Lords Sitting of 16 July 1998

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by The Lord Bishop of Oxford.): The LORD CHANCELLOR on the Woolsack.
The Earl of Portsmouth-Took the Oath.

Refugees and Asylum Seekers
Lord Judd Lord Judd asked Her Majesty's Government:
What steps they are taking with the European Union and other appropriate multilateral organisations to promote an internationally agreed strategy towards migration and towards respect for, and protection of, the rights of refugees and asylum seekers.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, the Government co-operate fully in the relevant European Union, United Nations and Council of Europe structures in these areas. The Government attach great importance to the protection of the rights of genuine refugees and asylum seekers as well as co-operating with other member states in countering abuse of the asylum system.
Lord Judd: My Lords, while I naturally welcome that reply in relation to co-operation, does my noble friend not agree that there is a major strategic issue facing the human community at this juncture? It is difficult to imagine the economic, social, emotional and psychological stress for those who are removed from their homes or who must leave their homes for reasons beyond their control. In view of our commitment to human rights, is it not essential to maintain the spirit of a commitment to human rights in all we do in relation to the administration of policy on refugees and those seeking asylum? As the numbers are so great, is it not absolutely essential that we give major attention to working out a viable international approach to that issue rather than finding ourselves concentrating inevitably on the negative aspects of it in terms of how many we can absorb in this country?
Lord Williams of Mostyn: My Lords, the basis of what my noble friend says is something with which I can entirely agree. His Question is deliberately framed quite widely. It deals with migration and therefore includes economic migration as well as refugee and asylum matters. Those are extraordinarily difficult questions. It seems to me that the noble Lord is right to say that no single country can deal with them. I can perhaps help my noble friend to the extent that there is to be an audit of immigration rules and policies prior to incorporation of the European Convention on Human Rights into United Kingdom law. That is an extremely important step.
Baroness Williams of Crosby: My Lords, is the Minister aware that unless a decision to the contrary is taken tomorrow by the Council of Ministers, the budget lines for civil dialogue and the support of NGOs concerning, for example, victims of torture will cease as a result of a legal case brought by the previous government and the ruling of the European Court of Justice on that case, which is likely to lead to the suspension of all help for NGOs within the area of civil dialogue, human rights and issues concerning violence against women? Will the Minister comment on that?
Lord Williams of Mostyn: My Lords, the noble Baroness is right. The Government will obviously have to review the circumstances as they are found to obtain. As she says, those matters are extremely important. However, I stress—I think rightly—that no single government are capable of solving all those problems without co-operation on an international basis.
Lord Renton of Mount Harry: My Lords, following on the Minister's reply to the noble Lord, Lord Judd, does he agree that the United Nations Convention on the Status of Refugees' definition of a refugee, namely, that he or she should have a well-founded fear of persecution in his own country, is now out of date and far too subjective? It may have been appropriate in the 1930s and the 1940s when people were fleeing before invading armies but it is no longer appropriate. Will the Minister work with international colleagues to arrive at a much more sophisticated definition that would take into account, for example, the human rights record of the country, economic conditions and the means of transport out of the country in order that we should be able to return economic migrants much more quickly but at the same time identify and protect genuine refugees much more quickly?
Lord Williams of Mostyn: My Lords, that is the critical tension between the two aspects which the noble Lord rightly identified. There is a view which I have heard expressed that the United Nations Convention on the Status of Refugees, being now somewhat elderly, needs review. Of course, the test there is not entirely subjective. It is an objective view of someone's subjective beliefs. Therefore, it is not entirely subjective.
The Government are quite clear. We do not have an open door; we cannot, for economic migrants. Equally we have a proper, civilised approach to the rights of refugees and asylum seekers. The key is to be firmer, faster and fairer because that serves the proper interests of all those concerned.
Baroness Anelay of St. Johns: My Lords, what will the Government do to ensure that the forthcoming enlargement of the European Union does not in any way jeopardise the concessions which have been negotiated for Commonwealth citizens?
Lord Williams of Mostyn: My Lords, I do not believe that the concessions for Commonwealth citizens will be affected at all by enlargement. We have an

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existing commitment to Commonwealth citizens and I know of no proposal to do away with their present position.
The Earl of Sandwich: My Lords, has not Commissioner Anita Gradin come up with a much more imaginative solution recently in the European Commission; that is, that we should move some way towards financial burden-sharing with the case of Bosnia in mind, which was not exactly a model for a common European policy on migration?
Lord Williams of Mostyn: My Lords, the noble Lord is quite right. Economic burden-sharing has its virtues because obviously by definition it means that there is not a single country shouldering the burden, which should be shared on a pan-European or even more international basis.
Lord Elton: My Lords, can the Minister enlarge on his reply to the noble Baroness, Lady Williams? Are we to understand that there is to be a period during which the much-needed government funding to NGOs, some of which do vital work in support of refugees, is to cease? If so, how long will that period be and will the Government take steps to shorten it?
Lord Williams of Mostyn: My Lords, I am not in a position to give a definitive reply to the noble Lord, Lord Elton. However, I shall research further the extremely important questions which he has raised. I undertake to write to him as soon as possible and place a copy of the letter in the Library. I cannot give a more precise answer than that at the moment.
Lord Judd: My Lords, does my noble friend accept that the recent Strategic Defence Review has imaginatively understood the kind of turmoil which the world is likely to face in the future and how we should respond to it? We have clearly been giving major inter-departmental attention to that. Will my noble friend accept that he would have all possible support from all sides of the House if the Government would give a strategic lead not only in Europe but internationally in looking at the whole issue on an international basis and examining what the international strategy should be?
Lord Williams of Mostyn: My Lords, I take my noble friend's point on the Strategic Defence Review which was, I believe, generally acclaimed by all sections in this House as a masterly piece of work. However—and I say this, I hope, not too harshly—it is a much more simple question to attend to when one is dealing with one's own SDR, as opposed to the whole spectrum of pan-European and international problems. My noble friend is right; indeed, he is really reaffirming my earlier answer. We will get no solution on a single country basis and no solution on a selfish country basis.

Building Society Repossessions
3.9 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What is the present rate or number of owner-occupied houses being repossessed by building societies due to the lapse of mortgage repayments.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman): My Lords, figures are not available separately for building societies. The most recent figures for all mortgage lenders are those published by the Council of Mortgage Lenders in January. These show that 32,770 properties, representing 0.31 per cent. of all mortgage loans, were taken into possession in 1997.
Lord Dean of Beswick: My Lords, as I understand it—perhaps my noble friend the Minister will correct me if I am wrong—those figures represent a substantial reduction as regards the situation that we faced a short time ago. Although that is very acceptable, should we not keep up our guard on behalf of those people who seem to face interminable increases in their repayments because of the fluctuations in the bank rate? Can my noble friend the Minister tell us whether the Government have any initiatives in mind to help people in such situations in the future?
Baroness Hayman: Yes, my Lords. My noble friend is certainly right. This is a great improvement compared with the peak of repossessions which was reached in 1991, when about 75,500 homes were repossessed. The figures have been falling steadily since then, but we are obviously concerned that we still have a legacy from those very dreadful days in the 1990s. That is why the Government have taken action to implement our manifesto commitment to work with mortgage providers to encourage greater provision of flexible mortgages to protect families. My honourable friend the Minister for Local Government and Housing and other colleagues from the Department of Social Security have met the Council of Mortgage Lenders and the Association of British Insurers and asked them to look at ways of improving the quality and coverage of mortgage payment protection insurance for such families.
Lord Clark of Kempston: My Lords, does the Minister agree that the seven increases in the bank rate have created tremendous hardship for the many thousands of home owners with mortgages? Discussions with the ABI and the Council of Mortgage Lenders are all very well, but, unless the responsibility for calculating the base rate is taken back by the Chancellor of the Exchequer, those with mortgages will still suffer hardship.
Baroness Hayman: My Lords, I do not think that my right honourable friend the Chancellor of the Exchequer is abrogating responsibility in his management of the economy. We have debated the Monetary Policy

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Committee of the Bank of England, including the specific issue of interest rates, at some length in your Lordships' House. The Government's position on that is well known. It is in the best interests of economic policy that that committee should consider inflation rates. Of course, it takes into account all the evidence when interest rates are set.
The noble Lord raised the issue of the effects of interest rate rises on home owners. Of course there are effects in that respect and we must consider them. However, even with the recent rate increases, it is right to point out that housing remains very affordable by historical standards. I remind the noble Lord that the average mortgage rate is now about 9 per cent., compared with over 15 per cent. at the peak in 1990. Moreover, the payment on a typical mortgage of £55,000 is £260 a month less than it was in 1990.
Baroness Ludford: My Lords, does the Minister accept that one of the ways of directly helping mortgage lenders to reduce interest rates would be to join the single currency? Indeed, even a declared intention to do so would probably have a fairly immediate effect in terms of bringing down interest rates and would be a direct financial help to all those with mortgages.
Baroness Hayman: My Lords, I congratulate the noble Baroness on her ingenuity in linking commitments on the single currency to a Question on repossessions by building societies. I believe that the Government's position on the single currency has been made very clear in this House and, indeed, in another place.
Lord Davies of Oldham: My Lords, what does my noble friend the Minister read into the issue of the distribution of wealth in this country when one has seen in recent years very steep increases in house prices in certain parts of the South-East, and absolutely stationary or even lower levels of house prices in other parts of the country?
Baroness Hayman: My Lords, I read many things into those statistics. However, there is one lesson that we must learn both from history and from the geographical differences to which my noble friend referred; namely, that the best help that a government can give to home owners is to ensure a sustainable house market recovery and avoid some of the boom and bust that we saw in the early 1990s—and to do so against a background of a stable and sustainable rate of economic growth and employment opportunities, which will lead to a rise in living standards. Of course, that underpins the Government's economic policy.
Baroness Miller of Hendon: My Lords, is the Minister aware that many of the repossessions are due to the existence of the so-called "mortgage guarantee policies", which actually encourage the lender to call in the mortgage and to claim on the insurance rather than enter into negotiations with the borrower for deferred or different terms when he or she has got into difficulties?
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Can the Minister tell the House what the Government would be prepared to do to try to alleviate the problem for borrowers who run into such difficulties?
Baroness Hayman: My Lords, as I believe the noble Baroness is aware, there is government support through the Department of Social Security for certain borrowers who get into difficulties, especially jobseekers, pensioners and the disabled in certain circumstances. However, the noble Baroness rightly pointed out that there are difficulties with existing schemes and methods of financing mortgages. As I said in response to the preliminary Question, that is why we undertook to work with the Council of Mortgage Lenders and the ABI to ensure that there is better protection for borrowers. We are doing so by encouraging lenders to increase the availability of mortgages with flexible repayment arrangements and to improve the quality and take-up of mortgage payment protection insurance. We welcome lenders' commitment to take repossession action only as a last resort. My honourable friend the Minister for Local Government and Housing will be meeting the Council of Mortgage Lenders on 27th July to discuss proposals in more detail.

Kensington Gardens: Princess Diana Memorial
3.17 p.m.
Lord Blaker Lord Blaker asked Her Majesty's Government:
When they expect a decision to be taken on the proposal to develop Kensington Gardens as a memorial to the late Diana, Princess of Wales and whether there will be an opportunity for parliamentary consideration before that decision.
Lord McIntosh of Haringey: My Lords, the results of the preliminary consultation exercise will be analysed and reported to the Diana, Princess of Wales Memorial Committee in the autumn. If the memorial committee continues to support the proposals in principle, the process of commissioning designs will begin, taking account of the views expressed by the public. Any preferred design would in due course be subject to the formal consultation processes which apply to developments on Crown land and which parallel the planning process as set out in Department of the Environment circular 18 of 1984. The allocation of parliamentary time is a matter for the usual channels.
Lord Blaker: My Lords, does the Minister agree with me that the proposals of the memorial committee involve very big changes to what is an outstanding heritage site and that, therefore, most people would think it quite wrong if such proposals were put into force without full debate in both Houses of Parliament? Would not the best solution be simply to change the name of Kensington Gardens to the Princess Diana Gardens and to use the £10 million thus saved to do

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something positive, like building a children's hospice, which would fit in very well with one of the other proposals of the committee?
Lord McIntosh of Haringey: My Lords, these are, of course, important proposals; and, indeed, they affect a major site. As I said, the allocation of parliamentary time is a matter for the usual channels, but it is open to any noble Lord to table Questions or initiate debates on the subject. The Diana, Princess of Wales Memorial Committee is considering a whole range of ways of commemorating the late princess. The Diana, Princess of Wales Memorial Fund is allocating money to the princess's favourite charities. The figure of £10 million to which the noble Lord referred was bruited about last year. It has no particular relevance to any proposals now under consideration.
Lord Strabolgi: My Lords, is my noble friend aware of the very strong feelings against these proposals for Kensington Gardens by the people of Kensington, Chelsea and Westminster? These views are supported by the local authorities. Will they be taken fully into account before considering proceeding with these proposals?
Lord McIntosh of Haringey: My Lords, I hear what my noble friend says but this is exactly what the consultation exercise is about. In addition to the exhibition which is now being held at the Albert Memorial Visitor Centre, leaflets and questionnaires are being sent out by 20th July to W1, W2, W8, W11, W14 and to SW1, SW3, SW5, SW7 and SW10. That is a wide consultation exercise. Of course the memorial committee will take serious account of the responses to that consultation exercise.
Baroness O'Cathain: My Lords, is the Minister sure that the leaflets which are to be sent out to all these areas of London are detailed enough as regards what is likely to happen with the Diana Memorial Garden, because certainly the press comment—if one reads it—seems to suggest that the exhibition at the Albert Memorial is not detailed enough and does not give enough information to allow people to make a judgment?
Lord McIntosh of Haringey: My Lords, we cannot win, can we? If we provide information that is too detailed, we are told that we have already made up our minds and the whole consultation exercise is phoney. If the information is not detailed enough—according to the noble Baroness—we are told that we are not providing enough detail. Surely the idea of the consultation exercise is for local people and anyone visiting the visitor centre to give their views about what should happen. The whole point about this consultation exercise is that the memorial committee has not made up its mind about the scope or detail of the memorial which is planned; that is why the consultation is genuine.
Lord Kennet: My Lords, what is being done to find out the opinion of the rest of the country on these
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proposals? The number of postal districts read out by my noble friend has justified, I believe, the dispatch of only 180,000 leaflets of inquiry. That is not a large share of the British people.
Lord McIntosh of Haringey: My Lords, the Diana, Princess of Wales Memorial Committee has received views from all parts of the country ever since its establishment at the end of last year. It has received about 10,000 responses to its invitation to people anywhere in the country to express their views about what should be done to commemorate the late princess. By far the most popular single response from the population of the country as a whole was that a memorial should be in the form of a garden and that it should be situated at Kensington Gardens.
Lord Campbell of Alloway: My Lords, I declare an interest in that I live in the area. Has this commission, or whatever it is, absolute power? Is there no form of permission, constraint, planning permission or anything of that kind? It seems rather odd that the wishes of the whole country—I have declared my interest—should be imposed on the residents of part of it.
Lord McIntosh of Haringey: My Lords, I have already made it clear in my replies this afternoon and last week that the committee does not have absolute power. Any proposal would have to be dealt with as a proposal on Crown land under circular 18 of 1984 which requires that,
"the Crown … will issue a notice of the proposed development to the local planning authority. If the local planning authority objects to the proposed development, and if those objections cannot be resolved in dialogue between the parties, the Crown body must refer the matter for resolution to my right hon friend the Secretary of State for the Environment, Transport and the Regions".
There is plenty of consideration of this matter and the public have been consulted all along. Any member of the public, wherever he or she lives, may go to the visitor centre at the Albert Memorial and express a view.
Viscount Montgomery of Alamein: My Lords, in view of the difficulties, has the Minister considered a referendum?
Lord McIntosh of Haringey: My Lords, if the noble Viscount will pay for it we might consider it.

Speed Limits
3.25 p.m.
Lord Berkeley Lord Berkeley asked Her Majesty's Government:
Following publication of vehicle speed data that speed limits were exceeded,

(a) by 54 per cent. of cars on motorways and 70 per cent. of cars on urban roads,

(b) by 91 per cent. of articulated lorries on dual carriageways and 70 per cent. of articulated lorries on single carriageways,

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what action they are taking to enforce speed limits more effectively.
Lord Williams of Mostyn: My Lords, police enforcement is at an all time high. A total of 761,400 speed limit offences were dealt with by prosecution or fixed penalty in 1996. Chief officers of police target their resources on locations where they can most effectively reduce road casualties and where excessive speed contributes to dangerous driving conditions.
Lord Berkeley: My Lords, I very much welcome my noble friend's answer to that question. It is obvious that he is aware of the connection between excessive speed and the seriousness of any accident. However, I am sure he is concerned at the figures mentioned in a report two years ago. Has he considered handing over some of the basic enforcement to local authorities, which could then find the money to put the videos in the police cameras—apparently the police cannot afford to do so—use the revenue to offset some of the costs and spend the remainder on public transport investment plans?
Lord Williams of Mostyn: My Lords, I think there are two questions here. One concerns the handing over of the enforcement of the criminal law in this area to local authorities, which I think generally would not be a good idea. The second concerns hypothecation of the revenues from those who have been unfortunate enough to be caught on camera while speeding. This is a deeply complex area which is presently under consideration.
Lord Brabazon of Tara: My Lords, further to the point the noble Lord has just made, will the Minister confirm—he may well not wish to do so—that only one in seven speed cameras is operating at any one time? Is there not therefore a good case for allowing the police to keep at least some of the revenue from the fines to enable them to make more of the cameras operative? Does not the noble Lord agree that as regards motorways and dual carriageways, the 70 miles an hour limit as presently enforced is just about right?
Lord Williams of Mostyn: My Lords, I think the 70 miles an hour limit as presently enforced—or evaded, as the case may be—seems to be about right when I travel on the M.40 myself. As regards film in the cameras, it is not known to the approaching driver whether a camera contains film. Therefore a camera with no film existentially has quite a useful role to play.
Lord Stoddart of Swindon: My Lords, is my noble friend aware that I, and I am sure a number of other people, will be puzzled by the fact that 91 per cent. of articulated lorries on dual carriageways and 70 per cent. of articulated lorries on single carriageways exceed the speed limit, because there is a law in force which obliges that kind of lorry to have a speed limiter? Why and how is it that if the speed limiters are installed and in working order those lorries exceed the speed limit? Are not the police enforcing the law as regards the installation and maintenance of speed limiters?
Lord Williams of Mostyn: My Lords, I think not, because a speed limiter simply limits the speed to a
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particular mph. However, not all roads in the United Kingdom are subject to the same speed limit. I think the police do a good job of enforcement bearing in mind the balance they need to draw between public co-operation and the prevention of speeding offences.
Baroness Thomas of Walliswood: My Lords, does the Minister accept that there is a good deal of dispute as to whether speeding should continue to be a criminal offence? Are the Government giving consideration to that matter? Will they consider enabling local police services to fine speeding motorists on the spot?
Lord Williams of Mostyn: My Lords, speeding is an offence. It ought still to be a criminal offence. An enormous number of people lose their lives or are seriously injured as a direct result of speeding. It is not a case of allowing the police to impose fixed penalties; such penalties can already be imposed. Someone can be fined up to £40 on a fixed penalty, with three penalty points; 12 points means that a driver is liable to be disqualified. The police already have those powers.
The Earl of Erroll: My Lords, will the Minister consider the needs of those people who want to get moving and do things in life and not only the desires of those who are happy to dawdle along achieving less?
Lord Williams of Mostyn: My Lords, yes. I have travelled on the A.5 to North Wales. My peregrinations on that journey always follow a man in a cap, driving a Morris Minor pulling a caravan.
Lord Swinfen: My Lords, are foreign motorists who are caught speeding on camera fined in court?
Noble Lords: Order!
The Lord Privy Seal (Lord Richard): My Lords, I think it is the turn of this side.
Lord Randall of St. Budeaux: My Lords, on the question of speed limits, will my noble friend tell the House what steps the Government are taking with regard to high-speed driving in villages? Will they give consideration to introducing low speed limits such as 15 or 20 mph, as exist in the United States?
Lord Williams of Mostyn: My Lords, consideration is being given to lower speed limits of 20 miles an hour. However, they are quite difficult to enforce, and there is need for a whole spectrum of speed calming measures in small villages, where many people believe that even 30 miles an hour is too fast. The noble Lord is right. In 1996, for example, no less than 65 per cent. of accidents happened on roads where the speed limit is 30 miles per hour.
Lord Swinfen: My Lords, how do the Government ensure that fines are collected from foreign drivers who are caught speeding—
Lord Carter: My Lords, the time has already exceeded 30 minutes.

Business
3.32 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lady Jay of Paddington will, with the leave of the House, repeat a Statement that is to be made in another place on health expenditure.
Regarding the Summer Recess, it may be for the convenience of the House if I announce that, subject as always to the progress of business, the House will rise on Friday 31st July. The House will sit at 11 a.m. on that day and will return on Monday 5th October. I am grateful to the Opposition Chief Whip and the Liberal Democrat Chief Whip for agreeing the business through the usual channels in such a way that sitting into August will not be necessary. However, I repeat that this is subject, as always, to the progress of business.
Perhaps I may take this opportunity to remind your Lordships that the staff of the House have a significant amount of building refurbishment and other work to complete in the Summer Recess. Unfortunately, there will be a certain level of disruption and noise. Black Rod has asked me to assure the House that everything possible will be done to keep the disruption to a minimum.

Business of the House: Standing Order 44
Lord Richard: My Lords, I beg to move the Motion standing in my name on the Order Paper.
There are three items of business arising before the Summer Recess on which the usual channels have agreed that more than one stage of a Bill may be taken on a day. These are, as usual, the Consolidated Fund Bill and the Finance Bill; in addition, the usual channels have agreed that the remaining stages of the Landmines Bill should be taken on Friday 24th July, the Second Reading being taken tomorrow. Rather than passing a number of Business Motions to give effect to those agreements, it was also agreed through the usual channels that a single Motion before your Lordships today would be appropriate. I commend the Motion to the House.
Moved, That Standing Order 44 (No two stages of a Bill to be taken on one day) be suspended until the House adjourns for the Summer Recess.—(Lord Richard.)
Lord Renton: My Lords, I believe that this is the longest Session of Parliament for many years, and even though it has been so long, there is not enough time to consider in detail, as we need to do, all the legislation that has been, and will be, put before the House. In future Sessions, will the Government try to ensure that the legislation suits the timescale better than has been done this time?
Lord Richard: My Lords, I am told that this is not the longest Session of Parliament. I merely repeat what I have been told; nor do I accept that the Session has necessarily been overloaded. The fact that this House is
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able to rise on 31st July seems to indicate proper application to the amount of work that we have had to do; and on the whole we seem to have succeeded in doing it. Returning on 5th October is not without precedent. I see that the noble Lord, Lord Denham, is not in his place. I am told that, one year, he kept the House here until 12th August and brought noble Lords back at the beginning of October. So on that basis, we are doing quite well.
On Question, Motion agreed to.

Consolidated Fund (Appropriation) (No. 2) Bill
Lord McIntosh of Haringey: My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)
On Question, Bill read a second time; Committee negatived.
Then, Standing Order 44 having been suspended (pursuant to Resolution), Bill read a third time, and passed.

Northern Ireland (Sentences) Bill
3.37 p.m.
Report received.
Clause 1 [Sentence Review Commissioners]:
Lord Cope of Berkeley Lord Cope of Berkeley: moved Amendment No. 1:
Page 1, line 11, at end insert (", and
(c) at least one is a representative of the victims of terrorist crime associated with Northern Ireland.").
The noble Lord said: My Lords, this amendment concerns the question of whether the victims of terrorism in Northern Ireland should be represented on the new commission that is to be set up under the Bill. The amendment was moved in Committee by my noble friend Lord Tebbit and was sympathetically received by many Members. As a result, the Minister was kind enough to say that he would give further consideration to the question. It would be helpful to know the results of that consideration. I beg to move.
Lord Molyneaux of Killead: My Lords, as the noble Lord, Lord Cope, said, an amendment on this subject was moved by the noble Lord, Lord Tebbit, in Committee. The amendment currently before the House is almost identical. It reflects the views of many noble Lords as expressed in Committee, and is very much in line with Clause 1(3) which states:
"In making appointments the Secretary of State shall have regard to the desirability of the Commissioners, as a group, commanding widespread acceptance throughout the community in Northern Ireland."
In Committee, there was a minority view that the Secretary of State might find it difficult to identify an individual victim of terrorism. I am quite certain that the Secretary of State herself and the Minister will have no

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great difficulty, given that the former, in particular appointed Sir Kenneth Bloomfield in November 1997 to report on,
"the feasibility of providing greater recognition for victims".
I quote from the terms of reference. In Committee, my noble friend Lord Dunleath reminded us that the Belfast agreement of Good Friday declares:
"It is recognised that victims have a right to remember as well as to contribute to a changed society".
So on both grounds the Secretary of State would be on firm foundations if she were, for example, to appoint Sir Kenneth Bloomfield to the commission, given the collective or consensus views of the many victims who made submissions to him in preparation for his report.
Further, the Secretary of State has the authority of what has become the Holy Writ of the Good Friday agreement. I am quite sure that the Secretary of State would not want to incur the displeasure or even the censure of those who have condemned some of us here in the Chamber who have sought to scrutinise, amend and improve the Bill. We were condemned on the grounds that even a modest textual amendment or correction would "send the wrong signals", the phrase used so frequently in your Lordships' House. Presumably, it would send the "wrong signals" to terrorists and perhaps wreck the agreement.
I respectfully suggest that the Secretary of State and the Minister, by obeying the words of paragraph 12 of the Good Friday agreement, should say:
"It is recognised that victims have a right to remember as well as to contribute to a changed society".
Surely, it would be indefensible to exclude victims from the opportunity, as laid down in the agreement, to contribute to what we all hope will be a changed society. In fact, it may be thought that their exclusion would clearly be a breach of paragraph 12 of the sacred Good Friday agreement.
Lord Holme of Cheltenham: My Lords, I am one of those who agree with the sentiment of the amendment but is unsure about its exact wording. The words of the noble Lord, Lord Molyneaux, are wise and the Government would be extremely well advised, when they come to make decisions about the membership of the commission, in practice to include someone who has the confidence of the many victims in Northern Ireland and that he or she would represent their concerns.
Lord Campbell of Alloway: My Lords, I support what the noble Lord said. I am open to correction but, as I see it, there is absolutely no reference in the Bill or the schedules to any representations being able to be made to the commissioners by victims of terrorist crime. That seems to be a gap which ought to be plugged. I believe that the noble Lord, Lord Dubs, would agree that somehow there should be a procedure so that representations can be made to the commissioners by the victims of crime.
Lord Tebbit: My Lords, I am grateful to my noble friend Lord Cope for taking over the amendment which I originally put down during the Committee stage thus
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giving it even more force. Of course, we all understand that the Bill has no effect as regards the perpetrators of the particularly vile murder of the three young boys at Ballymoney, the cut-off date being Good Friday. However, as I watched the distress of the parents of those children, it seemed to me that it made even more powerfully the arguments put here in earlier days concerning the needs of the victims. There is nothing we can do to ease the grief of those parents other than to ensure that the perpetrators of the crime are hunted down and punished; punished with no prospect of any early let out in any future deal with another group of terrorists.
It would also give those parents some comfort if they felt that others who had been through what they are now going through were able to have some formal recognition of the way that those who had committed the dreadful crimes before Good Friday were now to be excused and let out.
3.45 p.m.
Lord Dunleath: My Lords, in Committee I too supported the amendment. Nothing has changed since then to make me alter my views. Indeed, the view put forward by the noble Lord, Lord Tebbit, about the ghastly murders we had in Ballymoney last weekend serve only to reinforce that. As I am sure the Minister agrees, the Bill will give great comfort to the perpetrators of the crimes because they are being let out far earlier, I am sure, than even they dared to expect when the crimes were committed. In one small way I hope that we can all agree that the amendment will redress the balance in that it will provide a little bit of comfort for the victims of crime. After all, they are the ones who deserve that comfort.
Baroness O'Cathain: My Lords, I support the amendment. I also wish to reinforce the statement made by the noble Lord, Lord Molyneaux, to the effect that it might be said that it would give the wrong signals. I believe that the amendment would give all the right signals. There is hardly a family or neighbourhood in Northern Ireland that is not touched by the sadness and terror of the past 29 years. The idea that victims should be represented would be extremely good in terms of the healing process.
However, I disagree with the noble Lord, Lord Molyneaux, in suggesting that Sir Kenneth Bloomfield would perhaps be the person to represent the victims. For all the admirable work he has done, he is not a victim. There should be a strong case for a search for a victim who would be capable of representing victims in Northern Ireland.
Baroness Park of Monmouth: My Lords, I too support the amendment. With respect, I slightly disagree with my noble friend Lady O'Cathain on the issue of Sir Kenneth Bloomfield. His would be the right appointment because he represents all victims. When we discussed the matter before, the difficulty was whether it would be victims who were Catholic or those who

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were Protestant. He has heard all of them and could presumably consult them. He could even bring them forward to support his point in the discussions.
Lord Molyneaux of Killead: My Lords, perhaps I can clear up a misunderstanding. Sir Kenneth Bloomfield was in my mind because he was a victim of a bomb attack on his home. It was only through a degree of luck and the grace of God that he and his wife were not killed.
Baroness Park of Monmouth: My Lords, that makes the case even stronger. There is even more support for the idea that the agreement—if we have to think in these terms—fully authorises what we wish. Paragraph 11 states:
"The participants believe that it is essential to acknowledge and address the suffering of the victims of violence as a necessary element of reconciliation".
Paragraph 12 states:
"The provision of services that are supportive and sensitive to the needs of victims will also be a critical element".
It seems to me that that is part of it.
Lord Stoddart of Swindon: My Lords, in Committee I supported the amendment of the noble Lord, Lord Tebbit. Everything I have heard since leads me to believe that I was right in doing so. The events of recent times in Northern Ireland have sickened people more than ever of the violence that has happened in the past and is happening now. If we pass this amendment today, the people of Northern Ireland will at least understand, be aware of, and appreciate that those who have suffered most at the hands of terrorists, of whatever denomination, would at least be represented and their voice heard.
I hope that my noble friend will be able to accept this amendment or, if it is not in order for some reason, that he will bring forward one of his own which will have the same effect.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs): My Lords, before speaking to this first amendment there are some preliminary matters that I would like to address. When your Lordships' House considered this Bill in Committee, I undertook to reflect further on a number of the amendments that were spoken to by noble Lords. I have done so and the Government have brought forward amendments in response to some of the points. We shall come to them in due course. However, there is one other issue, which was raised by the noble Baroness, Lady Denton, that I should like to mention at this point if your Lordships will permit.
The noble Baroness spoke to an amendment that would have required the commissioners to consider applications in the order that they were received. She was concerned that the commissioners should have clearly defined procedures for prioritising cases to protect them from any suggestion of capriciousness or partiality.
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The Government agree with the noble Baroness that the manner in which the commissioners carry out their functions will be important in maintaining public confidence in the implementation of the legislation. Under the Bill my right honourable friend the Secretary of State may make rules relating to the procedures to be adopted by the commissioners, and she intends to do so. However, it is the Government's view that the commissioners should develop their own priority rules to take account of the speed with which applications are received and other matters such as when prisoners would be likely to be released should they receive a declaration.
By allowing the commissioners to set the priority rules, account can be taken of unforeseen circumstances or developments without the requirement that the legislation be amended after it has been commenced. But the noble Baroness can be assured that my right honourable friend will draw to the attention of the chairman or chairmen the importance of establishing clear rules of procedure where they have a discretion. In addition, the Secretary of State would intend to require the commissioners to make available any rules of procedure that they may choose to adopt.
I now turn to the amendment before your Lordships' House. First, I wholeheartedly concur with the sentiments expressed about the tragic murder of the three children in Ballymoney a few days ago. I know that everybody was shocked in this country, Northern Ireland and in most parts of the world at such a brutal and callous act.
The people who committed that awful murder—I hope that they will be brought to justice—will not come within the scope of this Bill. They committed the murder after the necessary date and there is no way in which they will be given early release—I am presuming that they will be caught, convicted and sentenced—and the Bill does not apply to them.
As the noble Lord, Lord Cope, said, this amendment is the same as an amendment that was spoken to in Committee by the noble Lord, Lord Tebbit. He asked that I consider the amendment further or, as an alternative, that I might give a commitment to your Lordships that the Secretary of State would appoint such a person as a commissioner.
I have considered the proposal in conjunction with the Secretary of State. We do not think that it is necessary to amend the Bill, but consider that there would be merit in appointing a person with the expertise identified by the noble Lords, Lord Tebbit and Lord Cope.
The Government acknowledge that, although many victims accept the release of prisoners as part of the package that is the Good Friday agreement, the work of the commissioners under this Bill is likely to cause them concern. The Government sought to address that concern in part by providing that victims may be given information about the release of individual prisoners should they request it. But the Government consider that it is also important that the commissioners take forward their work in a manner that is sensitive to the concerns of the wider group of victims, including those who do not request information under the scheme provided for

