Lords Sitting of 15 July 1999

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by Lord Bishop of Gloucester.): The LORD CHANCELLOR on the Woolsack.
Lord Forsyth of Drumlean
The Right Honourable Sir Michael Bruce Forsyth, Knight, having been created Baron Forsyth of Drumlean in Stirling, for life—Was, in his robes, introduced between the Lord Harris of High Cross and the Baroness Thatcher.
Baroness Warwick of Undercliffe
Miss Diana Mary Warwick, having been created Baroness Warwick of Undercliffe, in the County of West Yorkshire, for life—Was, in her robes, introduced between the Baroness Symons of Vernham Dean and the Baroness Amos.

Pakistan: Debt Restructuring
3.12 p.m.
The Earl of Northesk The Earl of Northesk asked Her Majesty's Government:
Whether, as a member of the Paris Club, they will encourage the Government of Pakistan not to default on their public debt.
Lord McIntosh of Haringey: My Lords, Her Majesty's Government encourage other governments to meet their financial and contractual obligations. Pakistan's IMF programme envisaged that it would need to seek debt relief from all its creditors. In its agreement with Paris Club creditors, the Government of the Islamic Republic of Pakistan agreed to seek comparable treatment from all their other official bilateral, commercial and private creditors.
The Earl of Northesk: My Lords, I thank the Minister for that Answer. Does he accept that an essentially Washington-inspired insistence that Pakistan should default on its debt, particularly in Eurobonds, could give rise to a disastrous political instability in an already tense part of the world? Does the Minister also accept that such a move would set a dangerous precedent, the economic consequences of which would have severe repercussions for developing countries generally?
Lord McIntosh of Haringey: My Lords, I do not accept the noble Earl's premise for either of those questions. It is not a Washington-inspired commitment. The IMF meeting on 14th January this year and the Paris
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Club meeting on 30th January recorded what I quoted in my first Answer; that the Government of Pakistan agreed to seek comparable treatment from all their other official bilateral, commercial and private creditors.
Baroness Williams of Crosby: My Lords, does the Minister agree that the situation of Pakistan has worsened in the past two months, with approximately one third of its total reserves leaving the country and with a sharp fall in the amount of inflow of capital into the country? Given the possible repercussions of the destabilisation of Pakistan, will the Minister consider whether the Paris Club might look again at the prospect of rescheduling Pakistan's debts so as to encourage the upholding of civil authority and a more moderate government of the kind we have at present?
Lord McIntosh of Haringey: My Lords, the decision of the Paris Club on 30th January involved a substantial contribution from its members towards the economy of Pakistan; and the reorganisation of the external debt of Pakistan resulting from loans and guaranteed credits extended by participating creditor countries. The amount of debt then involved—I do not have up-to-date figures—was approximately 3.3 billion dollars. I accept what the noble Baroness says about the situation worsening and I have no doubt that the Paris Club is keeping that under consideration.
Lord Ahmed: My Lords, is my noble friend the Minister aware that, according to the UN human development report, more than 40 million Pakistanis live below the poverty line, earning less than £1 a day? Therefore, will Her Majesty's Government support a debt relief scheme for Pakistan?
Lord McIntosh of Haringey: My Lords, we are well aware of the economic problems in Pakistan, which is why earlier this year the IMF set out macro-economic objectives for the next three years. They involve a recovery in GDP growth; a reduction in annual inflation; a reduction of the external current account deficit; stabilisation of total public-sector debt to GDP ratio; and an improvement in social indicators. The issue of debt relief, other than the restructuring I have described, goes wider than that in the Question on the Order Paper.
Viscount Waverley: My Lords, notwithstanding the recent rating increase from CCC to CC, how is the state of Pakistan reasonably expected to service a public debt of 43 billion US dollars with reserves of 1 billion US dollars, an average annual income of 400 dollars, and only 1.3 per cent of the people actually paying taxes?
Lord McIntosh of Haringey: My Lords, I am not in a position to comment on the noble Viscount's detailed figures. The restructuring of the debt is precisely the way in which the IMF and the Paris Club see the way

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forward. It is recognised that in its present economic condition, Pakistan is not capable of servicing the debt without some restructuring.
Lord Chesham: My Lords, does the Minister believe that government or multi-national body interference in private-sector lending to governments will help the Eurobond market in London?
Lord McIntosh of Haringey: My Lords, I do not accept the premise of that question either. The noble Lord implies that it is this Government or governments of the Paris Club which have invited Pakistan to default on its Eurobonds debt. That is not the case. In contrast, the Government of Pakistan have agreed to treat all chair debts, both sovereign loans and commercial debts, on the same basis.

UN Mission in Kosovo
3.19 p.m.
Lord Hurd of Westwell Lord Hurd of Westwell asked Her Majesty's Government:
What action they are taking to build up the United Nations civilian administration of Kosovo, recently authorised by the Security Council.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, we believe that the United Nations Mission in Kosovo (UNMIK) should exercise fully its authority under UNSCR 1244. We are actively supporting efforts to build up the capacity of UNMIK.
British personnel already hold key UNMIK positions. We have offered up to 60 British police officers and continue to identify personnel with specialist skills in other areas for urgent secondment to UNMIK.
Lord Hurd of Westwell: My Lords, I am grateful to the Minister for that reply. Kosovo is now virtually an international trusteeship with NATO acting on the military side and the UN on the civilian side, which she mentioned. Does the Minister accept that it is essential that the UN civilian efforts should be built up so that the UN can re-establish public services, the rule of law and all the elements of a civil society?
Perhaps I may raise two points. First, I am grateful to the Minister for her reply regarding police officers. As I understand it, the UN needs 3,100 police officers, but 2,000 have been pledged. Can she tell the House how many are already in place in Kosovo? Secondly, experience in Bosnia showed that some kind of independent radio and television was highly desirable. Can anything be done, perhaps by a British initiative, to set up in Pristina some kind of independent radio and television so that people can receive more objective news than that which is pumped out of Tirana or Belgrade?
Baroness Symons of Vernham Dean: My Lords, I agree with a great deal of the comments made by the
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noble Lord, Lord Hurd. The UN has been asking for a number of member states to provide people with specialist skills in 10 priority areas which they have outlined. I am happy to tell the House that one of those priority areas is the postal service, which was mentioned in your Lordships' House yesterday.
The noble Lord asked how many policemen have been deployed so far. An advance party of over 100 UN police officers has now been deployed to Kosovo to establish a headquarters and to liaise with KFOR. The main body, which the noble Lord mentioned, of just over 3,100 police officers, is expected to begin arriving in a few days time.
The noble Lord also asked about supporting what might be described as indigenous media in Kosovo. The Foreign Office has already given £66,000 to enable Koha Ditore, the Kosovar-Albanian newspaper, to begin printing. DfID has agreed funding for a second-hand printing press, to the tune of about £150,000. I can also tell the noble Lord that DfID has given some 150,000 dollars to the exiled Kosovar-Albanian Radio TV21 for equipment and staff costs. The grant has two aims; that is, to enable broadcasting from Skopje and to re-establish it in Pristina. The point raised by the noble Lord has been recognised. Funding has been provided by the United Kingdom.
Baroness Williams of Crosby: My Lords, first, can the Minister tell the House the number of British police officers among those now about to be deployed in Kosovo? Following the comments of the noble Lord, Lord Hurd of Westwell, does she agree on the urgency of this matter? In some areas of Kosovo it is fairly obvious that the KLA is establishing a kind of para-police force presence, which is unfortunate in terms of trying to be seen to be utterly even-handed. Secondly, can she tell the House about the serious problems of refuse collection and sanitation in the province? I understand that in some cities and villages this problem is leading to a public health catastrophe.
Baroness Symons of Vernham Dean: My Lords, I remind the noble Baroness, Lady Williams of Crosby, that it was always recognised that KFOR would have to assume responsibility for law and order during this initial phase; probably even for the first few months. After all, it is more difficult to deploy police officers quickly than those already formed into military units. Currently, of the 100 British policemen I mentioned, seven are assisting United Nations with planning for civil policing; that is, the operation and establishment of the police headquarters. The United Kingdom Government have also offered to supply up to 60 British officers to recruit, train and monitor a local Kosovo police force. So, the offer of 60 has also been made.
The noble Baroness mentioned refuge collection. This comes under one of the 10 priority areas I mentioned, under which United Nations has asked a number of member states to try to provide some specialist skills. One of those is in the area of municipal authorities.
Viscount Cranborne: My Lords, does the Minister agree that the disarmament of paramilitary organisations

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in Kosovo is a prerequisite for establishing peace in what will undoubtedly become, for many decades, a joint UN and NATO protectorate? Does she agree that that precept in Kosovo also applies to other places?
Baroness Symons of Vernham Dean: My Lords, I recognise what the noble Viscount alludes to. I am hound to say that the cases he is comparing, which I recognise, are very different and have very different histories. A comprehensive undertaking was given by the KLA on 21st June. It provides for a ceasefire and for the weapons to be submitted within 30 days, with the exception of automatic small arms, which have to be handed over within 90 days.
The Earl of Carlisle: My Lords, does not the Minister agree that the UN aspirations on recruiting of policemen for Kosovo have been superseded by the reality of the situation? Is not what is needed armed policemen or gendarmerie? Can the Minister encourage the UN to call upon those Mediterranean nations, such as France and Italy, who have gendarmerie to send armed policemen to make up the numbers as quickly as possible? Failing that, would she consider asking the central European nations which have border guards and armed police, to join in?
Baroness Symons of Vernham Dean: My Lords, as I indicated, the main body of the UN peace corps is expecting to start arriving in Kosovo over the next few days. The UN secretariat has recommended that all UN police officers should have the possibility to be armed. I hope that answers the specific point raised by the noble Earl. However, the United Kingdom has a tradition of unarmed community policing. Therefore, most of the British police officers will be used in training, specialist skills and in democratic policing where they have particular skills to deploy.
Lord Renton of Mount Harry: My Lords, can the Minister tell the House the role of the Organisation for Security and Co-operation in all of this? What is likely to be the co-operation between the OSCE and the UN in this field? What specific functions can the OSCE perform, particularly in restoring Kosovo to a modern democratic society?
Baroness Symons of Vernham Dean: My Lords, the United Nations is in charge of the overall framework. As I am sure the noble Lord knows, the OSCE, the EU and the UNHCR are all taking responsibility for different parts of the administration, reconstruction and civil implementation, which are so important. The OSCE mission is taking the lead role in institution and democracy building and in human rights within the overall framework set by the United Nations. That will include the organisation and supervision of elections; the development of civil society; non-governmental organisations; political parties and the local media. The OSCE mission will also establish and run a police training school.
Lord Moynihan: My Lords, the Minister has been helpful in responding in part to the question raised by
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my noble friend Lord Cranborne as regards what is required from the KLA in terms of demilitarisation. Can she inform the House what progress has been made on this subject? To date I understand it to be very little. I hope she can report otherwise.
Baroness Symons of Vernham Dean: My Lords, I can report that the KLA undertakings appear to be going reasonably well. I am told that we assess the level of compliance by the KLA to be satisfactory and that those on the ground who are reporting back to the United Kingdom on this important issue—I accept what the noble Lord says in that regard—are happy with the position.

Ex-miners: National Spirometry Programme
3.30 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
Whether satisfactory progress is being made with the compensation scheme instituted for former miners with respiratory problems.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, the House will he aware that Healthcall Services Limited was awarded the contract for the delivery of the national spirometry programme throughout England, Wales and Scotland in March. It has since opened a dozen assessment centres in coalfield areas and further centres will be opening shortly.
So far Healthcall has completed over 2,500 assessments, and we have written to over 1,000 of these claimants making, wherever possible, offers of interim and full and final payments. A further 6,000 additional claimants have been sent appointment letters. The tendering process for the main elements of the medical assessment process is now commencing with a view to awarding the contract in the autumn. This should mean that the first full and final settlement offers for valid claims will start flowing later this year.
Lord Dormand of Easington: My Lords, I thank my noble friend for that helpful reply. Does he recall the enthusiastic welcome given earlier this year by miners suffering from pneumoconiosis and related diseases following the High Court decision and the enthusiastic support of the present Government for it? However, is he aware that there are a number of concerns with regard to the way in which the scheme is being administered, particularly in relation to compensation being exempt from recovery? Surely the 1974 pneumoconiosis Act is the basis on which it should be operated.
Secondly, despite what the Minister said, is he aware of the concern at the delay in dealing with so many cases? Why are there not more consultants appointed? I feel that 90 is inadequate for the heavy workload which has to be completed.
Lord Sainsbury of Turville: My Lords, we have already opened 12 assessment centres. Further centres

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will be opened shortly. There will be a further 13 by the end of the month. In relation to the spirometry test, therefore, we are making good progress. My concern is with the main assessment process, and that is still being negotiated. The exact position on special damages should be known by the end of July. If not, the judge will be asked to rule on any outstanding issues at that time.
Lord Ezra: My Lords, when this issue was previously discussed in this House, I asked the Minister whether he was satisfied that measures had been taken to avoid a recurrence of these unfortunate diseases in the mining industry, and I received a positive response. However, in the unfortunate event that nevertheless there should be further respiratory problems in mining, can he assure the House that the compensatory processes will be speedier than they have been in the present instance?
Lord Sainsbury of Turville: My Lords, that is a hypothetical question. We are dealing with a judgment which deals specifically with a situation which was dealt with here. We cannot comment on a hypothetical situation and the speed with which that would be progressed. It would have to relate to the circumstances of the day.
Lord Lofthouse of Pontefract: My Lords, I can assure my noble friend that the information he has given this afternoon is encouraging. However, he will be aware that on 17th March this year Mr John Battle in another place confirmed bereavement payments for widows of mine workers who had worked 20 years in the underground industry and died from emphysema and bronchitis. But is he aware that many of the claims by those widows have been denied because the authorities dealing with the cases say that the records cannot be traced? Having investigated the matter I found that the records of some of those miners were destroyed when the pits closed. That cannot be the fault of the widows. Will the Minister investigate that injustice?
Lord Sainsbury of Turville: My Lords, we are in a difficult position where we must have evidence that the conditions were caused to people working down the mines. If there are cases where an injustice seems to have been done, of course we will investigate those and see whether there are other ways in which evidence can be found of what happened.
Earl Russell: My Lords, the Minister will no doubt be aware that sufferers from pneumoconiosis and other respiratory illnesses may have had impaired performance for some time before they were diagnosed. But is he aware that under Clause 57 of the Welfare Reform Bill people will no longer receive incapacity benefit if they have not paid national insurance contributions in the two years before the claim? Will
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he therefore consider, as an appropriate compensation, exempting former miners with respiratory problems from the operation of that clause?
Lord Sainsbury of Turville: My Lords, I cannot speak to that. I can only speak to the specific circumstances relating to the question of compensation which was granted by a High Court decision. That is the issue with which we are dealing at the moment. It is carefully circumscribed by that judgment and we have to act within that situation.
Lord Hardy of Wath: My Lords, will my noble friend consider that if the employer has mislaid or destroyed the records of employment, those responsible should take into consideration evidence that may be provided by the mining trade unions? Can that point be looked at urgently?
Lord Sainsbury of Turville: My Lords, we will certainly look at that. We need to produce proof of employment and if that proof can be provided in other ways, we will certainly consider that.
Lord Dormand of Easington: My Lords, is my noble friend aware that since the scheme started—only four or five weeks ago—15 miners have died? In view of that statistic I hope that, despite the assurances he gave us earlier, there will be no let up in the efforts being made. Secondly, will he ensure that maximum publicity is being given to everybody concerned as to what has to be done and what is being done?
Lord Sainsbury of Turville: My Lords, we will certainly keep up the pressure to get through these cases. We will also be prioritising the medical assessment process on the basis of age to try to deal with this unfortunate situation and will keep up the pressure in every way we can.

Milk Marketing
3.37 p.m.
Lord Monk Bretton Lord Monk Bretton asked Her Majesty's Government:
Whether they have any plans to amend the changes to milk marketing announced by the Secretary of State for Trade and Industry on 6th July; and, if so, how soon.
Lord McIntosh of Haringey: My Lords, the Secretary of State has no plans to amend the remedies concerning Milk Marque which he announced on 6th July. They provide Milk Marque and the milk processing industry with the opportunity they both sought; that is, to devise a reform of Milk Marque's selling system which enjoys the confidence of all.
Lord Monk Bretton: My Lords, I thank the Minister for that reply. However, is it not the case that Milk Marque has only been able to deliver the lowest producer price in the whole of Europe? It has been

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losing membership in droves. If it is denied milk processing capacity and its selling methods are again to be altered, is not its collapse a serious possibility? If that collapse takes place, is not the industry back in its pre-1933 position, before the establishment of the Milk Marketing Board? I do not know whether that is the Government's intention. But would not there be greater virtue in looking at the need for substantial processing to be in producers' hands, which has led to stability for dairy farming both in Europe and the United States? Also, should we not look at the serious gap between UK producers and retail prices?
Lord McIntosh of Haringey: My Lords, it is certainly the case that Milk Marque has been losing custom at the rate of around 4 per cent a year. The Government recognise that that is a serious situation. However, I must remind the noble Lord that the Monopolies and Mergers Commission found that Milk Marque had been operating its monopoly against the public interest at the expense of consumers and the milk processing industry. The Government want a viable diary industry, but it cannot depend on a continuation of bad monopoly practices.
The Earl of Onslow: My Lords, is it not true that the quota system allows this country to produce only 83 per cent of the milk that we consume? That adds a terrible distortion to all milk production and the milk industry. With that imposition from Europe, of course the industry is in a muddle.
Lord McIntosh of Haringey: My Lords, we produce virtually all the milk that we consume as liquid milk and approximately 80 per cent of the milk that we use in butter and cheese. I am not familiar with the statistics to which the noble Earl referred. Despite a lot of scare talk some years ago, there has not been a significant increase in imports of raw milk.
Baroness O'Cathain: My Lords, the dairy sector will be interested in the Minister's statement. It will hope that the changes will enjoy the confidence of all. The dairy sector is lacking in total confidence at the moment. Does the Minister agree that Milk Marque is the only organisation in that sector with a long-term, total and unswerving commitment to the future of milk production in this country? Any further problems in the industry would have reverberations throughout the agriculture sector in England and Wales.
Lord McIntosh of Haringey: My Lords, the noble Baroness knows better than most of us the history of the dairy industry and milk marketing in this country. She will be aware that the Monopolies and Mergers Commission report advocated the break-up of Milk Marque. Although the Secretary of State accepted many of the MMC's findings, he rejected the idea of breaking up Milk Marque immediately, because he saw that as a very difficult and long-term solution. That is why he
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gave Milk Marque and the industry another six months to try to come up with the reforms to its selling methods that the report shows are clearly necessary.
Lord Monkswell: My Lords, further to the question of the noble Earl, Lord Onslow, about the fact that this country does not produce 100 per cent of its milk and milk products, and bearing in mind the efficiency of dairy farms and the milk processing industry, am I right in thinking that that deficiency in production is made up by imports from Commonwealth countries such as New Zealand?
Lord McIntosh of Haringey: My Lords, not as far as I know. The noble Earl was referring to imports from the European Community.
Lord Mackay of Ardbrecknish: My Lords, does not the Director-General of Fair Trading have six months before making a final decision on processing? Is not that causing uncertainty in the industry, because the final outcome is still not known and there are still six months before the decision is taken? Is not a further problem in the milk market the fact that Milk Marque is obliged to be the collector of last resort? Given that it has to collect milk from some of the remotest parts of Wales and elsewhere, its costs are inevitably higher than those of many of its competitors.
Lord McIntosh of Haringey: My Lords, the noble Lord does not seem to like the long-term commitment that is such an attraction to his noble friend. The six months that the Director-General of Fair Trading, Milk Marque and the dairy industry have to come up with solutions to the defects in Milk Marque's selling methods is not a minimum. If they can come up with solutions earlier, the uncertainty can be dealt with. I thought that the Secretary of State's decision had been generally welcomed in the dairy industry. Mr Ben Gill, the president of the National Farmers Union, said:
"However, we do accept the need for a new selling system and will be actively pressing the Government, the OFT and all the parties to find a new system straight away".
We are generally in accord with the views in the industry.

Northern Ireland
3.44 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs): My Lords, with the leave of the House, I shall now repeat a Statement made earlier today in another place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows:
"Madam Speaker, I wish to make a Statement on Northern Ireland. I start by paying tribute to the contribution made by the Deputy First Minister designate, the honourable Member for Newry and Armagh. Although his skills and oratory will be absent from the Assembly, they will not be absent from this House.

