Lords Sitting of 12 January 1999

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

Lord Phillips of Worth Matravers
The Right Honourable Sir Nicholas Addison Phillips, Knight, a Lord Justice of Appeal, having been appointed a Lord of Appeal in Ordinary and created Baron Phillips of Worth Matravers, of Belsize Park in the London Borough of Camden, for life—Was, in his robes, introduced between the Lord Alexander of Weedon and the Lord Mustill.

Official Secrets Act 1989
2.42 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they intend to replace or amend the Official Secrets Act.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, it is less than 10 years since Parliament considered how to deal with matters which should properly be kept secret. The result was the Official Secrets Act 1989. We believe that the Act provides a sound basis for protecting sensitive official information, and we currently have no plans to replace or amend it.
Lord Campbell of Croy: My Lords, I thank the Minister for that reply which was certainly satisfactory to me. While there was general agreement in 1989 for deleting Section 2—the catch-all section—of the 1911 Act, are the Government now glad that the provisions in the present Act concerning former members of MI5 and MI6 are available to be invoked, although in Opposition the present Government Front Bench voted against them?
Lord Williams of Mostyn: My Lords, I was not on the Government Front Bench or the Opposition Front Bench in 1989; and of course circumstances change. After all, we are now in Government.
Lord Campbell of Croy: My Lords, it seems that I am to use a second barrel! Are those Members of the Liberal Democrats Party who are attending the Cabinet Committee, and who are not Privy Counsellors, expected to sign statements under the Official Secrets
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Act? It appears that they see more confidential information than Back-Benchers of the Labour Party in another place.
Lord Williams of Mostyn: My Lords, the Liberal Democrat Party is notoriously law abiding, and I am sure they know their duty.
Earl Baldwin of Bewdley: My Lords, will the Minister consider the position of the expert scientific committees? I refer, for example, to the Committee on the Safety of Medicines where the operation of the Official Secrets Act inhibits outside scrutiny.
Lord Williams of Mostyn: My Lords, I think that that is a different matter. The Question is directed to the Official Secrets Act 1989. Essentially that deals with matters which have to be kept secret: that is, national security and intelligence matters. Different provisions of the Act relate, for instance, to matters of defence, special investigations, and interception of communications; but none of those matters bites on the problem to which the noble Earl referred.

House of Lords: Smoking Rules
2.46 p.m.
Lord Avebury Lord Avebury asked the Chairman of Committees:
What progress has been made with the review of the rules on smoking in the public rooms of the House of Lords.
The Chairman of Committees (Lord Boston of Faversham): My Lords, the Administration and Works Sub-Committee set up an informal group on smoking last Session. The group, which is charged to,
"undertake a review of smoking in the House",
has met twice and has gathered information on smoking in the workplace from the Health and Safety Executive and the Health Education Authority. The group is now in the process of constructing a questionnaire which it intends to circulate to Members of your Lordships' House in order to find out what changes, if any, your Lordships would favour. It aims to report to the Administration and Works Sub-Committee by Easter this year.
Lord Avebury: My Lords, can the Minister tell me whether he, the Committee and the working group have read the White Paper Smoking Kills in which the Prime Minister said that 120,000 people will die in 1999 from illnesses directly related to smoking? Has the Minister also noted that hundreds of people die from passive exposure to tobacco fumes? Does not he agree with the Government that totally smoke-free workplaces are the ideal and should not your Lordships' House show an example by making every public room and corridor in this end of the Palace of Westminster smoke free?
The Chairman of Committees: My Lords, from the murmurs from all parts of your Lordships' House, there

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is clearly a great deal of interest in the latter part of the noble Lord's Question. However, I shall not say more than that at this stage because I would not wish to pre-empt the work of and any recommendations that might be made by the working group.
In relation to the preamble to the noble Lord's Question, I should say that I am not a member of that group. It was set up by your Lordships' Administration and Works Sub-Committee. I have not read the White Paper to which the noble Lord referred but I read the reports about it at the time. I cannot say this afternoon whether it has been read by the members of your Lordships' working group. I shall make inquiries and ensure that if they have not yet had an opportunity to read it, it will be drawn to their attention.
Baroness Trumpington: My Lords, does the Minister agree that at his age, the noble Lord, Lord Avebury, does not look bad considering he has had to endure smokers all his life? Furthermore, does the Minister agree that at my ripe old age, having started smoking in the pigsties aged 11, I do not look too bad? Secondly, does the Minister agree that until a substance has been declared illegal, there should be freedom for those who wish to indulge?
The Chairman of Committees: My Lords, when I saw the noble Baroness, Lady Trumpington, rise just as the noble Lord, Lord Avebury, was about to ask his supplementary question, I was about to suggest that the noble Baroness was rather "quick on the draw". I shall say no more about her interest in smoking.
The substantive point made by the noble Baroness is a consideration which will be taken into account by the working group in the course of discussion in relation to any recommendations which it might make. I agree with the noble Baroness that the noble Lord, Lord Avebury, looks extremely good. However, if I may say so, the noble Baroness looks absolutely splendid! She brings great joy to this Member of your Lordships' House.
Lord Janner of Braunstone: My Lords, the noble Baroness put the case for smokers with her usual charming understatement. However, does not my noble friend agree that, just as those adults such as the noble Baroness who wish to smoke should be totally free to do so, those who do not like to eat and drink where there is smoke also have a right to their decent eating habits? As a start and even before the informal committee reports, would not my noble friend consider making at least some of the eating places in this House free from smoke?
The Chairman of Committees: My Lords, some of the eating places in your Lordships' House are already smoke-free areas. I shall not specify them now because it would take up too much of your Lordships' time, but I shall see that a note is made available indicating which areas are subject to those restrictions.
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It is the case that, though smokers and non-smokers do not exactly have rights—one hesitates to use that word in certain contexts—they certainly have interests in these matters. The considerations that the noble Lord put forward this afternoon are those which are already in the mind of the working group in its consideration of these matters.
Lord Walton of Detchant: My Lords, having heard the noble Baroness, does the noble Lord agree that it is acceptable to recognise that there are exceptions to every rule? There is incontrovertible evidence that smoking is a major cause of cancer and cardiovascular disease. Is the noble Lord aware that in the state of California there has been a ban recently on smoking in all public bars? There is now statistical evidence to show that that has greatly improved the health of the bartenders. Are not we in a situation in this House where we should be considering not only the health of your Lordships in general, but also the health of our staff?
The Chairman of Committees: My Lords, I was not aware of the specific American experience of which the noble Lord, Lord Walton of Detchant, spoke. However, I shall see that that is drawn to the attention of the working group if it does not already know about it. Indeed, I agree with the noble Lord, Lord Walton, with all his expert medical experience, that there is significant evidence in relation to the effects of passive smoking. In fact—perhaps I should have said this in answer to the supplementary question of the noble Lord, Lord Avebury—it was some of the evidence on passive smoking that led to the setting up of the working group in the first place.
Lord Burnham: My Lords, if your Lordships agree that there should be some restriction on smoking, I am sure it will also be agreed that it is necessary to provide some sort of club room where noble Lords who wish to smoke may do so. Will the Chairman of Committees therefore assist us to get back the Pugin Room?
The Chairman of Committees: My Lords, we are now on much more dangerous ground. Strictly speaking, the point in relation to the Pugin Room does not arise out of this Question. However, I can tell the noble Lord that your Lordships' committees have been keeping a close watch on that room. He will know, as I am sure many of your Lordships know, that, again strictly speaking, the room still belongs to your Lordships' House but for many decades has been on loan to another place. Those of us who are privileged to be Members of your Lordships' House and had the benefit of being Members of another place are entitled to use the Pugin Room. I would be happy at any time, until it is restored to your Lordships, to take the noble Lord, Lord Burnham, to the Pugin Room as my guest. I am grateful to him for giving me notice beforehand that he intended to put that question.

Disabled People: Community Care Provision
2.54 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
Whether they will introduce legislation to reverse the Gloucestershire judgment in relation to community care provision.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, the House of Lords' judgment in the Gloucestershire case did not change the law but confirmed the legal position to be that which the Department of Health always believed applied: namely, that authorities may take their resources into account in assessing the needs of a disabled person and deciding what services to arrange.
Lord Ashley of Stoke: My Lords, I am grateful to my noble friend for that reply. However, the fact that the Law Lords' absurd judgment ruled that local authorities can take account of their resources when assessing the needs of disabled people means that any local authority can say to a quadriplegic, someone who is totally blind and totally deaf or someone completely paralysed, "We have no money so you have no needs". It is hard to think of a more preposterous proposition. Will my noble friend therefore urge the Government to change the law so that disabled people receive these services as a right and not according to the whim of the local authority?
Baroness Hayman: My Lords, we are aware of the strength of feeling of my noble friend and others in this area. However, I must stress again that it is our belief that the House of Lords' decision did not change the law; it simply confirmed the legal position to be that which applies under the Act. Resources are only one of the considerations to be taken into account; other relevant factors must also be considered. Pressure on resources cannot be used as an excuse for taking arbitrary or unreasonable decisions. After the debate on my noble friend's Bill in 1997 the department issued guidance on the implications of the judgment, which clarified that local authorities have continuing responsibilities towards disabled people.
Lord Rix: My Lords, people with learning disabilities and their families are fearful of the ongoing erosion of local authority services, particularly with regard to day services and respite care. In view of the Minister's response, will she give an assurance that people with learning disabilities and their families will receive day services and respite care as an absolute priority in local authority service provision?
Baroness Hayman: My Lords, it is important to recognise the measures that have been taken, particularly those set out in the White Paper Modernising Social Services, which seek to promote independence, improve protection and raise standards in
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order to benefit all disabled people. Extra resources are being made available and guidance will be drawn up under the Fair Access to Care initiative to be issued to local authorities in relation to how, in turn, they should draw up their eligibility criteria for social care. A whole range of work is being done, including work on a charter for long-term care setting out what users and carers can expect from health, housing, and social services. I hope, therefore, that the noble Lord will feel that people with learning disabilities and their families can be reassured that the Government are taking action across a broad range of issues to improve services for disabled people.
Baroness Pitkeathley: My Lords, does my noble friend agree that the essential question of funding on this issue and the increased co-operation between health and social services is improving the situation on the ground, but that nonetheless the recommendations of the Royal Commission on long-term care are awaited with interest? Is she able to give the House any idea as to when we may expect that report?
Baroness Hayman: My Lords, we are all looking forward to the publication of that report which will be tremendously important in terms of working out a fair system for funding care for elderly people, and which will lead on to consideration of how to improve the current system of discretionary charging for non-residential services. I am afraid that I cannot give my noble friend an exact date in that respect. However, we have made clear that we hope that publication will take place before too long. In the same way, when we have that, together with the new carers' strategy, it will be easier to assess how we can make real progress in the area.
Lord Pearson of Rannoch: My Lords, if a local authority takes the view that its resources are not sufficient to allow it to provide appropriate care for a mentally handicapped person or a person in care, can the Minister tell the House what mechanism exists to validate that local authority's decision? Alternatively, is it left entirely up to the local authority in question?
Baroness Hayman: My Lords, I believe that it is clear from the judgment and from the law that, once a local authority has decided that it is necessary in order to meet the needs of a disabled person to arrange a service listed in Section 2 of the Act, it is under a duty to arrange such a service. However, the measures that I outlined earlier, including the Fair Access to Care initiative—which will ensure that we do let local authorities know how they should draw up their eligibility criteria—will help. Moreover, in terms of improving the quality of care and ensuring that there is no unacceptable variance, the eight regional commissions for care standards, which will regulate domiciliary and residential care services, will be most important in this area.
Lord Marsh: My Lords, does the Minister agree that this is in many ways dodging the issue, which is not about new initiatives of one sort or another; indeed, it is

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about the inability of both parties in government to finance, under the present basis, free medical healthcare for everyone? Therefore, is it not time that the whole question of financing the National Health Service was re-examined with a view to people who can clearly pay more—for example, in the case of prescriptions—doing so?
Baroness Hayman: My Lords, the noble Lord's question is well wide of the Question on the Order Paper. However, I shall answer it. No, I do not think that it is time for a fundamental reassessment of the funding of the NHS. I believe that we have ample proof that a publicly-funded, free at point of use service is both efficient and something which is envied throughout the world. Nearer to this question is the importance of how we fund long-term care for the elderly. That is why we set up the Royal Commission and why we are so anxious to see what it will recommend.
Lord Ashley of Stoke: My Lords, if the Government are adamant that local authorities must take account of their resources when identifying the needs of disabled people, can my noble friend say whether they are planning to ask doctors only to diagnose flu when the money is available to treat it? If that is not the case, and if the Government recognise the absurdity of that proposition relating to health, why do they not recognise the absurdity of it as regards community care?
Baroness Hayman: My Lords, I must disagree with my noble friend. Indeed, I do not believe that the analogy is applicable. Perhaps I may throw back to my noble friend an analogy which I believe to be more direct. Other community care legislation allows for resources to be taken into account. If resources were exempted from being taken into account when arranging services under Section 2 (which was the area covered by the Gloucestershire judgment), that would, in turn, create an anomaly which would be unfair to other social service users.

Acheson Report: Inequalities in Health
3.3 p.m.
Baroness Castle of Blackburn Baroness Castle of Blackburn asked Her Majesty's Government:
Which of the recommendations of Sir Donald Acheson's report Inequalities In Health they are proposing to implement.
Baroness Hayman: My Lords, the whole Government are firmly committed to reducing health inequalities. A range of initiatives is already helping to carry forward Sir Donald Acheson's recommendations. My right honourable friend the Secretary of State for Health made clear when Sir Donald was appointed that his findings would contribute to the development of a new health strategy. We shall be publishing a White Paper on that strategy shortly.
Baroness Castle of Blackburn: Does not Sir Donald's report demonstrate statistically that many of the health
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inequalities today are due to the previous government's deliberate policy of widening the gap between the rich and the poor, not least by lavishing on the richest 5 per cent. of this country generous tax reliefs at the expense of the rest of us? While I appreciate that this Government cannot be expected to remedy these inequalities at a stroke, perhaps I may urge upon them the need to launch without delay an educational campaign to ensure that the people of this country recognise the case for a fairer distribution of income, and the need to repudiate the absurd disclaimer that they are not in favour of a policy of tax and spend. How can a government spend unless they raise taxes? For example, how do the Government expect to improve the status and income of nurses, which are so essential to the health service, unless they spend money? Can my noble friend the Minister say how they will raise that money?
Baroness Hayman: My Lords, I have to point out to my noble friend that we are certainly spending money on the health service. Like many of my noble friends and others, I know that my noble friend welcomes the massive injection of funds that we are putting into the NHS. However, to respond to my noble friend's points about the Acheson report, I can say that it certainly illustrates the growing divide in health status between the rich and the poor. Indeed, I would not quarrel with her that poverty is a principal source of ill health. That is why we clearly set ourselves targets both as regards reducing inequalities and improving access to health services for those who are most disadvantaged. It is also important to recognise that we are taking action across a broad range of government areas, not simply in terms of health but in terms of the environment and social security, by way of a whole series of measures which contribute to reducing health inequalities and social exclusion.
Lord Clement-Jones: My Lords, in the light of the Minister's reply to the noble Baroness, Lady Castle, can she confirm whether or not the Government are actively considering the whole question of adopting Sir Donald's principal recommendation about health impact assessments? In particular, can the Minister say whether or not she believes that a prime candidate in that respect would be social security disentitlement?
Baroness Hayman: My Lords, the noble Lord makes an important point. If we are to make sure that we look at the effect of government policies in the round, we cannot put on departmental blinkers in any assessment of the effects of one area of policy on another area of policy. Across Whitehall we are working to ensure that all departments whose work and policies impact on health are assessed to ensure that the implications are taken into account when policies are drawn up. Of course, social security is a prime candidate in that respect.
Baroness Gardner of Parkes: My Lords, is the Minister aware that one of the greatest health inequalities is dental health? Indeed, in the city of Blackburn, which is where the noble Baroness who tabled the Question comes from, over 100 children a week have to have teeth extracted. Can the Minister say

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when the Government will consider putting fluoride into the water system which would do so much to help the really poor children who receive no dental treatment?
Baroness Hayman: My Lords, the noble Baroness is absolutely right to point out the health inequalities in dental health. I believe that the House had an opportunity to debate at length the issues surrounding fluoridation only recently. Indeed, this raises great passions on both sides of the debate and answers will be forthcoming in the White Paper to which I referred earlier.
Lord Rea: My Lords, although I recognise the Government's efforts in removing people from benefit and putting them into the employment sector, does my noble friend the Minister not recognise that many people will still be on benefit, among whom will be the poorest people, and that that will include a disproportionate number of families with children? Will the Government implement recommendation 3.2 of Sir Donald's report, which says:
"We recommend uprating of benefits and pensions according to principles which … improve the standard of living of those who depend on them and which narrow the gap between their standard of living and average living standards"?
Baroness Hayman: My Lords, it is absolutely right that we focus our attention on improving the living standards of the poorest households. The best way for many people to get out of poverty is by helping them into work and giving them the opportunity to improve their incomes and lifestyle. There will be others who, for various reasons, do not have those opportunities. In particular, as my noble friend pointed out, the children of such families need support. The Sure Start programme is particularly important and I am sure that my noble friend acknowledges that the allowances for children in income-related benefits that were increased in November 1998—for example, that for the eldest child of £2.95 a week—are a reflection of the need to provide targeted help for some families.
Lord Hooson: My Lords, as to the remarks of the noble Baroness, Lady Castle, about inequality of incomes at present, is it not correct that old Labour had the right goal in wanting less inequality of income but the wrong means, whereas the present Government give the impression that they have abandoned the goal? How do the Government intend to restore the goal of less inequality of income in this country?
Baroness Hayman: My Lords, it is clear that we are looking closely at what we need to do to improve the income and general support available for those people who are suffering from the effects of poverty. I believe that there is an understanding that issues surrounding deprivation go far wider than income levels. That is reflected in our debate on health and the issue of income. Health inequalities and deprivation are very much linked, for example, to poor educational attainment, which in turn leads to a poor income later in life. The poor environment in which many children are being brought up on some of our worst estates, with
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the highest levels of crime, also reflects on people's opportunities. The Government are trying to take a broad and cohesive approach to those problems, and not look at them in separate boxes.
Earl Howe: My Lords, recommendation 38.4 is that the Government should establish a review of the relationship of private practice to the NHS. Will the Government do that?
Baroness Hayman: My Lords, we shall be looking in detail at all the recommendations that Sir Donald Acheson made to see which of them we need to take forward. It is particularly important to focus on those areas that he highlighted and on which we can take action in terms of a public health strategy. That is why the report was such a valuable document in terms of forming the White Paper that will soon be published.
The Earl of Listowel: My Lords, bearing in mind that the report recommends policies that promote the sexual health of young people, will the Government undertake to do everything possible to speed up the work of charities that help to get homeless young people off the streets before they slip into prostitution, with all the dangers of venereal disease and HIV infection that that brings with it?
Baroness Hayman: My Lords, the health of young people and adolescents is an important area on which to focus. As the noble Earl pointed out, voluntary organisations play a particular part in driving health education that is focused and which will be received well by those groups. Sometimes it is more appropriate for that work to be done more effectively by voluntary organisations than by the Government. In the past, we have certainly provided support for such organisations and I shall be surprised if we do not continue doing so.

Business
3.11 p.m.
Lord Carter: My Lords, at 3.30 p.m. my noble friend Lady Hayman will, with the leave of the House, repeat a Statement that is being made in another place on Ashworth Special Hospital.

Procedure of the House: Select Committee
The Chairman of Committees: My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, on behalf of the Committee of Selection, That the Baroness Lockwood be appointed to serve as a member of the committee in the place of the Baroness Rendell of Babergh.—(The Chairman of Committees.)
On Question, Motion agreed to.

House of Lords' Offices: Select Committee Report
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the First Report from the Select Committee (HL Paper 14) be agreed to.—(The Chairman of Committees.)
Following is the report referred to.
1. Appointment of Sub-Committees
The Committee appointed the following Sub-Committees and Panel—

Finance and Staff Sub-Committee
L. Boston of Faversham (Chairman)

L. Astor of Hever

L. Colwyn

L. Gladwin of Clee

L. Harris of Greenwich

B. Jay of Paddington

L. Renfrew of Kaimsthorn

L. Rodgers of Quarry Bank

L. Sheppard of Didgemere

L. Strathclyde

L. Weatherill

L. Williams of Elvel

with the Clerk of the Parliaments.

Administration and Works Sub-Committee
V. Allenby of Megiddo

L. Berkeley

L. Boston of Faversham (Chairman)

L. Carter

L. Colwyn

B. David

V. Devonport

Harris of Greenwich

Henley

Hilton of Eggardon

Methuen

Rawlings

Renfrew of Kaimstorn

Weatherill

with the Clerk of the Parliaments and the Gentleman Usher of the Black Rod.

Library and Computers Sub-Committee
L. Avebury

L. Butterworth

E. Erroll

L. Hoffmann

L. McIntosh of Haringey

B. Nicol

E. Northesk

B. Platt of Writtle

B. Rendell of Babergh

L. Renfrew of Kaimshorn (Chairman)

L. St. John of Bletso

with the Clerk of the Parliaments.

Refreshment Sub-Committee
L. Acton

L. Burnham

L. Carter

L. Chesham

L. Colwyn (Chairman)

B. David

L. Graham of Edmonton

L. Harris of Greenwich

L. Lawrence

L. Palmer

V. Thurso

with the Clerk of the Parliaments.

Advisory Panel on Works of Art
L. Chorley

L. Cobbold

L. Crathorne

E. Drogheda

V. Falkland

Hilton of Eggardon (Chairman)

L. Hindlip

L. Lloyd-Webber

L. Morris of Castle Morris

B. Smith of Gilmorehill

with the Clerk of the Parliaments.
2. Staff of the House
The Committee was informed of the decision to appoint a temporary Trainer in the Computer Office and of a Senior Sous Chef (Banqueting).
3. Official Shorthand Writer Services
The Committee was informed that a revised agreement had been approved with W B Gurney and Sons relating to the provision of shorthand writing services to the two Houses of Parliament.
Lord Cocks of Hartcliffe: My Lords, I refer briefly to paragraph 2, concerning the staff of the House. Will the Chairman of Committees confirm that all appropriate staff members of the House have proper contracts of employment?
The Chairman of Committees: My Lords, I am sorry but I did not catch the final words of the noble Lord, Lord Cocks.
Lord Cocks of Hartcliffe: My Lords, will the Chairman of Committees confirm that all the appropriate members of the House of Lords staff have proper contracts of employment?
The Chairman of Committees: My Lords, strictly speaking, I do not believe that question arises from the report of the Select Committee. I would—I assume safely—assume that they have indeed got that. If I am wrong, I will let the noble Lord, Lord Cocks of Hartcliffe, know.
On Question, Motion agreed to.

Youth Justice and Criminal Evidence Bill [H.L.]
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to whom the Youth Justice and Criminal Evidence Bill [H.L.] has been committed that they consider the Bill in the following order:

Clauses 1 to 13,

Schedule 1,

Clauses 14 to 47,

Schedule 2,

Clauses 48 to 62,

Schedules 3 to 5,

Clause 63.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

Parliamentary Scrutiny of the Third Pillar: ECC Report
3.15 p.m.
Lord Kingsland Lord Kingsland rose to move, That this House take note of the report of the European Communities Committee on Enhancing Parliamentary Scrutiny of the Third Pillar (6th Report, Session 1997–98, HL Paper 25).
The noble Lord said: My Lords, after consultation with those concerned, I hope that the House will allow me to say that it has been agreed, contrary to the list of speakers that has been circulated, that my noble friend Lord Bridgeman will speak from the Opposition Front Bench before the Minister, in the normal way. I will then conclude the debate, also, I hope, in the normal way.
It is often forgotten that some of the most important work of the European Union is done inter-governmentally. We hear a great deal in your Lordships' House about the European institutions but in the inter-governmental work of the European Union, those institutions play no part. The only institutions capable of disciplining and controlling the decisions of Ministers in inter-governmental negotiations are the national parliaments. The Maastricht Treaty introduced that innovation.
Many of your Lordships are, to put it broadly, for the European Union but are suspicious that its institutions are undermining our own national institutions. It is therefore particularly important, for those of your Lordships who take that view, that inter-governmentalism should be made to work.
Your Lordships first addressed that matter in 1993, in a report that was completed and presented to the House during the ratification of the Maastricht Treaty. That report dealt with both Titles V and VI of the treaty. This report was made by a relatively new sub-committee of your Lordships's European Scrutiny Committee—
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Sub-Committee F. Because the sub-committee deals only with home affairs, the report addresses solely Title VI—which excludes any consideration of foreign and security policy.
Before being translated elsewhere, I had the honour to chair Sub-Committee F. I owe a great debt of gratitude to all noble Lords who were tolerant enough to serve with me during my time in that office. Noble Lords who have chaired committees of the House will be aware how much your Lordships owe to the work of the parliamentary clerks and advisers. In this case, because of the speed with which the report was completed, noble Lords who served on the Committee and I, as chairman, owe a particular debt to our clerks and advisers.
One of the greatest difficulties we faced in preparing the report was that, halfway through, the final text of the Amsterdam Treaty was published. That text had a significant bearing on our work. I will begin by briefly outlining its innovations and why they had an effect that made us reconsider some of our preliminary conclusions.
The Amsterdam Treaty redefined the Maastricht Third Pillar. In particular, it divided the Third Pillar in two. The first part, which originally dealt with asylum, immigration and visa matters, was incorporated in Pillar 1—that is, the traditional European Community's part of the European Union. It is now known as Title IIIA. The other part remained in the Third Pillar, largely comprising police matters and judicial co-operation in criminal affairs. The situation was further complicated by the decision of member states in the Amsterdam Treaty to incorporate the Schengen agreement in the Treaty on European Union. The United Kingdom and Ireland decided not to take part in either change.
The Amsterdam Treaty also contains certain matters that concerned the scrutiny of the Third Pillar. The first and perhaps most important came under Clause K11 of the revised treaty, which, for the first time, obliged the Council of Ministers to consult the European Parliament on all Third Pillar matters. A minimum period of consultation of three months was laid down; but that period can be extended. Unlike the Community Treaty, once the period has elapsed, irrespective of whether or not the parliament produces an opinion, the European Council is entitled to go ahead and legislate.
The second change, which comes in Article K6, was the new requirement for Third Pillar proposals, made by member states or the Commission, to be published in the Official Journal. I trust your Lordships agree that that is a significant step forward. One of the greatest difficulties in trying to scrutinise Third Pillar legislation in national parliaments is identifying the actual text that is before the relevant Council working party or steering group.
The third change, which appears in a clause that has yet to be fully worked out, requires that once a Third Pillar proposal has been published, in circumstances where that proposal is made by the Commission, a period of six weeks shall elapse until the matter can be put on the Council's agenda.
One final matter to which I would like to refer your Lordships are the new proposals in Articles 191 and 151 on transparency, both of which will give the citizens of the European Union the right to gain access to certain documents issued by the European Parliament, Council and Commission.
When we began the work in committee, we knew none of that. Although we tried our best to incorporate those changes in our final recommendations, we were not always successful. I trust therefore that the Minister, when he kindly replies, will—if at all possible—set his reply in the context of the Amsterdam changes.
The committee is essentially asking, in order to fulfil its scrutiny task, to have before it the right documents at the right time. I concede that that request is not as simple as it sounds. Unlike legislative procedure in your Lordships' House, or even in the European Community, there is little by way of structure in the operation of the Third Pillar. Decisions are made at five different levels. They are the level of the Justice and Home Affairs Council, COREPER, the so-called K4 Committee, three steering groups, and below these a morass of working parties.
Either the presidency or a member state, or in some circumstances the Commission, can introduce, at any moment into any one of those committees, a proposal for a change to the law or for some other common action. Once that is done, there is no limit to the speed at which—or there was no limit, until the Amsterdam Treaty, and there is no limit at the moment because the treaty has still to be ratified—the Council could act. A document, for example, might appear before your Lordships' scrutiny committee on the Friday of one week and on Wednesday the following week it could become a decision of the European Council, without any opportunity for the House to exercise proper scrutiny.
One of the reasons for that was that in 1993, when your Lordships debated the previous report, we could only extract from the Government a commitment to show us the text of the Third Pillar proposal once it had been agreed by all member states. One only has to make the point for your Lordships to understand why scrutiny by your Lordships' House had become, at that stage, otiose.
One of the most positive features of the work of Sub-Committee F was the extremely positive way that both the Home Secretary—the right honourable Jack Straw—and his officials responded to our new proposals, particularly in respect of the matter that I have just drawn to the attention of your Lordships. It appears—and I eagerly await confirmation from the Minister—that the Government will now accept that once a proposal is initially made by the Presidency or a member state or the Commission, in the form of a text, and whether that text is put to COREPER, the Council, the K4 Committee or a steering group or working party, that text will be placed before Sub-Committee F and your Lordships will be able to begin work on it. If your Lordships recall that, following the changes to the Amsterdam Treaty, no decision can be taken on the text before three months plus six weeks, this will
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dramatically change the ability of your Lordships' House to get to grips with any serious problems posed by the text.
Home Office officials cautioned us that the text being seen by this House at an initial stage will be subject to negotiation and change. However, I understand that the Home Office will make its best efforts to keep your Lordships' committee abreast of any substantial changes that will be made in the course of negotiations. So those, if they are to be confirmed by the Minister, are indeed big steps forward for this House.
There has also been some renewed flexibility in the kind of documents that your Lordships' House will be entitled to scrutinise at this stage. Until now, essentially, your Lordships' House has been able only to consider documents that would ultimately end in primary legislation. But now your Lordships will also be able to consider, along the lines that I have already explained, proposals that will lead to secondary legislation, and, I believe, proposals that affect any of the human rights obligations of the United Kingdom. Those, if confirmed by the Minister, will also be substantial steps forward.
On the more general question of imposing a scrutiny reserve, which exists for Community legislation under the First Pillar and which the Government have always resisted under the Third Pillar, I await the Minister's comments with great interest. A long debate took place in your Lordships' sub-committee about this matter. It seems to members of the committee illogical that the Government should continue to resist a scrutiny reserve. One of the arguments advanced by the Home Office is that, in cases both of primary and secondary legislation, another place and this House will always have the opportunity to debate these matters in public. But as noble Lords are well aware, once an agreement has been made by the United Kingdom Government in the Council of Ministers, there is very little flexibility left in the national parliaments.
It is therefore my submission to the Minister that the concession of the scrutiny reserve in Third Pillar matters should not be a difficult one to make and, in the context of the timetable that will inevitably be imposed on the Government by the Amsterdam Treaty, will be easily containable without prejudicing the urgency that governments sometimes feel is needed in relation to particular pieces of legislation.
The sub-committee was extremely keen to have, as early as possible, agendas of the meetings to which I have already drawn your Lordships' attention. I believe I am right in saying that the Home Office has again reacted generously to this proposal, although I understand that there may be some difficulties in producing agendas for working parties and steering committees, only because those agendas tend to emerge very shortly before the meeting.
In conclusion, I once again thank those of your Lordships who worked on the sub-committee with me and all the Clerks and advisers who served the committee. Without their help, this report would have been impossible to produce. I beg to move.
Moved, That this House take note of the report of the European Communities Committee on Enhancing Parliament Scrutiny of the Third Pillar (6th Report, Session 1997–98, HL Paper 25).—(Lord Kingsland.)
3.32 p.m.
Lord Wallace of Saltaire: My Lords, I joined the committee for this inquiry and was happy to serve under the noble Lord, Lord Kingsland. I much regretted his moving on to other matters and that I was then forced to take over as chairman.
I wish to emphasise what an important area of scrutiny this is; how rapidly the area of co-operation in justice, home affairs, policing, judicial matters and civil liberties is, and how rapidly it has grown over the past 10 years. Perhaps anticipating the remarks of my colleague, the noble Lord, Lord Beloff, I also wish to emphasise how much this would continue, whether or not Britain were inside the European Union. The European Union enables us as a Parliament to get something of a handle on what is going on internationally.
International integration, whether European or global, has the consequence of transferring authority from legislatures to executives. Governments negotiate; and when they have negotiated, they cannot unpick what has been agreed. If parliaments are to have a handle on this growing field of international co-operation in policing, intelligence, security, visas, asylum seekers and refugees, this is one of the important ways in which we can begin to do that.
I also wish to thank the Clerks who assisted the committee. Also, we were much assisted in our work by the development of a small group of non-governmental organisations concerned about civil liberties and the legal dimensions. I refer in particular to the Immigration Law Practitioners Association, Justice and Statewatch. I wish that there were more such organisations. This is an area that has not yet begun to break the public surface. It worries me that, as it grows, it will in time throw up particular scandals and difficulties which the popular press will begin to pick up. It is therefore part of our job to educate the public, in so far as we can catch their attention, and tell them what is happening and how rapidly matters are developing. After all, throughout the experience of British participation in European integration, it has been the British habit to allow new areas of integration to develop by stealth, not admitting the implications to the public or the press. So on the whole government has not spelt out the implications of discussions under way or obligations about to be assumed in relation to discussions by working parties or proposals put advanced.
I remember Kenneth Clarke, when he was Home Secretary, arguing fiercely in terms of the ratification of the Maastricht Treaty. One of the strongest arguments, he said, for ratification was that it would for the first time bring this large and important area within the purview of the European Union—after which he added, "And even if we don't ratify the Maastricht Treaty, we shall have to go on co-operating because it is a necessary part of our Home Office business."
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It is also in the nature of this area, as the noble Lord, Lord Kingsland, remarked, that it is not easy to catch documents as they go through. There is a flow of policy; there are discussions, particularly under the Third Pillar, as under the second, and because the approach is informal, matters move from general discussions and working parties to agreement, sometimes very rapidly. It therefore seems appropriate to us as a committee of this House that we should take a broad approach to scrutiny, examining detailed proposals but also attempting to follow the general drift of policy and co-operation. Scrutiny which looks at only each specific proposal may see only the trees and miss the wood.
As we discovered in another inquiry during the past year, this is an area in which nearly a third of the meetings currently serviced by the Council secretariat are concerned with the Third Pillar and over a third of the documents are concerned with the Third Pillar. The area also concerns the whole range of European Union external relations. The question of why immigrants attempt to enter the European Union—what is the "push" factor—concerns matters of aid, foreign policy, the stability of the regions from which they come. I was glad to discover in Brussels last week that on a Dutch initiative there is now at last a cross-pillar working group on the implications of aid, asylum and refugee policy for European Union external relations as a whole.
I hope that the Government will see this as an area in which public debate and public scrutiny are desirable as far as possible. We were helped in this inquiry by the extremely open response that we received from the then rather new Home Secretary, Jack Straw, who was very co-operative indeed. Throughout the time that I have so far served on the committee, we have had an extremely open relationship with the Home Office. Ten years previously, when I worked at a research institute, I had some professional relations with the Home Office as international police co-operation was developing. I remember then a classic Ministry of the Interior, deeply suspicious of talking to foreigners and by and large unable to admit that any of its members spoke any language other than English. The transformation one sees now is remarkable and creditable and I trust that this good relationship with our committee will continue.
The Schengen acquis experience, however, has not so far been encouraging. We did report on this separately, as fellow Members of the House of Lords will remember. The potential fog of signing an Amsterdam Treaty which incorporated an acquis which had not yet been agreed and which the British Government had not yet seen, but which the British Government had nevertheless agreed to opt out of while retaining the opportunity to opt into bits of it when they understood quite which bits there were, is not entirely one of the most creditable aspects of British international obligations, let alone our efforts to maintain parliamentary scrutiny. That is something which we intend to keep under scrutiny as far as we can.
We say in this report that co-operation between national parliamentary scrutiny and the European Parliament is something which we wish to develop. That is also included in the Amsterdam Treaty which will

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shortly enter in force. Over lunch today the Clerk to the sub-committee told me that, for the first time, the Civil Liberties Committee of the European Parliament hopes to convene a joint meeting with national parliamentary scrutiny committees on this subject in March. That again seems to me to be an area which we should be hoping to develop, not just between this national legislature and the European Parliament but with other national legislatures, as they attempt to do their job. Article 39 of Title VI of the revised Treaty of European Union spells this out, as does Article 67 of the revised EC Treaty.
May I emphasise the extent to which the Amsterdam treaty does transform this situation? The treaty itself will, as the noble Lord, Lord Kingsland, has already explained, transfer a number of these areas from the Third Pillar into the first. Visas, asylum, refugees, will thus become part of the Community pillar proper. There is already on the table, agreed at the Vienna European Council in December, an Action Plan for Freedom, Security and Justice, which is due to be discussed further at the first-ever special European Council devoted to justice and home affairs, to be convened in October in Tampere, in Finland. I am not sure, and I do not think anyone yet knows, quite what the agenda for the Tampere European Council will be. Perhaps the noble Lord the Minister will give us some indication in summing up. I hope that the Home Office will be able to consult with our committee before the summer on what the agenda for that special European Council should be. That seems necessarily to be part of what we should be doing as scrutiny.
I managed to dig out the German Presidency's statement of intentions for the first six months of this year in terms of what it sees as the major priorities for the European Union's future business. If I may quote:
"The expansion of justice and home affairs policy pursued constantly throughout recent years will receive further impetus with the entry into force of the Amsterdam Treaty. The action plan to construct an area of freedom, security and justice adopted … in Vienna sets ambitious goals in this field for the next five years. The German Presidency will do its utmost to ensure the smoothest possible transition from the Maastricht to the Amsterdam treaty regime. It will consistently use the extended possibilities and instruments for co-operation in the fields of justice and home affairs … (It) will be guided equally by the desire to strengthen internal security and to guarantee citizens' rights".
We are therefore trying to scrutinise a rapidly moving, rapidly developing area.
Sub-Committee E reported earlier last year on the development of external relations in this area. The Americans are extremely anxious to co-operate with European police forces, intelligence services and others in combatting organised crime, drugs and other areas. I emphasise again, therefore, that this is not a purely European matter. It is a matter in which the British and our European partners are also engaged with the Americans, the Japanese and many other third governments.
As this moves from the Third Pillar to the First Pillar, thus the Commission will become more heavily engaged. Having been in Brussels last week, may I just signal to the noble Lord the Minister that the
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Commission is currently utterly unprepared to take on that task, in terms of staff and in terms of having planned for the takeover. That seems to be an area where the British Government, having half opted out of the transfer, may not be in the best position to exercise influence. That is one of the problems of choosing to opt out; but at least in matters of good government we might persuade others who are more closely involved to push the Commission in the right direction.
I also note that there is an intelligence dimension here which, in the nature of events, our sub-committee has not touched upon. There is a committee of parliamentarians, the Intelligence and Security Committee, which does touch on this, and I have read their last two reports. I think the development of much closer co-operation between national intelligence services internationally is another reason why that committee of parliamentarians ought perhaps to be converted into a full parliamentary committee, because we need to know rather more of what is going on. After all, intelligence services are co-operating precisely in the fields of organised crime, organised immigration crime and the combatting of drugs. There is therefore rather more scrutiny needed in that area.
Third Pillar instruments are matters of international law and of international conventions and do not therefore, even under the Amsterdam Treaty, come under the full scrutiny of the European Parliament and others. My noble friend Lord Lester may touch upon the problem of making sure that conventions are given proper scrutiny in our House. I would end by encouraging the Government to be more open in informing and educating Parliament and the public, to thank the Government for being so co-operative with our committee so far, and to hope that that co-operation will continue.
3.45 p.m.
Lord Clinton-Davis: My Lords, may I at the outset pay a tribute, which I am sure will be echoed by the whole House, to the diligence and the scholarly way in which this committee has gone about its business under the guidance of the noble Lord, Lord Kingsland, and, latterly, the noble Lord, Lord Wallace of Saltaire.
One of my observations when I had the privilege of being a commissioner was how much attention was paid by the Commission to the works which were produced by this place and, indeed, elsewhere. It is idle to suggest, as perhaps some on the sceptic wing do, that notwithstanding its value it is ignored. It is not. The noble Lord, Lord Kingsland, will know that, too, from his tremendous experience in the European Parliament. May I also thank him and the noble Lord, Lord Wallace, for the very generous tribute they have made to my right honourable friend the Home Secretary for the way in which he co-operated with the work that they undertook. I am delighted that that happened. Of course, the proof of the pudding will be in the eating and there are many problems here, but nevertheless that was a good start.
Transparency, integrity, accountability, parliamentary scrutiny, all go to the heart of how we can best inform our public, not only in this country but elsewhere, about

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what is going on in Europe in so far as the entirety of the work of Europe is concerned—not simply the Third Pillar.
In ranging over the subject of public scrutiny and parliamentary scrutiny this important report deals with a number of key issues. Not least in importance is the observation on how these issues that we are deliberating impinge on the liberties and the lives of all the citizens of the European Union. It is therefore key in ensuring that decisions which are reached by Ministers are, and are seen to have been, considered properly. Parliament has a vital role in that regard.
Occasionally it is said that some parliaments elsewhere in Europe do not set a good example. Others, however, set an example that we would do well to examine carefully. Although it does not relate directly to the Third Pillar, I well recall going before the German Parliament to be interrogated on matters affecting both environment and transport issues with which I have dealt. Included in my interrogators were members of the European Parliament—without a vote, it is true, but perhaps better able to play a part in the interrogation of commissioners and officials, which is important.
In parenthesis, I have to say that I should like to see that happen in this country. I can see no real objection, other than blind prejudice, which would prevent it from happening. Why should we not look for help and advice in being able to scrutinise? After all, that is one of the most important roles that Parliament has to fulfil. It includes being able to examine the motives of those who help to make the law.
There are many issues, but an important one dealt with at the beginning of the report was the timing of the way in which documents are deposited for scrutiny. That is critical, because if Parliament is to have a substantive role in being able to scrutinise properly then it must have sufficient time to be able to examine the documents that are germane to those considerations. Overall, the message that I, as well as the House, received in relation to the report is that there should be an effective practical presumption in favour of depositing Third Pillar proposals in good time.
I believe that by their initial reactions the Government have shown that they are not likely to be grudging in that respect. I am delighted that that is the case. The role of government should be to co-operate to the maximum, within reason, and there are certain difficulties with which the report deals. I believe that the Government have established a good augury in relation to it.
There should be no real disputes when it comes to the full text of the proposal, yet there have been. One of the points made in the report is that there is a need for guidelines to identify areas where genuine difficulties for governments to comply with their obligations may arise.
I was also pleased to note from the speeches of the noble Lords, Lord Kingsland and Lord Wallace, how much they praised the work of those non-governmental organisations which gave evidence to the deliberations. Justice, referred to in paragraph 26 of the report, identified the problems associated with the way in which some Third Pillar proposals are negotiated. The answer,
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or part of it, to the problem which was raised is spelt out clearly. It is that the Government should provide an explanatory note to the committee, giving the nature of the proposals, the implications for the country and how the Government stand in relation to those negotiations.
I was also glad to see the views of my right honourable friend the Home Secretary set out in paragraph 305 of the evidence and referred to in paragraph 33 of the report. They were that those matters within the Third Pillar proposals which have consequences for the United Kingdom's human rights obligations should fall within the major criterion of significant importance in determining whether a proposal should be deposited in Parliament. That is an extremely important observation.
What is clear and undesirable in the longer term is the variation of practices between different member states. I believe it is important to develop a common set of criteria. As I have indicated, there is already a great deal of room for co-operation between parliaments which is likely to happen. But in the interim, before Amsterdam becomes an everyday part of our political life, there is a need for effective guidelines here in the United Kingdom. Those should be at least as liberal, if not more so than the most liberal elsewhere.
At the heart of the problems which have been raised is the question of confidence and trust that are reposed by governments in the Parliament. It is of supreme importance that, where significant changes occur in the course of negotiations, the committee should be brought into the confidence of the Government. It needs to know at the earliest opportunity what those changes will be and how the Government stand in relation to them.
The scrutiny reserve regarding Third Pillar proposals is a most important issue because legislative actions often flow from that state of affairs. Parliament needs to have an input into those deliberations. Should there be a minimum time to scrutinise the instruments that are deposited? That is one of the critical questions raised in the report. I believe that there needs to be that. It is extremely important that, as paragraph 65 states, the committee must be able to have time to do what it did in connection with the report. That is, to take advice from outside organisations like Justice and the others referred to. Therefore, that degree of time is central to the successful operation of what is to be done in relation to scrutiny.
I shall not dwell on what the committee proposed in relation to the time limit because it was dealt with by the noble Lord, Lord Kingsland, but I think it is absolutely right.
I turn from that to the issues of secrecy and confidentiality. It reminds me in many ways of issues of confidentiality which are raised frequently by big business in areas like pharmaceuticals. It is often overdone. While it is important that, where absolutely essential, those criteria should be invoked, nevertheless the Government should be as willing to inform the committee on why they have taken a particular stance in that respect. There is a duty on the part of Ministers to be as open as possible. I hope that questions of secrecy and confidentiality will not be embarked upon

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too readily. The idea that certification should be required from the Speaker of another place and the Lord Chancellor here seems to be excellent. But Ministers should be prepared to explain when and why they are invoking secrecy and confidentiality.
I turn from that to my penultimate point, the role of the European Parliament. Of course, as the noble Lord, Lord Wallace, said, important new responsibilities will arise in this connection in relation to the Amsterdam Treaty. Those responsibilities will require the council to consult the European Parliament before adopting any framework decisions and various other matters.
As I understand it, the Government have had some reservations, especially in relation to the time that this will involve. There are very real advantages, and I was glad to see that these were spelled out by the former chef de cabinet of the noble Lord, Lord Cockfield, Mr. Adrian Fortescue. I do not need to embark upon those because they are spelled out very well, very vividly, in his evidence. I believe that what he has had to say in that respect is very pertinent indeed and I hope that it will be acted upon.
I conclude with the question of the role of the European Ombudsman. It has now been extended to the Third Pillar and the Government are entitled to take credit for the initiative that they took in that regard. It was an excellent suggestion. The Government proposed the amendment and were able to persuade other member states to agree to it. This can be a very powerful incentive to greater openness and transparency.
On this note I conclude as I began, by thanking those who participated in the outstanding work of the committee. I am sure that it will achieve very widespread notice, not only in this country but throughout the European Union.

Business
Lord Hunt of Kings Heath: My Lords, before we take the Statement on Ashworth Special Hospital, 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.

Ashworth Special Hospital
4.1 p.m.
Baroness Hayman: My Lords, with the permission of the House, I shall now repeat a Statement being made in another place by my right honourable friend the Secretary of State for Health.
"Madam Speaker, I wish to make a Statement on the report of the public inquiry into the Ashworth Special Hospital conducted by his Honour Judge Peter Fallon QC.
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"This inquiry was established by my predecessor in February 1997 to investigate allegations by Mr. Steven Daggett, a former patient of Ashworth Special Hospital, that there was misuse of drugs, financial irregularities, possible child molesting and the circulation of pornographic material in the personality disorder unit at the hospital. I should also pay tribute to the work of my honourable friend the Member for Halifax who brought this matter to the attention of the Government. She subsequently received threatening phone calls which she believes came from people whose trade in pornographic videos was interrupted by her intervention.
"It is difficult in this short Statement to do justice to the inquiry report which is 473 pages long. The executive summary alone covers 44 pages. So I will highlight the major points in the report.
"The inquiry sat for a total of 66 days, taking evidence from a wide range of witnesses involved in Ashworth Hospital, both past and present. The report presents a shameful picture. The general allegations made by Mr. Daggett were largely true. There were serious financial irregularities, drug abuse, pornography and a poor quality of patient care.
"Mr. Daggett's main allegations referred to Lawrence Ward in the personality disorder unit. A ward within a personality disorder unit, set inside a special hospital, had been repeatedly visited by a seven year-old girl who was allowed unsupervised contact with patients guilty of sex offences against children. Her father brought her into the personality disorder unit and, without let or hindrance, gave her unsupervised access to one patient who had a history of molesting young girls, including indecent assault and attempted rape. She also visited another patient who was locked up in Ashworth because he had kidnapped, tortured, sexually assaulted, mutilated and eventually murdered a 13 year-old boy. I am glad to say that the inquiry report concludes that there was no proof that the girl was abused, but that she was being "groomed" for later abuse.
"The inquiry asked how a young girl could have been allowed to visit such men. It was told that Lawrence Ward was special and that there were not many incidents. All the patients were allowed to roam around much of the hospital unaccompanied. For a time routine searching did not take place. The inquiry was told that the ward espoused the philosophy of a "democratic community".
"I should emphasise that the present inhabitants of this so-called "democratic community" have between them committed murders, manslaughters, indecent assaults, indecent assaults on children, assaults or woundings with intent and a host of other offences.
"The inquiry also concludes that a small group of patients, led by the child murderer, was intimidating patients and staff and had gained a grip on the ward. It also concludes that there was a drugs problem on Lawrence Ward and that it was endemic throughout the hospital, but that there was no direct evidence that nursing staff were involved.

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"The financial irregularities arose from a shop on Lawrence Ward, from the sale of pornographic materials, including videos, and from people conducting credit card businesses. From the report, Lawrence Ward appears a veritable outpost of the enterprise culture. The father who brought his daughter into Ashworth Hospital also supplied pornographic videos, which it seems he was allowed to deliver by car to the ward without being properly searched. There was a shop on Lawrence Ward which was supposed to sell confectionery and soft drinks. Its turnover, starting at £50 per month, soared to £14,000 between January and October 1996. The child murderer also ran an unofficial shop from his side ward.
"Unbeknown to senior managers, several patients, including Mr. Daggett, had been allowed credit cards. Eventually, when managers decided to end this arrangement, patients were forced to cut up their cards. But they retained the numbers so that they could renew them or continue to use them in phone transactions. Security was so slack that Mr. Daggett managed to change his name by deed poll, acquire a new passport and driving licence and use a credit card to take out a large sum of money prior to absconding.
"The inquiry found that security was so lax that neither patients, staff, nor visitors were properly searched. They confirm Mr. Daggett's claim that on Lawrence Ward the patients' rooms were not properly searched. This was illustrated when a full-scale search in January 1997 revealed a stock of children's underwear in the room of the man who had molested girls and male pornography in the room of the child murderer. Both of them had VCRs used for copying videos. A previous search of the bootroom on the ward had revealed 41 pornographic videos.
"The inquiry set out to find how this deplorable situation had come about and how it had been allowed to persist. What it found out is a shameful story of confusion, indecision, mismanagement and incompetence. Some of the professionals and managers failed to show a glimmer of common sense, let alone live up to the standards of their professions. The whole thing was a mess from top to bottom.
"In the past Ashworth had operated a harsh and repressive regime. Following scandals in the early 1990s the Blom-Cooper inquiry in 1992 recommended a more liberal approach. The Fallon inquiry concludes that these recommendations were implemented without proper consideration of their differing impact on different patient groups in the hospital. As a result, the patients with personality disorders enjoyed most personal freedom and reduced security. The report says that it was quite predictable that these failures could be abused by some of the patients.
"What is clear is that, because of the failure of top management to lay down and enforce clear rules for both patients and staff, security became less and less important. As a result, more and more problems arose but nobody attended to them. As the report says, "all too often the core principles of security were absent".
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"Nobody was seen to be in charge of the personality disorder unit. That was because nobody—with the possible exception of the patients—was really in charge. The senior management was out of touch. Psychiatrists seem to have been incapable of carrying out their proper professional functions. Management decisions, if known, were frequently ignored by both staff and patients. The internal monitoring system did not work. The members of the board do not seem to have known what was going on. The external monitoring system did not work. Events within Ashworth were not reported to senior officials of the NHS or the Department of Health. Reports into serious incidents were suppressed.
"The Fallon report concludes that the whole system was at fault. I am sure that that is right. But the report goes on to criticise the individuals. I am sure that is right too because so many people at Ashworth failed to do properly the jobs they were paid to do.
"The report criticises a number of people by name. Ashworth Hospital Authority has already taken disciplinary action against some people and some others have left Ashworth. In the case of those criticised in the report who are still employed by the NHS whether at Ashworth or elsewhere, I expect their current employers to initiate appropriate disciplinary proceedings in the light of this report. In at least one case this report will be drawn to the attention of the General Medical Council and other professional regulatory bodies. The United Kingdom Central Council for Nursing, Midwifery and Health Visiting has already commenced disciplinary action in one case.
"The report recommends that Mr. Paul Lever, chairman of Ashworth Hospital Authority, should step down in accordance with the principles of public accountability, and he has done so. Anne Marie Nelson, former chairman of the Special Hospitals Service Authority and present chairman of the High Security Services Commissioning Board, has also resigned.
"The running of Ashworth and terrible incidents at Ashworth were the subject in the 1990s of a whole succession of inquiries and reports. In 1990 one patient was murdered on Owen Ward and another on Forster Ward. In 1992 the Director of Security carried out security audits at Ashworth, Broadmoor and Rampton. Her recommendations for greater security at Ashworth were ignored. At about the same time a task force which was implementing the Blom-Cooper report described Ashworth as over custodial. The Fallon report describes the task force's policy as a recipe for disaster.
"In 1993 an inquiry into the women's services at Ashworth (which are not part of the personality disorder unit) produced a damning report. In 1995 there was an internal investigation into a hostage-taking on Owen Ward. The report was 59 pages long with appendices covering 385 pages. Again it was a damning indictment of what went on, but staff were shown only a nine-page summary and so was the official responsible for implementing its

