Lords Sitting of 27 July 1998

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

Baroness Goudie
Mrs. Mary Teresa Goudie, having been created Baroness Goudie, of Roundwood in the London Borough of Brent, for life—Was, in her robes, introduced between the Lord Sewel and the Baroness Ramsay of Cartvale.
Baroness Thornton
Mrs. Dorothea Glenys Thornton, having been created Baroness Thornton, of Manningham in the County of West Yorkshire, for life—Was, in her robes, introduced between the Baroness Hollis of Heigham and the Baroness Jay of Paddington, and made the solemn Affirmation.

Labour Standards: Overseas Workers
2.49 p.m.
The Earl of Sandwich The Earl of Sandwich asked Her Majesty's Government:
Whether they are satisfied with the progress made by companies in ensuring internationally agreed minimum labour standards for overseas workers.
The Minister of State, Department of Trade and Industry (Lord Clinton-Davis): My Lords, the Government encourage companies to conduct their business in a socially responsible way. Some, but still far too few, are adopting corporate codes of conduct relating to their arrangements with overseas suppliers as well as participating in initiatives such as the ethical trading initiative, which aim to develop voluntary standards which can be monitored and independently verified. In my continuing contacts with the CBI and other employer organisations, the TUC, and non-governmental organisations, I shall investigate ways of stimulating further interest in these issues.
The Earl of Sandwich: My Lords, I thank the Minister for that encouraging reply. I hope that it will not be out of order for me to be the first to congratulate England's cricket team on its excellent performance a few minutes ago because our cricketers and footballers are at the forefront of campaigns against exploitative child labour. Following the recent ILO conference in Geneva, can the Minister tell us how those core labour standards will be implemented by British companies—I do not mean just large companies with good public relations, but all British companies—and how they will be reporting on that implementation?
Lord Clinton-Davis: My Lords, I shall not respond to the first part of the question. It is all part of the fair play initiative. This matter has to be voluntary. The ILO does not have powers to enforce the standards that it and its members would wish to see applied, but we can set an example. Our companies can set an example not by the way in which they trade ethically but in the way their employees, overseas in particular, behave.
Lord McCarthy: My Lords, does my noble friend agree that it was expected that the Government would be rather more enthusiastic about establishing a link between the advancement of human rights and the removal of trading barriers? So it is surprising that so far they have not accepted and encouraged the joint WTO/ILO working party proposals. Will not the Government recommend and support them as soon as possible?
Lord Clinton-Davis: My Lords, the Government do support them. They have taken initiatives—for example, in relation to the negotiations on the multilateral agreement on investment—to incorporate better standards. The problem—the reality we face, like it or not—is that developing countries do not wish to see enforceable standards applied through the WTO. They are reluctant to deal with it in that way at the ILO. We are using our best endeavours to ensure that those standards are initially applied voluntarily. Let us hope that through the ILO we shall be able to embark on a policy that is truly enforceable, but that will take time.
Lord Hardinge of Penshurst: My Lords, does the Minister agree that it is better that children in developing countries should be working rather than be in, say, prostitution or other such things?
Lord Clinton-Davis: My Lords, certainly working, but not exploited.
Lord Hylton: My Lords, the question I should like to ask concerns illegal acts rather than labour standards. Will the Government ensure that information about penalties for the sexual abuse of children and young people overseas is provided to British citizens, travelling, for instance, to Asia but also elsewhere, as has been done in Australia?
Lord Clinton-Davis: My Lords, that does not fall within my ministerial area of responsibility, but the Government have taken a firm stand on this matter internationally, and will continue to do so. When I replied to the noble Lord, Lord Hardinge, I should have said that when we talk about children I am talking about children of 16 or above. They should be permitted to work if they wish to do so. We must be careful about the sort of exploitation which unfortunately is far too common in the world at large today.
Earl Russell: My Lords, does the Minister agree that while the global market is here to stay, the mobility of capital will be rather easier than the mobility of labour? If the global market is to have an approximately level playing field, some weight on the labouring end of the scale may often be necessary.
Lord Clinton-Davis: My Lords, I cannot disagree with that. The question is how we do it. It is for that reason that we have chosen to utilise our endeavours primarily through the ILO, where we have a somewhat better chance of achieving decent standards for children than through the WTO at present. I believe that that is a sound judgment, although I do not rule out for all time, if we do not make sufficient progress, moving also in the WTO arena.
Lord Pearson of Rannoch: My Lords, has the Minister heard disturbing reports about labour standards for children within the EU? Portugal and other countries have been mentioned. Can the Minister give the House any assurance about the future efficiency of the EU in that regard?
Lord Clinton-Davis: My Lords, exploitation and abuse of child labour is to be deplored wherever it happens. Unfortunately, we have unscrupulous employers in this country who are prepared to abuse child labour in that way. We need to get our own house in order before we start condemning activities elsewhere. It is necessary to ensure that the EU keeps its eye on that particular ball; I am sure it is doing so.
Lord Monkswell: My Lords, bearing in mind that the US and a number of European countries have a national minimum wage, and that this country will shortly have one, will the Government advise the House as to whether they have plans to put an international minimum wage on the bargaining table of the ILO?
Lord Clinton-Davis: My Lords, it is unlikely that we should be able to garner sufficient strength elsewhere to make that practicable. We have to look sensibly at what is possible, and work hard to achieve it. That is what the Government have been doing in the ILO, with some measure of success.
The Earl of Sandwich: My Lords, can I press the Minister on reporting standards in British companies? Will he take the opportunity to congratulate certain companies on all the reporting they have been doing?
Lord Clinton-Davis: My Lords, certainly. Those who have engaged in the ethical initiative are to be complimented. A system whereby one is able to monitor and invigilate carefully what is happening is part of the process of membership. That is thoroughly to be applauded. I thank the noble Earl for mentioning it.

Car Prices in the UK and Europe
2.56 p.m.
Lord Jacobs Lord Jacobs asked Her Majesty's Government:
What steps they propose to take to ensure that consumers in the United Kingdom do not have to pay as much as 20 per cent. more for new cars than consumers in Belgium.
The Minister of State, Department of Trade and Industry (Lord Simon of Highbury): My Lords, the European Commission, which enforces EC competition law, decided in January to fine Volkswagen 102 million ecu (some £70 million) for prohibiting its dealers in Italy from selling cars to foreign buyers who wished to benefit from cheaper prices. Manufacturers therefore face serious risks if they break the law.
Officials are discussing with the Commission what the implications of this case are for UK consumers wishing to buy cars at the lowest possible prices here.
Lord Jacobs: My Lords, I thank the Minister for his helpful reply. Perhaps I may draw his attention to the EC's 11th survey of car prices which shows that in the UK we pay the highest car prices of anywhere in Europe, irrespective of where the cars are manufactured. As the survey shows that one UK manufacturer charges UK customers 30 per cent. more than in any other country in Europe, even though one of those countries is Ireland where they also drive on the left, does the Minister agree that such widespread overcharging is clear evidence of an informal cartel? Furthermore, rather than rely upon the lengthy investigations by European institutions, will the Government consider direct negotiations with individual manufacturers to seek to persuade them to lower their prices, at least to the average level of European prices? If one or two manufacturers were to agree, the others would follow.
Lord Simon of Highbury: My Lords, clearly comparing prices across Europe is a complex matter. There are the issues of taxes, exchange rates, quality and production specifications. If there is any evidence that cartels are operating, the correct place for that information is the Director-General of Fair Trading together with the appropriate complaints procedure. I would not want to comment further at this stage except to say that our Competition Bill, if it is successful through both Houses, will ensure that these matters are regarded with the utmost seriousness.
Lord Borrie: My Lords, does the Minister agree that wide discrepancies in prices across Europe for any considerable period of time make a mockery of the single market? Does my noble friend agree with me that a serious drawback is the persistence of a block exemption enabling a tightly knit car distributorship agreement to prevail contrary to the normal competition laws of the European Union?
Lord Simon of Highbury: My Lords, in general terms I would never wish to cross swords with my noble friend on matters of competition. However, he must know that extreme variances of prices are capable of being observed in one region of one country let alone across the European Union. Therefore, given the features of tax and exchange rates, disparity of prices does not necessarily mean that the European Union single market is not working effectively. However, at the informal ECOFIN meeting in May we asked the Commission to look at pricing across the European Union with a view to helping the completion of the single market.

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Block exemptions are clearly a matter for the European Commission and its consideration will impact on our own law base.
Baroness Oppenheim-Barnes: My Lords, will my noble friend the Minister comment on whether the stockpiling of many thousands of new and nearly-new cars at RAF Upper Heyford is in breach of our restrictive practices legislation? Is it a form of cartel, the main purpose being to stop the price of second-hand cars from falling?
Lord Simon of Highbury: My Lords, I cannot comment on individual company's stockpiling policies. By and large holding large stocks of any product is usually a function of the order and resale process within any industry. Holding large stocks is not a crime, but it usually turns out to be expensive for the company which holds them.
Lord Stoddart of Swindon: My Lords, is my noble friend the Minister aware that there is a great deal of confusion about car prices, not only in relation to Europe but also in relation to the way that manufacturers and distributors handle the industry? Manufacturers are whining and moaning about a high pound, saying that they cannot export. But since many of the components and cars are imported, can my noble friend explain why the high pound does not result in much lower prices of cars in this country? Manufacturers cannot have one without the other.
Lord Simon of Highbury: My Lords, my noble friend raises an extremely acute point of analysis about how pricing should operate. My experience is that there are often swings and roundabouts in these matters, and the consumer often thinks that he is on the roundabout rather than the swings.
Lord Razzall: My Lords, does the Minister accept that the real issue—it has been demonstrated by the questions asked by noble Lords—is that for at least the past two to three years there has been a significant problem of differential pricing between UK purchased cars and cars purchased elsewhere? The Government must commit themselves to doing something about it. Will the Minister give that undertaking?
Lord Simon of Highbury: My Lords, I believe that I made clear in an earlier answer that in May the Financial Ministers' Council asked ECOFIN for pricing discrepancies in Europe to be studied by the Commission. I am sure cars fall within that study. As we prosecute the single market, we shall ensure that pricing disparities which are not for wholly acceptable and justifiable reasons will be pursued at whatever legal level is required.
Lord Bruce of Donington: My Lords, does the Minister agree that the Commission's interpretation and enforcement of competition laws are subject to many inexplicable differences? Will my noble friend give the House an undertaking that the Government will look
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into this aspect of the matter in view of the fact that under the treaty the Commission is the sole interpreter of their validity?
Lord Simon of Highbury: My Lords, without wishing to trivialise matters to my noble friend, I think that the decisions of the Court are often complex and sometimes incomprehensible to the layman. However, we shall ensure that within our powers the prosecution of the law is undertaken in a manner which is compatible with the treaty and our own regime and of benefit to the consumers for whom it is designed.
Lord Swinfen: My Lords, can the Minister tell the House how United Kingdom taxes on new cars compare with taxes in other countries within the EC?
Lord Simon of Highbury: My Lords, I would rather write to the noble Lord in response to that question. It is a detailed matter. I do not wish to waste the time of the House because it is different in each country.

CS Sprays: Police Use
3.5 p.m.
Lord Dholakia Lord Dholakia asked Her Majesty's Government:
Whether they will review, in consultation with the Association of Chief Police Officers, the use of CS spray by police forces.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, CS has been scientifically evaluated to a level similar to that which would be required for a new pharmaceutical drug and has been found not to present any significant threat to human health. CS spray enables officers to deal with violence directed at themselves or others by using a lower level of force than the alternative—hitting someone with a baton. Guidelines on its use are kept under review by the Association of Chief Police Officers with support on technical matters from the Home Office police scientific development branch.
Lord Dholakia: My Lords, I am grateful to the Minister for that reply. Is he aware of the case of the 66 year-old man who tried to park his car on a double yellow line to deliver his invalid wife to the hairdresser? He was sprayed with CS gas, arrested and put in a cell for six hours. While one appreciates the use of CS spray for a defensive purpose, is it not inappropriate to use it as a control mechanism? Is the Minister also aware that the Police Complaints Authority—I declare an interest as a member of that authority—dealt with over 254 complaints? Its opinion is that in many cases the use is neither justified nor appropriate.
Lord Williams of Mostyn: My Lords, I am aware of the case in question. In fact the Bedfordshire police took the view that the officer in question had acted outside the guidelines. They had to bear in mind the constraints of Section 3 of the Criminal Law Act 1967 which provides that someone may only use such force as is

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reasonable in all the circumstances. Because the Bedfordshire police took that view, they referred the case to the Crown Prosecution Service. A prosecution was initiated; the officer was acquitted.
Baroness Anelay of St. Johns: My Lords, cricket has already been mentioned in your Lordships' House today. I am aware that the new football season is a mere 13 days away when Arsenal will play Manchester United in the Charity Shield at Wembley. Can the Minister say how many police forces carry CS spray into football grounds? Were any problems experienced during the last football season in situations where crowd safety must be the prime consideration?
Lord Williams of Mostyn: My Lords, I cannot say how many police forces use CS gas in football grounds or at any other sporting event. It is a matter for the operational view of a chief officer of police. Every police force in England and Wales bar two uses CS spray.
Lord Dean of Beswick: My Lords, bearing in mind that there is still a tendency for increased crime, and for people to attack policemen who are doing their duty of protecting individuals or the community, can the Minister indicate whether there is any alternative to CS gas? There does not seem to be one on the table at present.
Lord Williams of Mostyn: My Lords, my noble friend is right. Numbers of assaults on police officers in England and Wales rose from 14,840 in 1995–96 to 15,488 in 1996–97. If one expects police officers to uphold the law, one has a duty to give them the reasonable but lawfully controlled tools to do the work. The alternative is to use a baton and, as I said in my original Answer, that may involve more force and more disagreeable consequences than CS spray.
Earl Russell: My Lords, is the Minister aware of any research on the effect of CS gas on people suffering from mental illness or those taking psychotropic drugs? If the Government are unable to discover any such research, will they ensure that some is commissioned?
Lord Williams of Mostyn: My Lords, I know of no specific research related to the two categories identified by the noble Earl. I can only repeat that it has been evaluated to the same level as any new pharmaceutical drug and was found not to present any significant threat. If the noble Earl has any particular instance in mind, of course, as always, I should be more than happy to research it and write to him.

Spitting in Public
3.10 p.m.
Lord Blyth Lord Blyth asked Her Majesty's Government:
What steps they are taking to discourage spitting in public, particularly at sporting venues.
Lord McIntosh of Haringey: My Lords, rules to discourage spitting by spectators at sporting venues are a day to day operational matter for individual stadium management teams to determine. I understand that sports governing bodies discourage players from spitting at the field of play in view of the poor example it sets, in particular to young people.
Lord Blyth: My Lords, I thank the Minister for that Answer. It has become more common to see on television footballers spitting. The practice has certainly spread to players at Wimbledon, but I am not sure about cricketers. Spitting is capable of spreading tuberculosis, among other diseases. With diseases becoming more resistant to antibiotics, could not the Government have another word with the sports governing bodies because children see their heroes on television in sporting events and it would be better if they did not see them spitting?
Lord McIntosh of Haringey: My Lords, the laws of football—Law 12, paragraph 18—make it an offence for players to spit at opponents and officials. Such action is deemed violent misconduct punishable by a red card. The Football Association has written to both the Professional Footballers Association and to all professional football clubs strongly discouraging, for reasons of common politeness, the practice of players spitting at the ground during play. However, tuberculosis and other diseases are unlikely to be spread by spitting.
Lord Cowdrey of Tonbridge: My Lords, cricket has had three mentions this afternoon. Perhaps I may be allowed for one moment to stand and bask in reflected glory on the outcome of a great victory a few minutes ago.
The noble Lord is right in saying that spitting has crept into the game of cricket in a serious way. It is made worse by the fact that a moment of triumph is often accompanied by the most revolting spit into a close-up camera which is then replayed seven or eight times throughout the day. That has caused great offence, especially to coaches and those in charge of young people. The action that we have taken—writing it into the players' code of conduct—has been quite successful. Will the Minister consider asking those in government departments to contact not only the administrative bodies but also those who write the codes of conduct of players, so that it goes right to their hearts?
Lord McIntosh of Haringey: My Lords, I certainly agree that spitting is an unpleasant habit which sets a poor example. The Government are certainly pleased that the sporting authorities are doing their best to stamp it out. But I have to say that it is neither a health hazard nor an environmental nuisance in the proper sense of the word.
Lord McColl of Dulwich: My Lords, does the Minister agree that there is a real public health danger in spitting if the spitter spits in the eye of the recipient, because meningococcal infection can be transferred that way?
Lord McIntosh of Haringey: My Lords, of course I yield to the medical knowledge of the noble Lord, Lord McColl. The view of the Department of Health is that spitting is not a public health nuisance in general. I should have thought that spitting in the eye was quite difficult, even though it is a good Shakespearean simile.
Lord Swinfen: My Lords, there used to be bylaws against spitting in public. Are they still in existence? If so, will the fines which relate to them be exacted? I remember as a child seeing signs stating that there was a bylaw which carried a fine of £5. Goodness knows what it would be today.
Lord McIntosh of Haringey: My Lords, like the noble Lord, I remember signs stating that spitting was forbidden and I remember spittoons. However, spitting has not been declared a statutory nuisance under the Environmental Protection Act 1990 and the Home Office, on present advice, is not prepared to confirm local bylaws which would make it a criminal offence.
Viscount Long: My Lords, spitting is one thing, but spitting out chewing gum is another. Does the Minister agree that chewing gum is litter under the Litter Act? Have there been any prosecutions? If not, would it not be an idea for the Government to introduce a Bill to ban chewing gum altogether?
Lord McIntosh of Haringey: My Lords, the noble Viscount's question is, as he well knows, wide of the Question on the Order Paper. In general, I dislike chewing gum on the pavements as much as anyone else. However, it is undesirable to create new criminal offences, in particular when it is so difficult to identify those committing the offence.
Lord Mackie of Benshie: My Lords, would not the noble Lord consider consulting the Chinese Communist Party, which alleges that through a campaign it has stopped 1,000 million people spitting in China?
Lord McIntosh of Haringey: My Lords, I seem to remember that it also wiped out the curse of flies—or at least it claimed that it did—by collective action. I do not believe that it did so by bylaws or even by executions. Quite frankly, spitting is a very minor offence.
Lord Mishcon: My Lords, however objectionable is the practice to which we have given grave attention, is it not less dangerous than body-line bowling if one disagrees with the verdict of the umpire?
Lord McIntosh of Haringey: My Lords, I have no idea.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lady Symons of Vernham Dean will, with the leave of the House, repeat a Statement that is being made in another place on the
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Legg Inquiry. That will be followed by my noble friend Lord Williams of Mostyn, who, again with the leave of the House, will repeat a Statement on the immigration and asylum White Paper.

Lord Richard: Tributes
3.16 p.m.
Viscount Cranborne: My Lords, perhaps the House will allow me to intervene briefly in pursuance of what I hope the House will agree is important business as regards your Lordships in the ave atque vale department. Your Lordships will have noticed that there has been a change in the leadership of your Lordships' House and that we must bid farewell to the noble Lord, Lord Richard. I am sure that the House will join me in wishing the noble Lord well in his retirement.
Noble Lords: Hear, hear!
Viscount Cranborne: My Lords, the noble Lord and I have been associated professionally for about four years. I should like to place on record my extreme appreciation of the personal courtesy and cordiality which has always accompanied our relations. I hope that that cordiality will continue into private life and that we shall have the opportunity to continue lunching together at regular intervals, with his permission. I hope that the permission of his former political bosses will not this time be required in order for those agreeable occasions to take place.
On behalf of this side of the House, I thank the noble Lord for his leadership of the House since the election. Whatever our political differences may have been, I know none better. As regards his personal dedication to the cause of an independent second Chamber, on that he and I have always wholly agreed, whatever our differences may be about the means necessary to bring that objective into place. I very much appreciate the firm convictions which have always animated his statements in that regard.
Perhaps I may say once again that I am sure the whole House wishes the noble Lord a very happy retirement from official life. Such are the vagaries of politics that we can even venture the hope that one day he will return in some kind of official capacity. Certainly, the extraordinary variety of his service to the nation is such that to write him off at this stage may well be premature.
I also understand that we have to congratulate the noble Baroness, Lady Jay, as successor to the noble Lord. May I give the noble Baroness a warm welcome from these Benches. I think I am right in saying, and I can say without fear of contradiction in your Lordships' House, that since becoming a Peer she has earned the respect and, indeed, the affection of the House as a whole. I greatly look forward to working with her in this House during the course of her leadership. It is no more than pious political hope which leads me to expect that tenure of her present distinguished position will not last beyond the next general election.

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Perhaps I should also "knock on the head" what I know she will find to be an unworthy reaction that I have heard in different parts of the House as a result of her appointment, which is that it is a final vindication for the hereditary principle. I think the House knows well enough the noble Baroness's firm support of her party's policies to realise that the fact that she is the daughter of a former Prime Minister is merely incidental and that she will strongly cleave to the policies set out in her party's manifesto.
I, too, greatly look forward to working with the noble Baroness. I know that she will pursue the great traditions of the leadership of this House that in everything except for purely party political matters the Leader of this House is Leader of the whole House. Certainly on this side of the Chamber we pledge our support and look forward to her guidance and advice during the months and years to come.
Lord Rodgers of Quarry Bank: My Lords, may I associate these Benches with the sentiments expressed by the noble Viscount to the noble Lord, Lord Richard, who, I think, has had a difficult year as Leader of the House but has always put the consideration of the House first. He is an old friend of mine and his service in public life over many years is something which none of us will forget or underestimate.
Changes in government are celebrations for some but they are always painful for others. I think we should remember both categories at the present time. Like the noble Viscount, I greatly welcome the noble Baroness, Lady Jay, to her new role. We shall show great good will towards her and understanding of her actions as Leader of the House. I am sure she will show reciprocal understanding when, from time to time, we are fairly difficult from these Benches.
Lord Weatherill: My Lords, may I, on behalf of the Cross-Benchers, also thank the noble Lord, Lord Richard, for the way in which he has shown very fair consideration for Cross-Benchers during the time he has been Leader of the House. I too give a welcome to the noble Baroness, Lady Jay. We look forward to working with her. I hope that she will not forget that we now number 326 on the Cross-Benches.
Lord Richard: My Lords, unaccustomed as I am to speaking from this particular spot, I thank the noble Viscount, the noble Lord, Lord Rodgers, and the noble Lord, Lord Weatherill, for their kind sentiments. It strikes me that perhaps the rumours of my retirement from politics are a little premature, if I may respond to the noble Viscount. I have no intention of departing from these proceedings. From time to time I might even feel compelled to utter a few words.
These occasions are rather like funeral orations with the corpse having a right of reply. This particular corpse is not yet so defunct as to be incapable of expressing his deep thanks for the sentiments uttered by the noble Viscount and other noble Lords. It has been instructive, interesting, stimulating and enjoyable to have served as Leader of your Lordships' House. It has also been a
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great honour. I am grateful to those who gave me that honour for the time that I was able to enjoy it. Thank you very much.
Baroness Jay of Paddington: My Lords, I should like to thank noble Lords who have spoken, particularly the noble Viscount, the Leader of the Opposition, for his kind words of welcome to me in my new position. It is an honour and a privilege to take on the position; it is also somewhat daunting. However, I look forward, given the expressions of co-operation heard from all around the House, to maintaining both the effective process of business and the longstanding courtesies which we always enjoy in this House. I simply disagree with the noble Viscount, as he would expect, concerning his pious political hope.
Perhaps I may take this opportunity to thank my noble friend Lord Richard for the extraordinary leadership he has given both to the party and to the Government in the House since we took office. He has guided us most effectively. He was a particularly good and helpful Leader to me in my previous role as deputy Leader. I am glad to hear my noble friend say that he has no intention of retiring as I shall look to him both for personal support and for public support on the Floor of the House.

City of Edinburgh (Guided Busways) Order Confirmation Bill
3.25 p.m.
Considered on Report.

Private Hire Vehicles (London) Bill
Read a third time.
Baroness Gardner of Parkes: My Lords, I beg to move That this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Gardner of Parkes.)
Baroness Farrington of Ribbleton: My Lords, it is perhaps appropriate that I should say a few words from the Government Bench before, as I hope, we agree that this Bill do now pass. I speak partly to express, on behalf, I am sure, of all noble Lords, our collective thanks to Sir George Young and the noble Baroness, Lady Gardner of Parkes, for their efforts in taking this Bill through.
No one who embarks on a Private Member's Bill can be certain of success so we must be all the more appreciative of what both Sir George and the noble Baroness have achieved in bringing this Bill to the brink of Royal Assent.
If your Lordships agree that this Bill do now pass, it will then fall to the Government to take forward implementation. It is in that context that I should say something about Clause 40(2) and its powers to make commencement orders which could modify primary legislation.

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The Select Committee on Delegated Powers and Deregulation of this House has drawn attention to that power and has compared it to the power to make regulations in Clause 37. The Select Committee questioned whether it was appropriate that provisions which would be subject to parliamentary scrutiny if included in regulations under Clause 37 should escape that scrutiny if included in an order under Clause 40(2).
The thinking behind that provision was merely that the commencement of the Bill, as part of the transition from the present wholly unregulated regime to a continuing system of regulation might be a complex matter which for the sake of all concerned should be conducted smoothly. But the point of the Select Committee is well taken. I therefore echo the words of the Minister for Transport in London. In a recent letter to the noble Baroness, Lady Gardner of Parkes, the Minister gave an undertaking that the power in Clause 40(2) will not be used as it might otherwise have been to modify any enactment contained in the Bill, should it become law, or in any other Act. If such a modification is judged to be necessary, provision will be pursued by regulations under Clause 37 in order that it should be laid before Parliament. I am glad to repeat that undertaking on the Floor of your Lordships' House. I hope that it gives noble Lords the reassurance they seek and that the House will therefore feel able to agree that this Bill should now pass. In doing so, we shall be sending for Royal Assent a measure which, in the opinion of many, is long overdue. It will make London a safer place.
The House has done itself credit in providing all-party support for this measure after a constructive Second Reading debate. I am grateful to all noble Lords who spoke in that debate. It now falls to me to commend the Bill to your Lordships' House as a proper, necessary and appropriate measure to which I hope your Lordships will agree.
Baroness Gardner of Parkes: My Lords, I thank the noble Baroness for repeating that undertaking which was given by the Minister for Transport in London. I thank all those who have done so much as regards the progress of the Bill. I hope that your Lordships will now agree that the Bill do now pass.
On Question, Bill passed.

National Minimum Wage Bill
3.31 p.m.
Read a third time.
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 1:
After Clause 5, insert the following new clause—
POWER TO SUSPEND THE NATIONAL MINIMUM WAGE IN THE EVENT OF LOCAL OR NATIONAL ECONOMIC EMERGENCIES
(" .—(1) The Secretary of State, after such consultation with the Low Pay Commission as may be reasonably practicable, may by order suspend the operation of this Act if he is satisfied that such suspension is required in the public interest by extreme economic circumstances.
(2) An order under subsection (1) may provide for the operation of this Act to be suspended in whole or in part and, in particular, may provide for the provisions of this Act to be suspended in respect of—

(a) any area or description of area; or

(b) any individual employer.

(3) No order shall be made under subsection (2)(b) above unless the employer has given the Secretary of State not less than 30 days' notice in such form as may be prescribed that, in the opinion of the employer, such an order is necessary in order to prevent the loss of jobs.
(4) A statutory instrument containing an order under this section shall be laid before each House of Parliament after being made.
(5) Unless an order under this section is approved by resolution of each House of Parliament before the end of the period of 28 days beginning with the day on which it is made, it shall cease to have effect at the end of that period.
(6) In reckoning the period of 28 days for the purposes of subsection (5), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.
(7) An order under this section which does not cease to have effect before the end of the period of three months beginning with the day on which it is made shall cease to have effect at the end of that period.").
The noble Baroness said: My Lords, in Committee, I withdrew this same amendment because of the lateness of the hour, which was 11 p.m. I did not move the amendment on Report because the time for that stage had been shortened by the two Ministerial Statements. However, I now wish to return to it because in Committee I asked the Minister to reconsider the position and I hope that he has now done so.
The detailed words of the amendment speak for themselves and I certainly shall not take up the time of your Lordships by going through them in detail. The margin note provides an adequate summary. The proposed new clause gives the Secretary of State power to suspend the national minimum wage in the event of local or national emergencies. I regret to say that I thought the Minister's response was inadequate and irrelevant. He complained that the circumstances in which the powers might be invoked were ill-defined. The Government claim to be expert at defining what is in the public interest. Indeed, they claim to be the sole arbiters of it. The Minister did not understand the phrase I used; namely, "extreme economic circumstances". At least he recognised that I was not referring to extreme uneconomic circumstances.
I suspect that we can all recognise extreme economic circumstances when they arise. But an order could not be made arbitrarily by the Secretary of State. Subsection (4) requires the order to be subject to the scrutiny of both Houses and to a positive resolution of both of them. That is a procedure in which I have considerable faith and I hope that the Minister has too. Subsections (5), (6) and (7) impose stringent and very short time limits on the operation of any order. The Minister suggested that the amendment could lead to what he called exploitation and suggested that unscrupulous employers—the bogeymen whom the Government see lurking round every corner—might try to take advantage of the situation. I consider that to be fairly far-fetched. I cannot imagine an employer bankrupting himself simply to avoid paying the national minimum wage. The example I gave was of a group of

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workers banding together to save their firm, possibly by investing their redundancy payments or forgoing their wages until the firm gets back on its feet again.
According to the Government's response to the amendment, those people would be better off going on the dole rather than breaching the Government's philosophy of universality for the national minimum wage. The Minister's response shows also a surprising lack of confidence in the Secretary of State's ability to spot an undeserving case; or to recognise an extreme economic situation; or to recognise an unscrupulous employer.
The provisions of that subsection do not come into effect automatically. They require the Secretary of State to investigate the matter. She must also consult the Low Pay Commission if it is reasonably practicable to do so. After all that, she still has a total discretion as to whether or not she will take any action. That is the nub of the clause.
Before anyone wrongly accuses me of introducing a wrecking amendment, I should point out to your Lordships that the clause simply gives the Secretary of State a reserve power to exercise if, and only if, she thinks it appropriate. On the previous occasion on which the amendment was debated, I said that I do not possess a crystal ball. But then, neither do the Government. They must allow for the possibility that the circumstances which the clause envisages may arise. It will then be too late for the Secretary of State to come to Parliament to pass a new Act.
This Bill has been described repeatedly by the Minister as an enabling Bill. I do not understand why the Government would wish to enable themselves to do some things but to disable themselves from doing others. I hope that the Minister will be able to give us some convincing reasons for rejecting the amendment, if that is what he is minded to do. Otherwise, he will be accepting on behalf of the Secretary of State a much needed reserve power to use in case of an emergency. I beg to move.
Lord Clinton-Davis: My Lords, I start by saying that I would not for a moment describe this as a wrecking amendment. But it is a totally uncharacteristic stance on behalf of the Opposition because everything else has been.
We have debated this issue quite substantially on previous occasions in the House. I should point out also that I have written to the noble Baroness about her concerns and a copy of that letter has been placed in the Library.
I apologise if I engage in some repetition but it is inevitable because the amendment has been debated before in substance. The new clause provides a power to exempt which in my judgment would be invidious. In that respect, it is very similar to the new Clause 2 which was put into the Bill as a result of your Lordships' decision to support that amendment on Report.
However, on that basis, this proposed new clause is unnecessary if the more general exemption power in Clause 2 remains. I hope your Lordships will understand
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that in debating this amendment on its own terms, I also make an assumption that the decision on Clause 2 may well be overturned in another place.
In the Government's judgment, this new clause would be extremely difficult to operate. It could open up a huge loophole in the Bill and would suggest—and this is most important—that workers' rights, and in particular the right to a national minimum wage, is simply for the good times and can be dispensed with when times are hard. I speak of that not only in terms of the economy in general but also in terms of the fortunes of a particular company.
The amendment makes the assumption that poverty wages can be reinstated by suspending the national minimum wage in the public interest because of some unnamed, unidentified emergency. The phrase used is "extreme economic circumstances". We inherited some fairly extreme economic circumstances from our predecessors. That is exactly why we need a national minimum wage and it is a matter of urgency as regards the interests of this country. People who are receiving poverty pay on a daily basis may be considered to be in extreme economic circumstances. That very fact has never for one moment been understood by the Opposition. It is in the interests of the people receiving that poverty pay that this legislation should be enacted as soon as possible. We do not want to have the power to suspend the Bill's provisions, and certainly not in the circumstances described by the noble Baroness.
It is simply not in the public interest for people to be earning poverty wages. The whole point of the national minimum wage is to tackle exploitation. The underlying discontent arising from exploitation and the lack of motivation compound to work against the public interest. So we are seriously at odds with the Conservative Opposition on the matter. Indeed, the public interest lies at the very heart of our approach. What we are really urging here is a partnership approach—in fact, that of the Low Pay Commission, which consulted extensively with all sections and all partners in industry and NGOs. We need to encourage firms to compete not on poverty but on quality. Part of that quality is the quality of the workforce and the need to respect the interests of the workforce. The drive towards greater decency and fairness in the workforce is what all this is about.
I ask the noble Baroness: how can all these things not be in the interests of the public? Quite apart from the principle, which is pretty bad anyway, the proposed new clause would not work in practice. I shall tell your Lordships why. Every time an individual employer got into financial difficulties, what would happen? That employer would come running to the Secretary of State requesting an order rather than exploring other ways of averting a crisis. If economic circumstances changed, the LPC could be called to review the rate at any time. That is the nature of the flexibility we have provided in the Bill.
Of course, there can be shocks to an economy and unexpected crises. Indeed, we know all about that and we have developed a mechanism that can deal with the situation. We certainly do not need the one incorporated

1201
in the proposed new clause. I am well aware that there is power in the Bank of England Act to cover action in extreme economic circumstances, but that legislation deals with macro-economic circumstances. That is not what this Bill is about. This Bill covers a relatively small part of the economy; it is a matter of proportion and a matter of fairness.
In the earlier debate and indeed in the correspondence in which I engaged with the noble Baroness, the subject of management buy-outs of ailing firms arose. I shall make two points in that respect so that our position is on the record. First, if a buy-out were to take the form of a group of former workers who, in some way, became the owners of a company, the Bill may no longer apply to them in any event because they might not have workers' contracts. Secondly, the Transfer of Undertakings (Protection of Employment) Regulations 1981 prevent employees involved in management buy-outs from agreeing to any worsening of their pay and conditions. The introduction of the national minimum wage will not affect that position.
The Opposition have again underlined the strength of their resistance to the very idea of a national minimum wage. Their approach challenges the very fundamentals of what we are seeking to do. It makes an implicit assumption that somehow or other a national minimum wage is something which is very revolutionary, dangerous and unacceptable. They want to guard against it. That is the very opposite of our approach and, I believe, the approach taken by the Liberal Democrats.
I hope that noble Lords will agree that the effect of the proposed new clause would be harmful to the entire principle of the Bill. If the noble Baroness persists with her amendment, I shall have to ask the House to reject it.
Baroness Miller of Hendon: My Lords, for the sake of the record, perhaps I may begin by saying that I do not accept that any of the amendments I proposed either in Committee or on Report were in fact wrecking amendments. As the Minister started off by saying that, it is only right that I should clarify the position. I can confirm that I received the letter from the Minister on this matter. I should also confirm that I did not accept then what he said and that, frankly, I do not accept what he says now.
The Minister made his position clear and said that I, too, had made mine clear. He says that we are totally opposed the national minimum wage. At the beginning of this Third Reading stage, perhaps I may say that yes, indeed, we are. However, the truth is that wherever there is a national minimum wage—that is to say, in other countries—there are always exceptions. All I have been trying to do right the way through these proceedings is to suggest that the Government might include the same exceptions and exemptions which are absolutely standard in all the other countries that have a national minimum wage.
However, having said that, the Minister talked at some length about poverty pay and said that I am in the business of trying to suggest that people should have poverty pay. That is not so. I was actually talking about the position of a management buy-out. However, I was
1202
glad to hear the Minister say that that might well be exempted because the workers who formed such a management buy-out might not have workers' contracts and might therefore fall outside the national minimum wage legislation. If so, that would give a defence for the position I had in mind. Nevertheless, in view of everything the Minister said and the fact that I have also made certain things clear for the sake of the record, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
Clause 11 [Worker's right of access to records]:
Viscount Thurso Viscount Thurso moved Amendment No. 2:
Page 8, line 21, after ("notice") insert ("and during the paid contractual working hours of the employee").
The noble Viscount said: My Lords, before I speak precisely to my amendment, perhaps I may associate myself and my noble friends wholeheartedly with the remarks that the Minister made in respect of the principles of the Bill. I am an employer in an industry which has a problem with both low pay and recruitment. I have long felt that the proper way to deal with the situation would be to bring in a national minimum wage. In terms of principle, I wholly support that aim, as indeed do my noble friends on these Benches.
I return for the third time to this amendment. I should perhaps say, "third time lucky", because I drafted it incorrectly on both previous occasions and, therefore, was unable to put it before the House. However, this time I have managed to draft it correctly. I believe that I summed up on Report the core of the amendment, when I said:
"It really concerns the balance of unreasonableness which I feel should be placed on the employer rather than on the employee".—[Official Report, 20/7/98; col. 648.]
Effectively, what I am seeking to do is to amend Clause 11(9). The clause provides for the production of "relevant records"; in other words, it gives the employee the right to receive relevant records. Subsection (9) provides the manner in which an employee should receive such records, set out in two paragraphs. Paragraph (b) takes care of the situation where everyone is being reasonable, and states that such relevant records can be produced,
"at such later time as may be agreed during that period between the worker and the employer".
That assumes that the worker and the employer are both reasonable and come to a reasonable arrangement.
My amendment seeks to add to paragraph (a) the words,
"and during the paid contractual working hours of the employee",
so that it would read:
"The relevant records must be produced—
(a) before the end of the period of 14 days following the date of receipt of the production notice and during the paid contractual working hours of the employee".
I am most grateful to the noble and learned Lord, Lord Falconer, for the time and trouble he has taken to speak to me in an effort to persuade me that my amendment is wholly unnecessary. In terms of principle there is

1203
nothing between us. Indeed, we both wish to see employees properly protected and looked after. I suspect that we both believe that the danger is liable to come much more from unreasonable employers than from unreasonable employees. The noble and learned Lord has drawn to my attention subsection (7) of the clause. I believe it is his contention that that subsection, which requires that,
"reasonable notice of the place and time",
must be given for the production of the relevant records, is sufficient to cover the terms of my amendment and thus make it unnecessary. So far, the noble and learned Lord has failed to persuade me that that is the case, but I promise to listen most carefully to his response.
I am seeking to provide a means whereby a nightshift employee would be able to require his employer to produce such records while he is at work. As I argued in Committee and on Report, if an employer wishes to be unreasonable, I believe that he has the power to force the employee to return to work during his free time for such purposes, when he would normally be asleep. Not only would that cause the worker inconvenience; there would also be a cost involved. I believe that where there is a risk of that happening it is only right and proper that the duty should be placed on the employer, rather than on the employee, to try to be reasonable. In that regard I am wholly in sympathy with the Bill and everything that it seeks to do.
I believe the difference between us is that the noble and learned Lord, Lord Falconer, and his advisers have probably never had to work at the "bottom end". For the first five years of my working life I worked in kitchens washing up and doing various other tasks. I received a small allowance from my father of £50 a month in 1972. I had to survive on what I earned. I remember what it is like not to have enough money at the end of the week. I am thinking of those workers—not the highly paid ones—who are on the breadline. An unreasonable employer can make life difficult for those workers. I ask the noble and learned Lord to think again. I believe this measure is wholly within the principles of what the Government seek to do. I hope he will be persuaded by my argument. I beg to move.
The Solicitor-General (Lord Falconer of Thoroton): My Lords, I agree entirely with what the noble Viscount, Lord Thurso, said. I believe that both of us have the same broad objective in mind. We want to ensure that there is proper and convenient disclosure of records between employer and employee. I believe our disagreement arises as regards whether this measure is the most appropriate and effective way to achieve what the noble Viscount wants to achieve, having regard to the interests of both the employer and the employee.
I think the noble Viscount will agree that often there will be a supervisor or similar person who can make the records of night-shift workers available at a time when night-shift workers are working. No difficulty will arise between a reasonable employer and a reasonable employee because they will approach the matter with common sense and reach agreement. As I pointed out in previous debates, the amendment is inflexible. The
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amendment would have the effect that records would have to be produced during the employee's working hours. A small employer may not have the means to make records available during an employee's working hours, but under the terms of the amendment he would be obliged to turn up in the early hours of the morning, for example, to produce the records for the employee even though that may cause immense disruption to that small employer. The Bill is silent as to the time during people's working hours when the records must be produced. It is to be hoped that as time goes on convenient times will be agreed for all.
The noble Viscount, Lord Thurso, referred to Clause 11(7) which states,
"Where a production notice is given, the employer shall give the worker reasonable notice of the place and time at which the relevant records will be produced".
When we discussed this matter the noble Viscount may have thought that the word "reasonable" referred to the notice rather than to the place or the time. In our discussion I may have overstated the extent to which that provides a solution. The underlying principle is that one should not prescribe the time—whether in favour of employee or employer—and that one should allow this to be worked out according to the circumstances. Common sense should prevail. It is to be hoped that at the end of the day sensible notice will be given. I believe that that is the right solution in all the circumstances. I believe that the solution the noble Viscount proposes is too biased in favour of the employee. The best course is to be silent about the matter in the Bill. I hope I have persuaded the noble Viscount to withdraw his amendment. We have thought carefully about the matter and we think the best course is silence rather than trying to prescribe measures which shift the balance too far one way.
Viscount Thurso: My Lords, I am grateful to the noble and learned Lord, Lord Falconer. I fully realise that, particularly since Report stage, he has taken on board the argument that I advanced and that he has clearly given it a great deal of thought. I am only sorry that at this stage I find myself still unable to agree with what he says. If I have understood him correctly, he has said that it is better to be silent because in all the circumstances common sense will prevail. If that were true, I should have thought we would not be debating this National Minimum Wage Bill at all because we would not need to put such legislation on the statute book.
There is a small number of employers—it is a small number—who have the opportunity to make life difficult for employees, whereas the ability of an employee to make life difficult for an employer, however small that employer may be, is somewhat limited. Therefore on this occasion and with great sadness I respectfully ask to test the opinion of the House.
3.56 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 110.

Division No. 1

CONTENTS

Addington, L.

Mackie of Benshie, L.

Alexander of Tunis, E.

McNair, L.

Alton of Liverpool, L.

Maddock, B.

Beaumont of Whitley, L.

Mar and Kellie, E.

Calverley, L.

Newby, L. [Teller.]

Carlisle, E.

Nicholson of Winterbourne, B.

Clement-Jones, L.

Razzall, L.

Craig of Radley, L.

Redesdale, L.

Dholakia, L.

Rodgers of Quarry Bank, L.

Ezra, L.

Russell, E.

Falkland, V.

Saltoun of Abernethy, Ly.

Gainford, L.

Smith of Clifton, L.

Halsbury, E.

Steel of Aikwood, L.

Hamwee, B.

Thomas of Gresford, L.