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"On 2nd July, my right honourable friend the Prime Minister proposed, with the Taoiseach, a way forward to implement the Good Friday agreement—a way forward to secure both devolution and decommissioning, with a clear failsafe for both.
"This morning, as proposed on 2nd July, the Assembly met to select the departmental ministers to take office on devolution. Devolution would have followed on Sunday. The decommissioning process would then have begun within a period specified by the decommissioning commission—as General de Chastelain said on 2nd July, "literally within a couple of days". Actual decommissioning would then have followed to a timetable laid down by the commission—within weeks.
"If commitments on devolution or decommissioning had not taken place, there was a failsafe: parties would not have been expected to continue in government with those in default.
"As the House will know, the Ulster Unionist Party, Democratic Unionist Party and the Alliance Party chose this morning not to nominate any member to ministerial office. All parties have agreed on the principle, under the Good Friday agreement, of an inclusive Executive exercising devolved powers. With the UUP not nominating Ministers, it was clear beyond doubt that such an inclusive Executive could not he formed.
"I therefore acted immediately to undo the appointment of Ministers designate, since the requirement for a cross-community Executive had not been met. I will now take steps, with the Irish Government, to institute a formal review under the Good Friday agreement. Discussions will continue. My right honourable friend the Member for Torfaen and I will continue to be available to all the parties.
"My right honourable friend the Prime Minster will meet the Taoiseach next week to discuss the arrangements, agenda and time-scale for the review. It will take place under paragraph 4 of the review section of the agreement and will involve the relevant parties. It will not be a review of the agreement itself but of its implementation. I expect the review to get under way after the main holiday season. People are tired and need a break.
"Earlier this week the House debated the Northern Ireland Bill, which creates the failsafe envisaged under the way forward proposals. We judged that it would help to reassure unionists and nationalists—but particularly unionists—that we were serious about the failsafe if we published the Bill and demonstrated that it was on its way to becoming law.
"I am grateful to the House for considering the Bill at such speed on Tuesday. We will not withdraw it, because it may well be that a failsafe on those lines will he necessary to underpin whatever way forward is eventually agreed. But the Bill will now not proceed on the emergency timetable this afternoon in the other place.
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"I still believe that the way forward proposed by my right honourable friend the Prime Minister and the Taoiseach is a balanced approach that could have succeeded, but I do not seek to blame any party in the House this afternoon. The last thing that the people of Northern Ireland need now is an outbreak of recriminations. I believe that all those who supported the agreement when it was made genuinely want to see it implemented.
"The reality is that we either move forward together or we do not move forward at all. Today is a setback. It would be foolish to deny that, but it would be even more foolish to conclude that the Good Friday agreement cannot continue. Apart from those who have always opposed the agreement, no one is seriously suggesting an alternative way forward. There is still a wide measure of agreement on the issues that have divided people in the past: on the resolution of the fundamental constitutional question on the basis of consent; on a fully inclusive form of government, with both communities represented; on a fair and just society in which both traditions are respected and rights are safeguarded; on the decommissioning of all paramilitary arms in a manner determined by an independent commission; and the eventual normalisation of society.
"That is in my opinion a massive consensus which was inconceivable before the Good Friday agreement and which puts today's set-back—very serious as it is—in perspective.
"Most of all, I place my faith in the people of Northern Ireland. Over this summer, at the beginning of the parades period, in both communities, they have shown that the very strongest of disagreements can be expressed peacefully. For their sake, we, the Irish Government and all the Northern Ireland parties must not be disheartened. We must continue to work to implement the agreement the people have approved."
That concludes the Statement. With the leave of the House, I want to add my personal appreciation to your Lordships for the speed with which you were willing to deal with the Second Reading of the Northern Ireland Bill yesterday.
3.50 p.m.
Lord Glentoran: My Lords, I thank the Minister for repeating the Statement made by the Secretary of State for Northern Ireland in another place.
This is a sad day, but not one for recriminations and party politics. The day is made even sadder by the resignation of Mr Seamus Mallon of the SDLP. He was the Deputy First Minister. His resignation automatically triggers the resignation of the First Minister. The house is coming down further, which is very sad. I seriously regret Mr Seamus Mallon's decision. He has been a brave and hard-working member of the peace-seeking team. I hope that he will not stay on the touch-lines for too long.
As I made clear yesterday at the Second Reading of the Northern Ireland Bill, my party still supports the Good Friday agreement and our bipartisan approach to the Northern Ireland problem. However, I want to ask

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the Minister a few questions. Will he agree that, had some of the amendments tabled for debate today which were tabled in another place by my right honourable friend Mr Mackay or perhaps some of the amendments drawn up by the Government, which I have not yet seen, been accepted, we may not be where we are now?
Does the Minister agree that the heart of the problem lies in decommissioning by all the paramilitary groups? The problem is getting the bomb and the gun out of Irish politics. Will the Minister also agree that David Trimble and the Ulster Unionist Party have done all that could be expected of them? Can he confirm that the Prime Minister still stands firm in his stated belief that democrats cannot be expected to sit down with terrorists? Will the Minister comment on Dublin's role in the situation, and on where the Taoiseach stands on the vexed question of the Sinn Fein and the IRA being two sides of the same coin?
My right honourable friend Mr Peter Brooke in another place said that the time had come to steady the bus and keep cool. This is a sad day for Ulster, for the people of Ulster and for all those who have worked so hard to bring peace to my troubled homeland.
Perhaps I may suggest that today is not a day for political point-scoring or for apportioning blame, but for the serious work to begin again in the quest for peace in Northern Ireland. I am sure that the Government will agree that with hindsight the week of 12th July should not have been the first choice for negotiations of this nature. The summer months in Ulster are notoriously volatile. We understand that the Prime Minister has problems in another part of Europe which have caused significant interruption. Let us hope that in the cool of the autumn, patience, reason and good sense will lead us to the solution that is wanted by all.
3.53 p.m.
Lord Redesdale: My Lords, it is most regrettable that the whole process fell today. That was clearly brought about by the refusal of the Unionist Party to carry out its obligations under the Good Friday agreement in relation to the appointment of Ministers.
Noble Lords: Oh!
Lord Redesdale: My Lords, can the Minister explain why this morning it was necessary to introduce a new Standing Order that would inevitably result in turning the procedures of the Assembly into a farce? Will the Minister accept that it was the Secretary of State's action in introducing that order that made it impossible for the Alliance Party, which is totally committed to making progress under the Good Friday agreement, to put forward the nominations for ministerial appointments? Will the Government make a commitment that in future their actions will be designed to assist those seeking to work constructively to implement the agreement, rather than chasing after those who are creating difficulties for the process?
After the extremely regrettable resignation of the Deputy First Minister, what is the status of Mr Trimble, the First Minister? Under what process will the elections
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take place in the next six weeks? The Statement referred to there being no alternative to going forward. We very much hope that in the autumn that will be the case.
As has been mentioned, this is not a time for point-scoring by political parties. However, as a commitment was made yesterday by the Opposition spokesman during the debate that the bipartisan agreement still holds, would the Minister agree that statements made in another place should he backed by actions?
3.55 p.m.
Lord Dubs: My Lords, I am pleased that the noble Lord, Lord Glentoran, has spoken in support of Seamus Mallon. I totally agree with the noble Lord. I believe that Seamus Mallon has played—and will continue to play—a leading part in developing the peace process in Northern Ireland. I am sure that he will soon be back in a key position to take that process further. I am grateful for the support of the noble Lord in regard to the Good Friday agreement.
I am not convinced that there would have been any material difference in the decision of the Ulster Unionist Party if the amendments had been passed. The Ulster Unionist Party was aware of what was happening and made the decision in terms of what it wanted to do last night and today.
Decommissioning continues to be a key obligation under the Good Friday agreement. Of course, we want that to happen as soon as possible. The relations between our Prime Minister and the Taoiseach continue to be excellent. They work in close co-operation, as evidenced by the fact that next week the Taoiseach and the Prime Minister will meet to discuss how the review, to which I referred earlier when quoting the Statement of the Secretary of State, should be conducted.
As regards whether July was a good time for this process, we have had, mercifully, a very peaceful couple of weekends. Therefore, the conditions in Northern Ireland were propitious for moving forward. I do not believe that July was a bad time at all for such matters. I believe that the Prime Minister was absolutely right to say, "Let's get on with it", otherwise the proceedings would have dragged on and on. Alas, at the moment we have not been able to conclude matters as we had hoped.
The noble Lord, Lord Redesdale, whom I thank for his support, asked about the Standing Order. We and the parties want an inclusive government in Northern Ireland. The parties reaffirmed that in the first of the three principles agreed on 25th June. The Secretary of State, therefore, made an amendment to Standing Orders, stating that Ministers designate, appointed under the d'Hondt procedure, could continue to hold office only if the persons appointed included three designated nationalists and three designated unionists. That would not have happened under the procedures this morning when Ministers of only two parties—none of the unionist parties—were appointed under the d'Hondt procedure. The effect of the change to Standing Orders was to nullify those appointments. That is regrettable but, in the circumstances, inevitable and necessary.

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I do not think that I can comment on the views of the Alliance Party. That party must speak for itself. It must say what it feels about the situation, although my understanding of what was said this morning in the Assembly by the leader of the Alliance Party suggests that that party would not have appointed a minister anyway. That may simply be my interpretation. Of course, the Government will emphatically go on working with and supporting the parties in Northern Ireland, particularly those that support the Good Friday agreement.
3.59 p.m.
Lord Fitt: My Lords, I had hoped that we would today be discussing the amendments which were allegedly going to come from the other side of the building. I had seriously hoped that we would find some agreement with those amendments, which would have prevented the catastrophic events that happened in Northern Ireland earlier today.
I watched the television coverage of the opening of the Assembly and its eventual suspension. I must say that I felt very sad to see the passions and recriminations that have been unleashed because of the decision to abolish the Assembly. I am also saddened by what has been said about my former colleague, Seamus Mallon. I know that he has worked tirelessly to do everything that he could.
However, in all seriousness, I have something to say to my noble friend the Minister. In the Statement that he has just repeated, he said:
"There is still a wide measure of agreement on the issues which have divided people in the past".
He then listed some of those issues, one of which was,
"the decommissioning of all paramilitary arms in a manner determined by an independent commission, and the eventual normalisation of society".
It was the one issue of decommissioning which brought this whole process to an end. There was never any agreement on that issue since the agreement was signed. I cannot see how the Secretary of State can say that there has been a "wide measure of agreement".
When the review takes place, that is the one issue which should be tackled head on because, without resolving the issue on decommissioning, there will no hope of any progress, even after such a review.
Lord Dubs: My Lords, I certainly agree that decommissioning is a crucial issue in terms of developing the peace process in Northern Ireland. However, when the Prime Minister spent five days in Northern Ireland, together with the Taoiseach, discussing the matter with the parties, it is my understanding that all the main parties agreed with the principle of the decommissioning of paramilitary arms. That is certainly the basis on which the review will take place. Clearly, we must wait the outcome of the review to see how the parties respond to those discussions.
Viscount Cranborne: My Lords, in view of the remarks made by the noble Lord, Lord Fitt, I wonder
554
whether the Minister could help the House and tell us whether the Prime Minister contacted the Taoiseach during the course of yesterday and shared with him the contents of the three amendments which, apparently, the Prime Minister was suggesting at a certain stage—the text of which I do not think has been made available to the House. If he did contact the Taoiseach and discuss the content of the amendments with Dublin, can the Minister tell us what reaction the Prime Minister received?
Lord Dubs: My Lords, I am very sorry, but I cannot help the noble Viscount. I know that the Prime Minister has been in touch with the Taoiseach frequently, just as his staff have been touch with the staff of the Taoiseach in recent days. However, I cannot say whether the specific amendments were discussed and I certainly cannot say what the response of the Taoiseach was in that situation.
Baroness Castle of Blackburn: Does my noble friend the Minister accept that there is a total sense of desolation among most of us in the House that this great opportunity has been lost? When planning future relationships, will my noble friend bear in mind—and ask the House to do likewise—that all the violence has not come from one side, and that it is not helping the decommissioning process to assume that it has? For example, is my noble friend aware of the figures that I have obtained from the Northern Ireland Office which show that, since the Good Friday agreement, there have been 51 shootings by Loyalists compared to 41 shootings by Republicans and 124 terrorist activities by the Loyalists compared to 65 by the Republicans—in fact, half? I do not in any way seek to condone violence by either side; but, please, can we avoid hysteria and get this into proper balance?
Lord Dubs: My Lords, I am grateful to my noble friend for the question she has asked and for the points she has made. Yes, there has been a level of violence by paramilitary organisations and it has been somewhat greater by Loyalist paramilitary organisations in the recent past than by Republican paramilitary organisations. Of course, all that should stop on both sides.
Lord Molyneaux of Killead: My Lords, one can well understand the frustration felt by the Prime Minister, the Secretary of State and, indeed, by the noble Lord, Lord Dubs, who has been so patient with us in recent weeks. Indeed, all of them have sacrificed a good deal of their collective time on these very difficult discussions. To avoid a repetition of this collapse, could we all, quietly and soberly, give consideration to a more modest beginning next time—something perhaps akin to the Wales pattern? Then, in due course, we could perhaps add on a legislative tier. However, at all costs, I emphasise that we must seek to avoid top-heavy legislative structures because they always have an in-built self-destruct system.
Lord Dubs: My Lords, I am sure that the parties in Northern Ireland will take note of what the noble Lord

555
has said. However, the Good Friday agreement was not something in the gift of the Government or determined by the Government alone; it was the result of long negotiations and was agreed by most of the parties in Northern Ireland. Clearly, the review will involve all the parties in the Assembly in Northern Ireland and we must wait to see the outcome. I am certainly in favour of a quiet and sober approach.
The Earl of Onslow: My Lords, I think that it is reasonable to say that, right from the beginning, this decommissioning issue has been the bugbear. For understandable reasons, people thought that we would solve the easy questions first. That is a very human reaction. The issue of decommissioning has been rearing its ugly head and it is getting bigger and bigger; indeed, it has now brought the process to a halt. Surely the difference between Protestant violence and Catholic violence, for want of better phrases—no one condemns either more than I so—is that the people who represented the Republican violence in the Assembly were not prepared to accept decommissioning. They had to do that. If the noble Lord, Lord Dubs, or myself were serving as local authority councillors, we would not want to sit down with people who have guns. It is impossible; you cannot ask people to do so. That has been visible for a long time. Therefore, when we go forward, can we make absolutely certain that no one comes into such an assembly without saying, "I give up guns. Here are the guns that I hold illegally"? Without that, it is not going to work.
Lord Dubs: My Lords, in the complications of the peace process in Northern Ireland, it is of course understandable that the parties would move, first, to deal with the easy questions. That was not a bad thing because it led to the development of trust. Certainly, the trust in Northern Ireland between the parties and the communities is, I suggest, much better than it was at the beginning of the peace process started by the government, of whom the noble Earl was a member—
Noble Lords: Oh!
Lord Dubs: My Lords, perhaps I have, inadvertently, promoted the noble Earl; I meant to say that he was a supporter of that government.
Without any equivocation, I can say that it is an obligation on all the paramilitary parties that they should decommission. That is a clear obligation under the Good Friday agreement, and they will have to do so.
Lord Mishcon: My Lords—
Baroness Denton of Wakefield: My Lords, I should like to ask the Minister whether the Government now recognise that there is no such thing as "failsafe" in Northern Ireland? Can he tell us whether future plans will be based on that? In addition, there is much conversation about the fact that democrats cannot sit down with people who have guns. However, people in almost all the local councils in Northern Ireland have
556
been doing this for some time. Can the Minister tell us what the difference is, other than the glory, if it applies to Stormont?
In his speech, although not in the Statement that he repeated, the Minister said that he was sure that Seamus Mallon would be back soon. Does he have any facts to confirm that belief?
Lord Dubs: My Lords, I thank the noble Baroness for her three questions. I expressed the hope that Seamus Mallon would be back soon because of the contribution that he has made and the enormous contribution that I am sure he will continue to make to the peace process in Northern Ireland. My remarks were not based on fact, but on hope.
As regards a failsafe measure, we intend to consider the Northern Ireland Bill that we discussed yesterday and come back to it at the appropriate time. In so far as the noble Baroness used the word "failsafe" to apply to that Bill, we believe that it may still have a part to play in the future movement towards a devolved Assembly on the lines of the debate that we had yesterday.
As regards the noble Baroness's final point, which I think is an important one, I believe that in about 20 of the 26 district councils in Northern Ireland, Unionist politicians and Sinn Fein politicians sit together. They have been elected together and they sit together along with members of the SDLP and other parties. The question that the noble Baroness asked is not only one for me but for the politicians in Northern Ireland. The fact is that there has been good co-operation across the board on many district councils in Northern Ireland. In a symbolic way, that augurs well for the future of the peace process—if I can utter a word of optimism on a somewhat depressing day.
Lord Mishcon: My Lords, I apologise to the noble Baroness, Lady Denton. I did not see that her hand was raised. We are all delighted to see her here and to hear her speak. I wonder whether noble Lords opposite realise how heartened we were on this side of the House when on the Front Bench the bipartisanship towards this thorny question was revealed firmly and with no doubt. I wonder too—I say this without making any political point whatsoever—how difficult it was, after hearing that statement, to note that every speech that was made from the Official Opposition Benches criticised the Bill and supported in great measure the point of view of the Unionist parties. It can only be helpful for me not to say any more about that.
However, I express with great humility the hope that we manage to resurrect the peace process with the full help of the Official Opposition, and welcome anything that they can do to assist, whether by supporting our view or by all parties coming together in Northern Ireland, without, as I say, giving them the opportunity to say that there is a division between the Government and the Opposition.
Lord Dubs: My Lords, I am most grateful to my noble friend. This is not the day for recriminations or apportioning blame. I think that we had a clear statement yesterday from the noble Lord, Lord Glentoran, the

557
Official Opposition Front Bench speaker. He affirmed completely the continuation of a bipartisan policy. That is important and I was delighted to hear him reaffirm that. If we play party politics here, we damage peace in Northern Ireland. It is on that basis that the Labour Party supported the Conservative government in their policies in Northern Ireland. I am grateful that the noble Lord has confirmed that the Opposition will from now on do likewise.
Baroness Blatch: My Lords, I agree very much with what the noble Lord has just said. But at the risk of being misinterpreted by the noble Lord, Lord Mishcon, I have three real regrets, not recriminations. The first one is that the villains of the piece, who ought to be central to our concerns, are the paramilitaries and the dogged refusal of Sinn Fein/IRA to give a public commitment on decommissioning. My second regret is that much of the blame is being laid personally at the door of Mr Trimble and more generally with his colleagues in the Unionist Party. I believe that our fire ought to be preserved for the paramilitaries. Thirdly, I think that it is a great pity that we were not given an opportunity to see the amendments, preferably at the stage when the Bill was in the Commons, because I believe that might have made a great difference to the outcome and that today might have been very different.
My specific questions follow on from the remarks of my noble friend Lord Cranborne. If the Minister is unable to tell us whether the amendments were seen by, and discussed with, the Taoiseach, will he tell us whether they appeared in print anywhere; and if they did, was Mr Trimble allowed to see them in order to strengthen his hand to argue for the safeguards that he wanted inside the Bill so that this process could proceed in a positive way? That would have strengthened his hand when he met his colleagues last night.
Lord Dubs: My Lords, as regards the amendments, the Government were working on them until pretty late yesterday, but at that point it was clear that they would be inappropriate for today because of developments in Belfast. Hence they were not brought forward. I am afraid that I do not know whether they were discussed in detail with David Trimble. I think that he was well aware of the thrust of the Government's thinking. We could not have brought the amendments forward on the day that the other place debated the Bill because they arose directly from speeches made by the right honourable Member for Huntingdon and the right honourable Member for Upper Bann. Their two speeches were particularly influential and we sought to devise amendments which would reflect at least some of the comments made in those speeches. Therefore, I think that the noble Baroness will appreciate why it would have been difficult for us to move faster than we were setting out to do.
As regards blame, I have not blamed anyone. I have not blamed any of the politicians in Northern Ireland. I certainly do not blame Mr Trimble. I think that he has been a brave man. He has been helpful in the peace process and I very much hope that he will be able to
558
continue to help in the peace process and move it forward. I certainly express my appreciation for what he has attempted to do over recent years.
As regards the paramilitaries, of course people who use guns and bombs against innocent people are to be condemned absolutely. We have lost no opportunity to condemn the paramilitaries on both sides. But the point of the peace process is precisely to persuade the paramilitaries to have a cease-fire. Most of the paramilitary organisations are on cease-fire. I have no reason to think that they will not continue to be on cease-fire. Some of the paramilitary organisations are not on cease-fire at present. I very much hope that they will decide to adopt a cease-fire because that is the best context in which we can move forward with the peace process, move forward with setting up the Assembly, and move forward with decommissioning.
I add one further point on the amendments. The Prime Minister described the amendments in general terms during Prime Minister's Questions yesterday in the other place. Therefore, Mr Trimble was aware in broad terms of what was intended.
Earl Russell: My Lords, will the Minister very quietly remind all participants to the situation that, in this as in other attempts to settle with terrorism, peace has a price? That price may be unpalatable. The decision to refuse to pay it may be legitimate, but it too carries consequences. Will he ask all concerned to think of those consequences very carefully and then think again?
Lord Dubs: Yes, my Lords. I agree with what the noble Earl has said. We always made it clear that the peace process would be difficult, that we would be asking a great deal of all the participants. We accept that it will go on being difficult, and we shall go on asking a great deal of all the participants, in the fervent hope that they will take the noble Earl's point and move forward for the greater good of all the people of Northern Ireland.