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recommendations. Neither the Owen Ward report nor the Swan report was made available to the Health Advisory Service before the publication of its review of progress post-Blom-Cooper in 1995. Also in 1995 and again in 1996 patients attacked members of staff with razors. Later that year the discovery in mail addressed to a patient of a machine for embossing share certificates led to an inquiry which revealed security breaches, scams and money-making ventures in the personality disorder unit. Reports were prepared on all these incidents but no machinery was put in place to see that changes and improvements were made, and no one was ever given that task. I am determined that this report will not suffer the same fate.
"The Fallon report makes 58 detailed recommendations. Some cover the operational procedures at Ashworth. I am giving the hospital authority four months to develop an action plan to implement the necessary changes within the hospital and I am appointing Ian Pirnie to chair the authority during this process. Mr. Pirnie presently chairs the Morcambe Bay Health Authority. I expect that he will bring to this task the leadership and management skills that he demonstrated as an admiral in the Royal Navy.
"Other recommendations cover the general role and organisation of the special hospitals and their relationship with the rest of the National Health Service. These will be the personal responsibility of Sir Alan Langlands, Chief Executive of the NHS. I have given the task of ensuring progress on the more general recommendations which apply across government to Chris Kelly, Permanent Secretary at the Department of Health. All three will report directly to me and all three will be expected to deliver.
"The inquiry team gave final clearance to its report on Wednesday of last week. The printed edition arrived this morning. It is being published this afternoon. A detailed response to all its recommendations will be published as soon as possible. In the meantime I can say that the Government broadly accept most of the recommendations and I can give an immediate response to some of those which will be of most concern. First, security. The report recommends that security should be given a higher priority; that searches of patients and staff should be introduced; that no visitors should be allowed in Ashworth without being searched; and that there should be regular searches of patients' rooms. The Government accept these recommendations. We give top priority to the safety of the public and we have already taken action.
"All aspects of security have been tightened up. New rules have been introduced. And management are making sure that they are implemented for people entering and leaving the Ashworth site, within the site and on the wards. Further investment in extra security staff is being made from 1st April this year, with an extra £1.5 million going to the special hospitals and
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a further £4.5 million investment in physical security measures at Ashworth. This means that fully effective searches can be made of all visitors, staff, patients, goods and vehicles, including, where appropriate, x-rays, metal detectors and sniffer dogs. I have arranged for an independent review of all aspects of security including the use of post and telephones at all three special hospitals which will report direct to Sir Alan Langlands. The Social Services Inspectorate will conduct inquiries into the social work aspects of Ashworth and subsequently the two other hospitals, and report direct to me.
"Visits by children. We have already changed the rules on child visitors and gone beyond the recommendations in the report. In September last year we put a stop to child visits to ward areas and visits by children not close relatives of the patients. No visits are allowed unless judged to be in the best interests of the child. All visits by children must be off the ward and must be supervised. Any visits by a child must be by prior arrangement. These rules apply at all three hospitals, and I wish to make clear that anyone who breaches any of these rules can expect to be summarily dismissed from his job.
"The report recommends a review of the whole system of accountability within the NHS and between the NHS, officials of the Department of Health and Ministers, particularly in relation to the special hospitals and more generally. I share some of the inquiry's concerns about the system that I have inherited from my predecessors. I have made clear to the House who is to have personal responsibility for dealing with the various aspects of this report and that they will all report direct to me. That must be just for the present.
"The health Bill which we will be introducing shortly will put in place stronger and clearer accountability arrangements for the whole of the NHS and will end the internal market which has clearly inhibited more active management by the NHS Executive and regional officers. As recommended in the Fallon report, the commission for health improvement will cover the special hospitals. In addition the board of every hospital, including each special hospital, will have for the first time a statutory duty for the standards of treatment and care that they provide; there will be clearer powers for the Secretary of State to issue directions; and new arrangements for commissioning specialised services. I am giving further consideration to the question of overall accountability in the light of this report.
"The inquiry was set up to consider the personality disorder unit, not the future of the whole hospital and its high security psychiatric services. However the inquiry team recommended the closure of Ashworth Hospital. The Government do not accept that recommendation.
"In the policy document Modernising Mental Health Services on which I reported to the House on 8th December 1998, we made clear that we wanted to see a closer integration of the high security services with the other secure services and the reconstitution

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of the special hospitals as NHS trusts. For the foreseeable future the three special hospitals must continue to be the main providers of high security services. There is no practical alternative in the short term. To announce that the three special hospitals had no long-term future but that they could not be replaced for a good many years would run the risk of making them even more difficult to manage than they are now. In any case I do not believe that the problem at Ashworth is the bricks and mortar. The problem is management and that is what we are determined to tackle.
"The personality disorder unit at Ashworth is not a decrepit Victorian dump. It was purpose built. Work started in 1976 and was completed in 1984. Replacing it with smaller high security units spread around the country would not guarantee better security, higher quality treatment and care or more effective management. Those would still have to be planned, organised and worked at.
"The members of the inquiry team gave a great deal of thought to how best the legal, medical and penal system should deal with people suffering from severe personality disorder. They make a number of very useful recommendations for far-reaching changes. I very much welcome these ideas which will be given careful consideration by my right honourable friend the Home Secretary and by me as we develop new and more effective ways of dealing with people suffering from severe personality disorder whether presently in prison, in hospital or the outside world. Public security will be our main priority. The Government will also make sure that the recommendations in the Fallon report are made available to the teams reviewing the Mental Health Act and mental health services.
"The result is that this may lead to change in the role of the Ashworth personality disorder unit, the scale of operations there and how they are organised. It could well mean breaking the hospital up into smaller physically segregated units. But we do not contemplate its closure. We do, however, agree with the inquiry team that a new form of reviewable detention is needed for those people with a severe personality disorder who are considered to pose a grave risk to the public. We therefore announced in our strategy document Modernising Mental Health Services in December that we would be working up proposals that will ensure that the safety of the public is the prime concern and that a new regime is established for this difficult group of people.
"Since the Fallon inquiry got under way, there have been a lot of changes at Ashworth. The process of change has not been without its problems but progress is being made. The quality of the medical staff has improved substantially as a result of new appointments; management has improved; security has been tightened. But there is still a long way to go.
"I should add that, despite the catalogue of disasters accurately outlined in the Fallon report, many of the staff at Ashworth have been trying hard to do a good job. They work in very difficult
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circumstances. The patients in the personality disorder unit are often highly intelligent and manipulative as well as dangerous. They have to be looked after and checked on 24 hours of every day so that the rest of us can be secure. We owe it to the staff to make a fresh start at Ashworth and to encourage the good staff and management, partly by getting rid of the bad ones. The new arrangements and the new people should deliver a better performance all round.
"A natural question which will arise in the minds of most decent people is, 'How is the little girl getting on?'. I have checked. She seems to be doing pretty well. She is living a settled life and, under a court order, her father has no contact with her. She was being exploited by the adult world. I am determined to ensure that from now on the adult world looks after her instead. I hope that all will respect her privacy.
"Finally, I should like to thank his honour Peter Fallon, and the other members of the inquiry team and their secretariat for the thorough way in which they have gone about their business and the report they have produced. They have done their job. Now it is up to us to do ours".
My Lords, that concludes the Statement.
4.22 p.m.
Earl Howe: My Lords, I thank the Minister for repeating this very full Statement which has been keenly anticipated for some considerable time. This inquiry, under the chairmanship of Judge Fallon QC, was established nearly two years ago by my right honourable friend Mr. Dorrell, then Secretary of State for Health, in the light of extremely disturbing allegations of wrongdoing at Ashworth Hospital. It was the strong wish of my right honourable friend that the inquiry should be thorough and that its findings should be published in full. Therefore, I welcome today's Statement and the accompanying substantial documents, notwithstanding their content which, to all of us, can only be a matter of profound dismay. I join the Government in paying tribute to Judge Fallon and his committee for the work that they have done, which has clearly been considerable.
The main purpose of the Fallon inquiry was to review the clinical policies and management of the personality disorder unit at Ashworth. Uppermost in everyone's minds when the inquiry started its work were the apparent woeful lapses in security and discipline at the hospital; and unfortunately those fears have been fully borne out. But leading on from that was the concern shared by many, including my right honourable friend the then Secretary of State, that the reporting chain and the associated chain of accountability between Ashworth and Department of Health Ministers had failed. That aspect of the matter has also been covered in the report and I believe that the conclusions confirm what many already realised.
However, some of the Statement is couched in terms which imply a failure by officials in the Department of Health and by Ministers. I do not believe that Ministers can be held to blame for things of which they were not

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aware and of which they could not have been expected to be aware. I should be grateful if the Minister will confirm my understanding that the relevant officials in the Department of Health were indeed unaware of the serious nature of the activities which were taking place.
From this side of the House, we support all the report's central recommendations relating to security, discipline and accountability. However, I have a question about the role of the commission for health improvement. It appears from the Statement that the commission will, in the case of special hospitals, concern itself not just with clinical matters but also with matters of management and reporting. Is that a correct reading of the Government's intentions? What will now be the role of the Health Advisory Service and the Mental Health Commission?
The inquiry recommends the closure of Ashworth and the Government have rejected that proposal. I agree with the Government that the difficulties experienced at Ashworth do not relate to the bricks and mortar so much as to other factors. But I believe that they relate to more than just management. One of the comments made by Sir Louis Blom-Cooper in 1992 was that special hospitals are inherently unmanageable. To the extent that that is true, it reflects more than anything the ingrained culture of those institutions which management alone will find it very difficult to change. I do not say that that is impossible, but it is an extremely demanding brief.
I understand the Government's reasons for rejecting the closure option but it must be said that that recommendation by Judge Fallon is underpinned by some extremely careful analysis. To reject such a recommendation creates a heavy degree of responsibility on the Secretary of State's shoulders, as he must be aware. It is a responsibility to ensure that the alternative measures which he has proposed deliver the results that are required. I hope that the Government are confident that the measures to be taken will properly safeguard the public; will promote patient care; and will cure the long-running and intolerable problems at Ashworth. The Opposition stand ready to support the Government in implementing those measures but it really is vital that in the months ahead, the regime at Ashworth should be characterised by effective and transparent accountability. In the meantime, will the Minister say whether staff shortages are in evidence at Ashworth and, if so, in what areas?
At the heart of all this are the wider issues identified in the Statement; namely, the relationship between high security psychiatric care and the wider NHS and the integration too with the other secure services. I do not wish to initiate a more general debate on those matters this afternoon, but I urge the Government to look for new and imaginative ways of delivering the kind of secure therapeutic regime which Judge Fallon has so carefully identified and recommended and which will also overcome the inherent tendency of the present system, in its broadest sense, to hold patients in maximum secure surroundings for longer, sometimes far longer, than need be.
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I look forward to the Government's further proposals as soon as it is practicably possible to bring them forward.
4.27 p.m.
Lord Clement-Jones: My Lords, I join the noble Earl, Lord Howe, in thanking the Minister for repeating the Statement made by the Secretary of State in the other place. There is a huge amount for which to thank his honour Judge Fallon and his colleagues. There is a great deal of meat in the report which most of us have not yet had time fully to digest.
There is a sense of shock and outrage, rightly, which rings through the Secretary of State's Statement. That certainly comes home very keenly to all of us from that Statement. Ashworth's situation was obviously a catalogue of terrible failures. First, I strongly welcome the Secretary of State's immediate proposals in response to the report. Clearly, there are many other aspects of the very long report which need to be considered. In particular, those are a review of security; the involvement of the Social Security Inspectorate; the restrictions on children; better accountability provisions; and also the involvement of the commission for health improvement when it is formed.
However, we know that the Secretary of State has emphasised very strongly, particularly in relation to the closure recommendation, that the problem is essentially one of management and not one of bricks and mortar. I share some of the reservations of the noble Earl, Lord Howe, in that respect. It has had three chief executives in six years and I understand that a very able manager, Hilary Hodge, was put in by this Government as chief executive. She was forced to resign by the staff of Ashworth, and it appears to be the case that the staff were at that time, and probably still are, too powerful relative to the senior management, despite a statement about changes having taken place in the management of Ashworth. So we have grave doubts about the continuance of this institution, together with that of other special hospitals. Maybe these hospitals are unmanageable and therefore it needs to be demonstrated very quickly that the culture can be changed and the argument about the closure of Rampton, Broadmoor and Ashworth over creating smaller and more regionally-based units can be overcome.
We on these Benches are prepared to see whether these hospitals have a future. I have some sympathy with the Government's desire to see whether that culture and management can be changed, and in particular whether that can be done not only by changes of staffing and management but also by the physical changes that are being suggested. This can only be done on the basis that proper inspection and review systems are instituted. I ask the Government whether they will be ensuring that the commission for health improvement will have the necessary expertise to carry out this particular kind of inspection.
Will the Government also consider whether there are problems now in the hospital regarding under-staffing in terms of the number of psychiatric nurses available. This obviously goes hand in hand with the question of

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nurses' pay elsewhere in the National Health Service. We need to ensure that only appropriate people are contained in these institutions, particularly in the light of the Secretary of State's determination to improve security in Ashworth. Will the Government be reviewing these aspects and ensuring that only those patients who are appropriate for this institution are contained within it?
Will they also ensure that the institutionalisation of staff does not occur again? Do the existing staff need to be dispersed? At the very least staff need to rotate through other institutions in the course of their careers. To this end, will the Government ensure that the Prison Health Service is merged with the NHS to ensure that this type of rotation can take place? In that context I ask the Minister: is she able to say when she thinks that the prison service health review will be published? There also need to be continuing education programmes for the staff so that they may be brought into much closer contact with the remainder of the NHS. Clearly the creation of these hospitals as special trusts may be a step in that direction.
In summary, we from these Benches welcome the steps already announced. We have an open mind about the future, but the Government need to be confident that they can make the necessary changes. What is needed is not only a vigorous response, as set out in the Statement, but also vigorous implementation. I ask the Minister whether she will keep an open mind and contemplate the closure of Ashworth if results cannot be achieved in short order. I am sure that the Minister will agree that this is an area in which all parties need to work together on a non-partisan basis, to make absolutely certain that these dreadful events never again take place.
Baroness Hayman: My Lords, I am grateful to both noble Lords who have spoken from the Front Benches for their considered responses to the Statement. As the noble Lord, Lord Clement-Jones, rightly said, it was a shocking document. It is a situation that I think we all find devastating regarding the events that have been described.
If I may deal with some of the points that have been raised, I think we are right to put emphasis on the need to make sure that special hospitals will continue to have the main responsibility for providing high security services. However, we recognise that the cultural difficulties are perhaps the most difficult, indeed the most important to address, to provide absolute confidence that these sorts of events will not be allowed to recur.
Perhaps the most important thing in all this is to end the isolation of these institutions. These sorts of events take place when institutions of whatever size are isolated from the rest of the therapeutic health and even prison communities, with which they are meant to interface. I believe that our proposals for ending special health authority status, for making these hospitals into trusts and for ensuring that they have relationships, professional and otherwise, with other NHS bodies will be crucial in all this.
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In terms of issues like the rotation of staff, to which the noble Lord, Lord Clement-Jones, referred, these will be made possible by relationships of that type in the future. Likewise, I think that the recruitment of staff, which is always a problem, will be eased by its being part of a wider professional network. There is some evidence that at Rampton, which is beginning to develop these relationships with neighbouring psychiatric and health institutions, they are actually having more success in recruiting staff.
Referring to the matter of staff shortages, the NHS executive and the three special hospitals are undertaking a comprehensive review of workforce issues, and will consider any of the issues raised in the Fallon Report about staffing. There have been, and still are, difficulties about recruiting sufficient staff of the right calibre but, as I say, we expect that position to improve as a consequence of the partnership arrangements between high security services and the providers of other secure services.
The noble Earl, Lord Howe, asked about the transparency of accountability relationships. I set out in the Statement how we are taking action to ensure that those will be effective and transparent. There are very clear personal responsibilities which are outlined in the Statement for all to see. I agree that it does place an awesome responsibility on the shoulders of the Secretary of State. That is correct, but I think that in taking the steps he has to ensure that until we have the new arrangements in place those people who have been named in the Statement will be responsible to him for the changes which have to be implemented, he is very clearly taking that responsibility on board.
With regard to the issue of whether or not we should contemplate the closure of Ashworth at some time in the future, which was raised by the noble Lord, Lord Clement-Jones, I think one has to look at the reasons behind the recommendations for closure. It was not a matter of closure for its own sake but it was because of the problems of size, isolation and security. We need to take action on all those fronts.
The noble Lord asked how we were going to ensure that only appropriate patients were admitted to Ashworth. I believe this is a major issue because it contributes to the size and therefore the difficulty of management and the creation of a possible "isolation culture" within the institution. We have in hand action to try to deal with this. There are, for example, roughly one-third of patients at Ashworth who do not need high security provision: they need medium security provision. We are taking action to ensure that such provision is available. Again, we have to look very carefully at the people with learning disabilities who are admitted to special hospitals. We also have to look at the position of women in special hospitals. There is evidence, again, that if we provide dedicated services, sometimes they will need security but it may be medium security and not high security for a small number of patients. We hope it may be possible in some way to deal with the problem by breaking up the larger units into smaller ones.

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So far as the commission for health improvement is concerned, I would ask noble Lords to await the publication of the Bill to see the exact powers it contains. It will be important that the quality and management of the regime, the delivery of clinical governance, is inspected. Also important is the delivery of the national service framework for mental health in which high security services will have a part to play.
That is not a simple task. It is a complex matter which will involve a large amount of work. There are interrelationships with healthcare and with the Prison Service to which the noble Lord, Lord Clement-Jones, referred. It is important that we recognise that these are health service establishments. We have to be aware that perhaps a third of the patients within them do not have custodial sentences. I believe that the right direction is to integrate these services into the NHS.
Finally, perhaps I may confirm to the noble Earl, Lord Howe, that officials and hence Ministers at the Department of Health were unaware of the serious nature of the events. As the Statement says, events and reports were not reported to senior officials of the NHS or the Department of Health. Reports of serious incidents were suppressed. As soon as they became aware and there was evidence, there was action at the Department of Health, although some of the events have been finally explained only with the publication of this report.
4.41 p.m.
Lord Sheppard of Liverpool: My Lords, perhaps I may press the Minister to say a little more about the issue of scale. If I heard the Statement correctly, it stated that that could involve breaking up the hospital into smaller units. In order to help me understand the size, how many patients are in the personality disorder unit?
I share the dismay of your Lordships' House at this disturbing and deeply disappointing report. Among several visits to Ashworth I visited on the day that Louis Blom-Cooper arrived to start the inquiry. Part of our dismay relates to the swing between what the report describes as an over-custodial approach and what is now seen to have been, in some instances at least, a very lax approach. It is difficult to say it in this context, but during my visits I have no doubt that I saw some extremely devoted and skilful staff. I know that morale has been at rock bottom over many years. The task before management today is very great.
The point has been made that there are fine buildings with wonderful facilities. A large institution makes it possible for a wide range of facilities for long-stay inmates. Does the Minister feel able to expand on the break-up of the hospital into smaller units?
Baroness Hayman: My Lords, the detail of how that might be achieved has to be an issue for the senior management within the hospital. About a third of patients in high security hospitals have a primary diagnosis of severe personality disorder. Currently there are 97 in the personality disorder unit at Ashworth.
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If we look at the potential for moving into such units patients who could be managed in medium secure units and the development of specialist programmes related to the new form of reviewable detention, those provide possibilities for reducing the numbers in the personality disorder unit. There are also difficulties of size with regard to the type of people about whom we are talking. They are often highly intelligent and highly manipulative. There are self-evident difficulties about managing this specific large group of patients.
My noble friend rightly points out that within the hospital as a whole there are groups of patients other than personality disordered ones. I believe that there is potential for scaling down the size of the operation by making sure that those who need medium secure accommodation are moved into such accommodation. Equally, I believe that services for women and those with learning disabilities give the opportunity for separate management off site.
Lord Campbell of Alloway: My Lords, will the Minister accept the suggestion of the noble Lord, Lord Clement-Jones, in his remarkable speech? Perhaps I may support his view that this is a matter which should be dealt with on an all-party basis. Does the noble Baroness accept that the essence of making the system work in the future is the inspectorate?
I speak with some experience. I spent quite a bit of my life in high security institutions. It makes no difference whether it is a prison or a hospital. Each inevitably develops its own sub-culture. It is not just a question of management. In our present system management is often totally subservient to staff but it should be impossible for a situation to arise in future about which the ministry does not know. I wholly accept that officials did not know, but they should have known. It was their job to know: it was their duty to know; and if they had known they would have acted.
The only way to achieve that aim is by snap, unauthorised inspections on the spot. I have seen it happen in prison camps; and even that did not always work, but at least such a system stands the chance of working.
Baroness Hayman: My Lords, I am grateful for the noble Lord's bipartisan approach on this issue. I agree that the quality of the inspectorate and the task that it performs is a vital component in ensuring that we do not have to consider such a report again. However, this is one strand, an important strand. I believe that the accountability arrangements are important too. No inspectorate can be present for 24 hours a day. We have to ensure that management all the way up the line is held accountable; and that the systems for both clinical governance and, I believe importantly, for the regional commissioning of high security services—at regional level they will be another check on the quality of the service delivered—are part of a framework which ensures that a culture is not allowed to develop which takes the institution out of the mainstream.

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I agree with the noble Lord that the commission for health improvement and other means of inspection are tremendously important but they are one weapon, and not the only weapon, in achieving what we both believe needs to be done.
Lord Jenkin of Roding: My Lords, it fell to me nearly 20 years ago to receive the report on Rampton. The House will remember that a television programme called The Secret Hospital disclosed a horrifying state of affairs at Rampton where, as my noble friend said, there was a classic example of the staff being totally in charge and the management totally incapable of managing.
I wish to address only one question to the noble Baroness. I understand entirely why the Secretary of State is extremely reluctant at this stage to contemplate disbanding the so-called special hospitals. There has been a great deal said—and I agree with much of what has been said by the noble Lord, Lord Clement-Jones, and my noble friend—about the culture that develops in such institutions. Indeed, the noble Lord, Lord Sheppard, talked about the violent swing from the reaction against over repression to what one can now see was a disastrous policy of laissez faire, if it is fair to so describe it. Those situations can only happen where there is this pattern of isolation.
I have listened with interest and enthusiasm to what the noble Baroness said about what is being done to try to break down the isolation. I believe that such isolation lies at the heart of why these institutions from time to time appear to go so disastrously off the rails to the huge disadvantage primarily of patients but of many others as well.
I ask that Ministers do not close their minds to the view that perhaps institutions of this size in the modern world with all its pressures are, as Judge Fallon said, inherently unmanageable. I recognise all the difficulties of trying to get communities to agree to establish separate smaller units within their own areas. One is very well aware of all the resistances that build up. Nevertheless, what has come through the discussion this afternoon, and I am sure will be in the debate following the report, is the question of how these cultures arise and flourish in the way they do. The answer is because they are isolated. They tend to be self-contained. They contain the problems that the rest of us, I fear, shuffle off onto the special hospitals. That is how these situations occur. I ask Ministers to recognise all the difficulties. In this case there are three large, fairly isolated, separate units very much of their own character containing a wide range of patients with different problems and needing different treatments. Can that ever be the right solution to this problem?
Baroness Hayman: My Lords, I have listened to the remarks of the noble Lord with great care, given his experience in this field. I am sure that he accepts and understands the reasons why we do not have alternative facilities readily available. We do not have guarantees that alternative bricks and mortar would
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not produce the same cultural difficulties. We have robust plans in hand to end the isolation of these units, and we can see a way of reducing size by focusing on the specific needs of specific groups and ensuring that they can be met. For those reasons we have clearly taken the view that it would not be appropriate to decide to close the hospital at this point, when we are looking at a completely new policy on personality disorder and a completely new structure and accountability for the special health services.
I am sure, however, that we would all agree, having seen this report, that we must keep a close eye on the effectiveness of the arrangements that we put in place and on whether they deliver the higher quality of care and reduce the problems that give rise to this report.
The Blom-Cooper recommendations were taken and applied across the board to all the patient groups within the hospital with very great problems caused by the application to the personality disorder unit where it was singularly inappropriate to relax the security. We do not want to fall into the same trap by applying the answers to the problems of the personality disorder unit—which contains a minority of the patients in the institution—across the board. I believe that we need a more focused and differentiated approach within an overall strategy of reducing isolation, ensuring that we have high levels of security, inspection and accountability.

Parliamentary Scrutiny of the Third Pillar: ECC Report
4.56 p.m.
Debate resumed.
Lord Howell of Guildford: My Lords, like the noble Lord, Lord Clinton-Davis, the distinguished former European Commissioner, I was not a member of the committee which produced the report we are debating. I therefore have no hesitation in giving unqualified praise to my noble friend Lord Kingsland and his colleagues for their work and for tackling this subject with such constructive focus.
I believe that we should banish all illusions that this is a rather obscure and dry matter. It is of massive importance to the way in which our democracy shapes and the way in which we tackle the trends towards globalisation and internationalism which tend to dominate more and more aspects of everybody's lives at all levels.
There are two groups of reasons why we should pay close attention to the report, its recommendations and what we can do to reinforce them. The first is the obvious point which the report makes; that is, that the Government recognise that accountability and responsibility for actions taken under the Second and Third Pillar regime—security and foreign affairs and justice and home affairs—rests in the national parliaments. Paragraph 5 of the report makes clear that the European Parliament has a very limited say, not

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really amounting to accountability and influence over policy, in the way we believe that it should work. That is no fault of the European Parliament. They were given only very small additional powers under the Amsterdam Treaty. However, this is not a matter where the European Parliament can play much of a role.
When we come to the various different aspects of the new international role developing we shall find that the European Parliament's role in other areas is extremely limited. I do not share the over-optimistic view of some enthusiasts who propound "the third way" and so forth, and that the European Parliament is somehow a model for the future, neither a world government on the one hand nor a national government on the other. I believe that is completely wrong and that the pattern will not be so linear. The pattern of accountability in our democracies will develop in rather different ways. That is a matter to which we must pay acute attention because accountability rests here in the Houses of Parliament, and we must make it work.
The second reason why I believe this is so important is that it is not just a transitional phase. There are some who believe that the Second and Third Pillar are just temporary waiting rooms before the whole area of activities covered, particularly in the Third Pillar, collapses into the community proper and the whole thing becomes "communitised".
The view that this is just part of the road towards communitisation held back by one or two sensitive souls who do not want to go the whole way to supra-nationalism is very strong indeed. One hears that view put forward in a number of quarters. Indeed, it could be argued that some issues have already been transferred, as the noble Lord, Lord Wallace of Saltaire, reminded us, from the Third Pillar into the full community system, and even one or two issues from the Second Pillar. Some quite considerable and sensitive issues, including those of visas and refugees, have gone into the community system.
It could therefore be reasoned that this is all part of a pattern and that we need not waste too much time on accountability over the matters that remain in the Third Pillar—it is all hurrying along the railway tracks to something different. But that again is a completely wrong understanding of present and future trends. It is a linear projection which once again will not be sustained by events.
I suspect that the future will not be a more supranational or communitised pattern in dealing with these sensitive affairs. They go to the heart of national democratic legitimacy and the world—particularly democracies—will seek ways of reconciling the desire for retained national accountability and keeping the thread of control all the way from the voter up through the national institutions to these activities. They will be reluctant to surrender them to some higher authority governed by some higher model like the European Parliament. The pattern will be much more in the direction of what some American commentators are now calling "transgovernmentalism"—that is a little more than intergovernmentalism; it is a whole arrangement of networks between states dealing with a vast variety
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of sensitive issues while retaining the elements of national accountability. This is part of that scene. This is not just intergovernmentalism; it is transgovernmentalism and we must make it work. If your Lordships' House is to be reformed, as we are told daily that it is, then it may be that in that new pattern of reform your Lordships' House will play an even more decisive and effective part than it does already. It will presumably be more assertive—for various reasons—than it is already and therefore there may be opportunities for building a still more effective system of calling to account transgovernmental activities.
In another place I had the privilege of working on the committee which gave a great deal of thought over several years to the questions of scrutiny generally, calling to account the activities of the Council of Ministers and, after Maastricht, scrutiny over and the parliamentary input into the policies and proposals which circulated in the Second and Third Pillar areas. It was not a scrutiny committee; it was a foreign affairs committee of the other place. Nevertheless, the matter worried us a good deal and we gave it a great deal of thought.
To give a shorthand conclusion, on which I shall expand in a moment, scrutiny is not enough. The concepts of scrutiny exercised properly and effectively by other committees of both Houses were, and are, not enough to exercise accountability over this area, which is growing, of transgovernmental activity. We felt that it would indeed grow. We believed strongly that it is a vastly expanding area, particularly when we deal with the justice element—the juridical affairs. In that regard we are surveying a world in which the old, clearly defined boundaries of what was a juridical concern in which a national government could exercise some kind of direct accountability and control are being blurred. The simplicities of a world of nation states and activities confined within the territorial limits of those states have gone.
It is not simply a question of facing the fact that there will be constant pressures from centralising forces in other parts of Europe—in Brussels and in other parts of the Commission, despite subsidiarity—and reasonable and rational arguments put forward, which will be hard to refute, for more centralisation, maybe communitisation, of these affairs; it is also that the whole concept of juridical space is changing and being eroded. That makes it more difficult to devise the right and effective means of calling to account what is going on in those areas.
One may ask what sort of things I am talking about. But one only has to think about the globalisation of capital markets and the moves of vast blocks of capital around the world at record speed being involved in all sorts of new problems of regulation far outside the European framework to see that the enforcement of regulation and the whole assessment, control and proper enforcement of laws and rules governing it will require something that goes beyond the traditional nation state limits.
The same applies to information. But one has only to think for a moment of the Internet and the growing difficulty of various national administrations to control