Harris of Greenwich, L.

Thomas of Walliswood, B.

Ilchester, E.

Thomson of Monifieth, L.

Jacobs, L.

Thurso, V. [Teller.]

Jenkins of Hillhead, L.

Tordoff, L.

Kintore, E.

Wallace of Saltaire, L.

Linklater of Butterstone, B.

Williams of Crosby, B.

Ludford, B.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Allenby of Megiddo, V.

Haskel, L.

Alli, L.

Hayman, B.

Amos, B.

Hilton of Eggardon, B.

Ampthill, L.

Hogg of Cumbernauld, L.

Archer of Sandwell, L.

Holderness, L.

Bassam of Brighton, L.

Hollis of Heigham, B.

Berkeley, L.

Howie of Troon, L.

Blackstone, B.

Hoyle, L.

Blease, L.

Hughes of Woodside, L.

Borrie, L.

Hunt of Kings Heath, L.

Bruce of Donington, L.

Irvine of Lairg, L. [Lord Chancellor.]

Bruntisfield, L.

Burlison, L.

Islwyn, L.

Carmichael of Kelvingrove, L.

Jay of Paddington, B.

Carter, L. [Teller.]

Jenkins of Putney, L.

Cledwyn of Penrhos, L.

Judd, L.

Clinton-Davis, L.

Kennet, L.

Cocks of Hartcliffe, L.

Lockwood, B.

Currie of Marylebone, L.

Lofthouse of Pontefract, L.

David, B.

McCarthy, L.

Davies of Coity, L.

McIntosh of Haringey, L. [Teller.]

Davies of Oldham, L.

Dean of Thornton-le-Fylde, B.

Mackenzie of Framwellgate, L.

Dixon, L.

Marsh, L.

Donoughue, L.

Mason of Barnsley, L.

Dormand of Easington, L.

Milner of Leeds, L.

Dubs, L.

Mishcon, L.

Evans of Parkside, L.

Molloy, L.

Ewing of Kirkford, L.

Monkswell, L.

Falconer of Thoroton, L.

Montague of Oxford, L.

Farrington of Ribbleton, B.

Morris of Manchester, L.

Fitt, L.

Murray of Epping Forest, L.

Gallacher, L.

Nicol, B.

Gilbert, L.

Orme, L.

Gordon of Strathblane, L.

Paul, L.

Goudie, B.

Peston, L.

Gould of Potternewton, B.

Pitkeathley, B.

Graham of Edmonton, L.

Plant of Highfield, L.

Greenway, L.

Ponsonby of Shulbrede, L.

Gregson, L.

Porter of Luddenham, L.

Grenfell, L.

Prys-Davies, L.

Hacking, L.

Ramsay of Cartvale, B.

Hardie, L.

Rea, L.

Hardy of Wath, L.

Rendell of Babergh, B.

1206

Roll of Ipsden, L.

Symons of Vernham Dean, B.

Sefton of Garston, L.

Taylor of Blackburn, L.

Serota, B.

Thomas of Macclesfield, L.

Sewel, L.

Thornton, B.

Shepherd, L.

Turner of Camden, B.

Shore of Stepney, L.

Uddin, B.

Simon, V.

Weatherill, L.

Simon of Highbury, L.

Wedderburn of Charlton, L.

Smith of Gilmorehill, B.

Whitty, L.

Stallard, L.

Williams of Elvel, L.

Stoddart of Swindon, L.

Williams of Mostyn, L.

Strabolgi, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.4 p.m.
Clause 12 [Failure of employer to allow access to records]:
Lord Haskel Lord Haskel moved Amendment No. 3:
Page 8, line 36, leave out ("subsection") and insert ("subsections (8) and").
The noble Lord said: My Lords, the three government amendments in this group are all technical amendments. They will complete and improve the Bill. They came to our attention only at this late stage. I hope that tabling them now will not inconvenience any of your Lordships. I have in any event written to the noble Baroness and the noble Lord, Lord Razzall, with an explanation of the amendments. A copy of those letters will be placed in the Library of each House. I beg to move.
On Question, amendment agreed to.
Clause 42 [Power to apply Act to individuals who are not otherwise "workers"]:
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 4:
Page 26, line 14, at end insert—
("( ) Nothing in regulations made under subsection (1) above shall cause to be treated as a worker for the purposes of this Act any person counted as self-employed for the purposes of his liability to income tax.").
The noble Baroness said: My Lords, I return to the amendment to which I spoke but which I did not move in Committee, because I was disappointed with the Minister's response. Time did not permit me to raise the matter on Report.
In his remarks, the Minister produced a totally untenable argument against a perfectly reasonable proposal which does not diminish the Bill in any way. But apart from that, his comments contained one irrelevant and inaccurate comment. I wish to deal with that minor point first, because I should not like to leave it on the record unanswered.
The amendment relates to persons who are genuinely self-employed and have been authoritatively recognised as such by a major government agency, the Inland Revenue. It seeks to ensure that such persons are not recategorised as employees for the purposes of this legislation by a regulation made by the Secretary of State under the wide powers that he is taking under Clause 42(a).
The fallacious point raised by the Minister was that the Government were following the approach used in the Employment Rights Protection Act 1996 by the previous government. He then asked:
"If it was right to do it then, why should we not do it in these circumstances?"—[Official Report, 22/6/98; col. 52.]
He also complained that I did not seek to address that point. I should like to do so right away.
The 1996 Act was not a Conservative Act; it was a consolidating Act. The provision to which the noble Lord referred was derived from the Employment Protection (Consolidation) Act 1978, which was passed by the previous Labour administration—old Labour—led by the noble Lord, Lord Callaghan. I believe that the Minister is indulging in a small piece of poetic licence when he claims that the Government are following the previous legislation.
In both the 1996 Act and the 1978 Act, an employee is identically defined as,
"an individual who has entered into or works under … a contract of employment".
Clause 42 of the present Bill covers a diametrically opposite situation. It covers an individual "who would not otherwise be a worker"—in other words, someone who has not entered into a contract of employment.
Turning to the substance of my amendment, I shall make the same point as I did in Committee, it is to be hoped more convincingly this time than previously, unless, as seems to be the case, in every aspect of the Bill the Government's ears and mind are closed to reasonable and constructive argument.
The Bill provides that the Minister may, by an administrative order, apply the Act to,
"any individual … who would not otherwise be a worker".
What a drastic power that is! Any individual, by administrative fiat, can be deemed to be an employee even though he and everybody else considers that he is self-employed. The Bill refers to "any individual", not just a category of people. The Secretary of State does not even undertake to consult with anybody before exercising this power.
The Government refused to accept the minor modification that I proposed at the previous stage. To save time, I do not intend to reintroduce it now. However, the wide sweeping powers being taken by the Secretary of State make this amendment essential. It provides the one important brake on his ability to act arbitrarily and even capriciously, and in fact, unnecessarily.
My amendment provides that where an individual has been recognised as self-employed by the Inland Revenue for taxation purposes, he shall be treated as self-employed for the purposes of the Act.
In Committee in the other place, the Minister for Small Businesses said that the Inland Revenue has no strict definition of self-employment, but it uses certain criteria. As a result, cases are decided individually. The noble Lord, Lord Clinton-Davis, in his reply to me said:
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"Self-employment for tax reasons is based on a number of tests designed to establish status on a case-by-case basis".—[Official Report, 22/6/98; col. 53.]
Ministers in both Houses of Parliament have, as your Lordships will see, agreed that before an individual is accepted by the Inland Revenue as self-employed, his claim to be such is carefully and thoroughly investigated. What is wrong with that? We do not disagree with the Minister exercising powers to close loopholes if he discovers any, but he may not throw out the baby with the bath water. If a person happens to be in a general category defined by the Secretary of State but is nevertheless an exception because he has satisfied the tax inspector that he is genuinely self-employed, then he is entitled to be excepted from that category.
The Government seem to have a paranoid fear that wholesale evasion will be attempted by what they call "unscrupulous employers". I have no doubt that there will be individual isolated attempts to evade the Act, and usually it will be by owners of small businesses. There are not too many large-scale devices that can be attempted and I shall certainly not put ideas into people's heads by suggesting some. However, again, the Government may well be right. Turning a genuine employee into a fictitious self-employed person could be one such route. However, I wonder by what stroke of arrogance the Department of Trade and Industry believes that it can devise loophole-proof secondary legislation more effectively than the Inland Revenue with all its vast experience of dealing with evasion?
Why should the DTI want to take on the highly technical job of drafting the anti-evasion regulations when, if the Secretary of State follows the recommendation of the Low Pay Commission—and it is the Low Pay Commission recommendations that I am talking about—it will be the Inland Revenue, combined with the contributions agency that will be responsible for the enforcement of the Act? Does the Secretary of State seriously suggest that the civil servant in the new revenue department should apply a different and perhaps inconsistent set of rules and guidelines, depending upon what hat he is wearing? Why should regulations drafted by the inexperienced DTI be more effective than the machinery that the Inland Revenue already has in place, with its vast backlog of precedents and guidelines? Believe me, persuading the Inland Revenue that a taxpayer is self-employed is no pushover. As the two Ministers have admitted, each case is carefully examined on its merits. That is a more effective method than what the Secretary of State proposes—a shotgun approach which catches everything in its path, whether or not justified.
Then there are the highly technical concepts to determine whether a person is an employee or a self-employed contractor. There is the control test, the integration test, the economic reality test, the mutuality of obligation test, the mixed or multiple test. I hope that no one will ask me to explain what those are because I do not have the foggiest idea. But I am advised that those are the kind of arcane problems that employment tribunals wrestle with in determining the same question of whether someone is an employee or whether that person is self-employed.
I have a whole page with a finely printed list of legal precedents of such cases that have reached the High Court. I confess that I have not read the whole page in detail, but I have it.
Is the Secretary of State seriously proposing to ignore all the previous rulings by the courts and set his own tests when he frames his regulations? Of course he is not. So what is the problem about accepting the ruling by the Inland Revenue, in the case of an individual, that it has ascertained, after careful inquiries, that he is indeed a genuinely self-employed person? I think there is none, except for the desire by the Secretary of State to keep everything possible in his own hands within his own empire, to re-invent the wheel and ignore legislation and court rulings that are tried and tested and that have been effective for many years.
There is this strange fear in the minds of the Government that there are all these unscrupulous employers out there simply waiting to find some complicated device to avoid the Act. But does the Secretary of State suggest that in according self-employed status to an individual tax payer—and I stress individual—the tax inspector and the employer are co-conspirators to evade the Act? Whatever the Secretary of State's motivation, one simple fact is clear. If the Inland Revenue has carefully vetted a person and has concluded that he definitely is self-employed, then that to any reasonable person should be conclusive. If the Secretary of State feels the need to make a general anti-avoidance regulation, then he can still do so. My amendment does not prevent that. He can still decide, for example, whether a milk roundsman—a fast disappearing breed—operating on a franchise from a wholesale dairy is self-employed or whether he is part of a subterfuge by the dairy. He can still decide whether minicab drivers and motor cycle messengers are employed or self-employed.
All my amendment does is to protect a person whose case has already been carefully examined in detail on behalf of the Government via the Inland Revenue, by giving him an exemption from being cast in the same mould as the evaders that the Secretary of State is trying to catch. It is totally incongruous that the definition of whether a person is self-employed can vary according to which department he is dealing with. This amendment simply asks that persons who are self-employed in the assessment of one branch of government should not be regarded as employees by another. I beg to move.
4.15 p.m.
Lord Haskel: My Lords, there will always be a grey area between employment and self-employment and the distinction is not always drawn in the same place for income tax purposes as it is in employment law. For employment purposes we have employment law; for income tax purposes we have income tax law. Indeed, for employment law purposes, we have adopted the Employment Rights Act 1996.
The noble Baroness says that it was a consolidated Act, but let me point out that the previous government adopted it and acted as if it was in force. Indeed, the definition of "worker" in the Act comes originally from
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the Wages Act 1986, also during the previous government's administration. So it would appear that the previous government accepted what was laid down in the Employment Act 1996 and this is what the minimum wage Bill seeks to continue.
The noble Baroness raised the point about the Inland Revenue and the contributions agency, defining what is and what is not a self-employed person. As she told us, they produce a pamphlet listing the kinds of things which will help to determine whether an individual is employed or self-employed, for the purposes of assessing his or her income tax and national insurance contributions. It is the national insurance contributions which are important. Factors to be considered are whether a person risks his or her own money in the business, whether he or she is free to hire other people, whether he or she is paid at regular intervals and so on. The amendment, though intended to clarify the position, would not do so.
The amendment seeks to tie the Bill to the definition of self-employment used in tax law. But your Lordships know that there are many ways of blurring the line between bogus and genuine self-employment. It is precisely because of that uncertainty that we need the flexibility provided by the clause. Of course, it may not be used. If it is not used, that will mean that we will have reached the conclusion, in the light of experience, that we have covered all those who should be covered and, more significantly, no one has sought to re-define their employment relationship to escape the provisions of the Bill. But we may need to use it. If we do, we should certainly not be tying ourselves on the face of the Bill to criteria which are used in a different context of tax law.
The noble Baroness asks why the Inland Revenue laws should not apply to employment. The answer is simple. Self-employment for tax purposes is based on the tests which we have already discussed. Those tests are established on a case-by-case basis. In most cases it will be perfectly clear whether someone is or is not self-employed for both tax and minimum wage purposes. However, there will be questionable cases and it is not sensible to tie employment law to criteria drawn up for tax purposes where there is any question of uncertainty.
In reality, the labour market is very complex and the way to deal with that fact is to follow the established precedent in employment law as we have already done and to build in the flexibility to extend coverage if that proves necessary. That we have done by providing the power in Clause 42. Any regulations made under that power are subject to affirmative procedure and would therefore be scrutinised by this House. The noble Baroness therefore has the safety mechanism she seemed to want.
We have had quite a bit of debate on this important subject. There has been correspondence between myself and the noble Baroness. She kindly responded only this morning to my letter. However, for the reasons I set out, I urge the House to reject the amendment. It is not right to have employment law dealing with tax matters and

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tax law dealing with employment matters. Employment law should deal with employment and tax law deal with tax.
Baroness Miller of Hendon: My Lords, I thank the Minister for his response. I am glad I had the opportunity of correcting on the record the point I made in relation to the Employment Rights Act 1996. I accept what the noble Lord said—that, nevertheless, the last Conservative government accepted that. But I wanted to make the point that it was a consolidating Act following a Labour Act, because when the Minister responded in Committee, he made a great deal of the fact that I was trying to reverse something that we, as a Conservative Government, had brought in. I do not agree with the Minister, but I know he responded with great sincerity.
In view of the fact that the regulations will be introduced by statutory instrument and there is a safeguard, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 [Power to apply Act to offshore employment]:
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 5:
Page 26, leave out line 28.
On Question, amendment agreed to.
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 6:
After Clause 45, insert the following new clause—
EXCLUSION OF DISABLED PERSONS AND EMPLOYMENT FOR THERAPEUTIC PURPOSES
(" .—(1) The Secretary of State may, after consultation with the Low Pay Commission, make an order exempting disabled persons from the provisions of this Act.
(2) An order under subsection (1) above shall provide for the issue of permits by the Secretary of State to those persons whom he believes to be disabled and may make provision for—

(a) the procedure for applying for and issuing such permits;

(b) the procedure for establishing the minimum wage to which each permit holder shall be entitled (being less than the single hourly rate prescribed under section 1(3) of this Act);

(c) the appointment by the Secretary of State of suitably qualified persons to assess such applications; and

(d) the procedure for appealing against a refusal to issue such a permit.

(3) No person shall be guilty of an offence under this Act in respect of an employee who holds a permit issued in accordance with an order made under this section.
(4) For the purposes of this section, a person is disabled if he is so affected by physical injury or mental deficiency or infirmity due to age or any other cause as to be incapable of earning the national minimum wage.
(5) A person whose employment is primarily undertaken for the purpose of therapy and whose employer is a non-profit-making organisation does not qualify for the national minimum wage in respect of that employment.").
The noble Baroness said: My Lords, I have to return to this amendment which was raised at both Committee and Report stages of the Bill, despite the fact that it was fully discussed on both occasions. I shall do so as briefly as possible because I do not wish to take up your
1212
Lordships' time with repetitive arguments, nor do I wish to put the Minister to the trouble of reiterating the responses that he gave.
Subsections (1) to (4) enable disabled individuals to make personal applications to be exempted from receiving the national minimum wage. I am talking about individuals, not wholesale exemptions of whole categories of disabled persons. In other words, I am not referring to all persons who may have lost a limb, have impaired sight or have one of the many other disabilities with which so many unfortunately are afflicted.
The difference between me and the Government on this clause is that the Government believe that the exemptions for which I am seeking to provide are discriminatory against disabled workers, whereas in fact I am trying to help them overcome one of the obstacles that may stand in the way of their obtaining a job. I repeat—and stress again because it is important—that nothing happens under this clause unless the worker wishes it to do so and unless he and he alone initiates the procedure. In other words, nothing happens unless the worker of his own free will wishes it to. The Government should not stand in the way of that free choice.
The procedure I propose is very stringent, so that even if a worker decides to apply for exemption, he must pass a stringent test to justify his request. The Secretary of State must make whatever regulations he deems appropriate and install whatever procedures he considers appropriate. I believe that he already has the machinery in place, utilised by the Department of Social Security for the purpose of determining whether a person qualifies for a disability allowance. I am not suggesting that the receipt of disability allowance gives automatic right to exemption. I repeat, every case must be the subject of an individual application by the person concerned and must be subjected to individual, independent scrutiny.
I ask the Government to think again before it is too late. Insistence on the rigid concept of universality for those who do not want it—persons who simply want a job, not necessarily for the sake of the wage—far from being discriminatory, may operate against those very persons the Government say they are trying to help.
That is not just my view. The Minister received a letter from the noble Lord, Lord Rix, who, without wishing to be drawn into what he saw as a political dispute, expressed doubts about the benefits of refusing to allow disabled persons exemption. That letter is the reason why I return to this amendment after the two previous debates on it. The letter throws an independent, non-partisan and non-political light on the matter.
When I say "non-political", I refer equally to the absence of the Government's political agenda and my party's views. It emerged that the letter of the noble Lord, Lord Rix, sent shortly before Report stage had not percolated through the ministry's postal system before the debate. The Minister therefore on that occasion had not received it. I gave him the copy that I had received and, despite his trip to Brazil immediately following the last stage, I hope that he has now had time to consider

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it. It is an independent assessment from an unbiased source, to which the government really ought to give serious and sympathetic consideration.
I will not take up your Lordships' time further by discussing subsection (5) which is to give exemptions to workers who are employed for therapeutic purposes—those who are working in hospital or in community homes or day centres—where the object of the work is not the wages but the medical benefit that the patient receives. I accept that some such so-called workers are not within the definition of this Bill, but some are, and what I am asking—for reasons that I fully explained to the Minister on both previous occasions—is that if they are genuinely employed, not by an unscrupulous employer but by a non-profit making organisation, they should similarly be exempted.
I seriously believe that had the Government's blueprint for this Bill not been that of universality, with no exemptions, then they themselves would have included a similar provision in the Bill, and I urge them to accept the amendment. I beg to move.
Lord Monson: My Lords, If the Government want to show that they are a caring government, they should accept this amendment. Let me try to reinforce the argument of the noble Baroness, Lady Miller, and my noble friend Lord Rix.
Consider one of the least demanding jobs in contemporary Britain—collecting trollies from the carpark of a supermarket and wheeling them back to the front of the store. That job requires no mental or arithmetic ability, no skill at dealing with difficult customers and relatively little physical strength. A totally illiterate adult could do the job, as could most children of 12. It is a perfect job for someone who wants to earn a bit of pocket money, feel useful, likes mixing with other employees or wants to work in the open air but, by virtue of disability, is too slow to do the job as effectively as a younger, fit person. An employer may not find him or her worth employing at £4 an hour, including employers' national insurance contribution, but just may find it worth employing them at £2.50 or £3 an hour, including contributions. What good would it do to deprive such an eager individual of employment opportunities?
4.30 p.m.
Lord Clinton-Davis: My Lords, the noble Baroness is quite right to say that this is a difficult, complex and highly sensitive matter. If I may say to the noble Lord, Lord Monson, the mere fact that we disagree—I hope that he will listen carefully to our views, which are not wholly in accord with his—does not mean that we are an uncaring government. There is not a necessary co-relation between that difference of view and what he had to say.
This is an extremely important matter. The noble Baroness is quite right, there has been some correspondence between us. Unfortunately, I had not received the letter by the start of this debate. I made thorough inquiries. Apparently it arrived in the office at about four o'clock that afternoon and it was not
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possible, through the machineries that are deployed, to bring it to my attention. In any event, I would not have been able to give it, there and then, the studious attention that it demanded. However, we have had an opportunity to exchange correspondence. The noble Baroness has had a letter from me today following my return; I think it is on the noticeboard. At all events, I signed it off soon after I returned to the office this afternoon.
I will endeavour to go through the points with some care, notably because the whole House appreciates the deep concern and commitment of the noble Lord, Lord Rix. He wrote to me, but not at the time that the noble Baroness thought; his letter arrived on the day of our debate last week.
The Low Pay Commission and the Government have given this issue a great deal of careful thought. We are at one as far as the principle is concerned; we all want to ensure that the right thing is done for disabled workers, including those with severe disabilities. There is no difference of opinion between us on that point. We believe, as does the Low Pay Commission, in the broad principle of ensuring equal treatment for disabled workers. My noble and learned friend Lord Falconer, when he spoke to this matter on Report, made it clear that it was absolutely fundamental that disabled people should not be discriminated against in the workplace.
When the Low Pay Commission consulted very widely on this matter with a whole host of organisations, including Mencap, which represented disabled people, the overall response was a strong welcome for the application of the national minimum wage to disabled people. The commission's report supports that principle by affirming that disabled workers should be treated in the same way as other workers in qualifying for the national minimum wage. We agree with the culture of social inclusion that it has emphasised.
As the noble Lord, Lord Rix, has indicated, and as the noble Baroness pointed out on Report, there are concerns that some individual employers of disabled workers might decide to discontinue offering them employment. That is the point that the noble Lord, Lord Monson, made a few moments ago. I prefer not to receive that message from the report of the Low Pay Commission; that is not what it found or anticipated. However, I do not deny that it is a possibility—just as the setting of the minimum wage at a level which was not sensible could begin to affect employment much more generally. We think we have avoided that position. We believe that employment will not be adversely affected, as indeed does the Low Pay Commission. We believe that the employment of disabled people will not be affected by the inclusion of this provision, but there may be some employers who will balk at it. I hope that employers who are prepared to offer employment to disabled or severely disabled workers will not see a national minimum wage at the proposed level as a reason to change their minds.
My noble and learned friend Lord Falconer emphasised last Monday when we debated this issue that there is a support mechanism in any event. There is the supported employment programme, which helps about

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22,000 people with severe disabilities to obtain or retain jobs in open employment, and government funding is being maintained at more than £155 million for 1998–99 for that programme. It is operated by the Department for Education and Employment. I am not able to go into all the details because it is the responsibility of that department. We shall monitor carefully what happens on the supported employment programme to ascertain whether appropriate help for disabled employees is available during the introduction of the national minimum wage.
Let me refer specifically to the letter from the noble Lord, Lord Rix. Arising out of that, the noble Baroness has asked two specific questions: first, whether arrangements for paying disabled workers below the rate of the minimum wage would be illegal. She has asked that on a previous occasion. The answer is yes, it would be, in just the same way as arrangements for paying any worker below the rate would be.
She also asked whether the function of the minimum wage is to lay down some rules at one end of the spectrum and not to rule out provision at the other end. I can only emphasise again that our whole approach is an inclusive one. It is not based on different rules for some workers and not others, and that includes disabled workers.
As to the amendment, the new clause would give the Secretary of State the power to exempt disabled persons from the national minimum wage after consulting with the Low Pay Commission; it appears to provide a power to exempt disabled persons as a class. Previous versions provided for an elaborate permit-granting machinery for individual exemptions. That would have been very bureaucratic and the noble Baroness has departed from that view.
We believe that the new clause is unnecessary. The power to exempt or provide a modified rate for descriptions of persons, including disabled persons, is already available in Clauses 3 and 4 of the Bill. It is also over-prescriptive. It requires consultation with the Low Pay Commission before making such an exemption or modification. The Government see no need to exercise such a power in the light of the very clear message from the Low Pay Commission.
The Government are committed to consulting on the regulations for implementing the minimum wage and we shall ensure that organisations dealing with disabled persons, including Mencap, are invited to respond. If following that consultation there were to emerge a radically different response from the organisations representing the disabled, we would certainly reconsider how to proceed. I do not expect that to be the case but I can give the House that clear undertaking on behalf of the Government.
The whole situation needs to be kept under review. I have already said that we will ask the Low Pay Commission to monitor and evaluate the impact of the minimum wage. Included in that will be the position of people suffering from disabilities who are in work. The
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amendment is unnecessary. It does not add to the powers already potentially available under the Bill. I hope that the noble Baroness will not proceed with it.
Baroness Miller of Hendon: My Lords, I thank the Minister for his reply. The fact that he said that the amendment is unnecessary because Clauses 3 and 4 deal with the matter and that it will be kept under review gives me some comfort.
I am sure that both the Government and Her Majesty's Opposition have the same object in view, to do the very best we can for disabled people. We feel that our way would be better in that it would give a definite enabling power. I am certainly content with the Minister's reply that the matter will be dealt with and kept under continual review, and that Clauses 3 and 4 will be adequate. I imagine that the noble Lord, Lord Rix, will be satisfied with that response. In view of that, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 7:
After Clause 51, insert the following new clause—
ANNUAL REPORTS ON OPERATION OF MINIMUM WAGE
(".—(1) The Secretary of State and the Chancellor of the Exchequer acting jointly shall lay before Parliament an annual report on the operation of the national minimum wage and of this Act as described in subsection (3) of this section.
(2) The Low Pay Commission may from time to time make a report to the Secretary of State on such matters relating to the operation of the national minimum wage and of this Act as seem to them to be appropriate and the Secretary of State shall lay any such report before Parliament except in so far as it is contained in the current or most recent report made pursuant to subsection (1) of this section.
(3) The report under subsection (1) of this section shall, and the report of the Low Pay Commission under subsection (2) may, include an assessment of the effect of the national minimum wage and the provisions of this Act on—

(a) competitiveness and economic growth in the United Kingdom generally;

(b) the balance of economic activity between the various regions of the United Kingdom;

(c) the actual wage rates of the lowest decile of employed persons, and their relationship with rates paid to other employed persons;

(d) the level of unemployment and of welfare benefits related to unemployment;

(e) the relationship between the rate of the national minimum wage and the tax and national insurance contributions then in place;

(f) training and labour markets;

(g) small businesses;

(h) persons with learning difficulties or physical disabilities; and

(i) persons of different ages.

(4) The Chancellor of the Exchequer, acting in consultation with the Secretary of State, shall include in the Financial Statement and Budget Report an assessment of the cost of the national minimum wage to Her Majesty's Government in respect of employment costs in the public sector.
(5) The reports made under subsections (1) and (2) of this section need not be confined to the matters referred to in subsection (3).").
The noble Baroness said: My Lords, I did not move this amendment on Report because of the lateness of the hour. As I have said previously, the time that had been allocated to Report stage had been seriously eroded by two ministerial Statements. When I moved this amendment in Committee—it was then Amendments Nos. 124 and 125—I was both surprised and disappointed that they were emphatically rejected by the Government, especially after the Solicitor-General began his remarks by confirming:
"As with all government policies, we will wish to evaluate the effect of producing a minimum wage in full, which is likely to include most, if not all, areas listed in the proposed new clause".—[Official Report, 22/6/98; col. 76.]
The noble and learned Lord then went on to criticise the proposed new clause on the ground that it might not be exhaustive enough, although I should like to point out to your Lordships that my shopping list did not limit the matters which might be included in the reports. Despite having agreed just a few moments earlier that the Government would, indeed, be collating the necessary data for the purpose of their own evaluation, the Minister then went on to say (col. 77) that converting that into a report,
"would be, an extremely time-consuming exercise".
I cannot agree that with all the resources available to the DTI it is not possible to convert the evaluation into a report to Parliament. I also cannot agree that the department should be in possession of relevant data which it is unwilling to share with Parliament. What are the Government saying? Are they saying that there are some results of government policy and activity that are none of the business of Parliament?
In the 15 months that the Government have been in power, there have been numerous complaints that they are trying to marginalise Parliament. A leading article in the Daily Telegraph on 1st July on another topic commented:
"ever since it won the election, this Government has shown a remarkable aversion to Parliamentary scrutiny".
Is the refusal to provide information on the effects of this Act another manifestation of that policy or is it that the Government already know that the results of passing this Bill will be job losses, as conceded by the Deputy Prime Minister; wage inflation, as feared by the Chancellor of the Exchequer; and the closure of many small businesses? Knowing that, is it not a fact that the Government would like to keep away from Parliament and the public the news that this plank in their election manifesto was such a disaster, as we have predicted?
I am not just making a party political point here, because the Solicitor-General also said in the very same paragraph:
"An annual report from the Secretary of State and the Chancellor specifically on the national minimum wage could easily become seen as part of the annual pay round and lead to expectations of annual increases".
And there I believe you have it. That is a clear admission from the Government that the national minimum wage is likely to lead to wage inflation. It is a clear admission that our predictions about the national minimum wage leading to claims to restore differentials are correct. It is a clear admission that the predictions
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to the same effect which were made by the noble Lord, Lord Healey, are correct. Do the Government really believe that sweeping their internal evaluations under the carpet will prevent the information getting out? Not only does Whitehall leak like the proverbial sieve, but the media simply swarms with analysts who will produce their own evaluations in every Sunday newspaper, every financial journal, and on whichever television programme thrusts a microphone under someone's nose. Those evaluations would be better based on real facts rather than on the edited morsels which are dropped from ministerial desks.
Returning to the Minister's objection about the preparation of such a report being, in his words, "time-consuming", perhaps he also meant that it would hence be costly. Last month, in reply to a Written Question from me, the noble Lord, Lord McIntosh of Haringey, informed me that the cost of the new Strategic Communications Unit based in No. 10 was estimated to be half a million pounds a year. I am not sure exactly what the Strategic Communications Unit is supposed to do, but I suggest that using part of its large budget to assist in communicating to Parliament the effects of this major piece of government strategy would be very good value for money—and rather better than providing an endless supply of ministerial hymn sheets.
I began by expressing my disappointment that the Government had not accepted my amendment at an earlier stage. That was for two reasons. It was first and foremost because the amendment would in no way interfere with the operation of the Act. It would in no way diminish the rights of any worker. It would in no way affect whatever the Government conceive to be the objectives and principles of this Bill.
My second reason was that this Government were elected on a manifesto which said:
"We are pledged to a Freedom of Information Act, leading to more open Government and an independent statistical service",
yet here they are, refusing to guarantee to make public information which relates to this Bill, and, in this case, statistical information to boot.
In our earlier debate on this amendment, I reminded your Lordships of the opening words of the Government's recent White Paper on freedom of information, which stated:
"Unnecessary secrecy in Government leads to arrogance in governance and defective decision making".
I also reminded your Lordships of the Prime Minister's preface to that White Paper in which he stated:
"the traditional culture of secrecy will only be broken down by giving the people of the United Kingdom a legal right to know".
The trouble is that Oppositions are always in favour of freedom of information Acts, but, when they become the Government, all the Sir Humphreys talk them out of it. This Government keep on pledging, "We keep our promises". In fact, they do not. But here is one case where they could do so easily—and where we expect them to do so.
Last Thursday, when dealing with the business of the other place, the President of the Council was asked about when the draft freedom of information Act would be available. She reiterated the Government's

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commitment to freedom of information which she reminded the other place was one of their manifesto pledges. Now is the opportunity, without waiting for that Act, for the Government quickly to fulfil a specific promise.
Perhaps I may close by reverting to the Minister's plea that, preparing
"such a report would be an extremely time-consuming exercise".
How much more time-consuming and expensive will it be if, instead of producing a comprehensive report, Ministers continually have to answer a series of searching questions at the Dispatch Box?
I urge the Minister to accept an amendment which does no harm at all to the Bill but which will add to the credibility of the Government's confidence in their policy in bringing in this measure. I beg to move.
4.45 p.m.
Lord Razzall: My Lords, before the Minister responds to the noble Baroness, Lady Miller of Hendon, perhaps I may comment on behalf of the Liberal Democrat Benches. As the Minister knows, we have always been in some difficulty as the Bill has proceeded through the House in that we are fundamentally in favour of it and believe that it is a core plank of both the newly elected Labour Government and, indeed, of the Liberal Democrats. We very much support the introduction of the minimum wage. However, there have been moments in the course of both the Committee and Report stages when we have—dare I say it?—been seduced by the eloquence and charm of the noble Baroness, Lady Miller, and have supported her in amendments, on some occasions to the chagrin of the Minister. Indeed, when I listened to the siren voice of the noble Baroness talking about how Oppositions, always believe in freedom of information Acts until they become the Government, I wondered whether I dare remind her that after 18 years it may be somewhat hypocritical to use that argument the other way round.
I return, however, to this National Minimum Wage Bill. The Minister is well aware that, although we fundamentally agree with this Bill, we part company from the Government in that we have argued consistently that we want the Low Pay Commission to have permanent status. Furthermore, we should like the commission to produce annual reports to Parliament. We have argued for that because we believe that once the national minimum wage is enshrined in legislation—as we hope that it will be this week—the political debate should be taken out of the agenda so that we can have a much more technical debate in future years and thus avoid the partisan political debate that has ensued not only in this country in the past few months, but also in other countries which already have a minimum wage.
However, I must advise the noble Baroness that I do not think that the Liberal Democrat Benches can support her on this amendment. It goes far too far in prescribing the requirements on the Chancellor of the Exchequer and the Secretary of State in producing the report. As I have said, we are in favour of the Low Pay Commission having permanent status and making regular reports to
1220
Parliament. As I said on Report, we hope that the Minister will go the extra inch and finally confirm that the Low Pay Commission will be given permanent status. If that is the case the permanent status of the Low Pay Commission will produce a regular reporting mechanism which will need to be flexible in future and not prescribed in the way set out in the amendment moved by the noble Baroness. On this occasion I am afraid that we are unable to support the amendment.
Lord Falconer of Thoroton: My Lords, the noble Baroness moved a similar amendment in Committee. She will not be surprised to hear that the position of the Government has not changed since then. I am very glad to hear that the Liberal Democrats have managed to escape from the mesmerising advocacy of the noble Baroness. One can understand how someone can be mesmerised by it.
The Government have no argument with the need for monitoring. It is important to monitor the effects of any new legislation, especially in an area as important as this, when the country has never before had a universal statutory minimum wage. As with all policies, the Government wish to evaluate fully the effects of introducing a national minimum wage. That is likely to include most, if not all, of the areas listed in the new clause that is proposed by the noble Baroness. The amendment also envisages a permanent role for the Low Pay Commission in continuing to monitor the impact of the minimum wage.
To answer the point raised by the noble Lord, Lord Razzall, the Government have made clear in publishing the report of the Low Pay Commission that they wish the commission to continue to monitor and research the impact of the minimum wage following its introduction. The criteria listed in the new clause appear to be sensible, although perhaps not exhaustive. Given time, doubtless we could all come up with matters that could be added. One of the reasons why I ask the House to oppose this amendment if pressed—a point made by the noble Lord, Lord Razzall—is that it is unnecessary and over-rigid to prescribe in primary legislation when, how and who should monitor and report on the impact of legislation.
Furthermore, however significant the matters involved, it is important to recognise, as the noble Baroness appears to acknowledge, that the production of such a report will be an extremely time-consuming exercise. Its contents may also overlap with other government documents, notably the competition White Paper and to some extent Budget documentation. Therefore, we believe that it is preferable to leave this matter open. An annual report by the Secretary of State and the Chancellor specifically on the national minimum wage could easily be seen as part of the annual pay round and lead to expectations of annual increases.
I said that also at Committee stage, and uncharacteristically the noble Baroness misunderstood it. It could lead to expectations of annual increases in relation to the national minimum wage, which I am quite sure the noble Baroness would not want.

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I move to the role of the Low Pay Commission. The amendment appears to presume that the commission will be able to initiate its own work and make reports rather than wait for matters to be referred to it by the Secretary of State. I should make clear again that the Government fully appreciate the work that the commission has carried out in making its report. I have already indicated that the Government wish the commission to continue to monitor and report on the impact of the minimum wage following its introduction. The position envisaged by the amendment goes somewhat beyond what the commission was asked to do in its first report. The commission envisaged by this amendment would have the power to report on everything on its own initiative, including a whole range of matters raised and debated previously both in this House and in another place at various times during the passage of this Bill.
I find it strange that the noble Baroness should support such a powerful and unaccountable body. This runs counter to other previous amendments that have sought to constrain and limit the power of the Low Pay Commission. I assure noble Lords that the Government envisage the role of the commission as being task-oriented, not unlimited. It is right that Ministers, as elected representatives accountable to Parliament, should be responsible for the setting of those tasks, one of which is monitoring. It is in order to maintain the task-oriented focus that essentially the commission must be reactive, not proactive. The commission must be independent in reaching its view but its ongoing activity should be within the framework set by politicians. For the purposes of administration and accountability there are good reasons for this arrangement.
We shall continue to monitor the effects as we do for all legislation and policies. Continued monitoring can take place through departmental research, ad hoc surveys and calling on the services of the commission itself. No doubt that monitoring process will feed into the consideration of any future variation or uprating of the level. I believe that the amendment goes beyond what is a common sense structure for the commission's activities and places unnecessary reporting obligations on the Government.
There is absolutely no intention whatever to marginalise Parliament in this respect; nor is this a matter of freedom of information. This matter is concerned with keeping under review economic circumstances. One must remember that the Government give a long and detailed report on the economy every year in the Budget. That report is accompanied by substantial red books. I believe that it is misleading and mistaken to say that this is an issue of freedom of information. I therefore ask that if given the opportunity this House should reject the amendment if the Opposition wish to press it.
Baroness Miller of Hendon: My Lords, I thank the noble and learned Lord for his response. I am sorry that my drafting of the amendment was too prescriptive so that the noble Lord, Lord Razzall, was not mesmerised by my words and could not support the proposal that there should be a report. I am interested in the response
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of the noble and learned Lord but I do not accept it. In this particular case I should like to test the opinion of the House.
4.56 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 66; Not-Contents, 149.

Division No. 2

CONTENTS

Ailsa, M.

Kinnoull, E.

Ashbourne, L.

Kintore, E.

Attlee, E.

Lucas, L.

Bauer, L.

Lyell, L.

Beloff, L.

Mackay of Drumadoon, L.

Boardman, L.

Mersey, V.

Brabazon of Tara, L.

Miller of Hendon, B.

Braine of Wheatley, L.

Monson, L.

Brougham and Vaux, L.

Mountevans, L.

Campbell of Croy, L.

Mowbray and Stourton, L.

Carew, L.

Munster, E.

Carnegy of Lour, B.

Newall, L.

Clanwilliam, E.

Newton of Braintree, L.

Coleraine, L.

Norrie, L.

Craig of Radley, L.

Northesk, E.

Crickhowell, L.

Orr-Ewing, L.

Davidson, V.

Palmer, L.

Denton of Wakefield, B.

Park of Monmouth, B.

Dixon-Smith, L.

Pilkington of Oxenford, L. [Teller.]

Dundonald, E.

Ellenborough, L.

Porter of Luddenham, L.

Elliott of Morpeth, L.

Rawlings, B.

Fookes, B.

Saltoun of Abernethy, Ly.

Gardner of Parkes, B.

Seccombe, B. [Teller.]

Selkirk of Douglas, L.

Glentoran, L.

Sempill, L.

Gray of Contin, L.

Sharples, B.

Harding of Petherton, L.

Soulsby of Swaffham Prior, L.

Harlech, L.

Stair, E.

Harris of High Cross, L.

Strange, B.

Harrowby, E.

Torphichen, L.

Hooper, B.

Waddington, L.

Hunt of Wirral, L.

Wilcox, B.

Jopling, L.

Young, B.

NOT-CONTENTS

Addington, L.

Currie of Marylebone, L.

Allenby of Megiddo, V.

David, B.

Alli, L.

Davies of Coity, L.

Alton of Liverpool, L.

Davies of Oldham, L.

Amos, B.

Dean of Beswick, L.

Archer of Sandwell, L.

Dean of Thornton-le-Fylde, B.

Barnett, L.

Desai, L.

Bassam of Brighton, L.

Dholakia, L.

Berkeley, L.

Dixon, L.

Blackstone, B.

Donoughue, L.

Blease, L.

Dormand of Easington, L.

Borrie, L.

Dubs, L.

Brooke of Alverthorpe, L.

Eatwell, L.

Bruce of Donington, L.

Evans of Parkside, L.

Burlison, L.

Ewing of Kirkford, L.

Calverley, L.

Falconer of Thoroton, L.

Carlisle, E.

Falkland, V.

Carmichael of Kelvingrove, L.

Farrington of Ribbleton, B.

Carter, L. [Teller.]

Fitt, L.

Cledwyn of Penrhos, L.

Gallacher, L.

Clement-Jones, L.

Gilbert, L.

Clinton-Davis, L.

Gladwin of Clee, L.

Cocks of Hartcliffe, L.

Gordon of Strathblane, L.

1223

Goudie, B.

Montague of Oxford, L.

Gould of Potternewton, B.

Morris of Manchester, L.

Graham of Edmonton, L.

Murray of Epping Forest, L.

Gregson, L.

Nicol, B.

Grenfell, L.

Orme, L.

Hacking, L.

Paul, L.

Hamwee, B.

Peston, L.

Hanworth, V.

Pitkeathley, B.

Hardie, L.

Plant of Highfield, L.

Hardy of Wath, L.

Ponsonby of Shulbrede, L.

Harris of Greenwich, L.

Prys-Davies, L.

Haskel, L.

Puttnam, L.

Hayman, B.

Ramsay of Cartvale, B.

Hilton of Eggardon, B.

Randall of St. Budeaux, L.

Hogg of Cumbernauld, L.

Razzall, L.

Hollick, L.

Rea, L.

Hollis of Heigham, B.

Redesdale, L.

Hooson, L.

Rendell of Babergh, B.

Howie of Troon, L.

Rodgers of Quarry Bank, L.

Hoyle, L.

Roll of Ipsden, L.

Hughes, L.

Russell, E.

Hughes of Woodside, L.

Sefton of Garston, L.

Hunt of Kings Heath, L.

Serota, B.

Hylton, L.

Sewel, L.

Irvine of Lairg, L. [Lord Chancellor.]

Shepherd, L.

Shore of Stepney, L.

Simon, V.

Islwyn, L.

Simon of Highbury, L.

Janner of Braunstone, L.

Smith of Clifton, L.

Jay of Paddington, B.

Smith of Gilmorehill, B.

Jenkins of Hillhead, L.

Steel of Aikwood, L.

Jenkins of Putney, L.

Stoddart of Swindon, L.

Judd, L.

Strabolgi, L.

Kennet, L.

Symons of Vernham Dean, B.

Linklater of Butterstone, B.

Taylor of Blackburn, L.

Lockwood, B.

Thomas of Gresford, L.