Company and Business Names (Chamber of Commerce, Etc.) Bill
4.20 p.m.
Viscount Montgomery of Alamein: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Viscount Montgomery of Alamein.)
On Question, Motion agreed to.

Consolidated Fund (Appropriation) Bill
Lord McIntosh of Haringey: My Lords, I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read a second time.— (Lord McIntosh of Haringey).
On Question, Bill read a second time; Committee negatived.
Then, Standing Order 44 having been dispensed with (pursuant to Resolution of 13th July), Bill read a third time, and passed.

Employment Relations Bill
4.22 p.m.
Read a third time.
Clause 5 [Training]:
Lord McIntosh of Lord McIntosh of moved Amendment No. 1:
Page 4, line 13, leave out ("(3)") and insert ("(2)")
The noble Lord said: My Lords, the Government believe that it should be possible to amend the clause by the affirmative procedure if experience shows that it could be improved. As drafted, the power to amend extends only to subsections (3) to (6). But subsection (2) contains important details, notably the purpose and timing of consultation meetings. The amendment would allow this subsection to be amended if necessary; otherwise, the power to amend could be unhelpfully narrow.
The Government have no intention to amend the clause unless subsequent experience reveals unexpected problems. Any amendment will, of course, be subject to consultation and to the approval of both Houses. I beg to move.
On Question, amendment agreed to.
Clause 10 [Right to be accompanied]:
The Minister of State, Department of Trade and Industry (Lord Simon of Highbury)The Minister of State, Department of Trade and Industry (Lord Simon of Highbury) moved Amendment No. 2:
Page 5, line 17, leave out ("the worker")
The noble Lord said: My Lords, this amendment and Amendment No. 4, with which it is grouped, relate respectively to Clauses 10 and 15 on the right to be accompanied in grievance and disciplinary hearings. They are minor, technical amendments that tidy up, and I think improve, the wording of these clauses. I shall speak to them together, with the leave of the House.
Amendment No. 2 removes an unnecessary repetition of the words "the worker" from subsection (1)(b). In so doing it helps to clarify the application of the right.
Clause 15 exempts persons employed by the security and intelligence agencies from the right to be accompanied—that is, from Clauses 10 to 13. As currently drafted, the opening sentence of Clause 15, which states that Clauses 10 to 13 do not apply to those workers, does not expressly and unequivocally relate those clauses to this legislation, as opposed, for example, to another Act. Amendment No. 4 makes that link clear by inserting the words "of this Act" after the words "Sections 10 to 13" at the beginning of Clause 15. This, too, is a sensible clarification. I beg to move.
On Question, amendment agreed to.
Lord Simon of Highbury Lord Simon of Highbury moved Amendment No. 3:
Page 5, line 28, leave out from ("meaning)") to ("or'') on line 30 and insert ("whom the union has reasonably certified in writing as having experience of, or as having received training in acting as a worker's companion at disciplinary or grievance hearings")
The noble Lord said: My Lords, this amendment concerns the accompanying person.
Noble Lords will recall that on Report the Government introduced amendments to clarify the list of people from whom a worker may choose an accompanying person to have at grievance and disciplinary hearings. The aim of those amendments was to limit the extent to which unqualified or inexperienced outsiders would be allowed into internal proceedings. They were made largely in response to the legitimate concerns raised by the noble Baroness, Lady Miller of Hendon, and others that allowing unqualified or inexperienced outside lay trade union representatives to participate in internal procedures might be unhelpful or even disruptive. Their purpose was to ensure that only those suitably qualified for the task are entitled to act as the accompanying person. Their effect was to place a qualifying condition on lay officials to ensure that they could act as an accompanying person only if certified in writing by their union as competent to carry out that function.
The amendments were welcomed by noble Lords on both sides of the House, not least as the noble Baroness gracefully acknowledged, because the Bill has been improved by the constructive and useful debate which has so far taken place here and in another place. It is entirely in keeping with that spirit, and in response to other comments made by the noble Baroness that the Government seek to make a further clarification of the wording of subsection (3)(b). The noble Baroness expressed concern that the accompanying union official should at least have some qualifications or experience in disciplinary and grievance hearings.
In the light of those comments and after careful consideration, the Government have looked again at the wording of subsection (3)(b). They have concluded that the Bill could be further improved by setting out on the face of the legislation the circumstances in which lay officials are to be regarded as competent to act as companions. To that end, Amendment No. 3 establishes a statutory test of competence that a lay official companion must satisfy in order to be a companion.
The test is that lay officials must have been reasonably certified by the union as having had experience of, or training in, acting as a worker' s companion at disciplinary or grievance hearings. This is a straightforward and sensible requirement and it will provide an effective shield from the inexperienced or incompetent accompanier for employers and workers alike.
I should like to underline that the Government have no intention of placing a burden on trade unions by insisting that they establish complex structures for third-party accreditation. It is right that a trade union should satisfy itself that officials who are to perform this kind of work are competent to do so. A basic shop

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steward's course, for example, containing a module on workplace representation would be adequate to satisfy the requirement.
As I have said before, most trade unions already provide training for their lay representatives, often via the TUC's education services. As a matter of good practice, unions will not consider issuing a certificate to new lay officials, at least until they have completed similar training or have been in post for a certain length of time; the amendment will encourage such good practices. And, by helping to ensure that unions field suitably qualified lay representatives, it should also minimise the scope for unions to be challenged for offering an incompetent or otherwise second-rate service.
This is a sensible amendment. It will benefit all parties to grievance and disciplinary hearings. I beg to move.
Baroness Miller of Hendon: My Lords, it is right that I should express my thanks to the noble Lord for taking on board some further concerns that we had.
On Question, amendment agreed to.
Clause 15 [National security employees]:
Lord Simon of Highbury Lord Simon of Highbury moved Amendment No. 4:
Page 8, line 28, after ("13") insert ("of this Act")
On Question, amendment agreed to.
Clause 17 [Collective agreements: detriment and dismissal]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 5:
Page 8, line 37, leave out ("subject") and insert ("subjected")
The noble Lord said: My Lords, this small amendment, changing "subject" to "subjected", is simply to ensure consistency with wording elsewhere in the legislation; for example, in Schedule 2 there are references to an employee being subjected to detriment by his employer. The change to Clause 17 will ensure that nobody can be misled into thinking that some subtle difference was intended by slightly different wording. I beg to move.
On Question, amendment agreed to.
Lord Razzall Lord Razzall moved Amendment No. 6:
After Clause 17, insert the following new clause—

Employment Relations Bill

  DISCRIMINATION IN THE WORK-PLACE ON GROUNDS OF SEXUAL ORIENTATION
  (" .—(1) The Secretary of State may make regulations for the purpose of prohibiting, in relation to any employment matter, discrimination by an employer against another person on grounds of that person's sexual orientation.
  (2) In subsection (1) "employment matter" includes—

  (a) the offer or refusal of employment;

  (b) the termination of employment;

  (c) terms and conditions of employment;

  (d) the provision of training or skills development opportunities;

  (e) promotion and career progression.

  (3) Regulations under subsection (1) may—

  (a) specify the types of action, or failure to take action, which are to be taken to constitute discrimination for the purpose of this section;

  (b) confer jurisdiction (including exclusive jurisdiction) on employment tribunals and on the Employment Appeal Tribunal in relation to cases brought under this section;

  (c) provide for penalties to be imposed or, as the case may be, compensation to be awarded in respect of offences committed under paragraph (a) above.

  (4) No regulations shall be made under this section unless a draft has been laid before, and approved by resolution of, each House of Parliament.")
  The noble Lord said: My Lords, I shall try not to detain your Lordships too long on this amendment. Those of us who have been present during the various stages of the Bill will realise that it is the same as the amendment my colleagues in another place produced when the Bill was considered there. We have taken it through for debate and discussion in Committee and on Report. I do not want to rehearse at Third Reading the evils of discrimination on the grounds of sexual orientation, which have been widely canvassed and are generally accepted on the government side and by certain members of the Conservative Opposition.
  This new clause embodies the principle that was set out in the Labour Party manifesto for the 1997 general election, which says that Labour intends to seek to end unjustifiable discrimination wherever it exists. The matter was considered again in your Lordships' House in June 1998 when, following the collapse of the Bill on sexual orientation and discrimination, the noble Baroness, Lady Blackstone, promised that the Government were committed to giving serious consideration to the issues raised by the Bill. A year later, we are still waiting for the Government to bring forward proposals to deal with this important issue.
  We are persisting with this amendment to the Bill because, as we said at Report stage, we are only two years or so away from the next general election. We have been waiting since Labour's election for this important matter to be dealt with and the Government have stated consistently that they will address it. However, my colleagues and I are beginning to suspect that the Government are adopting what I call the St Augustine position: "I have every intention of becoming pure, but not yet. In any event, it is not my departmental responsibility".
  As the Government are not prepared and have not indicated any preparedness to deal with this important issue, I believe that this amendment should be made to the Bill. I beg to move.
  4.30 p.m.
  Earl Russell: My Lords, the shouting and the battle die and the captains and the kings depart. The Chamber is very empty compared with only a few minutes ago. Yet the people affected by this new clause may number more than the entire population of Northern Ireland.
  This is an amendment of considerable importance. My noble friend has argued from a narrow base that it is in line with government policy, but I will address the issue from a wider base. It is the central thrust of the

  563
  Government's approach to welfare and work to remove barriers to people's entry into employment. Apart from the human suffering involved, the cost to the Exchequer of doing otherwise is likely to be considerable.
  A very large number of people, who are normally willing and eager to work, are often prevented from doing so. Alternatively, having succeeded in gaining employment, many others are pushed out by the hostility—sometimes indulged rather too freely—of their colleagues. We are talking about not only the direct refusal of employment but, as is often the case with women making their way in hitherto all-male professions, a good deal of harassment designed to push people out. That creates not only considerable hardship but also a cost to the Exchequer. Under the actively-seeking-work rules, voluntary unemployment may carry a penalty of 26 weeks' loss of benefit.
  It is often quite difficult to prove that one has been pushed out of a job—even when that is patently obvious. Therefore, people are either left dependent upon benefit or left destitute through no fault of their own. That is contrary to the general thrust of government policy. Action is needed quite urgently in the interests both of those concerned and of wider society. We must learn to live at peace with the sorts of people we meet daily. It is also in the interests of the Exchequer. I do not know what more one needs to say in support of an amendment.
  Lord Sainsbury of Turville: My Lords, as I said in Committee and on Report, we are very sympathetic to the problems faced by people who have been, and will be, discriminated against on grounds of sexual orientation. Having said that, I must repeat that, regretfully, we cannot support this new clause. I have outlined our reasons in Committee arid on Report, so I shall not repeat them here.
  As the issue needs to be handled with great sensitivity, it is incumbent upon us to ensure that, whatever action is taken, the results will not be counter-productive for gay men and lesbians. On the question of whether a legislative measure would be the appropriate way to proceed, the Government have always been aware that it is not good practice to take regulation-making powers without knowing how we wish to use them. As noble Lords will be aware, the Government have responded to the recommendations and suggestions put forward by the Equal Opportunities Commission and the Better Regulation Task Force. Copies of those responses have been placed in the Library of the House.
  We agreed yesterday that a non-statutory code outlining good practice would be a sensible approach to combating discrimination in the workplace on the grounds of sexual orientation. This would help to produce a clarity that would assist employers and individuals. In due course, the Government would evaluate the effectiveness of the code and gain better information about the levels and types of sexual orientation discrimination experienced by gay men and lesbians.
  564
  We propose that such a code be produced in conjunction with the Equal Opportunities Commissiion and in full consultation with informed relevant organisations, such as the TUC, industry, Stonewall, the Church and the forces. I am sure that the House will agree that that is the best way to deal with this important and sensitive issue. As the House will appreciate, I cannot give any further details. The code is a matter for my ministerial colleagues at the Department for Education and Employment who, I understand, will make a statement in due course about the details of the code.
  Throughout the passage of the Bill in this House, the noble Lord, Lord Razzall, has moved his amendments with great sincerity and determination. I hope that I have convinced him of the Government's sincerity and commitment to act, as appropriate, against discrimination on the grounds of sexual orientation. I hope that I have assured him that we are embracing purity, if not quite as fully as he would like at this stage. I invite him to withdraw his amendment.
  Lord Razzall: My Lords, as the Minister will be aware, we on these Benches have supported the Government in all the amendments that they have made to this Bill. As to our major concern about age discrimination, we have accepted the Minister's undertakings at Committee and Report stages that it was inappropriate to seek a legislative provision. However, having listened to the Minister's comments in Committee, on Report and again this afternoon, I would like to test the temperature of the House.
  4.38 p.m.
  On Question, Whether the said amendment (No. 6) shall be agreed to?
  Their Lordships divided: Contents, 33; Not-Contents, 126.

  Division No. 1

  CONTENTS

  Beaumont of Whitley, L.

  Newby, L.

  Calverley, L.

  Phillips of Sudbury, L.

  Carlisle, E.

  Razzall, L. [Teller.]

  Clement-Jones, L.

  Redesdale, L.

  Dholakia, L.

  Rochester, L.

  Falkland, V.

  Rodgers of Quarry Bank, L.

  Geraint, L.

  Russell, E. [Teller.]

  Grey, E.

  Sandberg, L.

  Sharp of Guildford, B.

  Hamwee, B.

  Smith of Clifton, L.

  Harris of Greenwich, L.

  Taverne, L.

  Linklater of Butterstone, B.

  Thomas of Walliswood, B.

  McNair, L.

  Thomson of Monifieth, L.

  McNally, L.

  Thurso, V.

  Mar and Kellie, E.

  Tope, L.

  Methuen, L.

  Wigoder, L.

  Miller of Chilthorne Domer, B.

  Williams of Crosby, B.

  NOT-CONTENTS

  Acton, L.

  Ashbourne, L.

  Ahmed, L.

  Ashley of Stoke, L.

  Allenby of Megiddo, V.

  Barnett, L.

  Amos, B.

  Belhaven and Stenton, L.

  Archer of Sandwell, L.

  Berkeley, L.

  565

  Blackstone, B.

  Jeger, B.

  Blyth, L.

  Jenkins of Putney, L.

  Borrie, L.

  Judd, L.

  Bragg, L.

  Kennet, L.

  Brooke of Alverthorpe, L.

  Knutsford, V.

  Brooks of Tremorfa, L.

  Leigh, L.

  Bruce of Donington, L.

  Lockwood, B.

  Burlison, L.

  Lovell-Davis, L.

  Carter, L. [Teller.]

  McIntosh of Haringey, L. [Teller.]

  Castle of Blackburn, B.

  Charteris of Amisfield, L.

  Mackenzie of Framwellgate, L.

  Christopher, L.

  Mallalieu, B.

  Clarke of Hampstead, L.

  Marsh, L.

  Clinton-Davis, L.

  Milner of Leeds, L.

  Cocks of Hartcliffe, L.

  Mishcon, L.

  Crawley, B.

  Molloy, L.

  Dacre of Glanton, L.

  Monkswell, L.

  David, B.

  Monson, L.

  Davies of Oldham, L.

  Montague of Oxford, L.

  Dean of Thomton-le-Fylde, B.

  Morris of Castle Morris, L.

  Desai, L.

  Morris of Manchester, L.

  Diamond, L.

  Murray of Epping Forest, L.

  Dixon, L.

  Newall, L.

  Donoughue, L.

  Nunburnholme, L.

  Dubs, L.

  Oppenheim-Barnes, B.

  Dunleath, L.

  Paul, L.

  Erroll, E.

  Pearson of Rannoch, L.

  Evans of Parkside, L.

  Peston, L.

  Evans of Watford, L.

  Pilkington of Oxenford, L.

  Falconer of Thoroton, L.

  Pitkeathley, B.

  Farrington of Ribbleton, B.

  Ponsonby of Shulbrede, L.

  Fitt, L.

  Puttnam, L.

  Gilbert, L.

  Ramsay of Cartvale, B.

  Gladwin of Clee, L.

  Randall of St. Budeaux, L.

  Glentoran, L.

  Rendell of Babergh, B.

  Gordon of Strathblane, L.

  Richard, L.

  Goudie, B.

  Rogers of Riverside, L.

  Gould of Potternewton, B.

  Sainsbury of Turville, L.

  Graham of Edmonton, L.

  Sawyer, L.

  Serota, B.

  Grenfell, L.

  Sewel, L.

  Hacking, L.

  Shepherd, L.

  Halsbury, E.

  Simon, V.

  Hanworth, V.

  Simon of Highbury, L.

  Hardie, L.

  Smith of Gilmorehill, B.

  Hardy of Wath, L.

  Stallard, L.

  Harris of Haringey, L.

  Stoddart of Swindon, L.

  Harris of High Cross, L.

  Stone of Blackheath, L.

  Haskel, L.

  Strabolgi, L.

  Hilton of Eggardon, B.

  Symons of Vernham Dean, B.

  Hollis of Heigham, B.

  Taylor of Blackburn, L.

  Howie of Troon, L.

  Tenby, V.

  Hughes, L.

  Thornton, B.

  Hughes of Woodside, L.

  Tomlinson, L.

  Hunt of Kings Heath, L.

  Uddin, B.

  Irvine of Lairg, L. [Lord Chancellor.]

  Walker of Doncaster, L.

  Warner, L.

  Janner of Braunstone, L.

  Whitty, L.

  Jay of Paddington, B.[Lord Privy Seal.]

  Williams of Elvel, L.

  Williams of Mostyn, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  4.48 p.m.
  Clause 32 [Employment rights: employment outside Great Britain]:
  Lord Simon of Highbury Lord Simon of Highbury moved Amendment No. 7:
  Page 16, leave out lines 23 to 28 and insert—
  ("(7) The provisions mentioned in subsection (8) apply to employment on board a ship registered in the register maintained under section 8 of the Merchant Shipping Act 1995 if and only if—
  566

  (a) the ship's entry in the register specifies a port in Great Britain as the port to which the vessel is to be treated as belonging,

  (b) under his contract of employment the person employed does not work wholly outside Great Britain, and

  (c) the person employed is ordinarily resident in Great Britain.")