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movement—whether of trade or of information, some of it poisonous—across the Internet. There is also the sensitive area of immigration where at this moment many people within the European Union take the view that enormous difficulties are arising because the laws of the Italian states on immigration are calling the shots on the entire movement of immigrants inside the whole European Community. The question is, if legislators in different countries want to exert some kind of control over their immigration laws, how do they get a grip on Italian immigration laws which are the ones which decide who gets into their countries?
It is therefore an area which is becoming much more complicated and difficult to police and control. The report comes to grips with some, if not all, of the needs for moving forward extremely effectively. First, as my noble friend Lord Kingsland said, it is a question of the right documents and the right time; early depositing of the right documents. I agree with the implication of the report. In his evidence Professor Birkinshaw supported the fact that it is not just a question of looking at documents which may turn into primary legislation or even looking at documents which may turn into secondary legislation; it is also a question of having an oversight of the continuing stream of papers, memoranda, even ideas and perhaps thinking aloud by national government departments—I will come to a broader dimension in a moment—which may be about to operate in this area with results which will emerge in the Council of Ministers and be turned into policies and measures of various kinds.
So, early deposit of the right documents is also a conclusion to which we came in another place. Secondly, we need an early "inkling"—to use a non-technical word—of what the Government are thinking; in other words, moving upstream from the point where documents start appearing; having a committee which can converse with Ministers and the authorities about ideas that may take shape and move suddenly from being mere ideas into being legislative instruments.
Thirdly—the report rightly refers to this—there is a need again to have an inkling of what other governments are thinking. As the report rightly indicates, this nation may find itself involved rather suddenly in a whole process of law-making and regulation-making, the provenance of which lies in the ideas of other governments way back. Schengen may be a good example of that, though there may be many others as well.
Fourthly—recommendation 22 of this excellent report—it will need legislatures; that is, first and second chambers of the member state countries of the European Union (I repeat, this is not just a European Union question) and other countries to co-operate closely with each other in relation to their experiences and to learn what is coming before their own governments. This may tell them what is on the table. To some extent that is going on. Judges co-operate; courts exchange experience on various judgments on an international level right outside the normal official purview. That is transgovernmentalism; it is a pattern of co-operation
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between states which does not involve the official government. That is already taking place and is creating an international pattern in these areas.
I close on the fact that the fashionable view exists that nation states are fading away. That is totally erroneous. They are forming new roles. The state is changing its shape rapidly. But when it comes to global problems, it is the state that will be harnessed to their solution rather than any fancy new world level or supranational level organisations.
It is not just the state but also the non-executive parts of the state (of which the legislatures are a good example). We have a role to play in this new interface. There are also—and this has been mentioned by other noble Lords—the non-governmental agencies which are co-operating with each other with increasing intensity and creating a network world as against the old pattern of hierarchies of governments and officialdom. If one wants examples, the world's regulation of banking has been influenced most in the last two years by the Basle Committee, which is a group of voluntary nationals and senior bankers, rather than by the international monetary institutions.
As I have said, it is judicial co-operation between national judiciaries rather than a world court or even (dare I say it?) the European Court of Justice, which is setting the pace in shaping an international pattern of jurisdiction to oversee an increasingly internationalised world.
I believe that the new global order will be held to account not by the supernational parliaments or international courts, but by national legislatures, and that is rightly so because that, and nothing more than that, is what democrats and citizens will tolerate. We have to find the best way of doing this and this report makes a massive and practical contribution to that goal. It does not achieve everything but it takes us a long way forward and I repeat my congratulations to my noble friend Lord Kingsland and his colleagues.
5.11 p.m.
Baroness Ludford: My Lords, I share the congratulations due to the noble Lord, Lord Kingsland, and his committee. I am pleased to follow the noble Lord, Lord Howell of Guildford, whose remarks I found most interesting and I agreed with almost all of what he said. There is a huge contrast between what is for the most part the necessarily somewhat dry procedural focus of this debate and the huge significance of the subject matter because this topic takes us to the heart of the construction of the citizens' Europe, a term I always prefer to "people's Europe", not only in the content (which affects citizens' security and civil liberties) but also in the way that law is made, the degree of accountability, and the right of citizens to participate either directly or through their parliament in making the laws which will apply to them.
I was interested in the remarks of the noble Lord, Lord Howell, about the respective roles of national governments and parliaments and the European Parliament. I take the view (not that I necessarily have any bias between the European level and

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intergovernmentalism) that the intergovernmental method always throws up flaws in accountability. It is much more difficult for 15 national parliaments to keep track of a European executive, but the key is to have a partnership between the national parliaments and the European Parliament. The noble Lord, Lord Howell, is right: not everything will be gobbled up at Community level. Those areas which remain areas of national co-operation must go on increasing the techniques and the depth of bringing governments to account.
As a non-member of the European Select Committee, I very much echo the tribute that Justice paid to the fact that the House of Lords European Select Committee reports are widely respected for their expert attention to legal and procedural implications of Third Pillar proposals. I do not like this House being too incestuous but, as I am not a member of the committee and I am quoting an outside organisation, I think I can draw attention to that.
I also agree with the noble Lord, Lord Howell, on the need to retain such expertise in a reformed second Chamber. Scrutiny of European legislation is very much a function that must be retained and, as I have said before in this House, I know from my time in the European Commission that House of Lords Select Committee reports do carry great weight.
Lord Kingsland drew attention to the fact that the committee was making its report at the time that the Amsterdam Treaty was being finalised and the committee took account of that to some extent. Incidentally, I am not entirely sure why it has taken 18 months to arrange this debate. Perhaps I should have asked that before the debate started, but it is a pity that such a long time has elapsed.
The Amsterdam Treaty changes were considerable in relation to the Third Pillar, partly taking matters out of the Third Pillar and into Community competence in the area of freedom, security and justice. I regret that the UK opted out. I hope that in time our Government will see the advantages of some inclusion. The Amsterdam Treaty strengthened the general principles and objectives of the treaty on European Union in regard to citizens' rights, fundamental human rights, measures against discrimination, and on openness and transparency. They gave a role to the European Court of Justice in relation to the Third Pillar, although regrettably not for citizens to have a direct right of access to the European Court of Justice, and the formal right of the European Parliament to be consulted on Third Pillar matters as well as the protocol on the role of national parliaments. All this was a considerable advance in the Amsterdam Treaty and we look forward to the treaty coming into force.
In relation to openness I did note the remark by Adrian Fortescue of the Commission that in the future, as more legislation is likely to be initiated by the Commission rather than by member states or by the Council and, as the Commission's instincts were more for openness and transparency than were those of the Council, it was more likely that documents would be put in the public domain. I thought that introduced a nice note of competition perhaps in the light of events
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of this week where the Commission's record on openness and transparency was put under scrutiny by the European Parliament.
Lord Tordoff: My Lords, I trust that the noble Baroness will forgive my interruption. I have to say that, although the Commission comes in for a lot of stick, from my experience it has in the past been much more open and transparent in dealing with First Pillar matters than the Council has been until recent years. That is improving, as this report indicates, and as the noble Lord, Lord Kingsland, suggested, but I think it is not unfair to say that the Commission has been rather better in terms of transparency than the Council.
Baroness Ludford: My Lords, I thank the noble Lord, Lord Tordoff, for that intervention. As a former official of the European Commission I did not like to be seen congratulating the commission, but I think it is true that, because the Commission is often overstretched, as has been focused on this afternoon, it needs external input and information and so it is rather keen to let people have information documents so that they can get comments and assistance.
The report we are looking at this afternoon brings up two interrelated issues. One is parliamentary scrutiny and the other is secrecy. What the report emphasises is that early and thorough parliamentary scrutiny should be regarded by government as a benefit, not a burden. It is likely to lead to better legislation, and will probably save time, energy and possibly expense later on. I understand from the remarks made by noble Lords that the current Home Secretary and his staff at the Home Office may by now share this view rather more than they did in the past, and that is all to the good. Certainly the report on the Schengen acquis that we debated in November contained correspondence on differences of opinion as recently as last February, if my memory is correct, over whether the Home Office had interpreted correctly the criteria on making documents available.
Today's report shows a gap in the past between promises and practice which needs to be rectified; for example, adding a new unilateral criterion from the Home Office side such as whether the text had to be reasonably close to the final version. We look forward to that reticence being removed. The introduction that we look forward to in the Amsterdam Treaty of a formal scrutiny reserve and a minimum six week period for scrutiny is welcome, though I must confess that I am unclear whether this applies to member states' proposals as well as to those from the Commission and whether it applies to all third party matters. Perhaps the Minister will be able to enlighten me either today or at a later date.
I turn now to secrecy. It is vital that any definition of "confidentiality" should be interpreted narrowly. I welcome new Article 191 A in the Amsterdam Treaty (I believe it is now 255) which confers on citizens a right of access to European Parliament, European Commission and European Council documents. Rules and limits on this right of access are to be drawn up by the Council and the European Parliament under the

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co-decision procedure. I hope that those limits will be narrowly drawn to meet real operational and security requirements. The public interest should generally be defined as openness and not as secrecy. To me, that is the definition of the public interest.
I am wary of the declaration accompanying Article 191A that allows one member state to block the communication of a document in the possession of the Council or the Commission if the document originated from that member state. Perhaps the Minister could also indicate how that is likely to work and tell the House whether there will be any limits on that right of veto. But those rights of access lie in the future. At present, we have a wholly unsatisfactory situation where there are tiers of inclusion with the public at the bottom. At the top are governments and their civil servants, some European Union civil servants, followed by national parliaments and the European Parliament, pressure groups and then the public.
According to Justice, the Home Office never distributed Third Pillar texts or explanatory notes and claims to be constrained by the 1993 Council decision. It was left to your Lordships' committee to decide whether to let the advisory groups have the document in question. It surely cannot be right to put the onus unfairly on Parliament to be a gatekeeper. It seems to me that it draws Parliament into a web of "clubiness" and—dare I use this term?—cronyism which I find rather distasteful. It makes third party access a lottery. A pressure group or a member of the public has to know if the document exists, and then hope that the committee is carrying out an inquiry on it, before access to the document can be gained. I do not see how that can be acceptable. Therefore, I hope that the rules drawn up in future by the Council and the European Parliament will end that culture of secrecy and put access to documents on a true basis of citizenship rights in the spirit of a European freedom of information charter.
I have one further comment and question about the publication of Third Pillar initiatives in the Official Journal. The Amsterdam Treaty says that this will happen, but I am rather unclear as to how it relates to the protocol on national parliaments, where, as I said, it refers only to Commission proposals being sent out to national parliaments. In other words, will there be publication of all Third Pillar proposals, whether they come from the Commission, the Council or member states, bearing in mind the fact that national parliaments only get sent those from the Commission? That would mean that the public would get more than the national parliaments.
In this transitional phase, between where we are now and the Amsterdam Treaty, it seems to me that there is another complicating factor; namely, that last March, under the UK presidency, Justice and the Home Affairs Council declared themselves in favour of making available to the public proposals in the field of justice and home affairs at the same time as these were made available to the European Parliament. There was no mention of national parliaments in those presidency conclusions. I wonder whether national parliaments at present in this transitional phase will also get those proposals.
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I turn now to my conclusions. It is possible that I am confusing your Lordships as much as I am confusing myself, but I believe that we have a number of anomalies which need to be ironed out. It is one of my conclusions that we need strong co-operation between national parliaments and the European Parliament so that whatever rights apply are aligned. There is one further anomaly that I have noticed; namely, that national parliaments will be consulted on common positions under the Third Pillar where the European Parliament is not. That means that there is a whole network of people with different information.
I began by saying that I was concerned about the rights of all citizens, but I also mean all residents. I say that because we have non-citizen residents in this country—third country nationals—as in other member states. In terms of black and Asian ethnic minority citizens, we have anecdotal evidence at least (which was highlighted in the evidence to the report on the Schengen acquis) of discriminatory behaviour experienced by ethnic minority Britons travelling in the European Union. There are also the rights of third country nationals with rights of residence in this country but who are not citizens of the European Union, which by analogy are less.
I hope that the provision in the Amsterdam Treaty about combating discrimination on the grounds of race will be exploited by the Council in order to increase the security of black and Asian citizens and third country nationals who are ethnic minorities so that we end the situation of two or three classes of people in the European Union.
I conclude by saying that, for the third time in a debate on European matters, I am to be followed by the noble Lord, Lord Beloff. On the two previous occasions I believe that the noble Lord expressed himself in considerable disagreement with what I had said. However, perhaps this will be third time lucky.
5.25 p.m.
Lord Beloff: My Lords, I shall not disappoint the noble Baroness. It is not so much a matter of disagreement; indeed, it is the fact that she starts from a quite different position from mine. My sole interest in these matters is how Britain is governed and how its citizens benefit from the form of government that they enjoy. The noble Baroness's interest is based on the assumption that there are persons called "Europeans" who live at the grass roots and are creating a new world. I cannot go into that because, as I said, it is very remote from my own interests.
I read the report now before the House with great interest. I congratulate my noble friend Lord Kingsland and his colleagues on making clear, with some difficulty to a limited mind, what the problems are in relation to this particular question of Parliament and the so-called Third Pillar. It is perhaps typical of your Lordships' House that this report has had to wait for a year or more to be considered and that a good deal has happened in the interim; and, indeed, may happen quite shortly if and when the Amsterdam Treaty comes into force. I must

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say that it is a little blurred. I believe that a general member of the public might find even the notion of three pillars a little difficult to assimilate.
I have always thought—and think so now more than ever—that it was a great and obvious mistake of this country to agree to any pillar, any set of measures, relating to justice and the law. We have in this country, along only with the Republic of Ireland, a system of common law that we share with the United States and certain countries in the Commonwealth based on an entirely different set of principles from those governing the majority of Continental European legal systems which are in their origin at least Napoleonic, if not earlier. I cannot see how they can be married effectively and see no reason why they should be. Why should there be an approximation of laws and procedures in courts which is not found necessary for the transaction of normal human relations with other countries not in the European Union, though many of them are, of course, in Europe geographically speaking? Therefore, it is extremely difficult to visualise what advantage the citizens of this country can gain from that particular approach.
The most interesting and novel part of the report was the description as to how the conventions, or agreements, which are to eventuate in some form of primary or secondary legislation are arrived at. On reading the description of the five levels at which matters are considered, it seemed to me a matter that is difficult to assimilate for those who are brought up in the British tradition of government, where there may be consultations, a White Paper and a legal text. One knows who is responsible for it. One can ask questions and argue in this House and another place about its validity, and it is a matter that the public can understand. But when one reads that texts are produced only at a late stage, following an agreement on principle without a text, one begins to think—if I may refer to the interruption to our debate—that there is a culture in Brussels more peculiar than the culture that apparently exists in the secure accommodation unit at Ashworth Hospital. There are ways of doing things that suit some people and may not suit others.
I wish to put an important point to the Minister. It must have cost a great deal of Civil Service time—particularly that of members of his own department, but also in the other departments involved—to engage in these discussions. If those energies had been available to the Minister's department for dealing with internal problems, which he has admitted exist in relation to, for example, asylum seeking or immigration, would not the department have been in a much better position? In other words, should not the manpower costs figure in our consideration of European affairs as much as the financial costs, which look like being brought rudely to our attention by the German Government during their presidency?
It is therefore difficult to see that much can be done by Parliament in these circumstances. It is difficult to see how the greater, or earlier, circulation of documents on which the report lays great emphasis will have an input into a system of this kind. If the Government are
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prepared before embarking on any of these endeavours to seek advice from Members of this House or another place, through the European Committee, for instance, it is always open to them to do so. However, we should be asking a lot of our colleagues on the European Committees—it is many years since I have served on one; the Whips have seen to that—to take responsibility for, as it were, prodding the Government from time to time.
It looks as though by far the most important part of a common policy is that referred to by the noble Lord, Lord Howell of Guildford, with whose remarks I find myself almost wholly in agreement. I refer to the problem of the movement of people, whether seeking refuge for asylum or as part of what looks like becoming increasingly a movement of peoples motivated by the perfectly legitimate wish to better their economic position. The Minister will correct me if I am wrong, but it seems that under the Amsterdam Treaty that matter will now be dealt with at Community level. We come to the very familiar problems of how one handles Community legislation and how the opinions of Parliament are made manifest towards it.
So we are in a situation in which one could easily take the points made by the witnesses to the committee and others and say: yes, of course it would be nice if one had the documents in time, and to have an opportunity to think about them. However, I suspect that that is secondary to the real question of how we are to tackle the serious problems that are before us.
It was conceivable that the answer would not lie with national parliaments but with a European parliament of some kind. It seems cruel to talk about the European Parliament this week, when it is once again in the process of showing itself up as a toothless dragon. If we still had, as was the case, a European Parliament representative of the national parliaments, not of an apathetic and uninterested electorate, perhaps there would have been some scope for advance along those lines. We do not have that, and we are unlikely to return to it. All one can say is that when one looks at Europe, defined as the Union, and when one thinks of the opportunities that it has thrown away—particularly in regard to embracing, as looks increasingly improbable, other countries in Europe outside the original core—one can only be sad. And sadness is what comes to my mind whenever I think about the European Union.
5.37 p.m.
Lord Inglewood: My Lords, I begin by reiterating what a number of other speakers have said regarding the importance of the topic covered by the report. I am a member of Sub-Committee F, but joined the committee only after my noble friend relinquished his position there, although I served under his leadership in the Conservative Group in the European Parliament. It is a position to which I hope to return. (I daresay that will horrify my noble friend Lord Beloff.) The "apathetic electorate" have no part in having placed me here and are about to turf me out, so they may feel inclined to the idea that I may contribute something there.

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The report approached the subjects under consideration, dealt with under the aegis of the European Union and the Third Pillar, in terms of a series of specific issues. I wish to stand back and view the scrutiny process as a whole in the wider political context of the European Union system of international relations here in Western Europe, and in a manner somewhat similar to that adopted by my noble friend Lord Howell.
For reasons that were not planned, a great deal of my political life has involved the consideration of matters relating to the Community and subsequently the European Union, and from a number of different perspectives. Over that time, I have become convinced of a number of relatively simple points. The first is that science and technology, telecommunications and improved transport mean that, increasingly, countries will have to work together over a wide range of topics. We live in a world where at present there is effectively a seamless transition in a number of areas between what traditionally might have been called domestic political matters and, in contrast, what were traditionally known as foreign affairs. In practice, the traditional demarcation between them—indeed, the distinction between them—has more or less ceased to exist. I believe that the vast majority of our citizens accept this and recognise that we have to work together to provide a coherent legal framework across more than one national jurisdiction. As part of this, I believe it is recognised that a satisfactory process for taking political decisions is needed. This, in turn, inevitably involves sensible give and take. What is equally clear is that a large number of people are, to a greater or lesser extent, unhappy about the systems which are in place for doing this. I suspect that the single greatest reason for this unfortunate state of affairs is that it is widely felt that there is inadequate democratic control and scrutiny of what is going on and that it is not backed up by consistent and even-handed enforcement in the areas where these joint decisions are taken.
The European Union system clearly involves two different but parallel ways of doing business. First, the old Community system has developed, involving significant Commission and European parliamentary involvement. More recently we have seen the development of an intergovernmental system which, after Amsterdam, will have some European parliamentary involvement and which in practice does have some peripheral Commission involvement.
It is important that we distinguish this way of doing business from traditional, classical diplomatic intergovernmentalism, from which it is obviously derived and with which it shares certain characteristics. I believe that this is a new development and should be seen as such. It is distinct from the way in which sovereign states did business together traditionally.
In the case of the Community system, even after the Amsterdam provisions come on to the statute book, and certainly in the case of European Union intergovernmentalism, the member state governments are, in my view, the single most important element in the decision-making process. As has been pointed out
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by my noble friends Lord Kingsland and Lord Howell, it follows that the greatest instruments of scrutiny and accountability are the national parliaments.
If one looks at the theoretical basis of the way decisions are taken in the European Union, there is clearly a strong linkage between the Council of Ministers and their equivalents in the Second and Third Pillars, and national parliaments. One of the big difficulties, however, is the perception that there is a lack of success on their parts in achieving adequately comprehensive scrutiny and accountability. This in turn is at the root of much of the major concern which there is in this country and in other countries in the Union regarding the way in which the European Union system operates. Whether or not one is a supporter of a particular way of doing business, it is nonetheless damaging for democracy in general and for individual countries if there is an erosion of confidence in the way in which government is carried on.
In this country the natural focus for political debate is set in Parliament here in Westminster and, in particular, in the Chamber of the other place. If one looks at the way in which European matters are debated in Parliament, traditionally there is relatively regular debate regarding high profile political events and issues as they occur. I think, for example, of debates about the conclusions of a European Council. I am of the view, however, that, because the "devil lies in the detail", it is not these to which much of the public's concern is addressed. For example, if the European Union decides that it should have an asylum policy between its member states, that is clearly a matter of constitutional significance. As far as many citizens of these countries are concerned, however, at that point it is essentially an abstraction. What matters is the detail of the policy itself and the way it affects real people in a tangible way.
If I might be allowed to use United Kingdom parliamentary terms, I believe we are perceived as having plenty of second reading debates but hardly any committee and report stages. Indeed I noticed, as my noble friend Lord Beloff and the noble Baroness, Lady Ludford, noticed, that the report we are discussing this afternoon was ordered to be printed on 31st July 1997. That is a date in the calendar which is etched in my mind because it is my birthday, and I can assure your Lordships that I feel a great deal older now than I did then.
If this assessment is correct, quite clearly it has a whole range of serious implications, which I have neither the time nor the expertise to go into now. I would like therefore to turn to the Kingsland report itself and to try to amplify it, if I can, by some of my own experiences in Sub-Committee F.
In terms of transparency, accountability and basic democratic answerability there are a series of identified weaknesses in the way in which the Third Pillar operates. It is a matter of satisfaction—and I say this not in a grudging way—that the Government have responded positively to a number of the points contained in that report. When there has been political debate about treaty changes in the past, governments of both political parties have emphasised the qualitative political

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differences between items which are dealt with under the Community system and those which are dealt with under the Second and Third Pillars. They have expressed their view that these distinctions justify the entirely different way in which they are dealt with under the auspices of the Union. I am certainly not one of those who decry European Union intergovernmentalism. On the contrary, I am very much unconvinced by those who argue that the Community system, with its developed role for the Commission and the European Parliament, is appropriate for all business taken at European Union level. On the other hand, I have to admit that many of the proponents of intergovernmentalism seem to have the worst of all of the arguments that I have heard canvassed.
I should like to add my support to the very important proposition made by my noble friend Lord Howell about the changing nature of the nation state in the world as it is now developing. It is important to be clear, however, that the European Parliament is not a supranational substitute for national parliaments in watching over European Union business. On the contrary, it is complementary. There is a very considerable degree of community of interest between them. I believe that the scrutiny process in particular would be substantially strengthened if that were more widely recognised on both sides.
In discussing European matters reference is often made to the so-called democratic deficit. There are certainly a number of areas where, by our standards, there do seem to be deficiencies in the way the Union works. One such is focused on the way in which the Council of Ministers meets and the fact that it is held in camera. There are good and fair arguments on both sides, but I hope that I have illustrated by my remarks this afternoon that it is not only in the instruments and the institutions of the Union that one might find ways of achieving the proper scrutiny of matters conducted at a European level. As has already been mentioned, national parliaments have an extraordinarily important part in this process, where we have seen certain developments outlined by the Government and where I believe there is a great need for further expansion in the future as appropriate. Sadly, if one looks across the range of what is currently being dealt with at a European level, it is arguable that the worst deficiencies are to be found in the intergovernmental activities of the Third Pillar.
The noble Lord, Lord Wallace, referred to the incorporation of the Schengen acquis. I have to confess that the word which springs to my mind when considering what has happened is "fiasco". It seems to me that it could be accidental to sign a treaty and for a parliament to introduce the necessary legislation for some agreement where there might have been a misunderstanding about the meaning of the words. But surely it is careless and reflects no credit on anyone involved, ourselves included, that in this instance we appear to have signed up to something in which the words themselves have not been properly identified. There is a salutary lesson to be learnt from that episode.
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It is the nature of the European Union that any business conducted under it and any political debate about it is always under the shadow of the next IGC. We know that before too long there will be a further inter-governmental conference, dealing with matters of enlargement.
I conclude by asking the Minister the following, in the hope that when the Government consider treaty changes in the future they will specifically take into account the need for a thorough scrutiny of matters dealt with at European level by national parliaments. I ask that when they consider those matters they spell out and explain the implications of what is involved, the general constitutional grounds, what the financial implications might be, or how it affects the convenient conduct of government business. They should also specifically take into account how the matters they wish to be dealt with at the European level can be subject to proper parliamentary scrutiny by parliaments in all the member states.
I hope that the Minister will be able to confirm that if and when the Government do that, just as they deal with these other matters, they will be able to spell out in terms to this Chamber and the other place, precisely how they assess those things.
5.51 p.m.
Lord Pearson of Rannoch: My Lords, I have listened to the debate with much interest and mounting apprehension. When one hears the anxieties about justice and home affairs under the Third Pillar which have been expressed by a number of noble Lords who are not exactly noted for their Euro-scepticism, one is perhaps entitled to be fearful of the extent to which those vital areas of our national life are already influenced more than they should be by Brussels.
I intervene briefly to underline a general point about our parliamentary scrutiny of proposed European legislation which has not yet been fully made this evening. The point is that there are large areas, such as all of our industry and commerce which are covered by single market legislation, and such as our environment—there are large areas of our national sovereignty where even the famous scrutiny and reports of your Lordships' House may have little or no effect because, even if the Government agree with your Lordships' findings, they can themselves be outvoted in the Council of Ministers. The proposed takeover directive comes to mind in that respect, as does the droit de suite. The former risks virtually destroying the mergers and acquisitions system in the City of London, and the latter our art market. Aspects of the water directives perhaps come to mind and, of course, our old friend fraud, where the Community has consistently ignored the blandishments of the British Government which have been widely inspired by your Lordships.
Those regrettable situations where we have sold the pass makes this debate and the Minister's reply this evening all the more important. The British Government have not yet ceded our sovereignty over justice and home affairs to the qualified majority vote in Brussels.