Lofthouse of Pontefract, L.

Thomas of Macclesfield, L.

Longford, E.

Thomas of Walliswood, B.

Ludford, B.

Thomson of Monifieth, L.

McCarthy, L.

Thornton, B.

McIntosh of Haringey, L. [Teller.]

Thurso, V.

Tope, L.

Mackenzie of Framwellgate, L.

Tordoff, L.

Mackie of Benshie, L.

Turner of Camden, B.

McNair, L.

Uddin, B.

Mar and Kellie, E.

Walker of Doncaster, L.

Mason of Barnsley, L.

Wallace of Saltaire, L.

Merlyn-Rees, L.

Wedderburn of Charlton, L.

Meston, L.

Whitty, L.

Milner of Leeds, L.

Williams of Crosby, B.

Mishcon, L.

Williams of Elvel, L.

Molloy, L.

Williams of Mostyn, L.

Monkswell, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.6 p.m.
Clause 55 [Meaning of "worker", "employee" etc.]:
[Amendment No. 8 not moved.]
Schedule 1 [The Low Pay Commission]:
Lord Haskel Lord Haskel moved Amendment No. 9:
Page 36, line 21, leave out ("in writing").
On Question, amendment agreed to.
Lord Clinton-Davis: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Clinton-Davis.)
Baroness Miller of Hendon: My Lords, this is the last occasion on which this Bill will be before your
1224
Lordships' House, assuming, that is, that the other place has the good sense to accept the very moderate and eminently reasonable amendment that was approved last Monday. For my part, it is rather like saying "goodbye" to an old acquaintance, because I have been involved in my researches, discussions with interested parties and writing my notes since before Easter.
I ask your Lordships' indulgence to enable me to add a few words to the thousands that I have spoken at the various stages of the Bill. I must first say that I am disappointed by the manner in which the Bill has been dealt with by the Government; not, I hasten emphatically to say, by the Front Bench in this House. They have been thoroughly professional and have extended me every courtesy that I could have wished for. At this stage, perhaps I may extend my sincere congratulations to the noble Lord, Lord Clinton-Davis, on his becoming a Privy Counsellor. I am sure that Her Majesty's Opposition and indeed the whole House will agree with me in my sentiments. More than that, despite our differences of opinion, I believe that our debates have been conducted in a friendly and good-humoured way. The noble Lord, Lord Clinton-Davis, the noble and learned Lord the Solicitor-General and the noble Lord, Lord Haskel, have contributed very much to that.
In paying them this well deserved compliment, I hope that I will not get them into trouble with the Minister of State, Mr. McCartney. When the amendment was passed giving the Secretary of State the option, entirely at her sole discretion, to moderate the operation of the Bill if she, and she alone, was convinced that it was necessary, the Minister of State's Pavlovian reaction was to describe it as a "wrecking amendment". While I can find excuses for his ignorance, what is not excusable was the continuation of his outburst when he added a vituperative rant straight out of Old Labour's Book of Slogans. He described the hereditary Members of your Lordships' House as,
"the descendants of robber barons and cattle thieves".
It is perhaps not surprising that the mouthpiece of the Labour Party, the Daily Mirror, was encouraged last Thursday into describing your Lordships, and me in particular, as "vermin in ermine". In a particularly abstruse phrase used by my late mother-in-law, I take that statement from whence it comes. Whence it comes is from a paper whose main claim to fame is that Robert Maxwell considered it fit to be owned by him.
In the other place, on 16th July, the Minister of State demonstrated his implacable hatred of Conservatives, which he takes no trouble to conceal, by describing those who oppose the Bill as "a shambles" and "a rabble". I have to assume that he includes me in that description. But since the civilised rules under which this House operates forbid us to speak with asperity, I shall not reply in kind. I shall content myself with saying that if any reform of Parliament is needed, it should begin in the other place, as indeed the Daily Telegraph suggested in the leading article last Friday. I do not expect noble Lords on the Bench opposite to apologise for the Minister of State's outburst. They are most certainly not responsible for his actions. Perhaps he may not be either.

1225
The other disappointment is that I put down 108 amendments at Committee Stage, with about a third brought back on Report. Every single one of them was rejected by the Government. While I congratulate the noble Lords opposite for the way in which they doggedly stuck to their briefs, even occasionally giving a passable imitation of pretending that they believed some of the more specious arguments they were advancing, I have to say that on the law of averages I must have been right at least once.
No doubt the objective of the Minister of State was to get the Bill through both Houses with a clean sheet, with no Opposition amendments. The noble Lord, Lord Clinton-Davis, admitted that the Government may not have got everything right. I must apologise, therefore, to the House for my being remiss in somehow not spotting and dealing with any of those potential errors in the 108 amendments that I moved.
I should also like to refer to the part played by the Liberal Democrats in our deliberations. On most occasions that they intervened they disagreed with me, which is of course their right. But they did so with great courtesy and politeness, if not always with logic. The noble Viscount, Lord Thurso, spoke about the problems of shift workers and night workers gaining access to their pay records by personal inspection. But his party opposed my amendment that access should be by means of copy documents, which would have made that easy. However, I forgive his party after it supported my Amendment No. 1 at Report stage, recognising as it did that every other country which has a minimum wage regime also has exceptions.
I thank my noble friend Lady Seccombe for her endurance in sticking solidly by my side on this Bench during the more than 12 hours or so of debates. I also thank the Shadow Minister my noble and learned friend Lord Fraser of Carmyllie for landing me with—I shall rephrase that: giving me the opportunity to conduct the Opposition's case on the Bill, and for all the helpful advice and encouragement that he provided. I also thank my unnamed researcher for the many hours of work, patience and good humour he showed in providing the information that I needed.
No one can be in any doubt, especially readers of the Daily Mirror, that I regard the Bill as a monumental mistake from start to finish, with its paraphernalia of production notices, enforcement officers and workers' minders, and the reversal of the burden of proof. I believe that it is a piece of political dogmatism, founded on the pay back to the unions for their surrender of the block vote, their acceptance of the abandonment of Clause 4, and the fact that the Government will not reverse most of the Conservative union reform legislation. The trouble is that the ones who will pay off that debt will be those whose jobs will be lost, who will not find jobs, or whose businesses will go to the wall as a result of the Bill. Unfortunately, the comments of the new president of the CBI, whose support the Government repeatedly prayed in aid during our debates, came too late for me to quote. But he confirms what I have been saying all along. The national minimum wage will cost jobs and will close businesses.
1226
I hope that we shall be proved wrong. I am not one who says, "I told you so", but in due course I fear that I may have to do so.
No less interesting is the admission reported in yesterday's Sunday Telegraph by Gavyn Davis, a close adviser to the Chancellor of the Exchequer and a member of the Monetary Policy Committee. He said that the national minimum wage is a factor in a forecast surge in wage inflation. It may well be that the disastrous consequences will be subsumed in the increase in unemployment that will follow from the Government's economic policies. The Rover car redundancies are only the beginning. The time will come when the Government can no longer glibly blame everything that is currently going wrong with their policies on 18 years of Tory misrule—just like the Wilson government which also began their career by complaining of 14 years of Tory misrule. Then they will blame their failures on the collapse of Far Eastern economies, the chaos that the single currency may bring to Europe, or even the millennium bug.
I cannot bring myself to support the Motion that the Bill do now pass. I shall not oppose it, but for the record, never let it be said that in the end the Bill received the unanimous support of your Lordships' House.
5.15 p.m.
Lord Razzall: My Lords, before the Minister responds, on behalf of the Liberal Democrat Benches perhaps I may follow the self-styled "vermin in ermine" in giving thanks for the support and help that I received in relation to the Bill. It is the first Bill in which I have participated since coming to this House. I have learnt an enormous amount from all involved. I learnt from the noble Baroness in particular that with charm and occasional wit over the various stages of the Bill she can say almost everything with which I totally disagree yet allow me on occasions to support her.
I have also learnt from her the wonderful ability to ask the noble Lord, Lord Clinton-Davis, 53 questions on the Statement. To my knowledge, she has not received more than 10 answers. Nevertheless, I shall ponder on and learn from her skill in being able to turn her Second Reading speech into 53 questions when next I am involved in a Bill of this nature.
I thank the noble Lord, Lord Clinton-Davis, for the skill with which he has dealt with all the issues I raised. I join the noble Baroness in congratulating him on his prestigious award announced today. I thank the noble Lord, Lord Haskel, for the help that he has given and the assiduousness with which he pursued all points. I thank the noble and learned Lord the Solicitor-General for the wit with which he has engaged us throughout the past heavy days.
Lord Falconer of Thoroton: My Lords, first, I thank the noble Baroness, Lady Miller, for the way in which she conducted the response to the Bill of the Front Bench. It was a real tour de force on her part. She has effectively put forward almost all the amendments—there have been hundreds—with immense charm and skill. At no stage of the Bill did any of the Front

1227
Benchers fall out with each other. That is a tribute to the noble Baroness. In the middle of a speech, the noble Baroness told us that she had eaten half her dinners in the Inner or Middle Temple. Having heard the noble Baroness, I cannot think why she did not finish. It was a great loss to the Bar.
The noble Baroness, Lady Seccombe, wound up the Second Reading debate. It was an excellent speech. It was the first time she had done so, and the speech was delivered with incredible skill and aplomb. I say that without patronisation: it was a quite difficult speech to make.
I pay tribute to the noble Lord, Lord Razzall, and the noble Viscount, Lord Thurso, for the extremely effective way in which they conducted the matter on behalf of the Liberal Democrats. Despite the unnecessary political remarks of the noble Baroness, Lady Miller, today this is not the moment for a political speech on my party, save to say this. I feel privileged to have been part of the team that has driven or piloted this Bill through the House—it depends on which form of transport one has in mind—which puts an end to poverty pay for people who have been entitled to social justice for a very long time indeed. I am proud to have been part of it. I commend that the Bill do now pass.
On Question, Bill passed, and returned to the Commons with amendments.

Business
Lord Whitty: My Lords, before we move to the Statements on the Legg Inquiry and the Immigration and Asylum White Paper, I should like to take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

The Legg Inquiry
5.18 p.m.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, with the leave of the House, I shall now repeat a Statement on the Legg Report, which is being made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:
"Madam Speaker, when I appointed Sir Thomas Legg and Sir Robin Ibbs to conduct their inquiry, I asked them to complete their work before the House rose for the Recess in order that I may report it to the House. I am publishing their report today, on the first sitting day after I received it.
"Their inquiry interviewed seven Ministers and 49 officials. They had access to all the relevant official papers. A member of their team conducted a random
1228
search of files at the Foreign Office and found no document of any relevance to the inquiry which had not already been disclosed.
"One of the first findings of their report is that Sandline and its arms played little or no part in the removal of the junta from Sierra Leone. It is therefore not surprising that the citizens of Sierra Leone cannot comprehend why anyone looks for evidence of a political scandal in the restoration of a civilian government, in place of a brutal and savage military regime. Nor have Sir Thomas Legg and Sir Robin Ibbs uncovered any political scandal, after a lengthy inquiry and a search through all the files.
"Their key findings, in their own words, are:
'No Minister gave encouragement or approval to Sandline's plan to send a shipment of arms into Sierra Leoné'.
Officials of the African Department acted in good faith. They,
'neither encouraged nor approved the Sandline contract'.
The report concludes that,
'at no time did they advocate or authorise actions in breach of the law'.
"They find no fault with the conduct of the military liaison officers. In the matter of the much publicised repair to the Sandline helicopter by the crew of 'HMS Cornwall', the report finds that their action,
'was not improper and was sensible in the circumstances',
in that,
'it helped 'HMS Cornwall' to carry out its humanitarian mission'.
"The briefings that Ministers received for the debates on 10th and 12th March were 'deficient' and did not provide them with the briefing that they should have received on the referral of the allegations of a breach of the arms embargo.
"In sum, Madam Speaker, after an exhaustive trawl of the files and over 60 hearings of witnesses, the Legg Inquiry has concluded that there was no policy by Ministers to breach the arms embargo, and equally there was no conspiracy among officials to undermine Government policy.
"There were though, as the Legg Report finds, a number of misjudgments by officials, largely due to over-load. I have therefore asked the Permanent Secretary to interview each of the relevant officials and to counsel them on the basis of the findings concerning them in the report. The Legg Report notes that,
'the officials concerned were working hard and conscientiously and should not be judged too harshly'.
I therefore see no case for any further action.
"Mr. Penfold, the High Commissioner to Sierra Leone, showed great courage and a commitment to staying at his post during the military coup of last year. As a result of his consistent support to President Kabbah, he has won high standing for Britain in the country where he represents us. However, the Legg Report details a number of criticisms of Mr. Penfold. Mr. Penfold should have taken steps to inform himself more fully about the scope of the arms embargo. He showed a lack of caution in his dealings

1229
with Colonel Spicer and to this extent gave Sandline a degree of approval for which he had no authority. He should have made more efforts to ensure the African Department had a proper record of his conversations with President Kabbah and Colonel Spicer. I have asked the Permanent Secretary to write to him drawing his attention to the relevant findings of the Legg Report, but in the circumstances I do not think it would be justified or in the diplomatic interest to take any further proceedings.
"Sir Thomas Legg and Sir Robin Ibbs state that they hope the report will help the Foreign Office to close the chapter for officials. I agree with them. There will be no scapegoats, and this should be the end of the matter as far as individual officials are concerned. However, for the Foreign Office as an institution, the Legg Report must provide the opening of a new chapter.
"As Foreign Secretary, I am responsible for the department and I am determined that we should find out why mistakes were made and to make sure they cannot happen again. The Legg Report concludes that most of the trouble originated from systemic and cultural factors. I am therefore today announcing a sweeping programme of changes to address those institutional problems.
"During the period covered by the inquiry, from October of last year, the managerial structures of the Foreign Office remained exactly as we inherited them in May of last year. The departmental hierarchies were the same. The working practices were the same. The procedures for the handling of intelligence were the same. The time has come to change them.
"The final chapter of the Legg Report helpfully details the lessons which must be applied in the future management of the Foreign Office. I am pleased to tell the House that we accept every one of the recommendations in the report.
"The Legg Report finds that there was not 'a sufficiently high priority' for the enforcement of sanctions. There was a dedicated sanctions enforcement desk in the Foreign Office, but the previous government abolished it in 1996. I can tell the House that I have instructed that such a central unit shall be restored. It will be led by an official whose sole function is to make sure that the enforcement of sanctions receives the full priority that it deserves.
"The Legg Report expresses concern at the handling of defence intelligence reports when they arrive in the Foreign Office. It is not acceptable that one such report should have been destroyed before being seen by the relevant official. I have therefore strengthened the procedures to ensure that all such reports are properly logged and that there are clear instructions for their distribution.
"The Legg Report concludes that there should be,
'more explicit guidance on how to manage relations'
1230
with private military companies. I have issued guidance that there should be no Foreign Office contact with private military firms without permission, and that where such meetings do take place they should be recorded in a full, written report.
"The Legg Report found that,
'the demands on some Foreign Office officials meant that they had to work at or beyond the limits of their capacity'.
and that,
'this was a contributory cause of what went wrong'.
"Over the last Parliament, my two predecessors at the Foreign Office accepted cuts in their budget of 14 per cent. During the period in office of the previous Prime Minister the number of staff of desk officer grade in London fell by a quarter. Honourable Members opposite have become fond of describing the Foreign Office as a Rolls Royce. It is a pity that they tried to run it on two-star petrol.
"Only one decade ago, there were 430 staff in the African Command. Now there are 328—a loss of a hundred posts. This sharp reduction of staff at the time of an increase in crises in Africa was part of the reason why mistakes were made by staff under impossible pressure.
"The recent spending review provides the first real increase in the Foreign Office budget for half a dozen years. I have given instructions that part of that increase must be used to strengthen the number of staff in the hard pressed desks dealing with West Africa and Sierra Leone.
"The last lesson of the Legg Report is that there is room for improvement in modern management at the Foreign Office and for fewer layers in the hierarchy. The Foreign Office attracts many of the brightest and most energetic recruits in Whitehall. They deserve a management structure that makes full use of their energy and which enables them to rise fast on merit.
"I can announce today that we have agreed on a programme of 60 different measures to improve the management and effectiveness of the Foreign Office. We will recruit professional managers to specialist posts such as administration, personnel and resources to bring to the Foreign Office modern management methods. We will increase temporary exchanges to and from the private sector, NGOs and the academic world, to bring the Foreign Office up-to-date with working practices and policy thinking in the outside world. We will introduce assessment centres to evaluate staff performance to make sure that promotion to senior management is made on merit. We will reduce the hierarchy in the Foreign Office to enable officials to take more responsibility sooner. And we will improve the gender and ethnic balance throughout the Foreign Office so that it can be representative of all the strengths of modern Britain.
"In developing this programme, we have drawn on proposals for change from younger officials. I want them also, not just senior management, to have ownership of this project. I will therefore invite a number of younger officials to form a working group to monitor progress and to come up with fresh ideas.

1231
"Madam Speaker, I have addressed those parts of the Legg Report which demolish the fantasy of a Ministerial or official conspiracy to breach an arms embargo. Before concluding, I want to address the reality of what has happened in Sierra Leone.
"Britain was first on the scene with humanitarian aid after the restoration of President Kabbah. Since the last debate in the House we have provided police officers to help train a new civilian police force. We have sponsored the UN resolution providing for military observers to help the process of demilitarisation, and we have provided staff to be those military observers. We are providing aid to fund the process of civil reconstruction and military demobilisation. Britain is to date the only donor to the UN Trust Fund for Sierra Leone. On Wednesday the Minister of State of the Foreign Office will be attending a donors' conference in New York and will be urging others in the international community to join us in helping fund democracy and stability in Sierra Leone.
"I have been challenged to produce the report from my honourable friend the Minister of State after his visit to Sierra Leone in March. I have no difficulty in sharing with the House his key conclusion:
'It would be hard to find anywhere on the planet at the moment where there is more enthusiasm for Britain. Our moral, financial and practical support really is welcomed and appreciated.'
That is the reality of Britain's standing in Sierra Leone among the people who know at first hand the truth about our dealings with their country.
"Madam Speaker, I welcome the findings of the Legg Inquiry, that there was no policy of Ministers to breach the arms embargo, and no conspiracy among officials to do so. I will implement all of its recommendations, which will help give Britain a modern Foreign Office.
"Now that it is published, it is time that the right honourable Member opposite started to recognise the immense good will for Britain we have secured within Sierra Leone and tried to understand that represents a success, not a failure of our foreign policy."
My Lords, that concludes the Statement.
5.31 p.m.
Lord Moynihan: My Lords, I am grateful to the Minister for repeating the Statement. On a day when a Government reshuffle focuses on ministerial responsibilities, this report paints a deeply worrying picture of turmoil, failures and misjudgments in one of the great departments of state.
I appreciate that the Minister is repeating a Statement made in another place which significantly concentrates on future restructuring of the Foreign Office—an important issue of course—but tangential to the process of apportioning accountability which the Legg Inquiry was set up to address.
The report describes a Foreign Office in shambles. We already knew that Ministers contradicted each other and themselves, that officials contradicted Ministers and
1232
themselves and that telegrams were lost and faxes destroyed. But the detailed evidence in this report is almost beyond belief.
Letters from the High Commissioner go missing; reports from the military liaison officer in Sierra Leone are destroyed, officials are asked to attend meetings to take a note because officials should be on their guard but no note is in fact taken during the meeting itself.
In all, the report contains no fewer than 30 specific criticisms of the Foreign Office. It attributes these failures to what it describes as "systemic and cultural factors." I regret to say that we do not have to look far to identify the source of these factors. In a television programme entitled "How To Be Foreign Secretary", the Foreign Secretary made the following comment:
"I have found that you can be a successful Foreign Secretary if you focus on the big questions and not necessarily finish the paperwork".
Due to the low morale which has increasingly pervaded the Foreign Office during the last 12 months, does the Minister not agree that civil servants have little incentive to pay their characteristic attention to detail on the paperwork when they are told so publicly that it is not going to be read? Indeed, would the Minister not agree that this has contributed to the low level of morale in the Foreign Office?
As the Minister will be aware, I only received the report when it was published earlier this afternoon. However, on first reading there would appear to be inconsistencies between the report and the Minister's Statement to the House on 15th June. The report concludes that:
"Baroness Symons could not be expected to understand from the briefing that Lord Avebury had sent allegations which had been referred to Customs. She has told us that she did not in fact understand it and we accept this".
Yet, on a previous page the report states:
"Lord Avebury's allegations have been referred to the appropriate authorities for them to investigate whether any offence has been committed".
That was a sentence which was actually in the briefing for the Minister. Furthermore, the noble Baroness on 15th June informed this House:
"In my briefing for 10th March there were references to allegations of illegal arms shipments being referred to the appropriate authority. I was, rightly, not briefed to reveal that referral for the very obvious reasons I have given".—[Official Report, 15/6/98: col. 1291.]
I would be grateful if the Minister could clarify those contradictory statements.
Further, turning to the report, there are two significant issues I wish to raise. First, the report, which is not exhaustive, does not comment explicitly on the protestations of the Minister of State for Africa and of the Foreign Secretary on his behalf, that he saw papers "merely for noting" in mid-April and was not fully informed of the allegations made by Sandline until 1st May. But it is not crystal clear from paragraphs 9.50 to 9.56 of the report that the Minister of State knew all the essentials of those allegations in mid-April, considered them in detail and did nothing.

1233
The Foreign Secretary told the House that these papers gave rise to "no grounds for apprehension or concern". However, the report describes these allegations in the same papers as "sensitive and potentially troublesome".
Given the complete inconsistency between the account of events in this report and the account given to the House of Commons and its Select Committee by the Foreign Secretary and the Minister of State, does the Minister now accept that the Foreign Secretary's earlier account was completely inaccurate?
Second, and most damning of all, the report explains very clearly what in essence went wrong and why. The report concludes that the Foreign Office should have explained both the arms embargo imposed by the United Nations resolution and the Order in Council more widely and effectively. As the report says, the failure to do so created a hazard for all affected. The nature of the hazard is clear; it is that British citizens might commit a criminal offence under the Order in Council and risk imprisonment for seven years in consequence.
The cause of the failure to explain the arms embargo more effectively is equally clear. Devastatingly, the report concludes that although the British framers of the United Nations resolution which imposed the arms embargo on Sierra Leone intended that embargo to be "comprehensive in its coverage" and had no doubt that it was, British officials and Ministers played down that aspect of the embargo—not accidentally, but deliberately. The reason, at least in part, was because they knew that there were those on the ground in West Africa who, in the words of the report, "explicitly contemplated the use of force".
Can the Minister therefore explain why, in the FCO press release, the communiqué of the Commonwealth Heads of Government meeting and in the Adjournment Debate on Sierra Leone of 12th March the Minister of State, Mr. Lloyd, repeatedly, deliberately and unequivocally sought to give the impression that UNSCR 1132, that is the comprehensive arms embargo, imposed sanctions only on the military junta in Sierra Leone when he knew full well that the arms embargo was comprehensive in its coverage, intending no exceptions, including President Kabbah and ECOMOG?
Given that the report says that:
"Government has a responsibility to give citizens, and its own officials, reasonable publicity and explanation of the laws it makes under delegated powers, especially laws creating criminal … offences. That was not done in this case".
On that most telling point, does the Minister believe that Ministers should take responsibility for that key issue which goes to the heart of the affair?
Baroness Williams of Crosby: My Lords, I also thank the Minister for repeating the Statement made in another place. In particular, I welcome some of the proposals for changes in the Foreign Office which may go some way towards avoiding a similar occurrence in future. In particular, we welcome the proposals for additional staff for the Foreign Office and the steps taken, for example, to ensure that contact with private military groups will be subject to much closer controls than they have been in the past.
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I must say that in the instance of this report, anyone reading the Legg Report would be driven to the conclusion that, if it is not a conspiracy—and I believe it is not—it is a fairly monstrous cock-up. As one who has spent many years in politics, my usual interpretation of matters which the press see as a conspiracy is that they are not a conspiracy but a terrible mess. In the Sandline case a terrible mess is what we are looking at.
As the noble Lord, Lord Moynihan, said, it is not only that there was confusion between the inadequate briefing offered to Ministers by officials in the Foreign Office—and the Legg Report gives one instance after another—but of particular relevance to this House, the briefing for our own Minister was confusing. My noble friend Lord Avebury asked a Question on 10th March, and he had already, on two occasions, written to the Foreign Office drawing attention to his information and sources which suggested that Sandline was involved in the provision of miliary advice and arms to Sierra Leone. Moreover, my noble friend had indicated the line of his questioning. Nevertheless, the Minister in this House, the noble Baroness, Lady Symons of Vernham Dean, was clearly not given adequate information on which to base her replies.
The Prime Minister has indicated that the important issue is what happened to Sierra Leone. However, this debate is not about what happened to Sierra Leone. I am sure we all welcome the return of that country to civil rule. The central issue—and it remains the central issue—is the accountability of officials and Ministers and the accountability of Ministers to the Houses of Parliament. It is on both those questions that the Legg Report raises disturbing issues which are properly open to question and debate and should not be dismissed on the grounds that the outcome for the countries concerned was one which we might all willingly accept.
I mentioned that there was profound confusion in the Foreign Office. However, I am particularly troubled by two critical issues which affected the whole question of Sandline's involvement with Sierra Leone: first, as the noble Lord, Lord Moynihan, pointed out, the question of the legal purport of the Order in Council; and, secondly, the question of the legal purport of embargoes and sanctions by the United Nations. It must be said that the Foreign Office seems to have treated both issues with extraordinary lightness.
The Order in Council, which is an order in domestic law, presented a particular problem because it was framed more narrowly than United Nations Security Council Resolution No. 1132. On these Benches, we compared quite carefully the Order in Council with the UN resolution and concluded that it was much more tightly framed. It was not subject to differences of interpretation. It made it absolutely plain that the provision of arms to any faction in Sierra Leone, whether they were Children of Light or Children of Darkness, was equally ruled out in the terms of the Order in Council. That never seems to have been made plain to Ministers at the Foreign Office, including the Foreign Secretary himself.
On the issue of United Nations sanctions and embargoes, very probably for the reasons given by the Minister that the dedicated desk had been dispensed

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with after 1996, it is nevertheless the case that the present Government have now been in power for more than a year. Given their strong commitment to the United Nations, an ethical foreign policy and the upholding of United Nations resolutions, they could have restored that desk and seen that as a very high priority. That did not happen. The result was, as the report makes plain, that neither United Nations sanctions nor arms embargoes were treated with sufficient weight and significance by the Foreign Office, or, indeed, even by Ministers.
It is fairly plain, probably because of the extreme pressure on them, that Ministers did not have a great deal of discussion among themselves. The noble Baroness knew by 10th March, because of the nature of my noble friend's Question and the briefing for it, that there had been some question about the possibility of a Customs investigation. She was not given clear briefing as to what the effect of that was. Nevertheless, I should have thought that the Customs authorities would have made it plain that they were proceeding with the inquiry. It would then have been a matter for Foreign Office officials to recognise the significance of that and so inform their Ministers.
The Ministry of Defence had a whole series of briefings—and I commend the miliary liaison officer—one of which was lost and one of which was destroyed at the Foreign Office. It might have been possible to maintain information for Ministers had there been a closer relationship between the Ministry of Defence and the Foreign Office on those issues.
Finally, I am troubled, as was the noble Lord, Lord Moynihan, by the fact that the Minister of State in another place indicated specifically that in his view it was perfectly proper to make available arms to Sierra Leone because it was not in conflict with the United Nations resolution, when it was clearly in conflict with the Order in Council. It is important to try to throw more light on the way in which he could make such a statement, which was not substantiated by any clear and unquestionable information.
Therefore, I ask three questions of the Minister. First, is she now satisfied that in future the Foreign Office will ensure that any Orders in Council which have weight in domestic law will be drawn up in the closest possible proximity to whatever is stated in the United Nations resolution and that any Orders in Council will be made plain and circulated to Ministers with a note of their significance?
Secondly, can she say whether she is satisfied that inter-departmental relationships, which in this case affected the Department of Trade and Industry, the Ministry of Defence and her own department, are now sufficiently close so that all Ministers can be sure that they are informing one another of matters which may significantly affect the policies on which they must decide.
Thirdly and finally, is she satisfied that the new staffing of the Foreign Office will go a long way towards ensuring that such a muddle does not occur again? However, on these Benches we certainly acquit
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Ministers both of the conspiracy theory, which has been raised from time to time in the media, and of misleading this House or another place. However, that is not a sufficient acquittal of the behaviour of the Foreign Office over this affair.
Baroness Symons of Vernham Dean: My Lords, I thank noble Lords in varying degrees for their responses. In particular, I thank the noble Baroness, Lady Williams, for her closing remarks when she said that she acquitted Ministers of misleading either House. I am sorry that the noble Lord, Lord Moynihan, adopted the tone he did as regards Ministers misleading the House. I assure him that I do not believe that I have at any time, certainly not knowingly and I believe never unknowingly, misled the House on this issue. I understand that my right honourable friend and my honourable friend have said similar things in another place.
The noble Lord seems to feel that I had perhaps tried to bat this to one side, or that my right honourable friend had done so, when talking about future restructuring. I should like to return to the points on the latter in the way that the noble Baroness indicated was important. I heard the noble Lord's right honourable friend Mr. Howard make various allegations this morning on a radio programme regarding the reading of papers, and the fact that officials in these circumstances could not expect Ministers to read papers. I am sure that the noble Lord knows that Ministers really cannot read every single piece of paper that comes into their private offices. Indeed, if they did, they would not have time to do anything else. It is the job of those private offices to filter the papers which come through to them.
My right honourable friend the Foreign Secretary has said that he reads all documents submitted to him and that he expects the same of his Ministers. I give an assurance to the noble Lord that I, for one, do read all documents submitted to me. I can assure him that I am much too frightened to do anything else. However, I expect the noble Lord will remember that when his right honourable friend—now the noble Baroness, Lady Thatcher—gave evidence before the Scott Inquiry, she talked about "a veritable snowstorm of paper". I believe that that illustrates the point that I seek to make; namely, that it is not possible for Ministers to read everything that comes into their private offices. Therefore, I do not believe that there is an incentive for Foreign Office officials not to brief Ministers properly. Foreign Office officials have worked very hard in the most difficult circumstances to brief Ministers on these points.
The noble Lord raised what he said were inconsistencies as regards what I said previously and what the Legg Report says. I am sure that the noble Lord did not in any sense mean to mislead the House because it is difficult when dealing with short Statements, but he did not quote the full report as regards my briefing. Indeed, it is dealt with most fully in the Legg Report. The point is made that the briefing was incomplete, indigestible and inaccurate in places. Indeed, in places, the briefing was actually almost contradictory. I do not believe that anything that I have said to the House has been inconsistent. I believe that

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what I have said has been consistent at all times. However, if the noble Lord wishes to take me on one side and show me again where he believes that I may have gone wrong, I shall be happy to talk to him about it. I have been over this matter again and again and have looked carefully into what the Legg Report says, as noble Lords would expect me to do. I am satisfied in my own mind that I have not been inconsistent and that I have not, however inadvertently, misled your Lordships.
I know that my right honourable friend and my honourable friend Mr. Lloyd have made similar statements, but that is not to seek in any way to detract from the fact that the briefing to Ministers was very far from perfect. Indeed, the Legg Report makes that clear. It is not my view that we should use this as an opportunity, so to speak, to scapegoat those who gave us those briefings. The report makes clear the strain under which those officials were operating. I made clear in the Statement which I repeated on behalf of my right honourable friend that the Permanent Secretary will be taking each of those individuals through the report, looking at the criticisms made of them in a systematic way and giving them guidance and counselling about how they can avoid a repetition in the future. Therefore, I can say that there was no attempt whatever—and I believe that the noble Lord is a little unfair not to acknowledge this—to mislead either House. Moreover, there has been no attempt whatever to obfuscate what has been happening. It is a very honest report, as I am sure all noble Lords will agree when they have the opportunity to read it properly for themselves.
The noble Baroness, Lady Williams, asked me three particular questions. She asked, first, whether I was satisfied that in future the FCO Orders in Council would be drawn up in proximity to the UN Security Council resolutions and, most importantly, made clear to Ministers and to those working within the FCO. Yes, given what Legg says on that point, I believe I am now satisfied that this is something which has been drawn very fully to the attention of the Foreign Office at all levels. Ministers must also take responsibility in that respect. I take the noble Baroness's point; namely, that there is no evasion of responsibility here. Ministers have responsibility for how their departments are run. I acknowledge that point, perhaps a little more so than the noble Lord's right honourable friend did when running the Prison Service. As I said, Ministers are responsible for how their departments run.
Secondly, the noble Baroness asked about inter-departmental relations. Again, the report draws our attention to some of the shortcomings in inter-departmental relations. I should point out to the noble Baroness that there will be new arrangements to handle defence intelligence reports when they arrive in the FCO to ensure that they are properly logged and distributed to the individuals for whom they are destined. That is a very important point. Of course, the liaison with the DTI and Customs and Excise departments is also an area where further strengthening is needed to ensure that departments are absolutely clear beyond peradventure of what is happening in related areas.
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The noble Baroness's final point related to new staffing. I believe that this new staffing is a most important and key point. For the first time in six years my right honourable friend has managed to secure resources for the Foreign Office which we have not had. I do not reflect upon what has gone before; indeed, that is quite clear from what is in the Statement. But the fact remains that there has been a systematic cutting of the posts available in the Africa Command by over 100. In his Statement, my right honourable friend made clear that one of his priorities will be to strengthen the Africa Command. I hope that that will go a very long way to ensure that what the noble Baroness described as, "this sort of muddle", does not happen again.
The noble Baroness was quite right to say that this has not been an exercise in obfuscation; indeed, it has been something of a muddle. That muddle was faced fairly and squarely in the report and my right honourable friend is rightly shouldering responsibility to ensure that this sort of muddle does not happen again. I hope that he will enjoy the support of the House in so doing.
5.57 p.m.
Lord Tordoff: My Lords, perhaps I may slightly shift the focus of the debate to that part of the report which deals with the support which the Government have been giving to Sierra Leone. It seems to me that part of the problem is the fact that Sierra Leone is seen as a very small country which is a long way away and that it has not had the proper attention that it deserves from the Foreign Office. Is the Minister aware that Sierra Leone offers great hope for the western coast of Africa because it is a focus of democracy? It has a democratic government and a democratic parliament, but that needs strengthening. Indeed, it needs support and training.
Perhaps I may direct the Minister's attention to a report produced by the International Crisis Group about two-and-a-half years ago, which made recommendations as to how the democratic process in Sierra Leone could be strengthened and how people could be trained there. Now that the Foreign Office has some more resources, can we hope that those concerned will spend more time on Sierra Leone as a country and as a focal point for the development of democracy in Africa?
Baroness Symons of Vernham Dean: My Lords, I thought that I had already made it clear that some of the extra resources that my right honourable has happily been able to secure through the CSR will be devoted to the Africa Command. Indeed, he particularly mentioned Sierra Leone in a Statement that he made in another place a short while ago. The noble Lord is quite right to say that Sierra Leone needs more help in order to get on its feet and certainly to get its democratic institutions properly embedded. So far, Britain is, sadly, the only donor to the UN trust fund for Sierra Leone, but my honourable friend the Minister of State will be attempting to encourage other donors at a meeting in which he is participating later this week.
The UK has also provided aid for the process of civil reconstruction in Sierra Leone since the return of the Kabbah Government. We have also tried to help by providing police officers to train the civilian police force

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in Sierra Leone. I am sure that the noble Lord will agree that the proper conduct of the Sierra Leone police force is a very important aspect of this sort of reconstruction.
We have also sponsored the UN resolution providing for military observers in order to help the process of demilitarisation. I hope that the noble Lord will see that in those four important areas my right honourable and honourable friends have already taken considerable action and have also said that we intend to do more to strengthen the civil institutions in Sierra Leone.
Lord Beloff: My Lords, does the Minister agree that there is always a danger when major changes are made in a government department in order to learn the lessons of some failings, that they may "overdo" it in the sense that the next problem may not arise there at all? To say that we are getting some more money—I think the whole House will welcome the increase in resources—and we shall direct it towards Africa in general, and Sierra Leone in particular, may mean that another department dealing with another part of the world which may also present this country with major problems may be neglected. Is it not better, before there is a general reallocation of resources, that the whole problem of Britain's relations with other parts of the world is examined?
Baroness Symons of Vernham Dean: My Lords, I assure the noble Lord, Lord Beloff, that I was not talking about diverting resources from their current home in the Foreign Office; I was talking about additional resources which have been secured by my right honourable friend in order to strengthen various parts of the Foreign Office, not solely the Africa Command. It is not a question of diverting resources from elsewhere.
I freely admit that the Legg Report has concentrated minds on ways in which the Foreign Office can modernise itself. However, the process of modernisation in the Foreign Office began shortly after the general election. In the past I have had occasion to report to your Lordships on the ways in which we are trying to strengthen recruitment in the Foreign Office to obtain a better gender and ethnic minority balance. Some of the improvements announced by my right honourable friend today do not just concern Sierra Leone and the Africa Command; they will operate across the board in the Foreign Office. For example, the central sanctions enforcement desk in the FCO will have a role right across the Foreign and Commonwealth Office. The explicit guidance on how to manage relations with private military companies again will have some general application across the Foreign Office, not just in relation to Africa.
We hope that the de-layering of the hierarchies in the Foreign Office and the introduction of more professional expertise into some of the management areas will also improve performance right across the Foreign Office. I assure the noble Lord that we are not being myopic here and just looking at Africa Command. We are examining
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the lessons that can be learnt from the Sierra Leone affair that can be applied right across the Foreign Office to improve management.
Lord Monkswell: My Lords, I believe the whole House will have been glad to hear the Statement that my noble friend has repeated, and in particular the references to paragraphs 1.9 and 1.10 on page 4 of the report which effectively absolve my noble friend and Mr. Tony Lloyd from culpability—if one can put it like that—in this respect. I draw my noble friend's attention to the words she repeated on page 3 of the Statement,
"During the period covered by the inquiry, from October of last year, the managerial structures of the Foreign Office remained exactly as we inherited them in May of last year … The working practices were the same".
I believe that a number of us in this House have been concerned about anecdotal evidence and published evidence in newspapers of the involvement of mercenaries in Africa over the past 20 years. The previous government took absolutely no action whatever in that regard. I suspect that this has led to the culture in the Foreign Office which has allowed this unhappy state of affairs to develop.
I refer to the comments on page 4 of the Statement where the Foreign Secretary said,
"I have issued guidance that there should be no Foreign Office contact with private military firms without permission, and that where such meetings do take place they should be recorded in a full, written report".
Can I take it from my noble friend that this is implicitly a monitoring operation of the activities of private military operations and the mercenaries, and that there will be no sanction by Her Majesty's Government of their operations?
Baroness Symons of Vernham Dean: My Lords, I thank my noble friend for what he has said in relation to paragraphs 1.9 and 1.10 of the report and in regard to Mr. Lloyd and myself. My noble friend concentrated his remarks on relationships with mercenaries. I know that the noble Lord, Lord Moynihan, gets a little edgy when I make the point that the problems in this respect did not start on 1st May 1997. As my noble friend points out, I suspect there were problems in these areas before then. Minds are now concentrated on how these should be dealt with. My right honourable friend has been clear in his Statement in another place. He has said that there should not be contacts without permission. These matters will be monitored carefully in the future in the hope that we never get into this kind of situation again.
Lord Thomson of Monifieth: My Lords, as one who was once a Minister in the Foreign and Commonwealth Office and has experienced somewhat similar difficulties to those that the noble Baroness faces, I have a great deal of sympathy and understanding for her. Speaking personally, I think that everyone in this House would absolve the noble Baroness from in any way misleading the House. Is she aware that the sentence I valued most in her responses was that in the review of what has gone wrong Ministers must face their responsibilities as well as officials? When I heard the Statement I would have welcomed a little more humility

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on the part of the Foreign Secretary in regard to ministerial responsibility in this matter. He went out of his way to quote the report of the Minister of State after his visit to Sierra Leone; namely, that on the planet at the moment there is no place where there is more enthusiasm for Britain. I profoundly hope that the enthusiasm of Foreign Office officials and Foreign Office Ministers can be quickly restored after this matter.
Baroness Symons of Vernham Dean: My Lords, I believe that the Statement of my right honourable friend that I repeated showed that he shouldered responsibility for putting right what has gone wrong. Ministers must bear those responsibilities. I spent 20 years as a union official in Whitehall talking rather a lot about ministerial responsibility and Civil Service responsibility. There are no "responsibility free" zones in government for civil servants or for ministers. That is not to say that responsibility always means apportioning blame; responsibility can involve putting right what has gone wrong. My right honourable friend in his Statement made clear that he is shouldering responsibility for putting right what has gone wrong in the measures that he explained in the Statement. I am sure we all hope that the measures he is proposing to take, and is already taking, will be successful.
Lord Gillmore of Thamesfield: My Lords, in common with other noble Lords I have only had time to read quickly this report. It seems that a leitmotiv is a failure to understand correctly the import of the arms embargo and, more significantly, of the Order in Council. Paragraph 5.10 points out that the press line prepared by the department,
"and approved by the Minister of State … stated that the Resolution introduced an 'international ban on supply of arms and petroleum products to the junta'".
In fact, that was not the case. It was an interdict on the supply of arms and petroleum to Sierra Leone in general.
To turn, secondly, to the degree of overload referred to by the Minister and to which the noble Lord, Lord Beloff, drew attention, we see from the report that in the West African section of the Africa Department (Equatorial) there are six staff dealing with 20 countries. The measures referred to by the Minister—to introduce professional managers, to recruit to and from the private sector, to introduce outside assessment, promotion on merit, and further delegation with better gender and ethnic balance—may all be desirable in their own right, but they will not address the problem of overload. Indeed, spending money on professional managers may be regarded as a diversion of that resource into different fields. Will this produce a larger number of desk officers? How can accurate information on an Order in Council of the kind referred to be conveyed? The report makes it quite clear that the Government have a duty to make clear to their citizens, including their officials, the import and purport of Orders in Council that are passed in their name.
Baroness Symons of Vernham Dean: My Lords, the noble Lord rightly points out one of the shortcomings in
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the way that the Order in Council was dealt with. Those shortcomings are clearly set out in the report. I agree with the noble Lord. Not only all my ministerial colleagues, but everyone in the Foreign Office supports not only the conclusions but also the recommendations in the Legg Report. The shortcomings are clear, as are the recommendations as to how to deal with them in future.
On the question of overload, I understand that staff in London dealing with Africa have been cut by a third in the past 10 years. The noble Lord rightly said that those difficulties will not all be overcome by introducing more expertise or looking at gender balance. They will be overcome by ensuring that there are more desk officers; that is to say, more people working, as it were, at the coal-face on these issues. That is the point that my right honourable friend is addressing when he says that he has been looking at strengthening the Africa Command in order to ensure that there are more desk officers working in what is, after all, a very difficult part of the world given the degree of crises and instability which. sadly, from time to time arise there.
Of course it is important that accurate information about any UN arms embargo and any Orders in Council is circulated properly and unequivocally. That is undoubtedly one of the lessons that emerge clearly from the Legg Report. I assure the noble Lord and the House that that lesson is now well understood.
Lord Mackie of Benshie: My Lords, perhaps I may ask a general question. I remembered that the blanket refusal to supply arms to Spain was of the greatest possible help to Franco, because he obtained arms from the fascist countries. It cannot be said that the blanket refusal in relation to Bosnia was a great help. Apparently, governments at home refused to supply help or arms to both the virtuous and the wicked. Is that generally a good thing?
Baroness Symons of Vernham Dean: My Lords, I do not know whether blanket refusals over the supply of arms are a good thing. I know that in this particular case it was felt that it was the right thing to do. I now understand that to be the judgment that was reached and that it might be very difficult to ensure that weapons sent reached the right hands in what is a very confused part of the world and where there was a possibility that any weapon sent there might fall into the wrong hands. All these issues in relation to arms have to be dealt with on their merit at the time. To say anything more than that would be to provide a hostage to fortune.
Lord Lucas: My Lords, what is happening to Mr. Penfold? How is it that the hero of the hour—hymned by the Prime Minister, the man at the centre of the great policy triumph, as the noble Baroness the Minister described the whole affair,—is so excoriated in the report? How is it that in the Statement, when it comes to his alleged misdemeanours he is named, but when it comes to his undoubted triumphs his name is absent?
Baroness Symons of Vernham Dean: My Lords, the noble Lord really must not over-egg his puddings. There

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is no excoriation of Mr. Penfold in the report. In the same way, the noble Lord, Lord Moynihan, slightly over-exaggerated some of his points. The Foreign Secretary paid tribute to Mr. Penfold's courage when arranging the evacuation of not only British but other nationals following the coup, and to his success in promoting Britain's standing in Sierra Leone. The Statement made that point again. Mr. Penfold made a real contribution. When the noble Lord has the opportunity to read Hansard, he will find that it is mentioned.
The Foreign Secretary has also had to look at the undoubted criticisms of Mr. Penfold in the report. The noble Lord would be furious if I had airbrushed out the criticisms. I am sure that all noble Lords, when they have the opportunity of reading this fairly lengthy but clear report from Sir Thomas Legg, will see the criticisms of Mr. Penfold in their proper context; namely, Mr. Penfold undoubtedly behaved with enormous courage, but he made mistakes. Those mistakes are not being dealt with in a heavy-handed way. They are being dealt with entirely appropriately. He will be written to by the Permanent Secretary at the Foreign Office, who will point out the criticisms made of him in the report. I believe that that should be the end of it.
The Earl of Carlisle: My Lords, I pay tribute to Mr. Penfold. Will the Minister inform the House as to whether he had access throughout that time to a defence attaché or military attaché? In the light of cuts to the Foreign Office, which the noble Baroness informs us she is putting right, will she also examine the defence and military attaché network to see whether that can be improved so that these kinds of problems can be avoided in future?
Baroness Symons of Vernham Dean: My Lords, I am grateful to the noble Earl for his well-made point. Let us not forget that, over the time in question, Mr. Penfold was not working in an office in Sierra Leone. He was not surrounded by the usual paraphernalia of high commissioners. Mr. Penfold was in exile in Conakry, working out of a hotel bedroom. He was making his contacts using one telephone, as I understand it, and one fax machine. He had none of the usual diplomatic support. His position must be seen in that context. Within the limitations imposed on him in those very difficult circumstances, he tried to take part in the normal processes of dialogue with the FCO in London and to be part of the policy making. It must be remembered that that highly courageous man was operating in extraordinarily difficult circumstances. I remind the House that Sir Thomas Legg and Sir Robin Ibbs find that all concerned,
"were working to fulfil government policy".
There was no attempt to hide information from Ministers. That goes for Mr. Penfold as well.