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by the Bill. For that reason the Secretary of State agreed that it would be helpful to appoint a commissioner who has experience of working with victims. That commissioner could bring his or her experience to the work of the commissioners to ensure that the procedures that were adopted took full account of the need to be sensitive to the concerns of victims. As recommended by noble Lords, the Secretary of State would intend to consult with Sir Kenneth Bloomfield before making such an appointment.
The noble Lord, Lord Campbell of Alloway, asked a specific question as to whether representatives on behalf of victims or victims themselves could make representations to the commissioners. I am not happy about that. It is not part of the agreement to make the release subject to the views of victims. Indeed, many victims would not want such a specific role which would in part make them responsible for the release of prisoners. I understand the sentiment behind the suggestion of the noble Lord, Lord Campbell of Alloway, but that is not the right way to go.
I hope noble Lords will agree that the Government are meeting the substantive point at issue in the amendment, even though we believe it can be done by a decision of the Secretary of State without requiring amendment to the legislation. In those circumstances, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Campbell of Alloway: My Lords, before the Minister sits down, perhaps I may say that he misunderstood my argument. I did not mean—or I think say—that release should be subject to representations. I was suggesting that representations could be made to the commissioners. There would be no pressure. I was concerned with providing access for the victim to make representations. They may be rejected, but at least they could be made. That is all I was suggesting.
Lord Dubs: My Lords, I take that point. It was in that sense that I understood the noble Lord's comments, even though I used the phrase "subject to the views of victims". There is still a difficulty in putting on the face of the Bill a provision that there will be arrangements whereby victims or people representing victims could make representations to the commissioners. I am not sure that is the best way forward. It may give victims the sense that if they made representations, those representations would have a bearing on the release procedures or on the release date. It would also involve victims directly in the work of the directors in a way that I am not sure would show that wide-ranging respect for victims that many noble Lords feel.
I understand the point and am not unsympathetic to the motive behind the noble Lord's argument. But to put that on the face of the Bill would not be appropriate and may set up all sorts of other expectations, which would be undesirable.
Baroness Denton of Wakefield: My Lords, before the Minister sits down, perhaps I may thank him and the Secretary of State for examining the purpose of the amendment I moved at Committee stage. From bitter
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experience I know how difficult it is to please all communities in Northern Ireland at one time. I believe that the more the rules are evolved before the need for them, the better it will be for the future of the agreement. I thank the Minister.
Lord Tebbit: My Lords, also before the Minister sits down, perhaps I may say how grateful I am for the way in which he came forward with the ideas of which he spoke. It is extremely helpful. Also, in relation to victims putting in evidence and pleas, I understand why he says he has reservations about that being placed on the face of the Bill. However, I do not imagine that letters written to the commissioners would be returned, "Not known at this address".
Lord Dubs: My Lords, I thank the noble Lord for what he said. The commissioners, by definition, will be independent of government and behave as they see fit within the terms of the legislation. However, I would be most surprised if letters were returned unopened.
Lord Cope of Berkeley: My Lords, I am grateful to the Minister for the way in which he responded to this amendment. I am also glad of the assurance that he gave that the people who were responsible for the ghastly murders at Ballymoney will in no way benefit from the provisions of this Bill, which of course we understood.
I take it that it is also true that any organisation to which the people belong who committed the murders will also, by the fact of the murders, have placed itself in the greatest difficulty under the Bill. They have patently not maintained a ceasefire. On the contrary, they have committed the most ghastly murder. Clearly, if it turns out that those who are responsible for these murders belong to an organisation, it, too, will place itself in great difficulty under this legislation.
Like the Minister, I feel sure that the commissioners will receive letters from victims and I hope that they will pay careful attention to them. I am grateful to the Minister for the way in which he has responded to the amendment. In the circumstances, there is nothing for me to do except to seek leave to withdraw it.
Amendment, by leave, withdrawn.
4 p.m.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 2:
Page 1, line 17, after ("(2)(a)") insert ("and in paragraph 1 of Schedule 1").
The noble Lord said: My Lords, in moving this amendment it is sensible that we discuss Amendment No. 18. The purpose of the two amendments is to provide that the chairman of the commission should be a lawyer. This was briefly touched on in our earlier debates, but since then I have had the opportunity to look at the equivalent legislation in the Republic of Ireland and the debates that took place in the Dail on that legislation. I see that the equivalent body in the Republic of Ireland—it is not identical in its responsibilities—is to be chaired by a lawyer. That made me think that it might be worthwhile for your Lordships to return to this question at least briefly this afternoon.
It is true that the Republic of Ireland legislation takes a different form. That government decided that they did not need specific legislation to release prisoners under the agreement. Their releases are intended to take place by executive action, under legislation that has existed for some time. All the Republic of Ireland Bill does is to set up an advisory committee to advise the Minister on how to use his powers.
Lord Molyneaux of Killead: My Lords, I am grateful to the noble Lord for giving way. Can he indicate whether the inaction of the Irish Government and the rather peculiar way they have set about implementing the sacred, holy writ of the Good Friday agreement have in any way endangered the sanctity of that agreement or wrecked the prospects of its success?
Lord Cope of Berkeley: My Lords, that is an extremely interesting question. The method of proceeding chosen by the Republic of Ireland Government does not seem to be what was envisaged at the time of the agreement. In that sense it is not in accordance with the agreement, although it seeks to achieve the same effect as the agreement. All it does is set up the new commission. It is to be a totally independent commission, consisting of one lawyer and two civil servants from the staff of the Minister of Justice. It is, by statute, to be an independent commission. It has no instructions on how to proceed with its work except that the relevant section of the agreement is reproduced in a schedule to the Bill as the guidance to the commission.
It is not quite clear, to me at any rate, how many prisoners will be affected in the Republic. The noble Lord the Minister has been kind enough to place a document in the Library about the Republic of Ireland legislation which suggests that the number of prisoners will be in the region of 30. The Dail was told that the number would be about 47. So I am not exactly clear on that point either.
The purpose of the amendments is to raise the question of whether or not the commission should be headed by a lawyer. In view of the precedent which seems to have been set by the Republic of Ireland, and the fact that the commission in this jurisdiction is to deal with sentencing, I think it is certainly a question which is worth your Lordships considering once again. I beg to move.
Lord Holme of Cheltenham: My Lords, I venture to disagree with the amendment. I yield to no one in my admiration for lawyers—many of my best friends, and so on! But I wonder why it is necessary to feel that a commission of this kind could not find people of judgment to make the difficult decisions that are called for without them having had to have had the benefit of many years of legal training. Surely legal advice will be available. I hope that the Minister will reassure us on that point. The best legal advice must clearly be available. I find it unusual for the Benches on my left
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to be praying in aid the precedent that, if the Republic of Ireland does it in this way, we must do it in the same way. I am not at all persuaded of that.
Lord Dubs: My Lords, the effect of these amendments would be to require that, should the Secretary of State appoint joint chairmen, one of the joint chairmen should be a lawyer with legal qualifications in the United Kingdom. Noble Lords will be aware that in another place my right honourable friend the Secretary of State accepted an amendment to the Bill which required that the lawyer appointed as a commissioner should hold a legal qualification in the United Kingdom. The Government accepted the wisdom of that amendment in the context of arrangements that would only apply within the jurisdictions of the United Kingdom.
I am not persuaded by the arguments for this amendment. Much reference has been made to the legislation in Dublin. I do not want to be put in the position of having to explain, defend or justify legislation produced in another country; I find it hard enough sometimes to explain our own legislation. It is not hard to justify it, but it is sometimes hard to explain it! I think it would be getting us into somewhat uncharted waters if I attempted to explain the whole basis of the Republic's legislation, which I have in front of me.
The noble Lord, Lord Cope, said that there was some doubt about the exact figures, there being two different sources. The information note on the Criminal Justice (Release of Prisoners) Bill 1998—the Bill from Dublin—suggests that there are in the region of 30 prisoners in custody who will qualify for review under the legislation. Noble Lords will be aware that I have placed in the Library a copy of the Bill and the explanatory statement.
I am aware that the legislation introduced in the Republic of Ireland requires that a lawyer should chair a panel appointed to advise the Minister. However, noble Lords who have examined that legislation will see that the role and function of the panel are very different from the role and function of the commissioners to be appointed under our legislation. It is true that both pieces of legislation are intended to implement the Good Friday agreement, but as they do so in very different ways there can be no direct read-across from one Bill to another. If the commissioners appointed under this Bill were to operate as advisers to the Secretary of State, a similar approach might be appropriate. But that is clearly not the case. They do not operate as advisers to the Secretary of State. They operate as independent persons who are guided or instructed as to how to operate by the legislation; and of course they will develop further rules of procedure, to which I referred in the debate on an earlier amendment.
The noble Lord, Lord Holme, asked a question. Yes, the commissioners will have access to legal advice to enable them to fulfil their functions.
When your Lordships considered the Bill in Committee, noble Lords accepted that it was important that the panel of commissioners appointed under the Bill

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should command widespread acceptance throughout the community in Northern Ireland. That is a test in the legislation. Noble Lords also accepted that the appointment of an appropriate chairman or chairmen was of particular importance. But to meet those tests it is not necessary that the chairman or chairmen should have legal qualifications. The chairman or chairmen will be appointed to give leadership and direction to the commissioners. Those are the particular skills which are being sought; not the specific test of legal competence. The Bill does not preclude the appointment of a lawyer as chairman or as joint chairman, but it is not appropriate that it should require it. For those reasons, I ask the noble Lord not to press his amendment.
Lord Cope of Berkeley: My Lords, the Minister referred to his occasional difficulties in explaining legislation, which I well understand. But that has not been apparent to the House. The Minister always does his best and we appreciate that. As he said, I realise that occasionally he has a difficult job in that respect. The chairman of the commission will also have a difficult job, but that is perhaps not a reason for insisting on his being a lawyer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Applications]:
Lord Monson Lord Monson moved Amendment No. 3.
Page 2, line 16, leave out ("connected with the affairs of Northern Ireland").
The noble Lord said: My Lords, this amendment is identical to one moved in Committee by the noble Lord, Lord Cope, from the Conservative Front Bench. He decided not to press it at that stage. I thought then that it was an excellent amendment and it remains so today. The Government's reasons for resisting it were unconvincing. One suspects that the full implications have not been thought through.
Some terrorists worldwide are motivated by warped idealism; some by mercenary considerations and others by a combination of the two. Above all, it is the latter two categories that one should worry about. If the Bill remains unamended the commissioners would be obliged to release a prisoner who qualified for release on every other count (for example, he is no longer a formal supporter of a terrorist organisation) even if the intelligence services discovered that this particular prisoner—let us say, a skilled bomb maker or an extremely proficient and accurate sniper—had been recruited by ETA (the Basque terrorist organisation) or by violent Corsican separatists or a terrorist organisation in the Balkans, North Africa, the Near East or Middle East, the Indian Sub-Continent, Sri Lanka or Japan.
It is true that subsection (6) provides that a prisoner should not be released if he is likely to be a danger to the public, but the definition of "public" in that context must surely mean in law the public within the jurisdiction of the United Kingdom. It cannot embrace the Spanish public, the Bosnian or Israeli public, nor the Sri Lankan or Japanese public. It is rather tough on the latter to permit known terrorist experts to be released into their midst. It may not be contrary to international
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legal conventions, but it is certainly contrary to international moral conventions. In other words, it is not exactly neighbourly.
There is another factor to be considered. The Notes on Clauses issued by the Northern Ireland Office on 24th June state that prisoners will be released on licence and will be recalled—and those three words are underlined—if they engage in terrorist activity after release.
How can they be recalled from Libya, Syria or Iran? If the Minister can convince us that acceptance of this amendment would, for some strange and obscure reason, be contrary to the terms of the Good Friday agreement, regrettably that has to be the end of the story. But if the Minister cannot do so then this matter needs to be pursued. I beg to move.
Lord Molyneaux of Killead: My Lords, I, too, share the disappointment that Clause 3(5) is worded as it is. In view of a much earlier extension of the Prevention of Terrorism Act over a decade ago to take in international terrorism, it seems wise that we should think carefully, given the perception that terrorists are being let out of prison. That perception will remain no matter what we in your Lordships' House may say by way of explanation. That perception will not be lost on international terrorists. There will be a very real risk of their regarding the United Kingdom as a safe haven and the rest of us as a soft touch. Therefore, I agree that connecting terrorism with Northern Ireland alone is a regrettable step.
4.15 p.m.
Lord Holme of Cheltenham: My Lords, at Committee stage I supported the noble Lord's amendment, and I still do. The noble Lord, Lord Williams of Mostyn, responded from the Government Front Bench. He resisted the amendment on the ground that a review of international terrorism was under way at the Home Office. When the Minister responds, will he be kind enough to tell us about the timing of that review? If it is not to be completed early and deals with the point raised here today, there is a dangerous gap left in our armoury against terrorists.
Baroness Park of Monmouth: My Lords, I, too, support this amendment. The IRA and the so-called splinter groups of Continuity IRA and the 32 Counties Group—if we are to judge by the latest attempts at terrorism in London—are using what are called "lily-whites" who are young people who have never been involved with terrorism before. Therefore, the IRA will be tempted to develop its long-standing relationships with such organisations as ETA and possibly use them as surrogates. One cannot exclude the possibility that there will be combinations of that kind operating. That would be very tempting for the IRA. We should not allow ourselves to be powerless to use the Act against them.
Baroness Denton of Wakefield: My Lords, I also support the noble Lord, Lord Monson, by saying simply that it is not a question of going as far as Spain, Libya

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or Greece to get people back and involved in terrorism again. The record in respect of bringing people back from Dublin is one in ten. That should be borne in mind.
Lord Stoddart of Swindon: My Lords, this amendment has merit. One of the problems with this Bill is that all too often people look on terrorists, particularly Irish terrorists, as starry-eyed freedom fighters. That is not the case. They are not starry-eyed freedom fighters at all, but thugs and murderers.
This Bill gives the impression that they are anything but thugs and murderers and that does no good at all. I believe that the commission has to be completely satisfied that it is not releasing people who like murder, violence and acts of terrorism and who can be bought, not only in the Middle East and in other parts of the world, but perhaps in relation to some other groups in this country. Therefore, the amendment of the noble Lord, Lord Monson, has merit. We should be extremely concerned and very careful that we do not release into the community people who are not starry-eyed freedom fighters but simply thugs and murderers who enjoy what they do.
Lord Tebbit: My Lords, perhaps I may briefly intervene. I hope that the Minister will reflect on what his right honourable friend the Foreign Secretary would say to the government of a friendly nation if one of these individuals arrives in their country and is found to have been involved in something like the bombing of the World Trade Center in New York or a bombing in Israel, or anywhere else. It would be rather difficult for the Foreign Secretary to say, as he presumably would have to—"Well, we did not think he was going to do it in our kingdom, so we did not think it mattered where he took his expertise or to whom he sold it elsewhere in the world".
Lord Cope of Berkeley: My Lords, I am grateful to the noble Lord, Lord Monson, for moving this amendment once again. We discussed it, at my suggestion, at Committee stage. I still support the idea behind it, as I did then. It is very important. My noble friend Lady Park of Monmouth has pointed out the links that already exist between some of the terrorist organisations in Ireland and in other parts of the world. The Government would be placed in a difficult position if a friendly government said that in their view x prisoner whom HMG proposed to let out under this legislation would, if released, assist terrorists against that friendly government. As my noble friend Lord Tebbit has said, in those circumstances all that the Home Secretary could say would be that all that mattered at the time the legislation came on to the statute book was Northern Irish terrorism; that if x was released early and caused difficulty for that friendly government there was nothing under the law that the UK Government could do about it. Parliament had not suggested that.
Reference has been made to ETA and terrorist groups in Israel and other places. It may not be as far away as that. At times Irish terrorism has been directed against the Irish state. If the Government of the Republic of
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Ireland said that they thought a particular prisoner who was likely to be released might pose a danger to them, I do not know how that could be regarded as terrorism connected with Northern Ireland. It would be terrorism connected with the Republic of Ireland. I believe that this restriction is too narrowly drawn.
Lord Dubs: My Lords, this amendment is similar to that which was discussed by noble Lords at Committee stage. At that time it was explained why the term,
"connected with the affairs of Northern Ireland",
had been included. This Bill deals with matters related to Northern Ireland. It is concerned with persons imprisoned in Northern Ireland who in most cases have been convicted of offences related to terrorism.
The form of words used in this clause and elsewhere in the Bill does not require that the activity covered must take place in Northern Ireland. There are many circumstances in which terrorist acts connected with the affairs of Northern Ireland may take place outside Northern Ireland; for instance, the purchase of weapons or training with other illegal organisations. Noble Lords will be aware that acts of terrorism connected with the affairs of Northern Ireland have taken place in England and outside the United Kingdom. What is not covered by the Bill are acts of terrorism that have no connection with the affairs of Northern Ireland. I understand that that is the main reason for this amendment tabled by the noble Lord, Lord Monson. That the Bill is confined to acts of terrorism connected with Northern Ireland is an appropriate limitation in relation to a Bill about Northern Ireland.
The wider question of legislation in relation to terrorism is under review and noble Lords will have an opportunity to contribute to it in due course. I am not yet in a position to tell the noble Lord, Lord Holme, when that review will be made available, but I believe that the House will shortly have the opportunity to consider it. That wider approach to terrorist legislation covering all parts of the United Kingdom, not just Northern Ireland, is an important matter. This matter has been referred to in the past as representing the Government's approach to the wider issues.
Baroness Park of Monmouth: My Lords, perhaps I may seek clarification. Surely, we are concerned to ensure that such criminals should not benefit from the particular dispensation conferred by this Bill. Presumably, this would not normally arise in terrorist cases. That is why we are concerned.
Lord Dubs: My Lords, I understand that. I am dealing simply with terrorist offences that are committed outside Northern Ireland in the context of the Bill. The Bill covers a number of matters but not the matter to which the noble Baroness or the noble Lord has referred.
Clause 3(6) provides:
"The fourth condition is that, if the prisoner were released immediately, he would not be a danger to the public".
I am advised that the definition of "public" is not confined to the public in Northern Ireland or the United Kingdom. The definition goes wider than that. If that

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advice is accepted by noble Lords this amendment is not necessary. Furthermore, if prisoners are considered to pose a risk of that kind they can be refused release. I believe that the Bill in any event has some safeguards. The real difficulty is that we are dealing with a Bill that is framed to deal with a particular situation that stems from the agreement.
Lord Campbell of Alloway: My Lords, I am very much obliged to the Minister for giving way. I am surprised by the legal advice that the Minister has received. Certainly, anyone will argue in court that "public" means what people usually understand that term to mean—our public. On any showing this requires clarification. Will the noble Lord take on board that point? I do not believe that it is by any means certain that "public" can be construed as widely as he suggests without any further limitation.
Lord Dubs: My Lords, I take the noble Lord's point and certainly I shall give thought to it.
Lord Mishcon: My Lords, in helping my noble friend to think about it, as the noble Lord, Lord Campbell of Alloway, has intimated, we must remove any doubt whatever about what "public" means. I agree with the noble Lord that there may well be an argument that this Bill is intended to deal with a domestic matter of the United Kingdom and "public" means the public of the United Kingdom. Will my noble friend consider tabling his own amendment to make this clear by inserting either "to the public anywhere" or "to the public in any part of the world"?
Lord Dubs: My Lords, I thank my noble friend for his suggestion. I should like to think about the points that have been raised, the more so as my noble friend has added to the argument put forward by the noble Lord, Lord Campbell of Alloway.
Lord Cope of Berkeley: My Lords, I apologise for interrupting the Minister again. In the course of thinking about this matter, will he also bear in mind that the condition,
"if the prisoner were released immediately, he would not be a danger to the public",
applies only to lifers and not to the very large number of prisoners due to be released under this legislation who have fixed term sentences? Therefore, in any case it is limited in application. Whatever "public" means it is limited to the release of only some prisoners.
Perhaps I may trespass on the Minister's time by putting another question. Does he suggest it is remotely possible that the review of international terrorism that is being conducted in the Home Office may lead to proposals to alter this legislation when it becomes an Act? I believe it is extremely unlikely that that will happen.
Lord Dubs: My Lords, I did not suggest that. I said in reply to a number of comments, including the suggestion that the United Kingdom was soft on terrorism, that we condemned terrorism absolutely from
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wherever it came; that we were reviewing all of our legislation to do with terrorism; and that the results of that review would be available shortly. I did not suggest that there was a direct link between the release provisions in this Bill and the wider review, but that the latter would bring up to date existing legislation dealing with terrorism; it would not be confined to Northern Ireland but would deal with the United Kingdom as a whole.
I understand the strength of feeling on this matter. The main argument is that this is a Bill about terrorism connected with Northern Ireland and it is difficult to attach to legislation of this kind wider considerations such as terrorism in Spain or any other country. I shall reflect on the point that has been made and return to it at the next stage of the Bill.
4.30 p.m.
Lord Monson:My Lords, I may warmly thank noble Lords from every quarter of the House, Front Benches and Back Benches alike, for their powerful and thoughtful support for this amendment. The only opposing voice was that of the Minister—perhaps "dissenting voice" might be a better description.
The first question is: is this amendment contrary to the terms of the Good Friday agreement? From the fact that the Minister said nothing about it, I suspect that it is not. The second question is; can it be denied that this amendment, if accepted, would be a good thing from the point of view of the entire international community? I do not think that that can be denied.
Lord Dubs: My Lords, perhaps I may clarify whether the fact that I did not say that the amendment took the Bill outside the agreement meant that I thought it was within the agreement. I have doubts about whether the Bill, with this amendment, would be within the scope of the agreement because the amendment imposes a new and different condition and one which was obviously not part of the agreement as decided. I am not happy that the noble Lord should draw the conclusion that he did from my silence on that point.
Lord Monson: My Lords, I thank the Minister. Everything would appear to hinge on two things. First, would the Bill, with this amendment, conflict with the Good Friday agreement? Obviously that will require some research on the part of the Minister and his department. The second point on which everything hinges is the precise definition of "public". There are totally opposing views on this. I think that the valuable suggestion of the noble Lord, Lord Mishcon, that the Bill might be widened at the next stage to include "the public in the world at large" is excellent. Perhaps the Government will see fit to adopt that suggestion.
It seems to me, despite the large support that I have enjoyed, that it might be better to await a little more research on the precise question of whether this amendment conflicts in any way with the Good Friday agreement. Whether it is merely outside it is neither here nor there.
Lord Tebbit: My. Lords, perhaps a little research might go into contemplating exactly which organisations which were parties to the Good Friday agreement might feel that it was damaging to the Good Friday agreement for Her Majesty's Government to have the power to keep in gaol people who might commit acts of terrorism outside Northern Ireland. It would tell us quite a lot about any organisation which took that view.
Lord Monson: My Lords, the noble Lord, Lord Tebbit, makes an excellent point. That, too, must be considered. Tempted though I am to press this, in view of the support I have received, I think it would be better for more research to be done into whether "public" really does embrace "the public throughout the entire world" which, of course, would solve our problems, and whether the amendment conflicts with the Good Friday agreement. We may come back to this at the next stage, depending on how far we get on with that. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 4:
Page 2, line 28, leave out ("may specify only") and insert ("shall specify").
The noble Lord said: Amendment No. 4 brings us on to those provisions in the Bill under which the Secretary of State may specify as "terrorist organisations" those organisations which are believed to be,
"concerned in terrorism connected with the affairs of Northern Ireland"
or not, as the case may be, depending on the outcome of the consideration of the previous amendment, or those concerned in promoting or encouraging terrorism and which have not established a ceasefire.
It seemed extraordinary to us in Committee that the Secretary of State might be thoroughly convinced that a particular organisation was concerned with terrorism and had not established a ceasefire and yet that she should have the ability under the Bill not to specify that organisation as a "terrorist organisation".
I find it difficult to envisage the circumstances in which the Secretary of State should want discretion in this matter. Why should the Secretary of State not specify as a "terrorist organisation" an organisation of the character described? Giving the Secretary of State that discretion only means that the Secretary of State will be pressed to use that discretion for reasons at which we can only guess and about which we can only speculate.
It would be much better if the Secretary of State did not have the discretion once she had come to the conclusion in accordance with Clause 3(8) that the organisation in question was concerned in terrorism and had not established a ceasefire. It seems to me that it would be incredible that she should not do so. That being the case, it is highly desirable that the Bill should say that she should specify such an organisation rather than have discretion as to whether or not to do so. No guidance is given as to how she is to use that discretion.
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As the indications given in Committee were that she never would use that discretion, she would be better not to be given it by the Bill. I beg to move.
Lord Molyneaux of Killead: My Lords, I would very briefly, in two sentences, support what has been said by the noble Lord, Lord Cope, in moving the amendment. We are not in any way suggesting that the Secretary of State should be confused or overloaded by these responsibilities but, as the clause stands at the moment, it gives the impression of a grey area. If, by any miracle, I find myself in the position of the Secretary of State, I would welcome the wording as amended. It would put the position beyond all shadow of doubt.
Lord Holme of Cheltenham: My Lords, the only argument the Minister advanced in Committee against this amendment was that we should trust the Secretary of State. May I say unambiguously that I wholly trust the present Secretary of State? But that is not the issue which noble Lords are raising. Secretaries of State are mutable; others will succeed to the office. This legislation will last for some time. I think it is incumbent on the Government to say why the substitution should not be made.
Lord Dubs: My Lords, this amendment was considered in Committee. It concerns the application of the test in Clause 3(8) of the Bill. Under Clause 3(8) the Secretary of State may specify only organisations that she believes:
"(a) are concerned in terrorism connected with the affairs of Northern Ireland, or in promoting or encouraging it, and
"(b) have not established or are not maintaining a complete and unequivocal ceasefire".
That is the test clearly contemplated under the terms of the Good Friday agreement.
Amendment No. 4 would place the Secretary of State under a duty to specify any organisation which she believed failed the two tests set out in Clause 3(8). It is neither necessary nor appropriate to place the Secretary of State under such a duty. If the Secretary of State believes that an organisation fails these tests, she can and will make an order specifying the organisation as a "terrorist organisation".
Nothing is gained by placing the Secretary of State under a duty in this way. In addition, noble Lords will also be aware that any order made under this clause is subject to the affirmative resolution procedure, so noble Lords will have the opportunity to debate which organisations should be specified when such an order is made.
Lord Holme of Cheltenham: My Lords, before the noble Lord sits down, in that very lucid response he said that the Secretary of State "can and will". If the Secretary of State "will", what is the difference from "shall"?
Lord Dubs: My Lords, the difference is that parliamentary draftsmen will normally use a form of wording because they think it is most appropriate to the

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circumstances. When I said that she "can and will" I was saying that the Secretary of State would clearly interpret both the wording of the Bill—and, indeed, the thrust of the debate here today—in the way I have indicated. However, I believe it would still be preferable to leave the wording as it is now, on the face of the Bill unamended.
Lord Cope of Berkeley: My Lords, I am not convinced. The Minister says that the Secretary of State will never use the discretion. In that case, what on earth is the point of having the discretion in the Bill when all it could do is give rise to extra argument, judicial review and so on? I notice that two of the lawyers who were with us a little earlier have left the Chamber, so I think I can venture on to dangerous ground. It seems to me that the discretion might be such as to give rise to judicial review and to other questions.
The Minister sought to comfort us by saying that because of the affirmative orders the House will have the opportunity to decide whether the Secretary of State has made the correct decision. But the House will not have the opportunity to decide whether the correct decision has been made as regards any organisation where the Secretary of State chose to use the discretion. If some future Secretary of State chose to use the discretion, we should not have the opportunity to discuss the issue because an affirmative order would not be required.
The matter is not satisfactory. I hope that the Minister will reflect on it further in case we wish to return to the issue at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.45 p.m.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 5:
Page 2, line 35, leave out ("take into account whether") and insert ("satisfy himself whether or not").
The noble Lord said: My Lords, having discussed that item in minutiae, we come to one of the main problems in the Bill.
We are agreed I think in all parts of the House and between the two Front Benches that the Bill should reflect the agreement. The difference is that on this side of the Chamber we feel that the Bill should reflect the whole agreement, whereas the Minister thinks that it should reflect the section on page 25 of the agreement headed "prisoners". That is the point of principle underlying the amendment.
The practical point is whether prisoner releases will continue up to and including the two-year stage if decommissioning is not proceeding in parallel with the releases. It is not a pre-condition. We do not ask for decommissioning to take place either in whole or in part before any releases occur. But we want the two to proceed in parallel.
I believe that the agreement clearly envisages that in its overall terms and in particular in its opening statements of the agreement. The Prime Minister has emphasised, as have many other people, that the agreement has to be taken as a whole, and that one
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cannot take out individual pieces. At present the Bill does not do that. It provides that the Secretary of State has to take into account whether an organisation is doing the four things set out in subsection (9), including in particular co-operating with the decommissioning commission.
We suggested in earlier debates more sweeping proposals to the Bill. Those were rejected by the Minister. But this amendment deletes the words "take into account whether". The subsection would provide that,
"In applying subsection (8)(b) the Secretary of State shall in particular satisfy himself whether or not an organisation",
is doing what is set out in the Bill, including co-operating with the decommissioning commission. It is a weaker version which is less satisfactory to me in many respects. But it is an attempt to encourage the Minister a little further in our direction. I hope that at the very least it will cause the Minister to say clearly that the Government are determined to see the whole agreement, including decommissioning, put in place over the same timescale of two years, and that if decommissioning is not running in parallel as the two years progress then prisoner releases will not continue.
I believe that to be the Government's position. It should be spelt out clearly for the benefit of the law-abiding public. It should also be spelt out so that there can be no complaints from prisoners if the release programme is stopped at some point during the two years because decommissioning is not proceeding in parallel. It would be unfair to let prisoners believe that they will be released if the whole agreement, including decommissioning, is not proceeding.
Your Lordships may recall—I have said it before—that I hate the idea behind the Bill. I believe that prisoner releases are acceptable only if their organisations have given up violence for good. I think that the Bill is an injustice anyway, and without decommissioning, without a proper end to violence, it is a horrible and a deadly mistake to pass the legislation, which could have appalling consequences.
Nevertheless, the Bill is acceptable if there is a permanent end to the violence. Decommissioning is the most practical, verifiable and effective way of gauging the reality of a permanent end to violence as opposed to a temporary lull. There have been previous temporary lulls. But that is not enough to justify a Bill of this character. If an organisation, in the terms of the Bill,
"is committed to the use now and in the future of only democratic and peaceful means to achieve its objectives",
then it can have no use for arms and explosives. I can foresee difficulties about establishing for certain whether some members of what has been until now a terrorist organisation are still preparing plans for violence. But there will be no doubt about the fact of decommissioning. That is why I say that it is the most verifiable, effective way of judging the end to violence.
The other criteria depend to a great degree on the Secretary of State gauging sensitive, difficult, intelligence information, good as that can sometimes be. But for the decommissioning commission to say that it can certify that x number of guns or pounds of

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explosives have been destroyed is a different matter. It is a matter that everyone will know about. It will demonstrate clearly that there has been an end to violence. It will be difficult for anyone to be sure that all the weapons of an organisation have been destroyed. Of course new weapons can be obtained; and of course some terrorists will continue the violence in support both of political aims and for the financial rackets. But decommissioning still remains the key action which will signal an end to violence by a terrorist organisation. It is a key requirement of the agreement.
The agreement needs to be implemented in full. I believe that the Bill should reflect that. The amendment goes a small way to seek to achieve that.
Lord Hylton: My Lords, I apologise for not having taken part in or been present during the earlier stages of the Bill. Part of the reason was that I was in Northern Ireland at the time. It seems to me that the noble Lord has somewhat overstated his case on the amendment, but I leave that for the Government to reply to.
I seek reassurance from the Minister that former terrorists who used to belong to organisations but who have clearly broken their links with their old organisations while in prison—I can think of a good many people in HMP Maghaberry and perhaps a few elsewhere who have done so—will still be eligible for release, even though the Secretary of State is not fully satisfied with the organisation to which they used to belong. If the Minister finds that a little complicated and would prefer to write to me, I shall be quite happy.
Lord Holme of Cheltenham: My Lords, whereas I was happy to support the noble Lord, Lord Cope, on his previous amendment, I fear that I cannot on this one. It is not that I find the wording of line 35 satisfactory. I fear that there is not sufficient clarity about who makes the decision on (a), (b), (c) and (d) and upon what evidence he or she makes it. I still have that acute reservation. The amendment strikes at a fundamental piece of architecture of the Good Friday agreement by which the Secretary of State is required to take into account those four various considerations in arriving at a judgment.
As the Minister knows, I should like greater clarity about how the Secretary of State arrives at a view on each of those four considerations, but it is taking those four considerations as a whole and balancing them as a matter of judgment in the account that she takes that is crucial to the Good Friday agreement. I understand what the noble Lord, Lord Cope, is trying to do, but I believe that in this respect it would strike at the delicate agreement constructed a month ago.
Lord Molyneaux of Killead: My Lords, I, too, share the anxiety over the lack of clarity, especially of the conditions and of subsection (8) in its entirety. Like the noble Lord, Lord Holme, I would welcome clarification on those points. I support what was said by the noble Lord, Lord Cope of Berkeley. I regard the amendment and the explanation he gave for submitting it as a positive suggestion designed to have a positive effect.
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In the current situation, and the situation as it is likely to obtain for some considerable time, the amendment suggested would remove ambiguity and the impression of weakness. The impression of weakness always greatly encourages evil doers of all sorts.
Lord Cooke of Islandreagh: My Lords, the potential the Bill has for causing unease and unrest in Northern Ireland if it is thought that there is any fudging of the conditions under which early releases will take place may not be understood. Anything in the wording that suggests that it could be fudged should be cleared up. That applies to the previous amendment and the one before it, which in my view added clarity.
In this case I cannot understand why "to satisfy himself" would be contrary to the Belfast agreement. I should have thought that it was in order. To "take into account" is a phrase of little meaning. How does one "take into account?" I find that dubious. "Satisfy himself" makes sense. I look at the amendment in the broader sense also. If there is, and there will be, certain contention about the releases, the thought that there is room for fudging would be most unsatisfactory.
Lord Desai: My Lords, I support what the noble Lord, Lord Holme, said. There are times when fudging is better than clarity. In a delicate situation, there are a number of aspects to be considered which cannot all be put on the face of the Bill. One needs a great deal of understanding, common sense and delicacy. This is the time, when the situation is so delicate, when we should leave well alone, and leave the Bill as it is.
Lord Dubs: My Lords, the amendment is intended to change the nature of the test that the Secretary of State must apply in determining whether an organisation is a "terrorist organisation" for the purpose of the Bill. It changes the nature of the test. Although there is only a small change in the wording, it is significant.
Clause 3(9) incorporates those matters, referred to by the Prime Minister in his Balmoral speech, which were intended to clarify how the Government would determine whether an organisation had established and maintained a complete and unequivocal ceasefire. In his speech the Prime Minister referred to the four matters he identified as factors to be taken account of. He did not, as the amendment would do, make each of the factors a separate test to be satisfied. He said:
"These factors provide evidence upon which to base an overall judgment—a judgment which will necessarily become more onerous over time".
He also said:
"We are not setting new preconditions or barriers. On the contrary we want as many people as possible to use the Agreement as their bridge across to an exclusively democratic path".
The Prime Minister was careful to stick closely to the terms of the agreement, and so should we. The Government have clearly said that they will not accept any amendment which would depart from the terms of the Good Friday agreement. The amendment would do so, and for that reason the Government are resistant to it.