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Justice and home affairs are still largely decided by intergovernmental agreement. In other words, we still have the veto.
If the Government therefore follow the recommendations of this excellent report, particularly that in paragraph 59, they will do much to preserve that sovereignty where it belongs, which is here in the British Parliament. I say that because, as other noble Lords mentioned, paragraph 59 recommends that the Government should accept a formal scrutiny reserve in the areas under debate. I think that that still means that the Government would not agree to any proposal under the Third Pillar in the Council unless the scrutiny reserve had been lifted by our parliamentary Select Committees. One might, just in brackets, add that it would be quite a good idea if the same suggestion could be made for the common foreign and security policy. But that is not the object of the debate this evening.
I put it to the Minister that if the Government do not intend to accept that form of constraint, he should come up with some way of guaranteeing that the will of Parliament will be able to prevail over that of the Executive in decisions taken in Brussels under the Third Pillar. I look forward to his reply with much interest.
5.54 p.m.
Lord Lester of Herne Hill: My Lords, this debate has been enriched by well-informed and thoughtful speeches by noble Lords with particular knowledge and experience of European law-making and parliamentary debate and scrutiny: the noble Lord, Lord Kingsland, with his great experience in the European Parliament and here, and my noble friend Lord Wallace of Saltaire, distinguished in the foreign field. There was the noble Lord, Lord Clinton-Davis, a former successful commissioner, the noble Lord, Lord Inglewood, a former official of the European Commission, my noble friend Lady Ludford and the noble Lord, Lord Howell of Guildford, a distinguished parliamentarian. We heard from the eminent editor of the Federalist papers, and former Gladstone Professor, the noble Lord, Lord Beloff, who always adds a great deal to all debates in this House.
We are here on a rainy, windy dark January afternoon and it is difficult, on an occasion like this—as my noble friend Lady Ludford pointed out—to bring an apparently dry subject to life and explain why it is important. Even if it is not read by the rest of the world, this debate will tend to illuminate rather than obscure the main issues.
Perhaps I may say for myself what a pleasure and privilege it has been to serve on a sub-committee chaired by the noble Lord, Lord Kingsland, on a subject of real practical importance to the peoples of this country and Europe. He may not thank me for saying so because it may bring him into disrepute in some sections of his party, but I pay tribute not only to his experience and skill but to the commitment he showed when we were doing our work during a difficult time. In the political climate of the time, which we tend to forget was of a deeply divided government and a soured political atmosphere about Europe, he managed to give us leadership. As a sub-committee, we were not divided
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in any way between Europhiles and Europhobes. We were not divided by political party, we served without any rancour. I believe that the report, to which I contributed only a small part, served Parliament very well.
As has been pointed out, the report was concerned with enhancing parliamentary scrutiny of the way that international treaties are made and their content, under the auspices of the European Union and its institutions. All noble Lords agreed, and it is obvious that there is a need to respond to the democratic deficit, the want of parliamentary control over the executive, whether it is the British Executive or the European executives. It is especially topical for us to debate this now when the Westminster Parliament is devolving, and has devolved, legislative powers down to the Scottish Parliament, down to the Northern Ireland Assembly, and when there is widespread public concern about the proper role of the United Kingdom Parliament in being able to call the United Kingdom Government and the governments of Europe effectively to account.
It is essential to ensure that what governments do on the international plane is effectively scrutinised by the Westminster Parliament and other national parliaments in partnership with one another and in partnership with the European Parliament. It is essential for the executives to be called to account nationally and trans-nationally. The report observed in its introduction that Parliament owes a duty to the public to ensure that Ministers are made fully accountable for their actions in the Council, that matters falling under the Third Pillar can have serious implications for the rights and freedoms of the individual. Parliament must ensure that its procedures for monitoring work under the Third Pillar are effective. I have listened to your Lordships during the debate, and everyone agrees with that basic principle.
There is often a great deal of time-wasting, excessive flattery and self-congratulation in this House. I will not add to it, but I would like to say that it is true that this House and its European Communities Committee, chaired by Lord Tordoff, and the sub-committees, really have been in the vanguard of promoting more effective scrutiny of European Community legislation, as well as British delegated legislation, than any other legislative body across Europe. It is a matter of great satisfaction that what we do is read with admiration right across Europe. I very much hope that, when this House is reformed, those attributes will be properly safeguarded.
It is a most welcome change that the present Government have endorsed the modern democratic principles of transparency, consultation and parliamentary accountability upon which the Kingsland Report is based. In the Labour Party Manifesto, there is an undertaking to overhaul the parliamentary process for scrutinising European legislation. As someone who is not a member of that party, I would say that the Government have done so. They are fulfilling that commitment.
The noble Lord, Lord Beloff, said that he was particularly concerned about how this country is governed. I am sure that he did not mean to say that he

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was not equally concerned that the rest of Europe and the other countries of Europe should also be well governed. He said that he opposed the Third Pillar on justice and home affairs because of some conflict between what he called the Napoleonic justice system and the tried and tested system that we know so well, of common law. I think that he suggested that you could not marry the two together, that it was somehow a question of oil and water.
I disagree. The underlying principles of justice and respect for basic human rights—as the noble Lord, Lord Beloff, knows better than anyone, as he is a distinguished historian of political ideas and thought—spring from British 17th century political thought and from the age of the European enlightenment in the 18th century. It is true that there are major procedural differences between the civil law and common law but, as someone who has had to learn to swim in a different legal environment since I joined the Bar in 1963, I and my colleagues have learned that the two European courts—much attacked by Europhobes—have worked well in partnership with national courts, one dealing with justice under the treaties of the European Communities and the other with human rights. Members of the British legal profession—Scots, English and Northern Irish—with different legal systems, have worked well together. We have worked well together with our colleagues in European countries. I believe that the new generation is well placed to work within European law. Our senior courts have proved at least as competent as any in Europe in interpreting and applying European Community law. If one looks beneath the surface differences between the different legal systems, one finds common principles.
I would also say to the noble Lord, Lord Pearson of Rannoch, that mutual assistance is vital across countries for policing, for countering serious crime and terrorism, and for enforcing criminal and civil justice. National territorial jurisdictions cannot in isolation from each other work successfully. Not only is there a vital need for co-operation and assistance between and among national courts: that need is vital also between and among national governments and between and among national parliaments.
Lord Pearson of Rannoch: My Lords, as the noble Lord was good enough to mention my few remarks, I wonder if he will give way.
I do not think that I indicated otherwise in my remarks. All I would say to the noble Lord is that I do not see why you have to have the absurdity of the European Union to reach that excellent collaboration.
Lord Lester of Herne Hill: My Lords, of course I am one of those who does not regard the European Union as absurd. If one starts from that premise, obviously the conclusions will be vitally different. The point I emphasise is that transnational co-operation within the European Union and beyond is essential in the modern world.
We on these Benches welcome the Government's response to the 29 conclusions and recommendations made in the Kingsland Report. The first Government
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response was in November 1997 to 22 of those conclusions; the second was in November 1998. As I think all noble Lords have said, overall the response given by the new Government has been very positive and satisfactory.
We are delighted that in the Government's initial response the Home Secretary emphasised the Government's commitment to the principle of greater openness. Mr. Straw also said that he wanted to give Parliament the fullest possible opportunity to examine in detail draft European Union legislation on justice and home affairs matters before it was adopted by the Council of Ministers. We greatly welcome this. We are also glad that the Government have agreed to treat all Third Pillar documents as documents depositable for scrutiny. They have given an assurance that exceptions to this rule will be rare. It is enormously encouraging when compared with the ice age that was broken on 1st May two years ago.
It is vastly encouraging to note that the Government have refrained from making distinctions between the various types of documents that will be subject to scrutiny, particularly because Third Pillar documents take several forms—that is, conventions, agreements, joint actions, joint positions, decisions and recommendations. We are pleased that the Government have made a commitment to interpret the exceptions for confidentiality and secrecy narrowly.
We also welcome the Government's commitment to providing a detailed and speedy report on the activities of the Justice and Home Affairs Councils. It will provide Parliament and the public with a very useful way of staying abreast of new developments.
Looking beyond the European Union—and I am very glad to see the noble Lords, Lord Grenfell and Lord Bridges, in their places as I know that both of them are particularly interested in this subject—there is a need for broader parliamentary scrutiny of the treaty-making function. International treaties, with both European Union and non-Union countries, cover a multitude of subjects—from air transport to the environment, from human rights standards to defence obligations—and many have a knock-on effect for our domestic legislation.
I would say to the noble Lord, Lord Pearson of Rannoch, that one cannot change private rights or obligations under our legal and constitutional system except through legislation approved by both Houses of Parliament. I see, therefore, no menace in the Third Pillar or in the treaty-making function provided that that principle is always adhered to, which I believe it is.
While the making of an international treaty is done by the executive under prerogative powers, there has been concern in many countries about democratic accountability. Many countries in the European Union and the Commonwealth have adopted much better procedures than we have for working in partnership with government when they make treaties. Under the European Union we now have a very good system—which is getting better as a result of the response of the present Government—of scrutinising what is being done in public international law by governments under the

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Third Pillar. But we do not yet have a good system for doing the same thing with international treaties and conventions that go beyond the European Union.
I introduced a Private Member's Bill a couple of years ago—the Treaties (Parliamentary Approval) Bill—which the previous Government were kind enough to treat benevolently. As a result, we have an explanatory memorandum procedure under what is called the Ponsonby Rule. But we still have no treaty scrutiny committee in this House or another place. We have explanatory memoranda but that is not good enough. Australia is well ahead. The Australian Senate has a well developed treaty scrutiny committee. I very much hope that the Government will build on the work of their predecessors and support the idea of a treaty scrutiny committee that can work in the wider field.
In short, we welcome the Government's response both to this report and to that of the Select Committee on Modernisation of the House of Commons. Further work needs to be done on how best to tailor the scrutiny procedures of this House to those of another place to ensure the effective co-ordination of scrutiny activities and greater accountability in treaty-making activity both within and beyond the European Union. But without reservation we welcome the general approach and commitment of the Government to enhancing parliamentary scrutiny.
6.11 p.m.
Viscount Bridgeman: My Lords, I too congratulate my noble friend Lord Kingsland and the members of his committee on this excellent report and thank all noble Lords who have taken part in the debate today. We on these Benches give a very warm welcome to the report with its emphasis on transparency. As the noble Lord, Lord Lester, rightfully pointed out, the United Kingdom gives as great a scrutiny to European Union legislation as any other member with its Select Committee and six sub-committees. Having served on Sub-Committee C I am aware from witnesses of the respect in which the reports of the Select Committee are held within the European Union. The noble Baroness, Lady Ludford, has also made reference to this.
In its consideration of Third Pillar matters Sub-Committee F is particularly close to the legislative process of the Union. It is all the more important that it is afforded every facility to do its job as effectively as possible. Predictably, we have heard a wide spectrum of views on the state and future of the European Union. But the recommendations of this committee are very largely of housekeeping. It is pleasing to note the remarks by several speakers about the co-operation of the Home Secretary and his department, although I do not necessarily agree with the geological interpretation of the events of 1st May put forward by the noble Lord, Lord Lester of Herne Hill. However, we look forward to hearing from the Minister further confirmation of the progress of the assistance that is being received.
The recommendations include a suggestion that the Government should provide explanatory notes to the committee at the early stages of legislation. My noble friend Lord Howell has taken this a little further and
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suggested that it is very much a matter of the Government taking the committee into their confidence both as to their intentions and, just as importantly, the intentions of other member states. Another recommendation is that it is most important that the committee should be kept informed of subsequent developments in the drafting of legislation. Several noble Lords have referred to the five levels and the complications that can arise with presidential and Council interference at that stage. The provision of agendas in advance of meetings of the Justice and Home Affairs Council and detailed reports of those meetings afterwards are all very welcome in assisting the committee in its work.
We appreciate that there are aspects to do with such matters as policing that must remain confidential but, as paragraph 76 of the report of the committee makes clear, exceptions for confidentiality and secrecy must be strictly interpreted. In the light of that, we urge the Government to bear in mind continually the need for a presumption in favour of transparency. We very much welcome the proposal for an ombudsman and the valuable role to be played by non-governmental organisations.
Therefore, we are very much in agreement with the recommendations of the committee for an even more effective role for itself and hence for Parliament. I again congratulate my noble friend Lord Kingsland and his committee.
6.15 p.m.
Lord Williams of Mostyn: My Lords, this is a masterly report and I hope that the Government have responded fully and generously, as most noble Lords have indicated. I congratulate both chairmen of the committee that has produced this excellent report. I hope that we have demonstrated fully by our response that we believe in strong and effective parliamentary scrutiny which is essential for the proper conduct of government business. This is true of all government business, European as well as domestic matters. I am grateful for the tributes to the Home Secretary. I am just as grateful, if not more grateful, for the tribute paid to the work of the officials which is laborious, unsung and generally done outside the public eye.
The noble Lord, Lord Beloff, I believe partly to tease me, asked whether the officials would have been better occupied attending to domestic matters. It is very rarely that I can tease the noble Lord back by suggesting that that is a shade over-simplistic in these days. As regards the appropriate conduct of our affairs perhaps I may cite a few examples: asylum; immigration; law and order; international crime; money-laundering; and drug dealing. All of those matters must be dealt with in the wider European context. We would fail hopelessly in our domestic duties if we did not encourage and empower officials to deal with their European colleagues. I shall say no more about the noble Lord's point.
I can fairly say that no major point in the report has not been favourably accepted by the Government. As the noble Lord, Lord Lester of Herne Hill, points out,

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very full responses have been made by the Home Secretary to deal with most of the questions that have been posed by noble Lords: one in November 1997 with an undertaking to reconsider and take matters further and a final letter in November 1998. I do not believe anyone can suggest that any proposition put forward by the committee in its report has not been carefully attended to. As the noble Lord, Lord Lester, said—I am happy to endorse it—virtually every proposition has been agreed to. Those that have not are largely ones not within our present gift.
We have a very good system in your Lordships' House—it is probably the best—of scrutinising European business, but I agree that historically the system has not always kept up with new demands and changing circumstances, as the noble Lords, Lord Inglewood and Lord Howell pointed out. We must be constantly alert to the fact that we are dealing with shifting circumstances and therefore must alter our procedures accordingly. That indicates the timeliness of this report and the Government's response to it. It was our manifesto pledge to overhaul the system of parliamentary scrutiny of European business, and I am grateful for the comment of the noble Lord, Lord Lester, that we have delivered on that. The report makes a number of very important recommendations, virtually all of which we have accepted. Many relate to the scrutiny of the Third Pillar. Those were implemented in 1997 and we believe that they are working well. Some recommendations had implications for business outside the Third Pillar, which is why our response was dual: one in 1997 and one in November 1998.
There has been debate in another place. Relevant changes to the system were put in place at the end of the previous parliamentary Session. I shall deal with a few of them in a moment or two. An important one is that the European Scrutiny Committee in another place (recently renamed) now has the remit and work of scrutinising all European business including Third Pillar business. I concede that this was essential to remove the anomaly that the elected Chamber had no role in scrutinising the Second or Third Pillars. A scrutiny reserve resolution now applies to all three pillars of European business. Subject to very narrowly defined exceptions, that prevents Ministers from agreeing in Council to any measure on which parliamentary scrutiny has not been completed. That gives the parliamentary scrutiny body an extremely important power.
The noble Lord, Lord Pearson of Rannoch, asked, with particular reference to paragraph 59, what was the Government's response. That is set out fully in Jack Straw's letter of November 1998, but perhaps I may quote from it to assist your Lordships. It states:
"The Government agrees that it is essential for parliament to play an effective role in scrutinising the Third Pillar. The Government welcomes adoption by the House of Commons of the proposal of the Modernisation Committee to amend the scrutiny reserve resolution so that it extends to the Third Pillar".
I believe that the following words are those which the noble Lord wishes to hear:
"The amended resolution now prevents the Government from agreeing any Third Pillar proposal until scrutiny has been completed. The only exceptions to this rule would be those specified within the
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resolution itself; that is, that the Minister considers that the proposal in question is confidential, routine, trivial or the same as a proposal on which scrutiny has already been completed or for other special reasons".
I am happy to give that reassurance, which I hope is helpful to the noble Lord.
The scrutiny reserve resolution—and this topic has been raised by several noble Lords—now applies to all three pillars. Therefore, we cannot agree in council with any measure until scrutiny has been completed.
An improved system of reporting to Parliament on the preparations for and outcomes of justice and home affairs Councils is now in place. Those are extremely important changes, some of them quite fundamental. I am happy to reiterate that the Government have excellent relations with the committee and that we intend to maintain and build upon them. I entirely agree that one achieves a better product, to use the jargon, if one fully co-operates and listens to other views. Obviously the obtaining of the views of others depends on the provision of information to them at as early a stage as possible and in as full a manner as possible.
We wish to continue our excellent relations. We are extremely grateful for the work that the committee has already done. The noble Lord, Lord Kingsland, invited me to set my reply in the context of the Amsterdam Treaty. I am happy to do that. We welcome unreservedly the treaty's provisions on openness. We look forward to ratification by all member states. At the moment of course, in the nature of things, we cannot unilaterally implement the provisions but we are extremely keen on two aspects: to encourage openness among some of our European partners who have not perhaps the same two-year tradition of openness that we have; and I undertake that in so far as is sensibly possible, we shall keep the committee and/or your Lordships' House fully informed on progress there.
The noble Lord, Lord Kingsland, asked further whether or not all proposals that were ever tabled would be put to Sub-Committee F, including proposals relating to secondary legislation. Yes, we undertook to supply all proposals to the sub-committee in our reply to it. I know that the noble Lord knew that and simply wished me to inform your Lordships of it.
The noble Lord asked also about agendas. We are committed to sending agendas of JHA Councils in advance. There is a difficulty—and this is not a fudge—in sending the agendas of supporting committees. There are so many of them; they meet so regularly; I could not undertake to be able to provide them all in time for proper scrutiny.
The noble Lord, Lord Wallace of Saltaire, asked about the agenda for the Tampere Heads of Government Council in Finland in October. It is early days. We do not yet know what is being proposed. We intend to contribute fully to the discussions leading to decisions about the agenda, which should be useful. However, I cannot give any further detail at this stage. Your Lordships may not find that surprising as October is a little way away.
My noble friend Lord Clinton-Davis raised questions about the European Parliament possibly supporting the domestic Parliament here, helping in its scrutiny role.

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The report recommended that national parliaments and the European Parliament should explore together the possibilities for mutual support. That is not a matter for the Government to take further. If there are any particular views about co-operation between the domestic legislature here and the European Parliament, we should look favourably on them. In an endeavour to be helpful, I should say that the Scrutiny Committee takes evidence from whatever source it pleases.
My noble friend Lord Clinton-Davis asked also for guidelines about deposited material. We have amended Standing Order No. 143 in another place and that therefore, applying to your Lordships' House with similar effect, gives that clear definition.
The question was raised also by my noble friend Lord Clinton-Davis about the minimum period for parliamentary scrutiny. The Treaty of Amsterdam provides that. The scrutiny reserve resolution gives the Scrutiny Committee a good deal of power.
The noble Baroness, Lady Ludford, referred to paragraph 115 of the Select Committee's report. I believe that it is conclusion 29 but it is not identified as such. However, I understand the point which she made. The response to that is found in Jack Straw's letter of November 1997:
"The Government agrees with the view expressed by the Committee in paragraph 115 … that it is important for there to be an opportunity for early Parliamentary scrutiny of proposals under the new Title. The Government's view is, however, that the United Kingdom is unlikely to wish to participate in the majority of such proposals. It accordingly suggests a modified procedure, whereby all proposals under the new Title would be deposited, but a full Explanatory Memorandum would be produced only in the following circumstances: … in the case where, at deposit or afterwards, the Government decided to participate in the proposals; or … where the Committee considered it necessary to request an Explanatory Memorandum, such requests to be made within one month of deposit of the proposal".
The dual proposals provide the opportunity for the Government to take the initiative or, if the Government do not take the initiative of offering an explanatory memorandum, the committee would be able to require it.
The noble Baroness raised a further question which related to the minimum period for parliamentary scrutiny and whether or not that would apply to proposals by member states, the Commission or third parties. We believe that the minimum period should apply to all proposals from the Commission and from member states. The question of third parties may be a matter of legal interpretation under the Amsterdam Treaty. However, that is our plain stance.
The noble Lord, Lord Inglewood, observed that having Council meetings in camera as a general practice is not desirable. He recognised the obvious need for secrecy in some circumstances. That is entirely consistent with our approach. Some meetings will have to be kept confidential. Some do not need to be. We support greater openness in Council meetings wherever possible. I welcome the recent development that the first ever open debate held at a JHA Council was held under the United Kingdom presidency. So it can be done, given goodwill and a certain amount of persuasive effort.
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I hope that I have dealt with at least all the themes which have been enunciated if not every specific question. The Government are very grateful for the report. I hope that we have demonstrated that by action and not simply by words. Personally, I was extremely grateful for the quality of the debate which your Lordships have provided.
6.28 p.m.
Lord Kingsland: My Lords, I should like to say for the first, but I hope not the last, time in the life of this Government that I am entirely satisfied with the Minister's reply to this debate. I should also like to thank all noble Lords who have contributed this afternoon. Your Lordships' contributions have greatly enhanced the usefulness of the report. I commend the Motion to the House.
On Question, Motion agreed to.

Government of Wales Act 1998 (Housing) (Amendments) Order 1998
6.30 p.m.
Lord Williams of Mostyn Lord Williams of Mostyn rose to move, That the draft order laid before the House on 26th November be approved [First Report from the Joint Committee].
The noble Lord said: My Lords, you will undoubtedly recall Section 140 of the Government of Wales Act 1998. By that section the functions of Tai Cymru, including its regulatory functions, were transferred to the Secretary of State on 1st November 1998. I think this ought to be a non-controversial order. It is made under powers conferred on the Secretary of State by the Act of 1998. It is designed for one purpose only, to close a loophole in the landlord and tenant legislation which arises by virtue of the transfer of the functions of Tai Cymru to the Secretary of State for Wales.
The order preserves the status and rights of tenants of residential buildings acquired or disposed of by the Secretary of State in the exercise of functions previously exercised by Tai Cymru. Specifically, it would allow the Secretary of State to offer assured or secure tenancies to housing association tenants if it proved necessary for him to do so by virtue of Part III of the Housing Associations Act 1985.
The Secretary of State's intention to lay an affirmative order to correct this was acknowledged in the Notes on Clauses prepared for the Lords stages of the Government of Wales Bill, in which a number of your Lordships took part. By virtue of current legislation the Secretary of State cannot offer secure or assured tenancies. This cures that difficulty. It amends a number of pieces of legislation to protect the rights of tenants who find their tenancies have been taken over by the Secretary of State in the exercise of his functions in relation to the regulation of registered social landlords.
I have to say that it is very unlikely that the Secretary of State would ever have to exercise these functions. When the functions were transferred to the Secretary of State from Tai Cymru, Tai Cymru held no tenancies. Indeed, at no time between its creation in 1989 and the

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transfer of its functions to the Secretary of State on the 1st November 1998 did Tai Cymru ever hold tenancies under the powers in Part III of the Housing Associations Act 1985 or by virtue of any other powers. I repeat therefore that it is very unlikely that the Secretary of State would have to take over housing association tenancies or otherwise grant assured or secure tenancies, but we have to bear in mind possible interested tenants and we are simply providing for that eventuality, as we promised in the Notes on Clauses which I mentioned earlier. I beg to move.
Moved, That the draft order laid before the House on 26th November be approved [First Report from the Joint Committee.]—(Lord Williams of Mostyn.)
6.33 p.m.
Lord Roberts of Conwy: My Lords, I am sure we are all grateful to the Minister for the clarity of his exposition of the order. It was indeed considered by the Third Standing Committee on Delegated Legislation in the other place on the 10th December, and generally agreed to be non-controversial; and so it is, within its own fairly narrow terms and in so far as any order which changes primary legislation can be non-controversial.
However, there are a few points I should like to raise and I feel justified in doing so since neither this House nor the other found much time or inclination to discuss the all-important subject of the future development of housing policy and housing action in Wales during the passage of the Government of Wales Act. I hasten to add that I am not seeking to initiate a general debate on housing: that would be totally inappropriate.
However, it would be helpful to us to know just how the substance of this order, which inserts the Secretary of State for Wales into the three Acts referred to, relates to the Government's plans for the devolvement of responsibility for housing to the national assembly of Wales. During the discussion of the order in the other place, the Parliamentary Under-Secretary of State, Mr. Jon Owen Jones, said that although it was unlikely that the Secretary of State would need to exercise the default powers available to him under the Housing Associations Act of 1985, they should be available to him, "or later the assembly", he added. Indeed his last words to the committee were to the effect that these responsibilities would be transferred to the assembly. I could not but notice that the Minister did not make much reference to the assembly. Can he confirm that it is the Government's firm intention to transfer these powers and responsibilities to the assembly in due course? Perhaps he could expand on the likely future path of housing policy evolvement.
I am sure the Minister will appreciate our concern as to how various parts of the housing jigsaw will fit together in Wales. Any light that he can throw on this, including the role of the local authorities, who also have their housing responsibilities, would be helpful and enable us to see this order in its broader context.
I am sure that the noble Lord will also appreciate the degree of concern about the timing and, indeed, the purpose of this order. As I understand it, the functions of Tai Cymru: Housing for Wales, were taken over by the
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Secretary of State, as the Minister said, on the 1st November last year and this order comes into effect on the 15th January this year while the assembly comes into being in May. It seems slightly odd to be transferring powers and responsibilities to the Secretary of State—and that is, after all, what we are doing in spite of the somewhat euphemistic terms of the explanatory note at the end of the order—at this late stage. That is particularly so when Parliament has been told that Tai Cymru never required these powers because it had no housing association tenants throughout its existence and the Secretary of State is most unlikely to have any either, except conceivably in the event of a housing association's financial failure and the failure of the Welsh Office to make adequate arrangements for an alternative landlord.
We are not quite clear as to why we have to have this short-lived order. Of course, as the Minister said, there is a gap in legislative provision which we were told about in the Notes on Clauses for the Government of Wales Bill. We were told that that gap would be filled by an affirmative order; and that is the order before us. However, we have no illusions. This order is indeed a stop-gap to deal with a situation most unlikely to arise and is in any case to be superseded in a matter of months by another order transferring the powers and responsibilities of the Secretary of State to the assembly. Am I right in this or is a longer timescale anticipated for that transfer? That might indeed be the case if, for example, there were to be a wholesale reallocation of housing powers between the assembly and the local authorities requiring fresh primary legislation, but there is no reference to such legislation in the Queen's Speech. I am also aware that other measures, unspecified, might be laid before us, and so that comment of mine is purely speculative. Is the real explanation for this order possibly that powers cannot be transferred to the assembly without first passing through the Secretary of State for Wales?
To conclude, in so far as the order enables tenants of registered social landlords, including housing associations, to retain their security of tenure, and, where applicable, rent control should their homes be acquired by the Secretary of State, the order is very welcome. The Government have already decided to abandon Crown exemption from landlord and tenant legislation in this instance, and it is difficult to see how they could do otherwise without lessening the rights that tenants previously enjoyed. I very much hope that the Minister can answer in particular the point about the Government's future intentions with regard to transferring these powers and responsibilities to the national assembly of Wales.
Lord Thomas of Gresford: My Lords, the order has been described as non-controversial, and from these Benches I welcome it. It is pleasant to see that the provisions of the Government of Wales Act are being put into effect and that the necessary transfers are taking place.
The noble Lord, Lord Roberts of Conwy, asked about the machinery. As I understand it, this order is a staging post on the way to transferring responsibilities to the assembly which will itself determine housing policy within the constraints of the existing primary legislation that affects the remainder of England and Wales. It is an

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interesting illustration of what I have always regarded as a fundamental flaw in the Government of Wales Act: that primary legislation will remain in the Westminster Parliament and cannot be altered or amended by the Welsh Assembly. That is unlike the position in Scotland.
It looks as though this order is the first of many such alterations to primary legislation which will have to take place at Westminster in order that the powers and functions can be properly transferred over to the assembly. However, even with that qualification, we welcome the order.
Lord Williams of Mostyn: My Lords, I am grateful to both noble Lords. I confirm to them, although they use different language, that it is indeed a staging post. It is entirely consistent with what I said on many occasions from this Dispatch Box: that during the interim various responsibilities were to be lodged with the Secretary of State because of the interim nature before May.
The noble Lord, Lord Roberts of Conwy, is quite right. These powers will transfer to the assembly. They will be part of a general transfer order. Subsequently—the noble Lord is right again—where there are other providers of housing for tenants they will determine their housing priorities within their own areas, whether those areas are geographic or specific to tenants.
One needs to remember that the order applies only to registered social landlords: that is, housing associations. There is no deep ploy to alter housing policy when the Assembly takes over. The Assembly will determine its own priorities and will decide whether or not it wants discussions with local authorities about the provision of housing in Wales.
The noble Lord, Lord Thomas, is right. Primary legislation will not be able to be amended by the Welsh Assembly. I cannot give a timescale on transfer. It depends entirely, as it should, on the friendly co-operative agreement between the Assembly and the Secretary of State. I think that I can put it fairly in this way. The Secretary of State is simply a custodian and a trustee of various powers and responsibilities which by virtue of the Government of Wales Act must be transferred to the new assembly, I think to the general agreement of most of your Lordships' House.
The reason that we need to take these powers for what is likely to be a relatively short period of time is that we cannot leave some tenants in the limbo of uncertainty. After all, the home that one occupies is so central to one's life that there should not be uncertainty. I hope that I have made it plain that these powers are unlikely to be used; and if there is any worry or uncertainty the powers are available to the Secretary of State in circumstances which are virtually impossible to arise. I hope that I have assisted your Lordships. I commend the Motion.
On Question, Motion agreed to.