Immigration and Asylum White Paper
6.18 p.m.
Lord Williams of Mostyn: My Lords, with the leave of the House, I should like to repeat a Statement made by my right honourable friend the Secretary of State for Home Affairs in another place. The Statement is as follows:
"With permission, Madam Speaker, I should like to make a Statement on immigration and asylum.
"I am today publishing a White Paper entitled Fairer, faster and firmer—A Modern Approach to Immigration and Asylum. This follows a wide-ranging examination undertaken as part of the Comprehensive Spending Review. The White Paper sets out a new integrated strategy to deliver the Government's commitment to a fairer, faster and firmer system of immigration control.
"There are few more complex and sensitive responsibilities of government than this. But the system has been subject to piecemeal and ill-considered changes which have failed to tackle the real problems. Indeed the changes often made the problems worse. The arrangements for supporting asylum seekers are a shambles. Huge backlogs have been allowed to develop. Additional complexity and regulation have made the system unwieldy to operate. Despite the dedication and professionalism of immigration staff at all levels, genuine applicants have suffered, while abusive claimants and racketeers have exploited delays in the system. It is time for a new approach.
"The Government are determined to maintain firm control over immigration, but to do so in a way which meets our international obligations and reflects our commitment to strengthen human rights.
"The volume of passenger traffic arriving at our ports of entry has grown very fast in recent years—from 55 million arrivals in 1992–93 to 80 million in 1997–98—and is projected to reach nearly 100 million passengers in two years' time. We wish to welcome genuine visitors to our shores, and provide them and British citizens who travel abroad, with a fast and efficient service.
"Our immigration policy will continue to support family life by admitting the spouses and minor dependent children of those already settled in the United Kingdom. It must also sustain and promote race equality. It is particularly important for us to acknowledge the enormous contribution which immigrants and their descendants have made to our society in all walks of life.
"The Government have already begun to put in place a system which is fairer and more efficient. As promised in our manifesto, last June we abolished the primary purpose rule. But fairness is not well served by a system of decision-making which labours under huge backlogs and out-dated methods of working.
"The White Paper therefore sets out our plans for an integrated approach to the modernisation of immigration control. We are making organizational

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changes in the Immigration and Nationality Directorate, backed by new technology, which will result in a new integrated casework directorate.
"We also intend to integrate the overseas entry clearance operation with the other elements of the control. A core feature of this new approach will be a single management structure, drawn from the Foreign and Commonwealth Office and the Home Office, to manage the overseas operation. We will use new technology and more flexible legislation to the best advantage.
"Visitor appeals: many people resident in this country want their relatives to visit them for important family and other occasions. The previous government were wrong to remove the right of appeal to those refused a visit visa in such circumstances. It provided an element of independent oversight of what are bound to be very difficult and emotive decisions. Honouring our manifesto commitment, we therefore propose to introduce a streamlined right of appeal for those refused a visa to visit a family member in this country. We shall also be testing a financial bond scheme for visitors.
"Many problems and much confusion are caused by passengers arriving in the United Kingdom without required visas, or in some cases without any passport at all. We shall adopt a tough approach to deterring and preventing the arrival of inadequately documented passengers. One of the best ways of achieving this is through the use of airline liaison officers. We already have five officers placed overseas working with carriers and the relevant authorities to combat document and other frauds. We intend to increase this network to about 20 officers in total.
"Appeals: fundamental to our overall strategy is the need to speed up the system. There are too many avenues of appeal.
"In future there will be a single right of appeal for those lawfully present in the United Kingdom at the time of their application. We recently published a consultation document on this. The aim is to create an appeals system which will provide a fair opportunity to review decisions, but do so quickly, and to minimise the scope for manipulation of the system.
"Unscrupulous advisers: in our manifesto we said we would 'control unscrupulous immigration advisers'. As many honourable Members know from their constituency casework, there is a significant minority of such immigration advisers who abuse the system and exploit their clients. We have consulted widely about this and we will introduce a statutory scheme to regulate immigration advisers, which may include those who are legally qualified.
"Asylum: the United Kingdom has traditionally given shelter to those fleeing persecution from other parts of the world. We will continue scrupulously to observe our international obligations to protect genuine refugees. Those who are accepted as refugees or given exceptional leave to remain should be helped to integrate into local communities. To aid integration
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we will reduce to four years the qualifying period for settlement for asylum applicants granted exceptional leave to remain and give immediate settlement to those recognised as refugees.
"The numbers seeking asylum have increased eightfold in the last 10 years from 4,000 to 32,000. The reasons for that are many, including political instability, but there is no doubt that the asylum system is being abused. About three-quarters of asylum applications are refused outright because they do not meet the requirements for refugee status or exceptional leave to remain. The vast majority of such failed applicants appeal, but only 6 per cent. of these appeals are successful. Of course a failed asylum application does not necessarily mean that the applicant has abused the system. But many claims for asylum are made by those seeking to migrate for purely economic reasons or as a means of prolonging a stay in the United Kingdom without legitimate reason.
"This places substantial pressure on a system which is already under severe strain. It is unfair to genuine refugees who have to wait long periods in the system for a decision on their claim to refugee status. At the end of May this year there was a backlog of 52,000 asylum applications on which not even an initial decision had been taken. Of these applications, 10,000 were over five years old. On the same date there was a backlog of 32,000 immigration appeals waiting to be heard, of which over 70 per cent. were asylum cases.
"Backlog: modernising the controls and simplifying and speeding up the procedures will help to tackle these problems but we cannot create the faster system without clearing existing backlogs. We are strengthening immigration control and there will be no amnesty either now or in the future for any applicant. We will instead allocate additional resources to deal with this inheritance. We will also adopt a practical approach in respect of the application backlog where an initial decision has been outstanding for some years, and ensure that the effect of long delays is properly taken into account, but in ways which will not outweigh other factors such as serious abuse.
"Speeding up initial decisions: the package of measures I am announcing today will ensure that new applications can be dealt with more quickly. As part of that process of strengthening our control I am announcing that from today the period allowed for asylum seekers to submit further representations after interview will be reduced from 28 to five days in port cases. It is already five days for in-country applicants. No one intent on exploiting the system should be under any illusion that these measures to clear the backlog will benefit them.
"We shall also be taking further enforcement measures to ensure that asylum seekers who are refused leave to enter or remain are returned quickly to their country of origin. We have previously undertaken special exercises to tackle sudden increases in applications, and we will not hesitate to do so again.

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"All told we are aiming by 2001 for initial asylum decisions of two months and for appeals a further four months.
"We shall not hesitate to use detention where necessary to ensure the integrity of immigration control. We have, however, decided that detainees should be given written reasons for their detention and that subject to legislation there will be judicial oversight of the process.
"Support for asylum seekers: the current support arrangements for asylum seekers are a shambles. They are the product of ill-considered legislation which then required the intervention of the courts. The 1996 Act imposed a burden on local authority social services departments which was unplanned for, is inappropriate and cannot be allowed to continue. Action must be taken to contain costs and relieve the burden which has fallen heavily on London authorities in particular and more recently on the local authorities of Dover and Kent.
"In opposition I said that, in a civilised society, genuine asylum seekers could not be left destitute. I am honouring that commitment today. We need a system which reduces the incentive to economic migration and which recognises that what the genuine asylum seeker needs is food and shelter, not a giro cheque. Support will, therefore, be separated from the main social security benefits system and will principally be provided in kind and not in cash. Where accommodation is needed, it will normally be provided directly, with no choice about location. We will also consider the extent to which support for food and other basic needs can be provided by vouchers or other non-cash means. In general, support will not extend beyond the point at which the application has been decided and all appeal rights have been exhausted.
"Single budget: support on this basis will require new national machinery to plan and co-ordinate provision. There will be a single budget for asylum seeker support costs. This will be managed by the Home Office alongside the costs of the process for considering asylum cases, thus enabling a more flexible use of resources to reduce costs overall. New central machinery will be created, also under Home Office management, to contract with a range of providers to obtain accommodation; these will include the private sector, voluntary bodies, housing associations and local authorities. The intention will be to develop a national approach making use of support from existing communities and voluntary groups to relieve the current over-concentration on London and one or two other areas which is creating some severe problems there. The Government will consult widely on the detailed arrangements. In taking this work forward, we will ensure that the needs of children, whether unaccompanied or members of families, are fully protected.
"Citizenship: the Government are committed to promoting a more positive view of citizenship which both reflects and celebrates the multi-cultural,
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multi-racial society we have become. We will take action to reduce the waiting times for processing applications for British citizenship in order to give a more welcoming signal to prospective citizens.
"The measures described in this White Paper provide a much clearer framework for what our immigration control should be. They should also provide the staff of the Immigration and Nationality Directorate with a workable system. Bureaucracy, over-complexity, delays and backlogs often frustrate the best efforts of staff to give effect to the law and the policies of Ministers. Despite those difficulties, staff throughout IND have consistently achieved impressive results. I take this opportunity to thank them for their hard work. A clear framework and better tools for the job will enable everyone to take a fresh and more purposeful view of what they can and should achieve.
"The White Paper sets out a comprehensive and integrated strategy for immigration control. It tackles the failings of the current system and addresses the challenges we will face in the future. The Government will introduce legislation to implement the White Paper as soon as parliamentary time allows. This legislation may be a good candidate for consideration by a Special Standing Committee of this House. Britain requires an immigration and asylum system appropriate to the demands of the 21st century. The system in place today is simply not up to the job. We need radical change to deliver a modern and efficient system which is fairer, faster and firmer. I commend the White Paper to the House".
My Lords, that concludes the Statement.
6.33 p.m.
Baroness Anelay of St. Johns: My Lords, I thank the Minister for repeating the Statement made in another place a short while ago by his right honourable friend the Home Secretary. I begin by making it clear that I welcome the efforts announced today to ensure that the system for processing claims for asylum and refuge is as fast, firm and, I hope, as fair as possible.
My questions stem from two major concerns. Are the proposals workable and fair? Have they been costed effectively. I am not demanding that the Government should spend even more money. I seek to find out if they have properly costed the plans announced today. Those questions are right and proper for any Opposition Member to ask. I recognise that the White Paper covers a great deal of ground. I shall therefore restrict the number of my questions today in the expectation that we shall give it much greater examination on future occasions, not least perhaps tomorrow when my noble friend Lord Renton asks a Question on the matter at Question Time.
I watched the interview given by the Home Secretary yesterday on BBC TV. He made it clear that the firmer and faster aspects of the policy will be part of the approach to processing claims and that the fairer part of the policy applied only to the stage post-determination of claim. Will the Minister agree with me that there is

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always a delicate balance in any judicial system, administrative or not, between making a quick decision and making the right decision?
The signs in the White Paper are that detention will be used more, not less, from the moment of application. Chapter 12 states that around half of those currently detained are held in prison establishments. Most of those—350—are held in the specially dedicated immigration units at Haslar and Rochester. The White Paper states that the Government are considering a need for an increase in the detention estate. Can the Minister tell the House where the Comprehensive Spending Review provides for the building of extra purpose-built detention places or whether there are extra resources over and above those announced today to cover such costs?
How many extra detention places does the Home Office intend to provide? What are its targets in such provision as a proportion of the total people held in detention? By what date do the Government expect to reduce the proportion to be held in prison as a proportion of the whole of the detainees?
Can the Minister also tell the House why it has been decided that, for immigration detainees, there will be no presumption in favour of bail? The Minister has sat in a judicial capacity and I in a minor one as a magistrate have done so also. I am sure that all noble Lords recognise that presumption in favour of bail has always been considered vital. I would be interested to hear what reasons swayed the Government against such a course in this case.
I note that the number of adjudicators and Home Office presenting officers will be substantially increased in order to speed up applications. I welcome that measure. But will there also be assistance available to the applicants in order to obtain representation in this speedier and, to those for whom English may not be their first language, more difficult process of application? I am aware of course that legal aid is not currently available for representation at tribunals. Can the Minister say whether that will continue when we then move on to block contracts on legal aid?
The White Paper proposes to transfer welfare payments from local authorities to the Home Office budget and create an asylum-seekers' allowance. On that basis, I can only assume that it would give the Home Office a vested interest in getting people off the asylum-seekers' allowance. At present, as the Minister explained, local authorities have a duty under the National Assistance Act to provide food vouchers and accommodation. The Statement refers to new, national machinery to plan and co-ordinate provision and that there will also be new central machinery created under Home Office management.
What kind of bureaucracy do the Government anticipate creating in practice? Will they simply replicate the DSS? What measures will require their involvement in reaching decisions? Presumably there will be detailed means-testing for every applicant—always a complicated and costly measure if done properly. Who will be recruited to do that work? Will
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the organisation publish the regulations by which decisions are made so that those representing applicants such as the citizens' advice bureaux can refer to them?
In the meantime, what body provisionally do the Government have in mind to do that work? Will the asylum-seekers' allowance only be for those who have proper documentation, as Ministers trailed in advance of the Statement today? It is true that some people destroy their passports simply to hide information. But there are others who are fleeing from corrupt authoritarian regimes who may never have been allowed access to official documents to enable them to travel. What happens to them? Will they still be subject to local authority payments under the National Assistance Act? If so, where is that costing in the Comprehensive Spending Review, or is it not in that review at all? Are the local authorities not to be allowed off the hook after all?
I return to the question I posed last week on the Comprehensive Spending Review. Do the Government intend to restore in-country benefits? If so, where is that costing provided?
Does the new system fully recognise the potential costs of applications? I believe that there will be more applications for judicial review as a result of some of the measures announced today. We are told that the new system will process applications within six months from the making of the claim to the announcement of the decision, a laudable objective which I welcome. I may be mistaken, and I welcome correction from the Minister, but it appears from the Statement that only two months is available for the production of evidence. I wonder therefore whether there could be an increase in the number of applications for judicial review on the basis, first of all, that evidence has come to light subsequently about which the applicant could have had no knowledge within the period allowed for the production of information. There might also be the allegation that a Minister has not properly taken evidence into account within the shortened period of consideration of information.
Another policy which has been trailed in advance and announced today is the reintroduction of the right of appeal for refused visitors. I understand that the visitors will have to pay for the administration of the appeal if they are refused entry. That may well be a worthy aim of saving the taxpayer money, but I question how it will work in practice. This is not a question critical of the government but a practical one. Can the Government confirm that it is anticipated that there will be two methods of appeal process: the first, a short one, which will be heard on papers only; the second an oral hearing? I understand that Ministers have referred to the cost of the appeal as being "high". What are the estimates of these costs to each individual applicant under each of those two different types of appeal? It would be extraordinary if the Labour Government were to give preferential treatment, in effect, to wealthy applicants.
What would the Government's solution be to the anomaly which I foresee whereby somebody who has struggled to save sufficient funds to support themselves

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during their six months here—so that when they come here they can say "I have the money; I can support myself. I therefore qualify for entry as a visitor"—then finds that he or she is refused and has to use those funds to pay for the appeal? They are then in a position of being destitute and therefore cannot qualify to stay.
I began by saying that I would pose questions which I believed were proper for the Opposition to ask the Government. They are particularly relevant for me to ask given my background in welfare advice over the past 22 years. I have always posed such questions whatever the party in government. I remember posing a question at the time when the government were headed by the noble Lord, Lord Callaghan. It is a question of how we achieve a balance of fairness between the individual and the taxpayer, a question which goes to the very heart of government. A government of whatever party will always say that of course they have got the balance right. On this occasion I hope so. Our task will be to examine the reality as the policy bites.
Earl Russell: My Lords, this Statement reminds me of an intriguing day I spent in the Public Record Office reading the original manuscript of the fundamental constitution of the Carolinas in which alternate words were written in the hands of John Locke and the Earl of Shaftesbury. In much the same way I hear two voices in the Statement. One is the voice of a new government who seriously want to put a lot of things right; the other is the same voice of the Home Office that we have been hearing unchanged for more years than I care to remember—in fact since the noble Lord, Lord Allen of Abbeydale, ceased to be its permanent secretary. We have a new broom but a great deal of dust.
I take the opening of paragraph 24 of the Statement as an example. It begins:
"In opposition, I said that, in a civilised society, genuine asylum seekers could not be left destitute. I am honouring that commitment today".
That is good and I welcome it. The next sentence runs on:
"We need a system which reduces the incentive to economic migration".
Those two sentences cannot sit together. We cannot tell which asylum seekers are genuine victims of persecution and which are economic migrants until we hear their cases. A system which bites on one must bite equally on the other. A system which bites on both risks being in breach of our international legal obligations which the Government in this Statement give a very welcome commitment to honour. Until we drop the idea that we can deter asylum seekers by making conditions tougher for them without departing from our international legal obligations we have not even got started.
I understand that the flow of asylum seekers is very large, and that must cause concern to a great many countries. The way to reduce that flow is through the Foreign Office rather than through the Home Office—to do more to make it safe for them to remain in their countries of origin, as the Government are already attempting to do. If we are to deter asylum seekers from
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Kosovo we must make it safe for them to remain in their country of origin. If we cannot do one, then we are under a legal obligation to do the other.
I grant that the need for greater speed is immense. The chief obstacle to speed is the culture of disbelief inside the Home Office. The Minister once said to me at Question Time that there is no culture of disbelief inside the Home Office. That was a commendable loyalty to his own department. We do not take bets inside the Chamber, but I would be surprised if the Minister could find many people informed about the subject to agree with that view once he got beyond the boundaries of Queen Anne's Gate.
I received a letter only this afternoon—I shall be writing to Mr. O'Brien later tonight—about an Angolan asylum seeker in my borough of Brent. Formerly married to a high official of UNITA, she was therefore obviously likely to be in danger if she returned there. The adjudicator was not merely unaware that she had been married to this man—believing she had had only a casual relationship with him—but had not even asked her any questions before forming this conclusion.
The Minister may wish to say that this is an ex-parte statement. As the papers on the case have not yet reached him he is perfectly free to do so. Were this to prove an accurate story it would be all too familiar among those who have dealt with any number of asylum cases.
Disbelief causes delay. Disbelief causes further appeals. I am a little perturbed by the view that there are too many appeals. The Minister need only look at the correspondence he has been having with me in the past few weeks to realise that there may be perfectly genuine cases which have slipped through all the stages of the procedure through such things as their lawyers not appearing at hearings. He knows the cases to which I refer. I shall not go on.
There were many genuinely good things in the Statement. I was delighted to hear the Minister acknowledge the debt that this country owes to its immigrants. Coming from a Welsh Minister addressing a predominantly English audience that is an act of great generosity. I thank him for it. I was delighted to hear him say that a failed application need not necessarily be an example of abuse. That is a vital aid to interpreting statistics.
I was delighted by the provision on visitor appeals. I shall not soon forget the speech made by noble Baroness, Lady Flather, against that provision when it was introduced in 1993. It was one of the most moving speeches that I have heard in this Chamber. That provision is another example of the way in which further restriction leads to further delay. This will now make it unnecessary to take cases to the Minister, such as that which I took to Mr O'Brien on the subject last week, to which he responded with great generosity. I shall in future be able to save his time. If we are less incredulous, we get on a bit faster.
I am particularly grateful to the Minister (whose hand I think I see in this) for the provision on judicial oversight for the detention of asylum seekers. That is one of the very best features of the Statement—and I

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am delighted by it. I thank the Government and I believe that I am entitled to thank the Minister personally. The noble Lord probably will not want to answer that point, but if the cap fits, I hope that he will wear it in private.
I am delighted to hear that more resources are being made available. The whole of the asylum system is a good example of the principle that efficiency is not efficient. I am delighted that the Minister has adopted Sir David Ramsbotham's recommendations to give a statutory basis to rules in detention centres. I wonder whether the noble Lord can tell me whether that will cover transfers from detention centres to ordinary prisons.
On the other hand, there are things in the Statement which cause me considerable concern. I refer to paragraph 11 on deterring passengers from travelling with inadequate documentation. That appears to me to misunderstand the basic nature of being a refugee. It is the basic nature of the condition that you are not in a position before you leave to present yourself happily to the authorities in your own country and to ask for papers, saying, "Please, I want to run away from you. You are persecuting me". Tyrannical authorities tend not to like that sort of approach. I have not forgotten the problem of refugees from Mostar who were supposed to get a visa from the nearest British consulate, which happened to be in Zagreb, with large numbers of enemy troops between them and it.
I believe that that paragraph is also contrary to Article 31 of the UN convention which states:
"The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … are present in their territory without authorization".
The Government are committed to honouring their legal obligations. I am glad that they are. I hope that they will look again at whether paragraph 11 of the Statement is compatible with that obligation.
Most of all, I am worried by the provisions of paragraph 24. I should like the Minister to look carefully at Article 24 of the UN convention on refugees, which provides that refugees shall not be discriminated against in terms of social security, and I should like the Minister to ask himself whether he is confident that the Government's case on this will stand up in court.
I should also like the Minister to remember, when he attempts to justify provision in kind, President Clinton's first food drop to the Bosnian Moslems, which was 30 per cent. pork. People from other countries and people of other religions do not necessarily have the same dietary requirements as we do, and provision in kind may completely fail to meet the needs.
I am also extremely worried about the provision that asylum seekers shall have no choice of location. That comes somewhere in the area approaching house arrest. It is a restriction. It also raises the acute problem of what happens in the case of relationship breakdowns. Also, if we should have more trouble of the sort encountered in Eltham, it would, as it did in Lübeck, provide handy targets for those who wish to make the worst sort of trouble. That is not a satisfactory provision.
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I am also unhappy about the provision for five days (instead of 25) for making representations, especially if the people concerned are detained at Heathrow and are unable to get access to support groups. That will work particularly severely in cases of torture.
As to what the Minister said about amnesty, I understand why he says it and I respect it, but it really deserves the comment, c'est magnifique mais ce n'est pas la guerre.
The Government should look at what they have said about inadequate documentation and at Article 31 of the UN convention. Before the Government say that the convention does not apply, they should read Article 1, which defines refugees, and the explanation of it in the UNHCR handbook and ask themselves, "Is this statement schizophrenic and, if so, will it turn out"—as I hope that it will and as I am sure that it will if the Minister has anything to do with it—"that the better part will come out on top?" There is a lot of work still to do.
6.55 p.m.
Lord Williams of Mostyn: My Lords, indeed, there is. I do not think that anybody could possibly dissent from the fact that the process is presently a shambles. It has been built up by good ideas here and there over a period of many years, some of which have been a reaction to the pressures of the moment while some have related to ignoble pressures of longer than a moment. However, we are trying now to have a fundamental review of how we deal with the problem, recognising that we inherit enormous difficulties, and bearing in mind that substantial public funds will have to be found.
The noble Earl, Lord Russell, directed my eye to paragraph 24, which states:
"genuine asylum seekers could not be left destitute … We need a system which reduces the incentive to economic migration and which recognises that what the genuine asylum seeker needs is food and shelter, not a giro cheque".
There is no contradiction between the first sentence and the second sentence. It is undoubtedly true that many people—I genuinely sympathise with them and I am sorry for them because the same impetus would drive me—want to change their country of residence because they want to better themselves financially. I repeat that I am sorry for that. In the 19th century, the United States offered them their remedy. We do not offer it as a remedy here, now. I do not mean to be harsh. I am simply stating the facts of life. Therefore, we need a system which reduces the incentive to economic migration. One way of dealing with that is to make sure that those in need receive food and shelter, not giro cheques. That has nothing to do with deterring genuine asylum seekers. It is merely to point out the inevitability that some people will always want to move simply to better themselves and that they do not fall within our regime. Whatever party may come to power later, I do not believe that any government in this country will ever be able to offer such an open door again.
The noble Earl asked some further questions about those who arrive without documentation. Generally, he made a good point, but paragraph 11 does not focus only on passengers with inadequate documentation. It states

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that we have to combat document and other fraud. I understand the noble Earl's example, that if you are fleeing tyranny, your first point of call is unlikely to be in the home of tyranny and to ask for travel documents. However, that is by no means the whole of the experience. Some people use fraudulent documents for improper purposes. They are driven to do that by desperation, but our regime will not accommodate that in all the circumstances. I stress that I am not being harsh, but am simply spelling out the facts of life.
I turn now to the question of location. One problem which will cause a Lübeck situation, to which the noble Earl referred, is an over-concentration of refugees in a very small number of locations. That adds to the burden faced by local authorities, many of which are very hard pressed. It also causes enormous resentment because of the concentration in one particular place of people with a different background and a different culture. No one is condemning anyone to house arrest. We are saying that we must consider the dispersal of some claimants and applicants out of the Greater London conurbation and Dover to different areas. Obviously, one would have to pay careful attention to the fact that people should not simply be dumped there. They should be accommodated with others from a similar background, whether religious—the noble Earl referred to adherence to Islam—or linguistic. We are not offering Mr. Clinton's pork dropped by parachute; we are trying to focus quite limited resources so that they are properly used.
The noble Earl was kind enough to refer to judicial intervention. I hope that that goes hand in hand with the fact that written reasons will be given. What we hope for by way of judicial intervention is not only the delivery of written reasons but an effective bail application within seven days. That kind of straitjacket is a very good one to impose because thereby one achieves a better outcome when one is dealing with bureaucracies.
The noble Baroness asked a number of questions, beginning with the proposal of Sir David Ramsbotham about the necessity for an increase in the detention estate. I do not believe that that was focused upon by most members of the public when they read his report on Campsfield House. The overwhelming majority of the recommendations were immediately accepted by Mr. Straw. The answers to the questions on finance are to be found on page 60 in the spending plans annex. One sees a vast amount of detail about outturns, plans and provisional plans going up to the year 2001/02. All of the information is set out there.
The noble Baroness asked a specific question about extra detention facilities. I repeat what my right honourable friend has said in the past. Extra detention places are important but they can be made available only as resources allow. As to additional assistance to be given to IND, that will receive another £124 million over three years. Of that, we envisage that about £100 million will be applied to speeding up the processing of claims, including clearing the backlog.
It is utterly indefensible that there should be 10,000 applications that have not even had a first determination and have been waiting since before the middle of 1993. The Home Secretary has made plain in this Statement that
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that kind of delay will be a factor in considering the outcome. A good deal of these proposals must be worked out interdepartmentally because the Home Office will have a significantly expanded role in dealing with the management of this problem. It is not possible for me to give specific answers now because in the nature of things the White Paper speaks about future legislation and reorganisation. Obviously, that must follow consultation between departments.
The noble Baroness asked specifically about judicial review. Judicial review has been notoriously ill-used, if not abused, over the past years. Of those applicants who are given leave to apply for judicial review significantly less than 10 per cent. ever succeed. I make no apology for saying that judicial review has become a significant cottage industry. In the majority of cases the people who benefit from it are not those who apply but those who use funds provided at public expense in order to continue these appeals.
I believe that the last point raised by the noble Baroness related to visitors who were refused access to the country, always for short periods of time and mainly for family occasions such as funerals or weddings. Many people from the Indian sub-continent observe or celebrate these matters in a different way from us. They are much more important in terms of time and expense. We believe it is not unreasonable that if there is an appeal it should be paid for by the applicant. The figure given by the Home Secretary was of the order of £250. If one has saved to be self-sufficient in this country for six months and paid the fares from, say, the Indian sub-continent or parts of Africa, while that is a significant sum it should not be an absolute deterrent. Therefore, we have delivered on that. We have abolished primary purpose. We have set up a distinct Act to deal with the outcome of the Chahal case. The noble Earl believes that there is still a culture of disbelief in the Home Office. When I raised this matter this morning in preparing myself for these questions I was assured that there was no such culture in the Home Office. Who am I to disbelieve that assertion?
It will take some years to get this right. Delays must be reduced and there must be judicial control of those who are detained. People are entitled to written reasons. Equally, we have a general duty to the public to recognise that what we offer by way of asylum and refuge is precisely that. With the best will in the world, we do not and cannot provide an open door to everyone who wants to live here. This is a very attractive country in many ways but we cannot sustain an open door policy. What we can have is a policy that deals fairly with all. The noble Baroness is correct in saying that the correct policy is to achieve a delicate balance between what is quick and what is right. I do not believe that we are in disagreement as to what we look to.
7.5 p.m.
Lord Archer of Sandwell: My Lords, does my noble friend appreciate that the backlog in the hearing of appeals to which he has referred is concentrated largely in one or two centres where there is no room to appoint further adjudicators? Does he agree that in other locations resources are under-used? Is it proposed to show greater flexibility in the venues where appeals are to be heard, if

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necessary with some allocation of resources to transport appellants? Perhaps I may echo the question posed by the noble Earl, Lord Russell, to which I do not believe my noble friend adverted. Will he think again about the five-day limitation period which bears very harshly on new arrivals in a foreign country?
Lord Williams of Mostyn: My Lords, the five-day limitation is that which presently obtains for others. A good deal of thought has been given to that limitation. As to the backlog, my noble and learned friend is both right and wrong. Of the backlog to which I referred—10,000 over five years old (pre-June 1993)—they are not appeals at all. In those cases not even an initial decision has been taken. Therefore, they are not part of the appeal backlog. I am aware, however, of the second point to which my noble and learned friend has alluded. He asked whether the resource that was available for the hearing of appeals was being properly used on a nationwide basis. I believe that there is a very good case for concluding that the system should be used more flexibly as my noble and learned friend implies. Certainly, that is something that is under consideration. We also want to give the appeal tribunal greater status so that it is less likely to be the subject of successful applications for judicial review.
Baroness Williams of Crosby: My Lords, I too should like to commend the comments of the Minister about the provision of written reasons and keeping a register of lawyers. There are some very unscrupulous lawyers who have been battening on the misery of people trying to emigrate to this country. Perhaps I may ask the Minister to look again at two issues that particularly affect genuine refugees. Like most of the House, I recognise that not everybody falls into that category. The five-day limit bites particularly hard on people who claim that they have been tortured. Often these are people who have been the most outstanding dissenters or fighters for democracy in authoritarian regimes. I do not understand how any genuine refugee who falls into this category can hope to obtain an adequate medical examination for his appeal within five days. Associated with that, I am extremely troubled by the remarks of the Minister on the subject of documentation. He explained helpfully that no one with proper documentation would be refused entry, but he did not say what steps might be taken by someone with inadequate documentation to indicate that he was a genuine refugee. Again, the five-day limit is particularly hard on those who are most probably real refugees—people without adequate documentation and with very serious charges of abuse, torture or other maltreatment in the countries from which they have come.
Finally, I ask him to consider whether some small cash element might remain in the support that refugees will be given, all the more because they will be dispersed. I have in mind the issues of how a refugee will ring his lawyer and how he will travel to a place at which he may meet an NGO interested in his case. In other words, will the noble Lord consider a margin of cash—I am asking only for a margin—which will enable genuine refugees to reach, associate with and meet those who intend to assist them?
Lord Williams of Mostyn: My Lords, obviously I shall bear in mind what the noble Baroness said about the
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five-day limit, not least—and I am not being discourteous—because that point was made so valiantly by my noble and learned friend Lord Archer of Sandwell a moment or two ago. All I can say is that we shall listen carefully to what has been said.
The question of documentation is not always easy. It is not always the position that someone has left his or her country of origin without documentation but that sometimes documentation is forged; sometimes it is acquired here on the basis of forgery; and also that there is in many cases—this is not simply anecdotal—a deliberate, wilful destruction of documents when the airliner has already been boarded. We cannot pretend that these things do not happen. We do have a duty, which is not an overarching duty but a significant duty, first, to genuine asylum seekers and, secondly, to people who already live in this country.
I think I can assist the noble Baroness on the question of a cash margin. I shall re-read the single sentence in paragraph 24 of the Statement that is of relevance:
"Support will, therefore, be separated from the main social security benefits system"—
these are the words for which I think the noble Baroness is looking—
"and will principally be provided in kind, and not in cash".
I think that is the indication—perhaps it is a nudge—at which the noble Baroness wanted me to look.
Lord Brightman: My Lords, I wish to raise a brief point on the British Refugee Council panel of advisers for unaccompanied refugee children. This invaluable non-statutory scheme was set up by the Home Office a few years ago as a result of debate in this House. Is the Minister able to give an assurance that the scheme, which costs very little to run, will continue in operation?
Lord Williams of Mostyn: My Lords, I am personally sympathetic to the noble and learned Lord's point. At the moment I am intending to be the messenger, waiting for the message. In fact, I am happy to combine being the messenger and giving the message, because, extremely quietly, my noble friend Lord Hoyle transmitted the message. The scheme will continue.
Lord Marlesford: My Lords, the Government deserve congratulations on tackling this whole matter in the comprehensive way set out in the White Paper. The word "shambles" was used a number of times. That is clearly the correct word to use about the present situation. It is a situation for which the previous government must bear as much responsibility as the present government. But I am not sure that they were to blame. The blame is in regard to the failure of administration—I have some sympathy with the point raised by the noble Earl—of successive generations in the Home Office to tackle the matter efficiently. If one wants an illustration of that one has only to look at paragraphs 11.14 and 11.15 of the White Paper on fingerprinting. The situation is quite lamentable.
Perhaps I may ask the Minister two questions. First, does he recognise that in order to have a much better system of identification we need to introduce a

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national identity number not only for citizens in this country, for which one does not exist at the moment, but particularly for people who have been processed under the existing and will be processed under the planned system of immigration control? Secondly, may I emphasise the reference to ill considered legislation, which is one of the reasons why the system has not worked up to now? Perhaps I may suggest that, frankly, this is an extremely good argument for the continuation of your Lordships' House as a scrutinising Chamber.
I wish to ask a specific question on asylum seekers' support, which in the annex to the White Paper is put down for the present year and the coming year as £350 million. That is a significant sum. The annex shows "n/a" for 1997–98 and for 1996–97. Can the noble Lord give some idea of how the £350 million compares with previous years' expenditure for the same purposes? Is this expenditure to be cash limited?
Lord Williams of Mostyn: My Lords, the noble Lord made some extremely important comments when he directed your Lordships' attention to paragraphs 11.14 and 11.15 of the White Paper. Paragraph 11.15 is really rather lamentable. Perhaps it is worth looking at. It states:
"The system is outdated and requires investment before it can add significantly to the removals effort. We will be considering the extent to which the use of targeted fingerprinting with commensurate technical support would substantially strengthen the enforcement effort. The protocol to the Eurodac Convention referred to later in this chapter will, in any event, require a change to our existing legislation to provide for the routine fingerprinting of certain illegal immigrants".
Furthermore, and again taking up the noble Lord's point, at the bottom of page 58 the White Paper helpfully sets out:
"The following elements of the strategy can only be achieved with primary legislation".
A menu is then set out there for those who, like the noble Lord, think that this House has a useful function as a revising Chamber, which, of course, he put to me entirely non-controversially.
The Secretary of State's Statement in another place indicated that one might be looking to a special committee to deal with these areas. Essentially, what we need is an efficient outcome and not to be clouded by partisan jibes of who should have done what over the past 25 years. I have tried to avoid that this afternoon. Certainly, an enormous amount of scrutiny will be required because one is looking, I hope, at a rational spectrum to put right what has not been put right, or to put right what has been approached in a piecemeal fashion in the past.
On the expenditure questions, the expenditure will decline as the process speeds up, beginning with the clearance of the backlog. I do not think that is a complete answer in terms of the detail the noble Lord wanted. I shall do my best to research the figures but they are really quite complex to obtain. The equivalents he wanted were between a figure of, say, £350 million when support is transferred to Home
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Office control as opposed to all those elements of housing benefit, general support, local authority costings and so forth. I shall do my best to research those figures—they are rather difficult and perhaps sometimes shrouded in mystery—and write to the noble Lord as soon as I can.
Lord Hylton: My Lords, I am concerned about detention and about its present cost at its present level of use. Is the Minister in a position to say that in future detention will be reserved for those people who are awaiting deportation rather than being used, as happens at present, for asylum seekers whose cases have not yet been determined?
Lord Williams of Mostyn: My Lords, one of the purposes of the streamlined appeal system will be that when the appeal mechanism is concluded, it is anticipated that part of the order will be directions for speedy removal.
I take up a point which I should have answered a little more fully, which is reflected in the noble Lord's question. Detention criteria are set out in Chapter 12.3. I shall read the words in order to be helpful:
"The Government has decided that, whilst there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances: where there is a reasonable belief that the individual will fail to keep the terms of temporary admission or temporary release; initially, to clarify a person's identity and the basis of their claim: or where removal is imminent".
Those are the aspects of the question which the noble Lord and the noble Baroness raised.
Lord Judd: My Lords, will my noble friend accept that for many of us who are deeply concerned about the issues covered by the White Paper, what has been said today and in the White Paper gives much ground for encouragement? We recognise the endeavours of Ministers to bring together humanity and effectiveness in ensuring an improvement in policy, and we applaud that.
Does my noble friend agree that underlying the administration of policy in this area is what can only be described as a philosophical dimension? It is this. The objective of Government may be to reassure the people of Britain that somehow they will be protected against hordes of people out there in the world trying get into Britain. It is an easy game to play with disastrous consequences, not least to race relations among those already within the United Kingdom. On the other hand, one of the greatest and most fundamental objectives of Government in this country should be to uphold the principles of asylum, to uphold the rights of refugees. That is the governing feature. But it has to be administered effectively. We cannot accept everyone. We have to recognise exploitation. We have to recognise that there are people who do not have a genuine case. However, the overriding consideration is to uphold the principle of the right of asylum and the protection of refugees.

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Those involved in the administration of policy in this area, not least those responsible for detention, should be imbued with that underlying spirit so that the dignity of people, wherever they are in the system, is given primacy at all times.
Lord Williams of Mostyn: My Lords, there is indeed a philosophical dimension. Those who need asylum, those who are genuine refugees, are entitled morally and philosophically and as a matter of international treaty obligation to be properly, fairly and decently treated. We sought to demonstrate that. Since we have been in office and power, primary purpose has been done away with; appeals concerning visitors' visas will be allowed; written reasons for those who are detained will be absolutely critical; and there will be judicial involvement for those who are detained. There is an important chapter in the White Paper about citizenship. It may gather few headlines, but it has that great philosophical underpinning. And, not as a tangent but as part of the whole picture, there are the provisions by the Home Secretary in the Crime and Disorder Bill about racial harassment; and not least his approach towards the Stephen Lawrence case.
The Earl of Dartmouth: My Lords, as a chartered accountant and the holder of an MBA from Harvard, I am well used to analysing figures. The key point of the Statement is that the number of asylum-seekers has increased in the last 10 years from 4,000 to 32,000 in a not more notably unstable world. That suggests—it may even be said to demonstrate—a strong fraudulent element. Noble Lords should be aware, in particular those who have stood for election, that the phenomenon of bogus asylum-seekers, especially when kept here by legal aid, is of strong concern to the British elector and the British and UK taxpayer. I ask the Minster to bear in mind that strong concern when new rules are implemented.
Lord Williams of Mostyn: My Lords, the noble Earl said that the numbers had increased from 4,000 to about 32,000. Those were the figures I gave. He is right. However, he said that the world has not become notably less stable. I would find it extremely uncomfortable to say that to anyone who lived in Rwanda, Burundi or in the former Yugoslavia, to take but a few areas at random.
The Earl of Sandwich: My Lords, during the passage of the Asylum and Immigration Bill, there was much talk about the disparity between in-country applicants and port of entry applicants. Has that disparity now been removed?
I welcome what the Minister said about detention. I have only one point. Can the written reasons be specific rather than general?
Lord Williams of Mostyn: My Lords, one needs to be as specific as one can bearing in mind that if one is to have a regime of written reasons there will be a degree of standardisation. However, written reasons impose serious duties on the person giving them. If they are not to the point, they would be subject to review.