  The noble Lord said: My Lords, this amendment is a purely technical change to the amendment on territorial extent which was introduced at the Report stage last week. It relates to subsection (4) relating to mariners.
  Subsection (4) is intended to preserve the special position of mariners. However, the current wording fails to do that precisely; hence this technical amendment, which ensures that the current position of mariners is unchanged under the new provision. I beg to move.
  On Question, amendment agreed to.
  Clause 46 [Extent]:
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 8:
  Page 20, line 24, leave out ("section 39") and insert ("sections 39 and 45")
  The noble Lord said: My Lords, the amendment ensures that a commencement of a provision in the Bill that amends or repeals a provision in other legislation extending to Northern Ireland itself extends there. I beg to move.
  On Question, amendment agreed to.
  Schedule 1 [Collective Bargaining: Recognition]:
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 9:
  Page 21, line 36, at end insert ("or 44")
  The noble Lord said: My Lords, in moving Amendment No. 9 I shall speak also to Amendment No. 10 and to Amendments Nos. 12 to 26. All of these amendments are minor and correct or clarify provisions in Schedule 1. None is intended to alter the substance of the schedule.
  Amendment No. 9 introduces a cross-reference which ensures that the same definition of collective bargaining applies to the tests in paragraphs 35 and 44. The tests are otherwise equivalent.
  Amendments Nos. 10, 16 and 26 all relate to the territorial extent of the schedule, as discussed in connection with Amendment No. 7. The Government's intention is to exclude from Schedule 1 workers on ships from Northern Ireland, since it is for Northern Ireland legislation to deal with them. The existing wording was technically incorrect because under the Merchant Shipping Act 1995 ships are no longer registered "at a port" but in a central register. These amendments remedy the defect.
  Amendments Nos. 12, 14, 21, 22 and 23 all remove references to agreements. This is a consequence of the new Part II, which excludes voluntary agreements from the scope of the schedule. Amendments Nos. 13 and 15 ensure that if recognition ceases for some workers in a bargaining unit but not for others as a result of an application under Part III, then the workers retaining recognition cannot have that recognition overwritten by an application under Part I.
  Amendment No. 18 inserts a missed cross-reference in the new Part II. Amendment No. 19 corrects a cross-reference. Amendment No. 24 is consequential to the new paragraph 91 and ensures that the correct definition of collective bargaining applies. Finally, an incorrect cross-reference is removed by Amendment No. 25. I beg to move.
  On Question, amendment agreed to.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 10:
  Page 22, line 21, leave out from ("registered") to end of line 23 and insert ("in the register maintained under section 8 of the Merchant Shipping Act 1995 shall he treated as ordinarily working in Great Britain unless—

  (a) the ship's entry in the register specifies a port outside Great Britain as the port to which the vessel is to be treated as belonging,")

  On Question, amendment agreed to.
  Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 11:
  Page 31, line 5, at end insert ("if it is part of a business employing more than 50 workers in total, or at least 50 per cent of the workers if there are more than 20 but less than 51 workers employed by the said business on either of the dates referred to in paragraph 7(1) of this Schedule").
  The noble Baroness said: My Lords, the Employment Relations Bill is mostly about the compulsory unionisation of businesses where at least 40 per cent of the workforce take part in a vote and the majority of those who actually do vote want it.
  Noble Lords will know that I have enormous concern for the welfare of small businesses. Many noble Lords will also know that my concern might be described as a passionate one. I believe that nurturing small businesses is nurturing the very engine that drives the economy, which will provide jobs and prosperity in the future.
  Under the Bill, the first threshold that triggers this union activity—or potential union activity—in any business is that it should employ more than 20 people. Last Thursday I proposed an amendment to the Bill to alter the definition of a "small business" from one employing fewer than 21 people to one employing up to 50 people.
  I originally believed that the Government's figure was something they had plucked out of the air, but it is now clear that that figure was probably worked out with the unions. As if this trivial figure of 21 is not bad enough, paragraph 6(b) of the first schedule gives the Secretary of State power to vary it. When I challenged the Government at the Committee stage on the interpretation of that paragraph, the noble Lord, Lord McIntosh of Haringey, admitted:
  "We acknowledge that it may have to vary in either direction. It could he too stringent or not stringent enough".—[Official Report, 7/6/99; col. 1174.]
  So it is clear that no trifle will be too small for them to snap up when they get round to it, which will be after gobbling up the bigger fish.
  I do not want to take up your Lordships' time by repeating the arguments I raised at the Report stage, but I should like to remind the House that the Government have used the criterion of 50 to define a small firm in the Late Payment of Debts (Interest) Act.
  More importantly, as I have previously reminded your Lordships, the European Commission, complaining about a proliferation of definitions, said in a report issued as long ago as 1996 that:
  "In a single market without internal frontiers, the treatment of enterprises must he based on a common set of rules".
  It goes on to say:
  "The number of employees is one of the most important (criteria) and must he regarded as imperative".
  I stress "imperative".
  After that preamble the report states in Article 1, paragraph 2:
  "A 'small enterprise' is defined as an enterprise which has fewer than 50 employees".
  That imperative and that definition, prescribed by the European Commission, are what the Government are ignoring and totally disregarding with the derisory threshold of fewer than 21 employees that they have adamantly adhered to throughout the passage of the Bill; a threshold which they have taken power to reduce still further, even to the point of almost total invisibility, by statutory instrument.
  My very reasonable and entirely proper resolution was lost last Thursday when the Government opposed it with the assistance of their junior partners, the Liberal Democrats. This surprised me—and saddened me greatly—because the Liberal Democrats claim to be great supporters of small businesses; they claim to be the true Europhiles. If "true blue" is the wrong expression, perhaps "rose-coloured glasses Europhiles" is a better description—the party that would drop us into the single currency this very day if they only had the chance.
  What happened last Thursday? Not only did they not support my amendment, they did not even abstain, which I think I could have understood. On the contrary, they had a very strong Whip and, if my researches are correct, they secured one of the largest turn-outs they have had this Session. I suppose I should feel flattered.
  Imposing trade unions on genuinely small businesses will not be in the least helpful to those small businesses. Noble Lords opposite and their Liberal Democrat colleagues may disagree, but show me the union which says that its objective is to help the employer earn more money or where the needs of the business are at the top of its agenda.
  As I said, paragraph 29(3) of Schedule 1 invokes the union recognition procedure if a majority of the workers voting vote in favour of union recognition. However, there is a further qualification; that is, that at least 40 per cent of the workers in what the Bill calls "the bargaining unit" must actually participate in the vote. As usual, the needs of big business have been given precedence over small businesses. That is very dangerous for small businesses, which have hardly been considered at all, especially in the case of union recognition, where they have been totally ignored.
  My amendment applies to a small business of the size generally recognised as such and prescribed by the EC, of no more than 50 workers. In those cases, instead of 40 per cent of the workers being the quorum to validate a vote, the amendment requires 50 per cent to do so. Let me stress that: in a business with more than 20 but fewer than 51 workers, 50 per cent of the workers will need to take part in the vote.
  Before the Government argue that this will somehow wreck the Bill, let me point out the mathematical consequences. In the case of the Government's artificial figure of 21 workers, it would take 11 voters at the 50 per cent level to trigger recognition, instead of nine at the 40 per cent level; only two more people. If we go all the way up to the limit of my amendment—50 workers—then instead of 20 workers being necessary it would take 25; again, a mere handful. Certainly the difference will not bring the whole structure of union recognition crashing to the ground.
  My original amendment undoubtedly offered the simplest way of resolving this problem for small businesses—a problem recognised by the noble Lord, Lord McIntosh, when he said:
  "We accept that to apply the statutory provisions to firms with 20 or fewer workers could be onerous and inappropriate".—[Official Report, 8/7/99; col. 1045.]
  One thing is certain: for 50 or fewer workers to be deemed to constitute "a small firm" is beyond argument; it is not onerous; it is wholly appropriate and absolutely fair. It is consistent with European law and practice. It is certainly consistent with the rules under which our European competitors will be working. Noble Lords can be certain that the French and the German Governments do not spend a single moment trying to make things harder for their businesses and easier for ours.
  At the previous stage of the Bill the Government, aided and abetted by the Liberal Democrats, decided to make things harder than they need be for our small businesses in order to promote the interests of the trade unions. This is a small amendment which seeks, in an equally small way, to redress the balance ever so slightly. I beg to move.
  Lord Murray of Epping Forest: My Lords, the fatal flaw in the amendment—as, indeed, in the speech of the noble Baroness—is that she predicated her argument by stating that the Bill is about compulsory unionisation of business and imposing trade unions on small businesses. It is nothing of the sort. The Bill is not doing a favour to employees. On the contrary, it is doing a favour to employers. What the Bill says is that, as an alternative to people stopping work and walking away—to telling an employer that they will not work unless the employer recognises the union—a legal procedure will be set up. If workers say to an employer, politely and courteously, "It is a basic human right to join a trade union. Will you accept that and recognise the union that represents us?", and if he says no, this provision means that workers do not have to say, "We shall not work for you unless you do recognise that right". The Bill enables them, together, to take an alternative line.
  570
  The purpose of the Bill is to make things easier for the employer, not to make them more difficult. It seeks to sustain a situation in which ordinary working men and women can maintain their basic human freedoms. That is all.
  Lord Razzall: My Lords, I did not wish to intervene on this point, but in view of the noble Baroness's remarks, perhaps I should make matters clear. The reason we have not supported her amendment and have supported the Government to date is that we take the view that Schedule 1 is the product of the very delicate negotiations that the Government have conducted with all interested parties, and that for us to attempt to interfere on numerical grounds, as she suggests, would be inappropriate. In the light of her remarks, I might have been minded, if she pushes the matter to a vote, to suggest to my colleagues that they might wish to abstain. But in the light of the outrageous suggestions that she made in her speech about the Liberal Democrats, I shall of course recommend to my colleagues that they support the Government.
  Lord McIntosh of Haringey: My Lords, when we debated the issue of small businesses in Committee and on Report, the noble Baroness, Lady Miller, and I had one point of agreement and one point of disagreement, and both seemed clear. We both agreed on the importance of small businesses. Given our background, it would be astonishing if we had not. The point of disagreement was that we did not believe that there was any justification for increasing the definition from 21 to 50. As we argued on Report, to the satisfaction of the House, there is indeed a difference as regards businesses of 20 people and under, but for very many purposes, in a large number of industries, businesses with 21 to 50 employees are capable of the same organisational issues that affect larger businesses, and the workers in them are entitled to the right to union representation. I entirely agree with my noble friend Lord Murray that the phrase "compulsory unionisation" is inappropriate to this Bill.
  But now the noble Baroness has come up with another amendment which is so different from what has gone before that I scarcely believe that she believes in it. If she believed in it, surely she would have brought it forward at an earlier stage. The noble Baroness is now suggesting that the formula for the ballot majority required for recognition, which has been arrived at after long consultation and reflection, and which has never been challenged before at any stage in the progress of the Bill, either in this House or in another place, should now be altered because she feels the need, under the rules of the House, for what I believe Fowler called "elegant variation". I am sorry. That really will not do.
  I know that some of my noble friends and some people in the trade unions thought that a simple majority of those voting was a sufficient test, and they drew comparisons with political elections. The Government disagreed. We felt that it would be wrong for recognition to be gained without a strong, positive show of support. If recognition were won in a ballot with a

  571
  very low turn-out there could be lingering doubts about the validity of the result, and that could be bad for industrial relations.
  That is why we proposed the dual test of a majority of those voting and at least 40 per cent of those eligible to vote. That ensures that there will be no recognition awarded unless there is substantial positive support, demonstrated by votes in favour.
  In all the discussions on the Bill, it has been widely agreed that that is a fair and reasonable measure of support. I can see no reason to modify the proposal now, at the last stage, in the case of firms with between 21 and 50 employees. The test ensures that recognition will not be granted without both majority support and active support. That is true in smaller and larger firms.
  There is no logical justification for the changed test proposed by the noble Baroness. Yes, of course we have taken a power to vary the ballot threshold if, against our expectation, it does not work; but that does not have the sinister implications attributed to it by the noble Baroness. Unless and until experience proves us wrong, we stick by our proposal. We believe that it is balanced and workable. I urge the noble Baroness to withdraw the amendment.
  Baroness Miller of Hendon: My Lords, I have listened carefully to the noble Lord's response. However, he will not be surprised that I wish to test the opinion of the House.
  5.5 p.m.
  On Question, Whether the said amendment (No. 11) shall be agreed to?
  Their Lordships divided: Contents, 108; Not-Contents, 137.

  Division No. 2

  CONTENTS

  Alexander of Tunis, E.

  Crickhowell, L.

  Anelay of St. Johns, B.

  Dacre of Glanton, L.

  Annaly, L.

  Davidson, V.

  Archer of Weston-Super-Mare, L.

  Denham, L.

  Astor, V.

  Dilhorne, V.

  Astor of Hever, L.

  Dixon-Smith, L.

  Belhaven and Stenton, L.

  Donegall, M.

  Berners, B.

  Downshire, M.

  Blatch, B.

  Eden of Winton, L.

  Blyth, L.

  Ellenborough, L.

  Bowness, L.

  Elles, B.

  Brabazon of Tara, L.

  Elton, L.

  Brougham and Vaux, L.

  Erroll, E.

  Burnham, L. [Teller.]

  Forsyth of Drumlean, L.

  Buscombe, B.

  Gainford, L.

  Byford, B.

  Geddes, L.

  Caithness, E.

  Gisborough, L.

  Campbell of Alloway, L.

  Glenarthur, L.

  Campbell of Croy, L.

  Glentoran, L.

  Carnegy of Lour, B.

  Greenway, L.

  Chalker of Wallasey, B.

  Harding of Petherton, L.

  Charteris of Amisfield, L.

  Harlech, L.

  Clark of Kempston, L.

  Harrowby, E.

  Coleraine, L.

  Hayhoe, L.

  Cope of Berkeley, L.

  Henley, L. [Teller.]

  Courtown, E.

  HolmPatrick, L.

  Cranborne, V.

  Home, E.

  572

  Hurd of Westwell, L.

  Perry of Southwark, B.

  Hylton-Foster, B.

  Pilkington of Oxenford, L.

  Knutsford, V.

  Platt of Writtle, B.

  Lauderdale, E.

  Plumb, L.

  Leigh, L.

  Plummer of St. Marylebone, L.

  Lindsey and Abingdon, E.

  Rawlings, B.

  Long, V.

  Reay, L.

  Luke, L.

  Renton of Mount Harry, L.

  McColl of Dulwich, L.

  Rotherwick, L.

  Mackay of Ardbrecknish, L.

  Rowallan, L.

  Marlesford, L.

  Seccombe, B.

  Massereene and Ferrard, V.

  Shaw of Northstead, L.

  Mayhew of Twysden, L.

  Soulsby of Swaffham Prior, L.

  Mersey, V.

  Stewartby, L.

  Miller of Hendon, B.

  Strathcarron, L.

  Monk Bretton, L.

  Strathclyde, L.

  Monson, L.

  Sudeley, L.

  Mountevans, L.

  Teviot, L.

  Munster, E.

  Thomas of Gwydir, L.

  Newton of Braintree, L.

  Trefgarne, L.

  Northbrook, L.

  Trenchard, V.

  Northesk, E.

  Trumpington, B.

  Norton of Louth, L.

  Waddington, L.

  O'Cathain, B.

  Wade of Chorlton, L.

  Oppenheim-Barnes, B.

  Westbury, L.

  Park of Monmouth, B.

  Wynford, L.

  Pender, L.

  Young, B.

  NOT-CONTENTS

  Acton, L.

  Gordon of Strathblane, L.

  Ahmed, L.

  Goudie, B.

  Allenby of Megiddo, V.

  Gould of Potternewton, B.

  Amos, B.

  Graham of Edmonton, L.

  Archer of Sandwell, L.

  Grenfell, L.

  Ashley of Stoke, L.

  Grey, E.

  Bach, L.

  Hacking, L.

  Barnett, L.

  Hamwee, B.

  Beaumont of Whitley, L.

  Hanworth, V.

  Berkeley, L.

  Hardie, L.

  Blackstone, B.

  Hardy of Wath, L.

  Borrie, L.

  Harris of Greenwich, L.

  Bragg, L.

  Harris of Haringey, L.

  Brooke of Alverthorpe, L.

  Haskel, L.

  Bruce of Donington, L.

  Hilton of Eggardon, B.

  Burlison, L.

  Hollis of Heigham, B.

  Calverley, L.

  Howie of Troon, L.

  Carlisle, E.

  Hoyle, L.

  Carter, L. [Teller.]

  Hughes, L.

  Castle of Blackburn, B.

  Hughes of Woodside, L.

  Christopher, L.

  Hunt of Kings Heath, L.

  Clarke of Hampstead, L.

  Irvine of Lairg, L. (Lord Chancellor)

  Clement-Jones, L.

  Clinton-Davis, L.

  Janner of Braunstone, L.

  Cocks of Hartcliffe, L.

  Jenkins of Putney, L.

  Crawley, B.

  Judd, L.

  David, B.

  Kennedy of The Shaws, B.

  Davies of Coity, L.

  Linklater of Butterstone, B.

  Davies of Oldham, L.

  Lockwood, B.

  Dean of Thornton-le-Fylde, B.

  Lovell-Davis, L.

  Desai, L.

  McIntosh of Haringey, L.

  Dholakia, L.

  Mackenzie of Framwellgate, L.

  Diamond, L.

  McNair, L.

  Dixon, L.

  McNally, L.

  Donoughue, L.

  Mallalieu, B.

  Dormand of Easington, L.

  Miller of Chilthorne Domer, B.

  Dubs, L.

  Milner of Leeds, L.

  Evans of Parkside, L.

  Mishcon, L.

  Evans of Watford, L.

  Molloy, L.

  Falconer of Thoroton, L.

  Monkswell, L.

  Falkland, V.

  Montague of Oxford, L.

  Farrington of Ribbleton, B.

  Morris of Castle Morris, L.

  Fitt, L.

  Morris of Manchester, L.

  Geraint, L.

  Murray of Epping Forest, L.

  Gilbert, L.

  Newby, L.

  Gladwin of Clee, L.

  Paul, L.

  573

  Peston, L.

  Simon, V.

  Phillips of Sudbury, L.

  Simon of Highbury, L.

  Pitkeathley, B.

  Smith of Clifton, L.

  Ponsonby of Shulbrede, L.

  Smith of Gilmorehill, B.

  Puttnam, L.

  Stone of Blackheath, L.

  Ramsay of Cartvale, B.

  Strabolgi, L.

  Randall of St. Budeaux, L.

  Symons of Vernham Dean, B.

  Razzall, L.

  Taverne, L.

  Redesdale, L.

  Taylor of Blackburn, L.

  Rendell of Babergh, B.

  Thomas of Swynnerton, L.

  Richard, L.

  Thomas of Walliswood, B.

  Rochester, L.

  Thomson of Monifieth, L.

  Rodgers of Quany Bank, L.

  Thornton, B.

  Rogers of Riverside, L.

  Thurso, V.

  Russell, E.

  Tomlinson, L.

  Russell-Johnston, L.

  Turner of Camden, B.

  Sainsbury of Turville, L.

  Walker of Doncaster, L.

  Sandberg, L.

  Watson of Invergowrie, L.

  Sawyer, L.

  Whitty, L.

  Serota, B.

  Williams of Crosby, B.

  Sewel, L.

  Williams of Elvel, L.

  Sharp of Guildford, B.

  Williams of Mostyn, L.

  Shepherd, L.

  Young of Old Scone, B.

  Resolved in the negative, and amendment disagreed to accordingly.
  5.16 p.m.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 12 to 26:
  Page 32, line 36, leave out ("An agreement for or") and insert ("A")
  Page 32, line 38, after ("effect") insert ("to the extent specified in paragraph 83(2)")
  Page 35, line 22, leave out ("An agreement for or") and insert ("A")
  Page 35, line 24, after ("effect") insert ("to the extent specified in paragraph 83(2)")
  Page 40, line 18, leave out from ("registered") to end of line 20 and insert ("in the register maintained under section 8 of the Merchant Shipping Act 1995 shall be treated as ordinarily working in Great Britain unless?—

  (a) the ship's entry in the register specifies a port outside Great Britain as the port to which the vessel is to be treated as belonging,")

  Page 40, line 24, leave out ("(2)(a)") and insert ("(2)")
  Page 40, line 40, at end insert ("or 59")
  Page 40, line 42, leave out ("58") and insert ("60")
  Page 49, line 4, leave out ("or 47")
  Page 49, line 48, leave out ("or agreement")
  Page 50, line 48, leave out ("or agreement")
  Page 51, line 36, leave out ("or agreement")
  Page 53, line 49, at end insert?—
  ("(4A) In relation to a residual unit in relation to which a declaration is issued under paragraph 91, references to collective bargaining are to negotiations relating to the matters which were the subject of collective bargaining in relation to the corresponding parent unit.")
  Page 54, line 1, leave out ("67(5)(b)")
  Page 55, line 28, leave out from ("registered") to end of line 30 and insert ("in the register maintained under section 8 of the Merchant Shipping Act 1995 shall be treated as ordinarily working in Great Britain unless?—

  (a) the ship's entry in the register specifies a port outside Great Britain as the port to which the vessel is to be treated as belonging,")

  The noble Lord said: My Lords, I have already spoken to Amendments Nos. 12 to 26 which I beg to move en bloc.
  On Question, amendments agreed to.
  Schedule 3 [Ballots and notices]:
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 27:
  Page 78, line 41, at end insert?—
  ("Separate workplace ballots
  The following shall be substituted for section 228 (separate workplace ballots)—
  "Separate workplace ballots.
  228.—(1) Subject to subsection (2), this section applies if the members entitled to vote in a ballot by virtue of section 227 do not all have the same workplace.
  (2) This section does not apply if the union reasonably believes that all those members have the same workplace.
  (3) Subject to section 228A, a separate ballot shall be held for each workplace; and entitlement to vote in each ballot shall be accorded equally to, and restricted to, members of the union who—

  (a) are entitled to vote by virtue of section 227, and

  (b) have that workplace.