Violence on Aircraft
6.43 p.m.
Lord Brabazon of Tara Lord Brabazon of Tara rose to ask Her Majesty's Government what further measures they propose to deal
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with crimes of violence on board aircraft; and how they intend to ensure that those found guilty of such crimes receive appropriate punishments.
The noble Lord said: My Lords, first, I must declare a partial interest as a director of a small airline operating mainly inter-island flights in the Channel Islands. I am glad to say it is only a partial interest, as, so far as I am aware, the airline has never had an incident of the type we shall discuss in this evening's debate.
If one walks down the street and sees a fight outside a pub, one can cross to the other side of the street or turn back and avoid it. Furthermore, the chances are that the police will arrive within minutes. In a thin metal tube at 35,000 feet there is no escaping, and that is one reason why violent and disruptive behaviour aboard an aircraft is so alarming and threatening to innocent passengers and flight crew alike.
There have been a number of disturbing incidents reported in the press in recent months, and I shall refer to some of them, but I do not want this debate to cause undue alarm among the travelling public. The vast majority of flights are trouble-free, but because there seems to be no centralised reporting system of incidents it is not possible to say whether there has been an increase or not, bearing in mind the continual overall increase in air travel.
My first question therefore is whether it would be possible for either the DETR or the CAA to formalise one system of reporting which could then lead to scientific research into the causes and seek remedies for the problem. Secondly—I refer to the second part of my Question—there are inconsistencies in the way offences are dealt with. In one case involving disruptive behaviour on a British charter aircraft and where a diversionary landing was made in Spain the offender was dealt with there in what can only be described as a token manner, receiving, I believe, only an overnight stay in jail. In what seems to be a similar incident, where a diversionary landing was made to eject the troublemaker in Portugal, where he was arrested, he was then tried in Coventry Crown Court and received 18 months—in my view a quite appropriate sentence. But why the difference?
The industry needs the Government to support the right of airlines to report incidents to the police in the UK and to encourage other states to take powers to ensure that offenders receive proper punishments when UK airlines report incidents overseas. On that point, noble Lords may recall that I introduced the Civil Aviation (Amendment) Bill in this House in 1996. This, unusually for a Private Member's Bill, became law and allowed for the first time offences committed on board United Kingdom-bound foreign registered aircraft to be tried here. I understand that it has been a success and a number of offenders have been dealt with who would previously have got away scot-free. I believe that the Government are trying to persuade other countries to take similar powers, and this is to be welcomed. I should like an assurance from the Minister that foreign offenders arrested here are dealt with in the same way as a UK citizen would be, and—convenient though it might be—are not just sent packing after a token night in the cells.
In a very serious incident recently involving an Airtours flight in Spain a stewardess was seriously injured by being hit on the head with a bottle. The offender, who was British, was bailed. He jumped bail the first time in early December and was only persuaded to return to Spain by the Daily Mirror and was again bailed to appear on 18th December. I understand that he did not appear on that occasion either, and his present whereabouts are unknown. Meanwhile the stewardess is still recovering from her injuries, but it looks as if the offender is quite likely never to be punished for this horrendous attack. While I am no expert on Spanish law, it appears to me that it is simply not taking this case seriously. In this country I would like to believe, in particular as the offender already had a criminal record, that he would have been brought straight up before the magistrates and either sent down by them or remanded in custody to appear before the Crown court.
I know that the Government take this matter seriously, as does the airline industry, and that a number of initiatives are under way. A disruptive passenger action group has been set up at Gatwick. An ACPO working group has been formed to consider police powers at airports and the adequacy of legislation and sentencing in relation to offences committed at airports. The Government have held meetings with interested parties and have announced a number of initiatives. This is all to be welcomed and no doubt the Minister will expand on that in his reply. Further, I very much welcome the proposal that the air navigation order be amended to make it an offence to interfere with crew members carrying out their duties. One problem seems to be that offences under the ANO are not arrestable by the police excect in certain circumstances, and I believe that this new offence and the existing offences of endangerment, drunk on board, etc. should be made arrestable offences. Will the Government do that? If it requires primary legislation the Minister can be assured of support from this side of the House.
I said earlier that research needed to be done into the causes of these incidents. How many, for example, are drink related? Airlines should refuse boarding to passengers who are drunk and should not serve those who are drinking excessively. I know that they try to do that, but it is sometimes easier said than done. There is also the problem of people drinking their own supplies of drink rather than those offered by the airlines. Unfortunately there seems to be a breed of holidaymaker these days which regards being permanently plastered as essential to having a good time.
Other incidents can be smoking related, and I suppose here again I have a vested interest. Smoking may not be that serious, but tampering with the smoke detector in the lavatory certainly is. I wonder, I know controversially, if the airlines were to reconsider their ban on smoking in all sections of the plane, that might help.
An airline can, of course, refuse to carry a passenger again who has behaved badly, but it is much more difficult for the industry generally to set up a blacklist, for reasons of data protection and so forth. It is also probably not possible for the Government to endorse such a blacklist.
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Nevertheless, will the Government at least ensure that that subject is included on the agenda of an ICAO meeting so that it can be discussed internationally?
Lastly, it is essential that the airlines give the best possible training to their staff to deal with these incidents. It is also vital that the airlines give all necessary support to their staff who have been involved in incidents. It can be an alarming experience to have to appear as a witness in court opposite someone who has behaved in a violent manner towards one. The best counselling, the best lawyers and the best support are the least the aircrew can expect from their employers.
I hope that the Minister will be able to assure the House that the Government and the industry are working together to tackle this unpleasant problem, and I look forward both to the debate which is to follow and to the Minister's reply.
6.52 p.m.
Lord Avebury: My Lords, the noble Lord, Lord Brabazon, is to be congratulated on the opportunity he has given the House of debating a problem which, as he said, is causing increasing concern to the airlines, the CAA and the police; that of violent and disruptive passengers on aircraft entering or leaving the United Kingdom, whether or not it reaches the threshold of criminality presupposed in the Question.
There is common agreement that such incidents have increased enormously over the past few years, though statistical information about the extent of the problem and its causes is lacking. The CAA has a system of mandatory occurrence reporting covering all incidents which have a potential effect on flight safety, most of them involving disruptive passengers. The criteria for reporting are laid down in CAP 382, The Mandatory Occurrence Reporting Scheme—Information and Guidance, but the decision on whether to report a particular incident rests with the operator. The CAA tell me that due to the subjective nature of the assessment by reporters of the seriousness of incidents against the criteria, reporting thresholds are not consistent but vary considerably between one airline and another. Subject to that proviso, 104 incidents of disruptive behaviour by passengers were reported under the MOR scheme in 1997.
Another way of looking at the problem is to ask how many prosecutions of disruptive passengers there were at the main UK airports. According to the police at Heathrow, who gave me this information yesterday, of the 63 cases brought in 1997, 25 were of drunkenness, eight of endangerment of flight safety, two of failing to obey a command, seven of smoking in a prohibited place and 21 of affray. However, the cases that are brought to court form only a small fraction of the number of incidents of disruptive behaviour dealt with in Articles 55 to 59 of the Air Navigation Order. As the noble Lord, Lord Brabazon, stated, those are not arrestable offences because they carry maximum penalties lower than the five years' imprisonment mentioned in the Police and Criminal Evidence Act 1984.
In answer to a Question on 19th November, the noble Lord, Lord Whitty, told me that the Government had no plans to increase the penalty for endangerment or to

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make the other ANO offences arrestable. Only in the case of affray would the police have had the power to detain the passengers who committed the offences that came to court from Heathrow. In all the other cases, either the CAA or the CPS would have to decide later whether to prosecute. The CAA say that it is desperately difficult to investigate such incidents when the witnesses are dispersed and crew rostas make it hard to arrange interviews. They quote a recent case where the decision was taken not to proceed because the incident took place on an outbound flight from Manchester to Tenerife when the crew were based in Dublin, most of the passenger witnesses lived in Lancashire or Scotland and the accused lived in Bristol, which was where the law said the case had to be tried.
The CAA also say that offenders escape justice by giving false addresses because they have no access to personal databases from which the individuals can be traced. Therefore, if one looks at the cases which come to court, one is missing a large number which are dropped because of such practical difficulties or because the facts do not appear to the CPS or the CAA to satisfy the public interest test for prosecution.
At Gatwick in 1997, police were called to aircraft on about 120 occasions and prosecutions ensued in about one-third of those cases. It would be interesting to know why no charges were brought in the rest of the incidents. The Gatwick police tell me that they are rarely called to the departure gates, though ground staff have instructions, as the noble Lord, Lord Brabazon, pointed out, not to allow drunken or disruptive passengers on board and the police are the only people qualified to make a professional judgment on whether an individual is drunk. One can understand the reluctance of staff to antagonise a person who may already be exhibiting aggressive behaviour. Perhaps authorities at airports could give some thought to the idea of having video cameras at departure gates linked to the police so that they could observe suspected offenders.
It now seems to be agreed by the police, the airlines and the Minister, Dr. John Reid, that we should seek ways of recording more accurate information about the extent and causes of disruptive behaviour by passengers. I understand that at a meeting held between the Minister, the airlines, the police and the CAA on 25th November it was decided to set up a small working group, chaired by the DETR, to examine incident reporting and the commissioning of research into the causes of disruptive behaviour.
Clearly, as the noble Lord, Lord Brabazon, said, it would be a first step for the airlines to agree to report all incidents in a standard format while ensuring conformity with the Data Protection Act. British Airways, for example, have voyage reports dealing with any events which, in the opinion of the captain, should be drawn to the attention of the management, including low level disorderly behaviour by passengers. As a next stage they have air safety reports which may be specifically about disorderly behaviour. Under the latter heading there were 350 incidents in 1997, which I believe was a 400 per cent. increase over the previous year. Britannia, which has a similar system of reporting, had 331 incidents in 1997 and Airtours had 70. Therefore,
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it can be seen that the number of such reports is much larger than either the number of reports under the MOR scheme or the number of prosecutions.
It may not be too difficult to look at those air safety reports and ensure that all airlines followed an agreed set of rules so that the reports could be aggregated and compared between airlines to see whether any of them had developed techniques for prevention which appear to be more successful than others.
Airlines had already decided, at a meeting of the UK Flight Safety Committee on 3rd November, that they would pool the information they collect and decide exactly what should be recorded. Presumably the task of working out the detail is now entrusted to the DETR chaired working group. It would be useful if the Minister could tell us the deadline for reporting and whether their findings will be made public.
Another point of agreement seems to be that prevention is better than cure. That is exemplified by the UK Flight Safety Committee's Conduct 99, an initiative designed partly to minimise the number of incidents. The airlines have agreed to review the training of their staff in conflict management; to review their policy on serving excess alcohol and dealing with drunk passengers, and to adhere strictly to the rule that drunk passengers should not be allowed to board aircraft.
It was decided that clear notices should be displayed in any area serving alcohol within an airport that it is an offence to board an aircraft while drunk, and that such passengers will not be allowed to board. It was also decided that training should be given to those who sell alcohol in airports in relation to dealing with drunk passengers. Those two recommendations are addressed to the British Airports Authority, though it was not clear whether or not it attended the meeting. Could we be told whether BAA accept the idea of notices, not just where alcohol is sold, but also at the departure gate? Will it be asked to add an obligation concerning training into tenancy agreements with retailers selling alcohol? Also, what does BAA think can be done if a salesperson notices that someone is the worse for wear?
The UKFSC list also includes recommendations addressed to those promoting travel. It proposes that literature should be responsible, particularly when it concerns holidays for younger age groups. Details of unacceptable behaviour should be given in literature, it says, and the CAA has already distributed 10 million pamphlets on unacceptable behaviour, with airline tickets. The pamphlet tells passengers that if they are guilty of drunken or disorderly conduct, they can face a £5,000 fine or two years in prison, or both.
All those latter recommendations concern the abuse of alcohol, either directly or indirectly, and subjectively one would say that a great many of the more serious incidents are fuelled by alcohol. Barbara Ellen, the Observer columnist, reported an incident she witnessed on a flight home from New York last week in which a drunken passenger punched his girlfriend in the face and headbutted one of the pilots, then tried to get out of the plane through one of the emergency doors at 30,000 feet. Amelia Gentleman wrote in the Guardian

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of 5th September about a passenger who drank a quarter of a bottle of whisky before getting on the plane then when she was refused further alcohol on board kicked, headbutted and bit members of the crew. In another Guardian report, by Sara Hall, a drunken passenger smashed a vodka bottle over the head of a stewardess, and raked the jagged edge over her back causing injuries that needed 18 stitches. I believe that was the incident referred to by the noble Lord, Lord Brabazon of Tara, in his speech. The Daily Mail of 17th November reported a drunken father and son on an Air 2000 flight to Malta causing such a brawl that the captain had to lock himself in his cabin and divert to Milan. In the Mail on Sunday of 8th November, Christopher Leake reported on a drunken passenger who went berserk on a BA flight to Capetown after being told not to smoke.
In spite of that and a great deal more anecdotal evidence, examples of which are summarised in Alcohol Concern's On a Wing and a Beer: Alcohol Induced Sky Rage, there is a tendency to play down the role of alcohol, portraying it as one of a large number of factors which may cause disruptive behaviour. The Minister himself, Dr. John Reid, says that alcohol abuse is not the major cause of misbehaviour, while recognising that there is a lack of reliable information. He thinks it would be wrong to single out alcohol-related incidents for particular attention.
One of the reasons for that attitude may be that most people drink and do not like to admit that what they see as a harmless and agreeable habit may be the cause of enormous problems in our society. Nobody would dare to suggest that airlines should be discouraged from serving endless free drinks or that people who do not drink should not involuntarily subsidise the passengers who do. If the more serious incidents which come to the attention of the media are related to alcohol abuse it would be irresponsible not to pay special attention to them.
We should bear in mind, also, that when incidents are reported or are the subject of prosecutions, alcohol may well be a factor, even if it is not the main heading. Thus in the Heathrow police figures mentioned, drunkenness was the charge in 20 out of 41 cases, but may well have played a role in other cases where the charge was under one of the other Navigation Order offences. In the Flight Safety Committee's survey of disruptive passengers during August 1997, 186 incidents were reported, of which 55 were directly concerned with drunkenness; but, for instance, how many of the 74 who smoked when forbidden had been drinking as well? I hope that in the standard format of reporting which is to be adopted, the staff will be told to assess the offending passenger's alcoholic state, whatever the main reason for the report may be.
We are living in an age of violence and, as Professor Helen Muir of Cranfield University says, when aggressive and violent behaviour occurs on the streets, at football matches and in schools, it is not surprising that those incidents occur on aircraft as well. However, as the noble Lord, Lord Brabazon, said, the potential for such an incident to lead to the loss of 400 lives in a jumbo flying at 35,000 feet makes this behaviour
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literally intolerable. I hope we shall hear from the Government that a more vigorous policy will be pursued against "sky rage", and that we shall seek the co-operation of other governments in adopting measures that will cut the risk in their jurisdictions as well.
7.5 p.m.
Lord Gainford: My Lords, it is fortunate that my noble friend Lord Brabazon asked this Question. I do not want to be repetitive, but we all know that violent passengers are a menace to the safety of an aircraft as well as a serious disturbance to fellow passengers and airline staff. "Air rage" is becoming a serious matter and the public are wondering what can be done about it and how it can be done. I sincerely hope that this evening we may come a little closer to the solution.
My specific interest relates to the concern shown about the matter by the Air Safety Group, of which I am president. Also, the Minister and I have had a little correspondence about it. From the published reports of incidents, drink is the main problem, and a lot of drinking at airports and on board an aircraft is due to stress. The noble Lord, Lord Avebury, mentioned how we live in a violent world. It is an unfortunate sign of the times that, though we live in a world with so many means of making life easier than it used to be, life has become more hurried; impatience sets in at any and every delay, particularly in transport, because of stress. That is but one example; human nature being what it is, there are many others. We can sympathise because many of us know what it is like. But, when we see the results of disruption on aircraft, we see the necessity for some law to act as a deterrent with its threat of legal action.
Last year, on 22nd July, Mr. Tom Brake—the Member in another place for Carshalton and Wallington—raised the suggestion that Her Majesty's Government adopt the US Federal Aviation Administration ruling that no liquor should be consumed on board an aircraft other than that provided by the operator either as a complimentary drink or purchased as part of the bar sales. The Minister, the right honourable Glenda Jackson, replied that she did not see how that could be enforced.
At present airlines have to provide their own arrangements for dealing with violent passengers. There again we see that, were a definite law to be enforced, it could produce a reduction in the number of passengers being tempted to let their feelings of frustration or fear—such as when a passenger is taking a first flight—get the better of them. The cabin crew would be confident that they had the power of law to back them up.
When drink is the main source of the problem, there are two likely reasons. First, the passenger may be under the influence of alcohol bought as pre-flight drinks; secondly, alcohol other than that purchased at duty free shops may be brought on board and consumed. Many airlines do not specify the weight or size limit of hand baggage. Arguments over what can and cannot be taken into a cabin can be a source of aggression against the crew by a passenger who has already had the proverbial "few". A warning in relation to the limits on hand baggage should be printed clearly on each ticket and not just included in a mass of small print.

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On 3rd November 1998, a seminar was held by the United Kingdom Flight Safety Committee. Among the salient points raised were the limitations of the powers of control by airline staff. There is a difficulty in gathering evidence in a moving environment where crew and passengers disperse in a hurry and are unwilling to be delayed, particularly where the process falls under a foreign jurisdiction. Existing legislation was not designed to cope with the advent of the disruptive passenger, for which there is no specific offence. Many public order offences only allow arrest at the time when the offence is taking place. By the time the aircraft lands, the action is likely to be over and the arrest cannot be made.
A policy of zero tolerance by airline operators has been suggested. This could be dangerous. Combating violence with violence may result in cabin staff committing offences, inviting legal action against themselves. No airline staff or police are free from law breaking. Last Sunday the Mail on Sunday had an item whose headline was "Captain accused of pilot rage on BA jet". The case was that one of the passengers thought there was something wrong with the aircraft, left his seat just before the plane was going to take off and tried to get into the flight cabin. The captain had to force him back to his seat, but the passenger has been attempting to sue British Airways.
To sum up, the problem seems to require two solutions: a definite law to act as a deterrent and to help airline staff, and an investigation into sources of stress where air travel is involved. In any crowded airport there are many examples of this. What is needed is clear guidance for staff with an accent on the needs of aircraft commanders, the support of airline management, the support of security forces and also—and this is important—the education of the public as to its legal responsibilities. I look forward very much to what the noble Lord the Minister has to say.
7.10 p.m.
Lord Mountevans: My Lords, like others of us, I am grateful to my noble friend Lord Brabazon for asking his Question tonight. He was perhaps a little modest in defining his locus standi, but so be it. Apart from the directorship he mentioned, I recall him as a respected aviation Minister and also one who on retirement (if that is the right word) devoted himself to taking "the Brabazon Bill"—the Civil Aviation (Amendment) Act of 1996—through this House. By doing so he addressed the very problem of air rage, or at least one element of it.
I referred to a problem, but my noble friend's question leaves definition of that problem rather open, have the benefit of advice from the Board of Airline Representatives in the United Kingdom, from British Airways, from British Midland, from the Civil Aviation Authority and from Virgin Atlantic, but in a way I have only scratched the surface. What about the Association of Chief Constables, or BAA Plc, or indeed other privately owned airports, or the municipal airports, or the British Transport Police, or BALPA, the pilots' association, whose President, the noble Lord, Lord Clinton-Davis, is not with us this evening?
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I could have listed many more parties to this problem but prefer to turn to the numbers—statistical information, as the noble Lord, Lord Avebury, called it—not an easy subject nor easy data to come by. Is the problem one quantifiable by media coverage, where several rather violent issues, which have been mentioned by other noble Lords, have been highlighted while the coverage of road rage seems to have declined? The numbers seem to conflict. BA reports 260 incidents in the year to November last. Around 81 per cent. of these were smoking related, which I think has a bearing on the discussion we have had about drink. This suggests to me that, when drink and smoke and then drink and smoke are replaced by drink and then drink, the problems posed increase out of all proportion.
In addressing the problems of air rage, perhaps we should consider how people's behaviour changes in a non-smoking environment, we should consider stress, as has been mentioned. We should consider the UK Flight Safety Committee's figure of 168 incidents compared with the British Airways' figure of 260 incidents which I have already mentioned. Perhaps we should be looking at how to examine the alleged 400 per cent. increase in air rage incidents (a four-fold increase, but from what?) alleged by the magazine Air Transport World. In other words, I believe we should put knee-jerk reaction on hold until we have defined the problem. Only by doing so can we begin to address the issue. Before we tackle where we are going, we must define—and again noble Lords have said this—the point from which we are starting.
Having defined the problem, we can move on. Rightly or wrongly we have taken the first step, and I congratulate DETR on doing so. Using my knee-jerk reaction allusion. I hope we make progress in a more measured way, establish the problem and then address the solutions. Firstly, is air rage a long-haul or a short-haul problem? Is it a scheduled service or a charter problem? It has been mentioned that holiday-makers want to have fun from beginning to end. Is it an international or a domestic problem? Is it absolutely and only a drink-related problem? I very much doubt that. After all, I am sure that all noble Lords who have spoken will agree that they have seen boorishness on buses, on trains and on ships, none of them notable for their free refreshment policy.
Secondly, we need a defined method of reporting incidents. Again that has come up. We are largely in agreement so far tonight in many respects. We have to have a defined method of reporting incidents. I have already mentioned the difficulty of defining numbers. Thirdly, we need to address enforcement and legislation through police initiatives, through black lists, but I understand that there are civil liberty and data protection implications. It does seem to me that they are the same for another problem we have—football hooliganism—and I wonder if the two could not be addressed in parallel. Then I think we need international action. I mentioned the professionals who advised me; I mentioned the professionals whom I have not approached. May I mention the DETR and the Home Office as the UK bodies concerned with getting it right before DETR and the Foreign Office go off to the world to spread the gospel.