Business of the House: Scotland Bill
7.26 p.m.
Lord Carter: My Lords, I beg to move that consideration of the Scotland Bill be adjourned until after the dinner break and consideration of the education regulations. In moving the Motion, I suggest that consideration of the Scotland Bill should not commence before 8.15 p.m.
Moved, That consideration of the Scotland Bill be postponed until after the two education regulations.—(Lord Carter.)
Lord Mackay of Ardbrecknish: My Lords, I intervene to say a few words. I am grateful to the noble Lord, Lord Carter, for the Motion he moved. It is a sensible way to proceed with business at this time of the evening. However, the noble Lord will not be surprised at my rising to draw your Lordships' attention to the time of starting of the Committee stage of the Scotland Bill. It is now 26 minutes past seven; and this is a record. I did not think the previous record was capable of being beaten when on the third day in Committee we started at six minutes past seven, on the second day at 10 minutes past six, and on the fourth day at four minutes to six. Therefore, on only two of the six Committee days have we started at 3.00 or 3.30 and had any debate in what noble Lords would recognise as prime time.
Four days out of six with no debates significantly before six o'clock does not seem to me to be the proper way to conduct a Bill which involves the constitutional arrangements of this country which have lasted for 300 years. It is not just any old Bill. It is a significant Bill which will make a dramatic change to the way in which Scotland is governed within the United Kingdom. Frankly, I think that it deserves better than this.
When I agreed to eight days in Committee and to have the Bill finished in the Recess, I thought that we could do so comfortably and give proper consideration to the Bill, especially as many parts of the Bill had not been properly considered in another place. I do not consider eight days have been given to the Bill. This is the sixth day and up to now we have lost four half days. Four half days make two days lost. If we are to finish on Thursday, we shall have had only six days on this Bill which is totally inadequate for a constitutional Bill of this importance.
Having said that, and having made my point I hope briefly but as bluntly as I can, I am content with the Motion the Chief Whip has put.
Lord Steel of Aikwood: My Lords, I echo what the noble Lord said. It is disgraceful, especially since the Bill was truncated by agreement in another place. It was expected that when it came here it would have line by line scrutiny in Committee and eight days were agreed.
As the noble Lord says, we have lost 25 per cent. of the time we should have had to discuss the Bill. I do not see how that can be made up unless we sit into the first week in August, which I assume most noble Lords do not wish. I am quite willing to volunteer. It is a scandal

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that we are losing so much of the proper legislative time. It is not doing the reputation of Parliament any good. If anything, it is increasing and hastening the advent of the parliament in Scotland to look after Scottish affairs.
Lord Strathclyde: My Lords, I did not plan to take part in this debate, but I cannot resist it when I see the Government Chief Whip rising to his feet. My noble friend Lord Mackay of Ardbrecknish has spelt out in some detail how much time has been lost. It must be clear to the whole House that something serious has gone wrong with the time that has been allocated to deal with the Bill. I am not looking for an answer now, and, as the noble Lord knows, I do not like conducting "usual channels" business across the Dispatch Boxes. However, we must have a statement soon as to when the Government believe we shall be able to make up the time so that, as the noble Lord, Lord Steel, said, we can give proper consideration to the Bill. Does the noble Lord agree that by the time we finish tonight the Government will have made known their intentions?
Lord Carter: My Lords, it has been a very exciting day for some of us and I am sure that it would not have been complete without the intervention I have come to expect from the noble Lord, Lord Mackay, now joined by the noble Lord, Lord Steel, and the Opposition Chief Whip.
The noble Lord, Lord Mackay, said that under the previous agreement he thought that he could finish the Committee stage of the Bill before Friday and that the Bill could be finished in the Recess. As Chief Whip, I think that that is a brilliant idea, but I think that he meant the spill-over period.
We have had two Statements today on important subjects. The Opposition, as is their right, properly took them. As the noble Lord knows, we were prepared to sit in the first week of August, but the Opposition Chief Whip said in the House that he would regard that as a hostile act. Therefore, we are under a certain degree of constraint and have had the problems with the Northern Ireland legislation.
This is the last week and we all know of the problems that arise in the last week. Let us make some progress tonight. I suspect that we shall have a full day tomorrow and a full day on Thursday. That is the time to see how far we have gone. I apologise to the noble Lord, who knows of the problems I have had. He has been very patient, so let us keep trying.
Lord Mackie of Benshie: My Lords, could we have five minutes more for our dinner now?
Lord Carter: My Lords, if the Question is put, noble Lords will get their dinner.
On Question, Motion agreed to.

Education (Student Support) Regulations 1998
7.32 p.m.
The Minister of State, Department for Education and Employment (Baroness Blackstone)The Minister of State, Department for Education and Employment (Baroness Blackstone) rose to move, That the draft regulations laid before the House on 17th July be approved [42nd Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move the Motion standing in my name on the Order Paper. With the leave of the House, I shall speak to both Motions.
My purpose today is to seek your Lordships' approval for the Education (Student Support) Regulations in respect of England and Wales and the Education (Student Loans) (Scotland) Regulations in respect of Scotland which will give effect to our proposals for making income contingent loans to students entering higher education from 1998–99. With the agreement of the House, this debate covers both sets of regulations. There is virtually no difference between them other than the dates of the academic year and one small difference in drafting, which has an identical legal effect. Otherwise, the two sets of regulations are identical. Parallel regulations for Northern Ireland will be made shortly, and they will also be the same. The two sets of regulations under consideration tonight were tabled on 17th July and have been looked at by the Joint Committee on Statutory Instruments.
This House has had a series of lively and interesting debates over these proposals. I believe today is not the time to go over all that ground again. I emphasise that these regulations cover the making of loans and are nothing to do with tuition fees. I hope that we will not be diverted by that issue again today.
The regulations relate to the academic year 1998–99 which is essentially a transitional year. New students will still be able to receive a maintenance grant, albeit at a reduced rate, but will be compensated by having access to a larger loan. The maximum full-year loan for a student studying in London will be £3,145. Existing students and those falling within the gap year and A-level/Highers appellants schemes will continue to receive a 50 per cent. grant and a 50 per cent. mortgage-style loan. Regulations covering the loan rates for these students were laid on 10th July.
We will make a commencement order to bring into effect Section 44(2) and part of Schedule 4 to the Teaching and Higher Education Act once the regulations now before the House are made. This order will repeal the existing student loans legislation; namely, the Student Loans Acts of 1990, 1996 and 1998. However, as I outlined to the House in some detail earlier this year, savings provisions will ensure that those Acts continue in force in relation to second and third-year students and certain others for as long as they are required. Mortgage-style loans will therefore be available for as long as there are students still entitled to them.
These regulations provide for the payment of new loans and do not cover the collection of repayments. Repayment provisions will be dealt with in another set of regulations to be made early next year. I know that some of my noble friends and noble Lords opposite have expressed concern about that, but I do not believe that there is any need to have such regulations ready now. They will be principally of interest to employers and those involved in the collection arrangements. They will be available over a year before any students begin repaying their loans. The regulations before us provide that no students will have to begin repaying before 6th April in the year 2000. Repayment regulations will require a great deal of further detailed preparatory technical work and we intend to consult employers about those details.
We have already provided students with information on the proposed repayment arrangements and we will be issuing all students taking out an income contingent loan with a detailed booklet explaining the Government's proposals on repayment of the new loans so that they are fully aware of how the loans are to be repayed. That will be more useful to students than a set of complex, highly technical regulations which normally only lawyers are able to follow.
I turn to the main provisions of the regulations before us. They deal with eligibility; amounts of loans for 1998–99; the application process; arrangements for paying loans in instalments; and the new hardship loans.
While the new loans will offer different and more flexible repayment arrangements, the eligibility criteria and the actual application process will be very similar to the current scheme. Loans will be available for all full-time designated courses, as defined in Schedule 2 to the regulations. In addition, we shall designate all part-time courses of initial teacher training for loans. For 1998–99, loans will be limited to those aged under 50 on the first day of the course, but as the Secretary of State has already announced, loans will be extended to those aged under 55 on the first day of their course—including those who start in 1998–99—from 1999/2000 onwards, where they plan to enter the labour market after graduation. I believe this is a welcome extension which will be of real benefit to those wishing to retrain or develop new skills at this stage of their lives.
Applications for new loans will be made as now, through the student's college, once they have enrolled on the course. The administration of the new and the existing schemes has been kept broadly similar to minimise the impact both on colleges and the Student Loans Company in advance of the much bigger changes planned for student support in 1999–2000. The application process is almost the same as for existing loans and colleges and universities are familiar with it. We have shown the draft regulations to representative organisations such as the Committee of Vice-Chancellors and the Standing Conference of Principals in Scotland and they have indicated that they are content.
There are one or two differences to draw to your Lordships' attention. First, we have decided that all new loans should be paid in instalments to help students to
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manage their finances better throughout the year. Students will of course still be able to apply at any time and for as much as they want. But if they do not take the maximum entitlement first time, they will now have a second opportunity to top that up.
Secondly, we are introducing a provision which will allow a student to be absent for up to 60 days if they are ill but continue to receive instalments during that time. A further discretion will enable payments to be made even if the student is absent for longer than this or if the absence is for other reasons such as caring duties if the college considers that the student could suffer hardship as a result. I hope that noble Lords will welcome these measures which go some way to ensuring that students in this unfortunate position—students who become seriously ill—are not left without financial support.
I said at the beginning that these regulations do not cover repayment arrangements, beyond providing that no repayments will be due before 6th April 2000. However, they do prescribe the rate of interest which the loans will attract, which is linked, as for the current scheme, to the rate of inflation. Borrowers will pay no more in real terms that they borrow. The interest rate for 1998–99 will be 3.5 per cent. based on the March retail prices index.
I turn now to hardship loans. Noble Lords will recall that as part of our programme to target support to those most in need, we announced our intention to introduce a discretionary loan of up to £250. The regulations we are debating cover the arrangements for paying and administering these loans. New students will be able to apply once in each academic year for an amount between £100 and £250 provided they have already applied for their maximum student loan. The hardship loan will be added to the student loan and repaid at the end of the course on exactly the same basis. It will be for universities and colleges to determine whether a student should receive a hardship loan taking into account students' individual circumstances. We will leave it to the institutions to set their own criteria, except that we believe the main test should be exceptional financial hardship such that the student might be unable to continue their course for the rest of the year and would therefore have to drop out.
Hardship loans will be paid by the Student Loans Company directly into students' bank accounts and we shall set it a target of seven days to make such payments. I know that colleges and universities have been anxious for information about this new loan and have been asking for further advice. The department will issue guidance before the start of term in the annual eligibility guide which will describe in detail how the new scheme should work and in particular will suggest what criteria colleges may wish to use when allocating hardship loan funds.
I should perhaps remind the House that these loans have been made available in addition to the access funds, where resources have been doubled for next year. Our advice will be that in general students should apply for a hardship loan before receiving any payment from the access funds, but again we will leave it to the

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discretion of the higher education institutions to decide which form of support is more appropriate for a particular student's individual circumstances.
I end by saying how much I value the excellent work which student loan administrators do in ensuring that students can apply for loans, often acting as financial advisers for students in difficulty.
Noble Lords will no doubt have noticed that the regulations do not mention the role of higher education institutions in the application process, nor do they set out any duties for colleges and universities. This is because the primary legislation places the duty on the Secretary of State. It does, however, allow him to transfer functions to other bodies—and he intends to do so—to universities and colleges with eligible students by way of a separate determination. I recognise that having to administer two systems and deal with hardship loan applications will place an added burden on administrators in universities and colleges next year. We have tried to keep their role to a minimum and they will of course benefit from 1999–2000 onwards by having much of their work in determining eligibility for student loans taken over by the local education authorities, the Awards Agency in Scotland and the education and library boards in Northern Ireland.
However, I am able to tell the House that we are making a small increase in the fee paid to institutions for each eligibility certificate they process—both for mortgage-style and for income contingent loans—from £4 to £4.50. This is the first increase for over five years. That is in line with inflation. We have also decided that for every income contingent loan processed we will also pay a further £1 in recognition of the work involved in assessing hardship loan applications, where there will inevitably be some unsuccessful applications. We believe that is fairer than just paying colleges for successful hardship loan applications.
As I explained earlier, the arrangements which these two sets of regulations cover are identical in purpose. They make transitional provisions for loans to new students in 1998–99, and are a crucial first step towards the implementation of our new student support system which we will have fully in place by 1999–2000. I hope that my opening remarks have been helpful in explaining some of the detail. I commend the two sets of regulations to the House.
Moved, That the draft regulations laid before the House on 17th July be approved [42nd Report from the Joint Committee].—(Baroness Blackstone.)
7.45 p.m.
Baroness Blatch: My Lords, I am grateful to the noble Baroness for explaining the two documents before us tonight. Perhaps I may say from the outset that the Department for Education and Employment, formerly the Department of Education and Science, has notoriously been very bad at producing regulations and orders. I do not believe I have ever seen one come out of the DfEE that does not suffer from manuscript amendments. This document is no exception.
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On one page there is an unreadable and indecipherable change. That is on page 7, paragraph 8(2). The particular change there is completely obliterated in my copy and I have tested a number of copies in the office. If the Scottish Office can not only produce an absolutely identical document with no manuscript changes at all, and produce it in a manner which is much more readable and in a typeface which lends itself to being easily read. I think that my criticism of the DfEE is one that carries force.
The noble Baroness says that the regulations have nothing to do with tuition fees. It is no intention of mine tonight to bring up the subject of tuition fees, except to say that my understanding is that loan facilities have been extended to some students to cover tuition fees. The term starts very shortly, in a matter of weeks. If there is a loan facility that is extended to cover tuition fees, when will we see the regulations which will cover that? It seems to me to be important that the students know about it.
The noble Baroness says that we will not see the repayment regulations until next year. I made the point, and it is worth repeating, that that is unfortunate. The regulations will confirm the repayment arrangements. As the noble Baroness has said, leaflets, which I am sure will be helpful to students, will be produced in advance of the regulations. They will be much more readable, more digestible and less complex. However, I have to say to the Minister that whatever they say, and however much they resort to lay language, they have to be based on the regulations which are approved by Parliament. It is Parliament that gives authority for those regulations, not glossy pictures and cartoon balloons talking to students about what Parliament may approve next spring. Not a mention has been made of means-testing overseas students. I am not sure when we shall see some reference to that in regulations.
When will the students see the money in the bank? When the noble Baroness talked us through the draft statutory instruments, she referred to applications being made by students when they actually go to university. A good many of us have had children in that position. Many students will be required to produce considerable sums of money in advance for their accommodation on their very first day in college. Given that students will have no grants on which to rely, they will have to find large sums of money ahead of making an application.
According to the regulations, the Secretary of State is bound to pay an instalment of the loan to a student within 30 days. Therefore, if the application is made when the student arrives at university and the Secretary of State makes sure that the loan is paid within 30 days, the student will already be one month into the course and that will be too late for many students.
Paragraph 5(4)(i) of the regulations on page 5, refers to students making certain whether they were, on the first day of the course, ordinarily resident, for the purposes of the regulations, in England, Wales, Scotland and Northern Ireland. First, is there an official definition of "ordinarily resident"? If so, upper case letters should have been used or the term should have been singled out as an official term. If there is no definition other

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than being resident for the first day of the course, does that mean, for example, that a student resident for the first day of the course in Scotland could come under the Scottish regulations for loans for the fourth year?
Later, in the same section dealing with the certificate of eligibility, there is reference to the process which must be undertaken in order to secure a loan. First, the student must seek a certificate of eligibility which seems to take some time. Again, I believe about one month passes between the start and the end of that process. Only after receiving a certificate of eligibility will a student receive an application form. The process then starts all over again. If I read page 6 correctly, which deals with the application for the loan, it seems that students must supply almost the same information all over again. If the certificate of eligibility has secured a student's bank's or building society code, age, date on which the course starts and so on, why is it necessary to undergo all that again? In today's technological age, is there not a system whereby that information could be passed down the line, in view of the fact that that certificate of eligibility is an extremely important document and a prerequisite in applying for the loan?
Arrangements for payment have not been referred to. I may be out of order on this, and, if I am, perhaps the Minister will tell me. However, as regards the arrangements for paying sums of money over to the universities for tuition fees, again, we are a matter of weeks away from the beginning of the year but we do not yet know what sort of money students will be expected to have; at what stage in the academic year they will be expected to pay; and whether they will pay in one sum for the year, monthly, termly or half-yearly. I understand that that is a matter to be decided by the universities and colleges. Will any criterion be applied? Will it just be bad luck for a student who arrives at a college which expects him to pay in advance six months' tuition fees? I make no apology for raising that matter and I accept that it may be out of order. However, I wish to place that on record because that question is exercising many students at this time.
The references to hardship in the regulations are fairly scant in terms of how this will be managed by the universities. The section on it is very thin; it gives very little information about how a student will qualify and what will be the criteria used to judge what is hardship. I imagine that a student who simply spends money too quickly will not qualify. Every student with full loan facilities and/or partial loan facilities but deemed to be funded by the better-off parents will start with the same money for the same courses in the same colleges and universities. Therefore, how will a student qualify for a hardship loan? What criteria will be used? Are the criteria to be established nationally so that there will be some consistency of application of this policy across the board, or will the matter be dealt with on a college-by-college basis, in which case a student may be lucky or unlucky, depending on the way in which a particular college operates?
The timescales are particularly worrying. If a student applied for certification of eligibility today, he would barely receive his loan by the first date of term. If that process does not start until the students arrive at
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university, they will not see the money in the bank until well into the autumn term. That will be much too late for many students.
The noble Baroness referred to access funds and the fact that they have doubled. I remind the noble Baroness that so too has the number of students who will be able to draw down the access funds. I wonder whether the number of students means that the sum of money available per student in terms of drawing down on the access funds is the same or better.
Finally, I deal with the increased payment made to universities for administration. The noble Baroness said quite rightly that it keeps pace with inflation. That is all it does. It does not reflect the extra administrative burden which will be placed on universities, which will be considerable. Universities are not only dealing with loans and the administration of them but also with the administration of tuition fees too. I wonder whether an extra sum of money will be paid on top of that which will reflect both inflation and the administrative burden.
Baroness Maddock: My Lords, we have already debated those matters at great length. When we were dealing with the Bill before it became an Act, some of us were rather hazy about what would be in the regulations. To be fair to the Minister, it is much as was forecast when we looked at the Bill.
Like the noble Baroness, Lady Blatch, I am rather worried about the timing for students. It will be tight. We always knew that. I hope that, for the sake of the students, it all goes smoothly.
I am extremely grateful to the Minister for her explanation and I welcome in particular the understanding of the problems of those who become sick while undertaking their courses and those who have particular caring responsibilities. The Minister talked about hardship funds and how they would be dealt with and referred also to the cost of administration. When she winds up, perhaps she will tell us whether the money that is to be given for the increase in administration will be top-sliced from money which might be going to universities in any event. I should be grateful for that information.
I wish to comment on four matters. The first is the payment of loans by instalments. Under the regulations, that will be three instalments. For most students, that is probably satisfactory. It seems a shame that there is not the opportunity for some students to have the money in a lump sum at the beginning. That is particularly relevant for mature students who perhaps have quite high outgoings. That is one issue that has been raised by the National Union of Students.
Similarly, the National Union of Students raises the point that the regulations will, as the Minister explained, allow two loan applications to be made in a full year. It would seem more logical to allow students to make three applications in line with the fact that three instalments are to be made. That seems logical.
Many people are very pleased, especially those of us on these Benches, that the Government have recognised the importance of lifelong learning and have indicated that they will eventually extend the loans to those aged

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55. Of course, it will initially be limited to those under the age of 50. It would be pleasant if we could really believe in lifelong learning and, at some stage, ensure that age is no bar to receiving a loan for further education purposes.
Perhaps I may take this opportunity to talk, once again, about those who are part-time students. On the whole, these loans are only available to students on full-time courses. I hope that it will not be too long before the Government can extend such facilities to part-time students, as is possible under the legislation. However, I welcome the fact that part-time students who are undergoing teacher training courses will be eligible for loans. That is a most important point.
Like the noble Baroness, Lady Blatch, I, too, am concerned that we have not as yet received details on collection arrangements. We debated this at some length during the passage of the legislation. I do not think that it is satisfactory just to have it in simple language. It is a legal requirement, and I have not changed my view in that respect. It is the Government's duty to produce the information as fast as they possibly can.
We are now at the initial stage of these new arrangements. In a sense, they will be interim regulations. I hope, therefore, that the Government will look most carefully at what actually happens on the ground. My experience of legislation made in Westminster is that, so very often, what happens on the ground does not filter through to those of us who are making the legislation and those who are administering it. For the sake of students, I hope that the process will be looked at and scrutinised very closely so that anything that goes wrong and which causes unnecessary hardship to students will be put right next year.
We are talking about a big change for students. It is very difficult for them to get their minds round such matters, although I know that much information has been supplied in that respect. Indeed, I believe that local authorities have, on the whole, done a sterling job in advising students on what will happen, even though they did not know the nature of the regulations. I admit that the Government have played their part in the process. However, at the end of the day, the proof of the pudding will be in the eating. Indeed, I hope that the eating will be heavily scrutinised so that it will be an even better meal for our students next year.
8 p.m.
Lord Davies of Oldham: My Lords, I have a few brief comments to make. Before I begin I should declare an interest as chair of the Further Education Funding Council. Obviously, I am concerned about these regulations in terms of the impact upon students in higher education. Most of the institutional references that I make during the course of my remarks will overwhelmingly relate to universities because the issues clearly impact upon them rather more than on colleges.
However, I shall begin by being slightly more generous than the two previous speakers have been in their contributions. We should recognise the advantages to be derived from the increase in the fee to the
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institutions for the administration of the loan. Over a number of years, I recall that universities have pointed out just how uneconomic, as far as they are concerned, the actual contributions from government to institutional finances have been; indeed, how inadequate they have been in relation to the cost of administration. Therefore, it is a welcome sign that the Government have recognised the difficulties and that there has been a significant increase in the fee payable to institutions, although I have no doubt at all that that will be regarded by some as falling somewhat short of the costs involved.
The only area in which I should like to emphasise real difficulties is one where the Government have been most constructive. The concept of the hardship loan is very welcome. We all know that we must pay real attention to the dangers of students dropping out of courses because of problems associated with finance. It seems to me that the issue here is just how efficient it is necessary for the administration to be in response to such problems. Looking at the document, it seems to me that students must be able to identify that they are in danger of dropping out unless they receive additional support. By definition, that identifies a student as being in a somewhat parlous state and it means that such an application would need to be processed very rapidly so as to enable the student to sustain himself on a course.
As we all know, the final term of the academic year is a time when students are likely to be facing examinations and academic tests which will determine whether or not they will be able to sustain themselves on the course in terms of their academic competence. Therefore, the issue of hardship bites in at the most difficult part of the educational process so far as concerns students. I hope that I heard my noble friend the Minister correctly and that real attention will be paid to the rapidity with which these decisions are made. We all know that a delay at such a stage would place a student in a quite invidious situation.
In the expectation of some reassurances on that front, perhaps I may say how much I welcome the improvement in the position which is represented by this structure as regards students. I hope that the challenges which have been made from the other side of the House—indeed, proper queries about the way in which things should be administered—are set against the general background where it is recognised that improvement lies ahead of us so far as concerns students in higher education.
Baroness Blackstone: My Lords, I should like to thank all those who have contributed to this short debate. I am especially grateful to my noble friend Lord Davies for welcoming the hardship loans, which I believe are an important way to help those students who get into serious financial difficulty. Perhaps I should, first, deal with the issue of hardship loans. The noble Baroness, Lady Blatch, wanted to know what the criteria for awarding a hardship loan would be. As I said in my introductory remarks, the Government believe that it is for higher education institutions to decide who should have hardship loans. They are in the best position to judge the circumstances of individual students.

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It is certainly the case that we would expect those institutions to take into account taxpayers' commitments and that students who come along with sob stories, which really cannot be sustained under investigation, should not be given additional support. However, at the same time, there will be many students who, through no fault of their own, may have got themselves into a position where they are in serious financial difficulty and are in danger of dropping out of a course. Occasionally, it may be the case that a student has made a mistake in terms of the kind of accommodation that he thought he would be able to afford and he may need advice and help in securing accommodation, which is not as expensive, so that he can actually survive for the rest of the year.
I shall try to deal with the various questions which were put to me by both the noble Baroness, Lady Blatch, and the noble Baroness, Lady Maddock. The noble Baroness, Lady Blatch, began by pointing out that there is a manuscript amendment on page 7 of the document. I believe she particularly mentioned page 7, which she said was indecipherable. All I can do is apologise to her. In my particular version there is no manuscript amendment on that page. However, I shall do my best to ensure that another version of the document is passed on to her where all the amendments in manuscript form are clear and legible. That was a fair and reasonable point for the noble Baroness to make.
The noble Baroness, Lady Blatch, also asked about the loans facility to cover tuition fees. There is no loans facility to cover tuition fees. Loans are entirely for maintenance.
The noble Baroness also suggested it was important that regulations on repayments should be produced as soon as possible. We shall do that but as I explained earlier there are complex technical issues that need to be sorted out with employers. I am sure the noble Baroness will agree it is important that employers are consulted, as they will be responsible for providing information to the Inland Revenue on the collection mechanism. I certainly hope that we shall not produce guidance for students that is full of cartoon "balloons". I hope that the guidance will be clear and readily comprehensible to all students.
The noble Baroness also asked about the means testing of overseas students. Overseas students are, of course, not eligible for loans. Therefore that is not entirely relevant to today's regulations. In any case the Government covered the means testing of overseas students in the mandatory award regulations that were made earlier in the summer in May.
I turn to the issue of when students will have access to their loans. The noble Baroness suggested that students may be left without any money at all in the first 30 days because the regulations prescribe a time limit of 30 days. That is the maximum time which should be required to pay loans, allowing for delays if the information provided by students is incomplete. We intend to set the Student Loans Company a target of paying new loans. My officials are in the process—
Baroness Blatch: My Lords, I am grateful to the noble Baroness for giving way. There are two delays.
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The certificate of eligibility has to be secured first, which takes some time. Secondly, the 30 days begins only when the application has been made and it cannot be made until the Secretary of State has made arrangements for an application certificate to be issued.
I refer to tuition fees and no loan facility being extended. As regards a parent with a son or daughter going to university this autumn who perhaps qualifies to pay only £500 of tuition fees—therefore the parent is on a modest income—who is expected to find the £500: the student, who has no money whatsoever and no income whatsoever, or the parent, who has no residual income left? If it is the parent who is expected to find the money, the Government cannot keep stating in leaflets—as they do—that parents will not be expected to find one extra penny when their young daughters and sons go to university.
Baroness Blackstone: My Lords, students whose parents have been means tested will this coming year—if their parents are eligible because their income is sufficiently low—continue to receive a grant. Some 25 per cent. of their maintenance will be covered by grant. That will be paid when the student arrives at university, just as it is now. Therefore there is no problem in terms of students not having any funding. It is important that I make this point clear. I shall refer first to maintenance and then discuss fees. However, I think we should leave the fee issue out of this because it has nothing to do with these regulations. As regards maintenance, students will continue to have access to a grant during 1998–99 which covers 25 per cent. of their maintenance, because this is a transitional year. The students therefore will receive that before they start their courses. I hope I have made that clear.
The noble Baroness asked about the certificate of eligibility. In devising this scheme we made it absolutely clear from the beginning that the payment of admission—I am sorry, I cannot find my correct note on the certificate of eligibility. I shall return to that matter in a moment. As regards the payment of tuition fees to universities, that is not part of these regulations. That is a matter that concerns the quite different issue of fees. However, it is for universities to collect the fees. I believe that they will benefit considerably—as we have already announced in the comprehensive spending review—from this new scheme. I remind the noble Baroness that universities already collect fees for a whole variety of different kinds of students: postgraduate students, part time students and students from overseas. They are used to doing that. From my own experience I know that universities are well able to undertake that task.
The noble Baroness, and I believe the noble Baroness, Lady Maddock, asked whether universities are being adequately rewarded for the work they undertake in collecting fees, in providing hardship funds and in increased access fund payments. The government of the noble Baroness, Lady Blatch, did not increase the funding available to universities for taking on these tasks for a whole five years. We have increased the funding. Our increase is slightly greater than inflation

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over that period. We are also paying an additional £1 per application—not per payment—of hardship funds. I believe the universities accept that that is reasonable.
I return to the issue of the eligibility certificate and application form in one document. They are completed at the same time. One part is sent to the Student Loans Company by the college or university and the second part by the student. The regulations simply separate out the information to be provided on both parts of the form. There should be no delay caused by having to complete both forms as they are done at exactly the same time at the same interview.
The noble Baroness also asked whether there was a definition of ordinary residence. There is no such definition in the legislation but the phrase has a long-established meaning. It has been used in the existing student loans scheme. There have been cases in the courts which have clarified what I believe is now a pretty well understood definition. The noble Baroness also asked what happens to a student who moves from where he or she is ordinarily resident to attend a course. Regulation 2(2) provides that if a student moves from, say, Scotland or Northern Ireland to England, he will be treated as ordinarily resident in the place where he has moved from.
I turn to the points raised by the noble Baroness, Lady Maddock. She was concerned about the payment of loans by instalment, particularly as regards mature students. I have a great deal of sympathy for mature students but I think they, like younger students, will need to receive support throughout the academic year. I do not think it would be particularly helpful to them to have all the money up front rather than at the beginning of each term. That will allow them to make payments—if they have to make any—at the beginning of each term. The noble Baroness also asked about the cost of administration to the university. I think I have covered that. She also asked whether the—
Baroness Maddock: My Lords, I thank the Minister for giving way. With respect, she did not cover the point that I raised. Is the money being provided to help with administration costs in universities, extra money, or is it top-sliced from other money in the higher education budget?
Baroness Blackstone: My Lords, the extra money that is being provided to support universities in carrying out the administration of the scheme is extra money for the universities. It will be covered by the additional money provided under the Comprehensive Spending Review.
The noble Baroness asked that anything that might go wrong should be put right. I very much hope that matters will not go wrong and that the introduction of the new loans scheme will go smoothly. We shall monitor very carefully the scheme's introduction. Where there are problems, we shall do our very best to iron them out, and do so as soon as we possibly can.
Baroness Blatch: My Lords, before the noble Baroness sits down, the answer given in relation to the
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eligibility form is not consistent with the regulation. I should be glad if the noble Baroness would clarify what she has just said.
Subparagraph (7) of paragraph 5 states:
"If the Secretary of State is satisfied that the particulars in the eligibility form are correct and that the student is an eligible student he shall certify those matters to the best of his knowledge and belief and also certify the amount of loan for maintenance to which he considers the student is entitled".
The regulation goes on to state:
"The Secretary of State shall issue to each student whose eligibility he has certified an application form"—
so the forms are not dealt with at the same time—
"which identifies the particular certificate of eligibility".
Paragraph 6(1) states that an eligible student—in other words has to secure eligibility first—
"shall apply for a loan for maintenance".
That is wholly inconsistent with the answer given by the noble Baroness.
Baroness Blackstone: My Lords, I can only repeat what I said. The application forms are completed at the same time. One is passed to the Student Loans Company by the college or university, and I understand that the second, the function of certifying, will be exercised by the higher education institution. I hope that that helps the noble Baroness in explaining the system.
Of course we must avoid a system in which we ask students to do things that make the process unduly complex and difficult. I assure the noble Baroness that that is not the case. Students will all receive access to their loans within the time specified and there will be no delays. That is a requirement that we are making on the Student Loans Company. It will be given targets that it must achieve. There should be no delay whatsoever caused by having to complete both forms, which I am advised have to be completed at the same time.
Baroness Blatch: My Lords, this is legislation that we are passing. Secondary legislation is as important and pertinent as the primary legislation itself. It states that the application form will be delivered to the student when eligibility has been secured. That means that one follows the other; the forms are not simultaneously filled in by the student. The student does not receive an application form until he or she has secured eligibility and a certificate to prove it.
Baroness Blackstone: My Lords, as I have said, the university or college to which a student goes will, as soon as the student registers, issue a certificate of eligibility. The student can then fill in the form—which will give the student plenty of time; it will be done more or less simultaneously—to acquire a loan within the 30 days which are stipulated in the regulations. I commend the regulations to the House.
On Question, Motion agreed to.

Education (Student Loans) (Scotland) Regulations 1998
Baroness Blackstone: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the draft regulations laid before the House on 17th July be approved [42nd Report from the Joint Committee].—(Baroness Blackstone.)
On Question, Motion agreed to.

Scotland Bill
8.24 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 Lockwood) in the Chair.]
Schedule 5 [Reserved matters]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 210:
Page 80, line 19, at end insert ("and the subject matter of the National Minimum Wage Act 1998").
The noble Lord said: This amendment examines Head 8 of Schedule 5 to the Scotland Bill dealing with employment. It relates to Section 1 dealing with employment and industrial relations.
The Bill as drafted reserves a number of Acts regarding employment. One is the "National Minimum Wage Act". I do not believe that it is yet an Act, since it was the Third Reading of that legislation which delayed us this afternoon. I suspect that the Government are rather looking forward when they include the National Minimum Wage Act 1998. Why should the National Minimum Wage Act be reserved? My Amendment No. 210 would devolve that legislation; it would be exempt from reservation.
It seems that we are looking at yet another example where the Government do not trust the Scottish parliament or the Scottish people. Why should the Scottish parliament not set the minimum wage level in Scotland, or even decide whether there is to be a minimum wage level at all?
In the Bill to which we gave a Third Reading earlier, the Government leave the door open for differential minimum wage rates, with the Armed Forces being treated differently and the strong prospect of a different rate for the under-25s. So the Government have clearly admitted the possibility that the minimum wage may not be uniform.
Under the Bill there is greater devolution of training matters. One wonders about the logic behind devolution being allowed for training matters and yet not allowed for the minimum wage. One wonders why the
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Government have decided to exclude it. I shall not leave the Committee wondering long before I suggest one or two clues. I wonder, for example, whether the real problem is that the Scottish Trades Union Congress will have a different view of the minimum wage from that of the their colleagues south of the Border. They may wish for a higher level of minimum wage than that with which the Government are content. I wonder whether the STUC has been consulted.
Lord Sewel: I am grateful to the noble Lord for giving way. He will be aware that much of the criticism made of a national minimum wage from the Opposition Benches both in this Chamber and in another place has been concerned with the impact of a national minimum wage on macro-economic policy. Will the noble Lord clarify whether it is the policy of his Benches to argue for macro-economic policy to be devolved?
Lord Mackay of Ardbrecknish: This is not my Bill. This is the Government's Bill. That question is not relevant to the question that I am posing as to why the matter should not be devolved. Macro-economic policy in Scotland is just as important as in the rest of the United Kingdom. I should have thought that the Scottish parliament would have a role to play—although that role has been greatly diminished by the Government's refusal to accept my view that someone nominated by the Scottish parliament should sit on the Monetary Policy Committee of the Bank of England. But perhaps that is something of an aside. I thought the Minister was about to tell me that the STUC had been consulted and that it approved of the matter not being devolved. But presumably, it has not, and does not.
We know that the Convention of Scottish Local Authorities has done a deal for its employees with a minimum wage of £4 an hour. I suspect that that is a little more generous than the Government would like to see. That has already happened in Scotland. Certainly, the employees of local government, for example in North Lanarkshire and East Ayrshire, will be very interested—although I suppose the plumber earning £54,000 a year is not too concerned about a minimum wage of £4 an hour. It is amazing that in that regard employment seems to be a matter for the Secretary of State for Scotland. I refer to employment and direct labour organisations, where he appears to have sacked some 2,000 workers, and yet the chiefs, the councillors and chief officials, go totally unscathed, including Councillor McGuigan, who sits on the Scottish Executive of the Labour Party. If we are to have a national minimum wage, is not Scotland a nation? Should we not look at the national minimum wage inside Scotland? Or is it a matter, like some others to which we shall come, such that if it might be difficult for the Labour Party branch in Scotland it must be kept here at Westminster rather than cause difficulties?
Perhaps the most interesting question is this. If noble Lords glance through the National Minimum Wage Bill 1998 to "Exception from reservation", we come across the subject matter of the Agricultural Wages (Scotland) Act 1949. It so happens that I have that Act in front of me, from Statutes in Force. It states that:

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"There shall be a Board to be called the Scottish Agricultural Wages Board … which shall have … such functions with respect to the fixing of minimum rates of wages for workers employed in agriculture".
Section 3 states:
"(1) Subject to and in accordance with the provisions of this section, the Board shall have power to make an order in accordance with the provisions of Schedule 3 to this Act—

(a) fixing minimum rates of wages;

(b) directing holidays to be allowed;

(c) fixing any other terms and conditions of employment for workers employed in agriculture".

Subsection (2) states that:
"The power of the Board to make an order under subsection (1)(a) of this section fixing minimum rates of wages is a power to make an order—

(a) fixing minimum rates for time work;

(b) fixing minimum rates for piece work;

(c) fixing minimum rates for time work …;

(d) fixing separate minimum rates by way of pay in respect of holidays".

Clearly, as regards agricultural workers, it seems to be perfectly reasonable that their wages ought to be devolved and the minimum wage legislation contained in the 1949 Act should be devolved.
My question is: why can we not have some logic? Surely, the Agricultural Wages (Scotland) Act 1949 should not be devolved, it should be among the reservations. If it should not be there, then surely it should be in the "Exception from reservation" in the National Minimum Wage Act 1998. I beg to move.
8.30 p.m.
Lord Thomas of Gresford: The noble Lord, Lord Mackay of Ardbrecknish, has seen deep plots in the Government's failure to refer to the national minimum wage in this Bill. He seems to think that the political difficulties of the Labour Party in Scotland have caused them to exempt the National Minimum Wage Act from this legislation.
I believe that the answer is much simpler. It is that the Government have not given any thought to it. The answer that was given in another place, as I see it, is that a national minimum wage is what it says. It is legislation that must be employed all over the country, which means the United Kingdom. It says that the national minimum wage will ensure that there is a level playing field across the country—and I use a slightly worn cliché which is no doubt in the brief of the noble Lord, Lord Sewel. However, there is no level playing field at the moment. Consider Scotland and Wales; those two areas are significantly poorer in their wage levels than England. We as a party have long supported the case for regional variations and regional differences in the minimum wage that is to be employed.
The noble Lord, Lord Sewel, interrupted the noble Lord, Lord Mackay, and said that it is macroeconomic policy. That wonderful phrase can mean anything to anyone. Macroeconomic policy is the reason for this. But the Government have devolved significant economic levers to Scotland in the Bill. There are
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variables between Scotland, and England and Wales with differential rates of tax and possibilities for differential council tax. So there is already a position in Scotland where there can be quite significant differences in take-home pay.
We would like to know—and that is why we support the amendment in a probing way—whether the Government, in addition to considering differential minimum wages in the Armed Forces and for those under 25, will take into account the poorer areas of the country. Wage levels in those areas have been consistently low over many years. When I say that, I do not mean just Scotland and Wales. There are areas such as the North East where the same case can be made. I look forward to hearing the Minister's reply.
Baroness Carnegy of Lour: I support the amendment. It seems to me, as I said on the last day of Committee, that the Scottish parliament can make a difference to Scotland if it gets the economy going well in a dynamic way which brings firms into Scotland, keeps them there, and brings in people who want to work for good companies in Scotland. It means that the market operates as freely as possible. It is good to hear the Liberal Democrats supporting that and saying that pay should be different in different parts of the country according to what employers feel is right for their firm. That implies that the minimum wage should be capable of being different in Scotland.
I wonder what the Scottish Trades Union Congress thinks of the Government's policy. Surely it wants to play a strong role in working together with the Scots parliament in getting a dynamic economy going so that there are more jobs in Scotland, even perhaps a lower rate of unemployment in Scotland than south of the Border. That is part of what the Scots parliament must be about. Yet the Government are trying to put the economy of Scotland in a straitjacket to that extent. I am sure that it is a mistake. I support the amendment.
Lord Mackie of Benshie: The Agricultural Wages (Scotland) Act, 1949 is accepted and the farmers' union pleaded with the previous government to keep it. It is significantly different from the Act in England in that for a long time there have been special rates for special jobs; in Scotland, for example, for hill shepherds and similar jobs. If that can be done, I do not see why we cannot do it with the national minimum wage as well.
Baroness Ramsay of Cartvale: As the noble Lord, Lord Mackay of Ardbrecknish, made very clear, the purpose of the amendment would be to devolve the subject-matter of the National Minimum Wage Bill currently progressing through Parliament. The amendment would not achieve that on its own: we would also have to delete paragraph (h) of the reservation which reserves the subject-matter of the National Minimum Wage Act 1998.
The Government have already made clear that they strongly believe that a national minimum wage should be just that—national. This is essential to maintain the level playing field for business, and the single market for jobs within the UK. These are of course among our

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key objectives in framing the Scotland Bill. The national minimum wage is also in many ways, as my noble friend Lord Sewel said, an instrument of macroeconomic policy, another matter which it clearly makes sense to reserve. It is for these reasons that the Scotland Bill reserves the subject-matter of the proposed National Minimum Wage Act as well as other aspects of employment rights and duties and industrial relations. A single national minimum wage applying throughout the United Kingdom will ensure clarity, simplicity and ease of enforcement. Given that the Opposition wish to protect business interests in Scotland, I hope that they will recognise that that is best achieved by the subject-matter of the National Minimum Wage Bill being a reserved matter.
It makes no difference where you live and work in the UK, low pay is low pay. Putting a floor under pay to avoid unacceptably low levels is what the national minimum wage is about. The argument of some noble Lords, like the noble Lords, Lord Mackay and Lord Thomas of Gresford, might be valid if we were debating the level of wages. That would depend upon peoples skills and abilities and the need for those in different parts of the United Kingdom. But we are not talking about a wages policy; we are talking about a national minimum wage. This is a minimum level above which fairness starts and below which exploitation begins. And this should certainly be no different in Scotland than in the rest of the United Kingdom.
The Government's proposal is for a simple practical system involving a single national minimum wage which can be established quickly in the public perception. Both sides of industry, both in Scotland and in the UK as a whole, accepted this proposal, which will achieve a level playing field for business and minimise bureaucracy.
In the Government's view, the economic case for regional rates does not stand up. How would it accommodate pockets of low or high pay within regions? The fact is that low pay is found in all regions. A system of unequal rates would also be confusing and impose an unnecessary burden upon business. We do not want to create low pay ghettos. The aim of the national minimum wage is to encourage firms to compete in terms of the quality of goods and services, not to focus on low prices based on rock-bottom rates of pay.
The recent Opposition amendment to the National Minimum Wage Bill will not deter the Government from their manifesto commitment to introduce a single national minimum wage. That amendment introduced a power for the Secretary of State to undermine the national minimum wage through exemptions. I should make clear that this Government would have no intention of using the power, if it still remains after the National Minimum Wage Bill has completed its parliamentary consideration.
Some Members of the Committee raised the fact that the Agricultural Wages (Scotland) Act 1949 will be one of the exceptions. Obviously, it is not the purpose of the exception to enable the Scottish parliament to legislate to exclude agricultural workers from the national
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minimum wage. The 1949 Act covers the setting of minimum rates of wages and other terms and conditions of employment for agricultural workers. That is a different purpose from those of the National Minimum Wage Bill and we do not consider that the exception would enable the Scottish parliament to remove the under-pinning which the national minimum wage would provide for agricultural wages.
Lord Mackie of Benshie: The wages under the Agricultural Wages Board are far higher than the minimum wage that I have seen.
Baroness Ramsay of Cartvale: That is the point. The exception would not mean that the Scottish parliament was in any way stopping the wages being higher. The National Minimum Wage Bill means that they cannot be below the national minimum wage. It does not put a ceiling on wages; it puts a baseline below which they should not sink.
In view of my explanation, I hope that the noble Lord will withdraw his amendment, though I do not say that with great hope.
Lord Thomas of Gresford: The playing field to which the noble Baroness referred reminds me of some of the playing fields in Wales on which I referee rugby matches—they are on the sides of mountains.
The Minister said nothing tonight which suggests how the differences that exist between Scotland, England and Wales are to be levelled. The fallacy of what she says is that she presented the national minimum wage as a social policy dressed up as macro-economic policy. When she suggests that the national minimum wage is intended to create the point between a fair return and exploitation, that is social policy; it has nothing to do with economic policy. I do not have at my fingertips the statistics for Scotland, but I know that in Wales the average wage is around 83 per cent. of the wages that are prevalent in England. I want to see, through devolution, those levels equalised. A national minimum wage is not the way to do it.
Baroness Ramsay of Cartvale: I cannot resist coming back to remind the Committee that the national minimum wage is about drawing a baseline below which nobody should fall. It has nothing to do with wages policy and whatever else the noble Lord, Lord Thomas of Gresford, would like to do to even out distribution across the country. That is not what we are talking about here. We are talking about a national "minimum" wage Bill.
Lord Mackay of Ardbrecknish: We do not seem to have made too much progress from where we left off on Thursday night, when the answers to questions merely repeat what the Bill says; do it often enough and hope that we might vanish from the field of battle through exhaustion.
If I heard the noble Baroness right, she said that the Government do not want to create low pay ghettos. Does that mean that she thinks the Scottish parliament would deliberately create low pay ghettos in Scotland? Has she

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that little confidence in the Scottish parliament she is busy setting up that she believes it would deliberately create low pay ghettos? If so, why is she allowing the poor agricultural workers to be left at the mercy of the Scottish parliament? That is an amazing contradiction. It is sauce for the goose and sauce for the gander and it is the problem we had at the tail end of Thursday night's Committee stage. The Government could not give a logical explanation as to why some matters fell in "reserved" and others fell in "not reserved". They fumbled about and hoped we would tire from exhaustion.
The noble Lord, Lord Thomas of Gresford, is right that there is a difference in Scotland. Under this Bill Scottish wage earners might be paying 3p in the pound more in taxes. As I have told Members of the Committee before, a Scottish wage earner who unfortunately lives in Glasgow is paying hugely more council taxes because of the disgraceful way in which the Labour Party runs the City of Glasgow. It hammers people who live there, except the lucky few who escaped from the City of Glasgow in order to live in the leafy suburbs where their council tax bill is so much less.
Those factors are important. The noble Lord, Lord Thomas of Gresford, suggested that Scotland overall might be a lower wage economy than England. In fact, I suspect that in oil-led Grampian, that will not be the position. In fact, a minimum wage in Grampian, if one looks at the average wage, may look a great deal higher than in the rest of Scotland.
The real point is this. I would not be arguing so much about this matter if both the Agricultural Wages (Scotland) Act and the National Minimum Wage Bill were reserved or if both were exempt. It is the way in which one is reserved and the other is exempt without any good reason that worries me. Of course, we are not talking about a wages policy, though I am not entirely sure whether the National Minimum Wage Bill is not a form of policy. We are not arguing about whether or not we should have one; that is an argument for others in the Chamber. The Chamber decided about that and the Government decided that the National Minimum Wage Bill will become an Act. I am simply saying, if it is going to the Scottish parliament, that the Agricultural Wages (Scotland) Act ought not to be exempted. It is that exemption that puzzles me most of all and for that reason I shall seek the opinion of the House.
8.48 p.m.
On Question, Whether the said amendment (No. 210) shall be agreed to?
Their Lordships divided: Contents, 43; Not-Contents, 81.

