given the best answer that can be given. We can therefore leave this to a later stage or to the other place.
I am most grateful for the cogent support that I have received on this amendment. The noble Lord, Lord Lester, was altogether too modest. His intervention was extremely powerful. I am particularly grateful to the noble Lord, Lord Renton, who is such an authority on statutory interpretation—not only in himself but because he comes trailing the clouds of glory of the Committee on Preparation of Legislation. The final word was said by him: further effect? What further effect? That is left entirely at large. There is no guidance to the courts at all.
My noble and learned friend said that this Bill is not intended to incorporate the convention into our domestic law. That is at variance with various points that have been made, but so be it for the moment. The amendment to the Long Title does not suggest that it should be. All that it seeks to do is to give "domestic" effect to the convention rights and that is incontrovertibly what it does. However, it is now nearly a quarter to ten, and I am 87 years of age, so I claim leave to withdraw the amendment.
Amendment, by leave, withdrawn.
House adjourned at seventeen minutes before ten o'clock.