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I should like however to clarify one or two other points which were raised during the debate. The noble Lord, Lord Hylton, asked about terrorists who had broken their links with the organisations to which they had previously belonged. Yes, any person who is not a supporter of a terrorist organisation and who otherwise meets the conditions in Clause 3 is eligible for release under the terms of the Bill.
The noble Lord, Lord Cooke, talked about the fudging of the conditions. A complete and unequivocal ceasefire means not a sham or a tactical ceasefire, but a proper ceasefire. We are in no way seeking to fudge that point. As to the substance of the amendment, I can only repeat that I believe, and the Government believe, that it would depart from the terms of the Good Friday agreement. It would depart from the terms of the commitment given by the Prime Minister by way of explaining how the Good Friday agreement would operate. As such, I believe that it would be wrong in principle for the House to accept it.
Lord Cope of Berkeley: My Lords, I agree with the Minister that the amendment makes a definite change to the way in which the criteria are to be applied. That is obviously its purpose. The noble Lord, Lord Hylton, suggested that I had overstated the case. I plead guilty to that in the sense that the amendment is not as strong as I would have wished, and, indeed, as some of the amendments we moved in Committee.
The amendment is, as I explained, an attempt to persuade the Minister to move in my direction. In that it has failed, whether I was overstating or understating it. I failed to move the Minister in my direction. He emphasised once again the agreement, but I emphasise once again that it seems to me that it is the whole agreement that matters. Decommissioning is equally part of the agreement, with the prisoner release part of the agreement. All of it should move in parallel. However, I have not persuaded the Minister that that is the case at this point. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, I should point out that if Amendment No. 6 is agreed to I shall be unable to call Amendment No. 7.
Lord Dubs Lord Dubs moved Amendment No. 6:
Page 2, line 40, leave out ("committed").
The noble Lord said: My Lords, the noble Lord, Lord Cope, has tabled Amendment No. 7 which is the same as one which your Lordships' House considered in Committee. At that time I undertook to reflect further on the matter and said that I would bring forward a further amendment myself if that would be helpful. That I have done in the form of Amendment No. 6.
Both amendments would have the effect of extending the scope of Clause 3(9)(c). The effect of that amendment in the name of the noble Lord, Lord Cope, would be to require the Secretary of State to take account of whether an organisation was involved in
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directing or promoting acts of violence planned by other organisations as well as acts of violence committed by other organisations.
The amendment in my name achieves a similar effect but by a slightly different means; that is, by removing the requirement that an act of violence has been committed by another organisation. Now the focus is on the activity of the organisation that is under scrutiny, not the proxy organisation. The question is whether the organisation under scrutiny is engaged in directing or promoting acts of violence by other organisations. That could include general support through financial assistance as well as assistance with particular acts of violence which are planned or committed. As such, my amendment covers a wider range of activity than the amendment in the name of the noble Lord, Lord Cope. The Government consider that their amendment fully reflects the commitment given by the Prime Minister in his Balmoral speech and that it remains faithful to the Good Friday agreement.
I thank the noble Lord, Lord Cope, for his help in drawing attention to this matter. I hope that he will agree that the Government's amendment is wider in its scope than the amendment in his name. Therefore, I hope that he will feel able to support the Government amendment.
Lord Cope of Berkeley: My Lords, I am grateful to the Minister for taking up the point I made in Committee and moving his amendment. We move from a matter of principle to nitpicking over the wording. The noble Lord says that his amendment is wider, but I am not sure about that. Let us suppose that organisation A claims to be on ceasefire, but it becomes known to the Secretary of State that those in charge of its store of weapons, ammunition and explosives are allowing them to fall into the hands of organisation B, which is not on ceasefire. The only reason for organisation B having the weapons will be because it is planning violence. I believe that that action would slip through the Minister's new wording, which concerns me. However, if my wording were applied, such action would cause both the organisations, A and B, to fail the test.
Nevertheless, we should not nitpick too much across the Floor of the House when we are agreed on the principle which lies behind the issue.
On Question, amendment agreed to.
[Amendment No. 7 not moved.]

Health Expenditure
The Minister of State, Department of Health (Baroness Jay of Paddington): My Lords, with the leave of the House, I should like to repeat a Statement being made in another place by my right honourable friend the Secretary of State for Health. The Statement is as follows:
"The Government's top priorities are to renew and modernise our country's health and education systems. And so on Tuesday the Chancellor of the Exchequer was able to announce that as a result

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of our comprehensive spending review an extra £21 billion will be invested in the National Health Service in the United Kingdom over the next three years, approaching £18 billion in England. This is an average annual real terms increase of 4.7 per cent. over the three years, starting off with 5.7 per cent. next year. It will kick start the Government's 10-year programme of modernisation for our National Health Service.
"This is the biggest cash increase ever announced for the NHS. This step change in funding will be matched by the biggest programme of renewal and modernisation since the NHS was founded. Investment for reform: £21 billion is a large sum of money. It has been welcomed by the representatives of all the people working in the NHS and described by the National Health Service Confederation as "beyond their wildest dreams". However, when set against the run-down state of the NHS which we inherited when set against the improvements which the staff and the public are seeking, when set against the scale of our ambitions, even £21 billion is a settlement that will have to be tightly managed and properly targeted. Not all the problems that we inherited in the NHS are going to be solved over the next three years. They are too deeply entrenched for that. Not all the improvements we seek can be delivered in that time. But what both staff and public will see is a demonstrable year-on-year improvement in all parts of the health and social care system.
"Staff and patients alike want to see a modern and dependable health service. A modern health service requires high and stable levels of funding. In all its long history the NHS has never before had a three-year settlement. The NHS has never been able to plan beyond the short term. Modern organisations have to plan for the long term. The NHS can now do that for the very first time.
"A modern health service requires enough staff, well trained and highly motivated. With the extra money we are making available, the NHS will be able to take on more doctors and more nurses—up to 7,000 more doctors and 15,000 more nurses over the next three years. And earmarked funds will be provided to allow staff to update their skills to keep up with rapidly changing technology. I can tell the House today that over the next three years there will be an extra 6,000 nurse training places. And I will shortly be announcing a large increase in the number of places in medical schools. With these extra staff, NHS hospitals will treat an extra 3 million patients.
"Expanding staff numbers, in particular to deal with some of the shortages we know exist, depends upon pay rises being fair and affordable: fair, to allow us to recruit and retain motivated staff; affordable, to allow us to make the modernisations patients demand. Fair pay and modernisation must go hand in hand. That is why for the first time we are asking the pay review bodies formally to take into account the service improvements we want to achieve, the resources available to the NHS and the Government's inflation target, as well as recruitment and retention.
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"A three-year settlement allows the NHS to take a longer term view. Now that funds are guaranteed for three years, for example, there should be no more systematic use of short-term employment contracts for nurses and other staff. That will provide security that they do not have at present.
"A modern health service requires modern buildings and modern equipment. Over recent years, the NHS has been starved of capital. We are putting that right. That is why as part of the modernisation programme £8 billion will be invested in new hospitals, clinics and GP premises. Thirty new hospitals are already planned. Work is already under way at Dartford and Gravesham, Norfolk and Norwich, Carlisle, High Wycombe, Durham, Sheffield, Amersham and Greenwich. There will be more to come. But new and better buildings will not be confined to the places getting new hospitals. We will be increasing public sector capital by 50 per cent.
"Hospitals in every part of the country will benefit. Hundreds of wards, A&E departments and operating theatres will be refurbished. And every year outdated equipment will be replaced with the newest and best medical science can offer.
"And we are investing in primary care. Over the next three years 1,000 GP surgeries will be improved or rebuilt.
"A modern health service requires earmarked cash to make change happen. I can announce today that the £18 billion settlement for England includes a £5 billion-plus modernisation fund. This money will be strictly targeted on helping NHS staff to transform the NHS into the kind of service both they and we want to see: a service which is fast and convenient; a service which has uniformly high standards; a service which is moulded to the needs of patients.
"The modernisation fund will fund the IT revolution. It will go towards making sure that we meet the reductions in waiting lists to which we are committed. We will also use money from the modernisation fund to make a start this year on introducing booked admissions, so that when a patient is told by his GP that he needs to attend an outpatient clinic he will be able, there and then, to book an appointment which suits him. Similarly, if a patient has to have surgery as a day or in-patient, he will be able to book an admission date which suits his needs and family and work requirements.
"Besides contributing to the refurbishment of hospitals and the building of new GP premises, the fund will help buy new equipment. It will support the promotion of good health. It will pay for better training of NHS staff. It will provide modern and effective mental health services. The modernisation fund will be allocated to finance well worked out plans and proven mechanisms for improving services. It is investment for reform.
"A modern health service requires modern ways of working. By getting rid of the wasteful and divisive competitive internal market, we are taking money out of the bureaucracy and into patient care. Primary care groups involving doctors, nurses and social services

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will replace the maze of commissioning and fundholding organisations. NHS management trusts will be amalgamated. Competition between hospitals is being ended. They are working together again. They will continue to do so. The NHS is proudly already the most cost-effective healthcare system in the world. But there are unacceptable variations in performance. Management effort will be targeted on hospitals where costs are above the national average. A new performance framework will help measure progress. Our value-for-money improvements should release a further £1 billion a year for patient care. So there will be a tough drive on genuine efficiency. That means more money for patients, more money for staff and better value for taxpayers.
"A modern health service also requires a new relationship with social services. We have made a start on breaking down the Berlin Wall between the NHS and social services.
"To back that up, over the next three years we are providing an extra £3 billion for social services so that they can match, complement and augment what the NHS is doing—an increase of 3.1 per cent. in real terms, year on year. So for the first time they will be able to produce joint local long-term plans with the NHS. And for the first time we will be setting tough efficiency targets for all social services authorities to help them deliver the goods for vulnerable people. It will mean better help for the elderly and for carers. There will be new measures to allow tens of thousands of old people to live an independent life, where at present they often end up trapped in nursing homes or in hospitals. And it will mean more help for people with mental health problems to match the extra NHS commitment to mental health.
"Arrangements for looking after children in care have far too frequently been deplorable, with children being molested, with low levels of school attendance and educational attainment. Many of them have been turned out of care to fend for themselves when they are little more than children. We are determined to give them a new deal and the extra social services money will provide the money necessary to improve the quality of care received by children living away from home. And not before time.
"All this effort, all this investment is intended to deal properly with people when they need treatment and care. But this Government are not satisfied with a health policy just for treating the sick. We want to stop people getting ill in the first place and stop people dying prematurely. And we want to tackle the growing inequalities in health.
"That is a job for the whole Government, not just for the Department of Health. This CSR settlement is not just a good settlement for our health service; it is a good settlement for our people's health: £540 million for the Sure Start children's fund, almost £4 billion to invest in decent housing and improved insulation, £3 billion for deprived communities, £1.7 billion for transport, and mostly public transport. And that is on top of our earlier commitment to the £3.5 billion New Deal for jobs
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and our introduction of a national minimum wage. What all this amounts to is the biggest health crusade the country has seen since the NHS was born 50 years ago—a modern, government-wide crusade.
"The NHS was founded on a simple principle: care should be provided on the basis of need. That principle has served the NHS well for 50 years.
"While we were considering the CSR we were urged by all sorts of people to abandon this principle: by some of the honourable Members opposite; by the Social Market Foundation; by the Adam Smith Institute; by many of our newspapers; by various professors. They wanted us to charge people for going to the doctor. Charging to see a GP. Charging for outpatient appointments. Charging people for going into hospital. We have looked at all of this very carefully. We have looked at all the pros and cons. We have spent the best part of a year doing it. We utterly reject these ideas. We have rejected them because they would not work and they would harm the worst off. Charges would be expensive to collect and would glean little overall revenue. Most important, charges would deny treatment to those who need it most. So I can announce today there will be no new NHS patient charges in the lifetime of this Parliament.
"And we have not stopped there. From next April the NHS will provide free eye tests for pensioners. This will be good for their purses and pockets, good for their sight and good for their general health.
"This is an historic settlement. It will enable the hardworking and dedicated staff of the National Health Service and social services to provide the treatment and care that people need and to provide it to a higher standard than ever in every part of the country. It will modernise and renew the NHS. The extra money will be matched by enormous changes and improvements.
"Over the last few weeks we have been celebrating the 50th anniversary of the NHS. That was right and proper. But now we must do as the founders of the NHS did. We must look forward; find the resources; and make the changes that are necessary to relaunch the NHS so that it serves our country well for the next 50 years. Nothing less will do, and that is what this Government are doing."
My Lords, that concludes the Statement.
5.15 p.m.
Lord McColl of Dulwich: My Lords, I thank the noble Baroness for repeating the Statement. Of course, we welcome the promise of extra funds for the NHS, provided that they are based on sound money.
The Government's claim that an extra £21 billion will be available for the NHS over the next three years is an extremely interesting piece of creative accounting. We welcome the proposed increase in the number of nurses and doctors, although recruitment of nurses has been a great problem, even though the money has been there.
To be more specific and down to earth, will the Minister tell us what she proposes to do about the 300 fully trained obstetricians who are waiting for consultant

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posts? Will she ensure that many more consultant posts are created for them? Will she tell us when she thinks that will be?
Does the Minister accept the figures produced by the House of Commons Library which show that the extra money from the comprehensive spending review over the conservative real growth trend of 3.1 per cent. is just over £2 billion, which is a very long way from the £21 billion that is being claimed?
Furthermore, is it now the case that the independence has been taken out of the Independent Pay Review Body and that its recommendations are now subverted to Treasury considerations? If that is so, it will be a betrayal of the principles of such review bodies. How will the Minister react to the British Medical Association's objection to any unilateral attempt to undermine the fairness of pay review bodies?
The Independent newspaper today states that this is not the largest real terms three-year increase in the history of the NHS as asserted by the Chancellor. It is in fact below the 5.6 per cent. that we spent between 1990 and 1993.
Will the Minister tell us how much the millennium bug programme will cost the health service? I believe that the Audit Commission estimated that it may be as high as £850 million. What will be the cost of the minimum wage to the NHS? How much will the abolition of compulsory competitive tendering cost the NHS? How much will the abolition of tax relief on private medical insurance for the over-60s cost the NHS in terms of extra work?
Finally, when we subtract all those figures from the extra £2 billion and also allow for inflation and the costs of administering each of the primary care groups, it seems to me that there will be only a few hundred million pounds left, which is barely enough to run the NHS for a week.
To be fair to the Government, perhaps they are hoping for some surprises for the NHS. We sometimes have completely unexpected results from medical research. For example, Viagra was designed originally to relieve angina but it did not work. The doctors were therefore extremely surprised that the male patients who were given the drug seemed somewhat reluctant to give it back. Perhaps the Government are hoping for a similar piece of luck to give them some surprises.
5.19 p.m.
Lord Newby: My Lords, we, too, welcome the Statement. Naturally we welcome the additional funding which forms the heart of it, but we would have preferred it if the Government had felt able to make some of that funding available earlier rather than later. Nevertheless, we are pleased to see that there will be significant extra funding from the next financial year. We specifically welcome the proposal for free eye tests for pensioners, although we believe that such a preventive test should be freely available for all ages. Indeed, the maximum benefit of such tests is that they should be available freely at the point when the problems first arise. We
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also believe that the principle of free eye tests should be extended to dental checks and again that those checks should be available to everyone.
However, we are less impressed with the proposals to ratchet up prescription charges and are somewhat surprised at this given the fact that when in opposition the Labour Party described such increases as a "tax on the sick". We would have frozen them at their present level and regret that the Government did not take this opportunity to do so.
The Statement raises a whole raft of questions, but the House will be pleased to know that I shall not attempt to cover all of them. However, there are one or two points that I should like to mention. We obviously welcome the increased provision in staff numbers. However, given the fact that unfilled vacancies at present amount to some 10,000, of whom 8,000 are nurses, how confident is the Minister that on current levels of pay higher target levels of staffing will actually be met? How confident is she that we will not find that higher staffing levels are at least partially matched by higher unfilled vacancy levels?
Moreover, on the question of pay, given the stricter terms of reference that have been given to the pay review bodies, can the Minister confirm that the Government will in future implement their recommendations in full from the start of the relevant financial year and not stage them, as has been the case both under the previous government and so far under this one?
I turn now to waiting lists. Before the election, the Government said that they would be spending £100 million to take 100,000 people off waiting lists. The Statement says remarkably little about waiting lists. Given the fact that the Government are actually spending an extra £21 billion in their terms rather than the extra £100 million that they were talking about in terms of waiting lists before the election, can the Minister say why they have not set a target? Indeed, we would have suggested a six-month target within which all patients requiring serious operations would be treated. Can the Minister also say whether further progress can be made beyond what is in reality a relatively modest waiting list target that the Government have set and, because of their parsimony to date, have so far failed to meet?
I conclude with a slightly broader question as regards the extent to which the extra funding available could offer a much wider range of services for seven days a week and 24 hours a day, rather than just for the working week. It is a cross that the Minister has to bear in her current portfolio that everyone uses the NHS and, therefore, has his or her own bit of experience to relate. I am afraid that this is the point at which my little bit of recent experience is brought to bear. I had to take my son, with a broken wrist, to the John Radcliffe hospital on a Saturday a few weeks ago. We had to wait for hours to be seen at the fracture clinic because there was only one doctor on duty. Thereafter, we had many more hours of waiting for my son to have a minor operation because only one operating theatre was staffed. We were told that, if we had been there on a "working day", the

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levels of staffing would have been significantly different. In that area—and, indeed, in many other areas of care—it is the case that in all too many instances the quality of treatment depends on exactly when a person is taken ill. What assurances can the Minister give that this unacceptable state of affairs will now effectively be addressed?
5.23 p.m.
Baroness Jay of Paddington: My Lords, I am grateful to both noble Lords for their response to the Statement, although I have to say that their financial arithmetic leaves even me—not the world's greatest expert in mathematics—somewhat adrift. Perhaps I may explain to your Lordships that £3 billion will be put into the health service next year, £6 billion will be put in the year after and £9 billion the following year. That adds up to £18 billion. If we then add the £3 billion for social services, the total figure is £21 billion and not £2 billion or £2.1 billion—or whatever it is that members of the Conservative Party seem to have agreed as the figure they wish to bandy about. One wonders whether they have added an unexpected decimal point between the two and the one thus enabling them to come up with such a figure. However, let us assume that we can agree that substantial sums of money are being put into the health service, that this is new money and that substantial sums are also being put into the social services budget, which is also new money.
Both noble Lords raised the question of the independence of the pay review bodies. Those bodies will continue to have the independence that they have always had. As I said when repeating the Statement, we have tried to make explicit what has always been implicit in their considerations. Obviously, if one is looking at pay for a large number of people in the public services, the current economic position of the economy as a whole has to be taken into account and, indeed, the current performance of the service to which the pay review is applied. But that does not in any way undermine the independence of those bodies. My right honourable friend the Secretary of State repeated in another place earlier this afternoon that he will certainly wish to ensure that he will not have to pay staged pay review recommendations in the future. I am sure that that is something that he will adhere to as far as he can.
The other points made by both noble Lords related to the quality of the service. It is true that there are problems as regards shortages of doctors and nurses of the type referred to in relation to the particular experience at the John Radcliffe hospital. However, I should tell the noble Lord, Lord Newby, that it is wrong to imply—and certainly unnecessarily critical of the many millions of people who work 24 hours a day in the health service, whether in primary care, in emergency services or indeed in our hospitals—that the NHS is not now a 24-hour service. Indeed, it is.
Precisely what we are trying to do by expanding the number of people in the medical and nursing professions is to provide better cover, better services in accident and emergency and a more rapid response to the kind of problems that the noble Lord experienced. No one would protest that the health service cover at present at
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the week-ends or during the evenings was total and perfect. But to suggest that the NHS is not a 24-hour service now is to undermine confidence in the quality of the work which is carried out for seven days a week.
The noble Lord, Lord Newby, also raised the question of waiting lists. The £500 million already agreed in the spring Budget has been targeted directly to reducing the number of people on waiting lists. Again, as my right honourable friend the Secretary of State has announced, waiting lists are now beginning to go down and they will continue to do so. Indeed, they will go down for the remainder of this Parliament. Of course they remain a priority, but not within the context of the modernisation fund to which I believe the noble Lord was referring. That is more specifically targeted towards the kind of improvements in the service that I listed when repeating the Statement.
The noble Lord, Lord McColl, raised specific questions about the year 2000 and about the provision for people who fall within the minimum wage category. I can tell the noble Lord that the provision which has been agreed and which has, as I understand it, now been accepted as appropriate for the health authorities for remedying the problems with the year 2000 so-called "millennium bug" was already included in those budgets and, therefore, does not require new money. On the question of the minimum wage, I can tell the noble Lord that we have agreed that it will take up approximately £20 million of the NHS budget. We believe that to be entirely appropriate and simply regret that there are that number of people working within the health service who fall within the category and need the protection of the minimum wage provision.
5.28 p.m.
Lord Bruce of Donington: My Lords, it is a particular pleasure for me to be able to congratulate my noble friend the Minister and the Government on these new national health proposals. It is only 50 years ago since I sat on the second Bench opposite, when the other place was sitting in this Chamber. I sat behind my chief, Aneurin Bevan, while he went through his introduction to the Bill which was thereafter translated into the National Health Service. There is an awfully long way to go. Those of your Lordships who have seen the recent OECD report on health in various countries throughout the world will know that the United Kingdom comes 22nd from the top of the list of expenditure expressed as a percentage of GDP. In Germany, for example, 10.5 per cent. of GDP is spent on health. In the United Kingdom, the figure is 6.9 per cent. I repeat that we are 22nd on the list. There is a long way to go. I feel confident that the Government will be able to go that far. Certainly on the basis of the OECD figures, they cannot consider any capping of expenditure on the National Health Service.
There is also the commitment, which I welcome, and which I have long advocated, of a return to the nation's health being the responsibility of the whole of government and of all departments rather than relying on only the ministry of health and local authorities to deliver the service. It is quite clear from the Statement that the Government intend to use the other great

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departments of state to produce those conditions which encourage good health, which fight ill health and which, as a consequence, lower expenditure on the health service. This should be a proud day for the Government; it certainly is for me. For my part, I only hope that world economic and financial conditions are such as to permit the fulfilment of this commitment.
Baroness Jay of Paddington: My Lords, it is a great pleasure to me that my noble friend Lord Bruce of Donington is present this afternoon to draw on his extraordinary historic experience of the foundation of the health service. It is a great pleasure to me that he feels that the principles behind that are being maintained by the present Government. I can reassure him that we consider public health in the wider context of housing, air quality, the experiences of young children, and all aspects of economic life, particularly employment. Those are considerations which we feel are as relevant to health policy as the rather narrower concerns of the health service. I can assure my noble friend that we shall give those matters priority.
Lord Hayhoe: My Lords, the Minister knows of my interest in the hospice movement. Her support for hospices is equally well known. I do not think I heard in the Statement any reference to that important element within our health services. Will the Minister give some indication of whether the hospice movement generally will benefit as a result of the extra resources that are being made available?
Baroness Jay of Paddington: My Lords, I am grateful to the noble Lord, Lord Hayhoe, for his comments. Both he and I have an interest in the hospice movement. Specific funding for the voluntary sector has not yet been agreed. However, I can assure the noble Lord that I am concerned that those great instincts and methods which have been pioneered by the hospice movement in palliative care are extended and included in the health service. The noble Lord may not be aware that in the past few weeks in order to encourage good practice the NHS has distributed to its own hospitals the important policy documents developed by the hospice movement. I shall certainly make it my business to ensure that that good work is extended.
Lord Morris of Manchester: My Lords, speaking as a former Minister, I am naturally delighted that resources for the National Health Service will be so very substantially increased in the years ahead in further fulfilment of the manifesto promise. I congratulate my noble friend and, of course, my right honourable friend the Secretary of State for Health on what they have achieved. The figures mentioned in the Statement are huge. The NHS now has an opportunity to improve patient care as never before and, as my noble friend said, also to improve prevention. In proportion as we maximise prevention, the NHS will have still more resources to enhance patient care.
But is there anywhere in the Government's plans any provision for the modest cost of giving help that many of us in both Houses of Parliament seek for people who
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were infected with Hepatitis C by contaminated NHS blood products, and for the dependants of those who have now died of liver failure in consequence? My noble friend will be aware that we recently debated in your Lordships' House the depth of suffering caused by this tragedy in the haemophilia community. Is theirs not a compelling claim, more especially in view of the High Court's recent decision in favour of those who fear they may develop CJD due to NHS treatment? They fear a life-threatening condition. The patients infected by contaminated blood products with Hepatitis C now have a life-threatening condition. Does not that alone make their urgent claim for help a most compelling one?
Baroness Jay of Paddington: My Lords, my noble friend Lord Morris of Manchester, as always, shows his concern for those with a particularly unfortunate form of disability. I am grateful to him for what he said about the public health agenda. We hope that through that agenda we shall be able to prevent the 15,000 premature deaths a year of people who unfortunately die before their natural life span is ended through diseases such as cancer and coronary heart disease. As regards the specific point about those infected with Hepatitis C, I hope that my noble friend will be glad to learn that yesterday I met a cross-party delegation of 10 Members of another place and we discussed this issue thoroughly. I am now in the process of discussing that again with my right honourable friend the Secretary of State.
Lord Hunt of Kings Heath: My Lords, in welcoming the Statement, I observe that my successor as chief executive of the NHS Confederation has described the settlement as beyond his wildest dreams. In the 15 years that I occupied that post I was never able to make such a statement. Does my noble friend agree that in accepting this additional resource for the NHS, the NHS will be judged principally on whether it is able to modernise its services and facilities? In order to do that, three conditions must be met. First, the managerial infrastructure of the NHS must be developed, leaving aside the traditional debate of whether or not we have too many managers. Without question we have dedicated people who are underskilled and underdeveloped. They need to be developed much more fully to take on the leadership role that they have to accept.
The second condition relates to an issue that has been faced time and time again; namely, the public's resistance to changes in the use of many of our hospitals. Does my noble friend agree that until the medical profession in particular is prepared to lead that change and to explain to the public that that change is in the public's interest, proposals for the modernisation and reorganisation of our hospital services will continue to hit the buffers?
Does my noble friend agree that the third condition that has to be met concerns the way in which we deal with the staff of the National Health Service? Year after year they have accepted more and more pressure and have treated more and more patients. However, our human resource capacity is incredibly underdeveloped. We do not support our staff on the front line who are in

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"pressure-cooker" situations. Does my noble friend accept that we must improve our human resource management and the support that we give to staff?
Baroness Jay of Paddington: My Lords, I am tempted merely to reply "yes". My noble friend has, as always, made substantial points, with all of which I agree. To reflect on them in slightly more detail, I hope he will agree that the £5 billion fund for modernising the health service has been earmarked for precisely the kind of developments that we hope will assist managers, such as the IT revolution, and will be supportive of their activities.
I think it is fair to say, and it is a point that we want to make explicit, that there should be a clear attraction for people to do the jobs very well. That is one of the reasons why my right honourable friend the Prime Minister, in his speech to the 50th anniversary conference 10 days ago, referred to the concept of "beacon" hospitals; namely, hospitals that would attract more resources given that they were in a sense performing above expectations, and which would then, we hope, act as leaders within the profession of NHS management and within the medical and clinical professions in achieving the targets that we want to see developed.
Turning to the question of leadership of the medical profession in general, one of the most encouraging features of the past few months has been the ready acceptance, particularly by members of the medical and nursing professions, of the need to address issues of quality within the health service; and also, interestingly, the need to address the concept of a change of practice. It is true that leaders of professions may not always reflect the wishes and aims of other members of those professions who operate on the front line.
One of the most encouraging factors in trying to implement change and introduce documents such as A First Class Service, as we did a few weeks ago—which tried to demonstrate the need to introduce systems such as clinical governance, systems where professional performance is monitored, or where national guidelines are issued to the clinical professions—was the warmth of reception for those proposals. It has been most encouraging, and I am optimistic about that attitude.
On the question of staff, it is the case that human resources policy for the 1 million dedicated and committed members of staff who keep the health service going has been extraordinarily lax. My honourable friend Mr. Alan Milburn, the Minister of State in another place, is presently setting as one of his highest priorities in working with the new director for human resources for the health service the development of a proper, strategic human resources policy, which will include the recruitment and training of up to 7,000 more doctors and 15,000 more nurses, and will make it possible for us to take on a more strategic approach to precisely the developments that we need in professional organisation. The same approach needs to be taken to the very important matters, particularly in the nursing
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profession, of family friendly policies, and more flexible employment policies, which we hope will help with recruitment and retention of staff.
Lord Rea: My Lords, I join in congratulating my noble friend and her right honourable friends on producing the Statement. It is very welcome to those who are working, or have worked, in the National Health Service. However, the amount is not excessive; it is not prodigal. The amount is to be £3 billion per annum, year on year, over the next three years. It is a useful amount, and will allow the plans that the Government are developing, together with work of all kinds in the health service, to be put into effect.
Perhaps I may return to the burning question of nurse recruitment, and achieving the targets mentioned by my noble friend in increasing the numbers of nurses and doctors. From reading between the lines, I understand that the Government are, as it were, giving a nod and a wink to the review bodies that they may need to do something about helping to increase recruitment through decent salary awards. For instance, what is my noble friend's view of the statement made on radio earlier today by Christine Hancock of the Royal College of Nursing? She said that in recruiting and retaining nurses the question of the payment of staff must be a major consideration.
My noble friend Lord Bruce of Donington said that, as our health improves—in which we all hope and feel that this package will help—people will make less use of the National Health Service and that will save money for the health service. I think that that is a fallacy. If people do not die, they go on living—and they suffer from chronic diseases which cost the health service a lot of money. A recent paper from Holland indicated that mental health conditions, arthritis and locomotor conditions cost the health service more than conditions which kill.
Baroness Jay of Paddington: My Lords, my noble friend, with his long experience in general practice, has thrown up an interesting conundrum in his final remark.
On his first point, that even £21 billion is not necessarily the pot of gold at the end of the rainbow, he is precisely right. That is why, in repeating the Statement, I said that even a £21 billion settlement will have to be tightly managed and properly targeted. We are in agreement on that point.
On the question of nurse and medical recruitment, we need to have imaginative policies. We are seeking to develop such policies in discussion with leaders of the profession, such as Christine Hancock of the Royal College of Nursing, and leaders in the medical profession. It comes back to the point made by my noble friend Lord Hunt; namely, when developing a human resources strategy we need to think of matters beyond pay. Issues that particularly affect nurses relate to the social context in which they work, the working environment, the possibility of flexible working, and other matters. As surveys always indicate, those considerations are at least as important to them as basic pay.