Division No. 3

CONTENTS

Alton of Liverpool, L.

Carnegy of Lour, B.

Ashbourne, L.

Courtown, E. [Teller.]

Astor, V.

Cross, V.

Attlee, E.

De L'Isle, V.

Blatch, B.

Dean of Harptree, L.

1284

Dixon-Smith, L.

Pilkington of Oxenford, L.

Dundonald, E.

Rawlings, B.

Hylton, L.

Renton, L.

Kingsland, L.

Renwick, L.

Kintore, E.

Rowallan, L.

Knight of Collingtree, B.

St. John of Fawsley, L.

Lyell, L.

Saltoun of Abernethy, Ly.

McConnell, L.

Sanderson of Bowden, L.

Mackay of Ardbrecknish, L.

Selkirk of Douglas, L. [Teller.]

Sempill, L.

Mackay of Drumadoon, L.

Shrewsbury, E.

Mancroft, L.

Skelmersdale, L.

Marlesford, L.

Soulsby of Swaffham Prior, L.

Molyneaux of Killead, L.

Stair, E.

Montrose, D.

Strange, B.

Mountevans, L.

Torphichen, L.

Northesk, E.

Wilcox, B.

NOT-CONTENTS

Alli, L.

Irvine of Lairg, L. [Lord Chancellor.]

Amos, B.

Archer of Sandwell, L.

Islwyn, L.

Barnett, L.

Janner of Braunstone, L.

Bassam of Brighton, L.

Jay of Paddington, B.

Berkeley, L.

Judd, L.

Blackstone, B.

Kennedy of The Shaws, B.

Borrie, L.

Kilbracken, L.

Burlison, L.

Lockwood, B.

Carmichael of Kelvingrove, L.

Lofthouse of Pontefract, L.

Carter, L. [Teller.]

McCarthy, L.

Clinton-Davis, L.

McIntosh of Haringey, L. [Teller.]

Cocks of Hartcliffe, L.

Currie of Marylebone, L.

Mackenzie of Framwellgate, L.

Davies of Oldham, L.

Merlyn-Rees, L.

Dean of Thornton-le-Fylde, B.

Milner of Leeds, L.

Desai, L.

Monkswell, L.

Dixon, L.

Murray of Epping Forest, L.

Donoughue, L.

Peston, L.

Ewing of Kirkford, L.

Pitkeathley, B.

Falconer of Thoroton, L.

Ponsonby of Shulbrede, L.

Prys-Davies, L.

Farrington of Ribbleton, B.

Ramsay of Cartvale, B.

Fitt, L.

Randall of St. Budeaux, L.

Gallacher, L.

Rendell of Babergh, B.

Gilbert, L.

Sefton of Garston, L.

Gordon of Strathblane, L.

Sewel, L.

Goudie, B.

Simon, V.

Gould of Potternewton, B.

Smith of Gilmorehill, B.

Graham of Edmonton, L.

Stoddart of Swindon, L.

Grenfell, L.

Stone of Blackheath, L

Hacking, L.

Symons of Vernham Dean, B.

Hanworth, V.

Taylor of Blackburn, L.

Hardie, L.

Thomas of Macclesfield, L.

Hardy of Wath, L.

Thornton, B.

Haskel, L.

Turner of Camden, B.

Hayman, B.

Uddin, B.

Hollis of Heigham, B.

Walker of Doncaster, L.

Hoyle, L.

Watson of Invergowrie, L.

Hughes, L.

Whitty, L.

Hughes of Woodside, L.

Williams of Mostyn, L.

Hunt of Kings Heath, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
8.56 p.m.
[Amendment No. 211 not moved.]
Lord Steel of Aikwood Lord Steel of Aikwood moved Amendment No. 212:
Page 81, leave out lines 2 to 4.
The noble Lord said: I beg to move Amendment No. 212 standing in my name on the Marshalled List.
The Bill quite clearly devolves the whole of the criminal law of Scotland to the Scottish parliament; it also devolves all health matters in Scotland to the Scottish parliament. It is my first contention that the law of abortion as a subject falls entirely within these two categories and therefore the burden of proof lies on those who wish to remove it from those two categories and make it a reserved issue, as is suggested in the current text of the Bill. It is illogical. The proper place for future discussion on the law of abortion is in the Scottish parliament.
I listened to much of the Commons debate on the Bill. This issue was debated briefly in the other place. At the end of the debate there was some confusion. There was a free vote among the members of my party, a free vote among the members of the Conservative Party and for all I know among the members of the SNP. There was not a free vote on the government side, except that at the last minute the Whips were told that they could have a free vote. Therefore we had the unusual constitutional doctrine of a free vote for the Whips and a whipped vote for everybody else. There was some irritation the next day when everybody else discovered that that is what had happened. That is one reason why we should have another look at this issue.
The Secretary of State for Scotland, who replied to the debate in the other place, said that I, as then Member for Roxburgh, Selkirk and Peebles, when I was piloting the 1967 Bill through the House of Commons, had included Scotland in the Bill and that the arguments put in 1967 had some force. I hold the Secretary of State in high regard but, with great respect to him, he really did not know what arguments had gone on behind the scenes on this issue. It is only right that I should inform your Lordships' House of what exactly happened.
First, the Bill which I introduced in 1967 in the other place had already gone through all its stages in this House. It was this House which pioneered the reform of the law on abortion. The Bill was waiting to be picked up by whichever Member had a high place in the ballot for Private Members' Bills. Indeed, the campaign for the reform of the antiquated laws had had six Bills before mine in the House of Commons, but here, in the House of Lords, Members from the Bishops' Benches, and the noble Lord, Lord Soper—I am glad to see that he is still with us on occasions—took a leading part in the campaign for reform, which was supported both by my own church, the Church of Scotland, and strongly backed by a committee of the Church of England. So, when that Bill had its Second Reading, its provisions covered the whole of Great Britain.
There was a long gap between the Second Reading of that Bill and its Committee stage, during which many arguments raged about what amendments should be made to the Bill. A strong campaign was started to try to exclude Scotland from the provisions on the ground that the Infant Life (Preservation) Act did not apply in Scotland and that the Bourne case—the celebrated case in which Sir Alec Bourne had been prosecuted for carrying out a medical termination of pregnancy—showed that case law in England did not apply in Scotland. It was therefore argued that we should rely on
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the common law of Scotland, under which it was possible for some practitioners to pursue a policy of medical termination of pregnancy.
I was therefore invited to go to Aberdeen. It is significant that we have a distinguished alumnus of that university in a ministerial post and promoting this Bill in your Lordships' House. I went to Aberdeen University to meet Sir Dugald Baird, professor of gynaecology, and his colleague, Professor Miller, who held the Chair of psychiatry. One of our discussions related to the question of whether Scotland should be included in the provisions of that Bill. Sir Dugald was emphatic on the subject. He said, "On no account must you agree to any amendment removing Scotland from the Bill". I said, "But the argument is that people like yourself have been able to carry out a policy which would not be possible in England, so why should you not go on doing so?" He said, "I'll tell you why. Some time ago I had a telephone call from the Lord Advocate, who was concerned at the number of terminations of pregnancy in Aberdeen, which were out of line with the figures for the rest of Scotland. He gave me a warning that I was running subject to prosecution". I asked "What did you do?" He said, "I'll tell you. The next time I had a case in the operating theatre, I put a call through to the Crown Office in Edinburgh and asked to speak to the Lord Advocate. I said, 'Lord Advocate, I have a woman here waiting for an operation. May I proceed?' and the Lord Advocate said, 'How do you expect me to make a decision like that, a couple of hundred miles away and on the end of the telephone?". Sir Dugald said that he had replied, "Precisely, it is a matter for my clinical judgment". He said to me, "Young man"—that is what I was then—"on no account must you leave the law in Scotland and its application to the whim of passing Lords Advocate". I say that in the presence of the noble and learned Lord, Lord Mackay of Drumadoon, and facing the benign personage of the present Lord Advocate. I think, however, that he was right. He had made his point—and Scotland was included in the legislation.
The administration of the law on abortion in Scotland has been a good deal more satisfactory than has been the case in England and Wales. Perhaps I may give the Committee the figures. In 1996 in Scotland, 99 per cent. of all abortions were carried out under the National Health Service. In England and Wales, the figure was only 72 per cent. In 1995 in Scotland, 63 per cent. of all abortions were carried out below the tenth week of pregnancy. In England and Wales—it is not a precise analogy—only 40 per cent. were carried out below the ninth week of pregnancy. So, Scotland has already demonstrated that it can cope with the administration of the law on abortion in a rather more satisfactory way all round than is the case south of the Border, where there are still great fluctuations in practice from one health authority to another.
An important point to note is that the 1967 Bill did not apply to Northern Ireland. That is because Northern Ireland had its own devolved parliament. Stormont was in existence and it was never in question but that the issue of the law on abortion in Northern Ireland should

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be left to the parliament in Northern Ireland. Presumably, that is the case again, now that we have the new Northern Ireland Assembly.
In recent years there has been a growing campaign in Northern Ireland to change the law on abortion and to bring it more into line with that in Great Britain. The campaign has had rather an uphill struggle since this is the one issue on which Dr. Ian Paisley stands foursquare behind His Holiness the Pope. In 1995—this is the significance of not having Northern Ireland in the legislation—1,548 women came from Northern Ireland to mainland Britain to have a termination of pregnancy and from the Republic of Ireland—one of the few European countries which has not adopted a positive state of law on abortion—4,500 women came to Britain, and so the argument runs—
Lord Gordon of Strathblane: I thank the noble Lord for giving way. In the light of those figures, does he have any plans to restrict freedom of movement north to south of the Border or visa versa, assuming, first, that the amendment were to be passed and, secondly, that there were to be any difference in the legislation north or south of the Border?
Lord Steel of Aikwood: The noble Lord anticipates my next point. It is argued by those who want to keep the Bill as it stands that any change in the law in Scotland might involve a traffic of patients one way or the other across the Border. Cardinal Winning—with whom on other issues I have frequently stood shoulder to shoulder, whether on overseas development or urban poverty and housing—takes a notably different view from the one that I hold as to what the law in Scotland should be. He would like to see an effective repeal, more or less, of the 1967 legislation. I have argued with him in the past that he seems inclined to the view that abortion was invented in 1967, whereas what actually happened was that safe and legal abortion was introduced in place of illegal and dangerous abortion, which cost the lives of so many women and cluttered up the wards of so many of our hospitals.
Cardinal Winning and his colleagues are not the only people who want to change the law in Scotland. The Woman's Right to Choose Campaign asked MORI to conduct a poll in Scotland. It claims the support of 65 per cent. of the population to change the law and to do away with the 1967 restriction involving two doctors, registration and all the rest, in favour of simply allowing a woman to choose to terminate her pregnancy if she wishes. Many European countries now do that.
The noble Lord, Lord Gordon, is right. If the law is changed in Scotland and it becomes more restrictive or more liberal there may be a flow of patients one way or the other across the Border. Surely, a Scottish parliament in considering this matter will take that into account. Those who argue for removing abortion from the criminal law and responsibility for health matters in Scotland are simply saying that the Scottish parliament
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cannot be trusted. That is not a proposition I can possibly support, and for that reason I beg to move this amendment.
Baroness Gould of Potternewton: I oppose Amendment No. 212 but with some reluctance because I am conscious of how grateful UK women are to the noble Lord, Lord Steel, for the introduction of the Abortion Act 1967. I was fascinated by the history of that Act as outlined by the noble Lord. That Act, which dealt with the timescales, circumstances and conditions to be met before a termination could be carried out, did not and does not differentiate between different parts of the country. I shall turn to Northern Ireland in one moment. The arguments put then are just as valid today.
In any Bill that deals with devolved and reserved powers there will be arguments about inconsistency. However, it is absolutely clear that on abortion there should be a common approach throughout the country and it should be a reserved matter. Wherever abortion is discussed many people hold very strong and differing views, all of which are sincerely held. But this debate is not about abortion policy but about who should have legislative responsibility. This debate is not about the content of the law; nor is it a question of whether the law in Scotland would be more rigid or relaxed. I do not imply, as appears to be suggested, that the Scottish parliament would act in an irresponsible or extreme way. The reverse may be the reality.
I appreciate that the medical profession in Scotland has a strong tradition of support for abortion. The MORI poll conducted in 1997 showed that 63 per cent. of the sample questioned in Scotland agreed with the statement that abortion should be made legally available for all who wanted it. That was a lower figure than in England but still a significant level of support. I also appreciate that in 1996 in Scotland the NHS provided 99 per cent. of abortions free of cost to women. In contrast, the proportion paid for by NHS health authorities in England and Wales varied between 97 per cent. and 34 per cent.
These figures illustrate that even now there are variations in social approach and medical practice in different parts of the country. That does not provide a justification for having different criteria and tests within the legislative framework. I believe that these figures support my concerns about cross-Border traffic. It is the cross-Border traffic of patients that justifies abortion being a reserved matter. We do not know in which direction the traffic will flow. There is cross-border traffic in this country and in other parts of Europe, but that is no reason to introduce such bad practice as a result of a difference between England and Scotland. Such cross-Border traffic would cause stress, hardship and suffering. The heartache of many women who come from Northern Ireland and the Irish Republic to the United Kingdom in order to have abortions clearly illustrates the problem. In 1995, 1,548 women came from Northern Ireland and 4,531 from the Irish Republic.

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Another factor is illustrated by those figures. I believe that the number would have been greater had it not been for the costs involved. If women can afford to travel and pay for abortions, that is fine; if they cannot, that fundamental right is denied to them.
Any differences in future legislation may not be dramatic but we do not know their effects. Differences may emerge in medical and social tests and the statutory framework. I do not believe that we have the authority to take that risk. The position of Northern Ireland is often cited as the reason for this devolved power. There is absolutely no case for arguing that because Northern Ireland is different one should countenance differences in the law on abortion between England and Scotland.
For me, abortion is primarily a health issue but also an ethical one. That causes confusion and inequality of access. Because of its complexity and sensitivity it should be dealt with by the Westminster Parliament. Women throughout the UK should have equal access to abortion, but this amendment would prevent that from happening.
9.15 p.m.
Lord Alton of Liverpool: Two distinct issues are raised by the amendments before the Committee. The amendment of the noble Lord, Lord Steel, raises the issue of abortion and the amendments of the noble Lord, Lord Mackay, raise the issue of euthanasia. Once again, they highlight a contradiction. They highlight a contradiction because, on the one hand, on the abortion issue the Committee is being invited to reserve this power to Westminster, whereas in the case of euthanasia it is being said that the Scottish parliament is competent to decide on the matter.
As we discovered during the debate on the previous group of amendments, there are already too many inconsistencies in the legislation. Surely it would be far more sensible to recognise that the Scottish parliament will be a grown-up parliament and will be quite capable of deciding these matters for itself. Either the Committee is in favour of devolving powers to the Scottish parliament or it is not.
I have diametrically opposed views to those of the noble Lord, Lord Steel, on this question. However, I would say in fairness to him that over the years we served together—I was his Chief Whip for many years—he always accepted that this was a conscience question. One of the most undesirable things that has occurred on the issue of abortion in the past 20 years has been the way that it has become an increasingly polarised party political issue. That has been the tragedy because it has driven people into positions where they have had to choose between their party and their conscience. It would have been better if this matter had been retained entirely as a matter of conscience. Therefore, I hope that when the Minister comes to reply to the debate he will answer the point made by the noble Lord, Lord Steel, about whether this vote is being whipped tonight on the government Benches. The noble Lord, Lord Steel, was right to say that in the other place there was great confusion. It cannot be right that Whips managed to exempt themselves from the vote because,
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in conscience, they felt unable to vote on this question whereas ordinary Members of the House of Commons went into the Lobbies believing that they were being whipped.
Perhaps I may say to the noble Baroness, Lady Gould, that part of this process of the politicisation of the abortion issue has been due to Emily's List, of which I know she is a great supporter. For those Members of the Committee who do not know about this phenomenon, it is another one of those things that has swept up from the United States. It is an acronym. Emily stands for Early Money Is Like Yeast. This money was made available before the last election to candidates specifically on the basis that they were women candidates who supported abortion. That was the one condition that had to be satisfied before funding was made available. That, I believe, was an undue pressure—
Baroness Turner of Camden: As far as I am aware, the Emily's List project was concerned solely with getting women into Parliament and into positions of authority in public bodies. It had nothing to do with the abortion issue.
Lord Alton of Liverpool: If the noble Baroness were to look into the background of Emily's List—I assure her that I have done so—she would find that the question was raised with candidates. She has only to look at the women who were supported by Emily's List and she will discover that there are among them no Orthodox Jews, no Moslems, no evangelical Christians or Catholics—or anyone who would be unable to answer the question that they would support the maintenance of the 1967 Act.
Baroness Gould of Potternewton: I thank the noble Lord for giving way. As a founder member of Emily's List, I really do believe that he has read the wrong piece of history. As my noble friend said, the aim of Emily's List was to get more women into Parliament. In fact, if he looked at the names of the women that it helped to get into Parliament he would find that people did get in who were actually anti-abortion.
Lord Alton of Liverpool: I am grateful to the noble Baroness for saying that. I hope that in due course she will be able to enlighten me as to who those Members were and whether they were asked to give the kind of assurances that I have described. It has been put to me categorically by members of the Labour Party's Life Group, who have expressed this view publicly, that Emily's List provides that kind of funding.
Anyone who observes this issue and observes the political scene will know that political correctness has been a contagion in the past 20 years and that on certain issues you are required to say yea or nay before candidate selection committees will accept you as being fit to be a candidate. Abortion has increasingly become one of those issues.
The noble Baroness, Lady Gould, and the noble Lord, Lord Steel, referred to the figures for Northern Ireland and for the Republic of Ireland. They said that 1,548 women had come from Northern Ireland and 4,500 from

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the Republic of Ireland to have abortions in this country. There is no disputing those figures. But nor is there any disputing the figures from the rest of the United Kingdom. In the past 30 years, legislation which was said at the time to be legislation to be used only in exceptional cases has led to one in every five pregnancies ending in an abortion. In the United Kingdom 180,000 legal abortions took place last year alone. Since 1990 there has even been a law in Britain to allow for abortion up to and even during birth—on a baby that is handicapped or disabled.
I do not believe that it was in the mind of the noble Lord, Lord Steel, in 1967, when he first introduced his Bill that there should be abortion on demand. In fact he specifically and categorically stated during debates that his Bill would not lead to that. He was able to call in aid, for instance, the Church of England Board of Social Responsibility. At that time the Bill did not include the social clause which was incorporated into it during its Committee stage and is now responsible for 98 per cent. of all the abortions that take place. Of all the abortions undertaken under the 1967 Act, 98 per cent. are undertaken entirely under the social clause.
The noble Lord, Lord Steel, also referred to Cardinal Winning. He somewhat oversimplified Cardinal Winning's views. So far as I know, Cardinal Winning has never said that the legislation in its present form should be entirely repealed. He said that it should be fundamentally reformed. For instance, he has contributed to the process of care for a woman and her child by making available money for women who would otherwise believe that they had no choice—that is surely the issue which should concern us all—and who are pressurised into having abortions often by irresponsible men.
I am sure that no one in this House would be in favour of abortion per se. The issue comes down to a debate about whether one believes in the sanctity of human life or whether choice is more important. That surely is the question that divides many Members in this House and in another place. But the issue this evening does not revolve around that question. It revolves around whether Scotland or this place should decide on whether the law should be framed in that manner.
As has been clear from the preceding speeches, and I hope from mine, these are questions on which there are many profoundly deeply held views. Often they are diametrically opposed. They are issues better decided closer to the people they affect. If the noble Baroness, Lady Gould, is right, and Scottish opinion is in the direction she suggests, let that be tested in Scotland among the Scottish electorate. Let Scottish parliamentarians decide those questions. Let people be free to put dissenting views, whether those views are in this place or in their political parties.
Baroness Kennedy of The Shaws: I support my noble friend Lady Gould in paying tribute to the noble Lord, Lord Steel. The noble Lord holds a special place in the hearts of women because of the way he piloted the Abortion Act 1967 through Parliament. For many women who had been confronted with the agony of
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backstreet abortion, that legislation brought about the possibility of having abortions legitimately in the circumstances prescribed by law.
In the years between, I qualified as a lawyer. But I still saw on occasions many women who had suffered the consequences of the law before 1967. They told me stories of misery, shame and degradation. It was terrible that women had often to seek the help of other women rather than medical professionals to have abortions which left them unable to function well as women, never mind with the possibility of having other children in better circumstances. That Abortion Act meant much to women in Britain.
In the years that I practised as a lawyer, I also had the opportunity to give advice to organisations which had to deal with the assaults upon that law brought by people such as the noble Lord, Lord Alton. Those assaults were to withdraw from women the right to have abortions. Never made easily, the decision was often a painful one made in the interests of their other children and in extremis.
I say this to the House and to the noble Lord, Lord Steel. I regard him as a friend although we sit on opposite Benches. My fear is that further assaults will be made on the legislation he brought through. Far from there being further liberalisation so that women can make a choice in the very early weeks of their pregnancy, a further assault will be made and Scotland may be the starting ground for that. To have the issue devolved may mean that women will not be able to stand shoulder to shoulder north and south of the Border, able to galvanise women in serious numbers to make their argument and case against what people like the noble Lord, Lord Alton, seek to do.
Many women who share the noble Lord's religious conviction believe that this is an issue of right. They may not choose abortion for themselves, but still believe that women individually should make that choice and would not withdraw it from them. That is where Catholic women would differ from the noble Lord, Lord Alton.
I say to this Committee, please consider with care the question of devolving the issue to Scotland. It may mean the beginning of a war of attrition to remove the right from women. Many women north and south of the Border may wish to be able to argue together, and with men who support them, in favour of the provision being important to women.
The noble Lord, Lord Alton, said that political correctness has entered into the subject of the debate. It is not about political correctness; there is no correctness in it at all. Before and since 1967, women have had to make painful decisions and none makes it easily. Often women make the decision in difficult circumstances and in doing so they bring and draw upon their morals and ethics. They do not leave them behind.
However, the issue is one of right, which is why it matters to women. They should at least have the right to make the choice for themselves and not have it dictated to them by men who have never had children or experienced pregnancies.

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I say to the Committee, please, please let women north and south of the Border argue in favour of the provision as something important to them, to their ultimate fulfilment and to the betterment of us all, men and women, in the bringing up of children who are wanted and desired and can be given a good life.
The reason why I oppose the amendment tabled by the noble Lord, Lord Steel, having stood with him on so much of what he has fought for, is that I am concerned that it will be used to divide us rather than to join us in our efforts to make the provision available to women as a matter of right.
Lord Sanderson of Bowden: I wish to intervene on two points. I strongly support the noble Lord, Lord Steel. I have not always supported him politically, but on this issue I do so as, among other things, a member of the Church of Scotland.
Two major points must be made, and he made them most succinctly. First, it must be clearly said that if we are to have a parliament in Scotland it must be responsible. The Government are devolving health to Scotland and it is a major issue for the Scottish parliament to consider. Abortion falls into that category. If we are to have a responsible parliament in Scotland, I cannot for the life of me think why this important subject, which raises so many passions on all sides of this Committee and elsewhere, should not be considered by it. The noble Lord's second point, which I support entirely, is that on such an issue Members on all sides of this Committee should have a free vote.
Lord Thomas of Gresford: I have the most enormous respect for the views expressed by the noble Baroness, Lady Kennedy, and for the way in which she so eloquently and forcefully expressed them. In the context of devolution, we are considering a basic principle; what is the Scottish parliament to be about? Such ethical issues—"conscience questions", as the noble Lord, Lord Alton, termed them—depend upon personal belief rather than party politics. I believe that a Scottish parliament would be best able to resolve them because it will have time to do so. Here we are, debating this issue within the space of perhaps half an hour or an hour in your Lordships' unelected Chamber. In the Scottish parliament such an issue will have time devoted to it by elected representatives who will be able to reflect upon the feelings of their constituents—the people who put them there. They will be able to express the views of Scottish people today rather than their own views.
It is not as though the Scottish criminal law has been particularly illiberal in the past. Before 1967 under Scottish criminal law it was a crime to carry out an improper act calculated to destroy the foetus, but the need to terminate pregnancy in the interests of maternal health was not considered to be a criminal act. Therefore therapeutic abortion was acceptable to Scottish public opinion. Nor did the 1967 Act change that in any material respect because the common law continued and there were differences between the law in Scotland and England and Wales.
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Hence, in 1963, before my noble friend's Act was passed by Parliament, it was possible in Aberdeen, under Sir Dugald Baird, for 2 per cent. of the women to have abortions on the National Health Service. There were never any Crown prosecutions in Scotland where there were genuine medical issues involving the maternal health of the woman.
That is a position that I think all liberal-minded people would always have adopted. It seems to me therefore that when one considers this issue, my noble friend is absolutely right; it is a question to be determined with full debate by elected representatives.
I recall, perhaps over a year ago, before the last election, debating in this House at two or three o'clock in the morning—which no doubt we shall be doing as regards this legislation—a Scottish criminal law Bill with perhaps seven or eight people present, of whom I recall three were Scots. What we were doing was legislating on Scottish criminal law. It seemed to me at the time that the case for devolution was fully made out. This is the kind of issue that a Scottish parliament should deal with.
9.30 p.m.
Baroness Young of Old Scone: I think that tonight we are not talking of the rights and wrongs of abortion, though I must confess that I pin my colours to the mast in being concerned about 180,000 unwanted children being born if the noble Lord, Lord Alton has his way. I would voice the sentiment that it is distressing to speak against the noble Lord, Lord Steel. He was something of an icon for us when I was a child in that we all took part in his campaign and were delighted with the outcome.
For me this is not about whether abortion is right or wrong, nor is it about the competence of the Scottish parliament to make decisions on these issues. I have the feeling that a substantial number of women in the new Scottish parliament could give Cardinal Winning quite a fright. I do not think that any of those matters are the issue. The issue is the difference between the north and the south. I believe we might well see more liberal and effective laws in Scotland if that were to be recognised.
The Northern Ireland issue is one, I think, that is a lesson to us all. I should like to dwell tonight on some of the things that happen as a result of women in Northern Ireland having to come to the mainland for their abortion service. Whether you agree with them or not, they have gone through the process of counselling. As my noble friend Lady Gould pointed out, they have gone through the process of scraping together the money to get this service. They have made their decision, whether you approve of it or not. They have decided to come here for an abortion. They come, often unable to bring with them supporters, friends or even partners who have been involved in an unwanted pregnancy. They come to the company of strangers to have this important moral, as well as physical, procedure, carried out.
I do not think that is something that we should live with. If we see a difference in the law between the north and south, irrespective of where it is more liberal, we will find that happening more and more. It used to be

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called "abortion tourism". I think that is a blasphemy as far as the word is concerned. This is not tourism; it is a distressing procedure for women. It raises all sorts of moral as well as physical and emotional questions for them.
Any future change in the law on abortion in the United Kingdom would inevitably be hotly contested and widely debated. It would pull upon the widest range of opinion, including views from Scotland and Scotland's new MPs. We should take great heart from the fact that we can produce a system across the United Kingdom which is common, consistent and in the best interests of women. With great regret, I have reached the conclusion this evening that in spite of being a great fan in my youth of the noble Lord, Lord Steel, and all that he achieved, this amendment would not be in the interests of the women of the United Kingdom.
Lord Sempill: I strongly support this amendment, although I do that with some trepidation in the face of three noble Baronesses who obviously feel very strongly that the Government should not accept the amendment. I take on board their points of view.
However, I should like to bring us back to the whole issue of devolution and the Scotland Bill. Those points have obviously been raised by other Members of the Committee this evening. There are three clear issues in this debate: the first pertains to the legal aspects of abortion; the second to the health aspects; and the final one to the morals/ethics of abortion. I am sure that all Members of the Committee will agree that this Bill has stated clearly that both legal and health issues pertaining to Scotland will be devolved to Scotland.
That leaves us with only the third issue, which is the contentious issue; namely, the moral or ethical situation with regard to devolving this issue to Scotland. We should cast our minds back to this hour on Tuesday of last week, when we discussed another amendment. Unfortunately, many Members of the Committee were not present at that time. On that amendment the noble Lord, Lord Sewel, said:
"The whole point about devolution is that this Parliament is entrusting the Scottish parliament to make laws for Scotland in respect of the devolved matters".—[Official Report, 21/7/98; col. 789.]
Therefore, two of the issues are devolved matters.
I conclude by supporting the noble Lords, Lord Steel and Lord Alton. The ethical and moral issues must be put to this House on a free vote. I do not believe that the other two issues are up for discussion. The Bill states clearly that those matters are to be devolved to the Scottish parliament. Having said that, I repeat my support for the noble Lord, Lord Steel.
Lord Mackie of Benshie: I have grave doubts about the position of my noble friend Lord Steel. Those doubts are occasioned by one thing only; that is, the fact that the noble Lord, Lord Alton, supports the amendment. I have a strong feeling that he is adopting the Napoleonic approach of striking at the weakest link. He believes that
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if he can get a small unit, he can concentrate the forces of reaction in Scotland and have an effect on a small unit.
I assure the noble Baronesses opposite that the noble Lord does not have a chance. The Scottish people will resist his blandishments and they will vote with good sense as they believe. I support my noble friend Lord Steel.
The Earl of Balfour: There is one subject which we should seriously take into consideration; that is, that a person's circumstances in life, whether relatively well-off or poor, must never make a distinction in law.
I am satisfied in my own mind, after many years of research, that the abortion laws which we have at present in this country are correct and should stay that way. My concern is that if for argument's sake—let us say for the moment—Scotland decided to make it much more difficult to obtain an abortion, and changed the law to that effect, then wealthy people will cross the border to another country and have their abortions, but the poor people could not do that. That is one of the things that scares me. It is on that ground—namely, that there must never be a distinction—that I would rather stick with the Government of the United Kingdom.
Perhaps I may give the Committee one other example where I have felt for many years that the law can be extremely unfair. I have in mind planning laws. The Town and Country Planning Acts seem to allow one owner of a site to get away with putting up a building which any other person would not be allowed to do. Indeed. I have a good Scottish example for the Committee—the St. James's centre in Edinburgh. It is totally out of keeping with Princes Street, George Street or Queen Street. That is where the law has gone wrong. Therefore, as regards abortion in this Bill, I believe that it should remain a UK function. I shall support the Government tonight on that point.
Baroness Linklater of Butterstone: I rise to express my support for my noble friend Lord Steel on this most passionately, although in many respects I share the attitudes and beliefs of noble Baronesses opposite. It seems to me that the Government are being extraordinarily inconsistent in two particular respects. First, they are being inconsistent in what they choose to devolve and what they choose to reserve. They are apparently happy to devolve euthanasia while wishing to reserve abortion. There is a whole range of medical and health matters which the Government are happy to devolve, while they wish to retain a matter like abortion. That is totally illogical.
Secondly, the Government have said consistently throughout—and this was reiterated by the noble Lord, Lord Semphill—that on as many matters as possible the Scottish parliament, which is represented as a mature parliament, should be allowed to make decisions for itself. My noble friend Lord Steel has already shown how first class the health record and the standards of medical practice are in Scotland. I am a member of the Church of Scotland. I believe passionately in the sanctity of life, but I also believe in a woman's right to choose. That is what women believe in. However, I

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notice that there are not so many women on this side of the Committee rising to make the case. Indeed, the decisions which are made concerning abortion are invariably agonising, painful, difficult and never taken casually or lightly.
I trust the Scottish medical establishment in the way that it carries out its practices. What I hear from the other side of the Committee is a fear of what might happen; in other words, the fear that perhaps everything will become a little more reactionary. Like my noble friend Lord Mackie, I do not share those fears. Moreover, I believe that we are more likely to be a beacon of good practice to which the rest of the country can turn for examples. For that reason, I urge the Committee to support my noble friend Lord Steel in his amendment.
Baroness Carnegy of Lour: I should like to follow the noble Baroness on a slightly different tack. I do not know whether noble Lords or noble Baronesses have had anything to do with the local medical research ethics committees which exist all over the country. Indeed, we have them locally in Scotland, and I was chairman of one of them for a spell. It was a very interesting experience. We did not actually deal with embryology and assisted pregnancy issues, but we dealt with all other medical research ethic issues, many of which were closely related to the safety of women who were pregnant or who might be pregnant, and with research of different kinds. This matter is closely related to such issues. It is absolutely crucial that those decisions are taken locally. They are, of course, decisions of universities and health boards. That is a demonstration of the way these things are best done locally.
There is no question in my mind that if Scots women want to stand shoulder to shoulder with women in the rest of the United Kingdom, they will jolly well do so. They are not so chicken hearted that they will give into pressure if these great issues arise. The more local the decision-making, the better. There is a good deal to be said for what the noble Lord, Lord Steel, has recommended.
9.45 p.m.
Lord Desai: We are creating a devolved Scottish parliament; we are not creating separate citizenships across the United Kingdom. After a great struggle, and thanks to the noble Lord, Lord Steel, women in the United Kingdom have won their right as citizens of the United Kingdom to choose as regards abortion. I think this right cannot be compromised by single citizenship. Whether the Scottish parliament is more liberal or less liberal is not the point; any difference will lead to imbalance and misery. That is why I think we should oppose the amendment that is proposed.
Lord Monson: Before the noble Lord, Lord Desai, sits down, is he aware that not all citizens of the United Kingdom have a right to abortion? Those in Northern Ireland do not.
Lord Desai: Perhaps things will change soon.
Lord Mackay of Ardbrecknish: We have had an interesting debate. A number of amendments are grouped with the amendment of the noble Lord, Lord Steel of Aikwood, which stand in my name. Amendment No. 215 is rather different from the others. I am not entirely sure how I allowed it to be grouped with the others. It is a simple amendment and is typical of the kind of probing we have been engaged in on this Bill, which is about devolution. I shall return to that in a minute. Some of the newcomers to the Committee stage ought to have attended the earlier debates to understand the principles behind devolution and the referendum which the Government won fairly resoundingly in Scotland last September.
Amendment No. 215 concerns welfare food. Section 5 on welfare food refers to,
"Schemes made by regulations under section 13 of the Social Security Act 1988 (schemes for distribution of welfare foods)".
That matter is to be reserved. I find it hard to understand how something which clearly must be delivered at local level is not to be devolved. I hope that the Minister will explain why this issue has to be reserved and cannot be a responsibility of the Scottish parliament.
I now turn to the amendment in the name of the noble Lord, Lord Steel, my rather wider amendment which seeks to remove the whole of the head on health and medicines, Sections 1 to 4, and my amendment which specifically seeks to prevent xenotransplantation from being a reserved matter. My other amendment is concerned with euthanasia and related matters which it appears will be devolved to the Scottish parliament.
My noble friend Lord Sempill tried quite successfully to explain to the noble Baronesses who are new to our debate the key arguments on devolution. We welcome the noble Baronesses to the debate, although it would have been interesting to hear their views on other issues. This is not just a question of whether one is for or against abortion. This is a discussion about a serious, grown-up Scottish parliament which will be asked to take serious decisions.
The noble Lord, Lord Sewel, has tried on a number of occasions to explain why the Government have decided that some detailed matters have to be reserved and some have to be devolved. He has done it on the basis of what might be termed the wider field. He has taken as his starting point: if the wider field is a devolved field, and if other matters which may be reserved but are minor fall into the wider devolved field, then that is a reason for devolving them, and vice versa.
In this particular case there is no such argument. Both the main heads that lead to the law on this matter are devolved. Health matters are devolved, and there is a clear argument that if we are to have devolved government they should be devolved. Nobody disagrees with that proposition. The criminal law in Scotland is being devolved; the Scottish parliament is to pass primary legislation. Those are the two fields within which abortion legislation falls: it is a health matter, and it is a legal matter. Both of those wider fields are devolved. I cannot therefore for the life of me understand why abortion is not also a devolved matter.