  (4) In this section and section 228A "workplace" in relation to a person who is employed means—

  (a) if the person works at or from a single set of premises, those premises, and

  (b) in any other case, the premises with which the person's employment has the closest connection.

  Separate workplaces: single and aggregate ballots.
  228A.—(1) Where section 228(3) would require separate ballots to be held for each workplace, a ballot may be held in place of some or all of the separate ballots if one of subsections (2) to (4) is satisfied in relation to it.
  (2) This subsection is satisfied in relation to a ballot if the workplace of each member entitled to vote in the ballot is the workplace of at least one member of the union who is affected by the dispute.
  (3) This subsection is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who—

  (a) according to the union's reasonable belief have an occupation of a particular kind or have any of a number of particular kinds of occupation. And

  (b) are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.

  (4) This subsection is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.
  (5) For the purposes of subsection (2) the following are members of the union affected by a dispute—

  (a) if the dispute relates (wholly or partly) to a decision which the union reasonably believes the employer has made or will make concerning a matter specified in

  575
  subsection (1)(a), (b) or (c) of section 244 (meaning of "trade dispute"), members whom the decision directly affects,

  (b) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(d) of that section, members whom the matter directly affects,

  (c) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(e) of that section, persons whose membership or non-membership is in dispute,

  (d) if the dispute relates (wholly or partly) to a matter specified in subsection (1)(f) of that section, officials of the union who have used or would use the facilities concerned in the dispute." ").

  The noble Lord said: My Lords, I gave notice at Report stage that the Government planned to table this amendment concerning the holding of an industrial action ballot across two or more workplaces. The amendment was tabled yesterday, and for that I apologise. As I said at Report stage, the current law in this area is notoriously complicated—indeed, incomprehensible—and we wished to be sure that our proposals were correct in all respects. We did not achieve that state of certainty in time to table the amendment earlier. In view of that and the fact that the amendment is quite lengthy, I must describe its effect in some detail to ensure that its meaning is clear.
  Section 228 of the Trade Union and Labour Relations (Consolidation) Act 1992 places restrictions on the circumstances in which a single aggregate ballot may be held of members having separate workplaces. There have been a number of problems with the law. First and foremost, it is notoriously complex and difficult to apply in practice. It depends on the identification of a "common distinguishing factor" which applies to the members balloted and to no other members. Experienced employment lawyers have found the formula virtually unintelligible and very difficult to apply to actual cases. Therefore, it presents problems to both unions and employers. The law cries out for some clearer formulation of words to specify the circumstances in which an aggregate ballot can be held. The new Section 228A introduced by this amendment provides this clarification.
  Before I describe the new provision in detail I should like to describe another problem with the current Section 228 which this amendment tackles. I refer here to the definition in the section of "place of work", requiring premises to be "occupied" by the employer for it to qualify. This has created difficulties in the past, most recently in the case of Intercity West Coast Limited v. RMT where it was almost impossible for the union to know whether or not particular adjacent premises occupied by different employers with whom the union was in dispute should be regarded as being separate. The amendment provides, in subsection (4) of the new Section 228 to be inserted into the 1992 Act, a simpler form of words to define a workplace. This removes all reference to the need for the premises to be occupied by the employer, and it responds to criticisms of the existing law.
  New Section 228 states that a union must undertake separate workplace ballots for each workplace unless specific circumstances obtain. The three sets of circumstances are set out in the new Section 228A. First, subsections (2) and (5) of new Section 228A allow the union to aggregate a ballot across separate workplaces if at least one of its members at each of the workplaces is directly affected by the dispute. So, if a dispute concerned Sunday working, and such working occurred at workplaces A and B, but not workplace C, the union could hold an aggregate ballot across workplaces A and B, but it would have to hold a separate ballot at workplace C.
  These provisions mean that a union can aggregate a ballot at those workplaces which are indisputably "close" to the issue at dispute. It seems eminently reasonable, where the same circumstances apply, to allow for the balloting across the workplaces to be aggregated. This should simplify the process for all concerned: union members, the union and the employer. Where one or more workers are directly involved, it will normally be the case that others at the same workplace, sometimes many others, will rightly feel themselves to be indirectly involved by an employers' handling of an issue; for example, the way the employer handles a matter may set a precedent for the handling of similar matters in relation to other workers.
  Obviously, this formulation does not allow aggregation to occur where a workplace has nobody directly affected by a dispute, but where many or all are indirectly affected. This circumstance should be relatively rare, however. As I have explained, the union would have to hold a separate ballot of members at that workplace if it wished those members to take part in the industrial action.
  The second circumstance where aggregation is permitted is where the union ballots each and every one of its members in a particular occupational category who are employed by a particular employer or group of employers.
  Thirdly, aggregation is permitted where the union ballots each and every one of its members employed by a particular employer or employers. These two types of all-inclusive or omnibus ballots are in fact permitted under the existing Section 228. What we have done, therefore, in subsections (3) and (4) is to spell this out, thereby removing any possible uncertainty about the matter.
  The current law is opaque and highly restrictive in its effects. It is based on the false premise that the holding of a single aggregate ballot across different workplaces provides great scope for abuse to occur. In fact, there is little or no evidence that unions have abused the balloting process to force their members at moderate workplaces to take action by aggregating their votes with those from a larger, militant workplace. Such tactics would anyway backfire. Democracy has spread within unions. Unwilling workers will simply not obey a call by their union to take action if the dispute does not affect them at all. Also, such tactics would adversely affect the size of any ballot majority. Unions are most

  577
  interested in achieving large majorities on large turn-outs. They know that such outcomes have a greater impact in persuading the employer to reach a settlement.
  Our proposals provide clearer criteria to define the circumstances where an aggregate ballot can be held. They are also less burdensome and restrictive. However, they retain legitimate limitations on the ability of unions to hold such ballots so that members at a particular workplace cannot be balloted with those at other workplaces where their workplace has no real connection with the dispute except in the case where all the members employed by their employer are balloted. The Government have thought long and hard about this amendment and believe that they have found the right balance. I beg to move.
  On Question, amendment agreed to.
  Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 28:
  Page 79, line 18, after ("and") insert ("to")
  The noble Lord said: My Lords, on Report an amendment was introduced to Schedule 3 to widen the scope for merchant seamen to be balloted on industrial action aboard ship or at a port. The provisions currently state that it will be inconvenient for the merchant seamen to receive a voting paper and to vote while on the ship or at a place where the ship is. This is less than satisfactory grammatically! Receiving a voting paper and actually voting are separate matters. It should therefore be clear that the convenience test applies separately to each of them. By inserting the word "to" before the word "vote", this amendment achieves that result. I beg to move.
  On Question, amendment agreed to.
  Schedule 4 [Leave for Family Reasons Etc.]:
  Lord Simon of Highbury Lord Simon of Highbury moved Amendment No. 29:
  Page 86, line 39, leave out ("unless") and insert ("except where")
  The noble Lord said: My Lords, in moving Amendment No. 29, I should like to speak at the same time to Amendments Nos. 30 to 42. These amendments are all minor consequential matters, made necessary by the changes introduced on Report to the provisions of parental leave and time off for dependants and the introduction of new Schedule 8 relating to national security. I beg to move
  On Question, amendment agreed to.
  Lord Simon of Highbury Lord Simon of Highbury moved Amendments Nos. 30 to 42:
  Page 87, line 18, leave out ("failure") and insert ("refusal")
  Page 87, line 29, leave out ("failing") and insert ("refusing")
  Page 88, leave out lines 11 to 16 and insert?
  ("4. In section 13(2) of the Employment Tribunals Act 1996 (costs and expenses) the following shall cease to have effect—")
  Page 88, line 43, leave out ("or time off under section 57A")
  Page 89, line 38, leave out ("or time off under section 57A")
  Page 90, line 18, leave out ("57C") and insert ("57B")
  Page 90, line 19, leave out paragraph 34
  Page 90, line 27, leave out ("57C") and insert ("57B")
  Page 90, line 32, leave out ("57C") and insert ("57B")
  Page 90, line 37, leave out ("57C") and insert ("57B")
  Page 91, line 1, leave out paragraph 40
  Page 91, line 24, leave out ("57A, 57C,")
  Page 91, line 24, leave out ("81,")
  On Question, amendments agreed to.
  Schedule 7 [Employment Agencies]:
  Lord Simon of Highbury Lord Simon of Highbury moved Amendment No. 43:
  Page 105, line 31, leave out ("The reference in subsection (1)(eb)") and insert ("A reference in subsection (1)(ea) to (ec)")
  The noble Lord said: My Lords, this is an amendment to Schedule 7, a technical amendment which amends the Employment Agencies Act 1973. It makes it clear that the application of new Section 5(1A) is not confined to regulations made under new subsection 5(1)(eb). Section 5(1A) makes it clear that regulations under the Act can apply in relation to services provided by bureaux to people seeking work outside the United Kingdom and to non-UK residents seeking work inside the United Kingdom. I beg to move.
  On Question, amendment agreed to.
  Schedule 8 [National Security]:
  Lord Razzall Lord Razzall moved Amendment No. 44:
  Page 109, line 16, leave out ("all or")
  The noble Lord said: My Lords, perhaps with the leave of the House, I may speak to Amendment No. 45 at the same time. I am sorry to have brought this amendment before the House at this late stage rather than on Report although, as I think the noble Minister will accept, this particular amendment to the Bill was brought in by the Government at a relatively late stage. The government amendment comes directly as a result of the report of the Intelligence and Security Committee of 1997–98 which recommended that the procedure should be altered in matters affecting national security so as to give rights to employees which hitherto they have not had. That is the purpose of the Bill.
  My two amendments go to the point that if the substance and purport of the amendments being made by the Government are to give to members of the security services in particular the right to appear before the appropriate tribunal and the right to be represented there, it would seem to destroy the purport of the Bill if the words "all or" remain. In fact, it would enable the purpose of the provisions to be completely negated. It would mean that the relevant individual or their representative could be excluded from all the proceedings. As I understood it, one of the major purposes of that section is to allow that representation to take place either individually or by representation.
  Of course, it is accepted that in matters of national security it may be appropriate for the individual or the individual's representative to be excluded from significant elements of the proceedings. It cannot be right to have on the face of the Bill the power to exclude either the individual or their representative from all the proceedings, as that was indeed the whole purpose of the clause.
  I suspect—no doubt the Minister will deny this if it is wrong—that the clause is drafted in this way because it has been lifted wholesale from the provisions of the special immigration appeals tribunals. Those provisions are identical with these, with the word "all" included. There is a difference between the procedures for the special immigration appeals tribunals and these tribunals. In the former case, there is a provision for a special advocate, who is an amicus curiae, to be appointed by the tribunal to be present when the applicant and his representative are excluded. Therefore, if we are going to have that wording, it would be inappropriate to take the wording specifically from that provision and to lift it wholesale into this. I am sorry to be raising this matter at such a late stage. The words that are being deleted are very timely and this touches on an important point of principle. I beg to move.
  5.30 p.m.
  Lord Archer of Sandwell: My Lords, I have not participated in your Lordships' earlier debates on this Bill. Those who know me will know that this does not reflect any absence of interest in the subject matter. It really reflects two points. The first is the number of matters that crowd upon our attention, particularly in the weeks immediately preceding the Summer Recess—at least I hope these are the weeks immediately preceding the Summer Recess! It also reflects the fact that I strongly support the Bill. I was not going to delay your Lordships by saying that I support it. If I have nothing about which to complain I tend to remain silent. But this amendment is different. I am most grateful to the noble Lord, Lord Razzall, for his alertness in setting it down.
  As the noble Lord said, in the annual report for 1997–98 the Intelligence and Security Committee, on which I am privileged to serve, addressed the question of personnel problems within the security services. Someone who leaves the service with a sense of grievance has the capability of disclosing information which could be very damaging; or of disclosing misinformation which could be equally damaging.
  Over the past few years, the agencies have revised their personnel management policies to bring them into line with best practice. But we concluded that one factor in generating frustration is the absence of a procedure for complaint. We said that everything possible should be done to ensure that employees of the agencies should have the same rights as employees elsewhere, including access to what are now employment tribunals. Of course, as the noble Lord said, from the nature of their employment there will be matters which cannot be public, for security reasons, and the procedures will need to be adapted accordingly.
  I accept that the Government are seeking to address that problem. If I may say so on behalf of the committee, although I have no mandate to say it, I am grateful. My noble friend Lord Sainsbury was kind enough to write to me telling me what was proposed.
  The present position arises from Section 193 of the Employment Rights Act 1996. That Act permitted Crown employees to complain to employment tribunals. But Section 193 provided that that right could be denied
  580
  them by the certificate of a Minister certifying that their employment was required to be exempted from protection for the purposes of safeguarding national security. So it was therefore open to a Minister in the Government which employed them to deny them access to tribunals.
  The amendment moved by my noble friend on Report substituted for Section 193 a new schedule which is now Schedule 8. It does not deny employees of the security and intelligence services access to an employment tribunal. It is a commendable new schedule. But it provides that it is a complete defence to show that the action complained of, which might include dismissal, was taken for the purpose of safeguarding national security. It is not even necessary to show that it had that effect. It is enough that it was taken for that purpose. It need not have been a reasonable course to take for that purpose. If that was the purpose, that is conclusive, as I understand it. So already the employee may have a formidable task in showing that what was done to him was not done for that purpose.
  However, it is the procedure which is occasioning the greatest consternation. A Minister may direct the tribunal to do a number of things, such as to sit in private. I find it curious that the tribunal has no discretion in the matter. The decision of the Minister is conclusive. The Minister may be a party to the proceedings. So we may have a party being, in effect, judge in his own cause.
  There is a power to make special provision as to the composition of the tribunal. If I understood my noble friend correctly on Report, he said that it was intended that the tribunal shall consist of specially selected experienced chairmen and specially designated lay members. Therefore, it is curious that the Government do not propose to trust them with these decisions.
  We then find the provision to which the noble Lord's amendment is directed. One of the matters on which the Minister may direct the tribunal is to exclude the applicant and his representative from all or part of the proceedings. I understand that certain evidence should not be made known to an applicant and his representative; and it may be necessary to exclude them from certain parts of the proceedings. But to exclude them from the whole would prevent them from even stating their case. They could not even argue what conclusions should be drawn from some of the evidence. Certainly it is in danger of being held to infringe Article 6 of the European Convention on Human Rights, and it would reduce the hearing to a travesty. I should be unwilling to take the chair at a tribunal with that provision in its constitution.
  On Report, my noble friend indicated that it is the Government's intention that the Attorney-General may provide a special advocate to act in the interests of the applicant in the way that, as the noble Lord, Lord Razzall, indicated, the immigration tribunal now works. But if he is to be denied a representative of his choice, is the special advocate to be appointed irrespective of the applicant's wishes? Let us suppose that he says he does not want the special advocate. Clearly the special advocate is not in any meaningful

  581
  sense representing the applicant. Will he have to take instructions from the applicant? Will he have to take into account the wishes of the applicant if he says how he would like a particular aspect of the case dealt with? I am unhappy about the provision on the immigration side.
  But if the procedure is manifestly not fair, not only will that reflect on our legal system and our standards of human rights compliance; it will fail to address the problem which the Intelligence and Security Committee had in mind: that of dissatisfied former employees of the security services working out their frustrations in public to the damage of the national interest. It is worth a little care to get the provision right. I support the noble Lord's amendment.
  Baroness Miller of Hendon: My Lords, I am sure that the House is grateful, as I am, to the noble and learned Lord, Lord Archer of Sandwell, for explaining so carefully the technical matters and the defects within the clause. My right honourable friend, the Member for Bridgwater, who chairs the committee on which the noble and learned Lord sits, was equally concerned about the matter. We on these Benches support the amendments.
  Lord Sainsbury of Turville: My Lords, I deal with two general points. First, as my noble and learned friend said, there is a power for the Attorney-General to appoint a special representative to represent the interests of an excluded applicant. I think that it is difficult to conceive how that person would then take instructions from someone who was not able to be present at the meeting. It is therefore a proper power and the right one in this case.
  The second is the question of dismissal on the ground of national security. Again, it seems to me that this has to be determined by the Minister. In those circumstances, it cannot be debated in the way one might like.
  Government policy is designed to allow staff of the security and intelligence agencies to present complaints to employment tribunals in as similar a way as possible to other employees, while safeguarding the interests of national security.
  One of the necessary safeguards provided is that a Minister of the Crown may direct in Crown employment proceedings that an applicant should be excluded where necessary from part or all of proceedings in the interests of national security. The applicant's representative may also be excluded in the same way.
  The power to make such a direction will be used only where necessary to protect the interests of national security, and it is anticipated that the power to exclude from all future proceedings would be very rarely used and only in the most extreme circumstances where the interests of national security could not otherwise be adequately protected. Again, I think that this has to be an area where the judgment has to come from the Minister. However, it is government policy that an
  582
  applicant—or his representative on his behalf—should always, in all circumstances, be entitled to make a statement of his case to the tribunal.
  We are presently examining the Bill to see what needs to be done to ensure that the procedure regulations can provide for this. Any deficiency in this regard in this provision of the Bill, which is itself an amendment of this House, may be dealt with in another place when it comes to consider this new schedule. We are also not convinced that this amendment would achieve this aspect of government policy. I therefore ask that the amendment be withdrawn.
  Lord Razzall: My Lords, from the response the Minister has given, I understand that it will be government policy and they will see how they can include the matter in the regulations and, if necessary, on the face of the Bill when it goes back to another place: that at the very least anyone in these circumstances will always be able to make a statement as to their case to the relevant tribunal. The Minister nods. If that is what he indicates, I am happy to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 45 not moved.]
  Lord Sainsbury of Turville Lord Sainsbury of Turville moved Amendment No. 46:
  Page 109, line 36, leave out ("party") and insert ("applicant")
  The noble Lord said: My Lords, in moving Amendment No. 46, I propose to speak also to Amendments Nos. 47 and 48. They are three minor technical amendments.
  Section 10(5)(b) inserted by Schedule 8 into the Employment Tribunals Act 1996 provides that employment tribunal procedure regulations may make provision for a Minister of the Crown, on grounds of national security, to direct a tribunal to exclude the applicant from all or part of particular Crown employment proceedings. Section 10(5)(c) provides that the applicant's representative may likewise be excluded. Section 10(6) provides that employment tribunals may also exclude applicants and their representatives in the interests of national security.
  Section 10(7) currently provides that the Attorney General or the Advocate General will be able to appoint a special representative to represent the interests of an excluded party. Since it follows from what I said earlier that the party concerned will be the applicant, the amendment substitutes "applicant" for "party" in subsection (7).
  Amendment No. 47 is a drafting amendment designed to improve and clarify new section 10B(6) of the Employment Tribunals Act. It does not alter its effect.
  Amendment No. 48 is another drafting amendment which substitutes "or" for "and" in new section 30(2A) of the Employment Tribunals Act 1996. I beg to move.
  On Question, amendment agreed to.
  Lord Sainsbury of Turville Lord Sainsbury of Turville moved Amendments Nos. 47 and 48:
  Page 111, line 5, after first ("programme") insert ("which is")
  Page 111, line 15, leave out ("and") and insert ("or"
  On Question, amendments agreed to.
  Lord Simon of Highbury: My Lords, I beg to move that this Bill do now pass.
  Moved, That the Bill do now pass.—(Lord Simon of Highbury.)
  Baroness Miller of Hendon: My Lords, I shall be extremely brief. As noble Lords opposite know, we on these Benches certainly did not like the Bill, but we are most grateful for the courtesy of all three Ministers in handling our concerns. We are also grateful to the officials for the help they gave and for the many small concessions and improvements which have been made to the Bill.
  I understand from the Brethren that the noble Lord, Lord Simon, was most kind and had a meeting with them. They understand that the Government are considering whether the regulations can contain advice relating to discrimination on religious grounds. If that is so, I am most grateful.
  I know that I have made some harsh comments about trade unions and I should not like to have offended any noble Lord on the other side. Despite that, I am not against trade unions; I believed that they have a proper place in large industrial concerns. I hope that that does not sound patronising because I really believe that. However, I was able to build a small business into a large international one over three countries and I believe that the legislation will be difficult for small business and will cause many problems.
  Finally, I repeat that I am grateful for all the help I have received.
  Lord Simon of Highbury: My Lords, perhaps I, too, may take this opportunity to thank the noble Baroness, Lady Miller, and her colleagues and the noble Lord, Lord Razzall, for the way in which the Bill has been conducted. It has passed smoothly. It is an important piece of legislation and we on this side have appreciated the constructive manner in which it has been dealt with. I also thank the officials for all their hard work.
  I confirm that we have spoken to the Brethren and I have encouraged them to write to me at the Department of Trade and Industry, particularly as regards their practical experience which may enlighten the way in which we approach the writing of the code. As we said previously, we do not believe that it is right to place that on the face of the Bill, but we shall attend to the practicalities as best we can in giving advice to ACAS on the formulation of the code. Obviously, no clear commitments can be made on that, but we shall make best endeavours.
  On Question, Bill passed and returned to the Commons with amendments.