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One of the current problems in relation to nursing is that 140,000 registered nurses are not working. One of our first efforts will be directed towards trying to find out the reasons for the loss of that skilled labour and to try to attract some of those people back into the health service.
Lord Davies of Oldham: My Lords, while giving a general welcome to the Statement, perhaps I may congratulate the Minister and the department on the development of the Sure Start programme, which brings together several departments in dealing with the particular and acute issue of deprivation among those who are less well off in our society. It addresses the crucial issue of giving young people support in their early years, when some suffer crucial disadvantage.
Baroness Jay of Paddington: My Lords, I am pleased to endorse what my noble friend says. The £540 million for the Sure Start children's fund will precisely address the problems of the under-threes and their parents, particularly their mothers, who may be very vulnerable indeed. It is a very good example of precisely what I referred to in replying to my noble friend Lord Bruce of Donington. It is a cross-government attempt to address an issue that will affect health throughout life. It is one of the appalling facts of our society that children born at the lower end of the social and economic scale have a shorter life expectancy, even in 1998, than those born to more prosperous parents. That is a matter that the Sure Start children's fund will attempt to address.
Lord McColl of Dulwich: My Lords, in the absence of any further Back-Bench questions, perhaps I may repeat my earlier question to the Minister. Does she accept the independent figures produced by the House of Commons Library which indicate that the extra money, over a conservative real growth trend of 3.1 per cent., is just over £2 billion?
Baroness Jay of Paddington: No, my Lords, I certainly do not. I have seen those figures repeated politically. I am slightly surprised that the noble Lord, with his great interest in accuracy in many areas, should repeat them again. As I said in my first response to his question on this matter, if we add up the figures—£3 billion next year, £6 billion the year after, and £9 billion the year after that—we get £18 billion of new money. If we add to that amount £3 billion for social services, the amount is £21 billion.

Northern Ireland (Sentences) Bill
5.50 p.m.
Consideration of amendments on Report resumed.
Clause 6 [Life prisoners]:
Lord Dubs Lord Dubs moved Amendment No. 8:
Page 4, line 11, leave out ("elapse") and insert ("completion").
The noble Lord said: My Lords, in moving Amendment No. 8, I should like to speak to Amendments Nos. 9, 10, 12 and 19 also. They have been tabled by the Government in response to amendments proposed by the noble Lord, Lord Kilbracken, when the Bill was considered in Committee. At that time I said that I thought the amendments had merit, but that I would reflect further on the matter. I have done so and I am happy now to move these amendments to the Bill. I also wish to thank the noble Lord for his assistance in this matter.
The noble Lord, Lord Kilbracken, also spoke in Committee regarding the confusion caused by the use of the term "terrorist organisation" in the legislation and noble Lords supported him in making his point. I have undertaken to consider the matter further before Third Reading to see whether it is possible to identify an amendment which would reduce any confusion regarding the impact of the Bill. I beg to move.
Lord Kilbracken: My Lords, I am grateful to my noble friend for taking over the two amendments that I moved in Committee. They have now spawned three other amendments in this group. I believe that they improve the Bill and I welcome them.
On the other point that my noble friend raised which is not relevant to the amendments, I am glad that he is considering the suggestion which received support from all parts of the House and which, if suitable wording could be found, would greatly improve the Bill.
On Question, amendment agreed to.
Clause 7 [Life prisoners: specified dates]:
Lord Dubs Lord Dubs moved Amendments Nos. 9 and 10:
Page 4, line 25, leave out ("date") and insert ("day").
Page 4, line 29, leave out ("date") and insert ("day").
On Question, amendments agreed to.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 11:
After Clause 10, insert the following new clause—

RELEASE TO BE SUBJECT TO APPROVAL OF SECRETARY OF STATE
(" . Nothing in this Act shall require the release of a prisoner if the Secretary of State regards such release as undesirable after taking into account the need to protect the community.").
The noble Lord said: My Lords, this amendment stands in my name. The Minister has said repeatedly in the course of our debates that the Bill should reflect that part of the agreement which refers to prisoners. That is the top half of page 25. The amendment seeks to do exactly that.
The agreement says that the review process should allow,
"account to be taken of … the need to protect the community".
That is a specific overall condition of the "Prisoners" part of the agreement, but I cannot see where it is provided for in the Bill. It seemed to me that the only way to raise the issue was by moving a new clause of the character that I have put before your Lordships' House.
Whenever we are thought to be pushing against the edges of what was agreed in a direction which might disadvantage the terrorist prisoners, the Minister tells us

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that we cannot go a millimetre forward. However, when we try to ensure implementation of the whole agreement, including the bits favourable to the law-abiding community, we are told that it is not necessary to be so precise. The new clause seeks to insert a phrase which is in the agreement, but is not in the Bill. I beg to move.
Lord Molyneaux of Killead: My Lords, I feel that it is right to support the amendment and the new clause because Parliament ought to grant the Secretary of State a form of over-riding power which she could exercise when drawing upon the intelligence information to which she alone would have access. That information might give her cause to believe that the release of a certain prisoner would pose a threat to the "community". That is the word used by the noble Lord, Lord Cope, and it runs parallel to the word "public" which we debated on an earlier amendment. For example, there might be good reason to believe that former associates of the prisoner could be engaging in certain undesirable activities, sometimes classified under the word "terrorism". We are grateful to the Minister for producing the new clause which is Amendment No. 16, to which we will come later.
In the current situation and given the capacity of terrorist movements as defined in the Minister's new clause, there is more than a possibility that former associates would exercise a good deal of pressure and blackmail on the released prisoner to suck him back into their evil activities. If, for that reason, intelligence reports indicated that that organisation was alive and well and that, by reason of the vulnerability of the prisoner and his family, there was a chance that he would become involved in such activities, he would pose what the noble Lord, Lord Cope, suggested was a threat to the community, or perhaps, in the wording of the earlier amendment, to the general public.
Lord Dubs: My Lords, this amendment concerns the protection of the public under the terms of the Bill. It seeks to add a further protection by allowing the Secretary of State to override a decision of the commissioners.
As it stands, the Bill contains a series of safeguards. I should like to run through them because it is quite an impressive list. A prisoner may not be released if the commissioners consider that he is a supporter of an organisation identified by the Secretary of State as having not established and maintained a complete and unequivocal ceasefire. A prisoner may not be released if the commissioners consider that he would be likely to become a supporter of such an organisation after release. A prisoner may not be released if the commissioners consider that he would be likely to become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland. A life-sentence prisoner may not be released if the commissioners consider that he would be a danger to the public.
The Secretary of State may refer the case of a prisoner who has been granted a declaration under the Bill back to the commissioners at any time before he is released
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if she considers that the prisoner no longer satisfies the conditions in Clause 3. If she does so, the commissioners must reconsider the case.
Each and every prisoner released under the terms of this Bill will be released on licence. The Secretary of State may suspend a licence and return a prisoner to custody if she considers that he has become a supporter of an organisation that is not maintaining a complete and unequivocal ceasefire or if he has become, or is likely to become, involved in the commission, preparation or instigation of acts of terrorism. The Secretary of State may also defer or suspend the accelerated release provisions set out in Clause 10 if she considers the circumstances require it. Finally, the Secretary of State may suspend all further releases under the Bill.
Those are extensive safeguards which are appropriate to the subject matter of the Bill. They are also in accordance with the Good Friday agreement and the policy that has been set out by this Government to implement the agreement.
I cannot give my support to the new clause that has been proposed by the noble Lords, Lord Cope and Lord Molyneaux. The new clause would usurp the jurisdiction of the commissioners by giving to the Secretary of State the final decision on release in each case. In doing so, it would make release under the Bill into an executive decision. That is a very significant change.
6 p.m.
Lord Molyneaux of Killead: My Lords, before the noble Lord sits down, perhaps I can return to my point about intelligence information. It may be that some of the commissioners would not be of Privy Council rank. They would not then have access to the vital security information to which the Secretary of State has access and on which she forms her judgment. The noble Lord used the term that I used: is it not fairer to the Secretary of State and the community she is seeking to protect that she should exercise the override powers which she alone will possess?
Lord Dubs: My Lords, perhaps I may come to that point in a moment. It is important and I want to deal with it.
Let me repeat that it is a significant change to give the final responsibility to the Secretary of State and take the final decision away from the commissioners. That makes the Secretary of State responsible.
Lord Tebbit: My Lords, I wonder whether the noble Lord has consulted his noble friend Lord McIntosh of Haringey. Indeed, I wonder whether the noble Lord was in the Chamber the other day when the noble Lord, Lord McIntosh, referred to a matter relating to Scottish education. He said that he could think of no occasion where a Secretary of State bound himself to accept the verdict of an outside group of commissioners. Is this the case the noble Lord, Lord McIntosh, could not think of?
Lord Dubs: My Lords, I was in the Chamber and followed the debate with interest. However, we are not dealing with a comparable instance.

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The discussion the other day related to an independent group of people who would give advice. The question was whether that advice would bind the Secretary of State or whether the Secretary of State might consider it. We are dealing with a completely different situation.
The noble Lord laughs and by his laughter indicates that he knows that this is a different situation and is simply trying it on a bit.
Under this Bill we are giving commissioners specific responsibilities to deal with the release of prisoners. There is no question of their giving advice to the Secretary of State which the Secretary of State will have to accept. The commissioners will act in their own right under the terms set out in the legislation. There is therefore no question of the Secretary of State coming back into the frame. But the amendment would have that result.
As I said earlier, the amendment would make release under the Bill an executive decision and that is not the right way forward.
Lord Campbell of Alloway: My Lords, I take the point being made by the noble Lord and agree with it. But if the commissioners act unreasonably, with bias or improperly, their decisions and their conduct are subject to review by the courts. That is the safeguard. The commissioners are not just left as authoritarian people subject to no control.
Lord Dubs: My Lords, I thank the noble Lord for his intervention; of course he is correct. I do not want to open the doors to a stream of judicial reviews. If the commissioners behave improperly, outside the terms of the legislation or unreasonably, then a different remedy is available. That is not one which lies with the Secretary of State, but one that properly lies with the court.
Noble Lords will be aware that the limits of executive release are tightly drawn under the terms of the European Convention on Human Rights. The European convention requires that decisions that affect the continued removal of the liberty of the subject should in the main be taken by judicial bodies or by bodies that manifest the attributes of the judicial process, including in particular independence from the executive part of the state. The arrangements that are proposed under this Bill have been carefully drawn up to be in accordance with those requirements. It is the view of the Government that the amendment proposed would be at variance with the European Convention.
I turn to the question posed by the noble Lord, Lord Molyneaux. He suggested that the Secretary of State would have access to intelligence information which would not be made available to the commissioners and that that intelligence information would influence her into making a better decision with regard to any specific prisoner release. The argument that the Secretary of State would be better placed to make assessments as to the risk to the public because she is likely to have access to a wider range of information than the commissioners
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is not the case. The Secretary of State may make available to the commissioners any information necessary to assist them in making their determinations.
Under Schedule 2 to the Bill, the Secretary of State may make provision for the protection of sensitive information from disclosure. As such, the commissioners may be given access to intelligence information if that is both appropriate and necessary. I suggest therefore that, while I understand the reason for his anxiety, the point is met by that explanation. The information could be made available by the Secretary of State to the commissioners if necessary for the determination of a specific release decision.
I am concerned that the amendment would be at variance with the European Convention and also that it would take away from the commissioners the ultimate decision and give that decision-making power to the Secretary of State. That is not the right way forward and I hope the House will not accept this amendment.
Lord Cope of Berkeley: My Lords, the Minister seems to have proved, at least to his satisfaction, that the power is devolved to the commissioners. It is still an executive decision; the commissioners are executing the decision. They become the executives instead of the Secretary of State, but it is still an executive-type decision.
Earlier in the afternoon the Minister specifically turned down the suggestion that the chairman of the commissioners should be required to be a lawyer. We did not even propose that the chairman should be a judge. This is not a judicial process; it is an executive process. The Minister proved to my satisfaction that this is an exception to what one might call the "McIntosh doctrine", laid down for us the other day. There are probably a lot more exceptions to it as well, but this certainly seems to be one.
The Minister also suggested that there should be no question of the Secretary of State coming back on a decision after he had just set out a whole list of specific ways in which the Secretary of State could come back to a decision—she could refer it back to the commissioners or stop the whole process and so forth.
In any case, as I said earlier, in the legislation under this agreement in the Republic of Ireland it would appear to be an executive decision totally. The Minister there is to release prisoners under existing executive powers. It is not a court or a judge, but the Minister of Justice who is to release the prisoners. He is advised in that process by a lawyer and two civil servants. They are advisory roles, though they are also independent.
How that squares with the human rights legislation is not a question for the Minister or myself. However, I suggest that it casts a little doubt on his argument. I do not suggest that we pursue this matter and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Notice of decisions]:
Lord Dubs Lord Dubs moved Amendment No. 12:
Page 6, line 31, leave out ("date") and insert ("day").
On Question, amendment agreed to.
Clause 12 [Interpretation: prisoners and sentences]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 13:
Page 7, line 7, leave out ("each").
The noble Lord said: My Lords, this is a different class of amendment and a much more detailed matter which the Minister undertook to consider before the Report stage.
Amendment No. 13, together with Amendments Nos. 14 and 15, seek to make the Bill fairer for certain prisoners. Under the Bill, a prisoner with two or more sentences of over five years benefits more than a prisoner with one sentence of five years and one of less than five years. I am interested to know what is the result of the Minister's consideration of this point. I beg to move.
Lord Dubs: Yes, my Lords, I did say that I would reflect further on these amendments after we debated them in Committee. I have reflected further on them, but I am not persuaded. As I said when your Lordships first considered the matter, the effect of the amendments would be to allow the Bill to apply to sentences of less than five years. That has never been the intention of the Government and it would go beyond the terms of the paper placed in the Library on 20th April. But, in addition—this is a telling point—we are not aware of a single prisoner in custody at present who would be likely to benefit were the amendment to be accepted.
Of course, in theory, there might be prisoners who committed their offences before 10th April who have not yet been sentenced and who might therefore be sentenced in such a way that the amendment might have an effect on them. However, at the present time we are not aware of any prisoner in custody who would be affected by the amendment.
For the reason that the amendment goes beyond what the Government have said they will do in respect of prisoners, and because the matter is largely academic anyway, I ask the noble Lord to withdraw the amendment.
Lord Cope of Berkeley: My Lords, I always hesitate to use the word "academic" about any point if it is suggested that what it means is that the point is useless, immaterial or has no practical effect. That does not seem very polite to academics, especially as some distinguished academics are present.
Lord Dubs: My Lords, I would not wish in any way to be offensive to academics. I was using the expression in the sense that it is a theoretical point which would not have any practical application.
Lord Cope of Berkeley: My Lords, there you are: "academic" means theoretical, with no practical application. I do not profess to go along with that; but as this has no practical application—if no prisoners are involved—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
Lord Dubs Lord Dubs moved Amendment No. 16:
After Clause 12, insert the following new clause—

INTERPRETATION: TERRORISM
(". In this Act "terrorism" means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear.").
The noble Lord said: My Lords, the Government have tabled this amendment in response to an amendment spoken to by the noble and learned Lord, Lord Mackay, in Committee. The noble and learned Lord proposed a definition of "terrorism" and "terrorist". A definition of the latter is not required, and I could not accept the amendment that was tabled in Committee. The Government accepted the principle behind the amendment, however, and have brought forward a further amendment to give effect to it. As before, the definition of "terrorism" is that as given in the prevention of terrorism Acts. I beg to move.
Lord Cope of Berkeley: My Lords, I am grateful to the noble Lord for accepting at least half of the amendment moved by my colleague at an earlier stage.
Lord Molyneaux of Killead: My Lords, I congratulate the noble Lord, Lord Cope, and the noble and learned Lord, Lord Mackay of Drumadoon, on their initiative in tabling in Committee the interpretation clause which paved the way for the new clause. I respectfully commend the efforts of the Minister, who in a comparatively short time has produced a clause which removes ambiguity over the meaning of the word "terrorism".
Without this clause it would still have been possible to ignore violence for political ends, or any use of violence for the purpose of putting the public or any section of the public in fear. That is most welcome in the light of the atrocity in Ballymoney. With those offences go intimidation, the torching of homes, threats of arson, beatings, knee-cappings and the continuing targeting of individuals, particularly off-duty members of the security forces. The knock-on impact of the Minister's new clause will be the elimination of the capacity to wage war and thereby threaten elected governments if their concessions via the conveyor belt slow down. One hopes and expects that this will apply to the "subcontractors", such as those attempting and intending to, as the amendment says, put in fear the public in Northern Ireland and in London within very recent times. I join in the congratulations that have been paid to the Minister and thank him for his consideration of the matter.
On Question, amendment agreed to.
6.15 p.m.
Clause 21 [Commencement]:
Lord Tebbit Lord Tebbit moved Amendment No. 17:
Page 9, line 32, at end insert ("but no such day may be appointed (other than in respect of this section) until after the release on licence of every member of the naval, military or air forces of the Crown serving a sentence of imprisonment in respect of a conviction for murder committed in the course of their duties in Northern Ireland").
The noble Lord said: My Lords, there is very little I can add to the case which I made on Monday of last week and which no doubt I shall make again next week. I remind the House that, although to avoid rendering the Bill hybrid the amendment does not mention Fisher and Wright, it is about those two young men. I do not think there is any doubt that there is a growing consensus inside the House and outside that those two young men should not be kept any longer in prison; least of all should they be kept in prison while terrorists are being released. The Minister was helpful in setting out some of the ways in which it is possible that they might be released. But, of course, there is at the moment no guarantee.
It may be useful to remind the House of some of the events which have occurred over this affair. On 3rd November last year, in a Written Answer, the Minister, in replying to my noble friend Lord Westbury, said of the case:
"The Secretary of State for Northern Ireland has decided that the cases of Guardsmen Wright and Fisher should be referred back to the review board in one year's time, i.e. in October 1998, when they will have served six years in custody. No date for release has therefore yet been fixed".—[Official Report, 3/11/97; WA 276.].
The position seemed to have hardened up a little some months later, in February, when in the course of a debate in the other place the Minister of State, Mr. Ingram, told the House that, given all the available information, the Secretary of State had concluded that Fisher and Wright had not served a period sufficient to reflect the seriousness of their crime and she decided to invite the review board to consider the cases again in October 1998 when each guardsman would have served approximately six years.
Thus it rested until 3rd June, when in the course of another exchange between my right honourable friend the Leader of the Opposition and the Prime Minister, the Prime Minister said, somewhat surprisingly:
"there was a court case which concluded on Friday 22 May; before that court case was concluded, my right hon. Friend the Secretary of State for Northern Ireland was not able to conduct her own review"
That was palpably not correct. She had conducted her own review before the court case had started.
Lord Burnham: My Lords, perhaps I may correct my noble friend on a very small point. The date of 22nd May followed a judicial review which was held some time earlier. That was the day on which the result of that review was published.
Lord Tebbit: My Lords, I am grateful to my noble friend. The Prime Minister went on to say:
"Now that is out of the way"—
the judicial review—
"she will do that, and do so as quickly as possible".—[0fficial Report, Commons, 3/6/98; col. 359].
"As quickly as possible" did not turn out to be terribly quickly. In our consideration in Committee on 6th July, the Minister said:
"Clearly the Secretary of State's wish to look at the papers again, and her decision to start to do so today"—
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that is about five weeks after the Prime Minister said she would do it with great urgency—
"is an indication of her desire, as it were, to reflect the views which have been expressed in this Chamber on a number of occasions".—[Official Report, 6/7/98; col. 1076.]
Five weeks does not seem very immediate to me.
So this matter drifts on. At least we know now that the Secretary of State has finally turned her attention to the matter, but nonetheless Guardsmen Fisher and Wright are still in gaol. It seems to me that it would only be appropriate if during her consideration, which we know has started, and in view of all that has been said, Fisher and Wright were at least released on bail. I am sure I shall be told that there are many technical, legal and administrative reasons why they cannot be released at this stage. I remind the House, and particularly the Minister, that it is not that long ago that terrorists were released from prison in order to assist the Government's campaign to achieve a yes vote in the referendum. If terrorists can be released from gaol for that political purpose, then there can be no conceivable reason why the same powers that the Secretary of State used to release those terrorists, temporarily, should not be used to release the guardsmen temporarily, pending the final outcome of her review of the case.
I suspect that the Secretary of State would like this matter resolved. My amendment would help her to do that. It would be effective and certain. It does not affect the terms of the agreement, although when the Minister gave way to my noble friend Lord Campbell of Alloway he was in the process of saying during Committee proceedings that the amendment would drive a coach and horses through the agreement. That is not so. It would not affect the agreement in any way whatsoever. It is merely that this Bill is a convenient vehicle for the release of the guardsmen. It would not delay the passage of the Bill. Were the Government to accept this amendment tonight or even next week, the Bill would continue on its schedule without any damage at all. We do not know the date on which the Secretary of State intends to bring this legislation into effect, but that need not be affected either. All she has to do is release the guardsmen either on bail, day release or whatever other arrangements can be made. It would be up to the Government, and no one else, to decide whether the implementation of the Act, as it will be, were to be delayed.
There is very little more I can add. I was encouraged by the way in which the House reacted to this proposal during the Committee stage. I was also encouraged to a considerable extent by the Minister's demeanour and his words on the subject. He has had something like 10 days to mull it over in company with the Secretary of State. If needs be, I am content to give him and the Secretary of State a few days more. I shall be grateful to the Minister if he can tell us what exactly the Government now have in mind for these two young men. I beg to move.
Lord Campbell of Alloway: My Lords, I believe that my noble friend misunderstands. When I opposed this amendment at Committee stage I said,

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"Release (as proposed by this amendment) is without paragraphs 1 to 3 of page 25 of the Stormont agreement, which is not subject to negotiation. There is no concept of priority of eligibility for release either under the agreement or the paper used in negotiations".—[Official Report, 6/7/98; col. 1070.]
I referred to paragraphs 5 and 7 of the paper. That is the position which I maintain today.
The collapse of the Stormont agreement—which was overtly opposed by my noble friend for reasons which are fully understood and totally respected—is possible. It is even perhaps probable, but not inevitable, as assuredly could be the case if the Government were to accept this amendment.
Your Lordships may well believe that neither the end, the means nor the result of this amendment is well conceived. One may support the purpose of this arrangement. I call it "an arrangement" because it was not signed. In my book something that is not signed is not an agreement, but an arrangement. It is an arrangement to seek peace in the Province. Even if one objects to its provisions—and I object to some of them, which I shall come to in a moment—they are not subject to renegotiation. I support the peace process.
The end is the release of the guardsmen as soon as possible. That has been, and will continue to be, so in a manner hitherto acceptable to your Lordships on all sides of the House without hint of political contention. Questions have been asked in your Lordships' House and my noble friend referred to some of them. They have been asked for quite some time. The last Unstarred Question was debated on 23rd June. It was retrieved from limbo in "No Day Named" with the help of the Government Chief Whip, who found extra and wholly sufficient time for the debate.
Long after that Unstarred Question was tabled, information was received on 14th May which cast doubt on the rectitude of the conviction. Affidavits and documents were prepared, placed in the Library and handed to the noble Lord, Lord Dubs. In fact, only today the affidavit of Guardsman Williams, the fourth man in the patrol, was put in the Library. The noble Lord has a copy. There was also the affidavit of C.S.M. Dunn.
Your Lordships concluded that findings as to culpability, which supported conviction and which continue to thwart release, were fundamentally flawed; that there was a grave and manifest miscarriage of justice; and that these guardsmen, as my noble friend said, should be released immediately. But that could only be under the delegated remit of the Royal Prerogative of Mercy.
At Committee stage of the Bill the noble Lord, Lord Dubs, told us about a fresh review to be set up by the Secretary of State. On 20th July, which is next Monday, your Lordships will be invited to support a Motion to resolve to present an humble Address to Her Majesty to release these guardsmen in the exercise of her unfettered discretion of the prerogative of mercy. If it is carried, which is the hope, and without a Division, the prospects of immediate release could be enhanced. Indeed, the object of my noble friend's amendment would be fulfilled.
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At Committee stage it was made perfectly plain by the noble Lord, Lord Dubs, that the Government would not, could not, accept this amendment which delays implementation of the Bill, frustrates the Stormont arrangement and inhibits the peace process.
These guardsmen qualify for general release many months ahead under the Clause 3 linkage. That is a strange and somewhat indigestible anomaly. This was the linkage between those who killed on duty in aid of the civil power and those who resorted to the gun and the bomb to kill and maim, on many occasions for sectarian and politically motivated purposes. It was however part and parcel of the Stormont arrangement. I referred to the passages at the start of my speech. That has been endorsed by the electorate of Northern Ireland.
To what constructive end may your Lordships support this amendment? As matters stand, release from a mandatory life sentence in Northern Ireland as a matter of law may be granted only by the Secretary of State under a variety of mechanisms identified on both 23rd June and 6th July. I understand—I may be wrong—that the review of 6th July is under the statutory power of general release after consultation with the trial judge and the Court of Appeal, but this is months ahead. The only mechanism under which immediate release may be granted by the Secretary of State is the delegated remit of the Royal Prerogative, in truly exceptional circumstances, as the noble Lord, Lord Dubs, has fairly conceded. Release from a mandatory life sentence according to statute is a matter for the Executive, not the judiciary or the legislature, save under a criminal justice repeal Bill of general application, which this Bill assuredly is not. This amendment therefore is without the accepted province of the judiciary and the legislature under the separation of powers.
When the criminal cases review commission has investigated the matter—which will take some time because there is a backlog of work of about a year, and it has referred the matter to the Court of Appeal to challenge the rectitude of this conviction; it was the unanimous conclusion of your Lordships' House on 23rd June that there had been a miscarriage of justice—an application may be made months ahead. So much for the end.
As to the means, apart from the fact that this Bill is not a repeal Bill of general application to remove release from the Executive, the means are not well conceived because the claim to priority of release as a precondition to the Bill taking effect constitutes a pre-condition to the letter and spirit of the Stormont arrangement. That would inevitably delay the implementation of general release in any event. Without losing moral authority to foster the peace process, the Government simply cannot accept this pre-condition to the linkage of general release. Your Lordships may well think that it is wholly unacceptable that these guardsmen should have been taken hostage and used as pawns for such a purpose.
6.30 p.m.
Baroness Denton of Wakefield: My Lords, I do not believe that anyone in this House is unsympathetic to

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the aims of the amendment moved by noble friend Lord Tebbit, having seen the dangers that the RUC and the security forces have had to face during the past week. They have had no choice in the matter. I hope that that sympathy extends to the Minister and the Secretary of State.
My noble friend Lord Tebbit generously gave the Minister a few more days. One can imagine how much more comfortable a few more days are to noble Lords in this House than to young men who have been in prison for a considerable time and have to face further time in prison without a firm future. I am sure that the lawyers have an answer—they always do. But for me the moral issue now is whether it is right to let out terrorists while we keep in prison two men who were doing their job.
Lord Cope of Berkeley: My Lords, my noble friends who have spoken are united in wishing to see the release of these soldiers. I have sympathy with the amendment that has been moved by my noble friend Lord Tebbit. This has become a complex matter, although at heart it is simple. I believe that the House would be considerably assisted in considering the different ways in which these two soldiers might regain their freedom if it knew how long the review by the Secretary of State would be likely to take.
It is obvious to me that the review of the Secretary of State—whether it started on 3rd June, as the Prime Minister said, or on 6th July, as appears to be the case—must be completed well before this Bill leads to any release of terrorists who are supposed to have renounced terrorism. When the Bill has achieved Royal Assent a new commission has to be selected and assembled and has to set up shop, as it were. A good number of rules have to be set down for that commission under Schedule 2 to the Bill. The commission must then ask for and receive applications. Only then can it begin to consider the applications made to it and reach decisions. Beginning as it would at least three weeks later than the Secretary of State began her review, it would be amazing if the Secretary of State's review did not finish before the new commission got to the point of releasing anybody. That is one way in which the guardsmen may obtain their freedom.
The background to this matter is the respect and admiration that we all have for the work of the security forces. For some three decades we have placed young soldiers in the most difficult and dangerous position. Many have lost their lives in our service and in defence of democracy. The Army and the other Armed Forces in support of the RUC have shown exemplary restraint in their behaviour. I observed that over a number of years, not only when I was security Minister in Northern Ireland. For all that time we have asked individual private soldiers to place themselves in an incredibly difficult and dangerous position. Both in training and in action the necessity for restraint, the cadre system and so on have been drummed into them daily until they are second nature. I do not believe that any other army in the world has that capacity to carry out sensitive
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individual peace-keeping operations. That is why there is such intense sympathy for these two individuals, given the position in which they find themselves.
As has been spelt out again this afternoon, the legal complications have become very great. Whatever arrangements are made to release them, through whatever mechanism—clearly a number are available—we hope that the guardsmen will be released as soon as that can be arranged. Many of us in your Lordships' House, regardless of the difficulties of this amendment, wish to send a strong signal to that effect. That is why I support the amendment.
Lord Dubs: My Lords, I am sensitive to the strength of feeling that has been expressed in this House today and on a number of other occasions regarding the two guardsmen. We have debated the matter several times in recent months and I am aware of your Lordships' feelings about the case. However, I made it clear when we debated this matter last week that the Government could not accept this amendment or any amendment like it. That remains the case.
The amendment would depart entirely from the terms of the Bill that is before your Lordships' House. It imposes a condition that was not contemplated by the Good Friday agreement or by any of the parties to that agreement. Indeed, the amendment attempts to make the implementation of the Good Friday agreement hostage to the release of two prisoners.
Many noble Lords here today have pressed the case for the early release of the guards both with myself and with my right honourable friend the Secretary of State. They have done so in a measured way and have deployed arguments that are related to the cases. No suggestion has been made that the release of the guardsmen should be bartered for the release of other prisoners—and that is how it should be. It is a testament to those noble Lords who have spoken on behalf of the guardsmen that, although there is great strength of feeling, that feeling has not clouded their judgment of what is the right way to proceed.
I am therefore disappointed that this amendment has been pressed again given that my right honourable friend the Secretary of State has said that she will look at the case. I made clear that she had started to look at the case when I announced her intentions when we debated this Bill on a previous occasion.
Last week I told your Lordships' House that the Secretary of State had received papers on the case and was now reviewing it again. At that time I explained that the case papers are extremely extensive. They run to about 2,500 pages. Although the Secretary of State has seen much of the material before, she has undertaken to conduct a thorough review of the case. That will take some time as the review will have to be undertaken in parallel with her other responsibilities. Further papers or advice may be required before a decision can be made. Noble Lords will understand that it is not a decision which can be taken in an over-hasty manner. But equally, the Secretary of State understands that the decision must be made with due attention to the fact that the liberty of the two subjects is in question.