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Common standards of security and of carriers' liability, Warsaw Convention style, remind us that things will not be easy. But aviation safety has evolved, and this is a safety issue. It is one where I believe we could be a star, indeed the leading player. To advance the cause will require industry and government co-operation. The industry may find itself having to fund some quite considerable costs. As I said, safety is paramount and I believe that these costs are worth funding. Define the problem, make sure that wheresoever in the world offences occur they are appropriately punished, and then we shall have something of which to be proud. The whole issue will take time but it will be time well spent.
7.18 p.m.
Lord Hacking: My Lords, perhaps I could very briefly intervene in this debate, having worked very closely with the noble Lord, Lord Brabazon, on the Civil Aviation (Amendment) Act. I congratulate him again on the successful passage of that Bill and I thank him for raising the issue again. I know he has closely followed these matters since the passing of that Act and I am grateful to him for introducing this debate.
Noble Lords, particularly the last noble Lord who spoke, referred to international action, but really the problem has to be dealt with first of all at home and that is exactly what the noble Lord, Lord Brabazon, did in introducing to the House the Civil Aviation (Amendment) Act to fill a serious lacuna concerning criminal offences taking place in foreign aircraft arriving in this country. I suggest in this debate, therefore, that we first and foremost address what we can do at home. Having examined a number of cases in which violence has taken place in aircraft, I have to say that, while not all have been drink-related, many have. I also have to tell your Lordships that in the great majority of those cases which have been drink-related the offender has begun his drinking well before he boarded the aircraft. There is a very great discipline among air-crew in watching passengers. There are very few examples, if any, of alcohol supplied by the crew having played a part in raising the temper and the misbehaviour of the offender.
My second point relates to the fact that the alcohol is often not only consumed by the offender before he joins the aircraft but he has also made matters worse, and compounded his disability through alcohol, by continuing to drink alcohol during the flight. I said that I believe we should pay attention to such matters from a home base. Therefore, I have two suggestions to make, one of which I picked up from the noble Lord, Lord Gainford. First, certainly so far as concerns British-registered aircraft, I suggest that it ought to be an offence to consume on an aeroplane alcohol which has not been provided by the operator. My knowledge of this is based only upon the reports that I have read, but I understand that in the very serious Airtours case which took place recently, in which the air stewardess was hit over the head with a bottle of Vodka, the passenger had been consuming substantial amounts of alcohol that he himself had brought on to the aircraft.
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My second suggestion regarding starting at home is concerned not only with warning the retailers and alerting them not to provide alcohol to passengers who are about to board aircraft and who have clearly already been affected by alcohol. I applaud all the suggestions about notices, and so on. However, the airport authorities do not have the power, for example, to carry out a breathalyser test on such passengers. It is very difficult to know how much alcohol someone has consumed. Therefore, if there were powers given by our legislation to enable airport operators in the UK to apply a breathalyser test to passengers who are about to board an aircraft, the matter could be established quite clearly as to whether or not the passenger in question is fit to travel. I make those two practical suggestions because I believe that we must start at home as, indeed, did the noble Lord, Lord Brabazon of Tara, with the Civil Aviation (Amendment) Act 1996.
7.21 p.m.
The Viscount of Falkland: My Lords, I am very grateful to have the opportunity of speaking in this evening's debate introduced so ably by the noble Lord, Lord Brabazon of Tara. Since I have been deputy chairman of the All-Party Group on Alcohol Misuse I have, over the years, stood up to speak from these Benches mildly to criticise the drinking culture in this country as regards violent behaviour and have received little support. Therefore, I am very glad to have the support tonight of my noble friend Lord Avebury who, I see, gives as much vigour to alcohol abuse as he does to the evils of smoking.
In the All-Party Group on Alcohol Misuse we have during the past three years paid particular attention to violence and alcohol. However, I fear that we have been remiss in that we have probably not paid enough attention to violence on aircraft. Indeed, we produced quite a detailed report for the previous government for which we took evidence from many experts in such matters, such as police officers, probation officers, prison governors, and so on, regarding the difficulties of alcohol-related violence in particular sectors of British life.
I am afraid that violence related to alcohol, not only on aircraft but also in hospitals and on buses, has recently become more and more of an occurrence. However, under the present Government, I am glad to say that we have had some very productive and friendly discussions with the Home Office on the subject of alcohol and violence. A short while ago I took part in discussions with Alcohol Concern and the chairman of the all-party group. I am happy to say that it is my understanding that the Government are considering such matters most carefully and are looking for legislation whereby some remedies could be applied. I look forward to the outcome.
One of the important comments made during our discussions with the Home Office was made by Mr. Boateng. As a lawyer, he is absolutely right. He said that the cultural attitude to drunkenness in our country, which differs to that in some other European countries, is aggravated somewhat not only by the tolerant view that many take to friends and relatives who

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become drunk and disorderly and misbehave in a way which would not be tolerated elsewhere, but also by the view taken in the courts. Where drunkenness is related to crime, it is often seen and presented as a mitigating rather than an aggravating factor. That is true and is, perhaps, the basis of the problem.
Many of us have travelled with airlines over the years and have witnessed instances of drunken and disorderly behaviour. As mentioned by other speakers, that happens not only on the ground but also in the aircraft itself. We must face the reality that cultural behaviour in relation to alcohol is not easy to change. We have, happily, seen some changes in drink driving but unfortunately, as statistics show, such instances occur mainly with young males. It is a habit for them to go out, usually at a weekend, and to drink a lot very quickly. That can result in disorderly and often violent behaviour.
It is my own experience, gained especially from going on holiday, that often the tendency to drink starts in the airport. Indeed, as the noble Lord, Lord Gainford, said, it often happens as a result of stress brought on by the frustrations involved in flight delays. Perhaps I may make a suggestion here for charter companies, whose flights are often subject to delays due to no fault of their own. When there is a significant delay of, say, three or four hours' duration and much drinking takes place, I believe that it should be incumbent upon them to observe very carefully the behaviour of the passengers who will ultimately go on the flight. They should ensure that those who are not in a fit condition to fly are prevented from doing so.
I absolutely agree that zero tolerance on an aeroplane is, as the noble Lord, Lord Gainford, said, a difficult concept to apply. Those who are flying aircraft are not in the business of controlling unruly people. Perhaps I may quote an ancient Russian proverb which, roughly translated, is as follows:
"A drunken man thinks that the sea is only knee deep".
People in that frame of mind on an aircraft are indeed dangerous and should be prevented from boarding the flight in the first place.
I do not have very much more to say, apart from the fact that some connection has been made this evening with smoking. Again, perhaps I may mention my noble friend Lord Avebury who today made a vigorous attack on smoking. I sat on my hands listening very quietly as I serve on the committee which is examining the issue of smoking in your Lordships' House. Perhaps your Lordships will indulge me further and allow me to use another quote. This one comes from King James I of England, who took a fairly strong view on smoking and drinking. In a short publication entitled, A Counterblast to Tobacco, he said:
"Smoking is a branch of the sin of drunkenness which is the root of all sins".
I can assure noble Lords that the committee will not be taking King James I very seriously, but that quotation may be of interest to my noble friend. However, I believe that the airlines should be congratulated on what they have done as regards smoking. I took a non-smoking trip to New York over Christmas. I should say that I went
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backwards and forwards in order to get a cheap flight. I actually went to Brussels first and then on to New York. I had a very agreeable flight in the company mostly of Hasidic Jews, who do not suffer from the habit of drinking, and some very mild-mannered family groups from other countries in Europe, which perhaps do not have our cultural problems.
Airlines need to deal with drunkenness. They have dealt with smoking but they need to deal with drunkenness with a much more serious attitude so as to prevent such people boarding the aircraft in the first place. I very much look forward to hearing the Minister's reply because I am absolutely certain that the Government are taking drink and violence most seriously. I look forward to hearing some productive suggestions which may be incorporated in legislation in due course.
7.29 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I am grateful to the noble Lord, Lord Brabazon, for raising this issue and to all noble Lords who contributed. Violent behaviour is unpleasant wherever it occurs. Unfortunately, stress, drunkenness and violence afflict us in many areas of society but they are particularly unpleasant when they occur on board an aircraft, where people cannot escape the situation. Violent incidents can also have extremely worrying implications for the safety of the flight concerned. The noble Lord, Lord Brabazon, and others, graphically illustrated such instances.
The Government are concerned about the problem of disruptive behaviour. As the noble Lord, Lord Avebury, and others pointed out, my right honourable friend John Reid, Minister of Transport, called together representatives of airlines, airport operators, the police and aviation trade unions last November. The objective was to ensure that appropriate action to address the problem is taken by all concerned. That meeting identified a particular problem to which several noble Lords have alluded—the collection and consistency of information about violent incidents. I must stress—in part echoing the noble Lord, Lord Mountevans—that although violent crime on aircraft is extremely serious, it is also extremely rare. In 1998 the Civil Aviation Authority recorded to December some 89 incidents of inappropriate passenger behaviour under its mandatory occurrence reporting scheme database. I accept that there may be some inconsistency of reporting. Nevertheless, standards of reporting are laid down. That database should contain reports of any incidents on UK-registered or UK-operated aircraft that the commander considered to be
"endangering, or if not corrected would endanger, the aircraft, its occupants or any other person".
Without attempting to associate the different sins in which James I and VI engaged, of those incidents less than a majority were directly associated with alcohol although that may have been a factor in others. In fact, 27 of the 89 incidents related to alcohol or drugs abuse, 18 involved smoking where prohibited, three involved a combination of both and three involved the carriage of

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dangerous goods. The remainder of the incidents largely concerned abusive behaviour. The cause is difficult to determine and, again, may be alcohol-related. Only 38 incidents involved physical violence.
I accept that there are substantially differing statistics. The noble Lord, Lord Avebury, pointed to other sources of information, and higher levels of violence are reported by the airlines themselves. Several noble Lords referred to a survey of 10 UK airlines by the Flight Safety Committee in August 1997, which reported 186 incidents for that month alone, which suggests 3,000 such incidents a year. Even that figure, appalling though it is, should be compared with the 85 million passengers who are carried per year and the 961,000 aircraft movements annually.
Violence on board aircraft remains a serious problem and the meeting last November presided over by my right honourable friend the Minister of Transport established a working group with the airlines, police and trade unions to consider ways of centrally collating reports of incidents. It is likely that we shall need to draw a distinction between different sorts of incidents and, in particular, to identify those that are not serious enough to be reported to the CAA under the mandatory scheme. The working group will consider also whether any research into the causes of disruptive behaviour is necessary and, if so, how it might be funded.
A number of noble Lords raised the question of whether the courts have sufficient powers. UK courts clearly have sufficient powers in most instances. Section 92 of the Civil Aviation Act 1982 applies UK criminal law to acts committed on board a British-controlled aircraft when it is in flight anywhere in the world. That means that a person committing a criminal act such as assault on a UK airline while it is in flight outside the UK can be tried and punished in the UK. UK courts can deal also with crimes of violence on board foreign aircraft landing in the UK, as a consequence of Section 92 of the Civil Aviation Act 1982 being amended by the noble Lord, Lord Brabazon, in 1996. I congratulate the noble Lord on that amendment and his legal adviser, my noble friend Lord Hacking, who was also involved. The importance of that successful amendment was demonstrated only last week, when there were press reports of a disruptive passenger on board an American Continental Airways flight into Gatwick. If that event had occurred before the noble Lord's amendment, the UK courts would not have had the power to deal with that offender.
Sentencing in the UK is, of course, a matter for the UK courts. It is useful that the Court of Appeal ruled recently that where an offence had been committed on board an aircraft, it could be appropriate to impose a more severe punishment than had the same offence been committed in a public place on the ground. The noble Lord, Lord Brabazon, asked for an assurance that UK courts treat UK nationals and non-UK nationals the same way. I assure the noble Lord that they do. When offences are committed on board UK aircraft or aircraft landing in the UK, the nationality of the offender is immaterial. I believe that the courts have established that.
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In addition to normal criminal offences, a number apply specifically to aircraft passengers. Under the Air Navigation Order the four relevant offences are to enter an aircraft when drunk or to be drunk on an aircraft; recklessly to enter or negligently to act in a manner likely to endanger an aircraft or any person therein; to smoke in situations where smoking is prohibited; and to fail to obey the lawful command of the commander of the aircraft.
The offences of drunkenness and endangerment are punishable by a substantial fine of up to £5,000 on summary conviction or up to two years' imprisonment and a fine on conviction on indictment. The two other offences carry a maximum penalty of a £2,500 fine. I believe your Lordships would accept that those penalties are adequate for the type of offences that they are designed to cover. A number of additional offences have been suggested, including a ban on passengers taking any alcohol except that supplied on a complimentary basis by the airline operators. The noble Lord, Lord Gainford, suggested that was the FAA rule in America. Most UK airliners ban passengers from consuming their own alcohol on board and there is no substantial evidence to suggest that breaches of that rule are a substantial problem. It would be difficult to turn such a ban into law. Nevertheless, it is something that the airlines themselves will be considering.
The other problem that arises relates to arrestable offences. The airlines and the police would like offences under the Air Navigation Order to be arrestable. There are clearly problems involved because they are not arrestable on the ground. I have some sympathy with that view and accept that enforcement of the articles would be easier if the police had the power of arrest. There are two legislative ways that could be achieved. Either the maximum penalty for the offences must be increased to five years' imprisonment, which would require an amendment to the Civil Aviation Act 1982, or the Police and Criminal Evidence Act 1984 would require amendment to bring the relevant offences within the definition of "arrestable" offences.
One would have to make a distinction between the various offences covered by the Air Navigation Order. A maximum penalty of five years' imprisonment would be regarded by most noble Lords—whatever their opinions of smoking in this place or elsewhere—as an excessive penalty for smoking where prohibited or failing to obey the lawful commands of the commander of the aircraft, although that is possibly more marginal. Either case would require primary legislation and we will be considering that in due course.
There are other examples where the Government have considered disruptive passenger behaviour that may fall short of endangering the aircraft but which interferes with crew members in the course of their duties and has the potential to divert them from proper safety duties and cause considerable unpleasantness to them and other passengers. The Government intend an amendment to the Air Navigation Order to prohibit behaviour of that kind. Without pre-empting future Queen's Speech debates, I welcome the putative support from the noble Lord, Lord Brabazon, were we to come forward with such a change.

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The other problem relates to offences committed abroad which are pursued abroad and prosecuted in foreign courts. Not all states have taken jurisdiction for crimes committed on foreign aircraft en route to their airports. Consequently, the police in those states have been powerless to act against people who have committed acts of violence on board UK and other aircraft. The Government have raised the matter recently with the International Civil Aviation Organisation. We have offered to provide an aviation law specialist to serve on the working group that it has established to examine that problem.
Where jurisdictions do have rights, I know that some airlines, like some noble Lords in this debate, have been concerned that the jurisdictions have not regarded the offences seriously. One must have some sympathy with the Spanish authorities in that respect. They have to deal with a number of English drunks in all kinds of circumstances. It is also true that people jump bail within the UK jurisdiction, as well as in Spain. I appreciate that the airlines' concern is that lenient treatment will send the wrong signals to offenders. Airlines are particularly concerned where the offence has occurred on a British aircraft and could theoretically have been capable of prosecution either in the UK or in the country of destination. However, there is a problem that, where action has been taken, even if it has ended in relatively lenient treatment, it is difficult for us to argue that we should try the same offence twice—in other words, charge the offender again on that person's return to the UK. We are attempting to engage in ICAO and elsewhere with other governments to try to agree a more common approach to these problems.
Arising from our increased appreciation of these issues and from the meeting held in November, I wish to sum up some of the actions being taken by the Government. We are considering amending the Air Navigation Order to introduce the offence of interfering with cabin crew members. We are pressing for action internationally to ensure that crimes on board aircraft will be prosecuted appropriately in all states; and we have set up a working party to ensure the better collection of information. As the noble Lord suggests, more consistent collection of information will help identify areas for further action not only by the Government but by the airlines and airport operators in respect of behaviour at airports and by the police. The Government and the airlines are working closely together in that respect.
The noble Lord, Lord Avebury, asked whether BAA, for example, was involved. Although BAA members were not present at the November meeting, they were represented there by the Airport Operators Association. On the issue of notices warning people about alcohol, the CAA is considering the need and the scope for posting such notices.
I was also asked by the noble Lord, Lord Avebury, what is the deadline for the working group to report. We have not set a precise deadline. The first meeting of the working group will be held on 1st February. The timescale will be decided at that meeting. The preliminary discussions will be held in private but it is intended that the findings will be published.
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The airlines have taken on responsibilities as well as the Government. Reference has been made to the Flight Safety Committee and the commitment to Conduct 99, which set out a 12-point plan for combating disruptive behaviour and alcohol abuse on aircraft. The CAA has published a leaflet, Travelling Safely, which provides guidance to passengers on drinking and drink-related offences.
Finally, we ought all to register our sympathy for the air crews who have to deal with this kind of problem. They are often in a very difficult situation and have to make fine judgments in relation to the safety of their passengers and aircraft. Our sympathy is with them. We are now engaged in a co-operative effort with airlines, airports and the police to tackle this scourge of air rage, sky rage, or whatever we may choose to call it. It is very unpleasant, and noble Lords on all sides are agreed that we must have a more effective strategy. The Government are committed to taking that strategy further, not only in this country but internationally.

Alternatives to Prison
7.44 p.m.
The Earl of Longford The Earl of Longford rose to ask Her Majesty's Government, in view of their welcome for the 3rd report (Session 1997–98) of the House of Commons Home Affairs Committee recommending greater use of alternatives to prison (HL Deb, 19th October, col. 1172), what steps they intend to take to give effect to the report.
The noble Earl said: My Lords, I am asking the Government whether they will take steps to give effect to the report of the all-party Home Affairs Committee of the House of Commons. The committee made a number of recommendations, but above all called for a great reduction in the prison population and much greater use of alternative services.
It is always an honour to open a debate in this House. Tonight, I salute the eminence of the official Front Bench speaker. I cannot help thinking that there are three other speakers of special interest. I cannot discuss penal questions without bringing in morality, and one cannot bring in morality without bringing in Christianity. If we want Christianity explained to us, that will be done shortly. Also, we are to hear a speaker who is closely associated with the present Home Secretary. The Home Secretary is a Christian Socialist. I do not know about my other noble friend who is to speak but presumably we have a first-hand spokesman for the Home Secretary. Either he has been making up the Home Secretary's mind over the past few years or the Home Secretary has been making up his mind. Either way, we are lucky to have him on the list of speakers. Then there is the noble Viscount, Lord Tenby, son of a famous Home Secretary—who would of course be horrified by the later manifestations of Conservative policy represented by Mr. Michael Howard. So we have three eminent unofficial speakers and eminent people who will speak officially.
We cannot discuss this question without reflecting yet again on the extraordinary change in penal policy introduced by Mr. Michael Howard when he became

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Home Secretary, with the full approval of the Cabinet. I do not want to seem too personal. When I met Mr. Michael Howard the other day, he was very generous. He said he did not bear any malice against me. He did not regard my remarks about him as personal. So I can therefore go forward and say boldly that he introduced what is regarded in history as the Howardite revolution. I hasten to say that it was a revolution in the wrong direction. What was the result? There was an increase in the prison population. In four years it increased by 50 per cent. although overall crime was decreasing. If you wanted to achieve something notable in this world, you could not achieve much more than that, could you?
It might be asked whether there was any justification for that revolution. I suppose that one justification was that it was popular. Many people do not know much about prisons and do not like prisoners. So in that sense it went quite well. When Labour came into office, a programme was announced and our policy was to be "tough on crime". That sounds very much like Howardism. It was announced along with a statement about being tough on the causes of crime. That was a far-reaching objective. For a time, that seemed to be what we were doing: we carried forward Howardism. The present Home Secretary—a good Christian Socialist, for which I admire him—wrote an article in The Times seeming to prefer the views of his constituents (the man in the pub or the street) to the express views of experts.
But more recently there have been helpful developments. More money has been made available for prisons. It is hard to know how much difference that is going to make if the prison population greatly increases, but on that subject there are encouraging signs. In the 26 pages of the Home Office reply they say that for a long time the prison population was escalating but that now it has slowed down and that recently there has even been some diminution in the prison population. Is that the result of policy? Certain steps have been taken and they have had some slight effect. The real question, however, is whether the atmosphere will be completely altered.
The Government are inclined to say, "We cannot alter the prison population, given the amount of crime. That is for the judges". That is not quite good enough. When all is said and done, in the age of Howard, in spite of the decrease in total crime, the prison population increased. The atmosphere was completely altered by the policy of Michael Howard, supported by the Cabinet. That policy was in contradiction to that of earlier Home Secretaries, including, going back some way, that of the father of the noble Viscount, Lord Tenby, who will be speaking later. It had been a long trend of a policy which had reduced the prison population down to just over 45,000. Then Michael Howard came along and, by some means or other and no drastic legislation, it was increased by 50 per cent. A new message was issued: "Prison works". We have to pause for a moment to ask ourselves about the meaning of that.
On the face of it, prison would only work if there were to be an enormous increase in the prison population and an enormous expenditure on prisons—prison staff and buildings. As no one thinks that, however, the idea that prison works and therefore that the prison population should be increased means that in practice the standards in prisons are deteriorating. The whole idea of rehabilitating prisoners is abandoned. Nearly everybody, including the all-party Home Affairs Committee of the House of Commons, has abandoned the idea of "Prison works"—have abandoned Howardism. I am therefore asking the Government to make it as clear as possible that they have abandoned the Howardite dream of prison working.
The Home Secretary is a brilliant Minister. I am bound to say that if I were ever in trouble—and it can often happen even to the oldest of us—however bad my case was, he would look after it; he would see that some extraordinary excuse was produced for me.
Lord Williams of Mostyn: Bad upbringing!
The Earl of Longford: The noble Lord says that I would not be able to pay him enough!
Lord Williams of Mostyn: I said bad upbringing!
The Earl of Longford: At any rate, he would put some rosy face on the issue.
Nevertheless, he now has no excuse. For a long time Mr. Jack Straw, the Home Secretary—a good Christian Socialist—was committed to this idea of prison working. He never said "Prison works", but said "Tough on crime". Now there is a change of tone. He gave a very good lecture not long ago to the Prison Reform Trust and it raised our hopes. Now we have this all-party committee on which even the most reactionary Conservative MPs seem to be represented. Now he has no excuse for not setting out to try to reduce the prison population.
How is he to do that? Reading their own 26-page document, it is not at all clear but I think that one can be hopeful. In that document they point out the tremendous escalation in the prison population. Until recently it was reckoned that the prison population would be doubled between 1993 and 2005. Today we are told that the Government welcome this report. I am therefore asking them in the clearest possible way what are they going to do about it? I wonder. It stands at the bar.
7.55 p.m.
The Lord Bishop of Wakefield: My Lords, I am grateful to the noble Earl, Lord Longford, for giving us the opportunity for this debate. His long record of perseverance on matters of prison reform and his courage, so clearly rooted in his Christian faith, are admired not only on these Benches but also by many Members of your Lordships' House.
There are in the cathedral city of Wakefield two major prisons: one in the city centre, for men; one just outside the city, at New Hall, for women. I have visited them both often. To take a celebration of Holy

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Communion in those prisons, and particularly on a Christmas morning, is one of the most moving experiences that I have in my ministry.
There is no doubt, though, that in both of those prisons there are people who, for the security of the community and for their own good, need to be there. Especially in the women's prison, from my own observations and from the stories I pick up from chaplains and senior prison officers, I know that there are enormous frustrations felt by the prison staff at not being able to concentrate on what they see to be their main role: that of looking after those inmates who clearly do have to be in prison.
We in the Church in our pastoral roles, often have to pick up the pieces. This happens when, for example, by putting a woman in prison, her whole family is effectively imprisoned too and becomes dysfunctional, and then another chain of events is set in motion, sometimes leading sooner or later to the custody of yet other members of that same family.
Sir David Ramsbotham's assertion that around 70 per cent. of female prisoners do not need to be there may sound over-robust, but I suspect that he may be right. Incidentally, Sir David Ramsbotham is the son of a previous Bishop of Wakefield. That ecclesiastical connection is quite appropriate because the Church of England, as your Lordships will know, has long been involved in prison welfare and in recent years has taken a particular interest in prison reform, alongside other denominations. Why? Because of Christian belief in the dignity of humankind made in the image of God; because of Our Lord's clear concern and prophetic message for those who, in all kinds of ways, were captives; and because of the social concern for justice within the whole community which rightly lies at the heart of the Church's witness.
The Board for Social Responsibility of the Church of England made a written submission to the inquiry, which led to the report from the Home Affairs Committee. That submission emphasised another aspect which I suggest has to be taken seriously if the Government really do intend to make greater use of alternatives to prison. It concerns the inadequacy of the level of resources for caring for young offenders under the age of 21. We in the Churches welcomed the proposed arrangements in the then Crime and Disorder Bill for effective supervision of identified offenders and preventive measures for those at risk. However, as your Lordships recognise, they require an increase in resources. There is no other way, in the light of the huge number of offenders who are unemployed, without formal academic qualifications, on drugs, have previously been in care, are from disturbed family backgrounds, or have diagnosable mental disorders.
What a tragic irony it is that at the very time when, over the past decade, the problems were increasing, the funding available for youth and community workers declined substantially and child and adolescent mental health services were significantly withdrawn. An eminent American criminologist, Jerry Miller, wrote some years ago about what happens, not least in terms of custodial sentencing, when resources decline and options available are few:
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"The less the resource, the more punishment was seen as beneficial for the youth. When the person making the diagnosis is aware of the variety of alternatives or non-institutional options for treatment and handling, he or she gives less extreme, less rigid and less restrictive diagnosis. Wanting this, the diagnosis becomes more judgmental and punitive".
The experience of youth workers, teachers, chaplains and community workers in the Church of England echoes that. It has been a constant feature of recent years that young people in trouble have been denied resources which would have been beneficial for them and saved many from custodial sentences.
So, in applauding the Government's priority in fighting youth crime, I hope that the Minister will agree with the warning in the report:
"It would be unfortunate if the agencies charged with this fight were unable to do so because of insufficient resources".
Certainly, the Government's response to the report and its recognition of resource implications in the youth justice Bill are encouraging. Maybe the Minister can be encouraged to be even firmer than—I hope he will forgive me for this—the rather pale admission in paragraph 102 of the Government's response to the report that,
"Some additional resources may be needed".
I turn now to the contribution of voluntary workers in meeting the needs of young offenders and providing options which are alternatives to prison. I note the welcome emphasis made by the Minister in your Lordships' House on 10th December, when he referred to,
"the importance of the voluntary organisations … which do so much good in this field".—[Official Report, 10/12/98; col. 1027.]
That assurance from the Minister is very encouraging. Certainly the Churches are willing to play their part, not least ecumenically. As restorative projects grow for justice, as set out in the new youth justice Bill, I am sure that co-operation with the Government which is encouraged by the Minister will grow.
There is no shortage of good examples of such voluntary work: the youth offender institutes, schemes in London and Newcastle of mentoring young people and initiatives like the Langley House Trust, working with young people in drug rehabilitation centres in Lancashire and the West Midlands.
On the subject of drugs, I commend the initiative of the special drugs courts which have been pioneered in my city of Wakefield, where people are sentenced to drug treatment rather than to custodial sentences. One young lad in Wakefield who was sentenced by the magistrates to such non-custodial treatment has said that as a result of the treatment he feels able, for the first time in his life, to relate to other people. As the most reverend Primate the Archbishop of Canterbury put it in his Prison Reform Lecture:
"The language of justice [must be] dominated by the aim of restoring broken relationships".
8.4 p.m.
Lord Taverne: My Lords, I too welcome the debate and its introduction by the noble Earl, Lord Longford. I have also long admired his approach to prison reform; he has always been willing to swim against the tide and