Local Government Bill
5.45 p.m.
Read a third time.
Clause 2 [Power to extend or disapply]:
Earl Russell Earl Russell moved Amendment No. 1:
Page 3, line 2, at end insert—
("(7) The Secretary of State shall prior to the commencement of Part VI of the Immigration and Asylum Act 1999 consult persons appearing to him to represent best value authorities affected by that Part with regard to excluding functions under it pursuant to subsection (5)")
The noble Earl said: My Lords, the amendment is a request for joined up government. While I regret its appearance so late in the Bill, its lateness is due to the fact that the other piece of government legislation with which we wish to join it up appeared in this House only since the previous stage of proceedings on this Bill. That is Part VI of the Immigration and Asylum Bill, at present in Committee in this House.
Part VI of that Bill is the new system of support for asylum seekers under which they are to be supported by vouchers in kind and not in cash and are to live in a place directed by the Secretary of State and will be given no choice in the matter. It is admitted on all sides, including by the Government and in the White Paper, that that will be a more expensive system than to have them on benefit in the normal way. It is entirely beyond our purposes to enter into any argument about that at the moment, save to record that it is uncontested fact. So here is a duty which is not being discharged in the most economical manner possible.
The relevance of that to best-value legislation was spotted at Second Reading of the Immigration and Asylum Bill by my noble friend Lady Ludford, whom I want to thank for drawing my attention to the point. Clearly, there is a potential conflict between the provisions of this Bill and Part VI of the Immigration and Asylum Bill. Any duties which local authorities discharge under that—and it is clearly envisaged in the Immigration and Asylum Bill that they will end up discharging duties—would not be discharged in the most economical manner possible. Whether they would be discharged in the most efficient and effective manner possible is a matter on which there would be room for argument, but I do not see the need to enter into that now. It would be a conjectural argument on both sides.
Another problem with applying best-value legislation to duties under Part VI of the Immigration and Asylum Bill is the duty to consult in Clause 3(2)(a) of this Bill. That is a duty to consult all local tax and rate payers and other people in the area who may appear to be concerned. In some local authorities, including my own which is the London Borough of Brent, a vociferous, even if small, body of people passionately resent asylum seekers being housed in their area. There is constant vitriolic correspondence in my local paper. From this address, I once wrote in reply to some of that correspondence and received an indignant reply, saying, "If only you lived in the sort of area I did you wouldn't

585
have said any of these things.". That letter came from an address one hundred yards from my own door. I did not enlighten the man on the point.
Such incidents under the duty to consult in Clause 3(2)(a) would give opportunities which I cannot believe members of the British National Party would fail to take. No doubt one could tell them to go to a certain place, unmentionable in this House, but that would take up a good deal of everybody's time.
It seems to me to be altogether more appropriate that any duties under Part VI of the Immigration and Asylum Bill should not be subject to best value provision. My noble friend Lady Hamwee spotted a way in which that could be done. Under Clause 2(5) of the present Bill, the Secretary of State may provide that a best value authority—not only local authorities, but they are the ones principally concerned—may be provided not to be subject to best value in relation to any particular function or functions.
Whether it will appear to the Secretary of State to be expedient to exercise that power in relation to functions under Part VI of the Immigration and Asylum Bill, I do not know, but it would save a great deal of trouble if it did appear to him to be expedient to exercise that power. I hope for an encouraging reply to that point. I beg to move.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I understand the broad concerns and intent behind the amendment. I find it slightly odd that the amendment is laid to this Bill when we are still considering the substantive legislation. I do not believe that this is the best way to achieve what the noble Earl intends.
It is obviously important that we make satisfactory provision to protect asylum seekers and their dependants and that we should not impede local authorities in playing their part in that. However, the whole import of Part VI of the Immigration and Asylum Bill is to set out the manner in which the Secretary of State may make arrangements to provide support and accommodation to asylum seekers and their dependants. In doing so, he makes contractual arrangements with local authorities or, as a last resort, directs them to carry out certain functions in respect of asylum seekers.
I believe that the amendment to this Bill is flawed on a number of grounds. The exemption powers in Clause 2(5) of the Local Government Bill are in respect of best value duties rather than the exercise of local authority functions as the wording of the amendment implies. It is not the purpose of Clause 2(5) to exempt authorities from exercising any of their functions; the provision is concerned with disapplying best value duties in respect of certain functions of best value authorities. If the Secretary of State exercises this power and makes an order, the authority will still need to carry out the functions, but in doing so will not be subject to the best value duties.
I understand the concern that lies behind the amendment tabled by the noble Earl. However, it seeks to create a means by which authorities engaged in
586
functions described in Part VI of the Immigration and Asylum Bill might be consulted with a view to exempting them from certain aspects of the duty of best value in respect of them. I understand, and we all recognise, the issue of the burden which falls on relatively few authorities with large numbers of asylum seekers. However, the whole purpose of Part VI of the Immigration and Asylum Bill is to relieve authorities of those duties and transfer responsibilities for support of asylum seekers to the Home Secretary.
There is still an important role for local authorities but that, as I said, is, in effect, as contractors rather than in pursuance of any statutory function. The contractual obligations would provide a level of underpinning for the effective delivery of service. That would apply whether or not the parties to them—in this case local authorities—were subject to best value.
If we were to exempt authorities from the duty of best value in this area, that could lessen the pressure on those local authorities to make the most efficient use of their resources and to deny them the flexibility that the best value regime provides.
There is also a slight implication that the duty of best value can lead to penalising local authorities whereas we are trying to create a climate in which they can improve all their services. I do not think that absolving authorities from the duty of best value in this way would be helpful under the new regime. It would not do anything to change their contractual obligations under the new immigration or asylum regime with regard to supporting asylum seekers.
There is another technical flaw to the amendment. The scope of this act, which applies only to England and Wales, is different from the scope of the Immigration and Asylum Bill. I expect that the noble Earl realises that. As I have said, the central point is that exempting authorities from best value would not achieve the aims that he is seeking under the regime proposed in the Immigration and Asylum Bill. I therefore hope that in relation to this Bill, at least, the noble Earl will withdraw his amendment.
Baroness Hamwee: My Lords, before the Minister sits down, and with the leave of the House, perhaps I may ask a question. I understood him to say that, when local authorities carry out a duty as a contractor, that duty is parallel to but different from and therefore outside the regime of best value. I wonder whether I have understood that correctly.
Lord Whitty: My Lords, it is not a duty that is affected by best value. Clearly, the total regime is still one of best value but the performance is almost certainly regulated by the quasi-contractual relationship to the Home Secretary, rather than the best value regime.
Earl Russell: My Lords, I am grateful to the Minister for that. That is just about what I hoped to hear. I appreciate that there is a problem about whether this is the appropriate place to raise this matter. I informed the noble Lord, Lord Williams of Mostyn, that I intended to raise it here. I hope there has been communication between him and the noble Lord. All

587
I want to hear is that a local authority would not be penalised and would not suffer financial loss under best value if it acted according to a contract with another Secretary of State. If I can take that from the Minister's nods—perhaps I may enter them into the record by mentioning them—I have received all the assurance I could legitimately hope for. Therefore, with thanks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Performance indicators and standards]:
Lord Whitty Lord Whitty moved Amendment No. 2:
Page 3, line 36, leave out ("such persons as he thinks fit.") and insert—
("(a) persons appearing to him to represent the best value authorities concerned, and
(b) such other persons (if any) as he thinks fit.")
The noble Lord said: My Lords, at Report stage of the Bill I undertook to table an amendment along the lines of Amendment No. 2. This amendment would place on the face of the Bill a requirement for the Secretary of State in England and the Welsh Assembly in Wales to include those people they consider to be representative of best value authorities, and other bodies they think fit, when consulting on performance indicators and standards.
I recognise that this has been an issue of some concern in local government associations. I believe the amendment will meet the issues raised at earlier stages of the Bill by the noble Baroness, Lady Miller of Chilthorne Domer. It also addresses the concerns I raised on Report. I beg to move.
Baroness Hamwee: My Lords, from these Benches, on behalf of my noble friend and myself, I thank the Minister for proposing the amendment. It certainly meets a point with which we were concerned at earlier stages. I should like to record our thanks.
On Question, amendment agreed to.
Clause 15 [Secretary of State's powers]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 3:
Page 11, line 38, at end insert—
("() For the purposes of subsection (11), "urgent" means danger of substantial harm or substantial financial loss to prevent which the Secretary of State considers it necessary not to comply with subsection (9) or (10) as the case may be.")
The noble Baroness said: My Lords, Amendment No. 3 takes us to Clause 15 which deals with intervention powers. Under Clause 15 the powers of the Secretary of State are very wide ranging. We accept that our views and those of the Government differ. We do not seek further to object to the provisions for intervention, save in one respect.
Under Clause 15(9) before a direction can be given, for instance to follow specified procedures in relation to a performance plan, to select just one example, the authority has an opportunity to make representations. Under Clause 15(10) the Secretary of State must have
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regard to any statement by the authority when the auditor recommends a direction. However, under Clause 15(11) if the Secretary of State,
"considers the direction sufficiently urgent"
the Secretary of State can dispense with the requirements of subsections (9) and (10); that is, giving the opportunity to make representations and having regard to a statement.
The amendment seeks, as we have done at previous stages, to define the term "urgent". There are no criteria on the face of the Bill. We are aware, of course, of the draft protocol with regard to the use of intervention powers. That gives a number of examples of failures of process and substance which might, according to the draft protocol, trigger the use of the powers. They may be minor. Of course, they may be major, but the point of my amendment is to highlight that they may be minor.
Among the failures of process is the failure to publish a programme of fundamental performance reviews. 'The draft does not say that that must be a material failure. So the publication, which has to be in compliance with the statutory framework, might in some minor regard fail to comply with one small requirement of that framework.
The failures of process also include failure to publish performance information as prescribed in respect of content, form or timing. Again, there could be an immaterial failure with regard to form. The failures of substance include failure to improve service standards or a deterioration in service standards. Again, the failure could be minor—barely amounting to "failure" as we normally understand it.
Many of these matters are matters for the electorate. I am sure that the Minister will say that the Secretary of State will not want to use his extreme powers where the failures are minor; but accepting that the possibility still exists (because the provisions of the Bill do not in any way constrain the use of the powers by defining what is "urgent"), and accepting that the Government are intent on having this regime of intervention available for use, we seek again to draw attention to the need to define the circumstances when the Secretary of State is not required to give the authority the opportunities to which I referred.
We believe that it is incumbent on the Government to ensure that these matters are spelt out. In Grand Committee the Minister made the point that financial loss could be long term. He said that the provision which we were proposing was over rigid and that the Government wanted to see more flexibility. We are concerned about that. We believe that when considerable powers are given to the Secretary of State, he should not be able to exercise them flexibly—at any rate, not on a case-by-case basis. There is a distinction perhaps between flexibility as applied to distinguish between different authorities, and flexibility which recognises that circumstances applying to all authorities may vary over time. I do not believe that we have sufficiently addressed that distinction.
We believe that discretionary powers should have limits set to their use. The Government said that, because we are in a rapidly changing situation and in a

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new form of regime, they cannot lay out on the face of the Bill what is necessary. We believe that it is incumbent on the Government to attempt to do so. At the last stage the Minister criticised my amendment for not providing fast-track procedures to address what he described as persistent or systematic failure. Again, I deliberately excluded those because, by definition, they are matters which will not appear overnight and therefore should not enable the use of the urgency powers. My main concern is to ensure that the use of the word "urgent" is defined.
I am aware that it is intended that the central local partnership will discuss the intervention protocol next week. I tabled this amendment today to seek assurances that the Government—they cannot, of course, speak for the other party in that partnership—believe that this is a matter which they regard as necessary to address when the protocol is finalised. I beg to move.
6 p.m.
Lord Whitty: My Lords, as the noble Baroness said, we touched on this issue at earlier stages. The provision under this clause to act in "urgent" cases is included to protect services, and particularly service users and vulnerable people. In using these fast-track procedures, the Secretary of State cannot act in an arbitrary way. Under Section 12 he must have and give reasons for recourse to the fast-track provisions and for bypassing the lengthier procedures; and he must act reasonably. The decision to use them may be subject to public scrutiny and challenge in the courts. Therefore, the noble Baroness's fear that this could be used for minor and technical infringements is not valid.
Urgent intervention would occur only in exceptional circumstances where there is clear evidence of serious or persistent failure. The provisions are needed so that the Secretary of State is able to act swiftly, particularly when vulnerable people are at risk or in situations where immediate action is needed and we need the power to act.
We can imagine a situation, for example, where an authority persistently fails to deliver. The social services authority, for example, may be unwilling to provide an approved social service for the assessment of mentally ill people who require compulsory hospital admission. In that case, it is not only the safety of the immediately vulnerable section of the population that is at issue, but also the safety of others. It is precisely because the provisions may be needed in the most delicate and sensitive of cases—perhaps to protect children or the elderly—that we must not be unduly restrictive in the possible scope of their use.
The noble Baroness asked in what circumstances the provisions could be used and why therefore we do not put them on the face of the Bill, which is the intention of her amendment. But the amendment is unduly tight, considering the number of very different situations where this could arise; for example, a social services authority could fail to make inquiries about children who may be at risk of abuse and to make the necessary arrangements to protect them. It could fail to allocate
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social workers to look after children and to meet their needs. It could fail to assess and plan for the social care of frail and disabled people in hospital who cannot be discharged without support and it could fail to provide the services that they require.
There comes a point where a continuous and persistent failure to do so becomes an urgent matter. When such failures have been identified, an authority would normally already have been asked to prepare an action plan and been given a specific time in which to implement it. But when it persists in failure to implement it, and only when an authority has been unable or unwilling to prepare a viable plan, would we need to invoke these fast-track intervention powers.
There are a number of different situations where that could arise, and those are not all covered by the amendment. That is why, rather than placing something on the face of the Bill, we are pursuing this by trying to draw up a protocol agreed with the LGA. That protocol should set out the principles underpinning intervention and the procedures to be followed. It should clarify the provisions in the Bill and it will include an agreed definition of the circumstances in which we envisage the fast-track procedure being used.
It is perhaps unfortunate timing in that the protocol is close to being finalised. Indeed, we expect it to be signed at the central local partnership meeting next week on 21st July with a view to it taking effect immediately on Royal Assent to this Bill. As the noble Baroness said in reflecting on my earlier remarks, the reason why we feel it inappropriate for the provision to be on the face of the Bill is that we need a little flexibility in this regard.
These are new areas where we, the LGA and local authorities may need to modify procedures in the light of experience and learn from lessons on intervention in general, particularly in relation to the fast-track powers. It is therefore more appropriate for a formula providing for the procedures and the stages to reach that procedure, and the situations in which the procedure can be bypassed, to be in a protocol rather than on the face of the Bill. Procedures in that protocol could be modified by agreement to suit changing circumstances and to adapt to experience. Those changes would have to be agreed with the LGA. That is a better way of dealing with the many and varied situations that could arise when an urgent issue was identified. Whether we used the fast-track procedures would depend on the circumstances. We do not envisage using them very frequently, but we wish to have the powers available subject to the protocol to deal with the most difficult cases. I therefore ask the noble Baroness to withdraw the amendment.
Baroness Hamwee: My Lords, before the Minister sits down, I should like to take him back to the beginning of his response. I may have misheard him, but when he was talking about the Secretary of State being required to act reasonably I thought that he referred to Section 12, which relates to Audit Commission Fees. I hope that I misheard him.
Lord Whitty: My Lords, I may have referred to subsection (12) in passing, which requires reasons to be

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given. That will not apply to the totality of the procedure, but in all cases the Secretary of State will have to act reasonably and will have to give reasons for his action.
Baroness Hamwee: My Lords, I am grateful to the Minister for his response. He has answered my point that attention needs to be given to the circumstances in which the fast-track procedure can be followed. That should be part of the exercise in drawing up the draft protocol and deciding whether it should last for all time or should be subject to change. I take his point about the change in circumstances. I thank him for his comments and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 4:
After Clause 29, insert the following new clause—

REVIEW OF THE WORKINGS OF BEST VALUE AUTHORITIES
(" .—(1) The Secretary of State shall, every three years after this Part comes into force in accordance with section 27, undertake a review of the working of this Part.
(2) The review shall—

(a) examine, quantify and report on any savings and other benefits that have resulted from the implementation of this Part;

(b) examine, quantify and report on any additional costs that have arisen in best value authorities as a result of the implementation of this Part; and

(c) determine whether the efficiency factors used in the calculation of the Revenue Support Grant each year are still appropriate or require adjustment.

(3) Reports under this section shall be placed in the Libraries of both Houses of Parliament.")
The noble Lord said: My Lords, I invite the Minister to consider the amendment with great care. Even if I have not come up with the required form of words, perhaps he will at least accept the principle, which could still be subsumed into the Bill as it goes through the remainder of its parliamentary stages.
The Minister will recall that early in our proceedings my noble friend Lord Bowness tabled a Question for Written Answer about the costs to be borne by local authorities as a result of the passage of the Bill. He was particularly concerned about how those costs should be met. Best value planning and the auditing consequences that flow from it will impose a considerable administrative and audit load on local authorities, although we know that the Audit Commission will be reimbursed for its share of the additional costs.
In his reply to my noble friend Lord Bowness, the Minister said that the Government were not unduly concerned about the costs because they were confident—and I have no reason to doubt that they were right—that the savings arising as a result of the introduction of best value procedures would be greater than the costs imposed. He went on to say that they were sufficiently confident of that to build a 2 per cent
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efficiency factor into the revenue support grant calculations. All of that might be perfectly reasonable and one cannot quarrel with it.
The Bill imposes incentives and procedures on local authorities. Paradoxically—unless I have missed something in the Bill, although I have been through it several times fairly thoroughly—the Bill provides no means of quantifying what happens in total at national level and how that is reported back. That is why I have tabled the amendment.
After the Bill is passed local authorities will begin to implement it. Any additional costs that arise will be easy to see. Once they have been put in place we shall have a stable situation. We do not know what economies and benefits there will be. We can be confident that the easy economies will be found first. Authorities that are currently less well managed will find it easier to gain considerable advantages as a result of the passage of the Bill. However, that is only the start. Two or three years down the road the picture may be different. If the system works well it will become increasingly difficult to continue to find economies. More importantly, efficient and innovative authorities will inevitably find it increasingly difficult to continue to hit the 2 per cent target that we all blithely assume is appropriate.
The Minister may respond that if that is so the calculations will be adjusted. Parliament has an interest in the outcome of the Bill. Having had a lifelong interest in local government, I have an interest in what will happen. We propose that the Secretary of State should report to Parliament every three years on the consequences of the Bill—the costs that have fallen on local government and the benefits that have accrued to society. That would be a good procedure to include in the Bill and I invite the Minister to consider it carefully. I beg to move.
6.15 p.m.
Lord Whitty: My Lords, the amendment would place a requirement on the Secretary of State to produce a review of the workings of best value every three years. It refers mainly to costs and savings. As the noble Lord, Lord Dixon-Smith, said when referring to my correspondence with the noble Lord, Lord Bowness, we are confident of savings. Best value is about more than just financial issues. It is also about improving the quality of services that residents receive. Like the noble Lord, we have a substantial interest in the outcome of the Bill and the incorporation of the best value regime into local government.
However, we already have in place what the noble Lord seeks. The Government are already committed to reporting on the efficiency savings achieved by best value authorities and we expect those savings to outweigh the costs by far. That is recorded in our public service agreement as set out in the document, Public Services for the Future: Modernisation, Reform, Accountability. The indicators that we are committed to go well beyond a narrow consideration of efficiency. They take into account quality indicators and the full range of issues covered by the best value suite of performance measures as well as the measures that are behind the amendment.