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Noble Lords will also be aware that under the law as it applies in Northern Ireland my right honourable friend the Secretary of State is required to consult the Lord Chief Justice and the trial judge before releasing a life sentence prisoner. She cannot engage in that consultation process until she has come to a view regarding the case. The decision on release is for the Secretary of State alone, but she will want to consider any comments the Lord Chief Justice or the trial judge wish to offer before making a final decision.
Your Lordships will understand that the review process must protect the position of the judiciary. There can be no suggestion that the question of release falls to the Lord Chief Justice. For that reason, I cannot give any indication as to when the Secretary of State might ask members of the judiciary for their views as to do so would suggest that a view had been taken of the case and that would place the Lord Chief Justice in an invidious position.
As such, I will not separate out the periods taken to make an initial decision and to request and receive the views of the judiciary if that advice is required. Taking account of the matters set out above, the Secretary of State may not be able to announce the result of the review until the latter part of August. This is the time that it will take to consider all the papers and to request and receive such advice as is required. I understand that noble Lords will be disappointed that the process should take such a period, but that is the time required to consider all aspects of the case and to make any arrangements that follow from consideration of the case.
Noble Lords have asked when prisoners would first be released under the Bill—or at least have indicated that they want to see how the two timetables might work in relation to each other. Although that is not related in any way to the review of the cases of the two guardsmen, noble Lords were concerned that any review should not extend beyond the point at which prisoners might begin to be released under this Bill. It is difficult to be certain about dates. This Bill has further stages to complete before it receives Royal Assent. Commissioners must be appointed and orders made. When all the arrangements are in place, prisoners must make applications. Those applications will have to be given due consideration. Taking all this together, it is possible that the first releases might not take place until early September.
6.45 p.m.
Lord Merlyn-Rees: My Lords, I take my noble friend's major point that the amendment moved by the noble Lord, Lord Tebbit, should not be supported. I could not support the linkage.
The point that concerns me is the point that has been made in this House time and time again. These young men were carrying out duties that we imposed on them. They are not policemen; they are soldiers. They were put in an invidious position. They made mistakes. I want to hear not that we shall support the amendment of the noble Lord, Lord Tebbit, which I think is flawed, but
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that we shall proceed with speed and that the guardsmen can be released under the miscarriage of justice provisions, or this Bill.
Lord Dubs: My Lords, I thank my noble friend for that. The position is that the Secretary of State may not be able to announce the result of the review until the latter part of August. That allows for the necessary consultation with the Lord Chief Justice and the trial judge. Given that it is now the middle of July, we are talking of a matter of a few weeks only. I give way to the noble Baroness.
Baroness Denton of Wakefield: My Lords, I thank the Minister for giving way. This may be a naïve remark which will make every lawyer in your Lordships' House wince, but why does the sequence have to be that the Secretary of State can consult with the Lord Chief Justice and the trial judge only after she has read all the papers? Can she not consult with them first and ask what their opinions would be if the answer was plan A or plan B and therefore speed up the process?
Lord Dubs: My Lords, my understanding of the procedure is that the Secretary of State has to come to a view about the case and, having come to a view, she will then consult or seek the opinion of the Lord Chief Justice and the trial judge. If she were not to come to a view first, she would simply open it up for comment. It seems appropriate—and certainly the procedure as I understand it is the normal one—that she comes to a decision and then goes through a process of consulting the two people concerned. It is a sequential process and hence it will take, as I have already said, probably until the latter part of August.
I appreciate that time drags on and that the liberty of two individuals is at stake. On the other hand, we are talking about a matter of four or five weeks from today. I think that it is not unreasonable that one should give the Secretary of State the time to do the consultation.
Baroness Park of Monmouth: My Lords, will the Minister agree, however, that we have been talking, right through this Bill, about sending messages? A message needs to be sent to the Armed Forces and to the RUC and to all the people who have supported them. No message could be more telling than speed in this matter. It is very difficult for everybody out there—not excluding us—to understand, even despite the weight of paper, why it is not possible to be faster than the end of August by which time a lot will have happened. This is a critical moment to send the message that there is concern for the good people, not just the bad ones.
Baroness Strange: My Lords, perhaps I may ask the Minister if he will consider, and if he is aware, that a week is a very long time in politics and an even longer time in prison.
Baroness Farrington of Ribbleton: My Lords, perhaps I may draw the attention of noble Lords to the fact that we are on Report.
Lord Mishcon: My Lords, being on Report, I wonder whether I can assist. Will my noble friend the Minister consider that matters might be speeded up if the 2,500 pages now being read by the Secretary of State were sent now to the Lord Chief Justice and the trial judge so that they are apprised fully of the situation when she makes up her mind? The consultation can then be very brief indeed.
Lord Dubs: My Lords, I shall deal with the points that have been made. First, I accept that if one is deprived of one's liberty a week is an enormously long time. My noble friend made a suggestion. I am not sure that I can give him an authoritative answer at this stage, but I shall look into it to see whether there is any way in which the sequential process that I have described can be made into a simultaneous process. I do not have the knowledge or authority to say that that can be done, but I shall look into it to see whether it is a possibility.
I can assure your Lordships that the Secretary of State is well aware of the strength of feeling and the issues raised in this House and in the Guards regiments, and the Army in general. She is sensitive to the need to move quickly. That is why, instead of waiting as she had originally said, until October or November, she decided recently that she would come to a quicker decision.
Lord Campbell of Alloway: My Lords, will the Minister deal with the question asked by the noble Lord, Lord Merlyn-Rees. I think he will agree that the answer is that the only mechanism available for immediate release for a miscarriage of justice, as has happened in this case, is the delegated remit to the Secretary of State of the Royal Prerogative of Mercy? It is available. The Minister has conceded that. The question is: why can it not be exercised?
Lord Dubs: My Lords, I believe that the noble Lord is going to debate that very point next Monday. Although I appreciate that that is a few more days, perhaps I should try to deal with that point on Monday rather than today. In answer to the questions raised by my noble friends Lord Merlyn-Rees and Lord Mishcon on the matter of sending the papers to the Lord Chief Justice, the advice I have been given is that the Lord Chief Justice is not given all the papers; he is merely given the Secretary of State's view on the particular case. It would be difficult to send the papers simultaneously because that is not the procedure. The Lord Chief Justice and the trial judge are given just the Secretary of State's views, and then they comment accordingly. I do not suppose it would save that much time even if one were able to adopt the procedure suggested.
I shall return to the key point. I was asked when prisoners would first be released under the Bill. As I was saying, that is in no way related to the review of the cases of the two guardsmen. There was a concern that the review should not extend beyond the point at which prisoners might be released under this Bill. I was saying that it is difficult to be certain about dates. The Bill has to receive Royal Assent; commissioners have to be appointed. When all the arrangements are in place
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prisoners must make applications, and those applications will have to be given due consideration. Taking all that together, it is possible that the first releases might not take place until early September.
It is also likely that applications from those prisoners serving life sentences, because of the additional matters to be considered, might take slightly longer to consider than applications from fixed-term prisoners. Of course noble Lords will understand that that view of the time likely to be required to consider cases is based partly on speculation regarding how the commissioners, who are, after all, independent, will go about their business. That will be their responsibility, subject to the rules that my right honourable friend intends to make to cover the procedures that they will adopt.
I am aware, and the Government are aware, as my noble friend Lord Merlyn-Rees, said, that we send soldiers out there to face difficult conditions. A few months ago I met the parents of Lance Corporal Restorick who was shot some time ago while on duty in South Armagh. I am aware—I was aware before, and I am even more aware having talked to them—of the difficult situation faced by young soldiers. I should like to pay a tribute to his parents for the brave way in which they have responded to the terrible tragedy when their son was shot. The Government are aware that our soldiers and the RUC have behaved bravely in difficult circumstances. Their lives are in danger, and many of them have lost their lives to keep the peace and protect ordinary people. The Secretary of State is well aware of the need to move quickly on this issue and will do so. I suggest that this amendment is not the right path to follow.
Lord Tebbit: My Lords, I suspect that the Minister must begin to feel the pressure upon him and the Secretary of State not just from these Benches but of course from the Benches opposite including, if I may say so, the noble friend of us all, the noble Lord, Lord Merlyn-Rees, the noble Lord, Lord Mishcon, and so many others. We have also to recollect that there has been what would appear from the outside to be a lack of urgency within government.
The Minister told us that the Secretary of State had begun to consider this matter on 6th July. He gave us an indication this evening that he hoped that a conclusion might be reached by about the end of August—roughly, I think, about seven weeks. But five weeks elapsed following the Prime Minister's undertaking in the other place that this matter would be dealt with at once since it was possible, he said, to do so then because the judicial review proceedings had been completed. If those five weeks had been used the Minister tonight could have told us that a conclusion would be reached by the end of this month.
I think the Minister can therefore understand why we have some reservations about these matters. My noble friend Lord Campbell of Alloway set out a number of legal obstacles on the road to justice. I am a little impatient of legal obstacles on the road to justice. I shall join him on Monday in doing all that I can to persuade this House, by voice or by vote, that the route which he has set out should be followed. Of course we should

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explore every route. He was wrong in two matters. I am sad to have to say that to my noble friend. First, that would not delay the Bill. It does not have to delay the Bill. It will be the Secretary of State's choice as to whether it delayed the Bill. It will be entirely in her hands.
My noble friend ignored also that there is another way of taking men out of prison in Northern Ireland. On 1st June I asked a Question of the Government. It was on a slightly different point but it was related closely to this issue. I asked:
"Whether, following the day release from prison of IRA criminals to assist in the campaign for a Yes vote in the forthcoming Northern Ireland referendum, it is their intention to release an equal number of other criminals to campaign for a No vote".
The noble Lord, Lord Dubs, answered me, saying:
"The Secretary of State granted temporary release to four prisoners to attend a Sinn Fein conference to discuss the Belfast Agreement on 9 May".
He went on to acknowledge that,
"The release of those prisoners was a matter of concern and hurt to many members of the public and the Secretary of State has said that releases will not be granted for such purposes in the future".—[Official Report, 1/6/98; col. WA 19.]
Quite clearly the Secretary of State had power to release those men.
My amendment refers to "release on licence", but I do not mind, nor I suspect do they, by what means the prisoners are released—by the means by which those terrorists were released to campaign for a yes vote; by release on bail pending the Secretary of State's conclusions; or any other method. That would be entirely up to the Secretary of State. I am not asking that the Bill should be used as a vehicle to overturn their convictions. In my judgment, and I am sure that of every Member of this House, that would be entirely wrong. My noble friend Lord Campbell will take that route in seeking, through an appropriate method, to overturn the convictions. I, as I am certain does every Member of this House, simply want to see those men free.
7 p.m.
Lord Davies of Coity: My Lords, if the noble Lord will give way, what he has suggested is probably the most important point. Sympathy for the guardsmen extends throughout the House. We wish to see their cases reviewed and to see them released. Of that there is no doubt. However, it is the means by which we do that that is important. The circumstances that we face are extremely difficult. On the one hand, we have the case of the guardsmen in prison that the noble Lord has argued. On the other, we have a peace process with which the Bill is associated to prevent future terrorism, bombings, killings and mutilation in Ireland. The issue is very sensitive.
It seems to me that if the noble Lord's amendment is pressed to a vote and succeeds, it would be like a Damocles' sword over the head of the Secretary of State and would not help the situation in Northern Ireland. This House having taken a view and extended sympathy towards the guardsmen, it seems better that that is relayed to the Secretary of State and that the review
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is hastened as quickly as possible. But we should not do that by conditioning the Bill on the release of the guardsmen.
Lord Tebbit: My Lords, of course I understand the view that the noble Lord puts. However, what he forgets is that once the Bill is enacted there is no further leverage for Parliament to exert. We know that there are good intentions all round. But the road out of gaol is unlikely to be paved with those good intentions. We need more than that.
I sense that the House would not wish to divide on this issue tonight. I may return to it with a view to seeing whether the House, or some Members, would welcome a Division next week. I beg leave to withdraw the amendment.
The Deputy Speaker (Baroness Serota): My Lords, is it your Lordships' pleasure that the amendment be withdrawn?
Lord Campbell of Alloway: Not-Content.
The Deputy Speaker: My Lords, the Question is that the amendment be agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content".
Lord Campbell of Alloway: Not-Content.
The Deputy Speaker: My Lords, the amendment is negatived.
Lord Cope of Berkeley: My Lords, I am not clear whether that was intended to be a vote on whether there should be a vote.
Lord Campbell of Alloway: My Lords, what is the position? I have said "Not-Content" that this amendment should be withdrawn. Why is not a Division called?
The Deputy Speaker: My Lords, I put the Question again: the Question is that the amendment is agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content". The "Not-Contents" have it.
On Question, amendment negatived.
Lord Campbell of Alloway: My Lords, I object.
Lord Carter: My Lords, the amendment has been negatived. The "Not-Contents" have won.
Schedule 1 [Commissioners]:
[Amendment No. 18 not moved.]
Schedule 3 [Sentences passed outside Northern Ireland]:
Lord Dubs Lord Dubs moved Amendment No. 19:
Page 13, line 41, leave out ("date") and insert ("day").
On Question, amendment agreed to.

Royal Assent
7.05 p.m.
The Deputy Speaker: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Appropriation Act,

Data Protection Act,

Teaching and Higher Education Act,

Shrewsbury and Atcham Borough Council Act.

Scotland Bill
7.6 p.m.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Sewel.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Turner of Camden) in the Chair.]
Schedule 3 [Standing orders—further provision]:
The Earl of Dundee The Earl of Dundee moved Amendment No. 122:
Page 61, line 37, after ("committees") insert ("to address subjects relevant to the Parliament and").
The noble Earl said: In moving Amendment No. 122 I shall also speak to Amendment No. 128. Schedule 3 to the Bill already indicates that standing orders will provide for parliamentary committees. However, the additional words,
"to address subjects relevant to the Parliament and",
enable a clearer focus. The proper functioning of parliamentary committees is clearly vital to the Holyrood parliament and its executive. The better parliamentary committees perform, the more opportunity there will be for parliamentarians to influence policy and decision-making.
Equally, the more comprehensive the structure of these parliamentary committees in the first place, the healthier the balance thus encouraged within Holyrood between parliamentarians and the executive. Yet in this context, the Bill's provisions for committees is too general. No proper committee structure is indicated. As drafted in Schedule 3 such committees need not necessarily address subjects relevant to the parliament. The purpose of Amendment No. 122 is to put right that omission.
I turn now to Amendment No. 128. Paragraph 4 of Schedule 3 to the Bill indicates that standing orders shall provide committees and in appointing members to committees and sub-committees they shall pay regard to the balance of parties in parliament. That ensures
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correctly that political membership of committees will reflect the respective strengths of parties elected to parliament.
However, it may often be helpful to parliamentary committees and their work to include people who may not be members of the parliament. Such people may well have great knowledge of the subject under discussion in a committee. It would be up to the parliament and committee concerned to invite to be a member of a committee a person who was not a member of the parliament. If the co-option of such a person on the committee were perceived to infringe the standing orders provision for maintaining political balance on committees, then clearly that person would not be co-opted in the first place.
Clearly, it is the business of the parliament and its committees to assess what does and does not infringe the provisions for maintaining political balance on committees. Yet since much of the work on committees is to discuss ideas and to promote policies without necessarily making decisions on them in committee, then co-option of committee members need not infringe rules on political balance. However, if in any event the composition of committees is a matter for the Holyrood parliament to handle as it sees fit, in order for it to do so with greater flexibility the Bill's standing orders require Amendment No. 128 as proposed. I beg to move.
Lord Mackay of Ardbrecknish: My noble friend has a point and I welcome him to the debate. I wonder whether he expected to be debating the first amendment at five past seven in the evening. It is intolerable that in the Government's programme the third day of the Committee stage of this vitally important Bill, as I understood it to be, should not start until five past seven. We might have lived with that were it not for the fact that the second Committee day on Tuesday did not start until ten past six.
I wish to take this opportunity to say that I do not consider either Tuesday or today to be full Committee days. Therefore, the clear undertaking that I gave on Second Reading—that we would not hinder the Bill and that I wanted to see the Committee stage completed before the Summer Recess—is dependent on the Government finding at least another day to compensate for the two half-days we have lost. I wish to place on record the fact that I believe that to be intolerable. As I understand it, next Tuesday will be exactly the same: we have business before the Bill which may go on for some time. I hope that the Government realise that I do not consider today a full Committee day; nor did I consider Tuesday a full Committee day.
Lord Renton: Before the noble Lord, Lord Sewel, replies to my noble friend, perhaps I may stress that tonight we are required to consider the legislative powers of the new parliament. That is the most important part of the Bill. That we should be considering the issue at a late hour on Thursday night, when in the nature of things we shall not have a very full attendance and when there is so much detail to discuss, is intolerable. The Government have tabled a number of

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important amendments which we must consider carefully. Schedules 4 and 5 run to 21 pages. It is intolerable that we should have to start at this time.
Lord Fraser of Carmyllie: I, too, am concerned about the time we are starting the Bill. As my noble friend Lord Renton pointed out, we are starting to debate one of the most important parts of the Bill; certainly a part to which Members of the Committee should be giving the closest scrutiny. As we discovered late on Tuesday night, the Government are unclear about the extent to which, and in what circumstances, the judiciary is to be involved in the workings of the parliament. We are beginning to debate the standing orders of the parliament. There are other important matters which we shall wish to discuss at some length and with some care: for example, whether during the proceedings of the Scottish parliament, unlike the Westminster Parliament, it would be open to members who took exception to the way in which the proceedings were going to withdraw from the parliament and ask the courts to reach a decision on what is required by the standing orders.
I regard that to be a very important matter. Because it is so different from the way in which matters proceed in the Westminster Parliament, we ought to be able to examine it carefully. It is intolerable that we are beginning this chapter on a Thursday evening some time after seven o'clock. As my noble friend Lord Mackay has indicated, that would be bad enough in any circumstances, but it is impossible given that we suffered much the same problem on Tuesday.
Lord Mackie of Benshie: That is another five minutes gone! I agree that the situation is intolerable, but perhaps the Minister too feels that it is intolerable. At least, I hope and believe that he does and that he will do his best to correct matters.
I believe that the two amendments are unnecessary. Amendment No. 128 is certainly flawed in that although one can have expert witnesses and expert advisers, it would be unsuitable to have non-members of parliament as voting members of a committee. Therefore, I hope that the noble Earl will withdraw his amendment.
Lord Carter: Although I was out of the Chamber when the noble Lord, Lord Mackay of Ardbrecknish, first spoke, I was watching the proceedings on the screen and came here in a hurry. I entirely understand what he is saying and I sympathise. He will understand my problem as Chief Whip. I have been given a Northern Ireland Bill as a part of the peace process. As we all know, that Bill must receive Royal Assent before we break for the Summer Recess. We agreed through the usual channels when we would break for the summer. We can find time to finish the Committee stage in the first week of August, as the noble Lord knows, but I entirely understand his wish not to do so.
I apologise for the time at which we are starting the Bill tonight. The Bill is important, but the fact is that I have had to juggle the Northern Ireland Bill against this Bill. We have more time—until eleven o'clock tonight, which is another two-and-a-half hours away. However, I understand how the noble Lord feels. It is a matter for
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the usual channels. We offered extra time in the first week of August. The noble Lord decided not to take that, which I understand. I think that the best thing now is to get on with the Bill and to see what progress we make. I suspect that we shall keep on talking about it from now until 31st July.
7.15 p.m.
Lord Sewel: With Amendment No. 122, the noble Earl is attempting to restrict the parliament to setting up committees which, in his words,
"address subjects relevant to the Parliament".
I am not sure how the noble Earl would define what is "relevant" to the parliament. I suspect he means that committees should be able to discuss only devolved matters. This would, of course, be an unacceptable restriction of the parliament's day-to-day working.
The Government intend that the Scottish parliament will be able to debate the full range of issues which are of interest and concern in Scotland, whether devolved or reserved, just as this House debates issues about which it does not legislate. The parliament will also be able to investigate any matter, also including reserved matters, through its committees. It will be for the parliament itself to decide on its committee structure and what powers and functions they should be given.
With this Bill, we are creating a framework in which the Scottish parliament will be expected to operate. The noble Earl's amendment, is I am afraid, unwarranted interference in the proper decision-making powers of the parliament. How the parliament operates within the framework that we are establishing is a matter for the parliament to decide.
With Amendment No. 128, the noble Earl is intending to pave the way for non-MSPs to be members of the committees. The Government believe that it is right that the Scottish parliament's committees and sub-committees will be composed of members of the parliament. Special provision is made in the Bill for the case where the Lord Advocate and the Solicitor-General are not members of the parliament, but that is an exception. They need to be able to participate in the proceedings of the parliament because they are Scottish Ministers.
Apart from that special provision, we consider it appropriate that only members should have the right to deliberate and vote when committees take decisions. It is difficult to see how it could be otherwise. MSPs will be accountable to the electorate for all their actions. I raise the question, simply and bluntly: who would non-members be accountable to?
However, as we made clear in the White Paper, we want the Scottish parliament to be accessible, open and responsive. Involvement by organisations and individuals in decision making will be encouraged and advice from specialists will be sought as appropriate. But that is fundamentally different from being full members of the committees and sub-committees of the parliament.
The contribution which non-MSPs could make to the work of the parliament and how best to organise this is being considered by the Consultative Steering Group

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chaired by my honourable friend Henry McLeish, the Minister responsible for devolution. The CSG has commissioned research on the experience of other parliaments. We are looking to deliver imaginative, innovative solutions as to how non-MSPs can become involved in the work of the parliament to ensure that the parliament has access to a wide range of expertise and opinion when considering an issue. But—and this is the important point—that must be in ways which do not blur the accountability of MSPs for the decisions of the parliament. Therefore, we are keen to involve outside organisations in the parliament in appropriate ways but I believe that the way offered by the noble Earl is fundamentally misconceived. I ask him to withdraw his amendment.
The Earl of Mar and Kellie: I was pleased to hear the Minister say that the Scottish parliament will be able to discuss all issues which arise in Scotland. In the event of a Scottish parliament taking a view on a reserved matter, would I be right in thinking that the parliament will be able to pass a resolution and then send that resolution to the Parliament of the United Kingdom? Has any procedure yet been thought of as to how such resolutions would be received by the UK Parliament?
Lord Sewel: My understanding is that the parliament would just take a view on a reserved matter and that would be the end of the matter.
The Earl of Dundee: I am grateful to all Members of the Committee for their contribution and to the Minister for what he said. I acknowledge that my amendments are probing amendments. What I had in mind was to listen to what the Minister had to say about his interpretation of the provisions of the Bill with regard to ensuring a balance between parliamentarians and the executive in the committee structure arising from the standing orders in Schedule 3.
The Minister reassured us that all subjects relevant to the parliament will in fact be considered by parliamentarians within the committee structure as matters already stand. I accept the concern of the noble Lord, Lord Mackie of Benshie, that if we followed the route of co-opting persons who were not members of the parliament, this would then risk producing two classes of citizen on the committees: those who voted and those who did not vote. With those various comments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: I must remind the Committee that if Amendment No. 123 is agreed to, I cannot call Amendments Nos. 124 and 125 because of pre-emption.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 123:
Page 61, leave out lines 38 to 43.
The noble Lord said: I move this amendment and speak to other amendments in place of my noble friend Lord Steel of Aikwood.
The structure of this particular part of the Bill is interesting, particularly for those of us who have been involved with the Government of Wales Bill where the setting out of standing orders and committees is gone into much more fully. In this Bill, Clause 21 merely provides that:
"The proceedings of the Parliament shall be regulated by standing orders",
in accordance with Schedule 3. In Schedule 3, there are only the very bare bones of directions to the parliament as to how those standing orders should be formulated.
Indeed, a moment ago, the noble Lord, Lord Sewel, criticised the amendment of the noble Earl, Lord Dundee, as being an attempt to restrict the scope of committees. He said that that was unacceptable. Amendment No. 123 seeks to remove a restriction on the parliament in the formulation of those standing orders. We seek to remove subparagraphs (2) and (3) of paragraph 4 of Schedule 3, which we submit are restrictive in themselves. The first of those paragraphs is mandatory:
"The standing orders shall include provision for ensuring that, in appointing members to committees and sub-committees, regard is had to the balance of parties in the Parliament".
Sub-paragraph (3) is discretionary and states:
"The standing orders may include provision for excluding from the proceedings of a committee or sub-committee a member of the Parliament who is not a member of the committee or sub-committee".
We simply ask why the Scottish parliament, duly elected, should not decide for itself what the balance of a particular committee should be.
Should those sub-paragraphs remain, we move on, in our Amendments Nos. 124 and 125, to consider the position of regional committees and regional sub-committees which may be set up.
Regional committees and sub-committees, as I understand them, are advisory only. They are not to set policy but to advise the parliament on the particular problems that appertain to a region within Scotland, however those regions are defined and drawn up by the parliament itself. It is argued that it would be inappropriate, on a regional committee, simply to achieve the party balance that obtains throughout the whole of the parliament, that members from other areas in Scotland should be members of that regional committee.
If one takes one area which, on the results of the last election, would be adverse to my party—perhaps the area east of Glasgow, where there is no Liberal Democrat representation—why, in a regional advisory committee, should there be representation by a Liberal Democrat member of the Scottish parliament who comes from an entirely different part of Scotland?
In the case of the Highlands and Islands, why should members come from another part of Scotland simply to maintain, let us assume for a moment, a Labour majority on that regional committee? In order to obtain a Labour majority on the regional committee for the Highlands and Islands, based upon the results of the last election, it would be necessary to import Labour members from another part of Scotland to sit upon that regional

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committee. Therefore, our argument is that, in the regions, the balance that appertains in the region itself should be maintained on the committee and not the balance in the parliament overall.
I move on to Amendment No. 126, which deals with the scrutiny of European legislation. In this Chamber we are familiar with the scrutiny of European Commission documents or European Union legislation. Members of the Committee will appreciate instantly that that does not involve taking policy decisions in relation to European Union legislation and documents. Scrutiny means scrutiny: looking at it and reporting to the parliament about the effect of that legislation and those documents upon the economic and social life of Scotland.
In that context and in that context alone, we propose that elected members of the European Parliament who are elected in Scotland should be entitled to contribute their expertise and act as a link between the parliament in Scotland and the European Parliament. There is a huge volume of legislation to be looked at, scrutinised and reported upon. We believe that elected MEPs have the experience to advise and assist the Scottish parliament on those issues.
If one looks at the way in which other countries handle scrutiny in their own domestic parliaments, one observes that in Belgium there is a scrutiny committee in its national parliament which consists of 10 Members of the European Parliament and 10 Members of the Belgian Parliament. In Germany, in the Bundestag, there are 50 elected representatives involved in scrutiny, of whom 39 are directly elected to the Bundestag, with 11 of them actually being Members of the European Parliament. In Greece, there are 31 Members who scrutinise European legislation for the benefit of the Greek Parliament but, of those, 10 are Members of the European Parliament. Spain has joint meetings, France has a mechanism whereby Members of the European Parliament are invited to give evidence, while in Ireland and Italy Members of the European Parliament attend scrutiny meetings.
Moreover, in Finland, Luxembourg and Portugal similar links are created so that the domestic parliament has the advice and experience of members of the European Parliament who are elected to the same areas by the same electors to assist in the scrutiny process. It will not surprise noble Lords to learn that the UK has no formal arrangements with its Members of the European Parliament and no direct links. The scrutiny given to European legislation is, to a great degree—and, one has to say, successfully—confined to the non-elected Members of your Lordships' House. It is our argument that the European Parliament should have this direct link with the Scottish parliament by having its elected members for the Scottish regions on the Scottish parliament's scrutiny committee. I beg to move.
7.30 p.m.
Baroness Carnegy of Lour: As regards the first three amendments to which the noble Lord has spoken, I wonder what he thinks local government is for. I cannot support the idea of imposing on this parliament the need
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to set up committees for regions when we have local government, recently reorganised, which is extremely keen to relate to the new parliament. I imagine that that local government will be relating to the new parliament very much as it now relates to the Scottish Office. It will be constantly negotiating, recommending and trying to persuade the parliament to give it more money, and so on. Indeed, that is the job of local government.
The noble Lord mentioned the west of Scotland around Glasgow as a possible region. One of the reasons we now have smaller councils in Scotland than we used to—for example, we used to have Strathclyde region—is that it was a very unbalanced negotiation between the west of Scotland and the Scottish Office. Indeed, it would be very unbalanced with the Scottish parliament. I have to say that it is a strange idea. I am surprised that the noble Lord, Lord Steel, who knows a great deal about how Scotland works, is making this suggestion. Quite frankly, I cannot see it working at all.
As regards the notion that Members of the European Parliament might actually be members of such committees, I should have thought that that, too, would confuse the situation. However, I can see no reason why they should not be invited to come, give evidence and assist the committees if they wish to do so; in fact, that will probably happen. I agree that that works in other countries where there is a closer link in that respect. But this parliament will have limited responsibilities for European affairs. It is not the parliament which will be dealing directly with the European Union. That will be reserved for the Westminster Parliament. Quite honestly, I believe that the amendments would cause great confusion and I would not be able to support any of them.
The Earl of Balfour: I am very concerned about the amendment. I gain the impression that it would allow small committees to be formed within the Scottish parliament. I very much hope that the Scottish parliament will be more like this Chamber and conduct almost all of its business on the floor of the House and not be split off into little sub-committees. I believe that that is one of the great dangers. The fact that Members of this place from any quarter can participate in debates or in the various stages of legislation is, I believe, one of the outstanding features of this Chamber. Therefore, I shall be very sorry if the new Scottish parliament was to have much of its business discussed in small committees.
Moreover, there is nothing to prevent any Member of the European Parliament giving a talk or having a discussion off the Floor of the Chamber in a committee room. Again, that is something which I believe to be so remarkable about this Parliament and something which I hope will be continued in the future parliament of Scotland.
Lord Mackay of Drumadoon: Perhaps I should make it clear that these Benches could not support any of the amendments in this group. I hope that that will be welcomed as consensus politics and that the Minister will listen most carefully to what I have to say; indeed, he always does.

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However, there is an important point of principle behind the attempt to remove the two subparagraphs of Schedule 3, as proposed in Amendment No. 123. As has been said on a number of occasions, it may well be a matter for the Scottish parliament to work out the detail of how it will conduct its business. But it is important to remember that the laws which it makes will have equal standing in Scotland with public general statutes made by this Parliament. Those Acts of the Scottish parliament will not only affect Scottish people; they will also affect citizens throughout the United Kingdom who have occasion to do business in Scotland or with Scottish companies which are in some way connected with Scotland. Therefore, it seems to me to be right that the parliament in this Bill should set out certain basic requirements as to the procedure which is to be followed. In that respect, I welcome the approach set out in Schedule 3.
As far as concerns the idea of having regional committees, that seems to me to be a potentially divisive idea. There may or may not have been some argument for it in Wales, where support for the Government's devolution proposals was not so conclusive and where there was considerable regional variation, with certain parts of Wales being very supportive of the idea and other parts being very much against it. However, in my submission, that does not apply in Scotland. Not only would regional committees ignore the valuable role played by local authorities; they might also seek to divide members of the parliament, which would be entirely counter-productive as regards what the Government are trying to do in this Bill.
We also oppose the idea of having Members of the European Parliament serving on such committees. It appears to me that Clause 23 would give the new parliament and its committees ample opportunity, if they so wished, to seek the views of Members of the European Parliament by requiring them to attend such proceedings or to produce any documents which might set forth their views. We are against all the amendments in the group for those reasons.
However, while I am on my feet and while we are focusing on the provisions set out in paragraph 4 of Schedule 3, can the Minister tell us in his response what will happen if, after the standing orders are in force, proper regard is not had to the balance of parties in the parliament when members are appointed to committees and sub-committees? If a particular party grouping in the new parliament takes the view that proper regard has not been had to the statutory directions set out in subparagraph (2) of the schedule, who will have the right to object, and what form could that objection take? Is this an example of where a disgruntled member or parliamentary group could go to court and have an order of some form pronounced quashing the decision of the Scottish parliament to set up a particular committee because of its membership? That is a kind of sub-question of the question that I posed late on Tuesday night. As my noble and learned friend Lord Fraser of Carmyllie said, the relationship between the court and the parliament is an important consideration.
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Early in our deliberations today we have a practical example of how the question that I posed needs to be answered.
Viscount Thurso: The noble Baroness, Lady Carnegy, referred to local government. It may be helpful to reflect on a local authority in Scotland which is larger than a considerable number of countries in Europe; namely the Highland Council. From the date when that council was set up and to this day its structure includes regional committees. Each regional committee is made up of councillors of the area concerned. Therefore, the Caithness committee is made up of all of the councillors from Caithness, irrespective of whether they are independent or party. They act in an advisory capacity.
The relevant measure to implement that was passed by the noble friends of the noble and learned Lord, Lord Mackay of Drumadoon, although I do not think he was a Member of your Lordships' House at that time. The Secretary of State of the day, who is now the noble friend of the noble and learned Lord, made it clear that one of the reasons he accepted this large grouping against the will of most of the people in the Highland area was because there would be sub-committees for each region.
There may well be a case for having regional committees in the Scottish parliament. As I understand our amendment, it seeks merely to permit the parliament to have those committees if it wishes. However, at present, as the Bill is written, it is absolutely impossible to have a committee made up of all the members of a particular region because that will not reflect the party balance. Will the Minister at least agree to think about this point and return to it at a later stage?
Lord Sewel: The Government do not support Amendments Nos. 123, 124, 125 or even, for that matter, Amendment No. 126. I shall respond to the first point that the noble Lord, Lord Thomas, made about the degree of detail in the Bill. We have consistently argued that, as far as possible, the parliament should decide such matters for itself. That is basically the guiding principle we have sought to apply. However, we believe that paragraph 4(2) of Schedule 3 should send a clear signal that the parliament should have regard to the balance of parties in the parliament. It is important to maintain that so that all committees contain a balance of views. But that, of course, does not preclude the parliament taking account of other factors. However, we think it is important—I refer to local government experience in this regard—to send a clear message that the committees of the parliament should be expected to be constituted in a way that has regard to the balance of parties in the parliament.
As regards Amendments Nos. 124 and 125, the noble Lord is trying to amend the provisions in the Bill about party balance on committees to allow for the establishment of regional committees. I am neutral on the issue of regional committees. Again, it is for the parliament to decide whether it wishes to establish regional committees. There may be strong arguments in favour that no doubt the noble Viscount, Lord Thurso, would wish to advance. There may be equally strong