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It is harder to understand when one examines the new section that I have tabled on euthanasia. It is not just a question of euthanasia, which is somebody deliberately and in full possession of his or her faculties saying that at a certain stage he or she would like a doctor to hasten their death, but also the difficult issues of the withholding or refusal of medical treatment and healthcare to people who can no longer make those judgments for themselves; for example, in the case of a youngster possibly caught in a motorbike accident and totally comatose, whether or not it is right to switch off the life support systems, whether the parents are capable of making such decisions. I cannot think of any more life or death matters than these, and they are to be devolved to the Scottish parliament. If they are to be devolved, why not abortion? Conversely, if not abortion, then why not the matters that I have included in my new Section 6 on euthanasia. The three noble Baronesses who spoke so eloquently on this subject will have to do some defending to explain the illogicality in their position.
We have been told that we cannot have different laws north and south of the Border, and I shall turn to that issue. It has already been pointed out that we have different laws between the north of Ireland and the rest of the UK. I look forward to seeing the noble Baronesses, Lady Gould, Lady Kennedy and Lady Young—two of whom seem to have departed the scene—table an amendment to the Northern Ireland Bill when it reaches this place stating that abortion should be reserved to the United Kingdom Parliament. We need some logic and consistency in this matter.
Scotland is a different country. It has different laws, which it has vigorously defended for over 300 years. It has a different moral background. The Church of Scotland is a nationwide church and is part and parcel of the fabric of Scottish society. In addition, it has the Roman Catholic Church. It is different from England, where, in addition to the Roman Catholic denomination, the Christian religion is represented by the Church of England and the Methodists. Scotland has a different moral tradition, which I believe is every bit as good as that in England and Wales. I say to the three noble Baronesses, who I gather do not currently live in Scotland, although two come from Scotland, that we are perfectly capable of arriving at proper moral judgments on these issues. Frankly, if it helps the noble Baronesses, if I have to decide between the former Leader of the Liberal Party and his former Chief Whip, I shall decide more readily with the former Leader of the Liberal Party on this issue. These are matters which we in Scotland ought to be able to decide for ourselves.
The last time this matter was debated in this Chamber was on 4th May 1978. The position then was that the government wanted abortion devolved. It was quite straightforward. The noble Lord, Lord Kirkhill, who was the government Minister at the time, made a speech defending the position that it should be devolved. I wish to quote a few of his remarks. They are as pertinent today as they were when he spoke. The noble Lord turned to the arguments against devolving,
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"first to the undesirability of having different legal provisions on either side of the Border, and, secondly to the prospect of an undesirable cross-Border traffic of those seeking easier abortions".
He went on to say:
"In the Government's view, this is what legislative devolution is all about. It would surely be a nonsense to exclude from devolution a field of law just because it raises a number of difficult issues.
"It would, in my view, be insulting to suggest that the elected representatives of Scotland would not be responsible enough to deal with these issues and that they would fail to give proper weight to the feelings of the people of Scotland".—[Official Report, 4/5/78; col. 481.]
I have to say, in response to one of my noble friends who wanted the opposite done, that I think the noble Lord, Lord Kirkhill, was right on that day. The Scottish parliament will be well aware of the problems of cross-border traffic, if it has significantly different laws. Why should it not be allowed—I use the word "allowed" intentionally—to make those decisions? I have been accused on a number of occasions from the Government Benches of wanting to tie the Scottish parliament to Westminster. I am turning the tables on the Government now. On this issue, they do want to. The reason they want to is because it is a difficult issue. I shall come to good proof of the fact that it is difficult in a moment.
I do not believe necessarily that Scotland would—as the noble Baronesses seemed to fear—go headlong down a road led by the noble Lord, Lord Alton. I believe that the opposite is the case because the Church of Scotland is firmly on the side portrayed by the noble Lord, Lord Steel, on the abortion issue. I find that I am in unusual company. I received a letter from Cardinal Winning. Some noble Lords will be interested to hear that it ended, "with every good wish". The cardinal does not normally give me every good wish after I have crossed swords with him on a certain issue. However, on this matter I believe that if he wants to lobby the Scottish parliament in favour of stricter abortion, he ought to be able to do so. Conversely, I believe that the majority of the people of Scotland who would want to lobby the other way have every right to do so.
There is another argument for returning this provision to the Commons, if that is what we do. I refer to the amazing performance in the House of Commons when the matter was discussed there. I know, having been a Member of the other place, that some Members there feel strongly about the issue and would not agree with their colleagues. In some ways, I cannot agree with the noble Lord, Lord Alton, about the way the Labour Party approaches the matter.
Many Members of the Labour Party from Scotland have consistently voted against the position held by the noble Lord, Lord Steel of Aikwood. I have little doubt that many of those would have preferred to vote to send the issue to the Scottish parliament, but they were whipped into the Government Lobbies. After they had emerged from the Government Lobbies and studied the Division list, they noticed that the honourable Member, Dennis Canavan, was not in the Government Lobby. That is a normal position for Dennis at the moment; he is carrying the torch of true old Labour in Scotland on a number of issues. In the case of students, for example, he happens to be right. What intrigued him more than

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anything else was that two Government Whips were in the anti-Government Lobby. When people said: "It was a whipped vote. Why were two Government Whips in the anti-Government Lobby?", the reply was: "Well, it was not a whipped vote, it was a free vote, but we did not bother to tell you, we only told the Whips". That is deviousness of a high order. If it is not true, I would be interested to know what is the truth. There are a few Labour MPs from Scotland who think it is true and believe that they were whipped into the Government Lobby and were not given a free vote. I suspect that they ought to be given a free vote.
The important point on the issue is what we want a Scottish parliament to do, and how much trust—that is the point—we should put in it. Those who have parachuted into our debate for a few minutes do not know what the flavour of the debates has been, the flavour of the Government's case, especially when it comes to attacking the Conservative Party, which has historically been in favour of one United Kingdom. The noble Baronesses, Lady Gould, Lady Kennedy and Lady Young, are taking up the traditional position of the Conservative Party on the issue that we do far better to have things decided on a UK basis. However, I must tell them that even the Conservative Party has left that ground because the election results determined that and then the referendum clearly spoke for the people of Scotland. They wanted a devolved parliament with responsibilities. Those responsibilities cannot be picked and chosen depending on whether one believes they will go one way or the other when it comes to the issue.
I leave the Committee with the words of none other than the noble Lord, Lord Sewel, on 21st July last. He was responding to my noble and learned friend Lord Mackay of Drumadoon and said:
"The noble and learned Lord expressed fears about legislation being enacted in Scotland which would not be passed at Westminster"—
shades of this evening—
"But that is one reason why we are establishing a Scottish parliament, so that it can actually develop Scottish solutions to Scottish problems, not following Westminster all the time and not being hound by how Westminster wishes to legislate. Again, that is the underlying philosophy and basis of the devolved settlement".—[Official Report, 21/7/98; col. 789.]
I repeat to the Minister,
"the underlying philosophy and basis of the devolved settlement".
I beg to move.
10 p.m.
Lord Sewel: I join the noble Lord, Lord Mackay of Ardbrecknish, in recognising not only the interest and value, but also the quality of this debate.
I fully recognise that there are strongly held views on the matter of whether or not abortion should be devolved. I realise also that there are strongly and sincerely held views on the issue of which way legislation on abortion should go. But as many Members of the Committee observed—some at the end of their speeches which dealt with the merits of abortion but nevertheless got there in the end—tonight we are not debating the rights or wrongs of abortion. We are not even debating whether, if it was devolved to a Scottish
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parliament, legislation would move in the direction of tightening up the grounds for abortion or making abortion more liberal. We are debating the perhaps narrower but crucially important point of whether it shall be devolved. In other words, we are debating the issue of the competence—the vires—of the Scottish parliament.
I have been asked on a number of occasions by the noble Lords, Lord Alton of Liverpool, Lord Sanderson of Bowden, and others to clarify whether or not those of us on the government side have a free vote. I make it absolutely clear that, for the Government, this vote is whipped for the basic and simple reason that we are not dealing with the merits of abortion; we are dealing with the competence and vires of the Scottish parliament. On that issue it is not appropriate to have a free vote. It would be appropriate to have a free vote if we were dealing with the merits of abortion.
Lord Hogg of Cumbernauld: Can my noble friend explain to us what happened in the House of Commons?
Lord Sewel: My understanding of what happened in the House of Commons is quite simple. It was a whipped vote. I understand that a couple of individual Members of the House of Commons made use of the opportunity to speak to the Chief Whip in terms of conscience. But there is all the difference in the world between an individual decision based on conscience and a general free vote. There was not a general free vote in the House of Commons. Let me make that clear.
Lord Hogg of Cumbernauld: Can my noble friend say whether those individuals were office holders, Ministers of the Crown, Whips or what?
Lord Sewel: I am not aware of the full identity of those who voted. However, my noble friend—my very special noble friend—Lord Hogg of Cumbernauld is aware, as am I, by a reading of the public prints that two Whips made use of that facility. I recognise that straight away.
Lord Mackay of Ardbrecknish: I thank the Minister for giving way. Can he confirm that at col. 1110 of Commons Hansard on 31st March 1998 in the Division list on this subject in another place Mr. Dennis Canavan voted against the Government, as did Mr. Thomas McAvoy and Mr. John McFall, all of whom are Whips? Can the Minister give me any indication of the last time Whips voted against a whipped vote?
Lord Sewel: I have tried to explain the position in the House of Commons as far as I understand it. Unlike the noble Lord, Lord Mackay of Ardbrecknish, and others, I have never been a Member of the other place. I can only say it was the position, as I understand it, that it was a whipped vote. A number of individuals indicated to the Chief Whip that they thought this was a matter of conscience and therefore acted on that basis. That did not erode the Whip. It was an individual decision by those Members.
Lord Howie of Troon: Like my noble friend Lord Hogg of Cumbernauld, I was a Whip, although in the somewhat distant past. In those days it was quite unknown for a Whip to have a conscience, let alone to vote and be recorded with one. My noble friend is on the hook. I hope he can get off it somehow.
Lord Sewel: I shall try to get off the hook in the way those in the Whips' Office at the other end of the building have got off the hook. Salvation must be just round the corner.
Lord Mackay of Ardbrecknish: Perhaps I can be the Minister's saviour in this regard. Will he make it clear that any of his Back Benchers who has a conscience in this matter is free to vote against the Whip?
Lord Sewel: As I have indicated before, those Members in the House of Commons who believed that this impinged upon their conscience saw the Chief Whip before the vote was taken and explained the matter to him. It is open to any Member of this House, to any of my colleagues, to do likewise with the Chief Whip and the Chief Whip will then make a decision. I would have thought that nobody would have expected any other procedure to obtain.
Noble Lords: Oh!
Lord Sewel: I appreciate that there is a degree of humour and hilarity in our proceedings, particularly as we deal with this specific issue. I come back to the point that Members of the Committee have addressed these issues in a profound and serious way. I hope your Lordships will allow me to reply on the substantive issues in a similar mode.
The argument has been advanced by those in support of the amendment that the two broad topics of health and criminal justice have been devolved; as abortion fits both of those topic heads, then abortion should be devolved. I perfectly well accept that in general we have adopted the approach that health and criminal justice should be devolved matters. However, they have not been devolved totally. This is not the single example of an exception. There are other examples where the advantages of the UK approach have been thought to outweigh the benefit of devolution. For example, in the criminal field we have reserved the matter of the misuse of drugs and legislation covering firearms. Both of those topics are reserved.
Lord Thomas of Gresford: Have the Government reserved the question of capital punishment?
Lord Sewel: No. I am pointing out that there is not an absolute application of the general approach. There are specific areas in which it is believed that the benefits of the UK approach outweigh the benefits of devolution. I referred in the criminal field to the misuse of drugs and firearms provisions. In the medical field, we have reserved the regulation of the health professions, medicines, embryology, surrogacy and genetics. We
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recognise that in some areas a case for going against the general approach can be argued and that powers should not be devolved in those areas.
I believe that it was the noble Lord, Lord Steel of Aikwood, who said that in such circumstances the onus is on the Government to make the case. That is perfectly fair. We have a general approach and if we cannot find that there is a strong argument for the exception, the general approach must hold. That is the philosophy that we have tried to maintain and to argue throughout our debates on this Bill, and particularly with regard to Schedule 5.
What are we faced with in the particular? We are faced with the situation which my noble friend Lady Gould of Potternewton identified. The application of the general principle would create an unacceptable disparity in its implementation. The practice would be such as to undermine the benefits to be gained by the application of the general rule. Indeed, if there were the opportunity for different legislative provisions to apply either side of the Border—I agree with a number of noble Lords in that I am by no means confident in speculating about whether Scotland would then become more or less liberal than England—the problem of cross-Border trade would then become inevitable. I believe that the public and Members of this Committee would find such an outcome unacceptable, deeply distasteful and deeply distressing. It is to avoid that—to avoid the practical outcome of the application of the sound general principle—that in this case the Government believe that we should depart from the principle and treat this as an excepted matter.
Lord Alton of Liverpool: I am grateful to the Minister for giving way, but does he accept that within the European Community there are many varying laws in many countries? We need consider only the upper time limits as an example. On average, the EC upper time limits are between 12 and 14 weeks, compared with 24 weeks in the United Kingdom. That leads to a trade. Indeed, women from over 100 countries come to the United Kingdom because of our open-ended abortion laws which have led to 5 million abortions in the past, 30 years. Does not the Minister accept that there is already such a trade and that it comes to England because of the way in which our laws are framed?
Lord Sewel: I am concerned to ensure that we do not increase a practice that I find distasteful and unacceptable. It is as simple as that.
Lord Rowallan: I am sorry to interrupt the Minister because I know that he is trying to get into the flow of his answer. I should be grateful, however, if he could explain to me why he thinks that we should reserve abortion as a topic whereas the questions of euthanasia and of taking away the right to medicines, which are different ways of killing or destroying, are to be treated differently. I do not understand the Minister's thinking on that difference. Surely what is right for one must be right for all the other such questions.
10.15 p.m.
Lord Sewel: There is no separate body of law on euthanasia. That matter is covered by the general criminal law. As the criminal law generally is devolved so this matter is appropriately devolved. There is not a Scottish or English euthanasia Act and that difference does not obtain.
Lord Mackay of Drumadoon: When the Minister responded to my noble friend's intervention did he take into account the Lord Chancellor's consultation paper Who Decides? That document raises very succinctly the question of whether or not there should be legislation in this field. If the Lord Chancellor is thinking along these lines—the Minister will be aware that there is a report outstanding by the Scottish Law Commission in this general area—is the response a full answer to this question? Whatever the law is at the moment, it is possible that there will be statute law in the future. Therefore, the clear issue that is raised is whether it is competent for the Scottish parliament to legislate in this area as well as the very difficult area of abortion.
Lord Sewel: If at some future stage there is a separate body of law on euthanasia whether or not that should be devolved will be decided by the parliaments. As the noble and learned Lord is aware, we have already had the debate on the mechanism by which reserved and devolved matters move backwards and forwards. But the Bill is silent on euthanasia because there is no separate body of law relating to it.
Lord Rowallan: Surely, we cannot have a situation in which we decide on specific Acts. A view must be taken on the whole moral principle. One cannot make up one's mind whether or not in relation to a particular Act a matter is to be reserved.
Lord Sewel: The general principle is one of criminal justice. The general approach is that criminal justice should be devolved. There is a specific body of legislation that deals with abortion. Quite rightly, that raises a debate about whether that specific body of legislation should be devolved or reserved. There is no separate body of legislation on euthanasia. I believe that the argument comes down to that rather simple distinction. I take the point that has been raised by the noble and learned Lord. If there were a separate established body of law on euthanasia that could be revisited and decisions could be made as to whether that matter should be devolved or reserved. We have anticipated that by the way in which the list of reserved matters can be reviewed by agreement between the two parliaments.
Lord Mackay of Drumadoon: I am grateful to the Minister for allowing me to intervene again. This issue was discussed last week. The noble Lord will recall that he introduced very complicated amendments that dealt with the definition of reserved matters. In the amendment to paragraph 3(a) to Schedule 4, which is helpfully included in the document that the Minister has made available in the Printed Paper Office today, the
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term "the law on reserved matters" is defined as meaning, first, any enactment the subject matter of which is a reserved matter which is comprised in an Act of Parliament or subordinate legislation; and, secondly, any rule of law which is not contained in an enactment the subject matter of which is a reserved matter. Therefore, the law on reserved matters includes both statute law and the common law. The problem for members of the Committee on this side of the Chamber is why certain ethical issues which may have been touched upon by statute law, such as the Abortion Act, are not to be devolved while other equally complicated and difficult ethical matters that are dealt with by the common law and possibly touched upon by statute law are to be devolved.
Lord Sewel: I have tried to explain as best I can the Government's thinking in relation to this distinction. Clearly, I have not been able to persuade some members of the Committee on the opposite side of the Chamber. I must accept that that is the case.
Most of the debate has been about abortion and about whether the parliament should control abortion. Many of the other issues have been brought in perhaps to try to indicate a difference of approach from area to area. I believe that the general principle that we have adopted in the Bill is right. It is the general approach that health and criminal justice should be devolved, but that there are exceptions in the legislation where the benefits of maintaining a united UK or GB approach seem to outweigh the benefits that would be brought from applying the principle of devolution. Abortion is one of those.
This is not a matter of trusting the parliament. It is simply a matter of the value that we put on the benefits of maintaining a united approach on this area of policy within the framework of Great Britain. We should reflect on that. As I said at the outset, it is not a matter of the pros and cons of abortion. That is a totally separate matter. It has to do wholly and completely with the vires of the parliament and what happens if there is a different degree of liberalisation or illiberalism north and south of the Border. As I see it, the inevitable consequence would be a cross-Border trade, which I should have thought everyone would seek to avoid. On that matter, I very much take the point made by the noble Earl, Lord Balfour. I hope that the noble Lord, Lord Steel, will feel able to withdraw his amendment.
Lord Steel of Aikwood: I agree with the two Front Bench spokesmen that we have had an exceptionally high quality and intense debate on this subject. I hope that the noble Lord, Lord Mackay of Ardbrecknish, will not mind me saying that when he began these debates so many days or weeks ago and announced that he was a convert to devolution, I doubted it. But tonight, for the first time, he actually sounded like a convert to devolution. We on these Benches thoroughly enjoyed the passion that he brought to his speech.
We have had a serious debate. The Minister has accepted that the burden of proof lay on the side of those who want to exempt abortion from the normal scope of the criminal law in Scotland and health matters in

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Scotland and leave responsibility at Westminster. He has asserted that problems would arise if the issue were devolved to Scotland. An assertion is not proof. I believe that the parliament of Scotland is quite capable of taking into account the undesirability of creating cross-Border traffic in one direction or the other. That is the only difference between us.
Lord Hughes of Woodside: It is not simply an issue of whether or not the Scottish parliament can be trusted to take into account the problem of cross-Border traffic. The fact is that the Westminster Parliament might decide to have a different law as compared with the Scottish parliament. There would therefore be a cross-Border trade one way or the other. That is why it is essential that both are in unison and why the matter should be reserved.
Lord Steel of Aikwood: I like to think that my faith and confidence in the Scottish parliament applies equally to the Westminster Parliament. I do not think that the parliaments in these islands will be so stupid as to mess about with the abortion law so as to create cross-Border traffic. That is my basic proposition.
I shall put my cards on the table. I am a supporter of the Bill. I want to see it proceed. We are well behind time. I do not believe that we would gain anything by having a revisitation of this issue at Report stage. For that reason, having had a good debate and having had Members opposite not only exercising their consciences but exercising their common sense and their individual judgment, I wish to test the opinion of the Committee and deal with the matter in a well attended Chamber.
10.24 p.m.
On Question, Whether the said amendment (No. 212) shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 88.

Division No. 4

CONTENTS

Addington, L. [Teller.]

Maddock, B.

Alton of Liverpool, L.

Mancroft, L.

Astor, V.

Mar and Kellie, E.

Blatch, B.

Molyneaux of Killead, L.

Carlisle, E.

Monson, L.

Carnegy of Lour, B.

Montgomery of Alamein, V.

Clement-Jones, L.

Northesk, E.

Courtown, E.

Norton, L.

Cross, V.

Russell, E.

Dixon-Smith, L.

Saltoun of Abernethy, Ly.

Hamwee, B.

Sanderson of Bowden, L.

HolmPatrick, L.

Selkirk of Douglas, L.

Howie of Troon, L.

Sempill, L.

Hylton, L.

Skelmersdale, L.

Kinnoull, E.

Stair, E.

Kintore, E.

Steel of Aikwood, L.

Linklater of Butterstone, B.

Ludford, B.

Thomas of Gresford, L. [Teller.]

Lyell, L.

Thomas of Walliswood, B.

Mackay of Ardbrecknish, L.

Thomson of Monifieth, L.

Mackay of Drumadoon, L.

Tordoff, L.

Mackie of Benshie, L.

Wilcox, B.

McNally, L.

Williams of Crosby, B.

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NOT-CONTENTS

Alli, L.

Irvine of Lairg, L. [Lord Chancellor.]

Amos, B.

Archer of Sandwell, L.

Islwyn, L.

Balfour, E.

Janner of Braunstone, L.

Bassam of Brighton, L.

Jay of Paddington, B.

Berkeley, L.

Judd, L.

Blackstone, B.

Kennedy of The Shaws, B.

Borrie, L.

Kilbracken, L.

Brooks of Tremorfa, L.

Lawrence, L.

Burlison, L.

Lockwood, B.

Carter, L. [Teller.]

Lofthouse of Pontefract, L.

Clinton-Davis, L.

McIntosh of Haringey, L. [Teller.]

Cocks of Hartcliffe, L.

Craigavon, V.

Merlyn-Rees, L.

Currie of Marylebone, L.

Milner of Leeds, L.

Darcy de Knayth, B.

Monkswell, L.

Davies of Coity, L.

Montrose, D.

Davies of Oldham, L.

Murray of Epping Forest, L.

Dean of Beswick, L.

Orme, L.

Dean of Thornton-le-Fylde, B.

Peston, L.

Desai, L.

Pitkeathley, B.

Dixon, L.

Ponsonby of Shulbrede, L.

Donoughue, L.

Prys-Davies, L.

Dormand of Easington, L.

Puttnam, L.

Ewing of Kirkford, L.

Ramsay of Cartvale, B.

Falconer of Thoroton, L.

Randall of St. Budeaux, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Gallacher, L.

Renton, L.

Gilbert, L.

Sefton of Garston, L.

Gordon of Strathblane, L.

Sewel, L.

Goudie, B.

Simon, V.

Gould of Potternewton, B.

Smith of Gilmorehill, B.

Graham of Edmonton, L.

Stone of Blackheath, L.

Grenfell, L.

Strange, B.

Hacking, L.

Symons of Vernham Dean, B.

Hanworth, V.

Taylor of Blackburn, L.

Hardie, L.

Thomas of Macclesfield, L.

Hardy of Wath, L.

Thornton, B.

Haskel, L.

Torphichen, L.

Hayman, B.

Turner of Camden, B.

Hollis of Heigham, B.

Uddin, B.

Hoyle, L.

Watson of Invergowrie, L.

Hughes, L.

Whitty, L.

Hughes of Woodside, L.

Williams of Mostyn, L.

Hunt of Kings Heath, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
10.33 p.m.
[Amendments Nos. 213 to 217 not moved.]
Lord Thomson of Monifieth Lord Thomson of Monifieth moved Amendment No. 218:
Page 82, line 5, at end insert—
("Exception from reservation
The Parliament may require the annual reports of the British Broadcasting Corporation and the Independent Television Commission to be laid before it.").
The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 219 and 220. They are simple amendments which do not arouse the moral dilemmas with which we wrestled on the previous issue. I hope that the purpose and language of the amendments are clear, even though they may well need revision by the experts if they are welcomed by the Government.
The Bill has a blanket reservation about the existing broadcasting Acts, as though nothing has changed or will change in broadcasting with the setting up of the

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Scottish parliament or the Welsh assembly. Unless we write something like the provisions of these amendments into the Bill, the Scottish parliament and executive will, in my view, be in a worse situation than the Scottish Secretary and the Scottish Office are at present.
My starting point is that broadcasting is an important part of what might be called the "cultural cement" that makes the three nations of mainland Britain a United Kingdom. But even the present situation is far from satisfactory. We are all intensely irritated, from time to time, in Scotland by the fact that if there is a breakdown in the London Underground which inconveniences the journalists that produce our so-called "national newspapers", that is main news. However, if the main east coast line in Scotland is blocked at Fife, that does not merit any coverage in the national news bulletins. So there is a problem there to be faced.
With a Scottish parliament and a Welsh assembly, it will be more difficult to get the balance of broadcasting arrangements right. It is vitally important that we should seek to do so. These modest amendments should help to bring that about. It is hardly a revolutionary proposal in Amendment No. 218 that the annual reports of the BBC and the ITC should be formally laid in the Scottish parliament so that Scottish broadcasting issues can be properly debated there. Then it would, I think, simply be daft if the funding of Gaelic broadcasting was to be determined in London—even in Dover House in London—and not in Holyrood.
Finally, on the issue of the Scottish Governor of the BBC and the Scottish member of the ITC, I am bound to confess that in my day, when I was chairman of the IBA, the way all appointments were made to the IBA and, indeed, to the BBC, remained a great mystery, though sometimes I was generously allowed a private comment on proposed membership. Certainly it was the case that the Secretary of State of the day was always consulted about the respective Scottish members of either the IBA or the BBC.
Now, thanks to the Nolan Committee, on which I had the honour to serve, we made recommendations about these matters and there is now a Public Commissioner for Appointments. There are mandatory advertisements for appointments and now there are rows about leakages of the appointment of the new Deputy Governor of the BBC whose speech we have just listened to on the previous amendment. The noble Baroness is no longer in the Chamber but we congratulate her on her post.
In the new situation it seems to us only common sense that the new Scottish executive and parliament should be consulted about these particular appointments to both the BBC Board of Governors and the Independent Television Commission. I beg to move.
Viscount Astor: I support the general tenor of the amendments moved by the noble Lord, Lord Thomson of Monifieth. We had a debate on broadcasting earlier on during this Committee. I feel, however, that the Government failed to answer the point of why broadcasting should be kept a reserved power. The noble and learned Lord, Lord Hardie, replied for the
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Government. I think that he did not consider what the difference is between the regulatory body that is the ITC, the Radio Authority and the BBC. They are different beasts doing different things.
The noble and learned Lord based his argument (at col. 492) on the fact that there would be a serious disincentive to companies investing in production in Scotland, and that the confidence of the industry is an important factor. Indeed, it is, but I believe that unless we establish a proper identity for Scottish broadcasting there will be very little investment in Scotland. I think that even the noble Lord, Lord Thomson of Monifieth would agree with me on that.
The noble and learned Lord, Lord Hardie, also said that the ITC is concerned with national broadcasting and, therefore, the same considerations apply to the ITC as the BBC. They are very different beasts. The BBC is a national broadcasting institution. It has local programmes—BBC Scotland—which cater for a local audience. The ITC is not a broadcaster. It is a regulatory body which licences ITV companies throughout Great Britain. There are separate ITV companies dealing with Scotland and, except for Border, they are all in Scotland.
The Radio Authority deals with local radio in Scotland. As the noble Lord, Lord Thomson, said, it really cannot make any sense that under the Government's proposals there will be less Scottish input into a radio station in Scotland than there was in the days of the IBA. This is a retrograde step. Local radio is for a local audience.
The noble Lord, Lord Gordon of Strathblane, spoke earlier in the Committee. He represents a radio station to which I was listening this morning, on the Clyde—and jolly good it was too. No broadcaster likes to think that there may be a body which will tinker with the licence conditions, which will make life more difficult. I accept that. The noble Lord supported the Government in a previous debate. But local radio is different. It is a very individual process.
I should not like to go further and devolve broadcasting totally to Scotland. I recognise that the ITC and the Radio Authority must have some rules which are national. Indeed, the BBC is a national institution. It binds this country together, although of course the Government want devolution. But those are important arguments.
Within that, there is a strong local input and we want that voice to be heard. My Amendment No. 217 took broadcasting out of reserved powers. The noble Lord, Lord Thomson, has been more modest in his proposal. He is trying to chip away at the Government's position by saying that the parliament will require annual reports of the BBC and the ITC. That must be good. The Scottish parliament must have a role in broadcasting. Independent production is extremely important in this country. We have quotas which we try to achieve as regards local content. That must be encouraged and the Scottish parliament should have a voice in that.
Also, the noble Lord's amendment deals with the funding of Gaelic broadcasting in Scotland and the appointment of the national governor of the BBC and a Scottish member of the ITC. Those are eminently

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sensible amendments. The Government were not able to accept my earlier amendment which provided that broadcasting should be devolved. I should prefer the establishment, as part of the ITC and the Radio Authority, of a separate office existing under national rules but dealing with local issues. That seems to me to be a sensible proposal. But the very least that the Government should do is to accept the extremely sensible amendments of the noble Lord, Lord Thomson, who has many more years' involvement in broadcasting than I have. I have sat on both sides of this Chamber when we have been dealing with broadcasting matters on different legislation and he has always made extremely sensible suggestions. I hope that the Government will accept these amendments.
Lord Gordon of Strathblane: I declared my interest when we discussed this matter last Thursday and some of the issues arose on that occasion, so I shall be brief.
I always hesitate to disagree with the noble Lord, Lord Thomson of Monifieth, particularly as he was chairman of the Independent Broadcasting Authority and re-awarded our licence on one occasion, which was a very wise decision on his part. I hesitate also, to a slightly lesser extent, to disagree with the noble Viscount, Lord Astor, who was a Minister at the Department of National Heritage. Incidentally, in the press announcement from Downing Street today about the Cabinet changes, that department seems to have been renamed again, at least in the press release, the Department of National Heritage, which I would welcome. I prefer that to the Department for Culture, Media and Sport. However, that may be a misprint. At all events, I recognise that the noble Viscount dealt with broadcasting and therefore knows the rules.
It seems to me that both the noble Lord and the noble Viscount have overlooked the fundamental point about broadcasting; namely, that governments do not regulate the content of broadcasting in this country. Unlike many third world countries and many eastern-European countries under a previous regime, we leave it to the broadcasters under the overall regulation of buffer regimes—whether it is the BBC's board of governors, the IBA or its successors, the ITC and the Radio Authority.
If we look at broadcasting legislation, it will be seen that we cannot devolve any of that; in other words, we cannot have a different code of advertising standards and practice in Scotland as regards programmes from that south of the Border. Similarly, we cannot decide to have a different pace of development of digital radio.
If we take the more modest approach of the noble Lord, Lord Thomson, there is really a difference of whether such matters are volunteered by the broadcasting authorities—I am quite sure that that will be the case; in fact, I know that it will be—or whether the Scottish parliament has the right uniquely to demand of a body that it lays documents before it, or has the right to summon witnesses. That would be the only case in which it would have the right to do so, as distinct from a simple request, when dealing with reserved matters.
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I believe that broadcasting should be a reserved matter. The people in broadcasting will willingly co-operate with the Scottish parliament whose main concern will be the content of Scottish broadcasting, not the regulation of it nor the legislation governing it. Indeed, there could be many more programmes on BBC Scotland which are produced in Scotland without any change in legislation. Moreover, no change in legislation could require the BBC to produce more programmes in Scotland. Likewise, the nature of independent broadcasting is determined by the people who win those licences. Therefore, there is no need for the amendment. I give way to the noble Viscount.
10.45 p.m.
Viscount Astor: I thank the noble Lord for giving way. I believe that the noble Lord is right to say that we do not want to have separate Scottish rules for the 1990 and 1996 broadcasting Acts. The noble Lord is also quite right to say that governments do not regulate broadcasting and that it is regulated by the ITC, the Radio Authority and the BBC under its Royal Charter. However, having said that, should not the noble Lord be supporting the suggestion that we put in the Bill an indication somewhere that the ITC and the Radio Authority should establish an independent body in an office in Scotland to deal with Scottish issues? That would mean that people who have such concerns in Scotland would be able to go to a Scottish office of the ITC to have their views listened to and not have to come all the way to London.
Lord Gordon of Strathblane: I should point out to the noble Viscount that no one has to come to London; indeed, the ITC has a Scottish office in Blythswood Street, Glasgow. There is no separate office for the Radio Authority. With the light touch regulation, which was introduced by the government of which the noble Viscount was a distinguished member, the idea was to avoid duplicating costs by setting up exactly the same organisation in Scotland as we had in England.
I should stress that there is very little difference in principle between my position and that of the noble Lord, Lord Thomson. I believe that broadcasters in Scotland would be off their heads not to volunteer to put their annual reports before the Scottish parliament and to allow discussion on content. However, there is a difference between doing so voluntarily and being required to do so. If they are required to do it, that presumes that the Scottish parliament actually has legislative power over broadcasting which I do not believe it has or should have. Moreover, in addition to the content of broadcasting, people in Scotland and the Scottish parliament will be concerned about the quality and content of the Scottish press. Indeed, there is no mention of that anywhere.
Lord Thomas of Gresford: With the greatest of respect to the noble Lord, and if he will forgive me, I should point out that I believe he has missed the point. My noble friend's amendments do not attempt to remove to the Scottish parliament control over the broadcasting Acts of 1990 and 1996, nor do they suggest

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that there should be anything other than reservation in relation to the BBC. They are indeed modest. Amendment No. 218 requires the annual reports to be laid before the parliament. That is something the noble Lord himself said would be good to encourage discussion. It would be a poor parliament that was in any way inhibited from debating issues of broadcasting that were current in Scotland.
Amendment No. 220 concerns the appointment of the national governor for Scotland of the BBC,
"and the appointment of a Scottish member of the Independent Television Commission".
That, again, does not involve interfering with the Broadcasting Acts. As regards Amendment No. 219 which concerns,
"The promotion and funding of Gaelic broadcasting in Scotland",
I should have thought the noble Lord would be supportive of that. I declare an interest as chairman of an independent radio company, Marches Sound, which broadcasts half in Welsh and half in English, and which was also granted its licence by the IBA under the chairmanship of my noble friend Lord Thomson. I have seen the necessity for the support and promotion of Welsh language broadcasting in Wales not simply by local radio stations but also by television through S4C, BBC Cymru and similar organisations. It is important that there should be support from the Scottish parliament for the language and for Gaelic broadcasting in Scotland.
The Duke of Montrose: I offer my support to the noble Lord, Lord Thomson of Monifieth, on Amendment No. 219. At the age of four I was made a life member of An Comunn Gaidhealach. This reflected more the enthusiasm of my elders than any enthusiasm I had at that time. But it has been one life membership from which I have gained good value over the years. If I have understood correctly the findings of the researches of my noble friend Lord Mackay of Ardbrecknish, Gaelic broadcasting is possibly the one subject on which a Minister of the Scottish parliament will be able to represent the UK in Europe. It might be useful for the Scottish parliament to discuss this subject beforehand.
Baroness Linklater of Butterstone: I add my voice to the chorus of support for my noble friend's amendment. It follows from the previous discussion we had. It seems to me that for an activity that is so absolutely central to Scottish life it is entirely illogical that the Scottish parliament should not have sight of the annual reports of the BBC and the ITC as a matter of course. The noble Lord, Lord Gordon, is quite right; this amendment does not seek simply that these documents should be made available as a matter of courtesy, but that they should be required to be laid before the Scottish parliament. That would give the process a kind of formality and would lock the parliament, the BBC and the ITC into a dialogue. I am not speaking of control but of making the parliament's voice heard and its influence felt. As I think the noble Lord, Lord Gordon, implied, and I know full well, both these bodies are well
1314
prepared and ready to take such a step. Therefore I cannot for the life of me understand why the Government should resist this measure.
As regards the promotion and funding of Gaelic broadcasting, the Fraser Report was recently completed. It, too, would welcome such an amendment as this. It recommends that there should be,
"A single Gaelic Broadcasting Authority".
At the moment the scheduling is sporadic and there is little co-ordination. There is often confusion and overlap. A far greater degree of coherence is needed. For such a specialist, small area of broadcasting, it is absolutely crazy or, as my noble friend said, daft, that this matter should not be dealt with by the Scottish parliament. It is a source of considerable amazement among broadcasters that it is proposed to reserve it. I hope that the Government will listen hard to the voice of the people on the ground who give us this service.
As for the appointment of the national governor for Scotland, that is only logical. There are many BBC executives who would find it much more comfortable and would be much happier to have their national governor for Scotland being appointed by the Scottish parliament. To many people in Scotland the national governor is like the chairman of the BBC. People have indicated to me in conversation that to have a national governor appointed in the way that we propose would make it easier for them to be more proactive, rather than reactive as they are at present. It might make it possible to enter the proceedings earlier. There have been disputes and difficulties. The "Panorama" programme is a case in point, where perhaps it would have been easier, and could be made easier in future, to enter the proceedings earlier. The provisions should be there for when difficulties occur. I repeat: I very much hope that the Government will listen hard to these arguments.
Baroness Young of Old Scone: I should perhaps declare an interest. I had not intended to speak; however, I feel that I must following the interjection by the noble Baroness, Lady Linklater. I hope that with this amendment we do not face any misapprehension about what the input to the process of governance of broadcasting should be from the Scottish parliament or indeed any political process. I was worried by the reference to the "Panorama" programme and am loath to hear any suggestion that programme content might be influenced by the political process. We have to respect the independence of broadcasting in this country and promote it wherever possible.
There are issues on which reassurance can be given. For example, the annual report of the BBC has already been willingly offered to the Scottish parliament. Although I am premature in saying so, because it is at least four days before I arrive at the BBC, I hope that we shall see an openness and accountability in regard to all aspects of governance in the UK from that institution.
In regard to the appointment of governors, again I should declare an interest, having recently been appointed. Politicising such appointments should be

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avoided at all cost. Indeed, the new practice of advertising vacancies and appointing in terms of known procedures is absolutely vital.
Lord Thomson of Monifieth: The noble Baroness was not in her place when I ventured to congratulate her on her new appointment. Perhaps I may remind her, since she has not yet arrived at the BBC, that while broadcasting of course has to be kept at arm's length from politics in terms of interfering with programmes, it is governments who appoint governors. That is a political act. The Scottish executive and Scottish parliament are entitled to take a political interest in that, just as we do in this House and in the other place.
Baroness Strange: I merely wish to point out that Gaelic is not, and never has been, the national language of Scotland, although it has always been spoken by the people in the Highlands and Islands and in the north of Scotland. I believe that people in the Orkneys and Shetlands spoke Norse. The main part of Scotland has always spoken Scots, or Lallans. Perhaps we should make a plea for broadcasting in that language.
11 p.m.
Lord Mackay of Ardbrecknish: We have returned on a rather narrower set of amendments to the subject of broadcasting, which we discussed very late on what was the only full day we have had in Committee on this Bill. I shall be puzzled if the Government refuse to accept these three amendments—but I shall probably be puzzled.
As my noble friend Lord Astor said, the Independent Television Commission is the regulatory body. As such, it undertakes any regulation that is necessary, and not the Government. That is right and proper. The last thing I should want is for the Government to regulate television, radio or any other of the information media.
Independent television is quite different from the BBC. Under the ITC umbrella, the major companies in Scotland—Grampian and Scottish—are Scottish companies, part of the Scottish Media Group. In the parallel medium of radio, Scottish Radio Holdings is in a similar position of being an independent Scottish company. It broadcasts from that Scottish base. I therefore do not see any reason the parliament should not be allowed to have the Independent Television Commission's report laid before it. Nor do I see why it should not be allowed to take part in the appointment of a Scottish member of the Independent Television Commission. However, perhaps I should say to the noble Lord, Lord Thomson of Monifieth, that I suspect this will meet the same fate as a member of the Monetary Policy Committee of the Bank of England. In other words, Big Brother at Westminster will continue to think he or she knows best. In this case he knows best, as I imagine this will be a "FOTAC" appointment, a friend of Tony and Cherie.
The BBC is different. My noble friend Lord Astor thinks the BBC binds us together. He clearly listens to Radio Clyde and not BBC Scotland, because over the
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past 20 years, as I said on Thursday evening, it has done its best to advocate devolution. Some broadcasters bring up the United Kingdom, but that is a different matter.
I do not see why we cannot have a separate public broadcasting authority in Scotland. It seems to me that the BBC in Scotland sails a narrow line between trying to be independent and trying to keep—I was going to say the "apron strings"—the purse strings that bind it to London. I see no reason why the BBC should not lay its annual report before the parliament. I have to say to the noble Lord, Lord Thomson, that I suspect that whether or not it lays the report before parliament, if the parliament wants to discuss it, nothing will prevent it from doing so. Perhaps it would be better to say that parliament should require it.
On the appointment of a national governor for Scotland, my position is as it was for a Scottish member of an ITC. If the role of the Secretary of State for Scotland is to be as diminished as it will be after devolution, it should be a matter for the Scottish parliament and Scottish executive.
I am puzzled by Amendment No. 219. Currently it is the budget of the Secretary of State which promotes and funds Gaelic broadcasting in Scotland. Indeed, my right honourable friend Mr Michael Forsyth, when he was Secretary of State, and my noble friend Lord Lang both increased the amount of funding going from the Scottish Office budget to Gaelic broadcasting. There will not be a Scottish Office budget held by the Secretary of State for Scotland after devolution, it will all be devolved. So I would have thought that if the new parliament is to be able to fund Gaelic broadcasting as the Secretary of State has done to date, it will have to be devolved. Therefore, perhaps the Minister will accept Amendment No. 219.
Lord Sewel: It is nearly good news time. Although I start by making the statement that the Government believe that broadcasting and all matters relating to broadcasting should be reserved so that only the UK Parliament can legislate about these matters, I can make clear at this stage that we are going, via slightly different routes, to the same destination. At the end of the day I do not think much will separate us on this.
Of course we realise that the Scottish parliament and Scottish executive should have a role in relation to broadcasting matters. The broadcasting bodies themselves have a vital role to play in the political, social and cultural life of Scotland after devolution. We intend that they should communicate with the Scottish parliament, even though formal accountability will remain at Westminster.
Perhaps I may deal with Amendments Nos. 218 and 220 first. They deal with the reports of the appointments to the BBC and ITC. I start by making a statement of our intentions in respect of the BBC.
The BBC is governed by its Royal Charter which was renewed in 1996. The Government intend for some changes in procedures to be made in relation to appointments and annual reports reflecting the establishment of the Scottish parliament and of the Scottish executive.

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The Royal Charter provides that the board of governors of the BBC shall include a national governor for Scotland, as was remarked upon, selected on the basis of his or her knowledge of the culture, characteristics and affairs of the people of Scotland—perhaps an unfortunate choice of words. It has been custom and practice for the Secretary of State for Scotland to be consulted in advance of this appointment. When the Scottish executive is in place, the appointment of the national governor for Scotland of the BBC will be made after consultation with Scottish Ministers. I hope that that goes most of the way to meeting the intentions of the noble Lord. It virtually replicates the system that exists at the moment.
The Royal Charter provides that the annual report of the BBC shall be laid before both Houses of Parliament. In future, the report will also be presented to the Scottish parliament. This will therefore achieve the same outcome as the noble Lord seeks to achieve through Amendment No. 218, but without fragmenting the legislative competence in relation to broadcasting.
For the Independent Television Commission we intend to make provision through the Executive Devolution Order under Clause 59 to secure that the annual report will be laid before the Scottish parliament. We will similarly provide that the Scottish member of the ITC is appointed only after consultation with Scottish Ministers. The exact details of achieving those proposals in respect of the BBC and ITC are still being worked on, but that is the clear commitment of the Government in terms of policy direction and objectives. Again, I hope that that meets the concerns behind Amendments Nos. 218 and 220.
I turn now to Amendment No. 219 in relation to Gaelic broadcasting. The promotion and funding of Gaelic broadcasting in Scotland is clearly a matter primarily of Scottish interest. As the noble Lord, Lord Mackay of Ardbrecknish, observed, in practice, funding is a matter for the Secretary of State for Scotland, but in line with the usual arm's length approach to broadcasting, the funding of the Gaelic Broadcasting Committee is made through the Independent Television Commission. The function of funding Gaelic broadcasting will be transferred by the Executive Devolution Order under Clause 59 to Scottish Ministers. It will be open to them, subject to the agreement of the Scottish parliament, to vary the annual allocation of funds to the Gaelic Broadcasting Committee.
To take up one of the concerns mentioned earlier, that will not be a matter decided in London; it will be a Scottish decision. I hope on those issues I have been able to satisfy the noble Lord that, in terms of where we want to get to, we are agreed; it is just a slightly different route. I hope that he now feels able to withdraw his amendment.
Viscount Astor: Before the noble Lord, Lord Thomson, replies, perhaps the Minister could answer one point. In terms of the Radio Authority and the ITC, when it comes to handing out licences for the local services, can the Government say what plans they have for ITC and the Radio Authority to take account of local interests in Scotland when handing out those licences?
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Now we have devolution, should not those bodies have a local representation? The ITC has an office in Scotland but the Radio Authority does not. Would not that be a sensible route for the Government to encourage those bodies to take?
Lord Sewel: I believe we dealt with the general matter on another day on the basis of whether broadcasting itself should be reserved or devolved. On the specific point raised by the noble Viscount, the ITC regional offices are not set up because of any statutory requirement. The location activities of those offices are a matter for the internal management of the ITC and will remain so.
Lord Thomson of Monifieth: Perhaps I can help the noble Viscount. I do not know what the Radio Authority presently does, but in my time the hearings of those who were applying for licences took place in the locality where the licence was to operate. That only makes common sense. I am sympathetic to what the noble Viscount said, but these matters can be taken account of by the authorities themselves.
In relation to Amendment No. 218, I am grateful to the Minister for the way he responded. I am reassured by what he says that the purposes of the amendments will be fulfilled in various ways within the Bill. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 219 and 220 not moved.]
Lord Selkirk of Douglas Lord Selkirk of Douglas moved Amendment No. 221:
Page 82, line 23, leave out ("and sheriffs") and insert (", sheriffs and stipendiary magistrates").
The noble Lord said: This amendment adds stipendiary magistrates to the list of judges whose remuneration is reserved to the United Kingdom Parliament. The remuneration of the Court of Session judges and sheriffs is reserved to the United Kingdom under the Bill. Stipendiary magistrates are omitted from the list.
There is no good reason for omitting them. They frequently operate in the district courts and they have many of the powers of a sheriff sitting in a summary court. For example, they have the same sentencing powers in a summary capacity as a sheriff. They are appointed under the District Courts (Scotland) Act 1975 by the Secretary of State. They could conceivably deal with devolution issues. Their remuneration should be subject to the same parliamentary procedures as other judges.
Let me give a very good example. The Glasgow District Council wished to make a stipendiary magistrate redundant. He took the district council to the Court of Session and it was decided that this was a judicial office and therefore he could not be made redundant by the district council. By that same token stipendiary magistrates should come under the United Kingdom, as do other judges. I beg to move.
The Earl of Balfour: I rise to support my noble friend Lord Selkirk of Douglas. I understand that Glasgow is quite different from the rest of the country.