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Indeed, we shall go further than the amendment by reporting on such matters to Parliament and to the public annually rather than every three years. We shall report on all our targets as set out in our public service agreement. Considerations of efficiency measures will also be reflected in future calculations of revenue support grant. I should correct the implication in subsection (2)(c) of the amendment that the Government intend to continue the previous practice of announcing SSA and RSG figures one year at a time.
As noble Lords will recall, this Government have carried out the first ever Comprehensive Spending Review. The results, announced in July 1998, cover a three-year period. Future spending reviews will also cover three-year periods. During those reviews, as in the first one, we shall certainly take account of the efficiency improvements that we think it reasonable to expect local authorities to achieve. That will also reflect the wider best-value experience. So there is a second arena in which the objectives of the amendment will be met.
Furthermore, a major review of revenue grant distribution is currently underway, in partnership with local government. The procedure laid down in the amendment could pre-empt the procedures that would be appropriate to the outcome of that review. Nevertheless, that is not my main point. My main point is that we already provide a substantial degree of reportage in two contexts and that more than meets the amendment tabled by the noble Lord. Therefore, I ask him to withdraw the amendment.
Lord Dixon-Smith: My Lords, before the Minister sits down, I apologise for saying "annual" when I should have said "triennial". Old habits die hard. My mind slipped out of gear for a moment.
More importantly, while I accept that there is an amount of reporting that will happen, particularly under the public service agreements, and that to an extent the points that I have raised will be covered by those reports which will appear annually, I would not have tabled the amendment had it not been for that efficiency factor.
A problem arises specifically in relation to costs and savings. If the costs are imposed—we know that they are bound to rise to a degree—and the savings do not arise, but none the less the efficiency factor is still there, local government will find itself in a financial squeeze. However, we hope that local government will have the freedom to respond to that situation in the future. If those costs are genuine and have to be met, but they are not met by the national taxpayers, ultimately, they will be met by the council taxpayers. That is the equation.
I believe that it is necessary to bring those factors out so that they can be related to each other. Perhaps the Minister can assure me that those figures will be sufficiently identifiable for the relevant comparisons to be made.
Lord Whitty: My Lords, I can assure the noble Lord that in the PSA context, the efficiency factors will be identified and reported on. They will be reported on
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explicitly during the course of the RSG process. If the noble Lord is concerned that we have a notional efficiency factor against which we shall never be able to judge reality, I believe our existing reporting systems will give him some comfort that they will be clearly identified in that process. If that efficiency factor is out by much, certain calculations will have to be adjusted.
Lord Dixon-Smith: My Lords, I am grateful to the Minister for the assurance that I may have some comfort. I can assure him that if I do not have comfort, neither of us will have comfort in a little while as events, uncomfortably, reveal themselves. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee Baroness Hamwee moved Amendment No. 5:
Page 18, line 18, at end insert—
("(3) Schedule 1 shall cease to have effect on 1st April 2005 unless previously extended by order made by statutory instrument and laid in draft before, and approved by resolution of, both Houses of Parliament.
(4) An order laid under subsection (3) shall not apply for a period exceeding five years.
(5) If an order laid pursuant to subsection (3) is approved, Schedule 1 shall cease to have effect on the date specified in the order subject to any subsequent order or orders approved by both Houses of Parliament none of which shall extend its effect for more than five years.
(6) Notwithstanding the provisions of subsection (3), if Schedule 1 has ceased to have effect it may at any time be revived by order made by statutory instrument laid in draft before, and approved by resolution of, both Houses of Parliament in which event subsection (3) shall thereafter apply.")
The noble Baroness said: My Lords, I move Amendment No. 5, which one may call the sunset clause for capping.
The views of these Benches are well known. We believe that the local electorate should take action through the ballot box to control council tax if it is not to its liking. It is not a matter for central government. The converse of that situation is that the local electorate has to rely on the ballot box if it believes that the administration of the local authority is not spending enough on its services so that they are not at the level and range that the electorate wants. I leave aside minimum standards to which we have already obliquely referred today.
Schedule 1 to the Bill and Clause 30 which introduces the schedule provide powers for the Secretary of State to cap local authority budgets. The amendment seeks to express what the Government say is the nature of those powers; in other words, they are to be exercised as reserve powers and only in circumstances where it would be clear and generally accepted that they should be used. I hope I do not misrepresent what the Minister said at earlier stages of the Bill. No doubt he will correct me if I have so misrepresented him.
The amendment seeks to provide that if the powers are not extended by affirmative resolution of both Houses they will cease to have effect on 1st April 2005. Thereafter, a similar procedure would apply. In an attempt to pre-empt an argument that the Government cannot know when they may need to exercise a reserve

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power, I have added a paragraph to the amendment which I proposed on Report, namely what would he Clause 36, to provide that the power can be revived by affirmative resolution if it has already lapsed.
We regard the capping of local authority budgets as wrong in principle, as I have said, and stultifying in practice. The Government have a programme to modernise local government and we would wish to see that as part of the programme to re-invigorate it. At other stages of the Bill and in the course of the Greater London Authority Bill, we have talked of the need for trust between the different spheres of government. It is no coincidence that the report of a Select Committee of this House, under the chairmanship of the noble Lord. Lord Hunt of Tanworth, three or four years ago, was entitled Rebuilding Trust. We have also talked about the need for freedom on the part of local authorities, including freedom to innovate, to experiment and, inevitably if they have those freedoms, occasionally to make mistakes.
In our eyes, the lowest expenditure may not necessarily be the best value for money. We want to see value for money arrived at as the local authority and its electorate see best. The Government are removing crude and universal capping—as they term it—or so they say. However, in our view, the legislation does not do that because it retains certain powers. If the Government regard reserve powers as necessary, we believe that they should be prepared to argue for their retention as the modernising programme proceeds. If they want to use the powers because a particular authority, or group of authorities, has used up its good will when the powers have been out of use, they should argue specifically for their application.
The Government are concerned ID protect local taxpayers. Amendment No. 5 would not remove that right, but it would require the Secretary of State, in the circumstances that I have set out, to come to Parliament to justify his plans if he wishes to renew or to revive the powers. I beg to move.
Lord Dixon-Smith: My Lords, I rise to support the noble Baroness in moving Amendment No. 5. Everyone directly involved in local government, on whichever side of the House they sit, would welcome the sunset of capping.
It is superfluous for me to repeat the remarks of the noble Baroness. However, in supporting the amendment I want to refer to the whole of Part I of the Bill. With constantly improving efficiency and the provision of better services at lower cost—the two are not locked together—one can achieve a more efficient use of resources. That is best value. However, if we have had that regime in place for five years and if there is any validity in the efficiency factor which we were discussing on a previous amendment, it seems to me that, five years down the road, the whole concept of capping should be redundant, out of date and gone.
I accept that there may be individual authorities that may possibly not reach the performance level of the best performers. That will always be the case; indeed, it is a
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natural human failing. But if we have any confidence in Part I of the Bill, the need for Part II should disappear. As I said, I support the amendment.
6.30 p.m.
Baroness Miller of Chilthorne Domer: My Lords, I should like briefly to support my noble friend, yet not repeat what she said. The Government's willingness to include our amendment would be a statement by them that there is a milestone to be reached in the process of cleaning up local government where it needed it, and improving it where improvement was needed. The Government have been very pro-active. The improvement and development agency is very busy in its efforts to ensure that councils understand exactly what they have to do. We have two local government Bills which will change the attitudes of local government and improve civic leadership. There is also a big drive to forge a link between local councils and their local communities, where those links have been poor in the past.
However, if the Government do not feel after five or six years of this process that they will then be in a position to start to trust local government, in that it has built the links with its local communities and has a very rigorous programme of performance targets and indicators, that is a statement that the programme is; unlikely to work. I would be the last person to say that; indeed, I think that the programme is both good and comprehensive and that five or six years is a reasonable length of time—over one council quadrennium—for it to work.
In Grand Committee, the noble Lord said that we cannot write in that date and leave local people open to the risk of some irresponsible council exceeding what would be a reasonable limit. I felt that that was a statement that all local authority regimes will continue to be driven by one or two irresponsible councils. We know that in the real world there will always be one or two councils which are imperfect, but we should not introduce for all time, and without an end date, a clause that penalises the others and cuts off their links with local communities. I say that because electorate can see what is going on. Indeed, the example of Milton Keynes this year was a good one. The council had made every effort to consult the people on what they wanted the level of their tax to be, but it still received a so-called "yellow card" from the Government.
If councils are going to make the effort to go out, put the best value plans into operation, have their communities fully on board with a very clear and accountable system of leadership and still be subject to government control of this sort, I think that the entire programme will be put on a much slower pace because local councils will not feel that the Government will ever trust them enough. I do not think that that is the kind of statement that central government means to make to local government.
Lord Whitty: My Lords, to begin with, let us be quite clear about the position. Once this Bill receives Royal Assent, the system of capping will have had its sunset clause. These are reserve powers, which are to be

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used in very exceptional circumstances. As both the noble Baroness, Lady Miller, and the noble Lord, Lord Dixon-Smith, said, the accommodation in the first part of the Bill in introducing best value and spreading it through local authorities, should avoid such powers ever being used.
Nevertheless, as I believe even the noble Baroness, Lady Miller, acknowledged, there are occasional improbabilities, exceptional circumstances—for which, in other contexts, the Liberal Democrats always seem to be advocating legislation—that we need to guard against on behalf of both council taxpayers and taxpayers generally; in other words, we need to guard against the unusual authority. Anyone who knows local government knows that change in local government proceeds at different paces in different parts of the sector. We do not know whether five years is a desirable period within which best value could deliver all these objectives; indeed, by no means will they necessarily be delivered. But, even if they have been, certain events, like management failures, and so on, could lead to a situation where it would be overturned.
Obviously we expect all local authorities to be reasonable, responsible and prudent, as well as operating best value to its full effect. However, we indicated in our commitment to avoid universal capping that we would retain a reserve power and also set that out in our manifesto. It is needed for precisely such an unusual eventuality.
I understand that the additional clause that the noble Baroness has now put forward, as compared with what was tabled at the previous stage, would revive the schedule if necessary and seem to provide such a safeguard after the five-year period. However, if we found ourselves in a situation the year after the provision had lapsed where there was a sudden reversion by local authorities to exceptionally bad practice whereby an authority would need to be designated for the financial year that had already started, timing would become very important. We would have to go through a debate in both Houses before we could introduce a designation procedure. That would make it much more difficult for the local authority to adjust to the fact that the designation had taken place and modify its budget during the financial year, if that proved necessary.
Of course, one could argue that if such a situation were envisaged the two Houses of Parliament should have debated the issue much earlier in the procedure. However, that would be before the Secretary of State had received any relevant information, which the local authority wished to draw to his or her attention. Under the existing capping legislation and under these powers, an authority that is designated or nominated may challenge the amount set by the Secretary of State. In doing so, it would provide information to the Secretary of State which, at that stage, might well lead to a revision of that view and a withdrawal from that position. In that case, it would not be appropriate for the Houses of Parliament to discuss the matter at an early stage. Therefore, we would be left with a situation, post-lapsing of these powers, where the requirement to
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re-introduce them would actually lead to serious delay. It would probably make a rare but difficult situation worse.
If we are concerned with the use of these powers rather than their existence, noble Lords must recognise that, where the Secretary of State decides to issue a restriction on any local authority, such an order would always be subject under these provisions to affirmative resolution in the other place. Therefore, although noble Lords may be objecting to the existence of these powers, their use is already constrained by parliamentary action. In fact, there are considerable restraints on the Secretary of State as regards ever using the powers. We believe that they are potentially necessary. We hope that we will never have to use them. We also believe that the first part of this Bill will create a situation and an ethos where we will not have to use them.
We do not think it sensible to commit ourselves to the automatic lapse of these powers in five years' time, with the presumption that they would lapse at that time. I do not believe that there is a time-scale in which one can say, "Beyond that, we will no longer ever have a totally irresponsible local authority". It is to be hoped that such authorities will be rare, but we need such powers to ensure that we have at least some restriction in that respect. I know that the noble Baroness has not previously accepted these arguments, but I hope that she will not feel it necessary to pursue the amendment tonight.
Baroness Hamwee: My Lords, the Minister talked about the occasional, particular circumstances where certain local authorities may need to be restrained and about the need to guard against excesses on the part of some authorities by taking the role of guardian of the taxpayer.
He referred to the manifesto commitment—perhaps I am putting it a bit high in calling it a commitment—or certainly to a reference in the manifesto to the retention of reserve powers for capping. I have accepted all that in drawing up this amendment.
I have also accepted the Government's point that there will be differing rates of change among different local authorities and that five years may not see as much progress—I deliberately use the kind of language that I think the Government would wish us to use in this connection—on the part of some local authorities as it will on the part of others.
I believe that our amendment meets the Government's concerns. If the powers have lapsed and just after one of these five-year periods the Government believe that it is necessary to take action in connection with one authority or a group of authorities, then, just as I have said that I would hope that central government could trust local government, I also believe that they should trust Parliament. I propose that there should be an affirmative resolution procedure. I believe that the Secretary of State would be quite properly required in such circumstances to justify his proposed action before both Houses. After all, if the Government believe that these powers are important and necessary, they should be prepared to rely on the persuasive powers of the

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Secretary of State. I quite simply disagree with the point the Minister made about this being at the wrong stage, but I see that he wishes to speak.
Lord Whitty: My Lords, certainly another place at least would be required to be persuaded and the persuasive powers of the Secretary of State would need to be exerted were these powers ever to be used. The point I was making was that if we remove them or if we allow them to lapse, even if they have not been used for five years, and a new situation arises, we would have to go through a whole new procedure when we may need to act quickly for the authority's benefit as well as for the benefit of the council tax payer and that of the taxpayer generally. If the powers remain on the statute book, we already require the Secretary of State to be persuasive before they are used. I should have thought that that was an adequate safeguard and adequate pressure as regards the persuasive powers of a future Secretary of State.
Baroness Hamwee: My Lords, I do not agree with that because the whole situation will be different. We are talking here about giving the Government the opportunity to use powers when the whole culture of local government finance almost by definition will have shifted quite considerably because of the lapse of time involved. The Minister talked about committing ourselves to certain actions. I also suggest that a future Secretary of State who may be from a different political administration should be committed to using these powers. I believe that the Minister ended by saying that they may be—I think I have his words correctly—potentially necessary. If they are potentially necessary and that potentiality is required to be put into effect—I hope that I am choosing the words correctly; I am not sure that they quite fit together—if the situation arises, we believe that we have given the Government all the armoury that they need. This is a matter of principle. I wish to test the opinion of the House.
6.43 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 81; Not-Contents, 100.

Division No. 3

CONTENTS

Addington, L.

Clark of Kempston, L.

Annaly, L.

Clement-Jones, L.

Astor, V.

Colwyn, L.

Astor of Hever, L.

Cope of Berkeley, L.

Beaumont of Whitley, L.

Courtown, E.

Berners, B.

Dholakia, L.

Biddulph, L.

Dixon-Smith, L.

Blyth, L.

Downshire, M.

Bowness, L.

Elton, L.

Brabazon of Tara, L.

Falkland, V.

Burnham, L.

Ferrers, E.

Buscombe, B.

Fookes, B.

Byford, B.

Freeman, L.

Carlisle, E.

Geddes, L.

Carnegy of Lour, B.

Geraint, L.

600

Gisborough, L.

Norrie, L.

Glentoran, L.

Northbrook, L.

Goodhart, L.

Northesk, E.

Gray, L.

Pearson of Rannoch, L.

Grey, E.

Phillips of Sudbury, L.

Hamwee, B. [Teller.]

Rawlings, B.

Hanningfield, L.

Razzall, L.

Harlech, L.

Redesdale, L.

Harris of Greenwich, L.

Rochester, L.

Harrowby, E.

Rodgers of Quarry Bank, L.

Howe, E.

Russell, E.

Hurd of Westwell, L.

Russell-Johnston, L.

Lauderdale, E.

Sandberg, L.

Lindsey and Abingdon, E.

Seccombe, B.

McColl of Dulwich, L.

Sharp of Guildford, B.

McNair, L.

Smith of Clifton, L.

McNally, L.

Taylor of Warwick, L.

Maddock, B.

Thomas of Walliswood, B.

Marlesford, L.

Thomson of Monifieth, L.

Massereene and Ferrard, V.

Torrington, V.

Mersey, V.

Wade of Chorlton, L.

Miller of Chilthorne Domer, B. [Teller.]

Warnock, B.

Westbury, L.

Miller of Hendon, B.

Wharton, B.

Monk Bretton, L.

Williams of Crosby, B.

Munster, E.

Wynford, L.

NOT-CONTENTS

Acton, L.

Haskel, L.

Ahmed, L.

Healey, L.

Ailesbury, M.

Hilton of Eggardon, B.

Allenby of Megiddo, V.

Hollick, L.

Amos, B.

Hollis of Heigham, B.

Archer of Sandwell, L.

Howie of Troon, L.

Ashley of Stoke, L.

Hughes, L.

Bach, L.

Hughes of Woodside, L.

Barnett, L.

Hunt of Kings Heath, L.

Berkeley, L.

Irvine of Lairg, L. [Lord Chancellor.]

Blackstone, B.

Borrie, L.

Janner of Braunstone, L.

Bragg, L.

Jay of Paddington, B. [Lord Privy Seal.]

Brooke of Alverthorpe, L.

Burlison, L.

Jenkins of Putney, L.

Carter, L. [Teller.]

Judd, L.

Castle of Blackburn, B.

Kennet, L.

Christopher, L.

McIntosh of Haringey, L. [Teller.]

Clarke of Hampstead, L.

Clinton-Davis, L.

Mallalieu, B.

Cocks of Hartcliffe, L.

Milner of Leeds, L.

Crawley, B.

Molloy, L.

David, B.

Molyneaux of Killead, L.

Davies of Coity, L.

Monkswell, L.

Davies of Oldham, L.

Morris of Manchester, L.

Desai, L.

Murray of Epping Forest, L.

Diamond, L.

Nicol, B.

Dixon, L.

Peston, L.

Donoughue, L.

Pitkeathley, B.

Dormand of Easington, L.

Ponsonby of Shulbrede, L.

Evans of Parkside, L.

Evans of Watford, L.

Puttnam, L.

Falconer of Thoroton, L.

Ramsay of Cartvale, B.

Farrington of Ribbleton, B.

Randall of St. Budeaux, L.

Gilbert, L.

Rea, L.

Gladwin of Clee, L.

Rendell of Babergh, B.

Gordon of Strathblane, L.

Renwick of Clifton, L.

Goudie, B.

Richard, L.

Gould of Potternewton, B.

Sainsbury of Turville, L.

Graham of Edmonton, L.

Sawyer, L.

Greenway, L.

Serota, B.

Grenfell, L.

Shepherd, L.

Hacking, L.

Shore of Stepney, L.

Hanworth, V.

Simon, V.

Hardie, L.

Simon of Highbury, L.

Hardy of Wath, L.

Stoddart of Swindon, L.

Harris of Haringey, L.

Symons of Vernham Dean, B.

601

Taylor of Blackburn, L.

Walker of Doncaster, L.

Thornton, B.

Watson of Invergowrie, L.

Tomlinson, L.

Whitty, L.

Turner of Camden, B.

Williams of Elvel, L.

Uddin, B.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.50 p.m.
Lord Whitty: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Whitty.)
On Question, Bill passed, and returned to the Commons with amendments.

Royal Assent
The Deputy Speaker (Baroness Serota): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Appropriation Act,

Protection of Children Act,

Trustee Delegation Act.

Adoption (Intercountry Aspects) Bill
Lord Meston: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Meston.)
On Question, Motion agreed to.