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arguments against, as we have heard from the noble and learned Lord, Lord Mackay of Drumadoon. However, it is essentially a matter for the parliament to decide.
Lord Mackay of Drumadoon: As regards the point made by the noble Viscount, Lord Thurso, how could there be regional committees under the provisions of paragraph 4(2)? I do not want regional committees; I do not think they are a good idea but, as a matter of law, how could they be established? If they were appointed, would someone who objected to them have a right to challenge in court the fact that it was outwith the competence of the parliament to approve standing orders which fly in the face of subparagraph (2)?
Viscount Thurso: I am most grateful to the noble and learned Lord for making the point far more effectively than I did.
7.45 p.m.
Lord Sewel: My reading of the Bill is that it is for the parliament to establish those regional committees if it so wishes. I could go further and say that I see an argument that the membership of such committees should reflect the balance of parties in a particular region. Our view is that Amendments Nos. 124 and 125 are simply unnecessary. The current provision in paragraph 4 of Schedule 3 does not require the parliament to ensure that the membership of every committee reflects precisely the balance of the parties in the parliament. It merely provides that the standing orders must include provisions for ensuring that in appointing members to committees regard is had to the balance of parties in the parliament. However, that is not intended to tie the parliament's hands.
Lord Mackie of Benshie: Is it not the case that the committees would recommend that any legislation would be passed by the chamber according to the balance of parties in the parliament? The committees would put the regional point of view to the parliament.
Viscount Thurso: Before the Minister responds, is there a power to have advisory committees? As the Bill is currently written, can the parliament set up an advisory committee for a region, and can that committee be composed of all the members sitting for that region?
Lord Sewel: My understanding is that the parliament could certainly set up advisory committees if it wished. It could set them up in the way that the noble Viscount indicates. I believe there is a big difference between advisory committees and decision-making committees. Essentially we come back to the point that we return to time and time again; namely, that how the parliament develops its committee structure is a matter for the parliament to decide. I am happy with that. It must make provision to meet the requirement that, in appointing members to committees and sub-committees, regard is had to the balance of parties in the parliament. The balance of parties must be taken into account. However, it may be that in some cases, having had regard to the balance of parties in the parliament, the parliament
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decides to appoint to particular committees persons with a particular knowledge or interest, even though that means that that committee does not reflect the balance of parties in the parliament. That is an understandable position. The Government do not think that we should make additional provision in the Bill to require the parliament to set up particular committees in particular ways. As I said, this is a matter for the parliament to decide.
Amendment No. 126 would require the parliament's standing orders to allow MEPs to sit on committees or sub-committees which scrutinise European Commission documents or European legislation. We do not accept that amendment. While I agree that there may be occasions when a contribution by MEPs could help the parliament's consideration of EU proposals, how best to achieve that is a matter which should be left to the Scottish parliament to decide for itself. That does not prevent the parliament deciding whether and how to make provision in its standing orders for inviting non-members of committees to attend committees so that the benefit of their knowledge and experience is available to the parliament and its committees. However, as I have indicated previously, the Government believe it is right that, with the exception of the Lord Advocate and the Solicitor-General, for whom special provision is made, only members of the parliament should be members of its committees and sub-committees.
I can therefore agree with the idea that lies behind the amendments and we shall certainly want to encourage close collaboration between members of the Scottish parliament and Members of the European Parliament. But let us leave it to the parliament itself to decide how to achieve that and what the appropriate measures should be. I hope that on that basis the noble Lord will feel able to withdraw the amendment.
Lord Thomas of Gresford: The Minister has interpreted paragraph 4(2) of the schedule in a way that is directly contrary to the interpretation of the noble and learned Lord, Lord Mackay of Drumadoon, a moment before. The noble and learned Lord could not see that regional committees could possibly be set up under paragraph 4(2) which did what my noble friend Lord Thurso suggested would be sensible; namely, that those regional advisory committees should consist of all the members elected for that region.
However, having heard the interpretation that the noble Lord, Lord Sewel, has put on that paragraph, it is right that it will be interpreted in that way should the point arise for discussion in any legal forum in the future.
Lord Sewel: Regarding the matter of, "have regard to", the case law on the issue is in support of the Government's position. I refer the noble Lord to Simpson v. Edinburgh Corporation 1961, and Bearsden and Milngavie District Council v. Secretary of State for Scotland 1992. It is on those cases that the argument has been advanced tonight.
Lord Mackay of Drumadoon: Does the case law provide the answer to my question—namely, would it

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be possible to challenge in court a committee on the basis that the proper regard had not been had to the balance of the parties?
Lord Sewel: I apologise to the noble Lord for not replying to his question immediately. His point is a specific one but it raises a general issue: that of the relationship between the parliaments and the courts. I cannot give a single useful generalised answer to that question. I am happy to take away any specific points and consider them. I accept that this is a significant issue.
Lord Thomas of Gresford: My noble friend Lord Thurso asked a straight question and received a straight answer from the Minister. His question was: is it possible to have a regional committee under paragraph 4(2) on which all the members of that region sit, without incomers from other areas taking part. The Minister said yes.
The cases to which he referred are always carried in my head. I turn them over in my mind in the early hours of the morning and am fully aware of their implications, who decided them and who appeared in them. The Minister has given the answer that will be used in any court proceedings that may ever arise on the construction of this paragraph.
The question of the desirability of regional committees was raised. Perhaps noble Lords will forgive me for saying that in Wales we regard regional committees as essential. In various parts of Wales there are communities of interest. We believe that each of those communities should be represented and should be in a position to advise the national assembly of Wales.
In case noble Lords think that I am fixated on Wales, I should say that I have a deep interest in Scotland. Perhaps I can best illustrate it by saying that my new grandson's name is Angus Huw (the second name is spelt in the Welsh way), so I am almost 50:50 split on the Wales/Scotland issue. I can see that in the part of Scotland that I know best, Aberdeen, people have the same concerns about a tug from the central belt, the polarisation of power and influence in Edinburgh and Glasgow, as we in North Wales have about the polarisation of power in Cardiff. Consequently, in the part of the world that I know people are concerned that there should be proper representation and consultation, and a proper community of interests in the Scottish assembly. I should have thought that regional committees are desirable. We hope that this schedule will permit such regional committees to be formed.
The maintenance of subparagraphs (2) and (3) of paragraph 4 means that any question arising under this legislation would be for the courts to determine. If the Scottish parliament decided, for example, that a committee should be formed which did not have a balance of parties in the parliament, then the matter would go to court. All we are saying from these Benches is that the Scottish parliament should be able to decide such issues without the courts being involved in construing Westminster legislation.
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I am sure that we shall return to these issues. The amendments are not originally in my name. For the present, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 124 to 126 not moved.]
Lord Hoyle: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Houses in Multiple Occupation (Charges for Registration Schemes) Regulations 1998
7.57 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft regulations laid before the House on 22nd June be approved [39th Report from the Joint Committee.]
The noble Baroness said: My Lords, I beg to move the first of the Motions standing in the name of my noble friend Lady Hayman on the Order Paper.
The Housing Act 1996 gave local authorities new powers to adopt registration schemes for houses in multiple occupation (HMOs). It was intended that local authorities should be able to charge a non-refundable fee on application to recoup some of their costs of processing applications for registration. However, we have concluded that the provisions of the 1996 Act do not enable authorities to charge a fee unless and until registration is granted.
We are concerned that that may leave authorities that have adopted control schemes out of pocket, particularly if there are large numbers of HMOs in a poor condition in their area. It may also deter them from chasing landlords of poor-quality HMOs to ensure that they comply with their duty to apply for registration. However, authorities may be reluctant to adopt these schemes if they are unable to charge a fee until registration is agreed.
These regulations will enable authorities with control schemes to charge a non-refundable fee when application for registration is made. They are made under the power in Section 150 of the Local Government and Housing Act 1989. This power has previously been used to enable authorities to charge fees under HMO registration schemes adopted prior to the Housing Act 1996. The fee stipulated by the regulations is subject to a maximum of £60 per habitable room, which was prescribed by the Houses in Multiple Occupation (Fees for Registration Schemes) Order 1997. This order will also be amended to provide that where a fee has been paid on application under the regulations, no further fee will be payable on registration. I therefore ask the House to approve the making of the regulations.
Moved, That the draft regulations laid before the House on 22nd June be approved [39th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
Lord Bowness: My Lords, I thank the noble Baroness for her explanation. From these Benches we are content that the regulations be approved.
On Question, Motion agreed to.

Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) Amendment Regulations 1998
7.59 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft regulations laid before the House on 2nd July be approved [40th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move the second of the Motions standing on the Order Paper in the name of my noble friend Lady Hayman. These regulations are being made under the Pneumoconiosis etc. (Workers' Compensation) Act 1979. The purpose of the regulations is to increase by 4.9 per cent. the amounts of compensation paid under the Act to those who first satisfy all the conditions of entitlement on or after 1st September 1998.
The Act provides for lump sum payments to be made to sufferers from certain dust-related diseases, or, when the sufferers have died, to their dependants, where there is no realistic chance of success through the courts.
I feel sure that all noble Lords will recognise that no amount of money will ever compensate individuals and families for their suffering and loss. These regulations do, however, allow us to ensure that the compensation provided for in the original Act maintains its value. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 2nd July be approved [40th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
Lord Ewing of Kirkford: My Lords, I wish to ask my noble friend who is introducing the amendment regulations to what industries the regulations apply. My understanding is that for many years the pneumoconiosis regulations applied only to the mining industry. I now understand that they apply also to the Welsh slate industries and to a number of other industries.
The regulations are very welcome and the Government are to be congratulated on the increase announced by the Minister today, although victims suffer greatly as a result of the illness. I wish to get it on the record tonight that we are talking about not only the coal-mining industry, but also the slate-mining industry, particularly in relation to Wales.
Baroness Farrington of Ribbleton: My Lords, I thank my noble friend for his question. Those covered are sufferers from respiratory industrial diseases caused
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by dust, irrespective of industry, and, if the sufferer has died, their dependants. Most coal-miners do not need to rely on this scheme because a special scheme exists.
The diseases covered in the Act are pneumoconiosis, which includes silicosis associated with slate-quarrying, mentioned by my noble friend; asbestosis and kaolinosis associated with china clay; byssinosis, associated with cotton dust exposure, which affects areas such as the North-West and people who worked in the textile industry; and diffuse mesothelioma, asbestos-related cancer.
There may be other categories to which I am unable to refer at the moment. If that is the case, I shall write to my noble friend.
Lord Bowness: My Lords, we are content that the regulations be approved.
On Question, Motion agreed to.

Community Drivers' Hours and Recording Equipment (Amendment) Regulations 1998
8.3 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft regulations laid before the House on 22nd June be approved [39th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move the third Motion standing in the name of my noble friend Lady Hayman. I welcome this opportunity to explain in more detail the proposed amendment to the regulations.
There are two elements. The first amends Part VI of the Transport Act 1968 so that the European Union regulation which requires the fitment and use of tachographs can continue to be implemented correctly within Great Britain. The second element extends an existing exemption from the same regulations for health authority vehicles to include vehicles used by National Health Service trusts.
The first change arises from a recent High Court judgment which has thrown doubt upon whether Part VI of the Transport Act 1968 accurately reflects the intention of the relevant European Union regulations on drivers' hours and tachographs.
The regulations apply to vehicles used for the carriage of goods, but the recent case was dismissed on the grounds that the vehicle was not a "goods vehicle". That stemmed from the wording in Part VI of the Transport Act 1968 which refers to "goods vehicles" rather than,
"vehicles used for the carriage of goods".
As I have said, that is what the regulations state.
This first so-called "change" merely reinstates what until recently was the generally accepted meaning of the European Union regulations as they have been enforced up to now by the Police and Vehicle Inspectorate. It does not introduce any new requirement.
Secondly, the rules on tachographs apply only to vehicles being used for commercial purposes. So a tachograph will not have to be fitted to an off-road vehicle which is being used, for example, to tow a horse-box, caravan or trailer for private or recreational purposes.
Thirdly, not all commercial activities are caught by the regulations. There are a number of exemptions, depending on the nature of the operation being undertaken and, in some cases, the distance travelled.
I now turn to the second change. There is an exemption from the European Union regulations for vehicles used by public authorities to provide public services which are not in competition with professional road hauliers. This exemption is applied in Great Britain by a 1986 regulation which exempts vehicles being used by health authorities as ambulances to carry staff, patients, medical supplies or equipment. This wording does not extend to vehicles used by National Health Service trusts set up under the National Health Service and Community Care Act 1990. As National Health Service trusts are already established as public authorities in law, it is only right that this exemption should be extended to include them. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 22nd June be approved [39th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
Lord Ewing of Kirkford: My Lords, perhaps I may raise what I regard as an important point in relation to National Health Service trusts. In what position does this place the passengers who are carried by patient transport services which are organised by National Health Service trusts?
Baroness Farrington of Ribbleton: My Lords, in order to be certain that in an area of what may be detailed law I give my noble friend absolutely accurate information, I should prefer to take advice and write to him. I shall place a copy of the reply in the Library.
Ambulances are exempt from the provisions of the order regulations because they are exempt from EU drivers' hours rules, but they are still subject to the UK domestic drivers' hours rules. I shall write to my noble friend.
Viscount Simon: My Lords, notwithstanding what the Minister has just said, drivers' hours are there to protect the public from people who drive for excessive hours and are therefore dangerous when they are behind the wheel of a motor vehicle. It may be an ambulance, heavy goods vehicle or whatever. Consequently, I do not understand why ambulances should be exempt. An ambulance driver can be equally as tired as anyone else behind a wheel. As such people are supposed to be in the business of providing transport to and from hospitals for people who are or have been ill, it does not make sense to me. Can the Minister explain?
Baroness Farrington of Ribbleton: My Lords, the best explanation I can give my noble friend Lord Simon
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is that, while they are exempt from the EU drivers' hours rules, they are still subject to the UK domestic drivers' hours rules. If I have any further information to offer him, I will write to my noble friend.
On Question, Motion agreed to.

Deregulation (Exchangeable Driving Licences) Order 1998
8.10 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft order laid before the House on 25th March be approved [26th Report from the Deregulation Committee].—(Baroness Farrington of Ribbleton.)
The noble Baroness said: My Lords, I beg to move the fourth Motion standing in the name of my noble friend Lady Hayman.
This proposal would change certain legislative provisions governing the issue of British driving licences. It would introduce some flexibility into the present arrangements for allowing drivers from certain other countries to exchange their licences for British ones without having to pass a British driving test. As well as saving the time and expense involved in passing a test, this would benefit some drivers by enhancing their availability for a wider range of employment.
The proposal concerns persons taking up residence here from a country outside the European Economic Area (EEA). At present, anyone coming to live here from outside the EEA may drive small vehicles for up to a year on their licence. Thereafter they must generally pass a British driving test to continue to have the right to drive, unless they hold a licence issued in a country which is designated by law for the purpose of exchange of licences. Once a country is so designated, its licences may be exchanged, as a matter of course, subject only to the holders meeting the normal British requirements on health and minimum ages.
The current provision for designating countries was first introduced in 1983 and has not been significantly amended since. It enables the Secretary of State to designate a country for exchange of licences, if satisfactory provision for the granting of licences to drive motor vehicles is made by the laws of that country. Of the criteria usually used to determine whether the provision is satisfactory, the principal one is whether the driving test is of comparable standard to the British test, although the arrangements for granting a licence are also important. Twelve countries have been designated to date.
The noble Lord, Lord Bowness, was kind enough to intimate in advance that he wishes to know how the proposal deals with countries made up of states which have separate administrations for driving licences. In such cases the standards in all states would have to be acceptable to allow the country to be considered as a candidate for designation. Should there be any further information or more detail that would be of help to the noble Lord, I shall be pleased to write to him.
The proposed order will remove the requirement that certain persons holding licences issued by a country outside the European Economic Area must pass a test in Great Britain so that, first, where a person holds a licence issued by a country which is not currently designated for exchange purposes, he need not pass a test if the Secretary of State is satisfied that his licence was properly issued or was at least properly issued in respect of some of his driving entitlements; and, secondly, where a person holds a licence which is issued by a country currently designated for exchange purposes and includes entitlement to drive some classes of goods or passenger-carrying vehicle, he need not pass a test in order to upgrade his entitlement to include those vehicles if the Secretary of State is satisfied his licence was properly issued in respect of them.
The protection of the general public will not be reduced by the proposed order. The proposal will remove a burden from what is likely to be a significant number of new residents, without compromising road safety interests. As such, I commend it to your Lordships.
Moved, That the draft order laid before the House on 25th March be approved. [26th Report from the Deregulation Committee].—(Baroness Farrington of Ribbleton.)
Lord Ewing of Kirkford: My Lords, I have already asked my noble friend Lady Farrington two awkward questions. I know that this order is not about exchanging my driving licence for that of someone from Belgium, Germany or France. But I can understand that someone from those countries may want to exchange their driving licence for mine after 40 years offence-free driving in my case.
All I want to do at this time is to pay tribute to my noble friend Lady Farrington and to place on the record our appreciation of the way in which she dealt with these matters.
Lord Bowness: My Lords, I am grateful to the Minister for dealing with the question I raised before this evening's discussion. When she considers whether or not to write to me with further information, perhaps she will deal specifically with the question of countries that are organised on a federal basis. Does that mean that we could have a situation where licences issued by one of those states were acceptable for exchange, but licences issued by other states were not? Or are we saying that we have to wait for a situation where all the jurisdictions within that country issue licences on an acceptable basis before the country as a whole can be part of the order?
Baroness Farrington of Ribbleton: My Lords, my understanding is that in such a case the standards in all states would have to be acceptable to allow the country to be considered as a candidate. Should it be otherwise, I will write to the noble Lord.
Baroness Thomas of Walliswood: My Lords, I thank the noble Baroness for her response, which will assist in settling one of our major worries in regard to this order.
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I have no further objections. However, I should like to associate myself with the comments that have already been made. They do not surprise me because I know of the noble Baroness's competence from some time ago. Before I sit down, perhaps I can ask the noble Baroness to convey to her noble friend Lady Hayman our best wishes for her son.
Baroness Farrington of Ribbleton: My Lords, I thank the noble Baroness, Lady Thomas of Walliswood. My noble friend's son broke his wrist and obviously she wished to return home. If the answers have not been quite as comprehensive as they might have been, it is because I had inadequate time to brief myself.
On Question, Motion agreed to.
Lord Hoyle: My Lords, I beg to move that the House do now adjourn during pleasure until 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.17 to 8.40 p.m.]

Scotland Bill
House again in Committee on Schedule 3.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 127:
Page 61, line 43, at end insert—
("(4) The standing orders shall include provision that a committee, which may not delegate its functions to another committee or sub-committee, shall be appointed with the function of considering accounts and reports laid before the Parliament in pursuance of section 66(1).
(5) The standing orders shall provide that—

(a) no member of the Scottish Executive may be a member of the committee appointed under sub-paragraph (4), and

(b) the person chairing that committee may not be—

(i) a person representing a party of which any of the Scottish Ministers are members, or

(ii) if each of the parties in the Parliament have one or more of the Scottish Ministers as a member, a person representing the party of which the First Minister is a member.").

The noble Lord said: This is an important amendment because it deals with the financial controls which will be exercised in the new parliament. In Clause 66 there is sketched out for us the financial controls which the Government will put in place from day one for the new parliament. As far as they go, they are reasonable. They deal with accounting and auditing matters. In particular, subsection (1)(f) refers to,
"the publication of parliamentary accounts and of reports on such accounts and for the laying of such accounts and reports before the Parliament".
So the parliament will get reports. It will get reports from the government of Scotland, if I may call it that, and from the auditor general, who will have exercised his independent and very important function.
However, as far as I can see, there is little detail—I may be wrong about this—about how the parliament will exercise control and oversight over financial

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matters, and in particular over the reports of the auditor general. My amendment specifies essentially the system of parliamentary controls which are in place in the other place, which is where these financial matters are dealt with. My amendment would ensure that there is provision in the standing orders for the equivalent of the Public Accounts Committee, with some of the important safeguards associated with that committee.
Subsection (5) of my amendment states:
"no member of the Scottish Executive may be a member of the committee".
I would not expect a member of the executive to be a member of the committee. However, for the removal of any doubt, I have included that provision. What is more important is subsection (5)(b)(ii) which concerns the person chairing the committee. That makes it perfectly clear that the chairman should not be a member of the governing party or parties. That is very much in accord with what happens in the other place, where, always, the chairman of the Public Accounts Committee is a member of the Opposition party.
I have also taken into account what might happen if all four parties got into a grand coalition, although I suspect that that is taking consensus politics about 10 bridges too far. The governing party here cannot conceive of such an amazing consensus. If I had not put that in, it would have been conceiving of it and telling me that that is why my amendment was defective. I have got to the pass before it. The amendment says clearly that, if all four parties form a grand coalition—there would be no chairman of the public accounts committee—the debar would be on the party of which the first minister was a member. It could be any of the other three parties, but not the one of which the first minister was a member.
I am sure that I do not have to explain to your Lordships the importance of the Public Accounts Committee in the other place. It is an extremely influential committee. Its reports are highly influential and are read with great care by governments. They are taken into account in a very serious way. Arguably, the chairman of the Public Accounts Committee is by far the most powerful Back-Bencher in the House of Commons; and so he would be in the Scottish parliament.
My right honourable friend in the other place, who is the current chairman of the Public Accounts Committee, Mr. David Davis, proposed a number of amendments to the Bill at the Committee stage in the House of Commons. He received a number of assurances from Mr. Henry McLeish, the Minister in charge of devolution. Referring to the whole question of the standing orders and what is in the Bill, Mr. McLeish said:
"It is only a framework. For the reasons I have given, the Parliament must be responsible for the detail".
I have no great argument with that. He went on to say:
"In framing that detail, it can incorporate—if it so wishes—the suggestions featured in these amendments"—
the amendments regarding a public accounts committee—
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"such as the establishment of a Committee similar to the Public Accounts Committee. I have no hesitation in saying that I hope that the Parliament will do that. My experience as a member of the Committee was excellent, and it does invaluable work. However, the Parliament should be able to decide on the best way forward, even though my preference would be to go for a Public Accounts Committee".—[Official Report, Commons, 12/2/98; col. 637.]
So the Government were saying that if it were left to them—if they were in the Scottish parliament—they would have a public accounts committee, but they were not going to go as far as to say that there ought to be one.
The position improved a little because on 19th May on Report, when my right honourable friend returned to the matter, Mr. Henry McLeish said:
"On a second and perhaps more positive note, a meeting of the all-party consultative steering group yesterday agreed that, as part of the Standing Orders, we might want to identify a few Committees to recommend to the Scottish Parliament, and that one would be the equivalent of the Public Accounts Committee. Hopefully, that will satisfy the Chairman of the Public Accounts Committee, and ensure that the integrity of the person who chairs such a Committee is beyond doubt".—[Official Report, Commons, 19/5/98; col. 763.]
My right honourable friend Mr. David Davis had started his speech with the words, "Clearly, I welcome", when the curtain came down in the other place and mystery surrounds what he was welcoming. I am sure that I can speak for him when I say that I welcome the assurances. But given the assurances, I fail to see why we cannot put something on the face of the Bill along the lines I suggest.
I can understand it if the Government say that they do not want to specify everything on the face of the Bill and that they must leave such matters to the parliament or, in this case, to the consultative steering committee, which is working on this matter. But this is rather a zig-zag issue in that some matters clearly ought to be left to the parliament; some ought to be dealt with by us in the Bill; and some matters fall in the middle. I am sure that we could have many happy hours of argument—and we will have—as to where each one falls. I think the equivalent of the Public Accounts Committee falls firmly as something that ought to be put on the face of the Bill. There are far less important matters on the face of the Bill regarding how the parliament will work than a public accounts committee.
I appreciate that this House has less to do with these matters than the other place. It is after all the other place which votes the money and which is responsible for raising the money. The other place is also responsible for spending it. As the great bulk of the money going to the Scottish parliament will come from the United Kingdom Parliament, and as the spending of that money will be very much left to the Scottish parliament—I have no complaint about that—there is something to be said for this Parliament laying down clearly to the Scottish parliament that we expect a public accounts committee, or something named differently if that is what is wanted, as we do not want to call the first minister the Prime Minister and we do not want to call the presiding officer the Speaker. I have avoided all that

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by not naming the committee at all but by referring to it as a committee for,
"considering accounts and reports laid before the Parliament in pursuance of section 66(1)".
We should put that in the Bill and make sure that the standing orders make provision for the committee. I am not bothered about its total formation but the chairmanship, which is all-important. There may be a parliament with four parties where no one has an overall majority. There may be a temptation not to make the stipulation that the chairman ought not to be a member of the governing party. While I do not believe my previous point about taking account of a situation where all four parties would be in a grand coalition, I suspect that two or three may be in a coalition and they may not be very happy about a member of the fourth party being given such a powerful position. I can imagine a situation where that might arise. We should not leave it to the parliament to do what Mr. McLeish said he clearly hoped that it would do. This is a case where we should turn the hope of the Minister and of the other place into clear detail in the Bill. I beg to move.
Viscount Thurso: I have listened attentively to the argument put forward by the noble Lord, Lord Mackay of Ardbrecknish. I find it persuasive in some respects. I am certainly sympathetic to the thrust of what he is trying to do. The core of the matter is in the principle of what we allow the Scottish parliament to do and what we do not. The litmus test must be that whatever we oblige it to do from this Parliament, it is clearly something where we believe that there is a danger in some form so that we must oblige it to have the committee.
It is important that we have considerable trust in the Scottish parliament and the people in it. Therefore, we should allow them to make the decisions. Having weighed up the balance of the two arguments, I come down on the side of allowing the Scottish parliament to make up its own mind. Having listened to the Minister's response to my last question, which greatly reassured me, I feel certain that that is the correct way forward.
Lord Sewel: I do not believe that there is any difference at all between us as to where we want to get to on this matter. I suppose a difference is whether we want to provide a framework that enables the parliament to make its own decisions and accept responsibility for its own affairs or whether we want to provide a nanny Bill which tries to cross every "t" and dot every "i". I have made it clear that the approach we have tried to adopt all the way through is to give as much decision-making power in its internal affairs to the parliament itself.
It is paramount that the parliament puts in place the appropriate machinery to examine the financial affairs of the executive. The Bill already provides for that in Clause 66(3) which states,
"Standing orders shall provide for the consideration by the Parliament of accounts and reports laid before it in pursuance of",
the subsection which the noble Lord, Lord Mackay, quoted. There is a little more in the Bill than the noble
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Lord indicated. There is a requirement to produce standing orders that put in place how reports and accounts will be considered by the parliament. That is pretty well a sufficient degree of detail.
As I said, the Bill requires that, but how the parliament achieves it in its committee structure is for the parliament itself to decide. I make it clear that there is absolutely nothing to stop it having the equivalent of the PAC and adopting the Westminster model. That may not necessarily be the case. I appreciate the words of my honourable friend in another place, Mr. McLeish, on how much value he puts on the PAC model. I offer the thought that that might not be the only model that the parliament wishes to consider. It may consider that another approach may be more effective; for example, subject committees, which might also play a role in the scrutiny of value for money. That would give real responsibility for investigating performance as well as policy in particular areas.
Under that regime any audit committee might then concentrate on regulatory and propriety matters. The difficulty with the amendment as phrased is that it makes that kind of arrangement impossible. It is very tightly and deliberately drawn by the noble Lord, Lord Mackay of Ardbrecknish. It reads,
"a committee, which may not delegate its functions to another committee or sub-committee".
So it is actually forcing consideration very much into the relative straitjacket of the PAC-type model. It does not allow for the degree of flexibility which would, on the one hand, allow for the audit committee but, on the other, allow some of the probing on consideration of accounts, and particularly in relation to the value-for-money area, to be carried out by subject committees. In that capacity one would have thought that the specialist knowledge that the subject committees built up might play a useful and helpful part in the considerations.
As I say, there is nothing between us in terms of the degree of importance that we attach to making sure that the parliament puts in place the appropriate mechanisms to enable proper audit and the consideration of financial reports and accounts. That is covered and envisaged in the Bill as it stands in Clause 66(3). I imagine that that is going to be one of the first matters that the parliament will set its mind to; namely, how to bring that to reality. We have been making sure that the parliament and the executive are given the best possible advice on the matter. The consultative steering group and the financial issues advisory group have been charged, as the noble Lord indicated, and they are beginning to come to conclusions about the best way forward. Because there is a general recognition of the need to have robust mechanisms in place, the actual details are best left to the parliament itself.
Lord Thomas of Gresford: In supporting what the Minister said a moment ago, I make this point. It is

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certainly right that the Scottish parliament meets and, as its first matter, brings a committee of this sort into reality. If in practice that committee, first formed, does not work in the way envisaged, the Scottish parliament can immediately, and without returning to Westminster for primary legislation, change the system it has put into operation.
It is not simply that the Scottish parliament chooses the first way of running various things, but it is its ability to alter in the light of experience and circumstances which is important. For that reason we believe devolution means no more than placing a framework around the structures and organisations of the Scottish parliament and of the national assembly in Wales and leaving it to those bodies which will be elected to use their common sense in order to produce the right solutions to meet the problems that they have to face.
Lord Mackay of Ardbrecknish: I suppose that I should be grateful to the noble Lord, Lord Thomas of Gresford, for adopting his usual position and coming to the defence of the Government. It may be that I should welcome the Scottish Bill. I suspect that the noble Lord is here to wreak vengeance on the Scots for my appearance from time to time on the Welsh Bill. Perhaps I should apologise to the Committee for taking that point of view.
I have listened to the Minister with care and his reply half satisfies me. I listened to the words used. There is no difference between us as to where we want to go. However, I want to make sure that we get there. The Minister is content to leave it to the parliament or the advisory committee. However, the committee, unless it is misnamed, is only advisory and the parliament need not accept its advice. I fully understand that we do not want a Bill which appears to nanny the Scottish parliament into existence. There are already many provisions in this Bill that deserve that description and are less important than a properly constituted public accounts-type committee to monitor how the executive spends its money.
I do not believe that subject committees are a substitute. Like local authorities where subject committees as opposed to finance committees are keener on spending money than controlling it, the subject committees of the Scottish parliament will be in the same vein. I prefer to have a committee whose exclusive purpose is the control and monitoring of the way that the executive spends its money.
While I am pleased to hear the assurances of the noble Lord, as my colleague was pleased to hear the assurances of Mr. McLeish, they do not go far enough. I do not know who will be successful in the elections to the Scottish parliament. When I look at the lists of the parties I see a fair clutch of councillors. When I look at Scottish councils, North Lanarkshire and East Ayrshire do not spring to mind as role models for financial probity. As this Parliament is to send a considerable amount of money to the Scottish parliament, I believe
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that it has the right to suggest that the latter sets up a public accounts committee. I regard this matter as very important and I desire to test the opinion of the House.
9.2 p.m.
On Question, Whether the said amendment (No. 127) shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 70.

Division No. 1

CONTENTS

Astor, V.

Mackay of Drumadoon, L.

Attlee, E.

Norrie, L.

Balfour, E.

Quinton, L.

Brougham and Vaux, L.

Rawlings, B.

Byford, B.

Renton, L.

Campbell of Alloway, L.

Rowallan, L.

Carnegy of Lour, B.

Saltoun of Abernethy, Ly.

Courtown, E. [Teller.]

Sanderson of Bowden, L.

Denbigh, E.

Seccombe, B. [Teller.]

Dundee, E.

Selkirk of Douglas, L.

Hardwicke, E.

Sempill, L.

Kingsland, L.

Skelmersdale, L.

Kintore, E.

Stair, E.

Lane of Horsell, L.

Stodart of Leaston, L.

Lucas, L.

Trefgarne, L.

Lyell, L.

Wedgwood, L.

Mackay of Ardbrecknish, L.

Wise, L.

NOT-CONTENTS

Addington, L.

Islwyn, L.

Alderdice, L.

Janner of Braunstone, L.

Allenby of Megiddo, V.

Jay of Paddington, B.

Archer of Sandwell, L.

Jeger, B.

Avebury, L.

Kennedy of The Shaws, B.

Blackstone, B.

Kilbracken, L.

Borrie, L.

Lester of Herne Hill, L.

Carlisle, E.

Levy, L.

Carter, L. [Teller.]

Linklater of Butterstone, B.

Chandos, V.

McIntosh of Haringey, L. [Teller.]

Clinton-Davis, L.

Cocks of Hartcliffe, L.

Mackie of Benshie, L.

Davies of Coity, L.

McNair, L.

Davies of Oldham, L.

Maddock, B.

Desai, L.

Mar and Kellie, E.

Dixon, L.

Molloy, L.

Donoughue, L.

Monkswell, L.

Dormand of Easington, L.

Montague of Oxford, L.

Dubs, L.

Pitkeathley, B.

Ewing of Kirkford, L.

Ramsay of Cartvale, B.

Falconer of Thoroton, L.

Randall of St. Budeaux, L.

Razzall, L.

Farrington of Ribbleton, B.

Redesdale, L.

Gilbert, L.

Rendell of Babergh, B.

Gordon of Strathblane, L.

Richard, L. [Lord Privy Seal.]

Grenfell, L.

Russell, E.

Hacking, L.

Scotland of Asthal, B.

Hanworth, V.

Sewel, L.

Hardie, L.

Simon, V.

Hardy of Wath, L.

Symons of Vernham Dean, B.

Haskel, L.

Thomas of Gresford, L.

Hilton of Eggardon, B.

Thurso, V.

Hoyle, L.

Tope, L.

Hughes, L.

Watson of Invergowrie, L.

Hughes of Woodside, L.

Whitty, L.