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I shall also speak to my own Amendment No. 222. At page 80, Head 8, Section 1(f) there appears "the Industrial Tribunals Act 1996". We should consider including the chairman of industrial tribunals at the end of Head 11, Section 1 of the Bill.
Lord Mackay of Drumadoon: I can be brief on these two amendments. As to the amendment moved by my noble friend Lord Selkirk of Douglas, I can see that there might be a difficulty in the Government accepting it. Stipendiary magistrates are employees of the local authority and, in that respect, fall into a different category from sheriffs and the other judges mentioned under the section.
Lord Selkirk of Douglas: Does not my noble friend accept from the case I mentioned that stipendiary magistrates cannot be sacked by the local authority and are therefore in a different position from other local authority employees?
Lord Mackay of Drumadoon: I am happy to agree with my noble friend on that matter after reading the opinion of Lord Eassie, as he no doubt has done.
When the Minister replies will he say whether the provision that makes such stipendiary magistrates local authority employees might merit some reconsideration in the light of the comments made by my noble friend?
As to the amendment of my noble friend Lord Balfour, it will be interesting to hear from the noble and learned Lord the Lord Advocate whether such an amendment is necessary.
Lord Thomas of Gresford: Before the noble and learned Lord replies, may I, in a spirit of inquiry, ask why the remuneration of judges is reserved in this way? I note that the appointment and removal of judges is on the basis of recommendations and nominations from the first minister of the Scottish parliament. I understand that the Scottish parliament will pay for those judges. I understand also that they will be administering Scottish law in Scottish courts, so why should the determination of their remuneration be a matter of interest to the Westminster Parliament and not to the Scottish parliament?
11.15 p.m.
The Lord Advocate (Lord Hardie): I appreciate the thinking behind the noble Lord's attempt, through this amendment, to protect the salary level of the stipendiary magistrate. However, I do not agree that the amendment is appropriate.
I accept that stipendiary magistrates in Scotland perform a valuable role in our criminal justice system and it is right that they should be appropriately remunerated for the responsible job which they do. But I fear that this amendment misses the point of the reservation in Schedule 5 in relation to the determination of certain judicial salaries. This may answer the point raised by the noble Lord, Lord Thomas of Gresford. As presently drafted, the Bill ensures that the Scottish
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parliament cannot apply differential salary rates to the Scottish judiciary by comparison with judges occupying similar posts in England.
At present, Scottish judicial salaries are related to English judicial salaries and if it were permitted to interfere with that, that would be an unwarranted interference in judicial independence or might be construed as such. If the parliament decided to reduce the salaries or to remove the differential such that Scottish judges were unfairly treated compared with their English counterparts, that might be construed by some as an attempt by the parliament to interfere with the independence of the judiciary. I suspect that the judiciary in Scotland might not have the same concerns if the parliament took a different view and paid the judiciary in Scotland more handsomely than in England! However, it is appropriate that people occupying equivalent posts in Scotland and in England should have equivalent salaries, which are, in any event, determined by the Top Salaries Review Body, which will still continue to apply to Scotland as well as to England. That is essentially the nub of the matter.
As the noble Lord, Lord Selkirk of Douglas, observed, stipendiary magistrates are created by virtue of purely Scottish legislation—the District Courts (Scotland) Act 1975—and they serve in the uniquely Scottish district court. They should not be confused with the English judicial office of the same name—stipendiary magistrate—whose jurisdiction, powers and terms of appointment are completely different and who therefore, quite appropriately, have their salaries determined in a different way.
As I have said, stipendiary magistrates are appointed directly by the local authority to serve in the district courts. Although the local authority cannot dismiss them, when they are appointed the local authority can determine the appropriate level of salary.
To take up the point raised by the noble and learned Lord, Lord Mackay of Drumadoon, that appointment fits in with the logic of the stipendiary magistrates working in the district court because the local authority has the responsibility in terms of the same Act for the provision and maintenance of arrangements such as premises and facilities for the district court. All of that ought to be governed by the local authority. This means that the provision of local justice is subsumed neatly into one piece of legislation which, given its nature, will quite appropriately be devolved in full to the Scottish parliament. In these circumstances, it would not be appropriate or necessary to seek to reserve determination of the salary of a stipendiary magistrate to the UK Parliament when responsibility for local authority matters generally is devolved to the Scottish parliament.
I turn to Amendment No. 222. As the noble and learned Lord, Lord Mackay of Drumadoon, hinted this amendment is unnecessary. The amendment seeks to reserve to the Westminster Parliament legislative competence in relation to determination of the salary of the Chairman of Industrial Tribunals as for other members of the Scottish judiciary. I understand the sentiment behind the noble Earl's amendment, but it is

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unnecessary because employment matters are reserved under the relevant part of Schedule 5. The noble Earl has already referred to page 80 where under Head 8 employment rights and duties and industrial relations are reserved, in particular the Industrial Tribunals Act 1996 in paragraph (f). The remuneration of chairmen of industrial tribunals is fixed under that Act, so employment is specifically reserved. Accordingly, it is unnecessary to duplicate that under Head 11 as the noble Earl suggests. With that explanation, I hope that the noble Lord will withdraw his amendment.
Lord Thomas of Gresford: I am most grateful to the noble and learned Lord for his explanation of the reasons for the reservation of these matters. The excellence and integrity of judges in Scotland is not only beyond reproach but is of the highest repute in the common law world. But the noble and learned Lord misses my point. He looks at it from the point of view of the Scottish parliament reducing or increasing remuneration. I am concerned about what the public may think of a judiciary appointed on the nomination of the first minister in Scotland. Those judges will be administering Scottish law in Scottish courts but they will be paid for from Westminster. It would appear that some vestigial control over the judiciary remained with Westminster. What if Westminster with a different style of government decides to reduce or increase the salaries of judicial officers in this way?
Lord Rodger of Earlsferry: I should indicate that the provisions in the Bill relating to judicial salaries have the full support of the judges in Scotland. They were particularly concerned because this Bill conferred upon them the duty of judging a whole lot of matters in relation to vires and so on and a constitutional role which had not hitherto been theirs in the full sense in which it would be conferred in future. In that situation it was felt by the judges to be important, in line with what occurred in other situations, that the position relating to their salaries, appointment and removal should be dealt with as carefully as possible. We had particular regard to the question of appointment and removal, to which we shall turn when we reach Clause 89 and the matters to be dealt with in that regard. Not all of those matters are entirely devolved because in certain instances there is a role for the Prime Minister.
As to remuneration of judges in Scotland, that has been determined for many years by reference to the same independent reports of the Top Salaries Review Body. We felt confident that that body would be the appropriate one to deal with our salaries in the foreseeable future. It is for that reason that the judges in Scotland ask that arrangements of the kind that the Government have put in place should continue.
Lord Hardie: Perhaps I may say in reply to the noble Lord, Lord Thomas of Gresford, that although the determination of remuneration will be in accordance with the findings of the Top Salaries Review Body, when it comes to payment of salaries that is not reserved and will come out of the Scottish Consolidated Fund.
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The Scottish people will see judges being appointed on the recommendation of the first minister, perhaps removed by the Scottish parliament—hopefully, never—but being paid out of the Scottish Consolidated Fund. All that will be determined outwith Scotland is the level of salary in accordance with the English rate and the recommendations of the Top Salaries Review Body.
Lord Selkirk of Douglas: I am grateful to the Lord Advocate for his reply. I certainly would not wish to press the matter at this time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 222 not moved.]
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): Before I call Amendment No. 222ZA, I should inform the Committee that, if it is agreed to, I cannot call Amendments Nos. 222A to 222E inclusive because of pre-emption.
[Amendment No. 222Z4 not moved.]
Lord Selkirk of Douglas Lord Selkirk of Douglas moved Amendment No. 222A:
Page 82. line 36, at end insert—
("The prohibition of discrimination in higher education.").
The noble Lord said: I shall speak to this amendment very briefly. I note that an announcement was made today or very recently that Sir William Quigley is to chair the independent commission.
The amendment applies not only to the charging of fees. It could relate to the provision of accommodation or other forms of provision. But, obviously, the amendment stems from the injustice of making students at Scots universities from other parts of the United Kingdom pay more than Scots students and more than students from Europe. I think that students from other parts of Britain studying for a fourth year at Scots universities would be much more likely to be treated equitably and generously by a Scots parliament than by the United Kingdom Parliament under this Government. Blatant discrimination is contrary to the Scottish educational tradition; and in any case discrimination will be outlawed by the Human Rights Act. So I shall be very interested to hear what the Minister has to say in reply to the amendment. I beg to move.
Lord Mackay of Ardbrecknish: Perhaps I may say a few words to my noble friend's amendment. I suspect that my noble friend is trying to rub salt into the Government's wounds on the climb-down decision that they were forced to make on the whole subject of student fees for students from other parts of the United Kingdom. I know that that is an unworthy thought and that my noble friend would never think such a thing; but, if he did not, I congratulate him on his amendment because it certainly indicates to us that the Scottish parliament will have a role—indeed, a very considerable role—in higher education.

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Perhaps this would be a good opportunity for the Minister to confirm that the Scottish parliament would be entirely within its vires if it were to decide that students coming to Scottish universities should not be discriminated against on the basis of their country of origin. I should have thought that that was well within the Race Relations Act 1976, which I notice is a reserved matter. But it seems to me that discrimination against English, Welsh and Northern Irish students is just as naughty as discrimination against students of any other nationality or origin.
I know I shall be told that it is not a question of nationality but of place of residence. However, I suspect that if the Government were in opposition they would not be too willing to make that distinction. If we had come forward with a policy as ridiculous as the one they have come forward with, Mr. Brian Wilson would have had a field day—a field day much better than the one he had in trying to defend the policy.
I should like confirmation from the Minister that the Scottish parliament will be able to say to the Scottish universities that, wherever the students come from, they should not be asked to pay a fourth year tuition fee in an honours degree course and that therefore all the students in the queue, so to speak, for matriculation will be there on the same basis, which is what they will be on elsewhere in the United Kingdom. If the Minister says that that will happen, perhaps I may add that, unless his party changes its view on this issue, I suspect that it will be alone in entering the elections for the Scottish parliament pledged not to give this help to students attending Scottish universities and thus to discourage students further from attending these same Scottish universities.
I understand that the Scottish National Party has pledged to find the money and to right this clear wrong. I made it perfectly clear in the debate on the matter that we would find the money to right this clear wrong. I suspect that the Liberal Democrats would happily do the same. It would be interesting to hear the Minister telling us whether it will be in the Labour Party's campaign guide for the elections to the Scottish parliament to remove this anomaly, which its colleagues at Westminster have inflicted on the Scottish university scene.
11.30 p.m.
Lord Mackie of Benshie: I assume that the noble Lord, Lord Selkirk of Douglas, would never dream of rubbing salt into the wounds and that there are other forms of discrimination as well as the one over which the Government got into trouble on the charging of extra fees to students from England.
Lord Sewel: I had thought I might receive a speech in support from the noble Lord, Lord Howie of Troon.
Lord Howie of Troon: All I have to say is thank you.
Lord Mackay of Ardbrecknish: Is the Minister indicating that he is feeling uncomfortable at the fact
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that all the supporters he had on a previous debate have suddenly vanished from the scene of the Scotland Bill as quickly as they appeared?
Lord Sewel: No, I am confident that I shall be able to persuade Members opposite of the goodness and rightness of my cause. I am perfectly confident in responding to the amendment. It gives me the opportunity to use one of those phrases of your Lordships' House that I have always wanted to use. Heaven forfend that the noble Lord, Lord Selkirk of Douglas, would wish to rub salt into anyone's wounds. He is too gracious an opponent to do that.
There is a problem about banning discrimination in higher education. Discrimination is an essential part of higher education. We discriminate in higher education usually on the ground of ability. I do not suggest that the noble Lord is arguing that all students should receive the same degrees on the basis of the amendment.
I understand the sentiments underlying the noble Lord's proposal. However, I believe that equal opportunities legislation can be most effectively handled on a GB basis. I am therefore rather surprised that the noble Lord has singled out the prohibition of discrimination in higher education in this way. His amendment would mean that the Scottish parliament could legislate about prohibiting discrimination on any ground in higher education while the competence to legislate to prohibit discrimination in all other walks of life would remain with the UK Parliament. I do not believe that it would be desirable to fragment equal opportunities legislation in this way by focusing out and removing the prohibition in terms of higher education.
Perhaps I may respond to the question of the noble Lord, Lord Mackay of Ardbrecknish. I understand that it would be perfectly competent for a Scottish parliament to decide to act on student fees in the way that the noble Lord wishes to bring about. Without being invited to get into the details of the issue that the House resolved some little time ago, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Selkirk of Douglas: It has been useful to elicit the views of the Minister on this subject, which raises an important principle. When the independent commission has reported on the matter, no doubt the issue can be considered again in a different context. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendments Nos. 222B to 222E:
Page 82, line 37. leave out from ("on") to second ("to") and insert—
("(a) any office-holder in the Scottish Administration, or any Scottish public authority to which paragraph 1 or 2 of Part III of Schedule 5 applies,").
Page 82, line 38, leave out ("their functions") and insert ("the functions of the office-holder or authority").
Page 82, line 39, at end insert (",or
(b) any cross-border public authority to make arrangements with a view to securing that its Scottish functions are carried out with due regard to the need to meet the equal opportunity requirements.").
Page 83, line 8, at end insert—
(""Scottish functions" means functions which are exercisable in or as regards Scotland and which do not relate to reserved matters.").
The noble Baroness said: Although the Government believe that it is right for equal opportunities matters to be generally reserved, the Government also believe that it is important for the Scottish parliament and the Scottish executive to have the necessary powers to promote and encourage equal opportunities. We have provided two important exceptions from the reservation which will enable the Scottish parliament and executive, first, to encourage equal opportunities generally and, secondly, to impose duties on public bodies with functions relating to devolved matters in order to secure that their functions are carried out with due regard to the requirements of equal opportunities law.
All bodies in Scotland will, of course, be obliged by law to adhere to the existing requirements of Great Britain equal opportunities legislation. But this is an area in which there could be scope for further encouragement. For example, the exceptions make it clear that the Scottish parliament and executive will be able to give guidance on equal opportunities, support the spread of best practice and require public bodies to adopt equal opportunities policies and monitor the effectiveness of those policies.
Against that background, Amendments Nos. 222B to 222E are technical amendments to clarify the bodies to which the second exception to the equal opportunities reservation applies in Section 2, Head 11. The exception is to enable the parliament to impose duties on certain public bodies to make arrangements to secure that their functions are carried out with due regard to meet the equal opportunities requirements. At present, this exception applies to public bodies with functions relating to devolved matters. These amendments would replace that reference with a more precise listing of the office-holders and authorities in relation to which this competence should be exercisable. Those are, first, any office-holder in the Scottish administration. We have, for example, the Scottish Ministers, the Registrar General of Births, Deaths and Marriages, the Keeper of the Records and the Keeper of Registers.
Secondly, any Scottish public authority which has no functions which relate to reserved matters. An example of that is the Deer Commission for Scotland or the Crofters Commission. Thirdly, any Scottish public authority which has functions relating to reserved matters as well as matters which are not reserved but which are to be devolved by Part III of Schedule 5. Authorities in this category include, for example, Scottish local authorities and NHS bodies which, although largely concerned with devolved matters, have certain functions in relation to reserved matters. Fourthly, cross-border public authorities in relation to those of their functions which are exercisable in or as regards Scotland and which do not relate to reserved matters. That would apply, for instance, to such functions of the Forestry Commission, the British Waterways Board or the Intervention Board for Agricultural Produce.
I hope that, with those explanations, your Lordships will agree that these amendments provide useful clarification. I beg to move.
On Question, amendments agreed to.
The Deputy Chairman of Committees: I should point out that if Amendment No. 223 is agreed to I cannot call Amendment No. 224 through pre-emption.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 223:
Page 83, leave out line 18.
The noble Lord said: I suppose that we should introduce this debate by saying, "Here cometh the time lords". Section 5 of Schedule 5 relates to time. My amendment and that in the name of the noble Lady, Lady Saltoun of Abernethy, address the same issues. However, I wish to raise one or two interesting questions with the Minister about what is reserved and what is an exemption from reservation.
I am puzzled about what the Government mean by "timescales" in the reservation and what they mean by "the computation of periods of time" in the exemptions. "The computation of periods of time" could be interpreted to mean 60 seconds in a minute, 60 minutes in an hour and 24 hours in a day. I do not imagine for a minute or even a second that that is what it means because I do not believe that the Scottish parliament could decide to go to metric time or anything of that nature. Therefore, I should be grateful for an indication of exactly what is meant by "computation of periods of time".
I can understand the two subject matters in the exemption, which are clear. I do not believe that the Government would have created some of the problems they have created for themselves if, when they came to exemptions, they spelt out the Acts of Parliament and the sections of those Acts which were to be exempt. That would save asking questions such as "What do they mean by the computation of periods of time?"
But the most important aspect of this little debate will be the discussion on whether,
"Timescales, time zones and the subject-matter of the Summer Time Act 1972",
should be reserved or whether they should be devolved.
I am a purist. I believe, simply because of the way it works, that we live in the Greenwich time zone. That is an inevitable part of geography; it just happens like that. No Acts of this Parliament or even the European Parliament can wish that terrible fact away. Quite close to us is the Greenwich Meridian and therefore we are in the Greenwich time zone.
As some of your Lordships will know, I have mentioned this before. The idea that we could be in a time zone that stretched from the west of Ireland to central Europe, and that that would be a logical time zone to be in, is absolutely crazy. In that, there is no concept of what time zones are about or why we have them. It also seems amazing to me that people think that Europeans are so stupid that they can exist only in one time zone, when the Americans manage four and the

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Australians three or four. The Russians manage a good deal more than that, and the Japanese seem to manage to sell their goods all round the world in all 24-hour time zones. It does not seem to bother them too much. It seems odd that it should bother the Europeans.
However, our problem is that in Scotland many people feel strongly about the issue of time zones and the Summer Time Act in particular. While we are content with the current way that the Summer Time Act works, we would not be content, and we were not the last time it was tried, with an attempt to have summer time all the year round and, I suppose, double summer time in the summer time.
Everyone knows that every time this is discussed Members of Parliament in the other place from Scotland make clear to their own parties, if they are the governing party, that they do not believe this is a wise and sensible thing to do. Not only does Scotland lie further north than England—an obvious fact—but the problem is that it lies slightly further to the west. The distortions of time, if I can call it that, are a factor both of west and north. The further north one is, the shorter the days in winter time and the more out of balance they are if one moves into the wrong time zone.
So these matters of time zones are important in Scotland. Given the natural reduction in influence which we believe Scottish Members will have in the other place after devolution is up, running and working, many of us feel that it would be best if the question of timescales, time zones and the subject matter of the Summer Time Act of 1972 were devolved to a Scottish parliament. Then this issue which concerns Scotland greatly would not be dealt with on the basis of southern England, where daylight in the winter-time is much longer. I can understand that there the temptations to be in the same time zone as their friends a few miles away across the Channel are considerable. But the people in southern England have to remember the people in the north of Scotland as far north as Shetland where the whole question of summer time all year round would be met with a considerable degree of horror and opposition.
Given the position of the Scottish parliament in looking after the Scots and the Scottish economy, I believe that it is important for this matter to become a devolved matter to protect us from any diminution in Scotland's influence down the corridor and from being precipitated into summer time all the year round. I beg to move.
11.45 p.m.
Lady Saltoun of Abernethy: As the noble Lord, Lord Mackay of Ardbrecknish, has said, between 1968 and 1971, we had what I call double summer time imposed upon us for a trial period of, I think it was, two years. It was desperately unpopular, especially in the north, where in mid-winter it does not get light until after eight o'clock in the morning and it gets dark again soon after three o'clock, even with what I call ordinary Greenwich Mean Time. I do not know if it is still called Greenwich Mean Time.
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Double summer time meant that we were driving our children to school in the dark and it was getting dark again when we picked them up. For farmers, especially dairy farmers whose beasts do not recognise double summer time, it made life very difficult. It was misery for the building trade and others involved in work out of doors.
Various attempts have been made since then to reimpose this horror on Scotland from Westminster, mainly by Private Member's Bills, but Private Member's Bills, even though they do not succeed, very often eventually lead to government legislation.
The point of my amendment is to take this whole question of summer time, double summer time or what time we have in Scotland out of the hands of the Westminster Parliament and into the hands of the Scots.
Like the noble Lord, Lord Mackay of Ardbrecknish, I am not quite clear as to what "time scales" are. When I put down my amendments, I asked the Clerk and we thought they were probably the fine adjustments of something like one second per 100 years to iron out the discrepancy between Greenwich mean time and the time mother earth takes to circle the great round sun. Then I asked the noble Lord, Lord Mackay of Ardbrecknish, and he thought, as he said, that it was a question of the number of seconds per minute and so on, the kind of thing that the French altered at the time of the revolution, when they tried to impose the metrical system on God.
I then looked in the dictionary and I found scant help there, so I went to the Library. A kind librarian found me various scientific encyclopaedias and photocopied the most helpful looking for me. I shall read your Lordships a very short extract from it:
"Numerous time scales have been formed … Universal Time (UT; the mean solar time of the meridian of Greenwich, England), Coordinated Universal Time (UTC; the basis of legal, civil time), and leap seconds are treated under the heading Rotational time. Ephemeris Time (ET; the first correct dynamical time scale) is treated in the section Dynamical time, as are Barycentric Dynamical Time (TDB) and Terrestrial Dynamical Time (TDT), which are more accurate than Ephemeris Time because they take relativity into account".
I expect that most of your Lordships are now quite clear as to what time scales are but I am afraid I am not very much the wiser. In any event, I wonder whether there is really any point in devolving them. Nevertheless, I should very much like to know what they are. Perhaps the noble Lord, Lord Sewel, could enlighten me. I presume he knows since he is in charge of the Bill. If they are something quite different from what I think they are, I might prefer to support the amendments of the noble Lord, Lord Mackay of Ardbrecknish, instead of my own.
Lord Ewing of Kirkford: Having risen from my comfortable, warm bed at six o'clock this morning and now it is 18 hours later, there is no one more conscious of time and the need to catch up with time than I am at this present moment.
I was very closely involved with the experiment in the late 1960s and early 1970s in relation to double summer time, to which the noble Lady, Lady Saltoun,

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referred. I worked in the Post Office at that time and I can place on record that we had more postmen injured on those late, dark mornings than we had at any other time during the history of the Post Office.
The only point that I wish to make now is that it is my fervent hope that my noble and learned friend will give us an absolute assurance in his response that no leader of the Opposition, when speaking for the Opposition, will be able to rise to his feet at 15 minutes to midnight and keep the Scottish parliament at Holyrood occupied until that really uncivilised time of night.
Viscount Montgomery of Alamein: I rise to express my support for my noble friend Lord Mackay but for rather different reasons. I follow on from what the noble Lady, Lady Saltoun, said, as one of the horrible people who actually proposed that we should have our time more aligned to that in western Europe. Indeed, a year or so ago, I proposed the western European time Bill which was, needless to say, opposed vigorously by friends in Scotland. I suppose they did so for the reasons that have been given, but one of the curious things is that they always go on about what happens in winter when there are many hours of darkness, while never mentioning the fact that there is a huge number of extra hours of daylight in summer which we do not enjoy down here. I give way to the noble Lady.
Lady Saltoun of Abernethy: I thank the noble Viscount. I should point out to him that during a considerable number of those hours one is normally asleep. Therefore, one does not enjoy them.
Viscount Montgomery of Alamein: That may well be so. However, other people may be awake and, of course, the cows do not necessarily relate to that sort of activity because they work on a different clock.
However, if this power is devolved to Scotland, it seems to me that they will be able to go their own way and those of us in the rest of the United Kingdom will be able to join in with Europe in this respect. After all, that is where most of our trade takes place. It would be a very sad day if this were to happen, so I find myself in the rather bizarre position of agreeing with my noble friend Lord Mackay but, as I said, for completely different reasons.
Lord Monson: The noble Viscount's intervention helps to explain why I am pulled two ways by the amendment. On the one hand, time zones are surely a perfectly proper subject for devolution. I agree with the noble Lord, Lord Mackay. Those in this country and in the EU who maintain that there ought to be one uniform time zone right across Europe are, one fears, little Europeans and ignorant of the ways of the wider world, not least the United States, Canada, Australia, the Russian Federation and Indonesia.
As I must have pointed out at least a dozen times in this Chamber, Chicago is the same distance from Detroit as London is from Paris. When it is 10 a.m. in Chicago, it is 11 a.m. in Detroit. That does not worry the Americans, nor does it impede their economic
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performance. Therefore, those who worry about the fact that when it is 10 a.m. in London it is 11 a.m. in Paris are worrying quite unnecessarily. If the Scots want the time in Edinburgh to differ by one hour from that in Carlisle (exactly 75 miles due south) in exactly the same way as the time in Vigo, in Galicia, differs by one hour from that in Oporto (exactly 75 miles due south), why should that not be so?
On the other hand, I want England to stay on western European time rather than moving to central European time, as the noble Viscount wants. The English status quo is more likely to be jeopardised if the Scots are allowed a free hand. Therefore, I remain undecided on the matter.
Lord Mackie of Benshie: I believe that we do not quite understand the meaning of the summer time Act. Indeed, it is a simple Act designed to make people get up earlier. If people in the City of London want to enjoy community of time with offices in Paris, Berlin and elsewhere, there is no reason why they could not get up an hour earlier. There is no questioning the fact that people have accepted summer time in this country.
The noble Viscount, Lord Montgomery, may not have noticed that it is impossible to transfer the extra time in the summer to the winter. Therefore, his argument is not a very good one. We want the situation to remain as it is timewise; indeed, it works quite well and there is no reason that I can think of for moving it. Therefore, we need some device whereby the Scots have a veto on any move by the English to change it, or a simple transfer of the power to the Scottish parliament.
Lord Howie of Troon: This amendment is in the name not only of the noble Lord, Lord Mackay of Ardbrecknish, whose name I find hard to pronounce but with whose speech I agreed almost entirely, but also in the name of the noble and learned Lord, Lord Mackay of Drumadoon. It so happens that I was in Drumadoon last week. The sunlight was delightful, especially in the evening, as happens in that part of the Firth of Clyde and the Isle of Arran, and the rain was, as usual, refreshing, drenching and constant.
I suffer from an awful feeling of déjà vu. We have discussed this question in this Chamber—some of our more recent Members will not realise this, but older "hands" will—at least four or perhaps five times in the past three years. It has been awful because the usual suspects—they are all here—have stood up one after another to say the same things. I say to the noble Lord the Chief Whip that we will say them as briefly as possible. The noble Lord nods at me. He may be surprised that I am making these comments, unimportant as they may be.
The key to the whole matter is—as the noble Lord, Lord Mackay, said—we are in a time zone based on the Greenwich Meridian. There are certainly Euro enthusiasts who wish us to enter Central European Time for reasons that have nothing to do with time. The problem is really quite different from the one proposed by interesting people such as the noble Viscount, Lord Montgomery, whom I have heard on this subject so often and so inconclusively. It is not the United

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Kingdom which is out of step; it is actually France and Spain, as they lie to the south of us on the Greenwich Meridian and they should be in our time zone, like the people of central Portugal and of Eire, and not in the central European one. It is they who are out of step. The French and the Spanish should come into step with us. That is all I want to say, unless anyone provokes me into continuing.
The arguments about the Post Office and schoolchildren being mown down in the mornings in the dark and the dangers in the construction industry are well rehearsed and there is no reason to go over them yet again. I am going to say something which causes me a certain amount of pain. I hope that it will not cause my noble friend Lord Sewel any embarrassment. As I understand that he is quite likely to oppose these amendments, and I intend to support him, I hope that he can withstand my support and be firm in his opposition to these amendments.
Baroness Strange: I wonder whether timescales are not something for measuring time, like the scales of justice. I wonder whether the usual channels have any effect on them at this time of night.
Lord Sewel: I thank—or at least I think I do—my noble friend Lord Howie of Troon for his strong supportive speech. There is a first time for everything! I shall try to deal with the specific questions that were asked of me. As I understand it, timescales are a system of determining time, for example Greenwich Mean Time, Co-ordinated Universal Time, or whatever. The computation of periods of time refers to whether particular days are to be included when periods of time are calculated in determining when obligations expire or become unenforceable for purposes, for example, of the civil law. I hope that I have now informed and enlightened the Committee on those points.
The main issue is basically whether we should have a system to allow the possibility of the introduction of horizontal time zones in the United Kingdom. I ask noble Lords to think of the enormous disruption to day-to-day life if, say, there was an hour's difference in time between Berwick and North Berwick. That sort of issue becomes a greater point of inconvenience than the argument as to whether we should have summer time, double summer time or whatever.
I accept that strong views are held on these matters, as we have begun to see during this debate. The matter is properly decided on a United Kingdom basis. This is an area where it is appropriate for Scottish interests to be reflected and defended through Scottish Members of Parliament at Westminster. I hope that on that basis the noble Lord will withdraw his amendment.
Midnight
Lady Saltoun of Abernethy: Why is it more difficult to have a difference in time across a north-south border than across an east-west border? I simply cannot understand that.
Lord Sewel: I should have thought that within a relatively small country like the United Kingdom,
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north-south or east-west is a silly basis upon which to divide up time zones within one country. We should all stick together and have the same time. I am not making a particular point about the added difficulty of north-south or east-west.
Lord Howie of Troon: I do not want to irritate my noble friend, but I am under the impression that the state of Arizona has a time zone which might be called eastern mountain time or some such, but the Navaho reservation, which consists of something like 20 per cent. of the top right-hand corner of Arizona has its own time zone. So it can be done. However, I mention this point only to confuse the issue! All I am saying is that it can be done—but it should not be done in this case.
Lord Sewel: I am glad that the noble Lord agrees with me that what is good for Arizona is not necessarily good for the United Kingdom of Great Britain and Northern Ireland.
Lord Ewing of Kirkford: Before the noble Lord, Lord Mackay, replies, I do not want to irritate my noble friend either, but according to the clock it is now Tuesday, 28th July; here in your Lordships' Chamber it is still Monday, 27th July. How does my noble friend explain that?
Lord Sewel: That is a time warp!
Lord Mackay of Ardbrecknish: The proper answer is that you do not notice time when you are enjoying yourself.
This has been an interesting debate. One would have confidence in accepting the answer given by the noble Lord, Lord Sewel, if one felt that his Government would not try at some stage in the future, in their love affair with Europe, to slip in a Bill that would move us into central European time.
My noble friend Lord Montgomery is a devotee of double summer time and he tells me that the evenings would be even longer. Without going into the matter too much, having grandchildren at home at the moment, it seems difficult enough to get them into bed and asleep on single summer time without making it double summer time. It is not often that I hear the noble Lord, Lord Monson, say that he cannot make up his mind about an issue—I know that he can make up his mind very firmly about time zones, but I refer to how we vote on this matter.
The noble Lord, Lord Mackie, wants a Scottish veto. Essentially that is what I want. The question is whether one achieves that veto more readily by continuing the matter as a United Kingdom duty, with Scottish Members of Parliament in the other place pulling their weight for Scotland, or whether it is achieved by devolving the matter to a Scottish parliament which will simply say to its colleagues south of the Border: "No, we're not going to move and that's an end of it". Therefore it is not just a matter of saying to the Scots: "You wouldn't want to have a different time zone from England". It is also a matter of saying to the English that they would not want a different time zone from the

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Scots. This is a matter on which the Scottish parliament ought to have a say, and I shall seek the opinion of the Committee.
12.4 a.m.
On Question, Whether the said amendment (No. 223) shall be agreed to?
Their Lordships divided: Contents, 15; Not-Contents, 37.

Division No. 5

CONTENTS

Astor, V.

Montrose, D.

Courtown, E. [Teller.]

Saltoun of Abernethy, Ly.

Dixon-Smith, L.

Selkirk of Douglas, L.

Sempill, L.

Kintore, E.

Shrewsbury, E.

Mackay of Ardbrecknish, L.

Skelmersdale, L.

Mackay of Drumadoon, L.

Strange, B.

Monson, L.

Strathclyde, L. [Teller.]

NOT-CONTENTS

Balfour, E.

Hoyle, L.

Bassam of Brighton, L.

Hunt of Kings Heath, L.

Burlison, L.

Kirkhill, L.

Carlisle, E.

Linklater of Butterstone, B.

Carter, L. [Teller.]

McIntosh of Haringey, L. [Teller.]

Cocks of Hartcliffe, L.

Davies of Coity, L.

Mackie of Benshie, L.

Dean of Thornton-le-Fylde, B.

Mar and Kellie, E.

Desai, L.

Milner of Leeds, L.

Donoughue, L.

Monkswell, L.

Ewing of Kirkford, L.

Montgomery of Alamein, V.

Farrington of Ribbleton, B.

Ramsay of Cartvale, B.

Gilbert, L.

Sefton of Garston, L.

Gordon of Strathblane, L.

Sewel, L.

Hacking, L.

Steel of Aikwood, L.

Hardie, L.

Thomas of Gresford, L.

Haskel, L.

Thomas of Macclesfield, L.

Hogg of Cumbernauld, L.

Whitty, L.

Howie of Troon, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
12.12 a.m.
[Amendments Nos. 224 to 226 not moved.]
Lord Selkirk of Douglas Lord Selkirk of Douglas moved Amendment No. 227:
Page 83, line 27, at end insert—
("SECTION 7—OCEAN BED
Reservation
The ownership and exploitation of the ocean bed.").
The noble Lord said: Amendment No. 227 reserves to the United Kingdom Parliament matters dealing with the ownership and exploitation of the ocean bed. The terms of Schedule 5 make some references to reservations to the United Kingdom Parliament of deposits of natural gas—Head 4, Section 2—but make no provision as to the reservation of the ocean bed. This amendment allows the United Kingdom Parliament to retain legislative power over it. That would be consistent
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with the reservation at Head 4, Section 2, which covers oil and gas and it would fit in neatly with Sections 2 and 3 of Head 4 of Schedule 5.
At present the provision does not deal with uranium, for example, and I shall be grateful if the Minister will look into that matter. Even if he does not give a comprehensive answer tonight, perhaps he could do so before the next stages of the Bill. For example, the provision does not deal with manganese. To a large extent the ocean bed is unexplored and I suspect contains many of the world's last secrets.
Perhaps I may say a word about the ownership of the ocean bed. In Volume 21 of the Stair encyclopaedia, it makes it clear that the United Nations Convention on the Law of the Sea of 1982 entered into force on 16th November 1994, 12 months after the convention had been ratified by 60 states. The United Kingdom acceded to the convention on 25th July 1997. The breadth of the territorial sea adjacent to the United Kingdom is 12 nautical miles under the Territorial Sea Act 1987. The United Kingdom continues to regard all waters beyond the 12-mile limit, including those over the continental shelf, as part of the high seas.
The legal status of the seabed and the subsoil of the territorial sea in relation to international issues is dealt with by the United Nations Convention on the Law of the Sea. In Scotland it has been held in a number of early 20th century cases that the Crown has a right in property to the seabed within the limits of the territorial sea and that this right is derived from its sovereignty.
In a case last century, Lord Advocate v. Weens, 1899, Lord Watson said:
"I see no reason to doubt that by the law of the sea the solum underlying the waters of the ocean, whether within the narrow seas or from the coast outward to the three-mile limit, and also the minerals beneath it are vested in the Crown".
Volume 11 of Stair encyclopaedia states that the rights of the Crown in the seabed within territorial waters are patrimonial and accordingly the solum of the seabed is capable of alienation.
In years to come the exploitation of mineral rights will become of ever-increasing importance. This should be the responsibility of the United Kingdom Parliament. I should be grateful if the Minister would look carefully and sympathetically at this. I beg to move.
12.15 a.m.
Viscount Astor: This amendment raises some interesting issues. Development on the coast below the low water mark, whether in England or Scotland, is largely the prerogative of the Crown Estate Commissioners. They laid a report before Parliament. It is an important report. It is particularly important for the economy in Scotland because it regulates fish farms and coastal development. Will the Minister say whether there is a mechanism by which the Scottish parliament will be able to look at the reports of the Crown Estate Commissioners?
Sand and gravel rights are also important in Scotland. I am not sure where they would come in the Bill. My noble friend Lord Selkirk of Douglas has raised an important point because it is not clear in the Bill how

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those rights will be dealt with and in which office. There are other maritime issues such as the protection of wrecks and the protection of war graves.
If for no reason other than that it comes after Section 6, this amendment is interesting. The reference to "outer space" rather intrigued me. It states:
"Regulation of activities in outer space"
is a reserved subject. That means that if an extra-terrestrial arrives at the Scottish Parliament and says, "Take me to your leader", he will be bundled on a train and taken to Westminster.
The Earl of Balfour: Perhaps I may intervene. There was a very interesting exploration some time ago about which I wrote to our Member of Parliament, Mr. Home Robertson, the Member for East Lothian. I wrote of my serious concern that a Belgian firm was going to dig up sand and gravel in the Firth of Forth, which would have ruined one of the fishing beds there. I am glad to say that at the end of the day the project fell through, but it is the sort of thing that I should not like to see happen. Had it been for our own use, that might have been a different matter. I was very concerned that this quite valuable fishing ground was going to be exploited to no benefit to this country whatsoever.
Lord Mackay of Drumadoon: Perhaps I may very briefly indicate that I support my noble friend Lord Selkirk of Douglas in raising this important issue. The Government may well have concerns about the drafting of the amendment, in that the United Kingdom does not recognise the ownership of the seabed outwith territorial waters. A distinction may well have to be drawn between the law as it applies within and outwith territorial waters. They are important issues. It would be unfortunate to have any confusion about this, and I hope a full reply will be made.
Lord Sewel: I think that it might be helpful if I explain what provision the Bill currently makes for dealing with the ownership and exploitation of the seabed.
As noble Lords will be aware, the Crown Estate's Scottish interests include ownership of much of the foreshore and the seabed and the mineral resources in the UK Continental Shelf, excluding coal, oil and gas. Under the Bill, the remit and function of the Crown and the Crown Estate Commissioners, would be reserved. However, the property and interests of the Crown Estate would be subject to the Scottish parliament's legislation in such areas as planning law, land law and environmental protection.
One aspect which would not be devolved, however, is the ownership of, exploration for and exploitation of deposits of oil and natural gas. This appears to us to be the most sensible way of allocating responsibility for the seabed. Further offshore, the seabed is, and will continue to be, exploited for its oil and natural gas reserves which lie underneath. That is already a reserved matter. These resources are a UK asset and we believe that they should be regulated on that basis. I hope that
1336
that goes at least some way to answering noble Lords' points and, on that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Selkirk of Douglas: I do not want to prolong this debate, but I must advise the Minister that I am not altogether satisfied with that reply because I believe that in the future mineral deposits of very considerable consequence—perhaps even more significant than oil and gas—will be discovered and will be of enormous importance to the UK as a whole. I am quite certain that if that happens the UK Parliament will not want to find that it is barred from considering the matter because the future potential of such matters has not been fully considered.
Lord Sewel: At this time of night, perhaps I may write to the noble Lord to clarify the matter.
Lord Selkirk of Douglas: My request is that the Minister looks at this matter and all its implications thoroughly in co-operation with his colleagues in government to see how this can best be covered. I genuinely believe that this will be enormously important in the future. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sewel Lord Sewel moved Amendment No. 227A:
Page 83, line 32, at end insert—
("(1A) Sub-paragraph (1) has effect as regards—

(a) the constitution of the authority, including its establishment and dissolution, its assets and liabilities and its funding and receipts,

(b) conferring or removing any functions specifically exercisable in relation to the authority.

(1B) Sub-paragraph (1A)(b) does not apply to any function which is specifically exercisable in relation to a particular function of the authority if the particular function relates to reserved matters.").
The noble Lord said: Government Amendment No. 227A inserts an interpretative provision into Part III of Schedule 5 to make it clear what that part means by providing that the schedule does not reserve Scottish public authorities with mixed functions which are not cross-Border public authorities under Clause 83. Examples of such bodies are local authorities, the courts, NHS trusts, Scottish Enterprise and Highlands and Islands Enterprise, the Scottish Law Commission and the Registrar General for Births, Deaths and Marriages in Scotland. Local authorities have mixed functions because, although most of their functions relate to devolved matters, they have some functions which relate to reserved matters, such as in relation to consumer protection or the administration of housing benefit.
The purpose of that provision is to ensure that the Scottish parliament has full legislative competence over such authorities as if they did not have any reserved functions and that all ministerial functions exercisable in connection with such authorities will transfer to Scottish Ministers. These general propositions are subject only to the qualification that the Scottish parliament should have competence over the subject matter of the reserved function of the authority or that ministerial functions

1337
which are specifically exercisable with regard to those reserved functions should not transfer, with the exception of any ministerial functions to fund those reserved functions.
The new provision in Amendment No. 227A therefore provides that the non-reservation of such an authority has effect with regard to its constitution, which is defined as including its establishment and dissolution, its assets and liabilities and its funding. This will enable, for example, the Scottish parliament to legislate about the constitution and establishment of local authorities.
Amendment No. 227A also enables the Scottish parliament to confer or remove any functions specifically exercisable in relation to the authority. This will also ensure that ministerial functions will transfer to Scottish Ministers—for example, any powers of direction or to supervise activities or any functions relating to funding. This however will be subject to certain specific exceptions for which we propose to bring forward amendments at Report stage. One case for which this will be required is the function of the DSS to fund local authorities in relation to housing benefit and council tax benefit which are to remain with DSS.
The new sub-paragraph 1(3) that would be inserted by this amendment provides an exception to the general rule about conferral on removal of functions. It provides that the general provision in paragraph 1(1) of Part III of Schedule 5 will not apply to functions which are specifically exercisable in relation to a particular function of an authority which relates to reserved matters. This will ensure for instance that ministerial powers of direction which are specifically exercisable in relation to the administration of the reserved matter of housing benefit or council tax benefit by local authorities remain exercisable by UK Ministers.
I am sure the Committee agrees that this amendment can only be described as technical. It is, however, necessary to ensure that the Bill's provisions in relation to public bodies work as intended. I beg to move.
On Question, amendment agreed to.
Lord Sewel Lord Sewel moved Amendments Nos. 227B and 227C:
Page 83, line 36, at end insert—
("Reserved bodies
2A.—(1) The reservation of any body to which this paragraph applies has effect to reserve—

(a) its constitution, including its establishment and dissolution. its assets and liabilities and its funding and receipts,

(b) conferring functions on it or removing functions from it,

(c) conferring or removing any functions specifically exercisable in relation to it.

(2) This paragraph applies to—

(a) a body reserved by name by Part II of this Schedule,

(b) each of the councils reserved by Section 11 of Head 3,

(c) the Commission for Racial Equality, the Equal Opportunities Commission and the National Disability Council.").

Page 84, line 5, at end insert—
("(2) Subordinate legislation under section 115(3) may, in relation to the operation of this Schedule at any time before the principal appointed day, modify the references to that day in sub-paragraph (1).").
On Question, amendments agreed to.
Schedule 5, as amended, agreed to.
Lord Hoyle: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed
House adjourned at twenty-seven minutes past midnight.