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go against popular opinion when it was intolerant. At one stage for a while I was a Home Office Minister. I learnt that a good Home Secretary from time to time must go against public opinion when it shows itself not only to be intolerant but to be crying out for remedies which are totally self-defeating.
I do not claim to speak with any particular expertise, I shall concentrate on one aspect: prison and drug addiction. I speak with a special interest. I am chairman of a charity concerned with the treatment of drug abuse called ADAPT. The initials stand for Alcohol and Drug Abuse Prevention and Treatment. What I shall say is based on a session I had with about 20 former patients of the charity who had given up drugs after treatment. They talked frankly about their lives in the presence of a journalist. They were men and women aged between 25 and 35, mainly men. Most had spent almost all their adult life in prison. In some cases they had been addicts before they went to prison and in other cases they had been confirmed in their addiction while there.
One matter on which they were all agreed is that it is always easy to get drugs in gaol. I believe that is fairly generally accepted now. It helps to pass the boredom of a long sentence. They stated that there was an acceptance of it by the prison staff who were only too happy to see a prison quiet and sedated. Occasionally there would be searches of cells, but that was strictly for show, it was signalled well in advance, everyone knew which cell would be searched and nothing would be found.
I do not say that that is necessarily the case. I report what the former patients said, on which they all agreed. Some first became addicted to heroin and other hard drugs in gaol, and none of them in that group would ever confess in prison that they were addicts. If they were, they would be sent to the hospital wing. So far as they were concerned, that wing was full of weirdos and loonies and they certainly would not want to go there. Much better to do your time quietly and under the influence of drugs. That does not suggest that any cure for addiction based essentially on treatment in prison is likely to be successful.
When those people left prison, they would have enough cash to get their first bit of "gear", as they called it. They all knew where to find dealers and, after that first shot, life became a perpetual hunt to try to steal enough for the next shot. The Select Committee in the Home Office stated that on average those people needed about £80 a day. The figure which we use on the whole is that they tend to need about £100 a day. That means they must steal about £300; so on average the cost to the nation of a drug addict is in the nature of £100,000 a year.
It is the view of many policemen to whom I have spoken that 60 per cent. to 70 per cent. of crimes are in some way drug-related. That is not inconsistent with the report of the Select Committee which stated that the Probation Service and the Association of Chief Police Officers found that the addicts known to them committed about one-quarter of all recorded crime. They know only a small proportion of the total number of addicts.
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The group of people also stated that until they had their fix, they were not human. As the right reverend Prelate said, they cannot relate to anyone, they are totally obsessed. It is not that they hate people or society. Those who have been cured are normal and pleasant people. It is just that they could not feel or act like normal people except for a short time after they had had their fix. If they were lucky, they might steal something worth thousands of pounds which fell off the back of a lorry. That meant that they could have a few days in which they could deal in drugs to support their habit rather than steal. Of course, if they were caught they were classified as dealers and inevitably went to gaol.
Most of them only came to look for treatment when they became desperate. They were from broken families, they were mothers who had lost their children, people who realised that all their friends were dying and they would be dead unless something was done. Then something finally makes them seek treatment. It is only when they really wish to have treatment that it is likely to be effective.
The lessons seem clear. First, prison is the worst way of dealing with addicts and yet—perhaps because of the pressure of public opinion—many magistrates and some judges still insist on prison in the case of addicts. There have been cases where someone was out on bail, successfully completed their course, had to go back before the magistrate or the judge because they had been on bail, and were then sentenced to prison. Of course, all the good work was immediately undone.
The second clear conclusion is that money invested in treatment—especially in residential treatment, which can be surprisingly successful—pays for itself in spades. It saves lives, it prevents the misery of the addict, the misery of the addict's family and the misery of the addict's victims. It could save society hundreds of millions of pounds.
My third conclusion is that at present the priorities are still wrong. Last year saw a decrease in the number of residential places which were available for treatment. Several residential homes had to close for lack of funds. That really is a disgrace.
Fourthly, the process of obtaining treatment and getting a local authority to agree to spend the money is extremely tortuous and slow. It need not cost any money for this treatment to be more sensibly devised. If local authorities do agree to pay for somebody's treatment, the payment is often slow and very late. There are many charities, including our own, which are caused acute cash flow problems.
Fortunately, the Government are beginning to recognise the problem. There will be more funds available after April, which is extremely good news. I am not sure that there is an effective cost benefit in the spending of funds because money spent on drug treatment is so much more effective than money spent on prisons. I am not sure that the Government have really sufficiently grasped that spending a few more million pounds on the new development of sentencing people to residential and other forms of treatment is a much better way of dealing with crime than building more prisons or sending addicts to gaol.
8.12 p.m.
Lord Warner: My Lords, I believe that the Government deserve enormous credit for the way they have begun the process of re-establishing confidence in community sentences. In considering the Government's response to the Home Affairs Committee's report, it is important to bear in mind the very difficult situation that the Government inherited in 1997. At that time the infrastructure for constructive regimes inside and outside prisons had been badly damaged. I can say this with considerable confidence having entered the Home Office in May 1997 as the Home Secretary's policy advisor. It was not unlike a US cavalry force relieving a beleaguered fort in a John Wayne film.
The previous government had failed to match the Prison Service's funding to their rhetoric about "prison works". The present government have delivered their manifesto pledge to audit prison service funding and, in July 1997, added more than £40 million to the prison budget.
In 1997 constructive regimes had been reduced and preparation for early release curtailed. The Probation Service budget had been cut and its professional qualification had been abolished. Sentencers had been encouraged to opt for longer sentences, irrespective of whether the Prison Service was funded to cope. Average sentence length increased in Crown Courts from 21 months to 24 months between 1992 and 1997. The Audit Commission's perceptive analysis of the failings of the youth justice system had been dismissed by the previous Home Office Ministers. The Chief Inspector of Prisons has drawn attention to the shortcomings of strategy and practice in his thematic reports on young offenders and women prisoners.
This is the background against which we have to consider the Government's response to the Home Affairs Committee report. Of course there are shortcomings in the Probation Service but these cannot be put right by inadequate funding and denigration, which is what it has suffered in recent years. The Probation Service now recognises that its primary duty is to protect society and that it has to work closely with the Prison Service and police in discharging this responsibility. Most people in the Probation Service now appreciate that evidence-based practice is essential, and the guide on this issue, which was issued by the Home Office and published last October, will foster effective practice. The Probation Service knows that community sentences have to be enforced if sentencer and public confidence are to be maintained. I am pleased to have played a part in restoring the Probation Service's professional qualification in the form of the new Diploma in Probation Studies.
These changes are critical to producing effective alternatives to prison, along with the realistic budgets that the Government are now restoring to the Probation Service. Without this restoration of morale and greater clarity of purpose we cannot have a credible strategy for community punishment. Everybody is impatient for change but time is needed to restore the damage done in the period before 1997.
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One of the most encouraging features of the past 18 months has been the Government's willingness to expand the use of electronic monitoring as an alternative deprivation of liberty to prison. The introduction of home detention curfews and the national roll-out of curfew orders with electronic monitoring present the opportunity to reduce the unnecessary use of prison that has been a feature of our recent past. We need to explore how technology can be used more as an alternative to bricks and mortar for curbing liberty and an alternative to prison and punishment for offending behaviour.
Two areas that I should like to see considered are those of secure remands for juveniles and day prisons for women and some male offenders. There is a danger of swamping secure facilities for juveniles with secure remands. With national roll-out of electronic monitoring the opportunity will be there to make greater use of it, through youth offending teams, as an alternative to very expensive secure remands, which can cost £2,000 to £3,000 a week.
I remain unconvinced by the rapid increase in recent years in prison sentences for women. The female prison population increased by over 70 per cent. between 1992 and 1997, double the male rate of increase. Many of these women were sentenced for drug offences and the consequences for the families of these women, especially their children, are rarely fully understood and measured. I believe we have to look for alternatives to conventional custodial sentences for many of these female offenders.
I accept fully the Government's response that weekend prison is unlikely to be viable. However, I should like to see a willingness to experiment with using electronic monitoring to curtail movement at home and to ensure attendance at day facilities where programmes for tackling drug dependency and offending behaviour could be provided. These community approaches might be a better alternative for many female and male offenders involved in drug related offences.
The new detention and training order for juveniles under the Crime and Disorder Act could provide a model for new sentences for adults with part of the sentence served in prison and part in community supervision. The successful introduction of the home detention curfew would make this easier and more publicly acceptable. There is no particular reason why, for many offenders, courts should not order sentences with a short custodial element to bring home the seriousness of the offence but with the bulk of the sentence served under community supervision, with compulsory participation in drug treatment programmes and other programmes for tackling offending behaviour.
Finally, I want to say a few words about sentences. The Times yesterday carried a report headed "English judges getting tougher". This was based on a report on international comparisons on criminal justice being compiled by NACRO. It shows that after American judges, English judges impose the stiffest sentences. We need to build up the credibility of alternatives to prison so that courts have the confidence to use them without

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fear of losing public credibility and the kind of tongue-lashings they occasionally received from Ministers before 1997.
Major improvements have been made by the Government as their response to the report of the Home Affairs Committee shows, but this country still has more people in prison and for longer periods than is necessary for public protection. Over time we need to shift the balance further towards strictly enforced and demanding community alternatives if we are to reduce re-offending.
8.20 p.m.
Lord Davies: My Lords, I also thank the noble Earl for initiating this debate on such an important subject and pay tribute to his unceasing work in this field over such a long period, including his founding chairmanship of the charity The New Bridge, which does excellent and innovative work to improve the lot of prisoners and the community. I fear that future generations and their historians will look back in horror at our penal system and the way we treat those who are locked up in our prisons. We lock up not only murderers and rapists and other dangerous criminals but also fine defaulters, people who have committed an error of judgment on our roads, or elsewhere, which have resulted in serious accidents, the mentally ill and disordered who have often been let down by our health system and very many others for whom prison will do no good and whose presence in prison will produce no benefit to society.
Under the present system we let out some of our most dangerous criminals when they are at least as dangerous as when they went in, to the consternation of the societies to which they return. Such criminals need humane but secure accommodation, not as punishment but to protect the public and themselves. What is required is the possibility to impose the sentence "until safe to release". But for the majority of others prison is expensive, damaging and often counter-productive. Alternative sentences, suitably resourced, are desperately needed. Equally important as their development is the need to sell them to the public. They must be seen by the public as being both relevant and appropriate. A proper publicity campaign needs to be mounted to explain and expound alternative sentences as they are developed, as I trust they will be. The depth of the public's misconceptions in this area is revealed by the British Crime Survey. This has been blamed on the media and the way that crime stories are treated. But one would have thought that more could be done by the Home Office to keep the public abreast of the facts as they relate to crime and punishment. At present some sentencing seems to be geared more to placating the victims or their families' rage. While that is understandable, surely it is not a reason for blighting further lives when often a simple mistake has had disastrous consequences. There have been some honourable exceptions to this tendency where victims' families have shown great support for the culprits.
I hope that in the long term prison will be confined largely to those criminals who pose a continuing danger to the public and that alternative sentences will be found for the rest. These must not be soft or easily ignored. It
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may be said that the deterrent effect will be lost, but by far the greatest deterrent for crimes where a calculation of benefit is made is the likelihood of being caught. For very many crimes committed in passion or when drunk or drugged or in rage deterrence is irrelevant and sentencing should concentrate on curing the problem rather than, as is so often the case, adding to it by time spent in prison. It appears that criminals come out of prisons better equipped as criminals, are more likely to be on drugs, and to have serious diseases. The pressure of numbers means that the system is too stretched to provide much rehabilitation that may alleviate these problems. In addition, their families may have been broken up. Society therefore suffers on all fronts. I hope that the Government will see it as worthwhile to put major resources behind the search for and development of alternatives to prison.
8.24 p.m.
Viscount Tenby: My Lords, I too join the chorus of thanks to the noble Earl, Lord Longford, for giving us the opportunity to discuss the recent admirable report of the Home Affairs Committee on alternatives to prison sentences and, with the figure of 66,000 always before our eyes, to hear the Government's thoughts on this vital subject. As long as the noble Earl patrols his particular patch, there is little danger of the prison system being taken for granted and no chance whatsoever for self-congratulation on the part of the Prison Service or whatever government happen to be in power at the time.
In addition to expressing pleasure that the Minister is to wind up this short debate, I congratulate him on his stamina. As far as can be ascertained he will have played a leading role in nearly all of today's business other than the taking of Prayers. I can assure him that I shall be studying the ordination list for the Church of Wales with more than usual interest in the months to come.
I have a particular interest in this subject. Indeed, I made my maiden speech many years ago on this topic in a debate initiated by my noble friend Lord Allen of Abbeydale, whose expertise and wise judgment in this area command respect on all sides of this House. I also recall ruefully that on such an important subject it was particularly difficult to abide by the convention of impartiality normally observed on such occasions. Since that time there have been some improvements and the readiness with which the Government have responded to the very real problems highlighted in the report leads me to hope that there will be more in the near future.
While it is true that the number of people imprisoned for non-payment of fines, for example, has declined markedly in recent years, the fact remains that we are still sending far too many offenders to prison who do not have to be there and who will suffer as a result of being there. I hasten to add that I exclude from these remarks any sentencing policy related to repeat offenders which may have been floated earlier today. Although steps are being taken to draw up national sentencing guidelines, too often what is received by way of sentence in the lower courts in particular is something of a lottery. For example, why should theft in the North West attract a prison sentence but not in the home

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counties? The very essence of local justice is that it should take account of local circumstances, but only so far.
The only practical way of reducing the prison population is to have viable alternatives. In the time available I propose to concentrate on one of the most important of these alternatives: the community service order (CSO). The report identifies weaknesses in the system as it now is and the action that needs to be taken to rectify the situation. First, it is clear that the information relating to the success or otherwise of CSOs just is not there, although, disappointingly, there appears to be an indication that recidivism is as common among ex-CSO offenders as among those who receive custodial sentences. If this is irrefutably the case, we need to know why, and the sooner the better.
Secondly, according to a 1995 Home Office study, the record of CSO placement visits by sentencers is abysmal: 26 per cent. of JPs and judges, with only 7 per cent. recorded for stipendiary magistrates. Speaking from recent experience as a magistrate on what I would categorise as a go-ahead bench, I can testify to never having been given the opportunity to go on such a visit—I was unaware of anyone else who did—whereas prison visits were an annual feature of the training year, and rightly so.
I hear murmurings in the report that judges are busy people and they may not be able to find the time to do this. However, community service work for the most part takes place on Saturdays. Magistrates are busy people who hold down other jobs and frequently must work in their spare time. I make that point for what it is worth. We are promised that the noble and learned Lord the Lord Chief Justice will draw the attention of judges to this important duty. I hope that the noble and learned Lord the Lord Chancellor will do the same for stipendiaries and magistrates. I should be grateful for assurances from the Minister that that exercise will be monitored closely.
Thirdly, the public perception of such orders prompted, it must be said, by the tabloid press in its silliest mood, is that making such an order amounts to an easy option for offenders compared with anything else other than, perhaps, probation itself. As the noble and learned Lord the Lord Chief Justice pointed out, the very title "community service order" and the implication in some quarters that its execution represents some sort of voluntary contribution to society is profoundly mistaken. It is not a piece of voluntary work and a title like "criminal work order" would be far more appropriate.
The report draws attention also to the deplorable use of the word "client" in some extreme cases. What a load of modern codswallop—I apologise for the unparliamentary language. Since when did the words "criminal" and "offender" become no-go areas?
Lastly, I deal with the important subject of breaches of such orders. Failure to deal with those promptly and adequately only confirms the public's view that the whole thing is a con and a soft option and, in any event, defeats the purpose of the original sentence. If the police are unable to serve warrants, then with a heavy heart
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I seek an assurance from the Minister that trials with private security firms will be put in hand as a matter of urgency. I also ask the Minister to comment on the possibility of including a new offence—that of deliberately breaching a CSO—in the next criminal justice Bill, which will surely be coming as predictably as the leaf fall next autumn, alongside other goodies like transferring to magistrates the decision on mode of trial in each-way cases. The Minister knows that that is a preoccupation of mine. Some of us look forward to that with relish.
I have no time to mention fines, but roll on hypothecation, I say, and the incentive for courts to collect promptly. Nor am I able to mention the tragic mothballing of the suspended sentence other than by a few adventurous sentencers in favourable circumstances.
I conclude by referring to another preoccupation of mine in the area of detention of young offenders. I do not refer to the secure training centre, that ill-judged venture of the previous Administration, as we are now at last, sadly, seeing in Kent; nor yet the young offenders' institution. I am referring to secure local accommodation. I am considerably heartened by the Government's response to the report when they observe in their publication No More Excuses:
"The Government believes that present arrangements for the provision and management of secure accommodation are inefficient and incoherent and in need of reform".
Amen to that. We need more local secure accommodation urgently as a practical and proved alternative to STCs and YOIs. We need them all to conform to rigorous national standards and we need regular inspections to ensure that they do.
I welcome this constructive all-party report and I welcome too what I detect is a readiness by this Government to take account of the undoubted weaknesses in the system which it highlights. Like all of us taking part in this debate, we look for a substantial drop in the prison population, allied to a more effective use of resources in the provision of alternatives to custody.
8.33 p.m.
Lord Dholakia: My Lords, I apologise for having missed the noble Earl's contribution. I was delayed at another meeting. I hope that he will forgive me as I forgave him when he last postponed this debate.
The noble Earl is right to raise this issue once again. The Home Affairs Committee has produced its report and we now have the Government's response to it. The noble Earl will have seen that I included my concern about prison overcrowding when I spoke on health and home affairs during the debate on the Queen's Speech. I do not wish to rehearse the arguments again in the time available to me. However, I take this opportunity to identify areas where the present Government have a distinct approach to criminal justice matters as compared with their predecessors.
We can all be critical of prison overcrowding, and rightly so, because if there is one matter which concerns all practitioners in the criminal justice system, it is the

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end product of that system; namely, prisons. The Home Secretary has adopted a more constructive line than the previous Home Secretary, Michael Howard, in relation to the prison population. But whether all his actions will mean a reduction in the prison population has yet to be seen. For his sake, I hope that he will achieve such a reduction.
There are a number of areas which need to be highlighted. He has dropped Michael Howard's "prison works" rhetoric which encouraged the courts to imprison so many more offenders. He is introducing a system of early release of short-term prisoners under electronic tagging, which should reduce the prison population by about 3,000 when it is introduced in January.
I am grateful to the noble Lord, Lord Warner, for raising that matter. However, I have a concern about that which I raised earlier in a question to the Minister. About 50 per cent. of people who sleep rough in London alone are youngsters who are involved in the criminal justice process. Those people will not benefit from electronic tagging because no system has yet been developed which can help them in terms of early release from the prison situation.
The Home Secretary is introducing a new drug treatment and testing order which should certainly be a better option than imprisonment for drug-addicted offenders. He is also encouraging the probation service to develop supervision programmes based on the evidence of what works best in reducing re-offending. He is also planning to legislate for shorter time limits for the pre-trial process, which should reduce the population of prisoners on remand.
Of course, we should like the Government to go further and argue strongly and clearly that the courts are over-using prisons and that they should be used much less. I explain why that is necessary. Let us look at the sentencing climate. It is now well established that sentencers' decisions can be affected by the media and the political climate. It is possible for Ministers to talk up or talk down the prison population. The last Home Secretary's "prison works" rhetoric helped to do the former.
It is important that Ministers should continue to devote high profile speeches to the case for greater use of rigorous but constructive community sentences. They must highlight the case for particular types of community sentences; for example, drug treatment orders, cognitive skills and anger management programmes, reparation and community service and programmes geared to women offenders. If such speeches are sold to the media by the familiar techniques of trailing them beforehand and highlighting the key points to the media on the day, that can help promote a more balanced climate. That effort needs to be sustained over a considerable period of time.
Let us look at what sort of information is available to sentencers. Sentencers see their failures in that those who re-offend return to court, sometimes repeatedly, for further offences. However, courts do not see their successes. They do not see those who do not re-offend again after community or financial penalties. If
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sentencers' confidence in community sentences is to be increased, it is important that they receive more systematic feed-back on the success of individuals whom they and their colleagues have sentenced and on the overall success rates of local community supervision programmes. Sentencers should also receive regular information on the problems which current levels of imprisonment are causing for local penal establishments. I strongly urge the Minister to use area criminal justice liaison committees for that purpose.
Community sentences are rightly an alternative to custodial arrangements. While the research on what works is still far from comprehensive, there is now a sufficient body of evidence to indicate that some types of community supervision programme are more effective than others in reducing re-offending.
The Home Office should build on the excellent work of the Chief Inspector of Probation by drawing up a "national curriculum" of the most effective types of community supervision programmes and taking steps to ensure that those are available to courts in all areas.
I should fail in my duty were I to miss out two groups of people who require special consideration when sentencing is considered. Let me first refer to women prisoners. The number of women in prison has more than doubled in the last six years. Sending a woman to prison not only punishes the offender but is also likely to have a damaging effect on her children. Whatever the reason for the dramatic increase in the number of women in prison—and more analysis of the reasons is needed—it cannot be true that there are now twice as many women as five years ago from whom society has to be protected. The "national curriculum" of community sentences should pay special attention to ensuring that there is adequate provision of programmes which can provide a realistic alternative to custody for women.
Finally, with regard to our approach to mentally disordered offenders, a large number of mentally disordered people are held in prison service establishments. They should not be there, but ought instead to be in hospital or to receive the care and treatment they need in the community. There is a need to build upon and expand existing schemes for psychiatric assessment at police stations and courts, to divert mentally disordered offenders from the prison system into the health services, and to improve the speed with which prisoners who have slipped through these nets can be transferred from prison to hospital. A number of pilot projects have demonstrated that diversion programmes have an important role to play.
I thank the noble Earl again, but I have no doubt that the Minister whose responsibilities now include prisons is as keen as many of us to ensure that prisons have clear objectives and are used only when no other alternatives are available. It is in all our interests to see that we have a manageable prison population. Building more prisons is not the answer.
8.41 p.m.
Viscount Bridgeman: My Lords, I join with others in thanking the noble Earl, Lord Longford, for initiating

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this debate. His deep concern for and interest in the penal environment in this country is a subject of great admiration. We are fortunate indeed to have the benefit of his wisdom and experience in this House on these matters.
The need continually to seek alternative treatment to the essentially negative effect of prisons has been sensitively and sincerely treated by all sides of this House; but may I, on the practical side, say that we on these Benches are acutely aware that the pressure on both costs and accommodation in this country's prisons cannot be ignored. We are convinced that for serious offenders a prison sentence remains the only effective punishment. There is no doubt, too, as poll after poll has shown, that the public support proper sentencing and any perceived easing will drastically undermine public confidence in the criminal justice system.
We do welcome the initiative of the Home Secretary today in his decision to implement the dictum "the third burglary means prison". Nevertheless it is essential that alternatives to prison sentences must be considered and these have been dealt with in detail in this debate tonight: probation, community service, attendance sentence orders, compensation, confiscation orders, cautioning with restorative justice and fines, and so forth.
It so happens that today we see the introduction of electronic tagging under the Crime and Disorder Act, a subject to which the noble Lord, Lord Warner, has referred. We support electronic tagging. This was somewhat slow to be accepted by the police, but it has now gained wide acceptance. There must, however, be a note of concern, which is that tagging is in danger of being used as a way of releasing prisoners early. For instance, prisoners hitherto sentenced to six months' imprisonment could expect to serve three months in prison and then be discharged. Under the current electronic tagging arrangements, provided that their application for tagging is granted, they will serve only six weeks in prison and then six weeks being electronically tagged, and will be released thereafter.
However, I welcome it in one particular respect. The use of tagging for young prisoners on remand—a subject to which the noble Lord, Lord Warner, referred—can mean that some, at least, are not thereby sent to adult prisons: the worst possible location for a young remand prisoner. This, I know, is a concern of the noble Lord.
I hesitate to lecture such a distinguished member of the Criminal Bar as the Minister, but if alternative sentencing is indeed to assist in deterring an offender from committing future crimes, or in protecting the public, or as an example to others, then it must be seen in that light. Alternative sentencing must not be driven solely by consideration of cost or of overcrowding, and it most certainly must not come to be regarded as a backdoor to an easier life for the prisoners. So in that light I seek a reassurance from the Minister that, notwithstanding all the alternatives to custody which the Government have the right and duty to evaluate, that they still accept that for serious crimes there is no alternative to a prison sentence.
8.44 p.m.
Lord Williams of Mostyn: My Lords, I readily give that assurance. I think the Home Secretary has said it more times than I can recall. I have said it myself. For some serious offenders prison is necessary in the public interest: for deterrence, for punishment and for the protection of the public. The central duty of any government, let alone any Home Secretary, is the protection of the public, but the protection of the public does not solely depend on prison sentences. In July 1998 the prison population was 66,500 and on the 12th January of this year it was 64,378: a decrease.
The noble Earl, Lord Longford, misheard me, I think, when he was offering to instruct me if he ever got into serious criminal trouble. I did not say I would not represent him. I said I would find some mitigation for him: namely, an hereditary peerage, born into an over-privileged family, taken away from his family far too young as a child and therefore never having had a proper chance in life.
In some ways this debate has been a shade disappointing. Your Lordships have been tilting at windmills whose locations have been moved and whose sails have been taken away. It is almost impossible for me to describe the transformation in attitude towards dealing with crime, its prevention, its deterrence and public protection, that has occurred since May of last year. I shall be quite brief because I simply invite your Lordships to study the Crime and Disorder Act, and see the themes and philosophies which have been expressed by the Home Secretary and myself on so many occasions, to look at what we are doing in the Youth Justice and Criminal Evidence Act and to see what has been done under the chairmanship of the noble Lord, Lord Warner, in the Youth Justice Board.
Many of the observations made tonight are of historic interest only. We do not believe that prison works. We believe, as Jack Straw has said, that for those who have to be in prison you have to make prisons work. It is rather depressing to note no recognition by some of your Lordships of the work that is done by the Prison Service—the rehabilitative, dedicated and skilled work which actually makes prisons work, because it gives those who have never had an opportunity a chance of making something of themselves.
It is gloomy not to hear a better recognition of the work done by the Probation Service and it is distinctly disappointing not to recognise the fact that we have actually instituted for the first time ever a prison probation review so that we will come to the conclusion—an amazing one—that for the Prison Service and the Probation Service to work together with the same population at the same time is rather a good idea. Your Lordships, I think, might have recognised that a little more graciously.
There is an extraordinary amount of work being done at the moment: exciting, brave, bold. It is not kowtowing to any momentary spasm. It is, I repeat, recognising a central fundamental duty of the Home Office to see to public protection; and public protection depends on public confidence. It is idle to say that those who go to prison are simply unfortunate. Tell that to the elderly

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single woman whose house has been burgled. That crime is wrongly described as a crime against property: it is a crime against the person, sometimes with effects that never disappear. In those circumstances, a penal sentence is not only necessary but essential, and it is wholly justifiable.
Let us look at the themes behind the Crime and Disorder Act. They are for early intervention. There was much scoffing among the ill-informed about the purpose of that Bill simply being to lock up 10 year-olds. Nonsense, my Lords. Early intervention means that the 10 year-old does not become the 17 year-old incarcerated juvenile prisoner or the 27 year-old recidivist who eventually stops committing crime at 45.
Let us look at the local plans rightly devolving decisions about local concerns and worries to local communities, setting forth for the first time the statutory purpose of the youth justice programme; namely, the prevention of crime and the reduction of juvenile offending.
Look at the early intervention in juvenile cases and family assistance. None of those tasks has been addressed in the past 15 years and more. We have begun the work in the past 18 months. The right reverend Prelate misquoted. I know that Biblical quotation may be a distinct speciality, but he chided me with the rather pale observation that,
"some additional resources may be needed for national implementation of the new range of youth justice services".
I must say this to the right reverend Prelate. I have read the whole citation. I read it to your Lordships. The Government's response states:
"One of the Government's purposes in piloting the youth justice provisions is to enable us better to assess the resource implications … In doing so, we will be looking at how the new arrangements can build on existing provision and how, through new ways of multi-agency working, the youth justice measures can be delivered most cost effectively. We recognise"—
this is the citation given by the right reverend Prelate—
"that some additional resources may be needed for national implementation of the new range of youth justice services"—
the right reverend Prelate paused there, but I continue—
"and the pilots will help us explore this fully".
I do not put that in a tendentious way. I simply express a degree of regret that all the work which is already well under way is barely being recognised by some of your Lordships. It is worth going to prisons to see what is being done on anger management programmes, drug offending programmes, and so forth.
The home detention curfew is a tool to manage the return of offenders to the community. As Mr. Kenneth Baker, when Home Secretary, said in his evidence to an earlier House of Commons committee, we need to recognise that almost all offenders go back into the community. The home detention curfew is designed to manage exactly that. We know the indicators for re-offending: no home; no job; no community ties. The
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purpose of the home detention curfew is to see whether one cannot manage people back into a job, a home and community ties. If it does not work, the sanctions are severe.
What are we doing about the Probation Service, which in so many aspects is coincident with the Prison Service? We are encouraging the Prison Service and Probation Service to work together. I pay tribute to the Association of Chief Officers of Probation and the National Association of Probation Officers for the open-minded approach—I do not say that it is more open-minded than some of the observations tonight because that would be indecent, but wholly right—to the proposals that we are making. I have said to them, and I repeat to your Lordships, that if they fail, we fail; and they are happy and open-minded about a new constructive way.
What about resource? The former government's proposals for the forthcoming year for the Probation Service were a diminution of £6 million. Jack Straw has struck that out at a stroke and increased the amount by £18 million. That is a £24 million difference. Prison additional spending over the next three years is a further £660 million. I take the point made by the noble Lord, Lord Taverne, about the real menace of drug-taking as a contributory factor to crime whether or not inside prison. We are ring-fencing money for dealing with drug-taking in prison; and we are ring-fencing money for the drug treatment and training order outside prison. It has never been tried before. That is a source of constant shame to us all.
We should not be dismal. We should consider what has been done and what is being done, and it is a good, promising start. There is a lot of work to be done. We are starting on a long, difficult journey. It will not always be popular. Jack Straw knows that better than anyone. Nevertheless, he is determined to do the right thing. I believe that, if this debate is related to the response, Alternatives to Prison Sentences, it will be very difficult indeed for the chairman, Chris Mullin, or any of the members of that admirable committee of another place to say that we have not responded fully, promptly and faithfully.
The Earl of Longford: My Lords, before the Minister sits down, perhaps I may venture to ask whether my noble friend is aware that anyone who visits prisons once or twice a week, as I do, has seen no improvement since Labour came into power.
Lord Williams of Mostyn: My Lords, I visit prisons regularly. I dispute what my noble friend says. It is not the evidence I hear and see on every occasion. I further pay tribute to what members of the Prison Officers' Association are doing in conducting new, vigorous courses which are a distinct improvement for many young men in the Prison Service today.
House adjourned at five minutes before nine o'clock.