Hunt of Kings Heath, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
9.10 p.m.
[Amendment No. 128 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 129:
Page 62, line 5, at end insert—
("Scrutiny of delegated legislation
The standing orders shall include provision for the exercise of appropriate control by the Parliament over the passage of delegated legislation created by a Scottish Minister by virtue of this Act or under powers conferred by the Parliament.").
The noble Lord said: I beg to move Amendment No. 129. This amendment is about the scrutiny of delegated legislation. Under governments of all political parties the amount of delegated legislation has increased enormously. In this House we have set up a Select Committee on Delegated Powers and Deregulation. Indeed, I was one of its founder members. Then I fell to be one of its victims when some of my legislation was called into question by that committee. I have to say in my defence that I immediately took on board what that committee said and tabled suitable amendments.
That Select Committee looks for Henry VIII clauses in particular, and tries to judge, and to point the House in the direction of, the correctness of the chosen route for the approval of secondary legislation. I refer to whether it should be by the affirmative procedure or the negative procedure. Occasionally the committee tells Ministers and the House that perhaps a power is a Henry VIII-type power and that rather than using the negative procedure, approval should be by means of the affirmative procedure. I think I can safely say that the previous government very much listened to what the committee said and that so far this Government have done likewise. However, that is just one aspect of this. I refer to looking at powers as they are constructed in primary legislation.
This amendment deals with what we do with delegated legislation when it comes before a parliament. In this House we have a convention not to divide. The noble Earl, Lord Russell—he is unfortunately not in his place although I saw him earlier—has found some ingenious ways round that convention without actually breaking it as I also know—not, I am happy to say to my cost as I always managed to win, but at least it caused a little trouble.
Under the Statutory Instruments Act 1946, both Houses must consider all affirmative orders. A huge number of negative instruments are laid before Parliament and never discussed. The figure runs into hundreds in a Session. The House, of course, has a right to discuss them as we have 40 days in which to table a prayer. In the other place, if it is agreed to have a debate (through, I suspect, the usual channels) they are Standing Committee debates of an hour and a half. Noble Lords who were once Members of the other House will remember some happy hours and a half dealing with secondary legislation. The Joint Select Committee of both Houses considers statutory
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instruments as to the form in which they are and the legal propriety. The financial ones are laid before the Commons alone and treated by a Commons committee.
Lord Renton: I am grateful to my noble friend for giving way. It is important that he should stress that it is a question of whether they are ultra vires, within the power, that that joint committee has to consider above all.
Lord Mackay of Ardbrecknish: I am grateful to my noble friend, who knows a great deal about these matters. By "legal propriety" I meant that they are within the vires of the original Act. My amendment does not lay down what should be the appropriate controls. I am content that the detail should be left to the Scottish parliament. It may wish to use a method different from the one used here. It might be too much to hope that it would use a method which would improve the scrutiny of secondary legislation, and that more secondary legislation might be scrutinised by the Scottish parliament than is scrutinised here. That might come about, because the Scottish parliament will obviously not have as much as the other place does. One can only hope.
I am not laying down the details; I am merely saying that the:
"standing orders shall include provision for the exercise",
of such delegated legislation, when the Scottish parliament comes into being. It is an important matter. Many Members of the Committee take part in serious debates on legislation on the propriety of the Government seeking powers via secondary legislation. Part of that argument is always the lack of control by both Houses of this Parliament of secondary legislation. I hope that the parliament in Scotland might do rather better. I beg to move.
9.15 p.m.
Lady Saltoun of Abernethy: We should not forget that this Holyrood parliament will not have a second chamber. This is an important amendment which should receive serious consideration by the Government.
Lord Hope of Craighead: The amendment touches upon the area of judicial scrutiny as well as parliamentary scrutiny, because if there is a defect in the delegated legislation, because it falls outside the competence of the parliament—I am looking particularly at Schedule 6 which lists the devolution issues—the legislation will be vulnerable to attack. I think that I am picking up the point made a moment ago by the noble Lord, Lord Renton: one of the crucial points of scrutiny is to scrutinise the vires of the delegated legislation.
In the case of the Scottish parliament, that will raise a number of complex issues affecting European Community law, human rights law and the rights of the Scottish parliament itself. Anything that could be done to ensure that delegated legislation was as secure as possible against challenge should be done. In that connection, I was struck by a point made by the noble

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and learned Lord the Lord Advocate when Clause 1(4) was being discussed. He may well remember that the noble and learned Lord, Lord Simon of Glaisdale, was suggesting that that clause was unnecessary. If I picked up correctly the reply made by the noble and learned Lord it was that it was desirable to include that subsection in Clause 1 to ensure the provisions passed by the parliament were as secure as possible against attack.
I support entirely that philosophy. The amendment falls into that category. It is a mechanism which will tend to make the delegated legislation as secure as possible against attack. Some steps have been taken in the Bill to try to provide protection. I can see in paragraph 2 of Schedule 6 a provision which attempts to deal with the possibility of frivolous or vexatious complaints. It may be difficult for a court, when faced with a complaint challenging delegated legislation on the ground of lack of vires, to say immediately that that complaint is frivolous or vexatious. My concern is that delegated legislation may be subject to question and cause uncertainty. The amendment is a step at least in the direction of securing certainty.
Lord Selkirk of Douglas: I wonder whether in answering the amendment the Minister could turn her attention to the earliest date when the standing orders could be published. I am referring in particular to the draft standing orders. Will the Minister tell the Committee whether the draft standing orders are now in existence? Obviously the Government would wish to take into account the views expressed in Parliament and the wording of the statute. It would be of great help if the Committee could be told the earliest possible date that they could come into existence. In deciding such matters, the Scottish Parliament will want to have draft standing orders before it before it can approve them and before they receive the force which standing orders approved by Parliament receive. If the Minister can enlighten us on this point, it would be a great help.
Baroness Ramsay of Cartvale: My Lords, we have had now a number of debates about what it is appropriate for this Parliament to require the Scottish parliament to include in its standing orders. Amendment No. 129 raises yet another point on what is becoming familiar ground.
We stated in paragraph 9.1 of the White Paper that there should be a minimum of legislation and wherever possible we would leave it to the Scottish parliament to decide for itself what its procedures should be. While the Bill requires standing orders to address a number of aspects to do with the passage of primary legislation, it is, quite properly in my view, silent on the procedures for secondary legislation.
However, I agree entirely with the noble Lord, Lord Mackay of Ardbrecknish, that it is important that the parliament should have appropriate control over the passage of delegated legislation. I do not think that anyone would dispute that. I agree with the importance that the noble and learned Lord, Lord Hope, stressed, in his intervention on the amendment. Indeed, the
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amendment reflects a suggestion made by the Select Committee on Delegated Powers and Deregulation—in which the noble Lord, Lord Mackay of Ardbrecknish, has such a special interest—which drew attention to the Bill's lack of prescription on this point. Noble Lords will have noted that the report of the committee was generally favourable. On this particular point the committee accepted that,
"it will be for the Parliament to decide in the case of each new delegated legislative power what is the right measure of scrutiny and control".
It did not make a recommendation but suggested that,
"the House may wish to consider whether Schedule 3 (Standing Orders) should be amended to make plain that Standing Orders will, in fact, address the issue".
I hope that the noble Lord will forgive me if I repeat something which has been said a number of times now: that this new parliament will, we believe, without doubt be a responsible body. It must be right that the Scottish parliament is able to decide its procedures for itself. Since we are devolving power to the parliament, we are anxious to allow the parliament the discretion to exercise this power and we think we should trust it to exercise it properly.
Various provisions in the Bill envisage that the parliament will make provision for the scrutiny of legislation. For example, Clause 106 translates references to procedure at Westminster to procedure in the Scottish parliament for subordinate legislation-making powers which will transfer to the Scottish ministers. But we felt that the detailed parliamentary procedures for the subordinate legislation were better left for the Scottish parliament to devise.
The noble Lord, Lord Selkirk of Douglas, asked me about the publication of draft standing orders. There are no draft standing orders at present in existence because the consultative steering group which we have now talked about on various occasions, chaired by my honourable friend Mr. Henry McLeish with representatives of all the Scottish political parties, is still meeting on that subject. It is expected to report by the end of December. The Secretary of State will then prescribe an initial set of orders which will be available next spring.
I am sure that we can rely on the parliament to make provision for the scrutiny of subordinate legislation in its standing orders. The Select Committee made only one recommendation. It drew to the attention of the House the extent of Henry VIII powers and the suggestion that the affirmative procedure would be appropriate for the exercise of these powers. We are giving careful consideration to what the Select Committee said and we will certainly return to the issue when we consider Clauses 101, 102 and 103, which deal with subordinate legislation.
However, I do not wish to imply that the Government are intransigent on this matter. We are certainly willing to look at it again and tell the House how we feel at the next stage of the Bill. I invite the noble Lord to withdraw his amendment.
Lord Rodger of Earlsferry: I was comforted by the concluding words of the noble Baroness. As one looks

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at the schedule, it is hard to imagine that the Government did not believe that the parliament would make standing orders for the reporting and publishing of proceedings but nevertheless have included a particular provision for that. I cannot imagine that the Government would be happy if the parliament did not have some mechanism in place for reviewing secondary legislation. Indeed, it has been implied that that is expected.
In that situation, I cannot see that any harm would be done by including a provision along the lines outlined in the amendment. As my noble and learned friend Lord Hope said, it is a matter of the very greatest importance. Everyone wishes to ensure that the legislation is as secure as possible. I hope that on further reflection the Government reach the view that the provision should be included.
Lord Renton: I am pleased that the Minister has said that the Government are willing to consider the issue again. It is very important. She made one comment about which I hope she will be cautious in future. She said that we must assume that the parliament will be a responsible body. That greatly depends upon which party is government in that parliament. It is safer for us to get things right rather than to take chances of that kind.
Lord Mackay of Ardbrecknish: I am grateful to the noble Baroness for her last few words. At first I thought that we were going to get a "No, no, no". However, we got a "No, no" and then a "Maybe". Of course I appreciate that the Bill largely deals with procedures for primary legislation, but I hope that that does not imply that secondary legislation is of less importance. It can be of the greatest importance, especially as this parliament—and I have no doubt in future the Scottish parliament—tends to pass Bills of a more skeletal nature than was once the case with many order-making powers. Some Bills that were passed through this Parliament by my own party were very dependent on secondary legislation, and I have little doubt that the same will be true of the present Government. Therefore, the issue of secondary legislation is important.
While the Delegated Powers and Deregulation Committee rightly stated that the correct procedure must be highlighted in any legislation which the Scottish parliament passes for secondary legislation—the procedure that should be used and whether it should be an affirmative or a negative-type procedure—it did not say much about the control that the parliament might exercise on that secondary legislation.
The noble Baroness was wise to suggest that the Government would ponder on what was said because the noble and learned Lords, Lord Hope and Lord Rodger, had intervened to highlight the real problem about the vires and the requirement to make delegated legislation as secure from attack as possible. My noble and learned friend Lord Mackay of Drumadoon pointed me to Schedule 6, paragraph 1(b) where it seems clear that the courts might be asked to judge legislative competence even before the parliament has agreed to a piece of secondary legislation by whichever mechanism it is to decide on that. Therefore, the noble Baroness
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was wise to say in conclusion that she would take the matter away. With those first words of comfort which we have received from her in the course of the Committee stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.30 p.m.
Baroness Linklater of Butterstone Baroness Linklater of Butterstone moved Amendment No. 129A:
Page 62, line 5, at end insert—
(""Regulation of lobbying activities
6. The standing orders shall include provision for the regulation of the lobbying activities of individuals and companies in relation to the work of the Parliament.").
The noble Baroness said: The purpose of the amendment is to ensure that lobbying in the Scottish parliament is regulated properly. That subject has become extremely topical once again with the Prime Minister being reported in The Times today as backing the idea of a statutory register of lobbyists and the introduction of a quarantine system for ex-political advisers before they join lobbying firms.
Whether we like it or not, lobbyists have increasingly become part of the paraphernalia of political life and have a role to play when they behave properly. When they abide by the rules, they can play a helpful role in such matters as interpreting Bills for companies or acting as go-betweens between industry and other groups and Parliament. However, they are go-betweens and in many ways, by coming between government and the electorate, they can interfere with the process of communication and even emphasise the gap between the two.
How a government communicate with their electorate says quite a lot about them and this Government seem to rely increasingly on that form of communication to interpret and spin, from Mr. Mandelson down.
The experience of the recent past—the zeal and enthusiasm for dealing in government information and selling it to clients and even selling access to a Minister—has demonstrated the risks associated with that activity. Such a way of dealing with government information is not something that we wish to see in Holyrood. Only last week the noble and learned Lord, Lord Fraser of Carmyllie—I am sorry to see that he is no longer in his place because I should like to hear his views—launched a new lobbying group of his own from the august premises of the New Club in Edinburgh. So, already the bees are preparing to swarm around the new honeypot. But the noble and learned Lord, Lord Fraser, has pledged that he would back a code of ethics and a system of regulation by the Scottish parliament.
The Cabinet Secretary, Sir Richard Wilson, is reported to be drawing up a new code of conduct for lobbyists in the next few days, an initiative which can only be warmly welcomed. I understand that it is on the cards that the Neill Committee could be asked to examine the role of lobbyists. So now at Westminster action is being taken to tighten up on the activities of that layer of political consultation.
Before the Scottish parliament comes into being we should like to see it laid down clearly that:
"The standing orders shall include provision for the regulation of [such] lobbying activities".
The Government may take a lead from the Association of Political Consultants. Its code of conduct recommends, for example, that its members should not have passes to the Palace of Westminster and should not,
"place themselves in a position of a potential conflict of interest by appointing any MP, MEP or sitting Peer to their main or any subsidiary board or by paying any retainer or commission",
to any of those people. One may well add MSPs to the list.
However, as we have already been discussing and agreeing at some length, precisely what form the regulations should take must be for the Scottish parliament to decide. But it is important that from the word go the new parliament is seen to protect itself as far as possible from the excesses that we have seen in the recent past at Westminster. I beg to move.
Lord Renton: I believe that the noble Baroness deserves support for this amendment as far as it goes. However, the trouble that we have learned about in recent months and about which I had a Starred Question last week is not merely the lobbying of Members of Parliament. The problem was—we are all very glad to note that the Government are doing something about it—that there was lobbying of civil servants and lobbying in relation to the work of the Government. Therefore, if this amendment is passed, on Report we should add an amendment to the effect that it should apply to the work of the parliament or of the executive.
Lord Watson of Invergowrie: I am grateful to the noble Baroness for raising this important subject. Perhaps I should declare an interest in that I am what she described as one of the "bees" who will perhaps be swarming around the "honeypot" of the Scottish parliament in years to come. As an alternative, I should very much like to be an elected member of that parliament, but that is for others to decide.
As the noble Baroness said, it is a topical issue and I welcome the very measured tones in which she introduced the amendment. In the light of media coverage over the past 10 days or so, I had become rather alarmed that it might be another "rant". I do the noble Baroness no disservice in suggesting that; indeed, that is not normally the way that she addresses this Chamber. However, there have been many contributions in that vein, so I welcome this proposal.
Not only have I no objection to there being regulation of lobbying within the Scottish parliament—indeed, I would welcome it—I am also an advocate of self-regulation for many of those involved within the lobbying profession, if I may use that expression, and in the wider sense. It is a much wider sense than is often understood, and that is not something which has come out in the recent media coverage over the past few days. There are many organisations, apart from lobbying
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companies like the one of which I am a director, which are involved in lobbying in and around this place, in local government and in the European Parliament—there are quangos, local authorities, charities, voluntary organisations, trade unions and trade associations—all of which indulge to a greater or lesser extent in lobbying.
It is part of the hypocrisy of the press coverage over the past few days that two of the most assiduous lobbyists of the Newspaper Publishers Association indulge in lobbying in respect of regulation of what they are or are not allowed to print, the ownership of the media, and the BBC in terms of its licensing fee. I am sure that a great deal of it goes on behind the scenes in a way that they have criticised others for employing. I reject that approach.
It is important that the Scottish parliament should start on the right footing. I believe that the noble Baroness mentioned an organisation called the Association of Professional Political Consultants. That is a self-regulatory body which operates in and around these Houses of Parliament. Unfortunately, it has been shown to be ineffective. I understand that two of the three organisations highlighted in the Observer reports last week were in fact members of that association. Therefore, the dangers or limitations of self-regulation are evident for all to see.
Having said that, I and several other people concerned with lobbying in its various forms in Scotland have been involved over the past six months in putting together a self-regulatory organisation aimed at operating around the Scottish parliament. I am sure that that will continue until its conclusion, but I believe that it could quite easily be complemented by some form of regulation from the parliament. I cannot really see that there could be any objection from those who operate any form of lobbying. The way in which I operate when I have to approach someone on behalf of a client, whether it be a Member of Parliament or a Minister, is to be absolutely open and transparent. I say what I am doing, outline the argument and say on whose behalf I am making it. I firmly believe that if you have nothing to hide you have nothing to fear. If you are up front and open, there is absolutely no reason to fear any kind of regulation as to what you do. It is only those who want to operate behind the scenes and under cover who have something to fear. It is within that context that I support the noble Baroness's amendment.
Viscount Thurso: I rise to express my support for my noble friend and kinswoman in her amendment. This is one of the subjects which is not only topical at present but something which is of such importance that the principle deserves to go on the face of the Bill. The important part about my noble friend's amendment is that she leaves all the decisions as to how such regulation should be enforced to the Scottish parliament.
Lord Mackay of Ardbrecknish: This is an important subject. Well, it is mildly important in comparison with the two matters that we have already discussed. I believe that the noble Lord, Lord Watson, summed it all up and that there is very little to add to what he said. Like the

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noble Lord, I believe that there is nothing wrong with lobbying by companies, and so on. It would seem remarkable if we had a parliament where the only people who were not allowed to lobby were those people who actually create the economic wealth but every pressure group which wanted to spend that wealth were allowed happily to carry on lobbying. Therefore, we should be careful before we decide that lobbying ought not to be allowed. Frankly, it will always take place. Like the noble Lord, Lord Watson, I believe that it is important for it to be done openly and above board. Indeed, he made that point most clearly.
I turn now to the remarks made by the noble Baroness. I hope that she gave my noble and learned friend Lord Fraser of Carmyllie some notice that she was going to do a little advertising for him. I am not entirely sure that he would be happy with being described as someone hovering around a honeypot. My noble and learned friend could perhaps do without hovering around a honeypot. However, I would caution the noble Baroness against saying anything like that outside this Chamber. What intrigues me about the source from which this came is the fact that, in the great levels of importance, I should have thought that a public accounts committee and the scrutiny of delegated powers were hugely more important.
Earlier I discussed the matters I thought we should leave to standing orders and the matters I thought we really ought to set down. I think this matter comes pretty low down the list. When we discussed a public accounts committee the noble Lord, Lord Thomas of Gresford, said that that was a matter that should be left to the Scottish parliament and this Parliament should not set down anything in that regard. I am amazed that just a little while later a Liberal Democrat demands that standing orders will include provision for regulating lobbying activities. A few moments ago that party said we should not include a provision that made it compulsory to have a public accounts committee.
Lord Mackie of Benshie: The noble Lord may appreciate that this is a new form of trouble which has been revealed in recent weeks, whereas a public accounts committee is absolutely essential. The matter we are discussing is something new which we think should be taken into account.
Lord Mackay of Ardbrecknish: I suppose that if you have to defend holding two opposite positions within an hour, that is as good a defence as I have heard. However, it does not convince me. If I had heard the noble Lord, Lord Thomas of Gresford, roundly condemning my suggestion that standing orders should include provision for a public accounts committee, if I had been the noble Baroness I would have decided quietly not to move my amendment. I do not know what the Government will say about this, but I believe this matter falls well inside those matters that can safely be left to standing orders of the parliament.
Lord Sanderson of Bowden: Before the Minister replies to this point, I should say that I have no objection to what is being proposed in this amendment. All I
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would say as someone who may have to do some kind of work—in connection with a company I am involved with—to ensure that the Scottish parliament gets the right idea about certain matters is that I consider this matter of far less importance than that of the amendment which was defeated recently. I advise Ministers that I believe one needs to look closely at what was proposed under Amendment No. 127 which was defeated. The whole credibility of the parliament, its functions and its financial arrangements will come under intense scrutiny by business up and down Scotland and beyond the borders of Scotland. It will be vitally important to the parliament's future credibility to examine its accounts and the reports laid before it.
The Lord Advocate (Lord Hardie): The amendment tabled by the noble Baroness raises an important issue, as is apparent from the many contributions made by the Committee this evening. It is an issue which obviously requires careful consideration. We believe that it is important—I am sure the Committee will accept that this is important—that the Scottish parliament should establish from the outset a reputation for the utmost probity in the conduct of its members. I do not think there can be any question about that. Having said that, I cannot support this amendment. I share the view of the noble Lord, Lord Mackay of Ardbrecknish, and that of the noble Lord, Lord Sanderson of Bowden, on the relative importance of this matter. I also am of the view that this is clearly a matter which can safely be left to the Scottish parliament.
The amendment proposes that there should be a duty on the parliament to make standing orders to cover such lobbying activities as are specified. I do not believe that standing orders are the right means to regulate lobbying activities of individuals and companies. The means by which the noble Baroness has sought to regulate this matter in this amendment are in my view, not appropriate. Standing orders are concerned with regulating the proceedings of parliament and the conduct of members of the Scottish parliament who are participating in those proceedings. But to regulate the evil or ensure that the proper remedy is provided this proposal would be extending the scope of standing orders too far to encompass matters proposed in the amendment.
If there is to be statutory regulation of the lobbying activities of individuals and companies—and I do not demur at the suggestion that that matter may well have to be considered, and considered seriously—I suggest that it would be more appropriate for such regulation to be by an Act of the Scottish parliament. I can assure the noble Baroness that it would be within the legislative competence of the parliament to enact such legislation if it concluded that that was the right course.
Clause 22 covers matters of members' interests and also the question of lobbying in relation to paid advocacy of a particular cause or matter on behalf of any person. We shall deal with these matters further in considering a later group of amendments. However, I think it is important that noble Lords should note subsection (4) of Clause 22. That provision makes it clear that standing orders must prohibit a member of

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the Scottish parliament from advocating or initiating any cause or matter in return for payment or benefit in kind. That is a matter which, I note, the noble Lord, Lord Watson of Invergowrie, would be content to accept.
I would further remind the House that in its first report the committee under the noble and learned Lord, Lord Nolan, which considered standards in public life concluded firmly against the establishment of any form of public register of lobbyists and specifically against a statutory register. I mention that in the context of the comments by the noble Baroness. The thinking behind the recommendation was that the committee recognised that it was the right of everyone to lobby Parliament and Ministers. Moreover, it foresaw a danger in the creation of a register in that it might create the impression that the only way to approach an MP or Minister was through a registered lobbyist. That is clearly not in the interests of democracy. These arguments will still have to be addressed.
To assist the parliament in addressing these issues, it is my understanding that the Consultative Steering Group will cover this matter in its report. I understand that the committee is expected to consider the issue at its next meeting and that further work will be undertaken over the next few months to allow the group to make recommendations to my right honourable friend the Secretary of State and ultimately to the parliament to consider in due course.
With that explanation, I hope that the noble Baroness will accept that it is not appropriate to press this amendment, certainly at this stage, and I invite her to withdraw it.
9.45 p.m.
Baroness Linklater of Butterstone: This has been an interesting short debate. I am glad that, if nothing else, there seems to be a consensus around the Chamber that this an issue of great importance. I am grateful to the Minister for clarifying his position. This amendment was more in the nature of a probing amendment and he has made matters very clear.
However, I noted the feeling of the noble Lord, Lord Renton, that the amendment could possibly go further, thus disagreeing with some noble Lords on his side who feel that it is almost an entire irrelevance.
I took great heart at the words of the noble Lord, Lord Watson, and was grateful to him. As I understood it, the noble Lord welcomed the amendment. I know that he is a distinguished lobbyist of the best kind. The fact that he welcomes some kind of regulation from parliament is good to hear.
I suppose that I did not expect much more from the noble Lord, Lord Mackay, than to have this proposal dismissed. However, I indicated clearly that the shape and form of any regulation should be left to the parliament itself. Under the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 agreed to.
Clause 22 [Members' interests]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 129B:
Page 10, line 25, leave out ("Standing orders") and insert ("An Act of the Scottish Parliament").
The noble Earl said: Amendment No. 129B deals with the registration of members' interests. It was suggested to me by the Law Society of Scotland. The amendment would ensure that this important public issue of members' interests is dealt with in primary legislation. There needs to be adequate parliamentary scrutiny of the subject, especially in the light of recent allegations. We have heard that the consultative steering group will report in December. The draft standing orders must be made readily available to the public for their scrutiny and peace of mind.
Standing orders strike me as being too easily amended merely by resolution of the parliament. I would prefer that the Scottish parliament put the issue of registration of members' interests into primary legislation. Any changes would then have to be given proper scrutiny prior to amendment. Standing orders seem not to be a suitable vehicle for the regulation of members' interests. Although Clause 22 creates a framework for an offence provision, surprisingly that provision is delegated to standing orders. I say "surprisingly" because it could involve serious offences such as bribery, corruption and fraud. I beg to move.
Lord Hardie: Again, in relation to the noble Earl's amendment, I remind the Committee that Clause 22 has provisions to ensure that the parliament puts in place a framework within which it will regulate members' interests. I am sure that the electorate would expect no less.
Paragraph 9.8 of the White Paper made it clear that there would be minimum requirements, among other things with respect to rules about members' pecuniary interests. I should explain to the Committee that, in common with other parts of the Bill, we are establishing in the legislation basic provisions which will require to be filled out in the standing orders by the parliament itself. I have no doubt that the parliament will take a keen interest in that area and will want to build on best practice. The work which has already been done by the Nolan committee and the continuing activities of the Neill committee and the joint Select Committee on parliamentary privilege will also be pertinent. I am sure it will be of invaluable guidance to the parliament.
The Government recognise the need to keep this matter under review and doubtless the Scottish parliament will also do so. I have already referred to the consultative steering group which will also address the matter.
Amendment No. 129B in the name of the noble Earl would oblige the parliament to put down the detail of rules in respect of members' interests in an Act of the Scottish parliament rather than in standing orders.
We agree absolutely that the issues raised in relation to members' interests are serious ones which deserve to be handled in an appropriately serious manner. I do not, however, agree with the noble Earl that the detail of

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those rules needs to be specified in legislation. As I have already explained, in Clause 22, as in other parts of the Bill, we have taken the view that standing orders are the appropriate vehicle for setting out the detailed rules for the internal working of the parliament, with the Bill simply laying down the key issues which those standing orders must cover. Against that background, we believe it would be anomalous to have the detail of the rules relating to members' interests contained instead in primary legislation.
I understand the concerns expressed by the noble Earl, but do not see any particular difficulty with linking the creation of an offence with the breach of the provisions contained in standing orders rather than in an Act of the parliament. I do not think that there is a significant practical distinction. There will be no scope for standing orders to be capricious or unfair. The parliament will clearly need to keep firmly in mind that the standing orders, not only in this case but in general, will need to be rigorously drafted. Members of the Scottish parliament will be entitled to set, and I have no doubt will demand, clear and fair rules. With that explanation, I invite the noble Earl to withdraw the amendment.
The Earl of Mar and Kellie: I thank the noble and learned Lord for his explanation. Those who were advising me encouraged me to think that primary legislation may be more secure. They will read Hansard, as will I, and come to a conclusion in that regard. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 130 and 131 not moved.]
The Earl of Balfour The Earl of Balfour moved Amendment No. 132:
Page 11, line 12, leave out subsection (6).
The noble Lord said: This is a probing amendment. Subsection (6) of Clause 22 states that,
"Any member of the Parliament who…
(b) contravenes any provision made in pursuance of subsection (4), is guilty of an offence"
My question is: who will investigate the prosecution? I beg to move.
Lord Mackay of Drumadoon: The amendment moved by my noble friend Lord Balfour and Amendment No. 133 in my name are important amendments dealing with another aspect of the relationship between the new parliament and the courts.
The purpose of these amendments—mine in particular—is to enable the parliament to deal with the behaviour of any of its members who act in breach of the standing orders relating to the registration of their interests or who act contrary to the provisions of Clause 22(4). As the noble and learned Lord the Lord Advocate said a short time ago, it will be important for the Scottish parliament to establish at the outset a need for financial probity on the part of all those who are members of it.
The statutory powers which the new parliament will have under subsection (5) to make standing orders which will allow it to regulate the behaviour of, and to discipline, its members are sufficient. They provide that when any
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member fails to comply with or contravenes a standing order, the parliament may withdraw his rights and privileges for the period of his exclusion.
If the courts are involved, far from helping the parliament to achieve the objective of high probity, that may cause difficulties. Any possible prosecution would require to be investigated by the procurator fiscal. No doubt in such cases the procurator fiscal would seek to discharge his duties as an independent prosecutor in as fair and objective a manner as possible. But he will inevitably require to become involved in investigating the behaviour of members of the parliament and possibly some aspects of parliament's conduct of its business in a manner which would occur only unusually in regard to the affairs of either your Lordships' House or another place. That might unavoidably, and certainly unintentionally on the part of the procurator fiscal, lead to some tensions and conflict between his office on the one hand and members of the parliament on the other.
More importantly, any such criminal investigation or criminal proceedings that might follow from it may delay the parliament invoking its own powers contained in standing orders made under Clause 22(5). If any proceedings were commenced, the sub judice rule which the standing orders must contain would ensure that the investigation would require to be put on ice until the criminal proceedings had run their course.
Without mentioning any examples, we are all aware in recent years of allegations in relation to the lack of probity of Members of Parliament and, indeed, members of local authorities. When the parties concerned try to investigate those matters and sometimes discipline the individuals involved, they are delayed while the criminal investigation takes place. Therefore, delay may be inevitable.
Furthermore, if on investigation the procurator fiscal decides that no proceedings are appropriate, were the parliament then to act, there might be perceived to be a difference of approach between the procurator fiscal on the one hand and the parliament on the other. It is perfectly competent for such a difference of approach to arise, but it may nevertheless provoke an element of controversy.
Another situation might be when the member had been prosecuted and convicted. Some people might feel that in that situation, if he had been prosecuted in a criminal court and punished there, it would be wrong for any further punishment to be visited upon him by the parliament, whatever the standing orders might provide. I perceive a further difficulty in these criminal proceedings. They are to be summary criminal proceedings before a sheriff court. If they ever occur, they will occur very rarely. With the best will in the world, it may be difficult for a sheriff trying a case in summary proceedings to get a clear feel as to the gravity or otherwise of what may or may not have been going on.
From time to time members of society are prosecuted for breaching the rules of their profession. Insider dealing by those involved in the financial services industry is one example of that. Some of the more abstruse provisions of the health and safety legislation is another example. Because these cases come along so rarely, and because

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they involve actions on the part of those highly experienced in areas of society where people may not have an in-depth knowledge of what goes on, it is sometimes difficult for the lawyers and the sheriff fully to grasp the gravity of what is involved. When someone has been accused and convicted of some of these offences and a fairly modest fine has been imposed, many lawyers have said privately that their impression was that the court did not fully appreciate the gravity of what had occurred. If that happened in this case, and only a modest fine was imposed and then the parliament proceeded to suspend the member for six months and to withdraw his salary and other privileges, there might be some scope for an appearance of conflict between the parliament on the one hand and the courts on the other.
I have a further difficulty. If the member was prosecuted for breaching the standing orders, in all probability he would be acting on behalf of some other person who had paid him the consideration, had given him the benefit in kind, and had asked for a particular cause to be advocated. However, under this provision it would not be competent to prosecute the individual—the member of the public—for being the other party to the criminal enterprise that took place.
I am not suggesting that there are not other statutory provisions around which might well found the basis of a prosecution against the member of the public or the company involved. But, if the criminal law is to be brought in, it seems to me that all those involved in the criminal enterprise should be capable of being prosecuted under the same statute. That would not be competent here.
A further and slightly more technical objection is that the offence would depend upon the precise terms of standing orders which are yet to be made and which, when they are made by the parliament, would not have the standing of secondary legislation. Their vires would not be a devolution issue in terms of Schedule 6. I am not saying that in some circumstances they might not be open to challenge in the court—I do not want to go over that ground again—but certainly they will not be scrutinised by the parliament, following the detailed procedure that would apply either with primary legislation or secondary legislation. I may be wrong but I think it would be very unusual for someone to be prosecuted in a court of law for breaching standing orders which did not have the force of primary legislation or secondary legislation, with the exception possibly of by-laws made by a local authority or some other public authority in accordance with powers given to them. That is a further technical reason.
The main thrust of my argument is this. The parliament will have powers to discipline its members. How it chooses to go about investigating such allegations is for the parliament. I believe that it would be competent to set up a particular committee to deal with it such as the Select Committee for Standards and Privileges in another place. It would be competent for it to appoint some form of parliamentary commissioner, such as exists in another place, to carry out the investigation and to lay details of the complaint before the committee concerned.
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If the committee, and ultimately the parliament, has power to suspend the member, possibly until the date of the next election and therefore effectively exclude him for the remaining term of the parliament, that seems to me to be more than enough power of punishment. I beg to move.
Lord Hope of Craighead: There is another aspect to this matter which I mention by way of supplement to what the noble and learned Lord, Lord Mackay of Drumadoon, has said. One of the features of the criminal law is that it deals with the offence after the event. That is the nature of the criminal process. But the problem with lifting the lid, as it were, on the affairs of the parliament in the way that these subsections do, is that they introduce the possibility that someone may attempt to deal with the matter in advance by means of the civil process.
I have in mind the court being invited to pronounce an interim interdict to prevent the member acting in a way which would attract the offence. I do not know whether it is envisaged by Ministers that the courts in their civil capacity should be intervening in the affairs of the parliament in that way. My own view is that it would be preferable, so far as possible, that the parliament should be left to regulate its own affairs, including this particular chapter. But the presence of these offences in this clause tends to suggest that if someone were seeking to bring an interdict in the civil process, the courts should entertain that matter to deal with the matter which is expressly stated to constitute an offence under the Bill.
Baroness Carnegy of Lour: I am deeply worried about this from my amateur and lay knowledge of the way in which the law works. A really rather serious offence is being considered, with a fine of up to £5,000 or three months' imprisonment. I see in subsection (8) that the Lord Advocate and the Solicitor-General are included, whether or not they are members of the parliament. Can the noble and learned Lord describe the scene in which the Sheriff tries the Lord Advocate or the Solicitor-General and all the other things that the noble and learned Lord, Lord Hope, has been talking about with the possibility of an interdict against the Lord Advocate behaving in a certain way? It seems slightly Alice in Wonderland and also rather terrifying.
Lord Hardie: I do not find it terrifying at all. I have confidence in the holders of the office of Lord Advocate and Solicitor-General for Scotland. I am certain that they would never commit a criminal offence. But, if they did, whether it was under this provision or not, they, like any other members of society, are subject to the law and they would be prosecuted.
There are two matters raised by these amendments: the short question referred to by the noble Earl, Lord Balfour, and the more substantial one touched upon by the noble and learned Lord, Lord Mackay of Drumadoon. Without disrespect to the noble Earl, I shall deal with his question in the body of the response to the substantive issue. As I understand the argument, the noble and learned Lord suggests that the powers under subsection (5) of Clause 22 are sufficient. Therefore, one can delete subsections (6) and (7) which create the criminal offence and the penalty. As to the latter, subsection (7) simply imposes the

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penalty of a fine. There is no equivalent period of imprisonment. The maximum penalty is a fine of £5,000, which is level 5 on the standard scale.
Turning to the powers of the parliament to take action under subsection (5), the noble and learned Lord will be aware that this is not an unusual situation. For example, in employment law it is not uncommon for an employer to have civil remedies that include the dismissal or suspension of an employee, whereas if the employee has been engaged in criminal activity he will also be subject to the criminal law. People outside politics view very seriously any abuse by Members of Parliament. We have determined that from the outset there should be no room for doubt that members of the Scottish parliament are expected to adhere to rigorous rules of conduct in relation to declarations of interest.
If the Committee turns to Clause 22 it will see that the first four subsections indicate what members must do. They have to register their interests in the appropriate register. There is also an obligation under subsection (2) to declare a financial interest in any matter before the member takes part in any proceedings. It may be that standing orders will prevent the member from taking part in proceedings once that financial interest is declared. Subsection (4) is concerned with lobbying. A member must refrain from taking money from people to advocate a particular cause in parliament. I am sure no one doubts that these are reasonable obligations and ones that the public may reasonably expect to be imposed upon members of the Scottish parliament so that they retain the trust the electorate has placed in them.
Having gone that far, the Government wish to emphasise the importance that they place upon the integrity of members and their requirement to meet standards which are not unduly onerous. In that context we do not believe that it is unreasonable to create a criminal offence if a member of parliament chooses to ignore these obligations. Therefore, there are two sanctions. If the member decides not to comply with subsections (1) to (4) and fails to declare an interest or accepts money in exchange for advocating a particular cause the parliament make take action or the criminal authorities may take action, or both. I have no difficulty with that. If members of parliament are aware from the outset that that is what is expected of them and that it is a criminal offence to fail to comply with these obligations, then they know the risks that they are taking. That would bring home to them the importance of being open and frank about their involvement and their interests. I hope that there would then be less risk of a member straying from the straight and narrow.
I turn to the question of whether summary proceedings are appropriate because of the possible conflict between the criminal courts and the parliament. I do not find any difficulty with that. It is not unusual for the criminal authorities to investigate alleged misconduct by elected members, whether of local authorities or other bodies. With respect to the noble and learned Lord, to say that the sheriff does not or may not fully appreciate the significance of the action is not a proper answer.
It would not be difficult for the sheriff to determine whether a member has failed to register an interest which he or she ought to have registered—assuming the
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evidence is before the sheriff. It would not be difficult for the sheriff to determine whether a member had a financial interest in a matter that was being discussed at the relevant time—assuming that the evidence was there. Those are simple points of fact. It would not be difficult for the sheriff to determine that a member had received some payment in kind or money—if the evidence was available. Again, those are matters of fact.
Having established the guilt of a member, the sheriff is then faced with determining the appropriate penalty. The maximum penalty is fixed at £5,000. The sheriff, as in other cases, will have to determine where, within the range of zero to £5,000, he thinks that this particular offence falls. If it is a blatant offence, it is at the higher end; if it is not blatant, it will be towards the lower end.
To deal with the point raised by the noble and learned Lord, Lord Hope of Craighead, I do not envisage that the creation of a criminal offence would have the effect of someone bringing interdict proceedings. I am aware, of course, that if one is apprehensive of someone committing a wrong, it is possible in some circumstances to bring such proceedings. But the likely situation is that if there is an apprehended wrong, an interdict may be sought.
We shall come later to the question of the relationship between the courts and the parliament. I hope that the concerns of the noble and learned Lord will not be realised.
As far as the amendments are concerned, given the importance that we place upon members complying with their obligations under Clause 22, and given that we see the creation of the criminal offence as an important step in bringing home to members and emphasising in public that we consider the probity of members to be of the utmost importance, I would respectfully submit that it is appropriate to have such an offence.
I turn now to the point made by the noble Earl. The offence would be investigated in the same way as any summary criminal offence: first, by the police reporting the matter to the procurator fiscal, but the fiscal would be the person who would be responsible for taking summary proceedings. With that explanation, I invite the noble Lord to withdraw the amendment.
Lord Clyde: Before the noble and learned Lord sits down, I wonder whether he could set my mind at rest about one aspect of the matters which were raised earlier, which causes me considerable concern. It is of course elementary that in defining any criminal offence, one has to do so with the utmost precision, otherwise the criminal law comes into disrepute, and no one can know for certain whether they are offending.
Here we are apparently giving the Scottish parliament the opportunity, in the devising of its standing orders, to define an offence. While I am sure that we have immense confidence in it in the preparation of its standing orders, do we have the confidence to be sure that in defining registrable and financial interests it will do that with the complete precision which is the necessary ingredient for defining a criminal offence?
I confess that I have in the past found it extremely difficult to identify with exactitude what is meant by a registrable interest in such circumstances. Financial

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interest may be easier but is, to an extent, uncertain. I am anxious that what we are doing here is letting loose an undefined potentiality for criminal prosecution which would be offensive to the criminal tradition.
Lady Saltoun of Abernethy: I am absolutely amazed that the Government are anticipating that members of the Scottish parliament will be such a dishonest, sleazy lot that they will not themselves be able to regulate the registration of their interests and matters such as that, and that it will be necessary to introduce into the Bill criminal sanctions, quite apart from those available outside the Bill, to keep them under control.
Lord Monson: My noble friend might be unaware that a precedent was set recently in the Government of Wales Bill.
Viscount Thurso: Perhaps I may ask the Minister one question. It is sometimes possible for people, when registering their interests, to have a slip of memory or make a small mistake. In those circumstances, is it appropriate that the full weight of the law should used against them? If it is, when would the Government consider bringing such strictures to bear on another place?
Lord Hardie: To deal with the point raised by the noble Viscount, it is not unusual for people to have slips of memory and to make errors. Those are issues which are frequently addressed by the procurator fiscal when investigating other cases and they are taken into account. If the investigation by the fiscal indicated that it was a genuine error or slip of memory which was obviously not blatant, the likelihood is that the fiscal would not take any proceedings. That would be a matter for him or her to assess.
Perhaps I may deal with the point raised by the noble Lady, Lady Saltoun of Abernethy, and refer her to the answer given by the noble Lord, Lord Monson. The Government are not showing a lack of confidence in members of the Scottish parliament; they are recognising the importance that people place on the probity and integrity of Members of Parliament and people who stand for public office. It is right that in setting up such a body there should be no doubt that that is one of the fundamental principles which we believe should be enshrined in the legislation.
I turn to the point raised by the noble and learned Lord, Lord Clyde. The question of course is whether we are confident that the Scottish parliament will be able to frame standing orders with sufficient precision as one would expect of a provision in a criminal statute. I ask the noble and learned Lord: why not? The parliament will have power devolved to it to create criminal offences in the body of legislation. If the expertise is available to the parliament to frame such provisions, that expertise will be available to it in the formulation of the standing orders.
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As regards subsection (1) and a registrable interest, the noble and learned Lord will see that that is to be defined in the standing orders. One would expect it to be defined with the precision necessary for the creation of a criminal offence.
Lord Clyde: Perhaps I may intervene. That is my exact concern. We are creating a criminal offence without knowing what it is.
Lord Hardie: With respect, we are not. We are creating a criminal offence which is quite clear: the offence of contravening the subsection which refers to any member who takes part in proceedings without having complied with, or in contravention of, the provisions of subsections (1) to (3) or contravenes any provision made in pursuance of subsection (4). I do not understand the noble and learned Lord's difficulty in this regard, given that the parliamentary counsel involved in drafting legislation will also be available to the parliament to draft the necessary standing orders.
Lord Monson: Does the noble and learned Lord agree that while it is fairly easy to define financial interests, it is extremely difficulty to define non-financial interests?
Lord Hardie: I accept the point made by the noble and learned Lord, Lord Clyde. The definition of registrable interests will have to be particularly specific.
Lord Mackay of Drumadoon: I am grateful to the Lord Advocate for setting out the Government's position, which I fully understand. We are at one that it is essential that the highest standards of probity are established from day one of the new parliament. We differ on how that is best achieved.
Although it is entirely a matter for my noble friend Lord Balfour to decide what he does with his amendment, I should indicate to the Committee that when Amendment No. 133 is called I intend to seek the opinion of the Committee.
The Earl of Balfour: I am not quite certain where I stand now. Perhaps someone can help me.
Lord Mackay of Drumadoon: Perhaps I may give some free legal advice, which I have been endeavouring to give to the Government. The Committee is waiting for my noble friend to indicate whether he intends to press the amendment to a vote or to seek leave to withdraw it.
The Earl of Balfour: The answer has taken something like 25 minutes. I should have thought that it was a fairly straightforward question. I wish to read in Hansard what has been said. If I beg leave to withdraw the amendment at this stage, I can come back with further questions at the next stage of the Bill. With those few words, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 133:
Page line 12, leave out subsections (6) and (7).
The noble and learned Lord said: I have already spoken to the amendment. I beg to move.
10.29 p.m.
On Question, Whether the said amendment (No. 133) shall be agreed to?
Their Lordships divided: Contents, 28; Not-Contents, 59.

Division No. 2

CONTENTS

Astor, V.

Mackay of Drumadoon, L.

Attlee, E.

Minto, E.

Byford, B. [Teller.]

Monson, L.

Carnegy of Lour, B.

Rawlings, B.

Clyde, L.

Renton, L.

Courtown, E. [Teller.]

Rowallan, L.

Cranborne, V.

St. John of Bletso, L.

Denbigh, E.

Saltoun of Abernethy, Ly.

Dundee, E.

Sanderson of Bowden, L.

Hope of Craighead, L.

Selkirk of Douglas, L.

Kintore, E.

Sempill, L.

Lucas of Chilworth, L.

Stodart of Leaston, L.

Lyell, L.

Wedgwood, L.

Mackay of Ardbrecknish, L.

Wise, L.

NOT-CONTENTS

Addington, L.

Jay of Paddington, B.

Alderdice, L.

Kennedy of The Shaws, B.

Allenby of Megiddo, V.

Lester of Herne Hill, L.

Blackstone, B.

Linklater of Butterstone, B.

Borrie, L.

McIntosh of Haringey, L. [Teller.]

Carter, L. [Teller.]

Chandos, V.

Mackie of Benshie, L.

Clinton-Davis, L.

McNair, L.

Cocks of Hartcliffe, L.

Maddock, B.

Davies of Coity, L.

Mar and Kellie, E.

Davies of Oldham, L.

Molloy, L.

Desai, L.

Monkswell, L.

Dixon, L.

Montague of Oxford, L.

Dormand of Easington, L.

Pitkeathley, B.

Dubs, L.

Ramsay of Cartvale, B.

Ewing of Kirkford, L.

Randall of St. Budeaux, L.

Falconer of Thoroton, L.

Razzall, L.

Farrington of Ribbleton, B.

Redesdale, L.

Gilbert, L.

Rendell of Babergh, B.

Gordon of Strathblane, L.

Richard, L. [Lord Privy Seal.]

Grenfell, L.

Scotland of Asthal, B.

Hacking, L.

Sewel, L.

Hanworth, V.

Simon, V.

Hardie, L.

Stair, E.

Hardy of Wath, L.

Symons of Vernham Dean, B.

Haskel, L.

Thurso, V.

Hoyle, L.

Tope, L.

Hughes of Woodside, L.

Watson of Invergowrie, L.

Hunt of Kings Heath, L.

Whitty, L.

Islwyn, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
10.37 p.m.
Clause 22 agreed to.
Clause 23 [Power to call for witnesses and documents]:
Baroness Linklater of Butterstone Baroness Linklater of Butterstone moved Amendment No. 134:
Page 11, line 28, at end insert—
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("( ) matters involving the British Broadcasting Corporation and the Independent Television Commission,").
The noble Baroness said: The purpose of this amendment is to give the Scottish parliament the power to call for witnesses and documents on matters involving the BBC and the ITC.
While broadcasting has clearly remained a reserved matter under Schedule 5, under the Charter of the BBC, responsibility for broadcasting in Scotland is in large measure devolved already to the Broadcasting Council for Scotland under the chairmanship of the national governor for Scotland. That body produces a rigorous annual performance review as well as the BBC Scotland annual review.
Broadcasting in all its forms has a profound and permeating influence on all our lives in Scotland, culturally, socially and economically. It affects and influences our perceptions and thinking in a multitude of ways, including how we see the new parliament and how we relate to it. It is an enormously important element in the fabric of our democratic society.
In that situation, it seems to me extraordinary that the Scottish parliament should have no say in that element of public life and it seems only logical and right that it should be able to scrutinise the activities of the BBC and ITC and that they in turn should be accountable to it. The parliament should be able to ask questions of the BBC and the ITC and in turn, they should be expected to justify their actions. That would be particularly important if they were thought to be failing in some way.
The role of the Scottish parliament would not be to instruct or control but it should be able to have its voice heard and its influence felt. This amendment would also build into the structure an element of dialogue as well as accountability from which everyone should benefit. I have spoken with several top executives in broadcasting in Scotland who say that they have no problem at all with this proposal and would not object to being called as a witness or to producing documents. The BBC already expects to lay its annual report before the parliament.
If those most intimately concerned with the implications of this amendment see no problem with it, I cannot see why the Government should. Without the benefit of this amendment, the Scottish parliament would have no right to have a say in broadcasting in Scotland, nor would the BBC or the ITC be accountable to it in respect of an activity which is absolutely central to Scottish life. This is a situation which is surely both completely illogical and highly undesirable. I beg to move.
Viscount Astor: I should like to express my support for the principle behind the noble Baroness's amendment. I notice that she also has three other amendments on broadcasting which will require annual reports of the BBC to be laid before the parliament, as well as the,
"promotion and funding of Gaelic broadcasting in Scotland",
and the,
"appointment of the National Governor for Scotland".

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My criticism would be that the noble Baroness's amendment does not perhaps go far enough. It seems to me that broadcasting is very separate in Scotland. In effect, there is almost a separate BBC, there are separate ITV regions and there are separate radio stations. Of course, the BBC is national and Scotland is part of the national system. One must also recognise the fact that the BBC is, as it were, the cement which holds much of this country together. Indeed, it is a national institution and should remain so. I am not suggesting that it should not.
There was a debate on the subject in another place in Committee which seemed to focus on two issues. The first was whether broadcasting should be responsible to a Scottish parliament and whether that parliament should be able to call witnesses from broadcasting, and so on, and have reports laid before it. The other issue was whether broadcasting should be an entirely separate matter for Scotland and thereby devolved. That was very much the proposal put forward by the Scottish National Party.
The debate in another place got somewhat out of kilter because it was automatically assumed that any form of change would result in some form of hypothecation of revenue and that, therefore, the BBC in Scotland would only be able to survive with the licence fee raised there. I do not believe that to be the case. However, it is true to say that the Scottish parliament will be responsible for arts policy, museums and galleries and many other matters which all come under the Department of Culture, Media and (Mr. Bank's) Sport, but it will not be responsible for broadcasting. That seems to me to be odd. The Government did not really come clean in another place on why broadcasting should be left under the control of Westminster.
If you want to start a Gaelic radio station in Dundee, it seems to me to be odd that you will have to go to Westminster for permission. There ought to be a mechanism for the devolving of powers of the ITC and the Radio Authority to Scotland within a national framework. As Members of the Committee will be aware, the BBC was created by Royal Charter. Schedule 5 to the Bill says that the BBC is a "reserved matter". Can the Minister say whether that means that the Bill will, as it were, supersede the Royal Charter or whether that reference merely applies to the transmission part of the BBC which, of course, is covered by Act of Parliament?
In the other place in Committee on 4th March of this year, the Secretary of State made two slightly contradictory statements in answer to such a point. At col. 109 of Hansard he said that,
"a separate charter is not needed, because we can devolve broadcasting in Scotland within the BBC charter".
Then, further on in the debate he said:
"However, in terms of statutory power—the legislative power that is at the heart of the Scottish Parliament—there is very little that could be devolved. Even the BBC would be extremely difficult to devolve because, as I said in an intervention, it is a creature not of statute but of royal charter. Therefore, in effect, we are discussing very little".
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That seems to be slightly contradictory. The Secretary of State did, however, give a crumb of comfort to the Scots—it really was a crumb—when he said,
"the Government intend that the appointment of the national governor for Scotland will be made after full consultation with Scottish ministers".—[Official Report, Commons, 4/3/98; col. 1128.]
He described that as an important safeguard. I do not think that it is much of a safeguard. He also said at col. 1127 that,
"The draft executive devolution Order requires consultation with Scottish Ministers in connection with the appointment of the Scottish member of the ITC, and we propose similar provisions for appointments to the Broadcasting Standards Council and the Radio Authority".
That also is rather a crumb of comfort.
It seems to me that the Government have not thought out their policy on broadcasting clearly. I am not saying in any way that broadcasting should be totally devolved to Scotland but it seems to me that the Government should consider making the institutions that are totally reserved cross-border bodies. After all, the ITC has a separate office in Scotland. I do not know about the Radio Authority, but I am sure it will have one. Digital broadcasting and digital radio will mean that more channels will appear. I believe that the Scottish parliament ought to be able to have a role in this and ought to be able to call to account those who are responsible for Scottish broadcasting. They ought to be accountable to the Scottish parliament, albeit within a national system.
It has been suggested that the BBC is rather against this proposal. The chairman of the BBC, Sir Christopher Bland, came to the all-party media committee recently. When I asked him about this matter he said the BBC did not have a view on it and that it was a matter for Parliament to decide. I hope that the Minister will explain why this policy exists and the reasons behind it. I do not think the reasons put forward in another place are good enough. The Government ought to consider how to bring broadcasting within the orbit of the Scottish parliament.
10.45 p.m.
Lord Gordon of Strathblane: I speak briefly at this late hour. In the light of the heightened sensitivity on declarations of interest after the previous debate, I should immediately declare that I am chairman of Scottish Radio Holdings, which owns several radio stations in Scotland. The amendment, quite remarkably, mentions,
"matters involving the British Broadcasting Corporation and the Independent Television Commission",
but makes no mention of the Radio Authority. One might perhaps assume that this is an oversight from people who do not realise that the Broadcasting Act 1990 is, unfortunately, on the statute book. Indeed one of the more attractive arguments that the noble Viscount, Lord Astor, advanced concerned that matter. If it were possible to turn the clock back on the 1990 Broadcasting Act throughout the UK, I think we would all be enthusiastic about that, but to do it uniquely in Scotland I do not believe to be practical.

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I think the difference is that the content of broadcasting is vitally important to the people of Scotland, as is the content of the press. What we are talking about is not the content of broadcasting; for that you would hold to account people such as the chief executives of my company, Scottish Radio Holdings, the director of BBC Scotland, John McCormick, and people like that, not parliament and regulators. We have in this country a system under which Parliament has stood back from broadcasting and regulates it at arm's length through buffer bodies such as the Independent Television Commission, the BBC board of governors or the Radio Authority.
For that reason it is difficult to see Scotland having separate legislation for broadcasting. But that is what we are talking about, if we are talking about the Scottish parliament. What bit of legislation about broadcasting could conceivably be different in Scotland from the rest of the UK? If we take the example of the 1990 Act, if Scotland was not bound by that Act, radio in Scotland would still be under an independent broadcasting authority, while south of the Border it would have been moved to the Radio Authority. That would not make sense. The important point is that the broadcasting authorities will clearly want to co-operate with the Scottish parliament, and we shall discuss broadcasting.
If we examine the amendment, we see that it deliberately adds, uniquely, apart from the devolved subjects, the ITC and BBC. The amendment would seem to express the wish that broadcasting should be a devolved subject. I believe, however, that the Government are right to leave it as a reserved matter.
Lord Mackay of Ardbrecknish: The Liberal Democrat amendment would allow the parliament to summon to its committees anyone involved in the BBC and ITC. The noble Lord, Lord Gordon of Strathblane, rather beat me to it in wondering why radio was not included. I wondered why cable and satellite were not included. They are increasingly important in people's lives, in Scotland as elsewhere.
My noble friend Lord Astor wants to go slightly further and remove the reservation so that broadcasting matters are devolved. I can see the difficulties surrounding that approach. They were pointed to by both the noble Lord, Lord Gordon of Strathblane, and my noble friend. However, I cannot believe that it would be any less difficult to deal with devolving broadcasting and yet retaining some form of national overview than it is to devolve fishing and farming and yet keep the powers of negotiation with Europe in this place; or to break up the Forestry Commission into its component parts and yet try to think that one forestry commission can operate for the United Kingdom in the three different parts of the kingdom. So it is not so difficult as the noble Lord, Lord Gordon of Strathblane, suggested.
There are two aspects to this matter: the technical aspect and the question of who runs the show in relation to transmission and broadcasting. When I became a Member of the other place in 1979, one great problem at that stage was that many parts of my constituency, along with the rest of the Highlands, did not receive television pictures. An "active deflector" had been
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devised, which could be sited on the top of a hill, and the signal was bounced—with a little help (that is where the "active" came in) down into the glen so that people could receive television pictures. Those who looked after the airwaves did not approve of that at all; nor indeed could they understand that there was anywhere on earth that was hilly and unable to receive television pictures without interference from hills.
Unfortunately for them, one of my constituents, the late Colonel Archie Fletcher, who had been a commanding officer in the Scots Guards, was not a man to take those kinds of decisions lying down. His Member of Parliament was marched on parade, and we both conducted a campaign. We should have had no trouble had the matter been decided in Scotland. People would have understood immediately. But we had an immense amount of trouble persuading the guardian angels of the airwaves that this was a real problem and that it could be solved only by the means that we proposed. So there is much to be said for matters surrounding the frequencies of services and so on being devolved to Scotland.
After all, it may be that in Scotland we do not want many of the radio programmes that are broadcast on a national basis, such as Talk Radio. In Scotland, we might prefer to use that slot, as my noble friend Lord Astor said, for Gaelic. I understand that the Radio Communications Agency could contemplate a degree of autonomy within its Scottish operation if it were not inhibited by legislation which applies throughout the United Kingdom. These are important matters.
There is the question of the digitising of TV and the use of multiplexes. The digital multiplexes will reach only between 66 and 90 per cent. of the population in the UK. It is not hard to see where most of the missing percentages will be. They will be in rural Scotland, to an extent in Wales, and maybe in Cumbria. So there is a problem which it might be better to devolve to Scotland.
Turning to those who provide the viewers with pictures and sound, as the noble Lord, Lord Gordon of Strathblane, indicated, we have very robust media groups in Scotland. There is the Scottish Media Group, which includes Grampian and STV. We have Radio Clyde, which the noble Lord mentioned. I do not know it by the grand title of Scottish Radio Holdings because the radio station I listen to is Radio Clyde. The noble Lord will be delighted to hear that I listen to it and I will give him my complaints about some of the programme changes later. Those are Scottish organisations.
Then we come to the BBC, which is not. Or is it? No organisation has done more to advocate and push devolution over the past 20 years than the BBC at Queen Margaret Drive. With a few honourable exceptions, its broadcasters have never disguised the desire for devolution. There were a few exceptions, whether it be "Good Morning Scotland", "Newsdrive", the lunchtime programme, "Headlines", or a whole host of other current affairs, the broadcasters have plugged the devolution line. One of the recent national governors tried to pretend to us that he was neutral. The moment he was released from the BBC he went off to a political post somewhere, propagating devolution, without any

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hindrance. So it was no great surprise to us that his organisation had been oblivious to all the complaints we had made about bias.
It is the BBC I am looking at, like my noble friend Lord Astor. The BBC fought the campaign in favour of devolution. Many of the journalists and people who supposedly chaired discussions in which I have been involved made no attempt to disguise their bias. If the BBC had advocated devolution, should it not share in the devolution? Why should all the rest of us have it and not the BBC?
Lord Gordon of Strathblane: Is the noble Lord suggesting that a Scottish parliament should legislate for the programme schedule of BBC Scotland? The degree of devolved programming at the moment is entirely within the gift of the BBC, unless the noble Lord wishes a Scottish parliament to insist that there should be more.
Lord Mackay of Ardbrecknish: I am not asking the Scottish parliament to control it, I am simply saying that the BBC should be a devolved matter and there should be a Scottish BBC, just as there will be a bit of the Forestry Commission which will be the Scottish forestry commission. I see no problem about that at all. If other things are to be devolved, like great departments of state such as health, education, and many others, it seems to me that there is a lot of sense in the BBC in Scotland cutting itself free of the shackles—those are the words used—of London, Whitehall and all the other places. It should be a Scottish organisation. I am amazed that those keen advocates of devolution in the Committee are not keen on this. I wonder why.
It is right and proper that the BBC should be devolved and I share the view of my noble friend Lord Astor. I look forward to the pro-devolution Front Bench opposite agreeing with the points made.
11 p.m.
Lord Hardie: I am conscious of the hour and that the House is sitting tomorrow morning, so I shall try to be brief. Amendment No. 134 would give the Scottish parliament power to summon witnesses in connection with matters involving the British Broadcasting Corporation and the ITC. Perhaps I may say to the noble Lord, Lord Mackay of Ardbrecknish, that the ITC includes cable and satellite broadcasting.
As the Committee will be aware, broadcasting is a matter which is reserved to the UK Parliament and Government. The Government believe that there should be clear lines of accountability. It is right and proper that it should be for Westminster to investigate matters which are reserved, such as broadcasting. The Bill therefore does not give the Scottish parliament a power to summon witnesses in connection with reserved matters, except with regard to matters in relation to which functions have been executively devolved to Scottish ministers. This amendment seeks to have broadcasting treated differently from all other reserved matters. We do not think that that would be right.
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The Government's policy about the power of the Scottish parliament to summon witnesses and documents from bodies operating in Scotland which have responsibilities only in reserved areas was clearly set out in paragraphs 2.10 and 2.11 of the White Paper. We recognise the importance of those bodies in the economic and social life of Scotland and for that reason the parliament will be able to invite such bodies to give evidence.
The Bill needs to make no provision to allow it to do that. We have no reason to believe that representatives of the BBC, ITC and other bodies concerned with broadcasting in Scotland will be reluctant to give evidence to the Scottish parliament. We do, of course, recognise that broadcasting will be of interest to the Scottish parliament. I hope that the Scottish parliament will stimulate an informed debate on broadcasting matters, and I anticipate that broadcasters in Scotland will be sensitive to the views of the members of the Scottish parliament.
The amendment in the name of the noble Viscount, Lord Astor, would remove broadcasting from the list of reserved matters altogether. I have already explained that our policy is and remains as set out in Schedule 5; that is, that broadcasting should be a reserved matter. The Government feel, first, as a matter of principle that the standards applied to broadcasting should be established at national level and that the proper independence of broadcasting should be established and maintained at that level. Secondly, we believe that it is in the interests of Scottish viewers and listeners and of the broadcasting organisations that broadcasting should be dealt with at a UK level. Indeed, the noble Viscount recognised that the BBC was a national institution.
The view of the Government is also the view of broadcasters in Scotland. Scottish production and broadcasting have made a substantial contribution to the quality of television and radio in the whole of the United Kingdom. Equally, we benefit from a free flow of broadcast material within the United Kingdom. It may be objective that devolving broadcasting would not necessarily detract from the unified regulatory framework for broadcasting in the UK. It would be possible, and in view of the technical complexity of broadcasting it might be sensible, for the Scottish parliament not to use the power to make laws if that power were devolved. But the assumption will be that if broadcasting were to be devolved, different laws could be made and different regulatory bodies could be set up. If there were different programme codes, there could be a situation in which a programme was permitted in Scotland but not allowed in England, or vice versa. In such circumstances, there would be a serious disincentive to companies investing in production in Scotland. The confidence of the industry is a factor which we take seriously and I am sure Members of the Committee share that concern.
The noble Viscount noted that the BBC is largely governed by its own charter. But that does not mean that parliament cannot provide in this Bill for the BBC to be reserved. Nor does it mean that the BBC will be caught by the reservation of the Crown. It would be within the competence of Westminster legislation to modify

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prerogative instruments. Indeed, the present Bill provides for ministerial functions conferred by such instruments and exercisable in relation to matters which are not reserved to be exercisable instead by Scottish Ministers. In other words, the Bill would modify certain Royal Charters. That would be the case for ministerial functions conferred, for example, by the Royal Charters of the Scottish Sports Council and the Scottish Arts Council.
Although broadcasting is to be reserved, it is intended that some changes will be made in relation to the various broadcasting authorities. For example, as the noble Viscount noted, my honourable friend the Minister in another place recognised that the national governor for Scotland of the BBC is appointed under the provisions of the Royal Charter. But it is intended that Scottish Ministers will be consulted by the Secretary of State for Media, Culture and Sport on future appointments.
Its own charter provides that an annual report of the BBC shall be sént to the Secretary of State and shall be laid before both Houses of Parliament. In future the report will also be sent to Scottish Ministers and presented to the Scottish parliament, and similar arrangements will be made for the other broadcasting authorities.
With those explanations, I invite the noble Lord to withdraw his amendment.
Viscount Astor: The noble and learned Lord gave a clear explanation of the BBC and the Royal Charter and how that works under the Bill, for which I am extremely grateful.
Will the Government consider the ITC, which has not so far been mentioned? The ITC has a separate office in Scotland that largely deals with matters in Scotland. Will the Government look at whether that body should be responsible for cross-Border matters or be given some form of authority within Scotland so that it can make local decisions without always having to refer to Westminster when those matters did not affect, for example, broadcasting on a national basis?
Lord Hardie: The point raised by the noble Viscount is covered by the comments that I made in relation to the BBC. The ITC is also concerned with national broadcasting and the same considerations would apply.
Viscount Astor: Perhaps I may come back to the noble and learned Lord. The difference between the BBC and the ITC is that the ITC—this applies also to the Radio Authority—is responsible for local services.
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When digital comes in, the ITC will be responsible for local television services and local cable services. That is what makes the ITC different from the BBC.
Lord Hardie: I do not think that the position is essentially different for the ITC. The Government do not intend to distinguish between the BBC and the ITC.
Baroness Linklater of Butterstone: I thank the noble and learned Lord for his reply and his explanations, which I found very helpful. I must also say that the stories of the noble Lord, Lord Mackay of Ardbrecknish, about people who live in the hills having problems with television reminds me of my home in the hills of Perthshire. My father refused to pay his television licence because he could receive only one channel, and very badly at that. In the end, he was fined and he was all over the local papers as the "revolting colonel".
I thank the noble Viscount, Lord Astor, and the noble Lord, Lord Mackay, for their support. I take the point of the noble Lord, Lord Gordon, about radio. Although we are well aware that the BBC and ITC can be invited to appear before the Scottish parliament, as the Bill stands they may not be required to appear. That is only really relevant when there is an issue of some importance. I feel, as everyone in the Committee appears to feel, that this is a matter of great importance and one to which we shall probably wish to return at a later date. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ramsay of Cartvale: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Teaching and Higher Education Bill [H.L.]
Returned from the Commons with the amendment agreed to.

School Standards and Framework Bill
Returned from the Commons with one of the amendments agreed to with an amendment; with certain other amendments disagreed to and with an amendment in lieu thereof and with amendments to the words so restored to the Bill; with certain other amendments disagreed to with reasons for such disagreement; and with the remaining amendments agreed to; the Commons amendments and reasons ordered to be printed.
House adjourned at seven minutes past eleven o'clock.