Football (Offences and Disorder) Bill
6.55 p.m.
Lord Archer of Weston-Super-Mare: My Lords, I beg to move that this Bill be now read a second time.
I find it disappointing that it is necessary to bring this Bill before the House. It is simply because of a small minority of so-called "football fans", who have, through their illegal behaviour, seen particularly graphically during the World Cup in France last summer, so harmed the reputation of the game of football in this country, that it has, I fear, become necessary.
It is now necessary to protect our international reputation and to deal with those people firmly. It is only fair to point out that the vast majority of fans are decent, law-abiding citizens who have no desire on a Saturday afternoon other than to enjoy themselves watching a game they love and supporting their favourite club.
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The previous government introduced legislation in the late 1980s and early 1990s, which had some worthwhile results at a domestic level. The present Government have made it clear that this is not a party political issue, but something that unites the whole House.
The football clubs themselves have played their part, and are to be congratulated that arrests at league matches have declined by 37 per cent. However, on the international scene there have been growing problems, because legislation is limited when applied to football hooligans. With so many more matches being played abroad at both club and international level, the problem is becoming even greater, which is why, I am sorry to say, it is harming our opportunity to host international sporting events.
It has therefore become necessary to block any loopholes in past legislation and to strengthen the powers of the police and the courts to deal with offenders. The Bill is another measure in what has become a step-by-step approach by both the previous and the present governments in minimising the problems of football-related crimes.
The Bill is divided into three parts. Clauses 1 to 5 concern international football banning orders. Clauses 6 to 8 cover domestic football orders. Clauses 9 to 12 deal with indecent or racist chanting, ticket touting, and, finally, the financial provisions.
The Bill would strengthen and tighten existing powers in legislation, already in operation, passed both by the Conservative government and the current administration.
Clause 1 deals with international banning orders, giving the court a duty, where someone has been convicted of a football-related offence, to make an international football banning order, if it is satisfied that there are reasonable grounds to believe that that would help to prevent violence or disorder at, or in connection with, a designated match that is being played overseas. The individual concerned would have the right to appear in court to argue why the court should not carry out such an order, and would have a right of appeal if the court decided to go ahead and impose the order.
Clause 2 would add certain offences, such as ticket touting, to those designated as football-related. It would also extend the offences listed in Schedule 1 to the Football Spectators Act to cover attempts, conspiracy and incitement to commit such offences. It would also add to the list of football-related crimes certain offences of violence and disorder not committed at a football ground or on a journey to a football match, but committed within 24 hours of a designated match and related to that match.
Clause 3 gives the courts powers to impose conditions when imposing an international banning order, including the surrender of a passport not more than five days before a designated match, and the duty to report to a named police station. That would tighten the existing

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regime under which people subject to an order can attend a police station of their choice without prior notification to that police station. Those changes make the system more watertight and more effective, something which I hope the House will universally welcome.
Clause 4 would amend the 1989 Act and increase the minimum and maximum duration of an international banning order from between six to 10 years for those who have served a custodial sentence, and from three to five years for those convicted of a football-related offence who have not received a custodial sentence.
Clause 5 enhances the procedure for use when someone is convicted of a football-related offence abroad, by simplifying the process under which details of convictions for corresponding football-related offences committed outside England and Wales are provided to the British courts.
Clauses 6 to 8 would improve and make more effective the banning orders that the courts already have under the Public Order Act 1986 for all designated matches in England and Wales. They would apply to people convicted of a football-related offence, and could be issued for a minimum of 12 months and a maximum of three years. Under current legislation, however, the courts issue orders for anything from three months upwards, and there is no cap on the time that an order can last.
Clause 7 specifies that offences that can trigger a domestic football banning order are the same as those that apply to an international order. Improvements in the powers dealing with both international and domestic banning orders are badly needed and eminently reasonable.
Clause 9 closes a loophole in existing legislation regarding racist and obscene chanting. The Bill will extend the powers to individuals.
Clause 10 closes another loophole on ticket touting by extending the law to cover the sale of tickets for designated football matches played overseas. Tickets for overseas matches will be sold legally only by authorised agents.
The Bill would impose an additional cost to the public purse of about £100,000 and it is estimated that five additional staff would be needed. The Bill would come into force two months after receiving Royal Assent, and would therefore be in place in time for most of the upcoming football season.
The Football Association has said of the consultation document—and, by implication, of the Bill:
"Abuses by a small number of hooligans of the civil liberties of the peaceful majority make these measures justified. They will help preserve the civil liberties of the vast majority of the population".
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The National Criminal Intelligence Service has said:
"This set of proposals offers a genuine chance to come to grips with what we perceive to be an increasingly worrying situation. In particular, we welcome the recommendations on both restriction and exclusion orders".
The Association of Chief Police Officers has said that the proposals are,
"an important development, tackling the problems posed by hooligans at football matches".
This Bill would give us powers to protect the freedoms of the vast majority from the moronic behaviour of a tiny minority. I wholeheartedly commend it to the House.
Moved, That the Bill be now read a second time.— (Lord Archer of Weston-Super-Mare.)
7.4 p.m.
Lord Phillips of Sudbury: My Lords, this is plainly a measure that will enjoy great popular support. It affects the most followed and fascinating of all our national games, which captures the imagination and support of all sections of society and vast numbers of people. In so far as there is offensiveness at football matches, before and after games and excessive supporter zeal—some of which can be described only as sheer viciousness—everybody will support what the measure endeavours to achieve.
Therefore, I hope that my comments will be viewed in light of my general support for anything that improves the status quo. However, I hope that the House will allow me to point out some of the Bill's particularities about which I am deeply concerned. I shall give some examples.
My first concern relates to Clause 1(3) of the Bill, which stipulates expressly that, when an international football banning order is made, it shall be added to a sentence imposed by a court for the offence of which the accused was convicted. That is fair enough. However, it goes on to say that an international banning order may be made,
"in addition to an order discharging him"—
that is, the person charged—
"absolutely".
That is a statutory mandate requiring a magistrates' court that has given an absolute discharge to someone accused of an offence under the Bill to make an international banning order against that person. I am sure that lawyers in the House will realise that courts—I suspect that we shall be dealing mainly with magistrates' courts—grant an absolute discharge only when it is a purely technical offence or when there are exceptional circumstances or abnormal conditions. That is offensive and unacceptable.
Clauses 1(2), 5(3) and 6(1) effectively replace with a civil test a traditional criminal test for convicting someone accused under these provisions; that is to say, they replace the typical criminal test of 'beyond reasonable doubt" with a civil test of "on balance of probabilities". I am interpreting the language of those clauses somewhat. At present, the court must be satisfied that, by making the order, it would help to prevent violence. In future, the court must be satisfied,

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"that there are reasonable grounds",
to believe that making the order would help to prevent violence. That is a radical change to the traditional test of guilt for criminal offences under our law, which is the very bedrock of our criminal jurisdiction. I am a deeply unhappy man on that score.
I shall give the House a third and final example—one of many—of the sorts of provisions in the Bill that I believe should not be passed. I refer to line 26 of Clause 2(2) on page 3 of the Bill. It amends Schedule 1 to the Football Spectators Act 1989. That schedule sets out the various offences—called "relevant offences" in the Act—where, if there is a conviction, the courts can impose a banning order.
Clause 2(2) states:
"For the purposes of paragraphs (f) to (1) above—
(a) a person may be regarded as having been on a journey to or from a designated football match whether or not he attended or intended to attend the match".
So we have here a completely Alice in Wonderland provision, which says that even though a person did not intend to attend the match, and did not attend the match, he or she can still be found guilty of a relevant offence under Schedule 1. Let us look at one of the sub-paragraphs of Schedule 1 to which the provision will apply. Sub-paragraph (g) refers to,
"any offence under … the Criminal Justice Act 1967 (disorderly behaviour while drunk in a public place) committed in a highway or other public place while the accused was on a journey to or from a designated football match".
With this Bill, the person concerned does not have to be on a journey to or from a designated football match or have any intention of travelling to or from a football match.
This is not one bridge too far, but several bridges too far. In our zeal to clamp down on the small minority, as the noble Lord, Lord Archer, rightly said, of serious, vicious hooligans, we are in danger of abandoning those principles and protections which are at the very heart of our criminal justice system and which protect the innocent as well as seek to convict the guilty. However important such measures may be to our great national sport, we must not jettison or lower those standards which are at the very heart of our criminal justice system. If and when—I say with certainty that it will be when—there are convictions of perfectly honest and decent citizens by overzealous prosecution under provisions which will not only allow the courts to convict but require them to convict, we shall be shooting ourselves in both feet.
Perhaps I may refer to another extraordinarily unusual provision of the Bill. I refer to Clause 1(2A), which states:
"Where the court has power to make an international football banning order in relation to the accused but does not do so"—
that is, it acquits—
"it shall state in open court that it is not satisfied that there are such reasonable grounds as are mentioned in subsection (2) above and give reasons why it is not satisfied".
Quite abnormally—I do not know of any comparable provision in our criminal law—it will require magistrates, when they have acquitted, to say why they have acquitted and to give their reasons. Although it is
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normal to give reasons, it is rarely compulsory. In criminal cases such as this, the whole tenor and direction of that provision is to steer far too strongly the courts to convict.
Lastly, I believe that football itself has a greater responsibility for the problems which the measure seeks to address than the noble Lord, Lord Archer, will admit. He said that football clubs have played their part. I do not think that they have. Football in this country, particularly professional football, is characterised by a greedy and loyalty-free culture on the part of far too many players, managers and owners, a culture which lives by the professional foul and makes light of it, which makes the life of referees almost impossible and which sets a moral example to the youth of this country—and not just to the youth of this country—that almost stimulates the excessive hooliganism which the Bill seeks to address. For my part, on simple, ancient, traditional libertarian grounds, I shall want to consider the Bill very carefully in the course of its passage through Parliament.
7.14 p.m.
Lord McNally: My Lords, my noble friend has made some telling points from his experience as a distinguished lawyer. I hope that the Minister will take note of them because these matters will certainly be raised in Committee.
In discussing the Bill, my noble friend was correct to draw attention to the wider responsibilities of football. The noble Lord, Lord Archer, will recall the recent debate initiated by the noble Lord, Lord Cowdrey. I remember the noble Lord, Lord Archer, speaking with pride about the standards set in the sport with which he is now closely associated, the game of snooker. It sets professional standards which other sports could well follow with some benefit.
For any of us in middle age there is a contrast between modern sport and the sport of our youth, when sporting values stood for something. I had the joy and pleasure of visiting Bloomfield Road in Blackpool throughout the 1950s to watch one of the great soccer teams of that era. The contrast now with some of the problems besetting soccer is dramatic. The difficulties besetting the sport have no single solution. We remember the attempts to introduce identity cards in the 1980s and the disastrous experiment in fencing in fans, which had to be abandoned after the tragedy of Hillsborough. There was also heavy-handed policing. I remember going to Selhurst Park in the 1980s in my guise as a Manchester City supporter and feeling my hackles rise as we were dragooned from railway station to ground by a massive police presence of horses and men. We felt like refugees in a war. One has to add that soccer fans have been treated to disgusting and sub-human facilities.
Over the past few years there have undoubtedly been improvements on all fronts. There is certainly better intelligence about the kind of people who make trouble at soccer grounds. There is also better policing. Thanks to the Football Trust and others, there has been a considerable improvement in ground facilities. The

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noble Lord, Lord Archer, is right to say that we must look at this problem of hooliganism not least because, if it goes unchecked, it is likely to threaten the civil rights of all of us to enjoy our soccer and, indeed, to play host to the 2006 World Cup.
We have to face the fact that a visit to a soccer ground can still be both threatening and unpleasant. In those circumstances, I welcome the Bill. We on these Benches will support it, although, as I said, my noble friend Lord Phillips raised civil liberties issues which merit discussion in Committee. The Bill targets troublemakers rather than soccer fans in general. It hits at the touts and others who undermine good policing and good crowd control and it outlaws behaviour which all too often is simply tolerated as "laddish", such as obscene and racist chanting.
However, we must put the Bill in context. We have to seek improvements elsewhere as well as in legislation and legal sanctions. Grounds must be improved and made safer. I recently visited the Norwich City ground and was very impressed by the policing and the CCTV coverage which enabled the police to identify and pinpoint troublemakers inside the ground.
As my noble friend pointed out, many clubs and many players are now extremely wealthy. I have long had a bee in my bonnet that clubs and players must accept a wider social responsibility for their behaviour both on and off the pitch. There must be a greater community involvement by soccer clubs to influence young fans in their behaviour. Recently there was an excellent campaign in the schools called "Kick racism out of football" which could be emulated in many other areas. Both the noble Lord, Lord Archer, in his previous speech and my noble friend this evening said that players must show respect for the referee and for the rules which permeate the whole atmosphere surrounding a sport.
Airlines, bus companies and railways should take greater responsibility for the people they transport to football grounds. Clubs should exercise much more ruthlessly their right to refuse admission.
The media have a role to play. If England do play Argentina early next year, I wonder what kind of media build-up we will have for that match and how much that will encourage the yob element in their behaviour. We know that the last time we played Germany the Daily Mirror surpassed itself with bad taste; it even got ahead of the Sun in that respect.
There is also a responsibility on television not to promote yob culture. "Fantasy Football" with Baddiel and Skinner and "They think it's all over" with Gary Lineker and David Gower are two programmes which I enjoy in parts. But, watching both, I am left a little uneasy about the way they promote the yob approach to sport and to soccer in particular. As someone who has perhaps gained a reputation for criticising Rupert Murdoch and all his works, perhaps I may praise Sky's coverage of soccer, in which Andy Gray tries to educate. More importantly, there is a programme which perhaps noble Lords do not regularly watch but which I recommend "Soccer AM" which is shown on Saturday mornings on Sky Sports 2. It has two young presenters—Tim Loveday and Helen
608
Chamberlain—and the whole programme is aimed at promoting a love of soccer, an understanding of soccer and the fun of soccer without in any way encouraging the yobbish element.
In many respects this Bill is needed, alas. However, there are some elements of it which merit closer examination, not least in the civil liberties area. But it is time to reclaim the beautiful game for the vast majority of those who want to watch it. I watched the women's soccer World Cup on television. I caught a glimpse there of just how enjoyable soccer can still be, with very large crowds enjoying good football in excellent facilities. A visit to a soccer ground should be a pleasant, safe and enjoyable event for all the family. I do not think this measure provides all the answers; but it is a declaration of intent on behalf of all of us and a positive step. In those respects, I welcome it.
7.24 p.m.
Baroness Anelay of St Johns: My Lords, I, too. thank my noble friend Lord Archer for introducing the Bill, to which I add my support. I congratulate him on explaining the provisions of the Bill so clearly.
I wish the Bill a fair wind, although I understand we may face a Committee stage. It is important to place these measures on the statute book before English fans cross the Channel this winter when a record number of club teams will take part in European competition. The season will climax with the European nations championship in Belgium and Holland next year.
As other noble Lords have made clear, it is important to state from the outset that the vast majority of football fans are decent, law-abiding citizens who simply want to go to a match for an enjoyable afternoon or an evening of family entertainment. I hear, and listen to carefully, the concerns voiced by the noble Lord, Lord Phillips of Sudbury.
We should also congratulate the many football clubs in this country which have done so much to make football a safe, family spectator sport, and which run many events to encourage the development of sporting behaviour among young people. I recognise the concerns about the way in which individuals and football clubs act as role models to the young today—as, indeed, they always have.
I listened with great interest to the words of the noble Lord, Lord McNally, about "taking us down memory lane". Like him, many years ago I watched football—as I do now; although I am not a fanatic, I am certainly an occasional fan—and I have some pleasant memories of watching Arsenal's second team play in the late 1950s. I must say to the noble Lord, Lord McNally, that the only reason I saw the second team was that my aunt who took me to watch thought the first-team games were far too rough for a young girl. I managed to change her opinion of me as I grew a little older.
Over the past few years the clubs have worked closely with the police to try to overcome football hooliganism in all its forms. In the past six years arrests inside grounds at league matches have declined by nearly 40 per cent, as my noble friend Lord Archer said. Arrests outside grounds have fallen by 17 per cent. That is not

609
enough; that is where the problems still lie. There are isolated incidents in domestic football stadiums, but the problem, as we are all well aware, is now mainly focused on situations arising outside the grounds.
In May, I was lucky enough to be invited to watch the FA Cup final. I declare an interest at this stage; my ticket was donated to me by the FA. The registration of interests in this House is a very arcane matter. When one goes to try and register an interest of a gift one is told, "No. One does not do that here. Just mention it when you stand up to speak". I am lucky to now have the chance to put that interest on record.
Like most people that day, I travelled to the ground by public transport. Unlike most other people I was travelling on my own and I was not dressed in the favours of either side. I wore my Arsenal 1971 double winners badge very discretely under the lapel of my green suit. As your Lordships might imagine, I stood out like a sore thumb against the tide of black and white stripes and red and white—and that only refers to the face paint of the various supporters!
The journey to the match could not have been easier. But on leaving, like everyone else going by public transport, I faced the prospect of joining the vast, heaving mass of people trying to get to Wembley Underground. From the pedestrian overpass I took one look and I chickened out. It was not the people who put me off but the thought of standing there in the heat for so long. So I decided to walk instead to Neasden station, the hub of the universe in north London. It could have been a difficult walk. I was accompanied, as one might put it, by a significant number of Newcastle United fans. They could have been forgiven for being a trifle disappointed about the result and it could have been a difficult journey. It was quite the reverse. The walk was a very pleasant walk among fans. They were well behaved, lively—very lively—and pleasant company. They are the people who represent the vast majority of fans in this country. They are the people whose reputations are besmirched by the few who misbehave. They are the people whose reputations this Bill will help to keep intact in the future.
As my noble friend has said, this Bill is yet another measure in what has become a patchwork quilt of measures to address the problem of football-related crime. All Governments over the past decade or so have tried to tackle the problem effectively and have received cross-party support for doing so. Last summer, when I was Home Affairs Whip, I was pleased to be able to speak in support of the new clause inserted by the Government in the Crime and Disorder Act. As I commented then, my honourable friends in another place felt so strongly about the matter that they tabled similar amendments and, on Report, gave up much of their Opposition time so that the problems of football hooliganism could be addressed.
I welcome all the measures in the Bill. In particular, I am glad that Clause 9 addresses the anomaly whereby one individual who makes racist chants is presently outside the scope of the Football (Offences) Act 1991.
610
I also welcome Clause 2, which adds ticket touting to those relevant offences designated as football related. And I welcome Clause 10, which closes a loophole on ticket touting by extending the provisions affecting domestic football matches already included in the Criminal Justice and Public Order Act 1994, to cover the sale of tickets for designated football matches played overseas. Tickets for overseas matches will be sold legally only by authorised sellers. Ticket touts are the blight not merely of football but of all sports.
I listened to each of the careful points made by the noble Lord, Lord Phillips of Sudbury, who is well known as a lawyer. If there is a Committee stage, the House will be able to address his concerns separately. I recognise his worries. I read the account of the proceedings in another place very carefully. On balance, the questions about civil and political rights were well answered in Committee. The Bill as a whole addresses the problems of civil and political rights in a way that is acceptable.
There has been a dramatic transformation of the game in recent years, and not only in terms of the numbers attending matches; the manner in which games are broadcast and the money involved has changed the whole way in which football is followed. In addition, there has been a transformation of the game, thanks in large part to the dedicated work of the Football Trust, following the publication of the Taylor Report. The Government have required the lower league clubs—if I may call them that without offending them—to comply with the recommendations of the report. Therefore, it is not merely those clubs in the spotlight that are affected.
The Minister will be aware that some clubs still face problems as a result of trying to comply with the Government's wishes, while being thwarted by planning decisions that are made against them. I hope that the Minister has taken note of the problems of Barnet FC. Members of the club will travel to Downing Street on Saturday to put their case to the Government more publicly. Barnet Football Club enjoys sound management and loyal, well-behaved supporters; and the club has plans to meet the requirements of the Taylor Report. But at present, its plans have been thrown into crisis by the decision of the Government's planning inspector to refuse permission for a new stadium. I hope that the Department for Culture, Media and Sport and the DETR can hold joint talks about this issue to find a solution. I shall not put questions to the Minister now. I fully recognise that it is not his duty to answer my questions on those matters. As I mentioned to him in advance, I wish to place them on record, and I hope that he will listen and report them to his colleagues.
We now have some of the finest stadiums in Europe, if not in the world. Every division of football has grounds of which we can be proud. No doubt that will help the Government in their efforts to bring the 2006 World Cup competition to Britain. We on these Benches wholeheartedly support those efforts.

611
We support the Bill and hope that it will have a speedy passage on to the statute book.
7.33 p.m.
Lord Burlison: My Lords, first, I should like to thank the noble Lord, Lord Archer, for introducing the Bill. I am grateful to have the opportunity to give the Government's response.
The Bill recognises that the football supporter is an essential element in today's game. We must ensure that we do all we can to provide a safe and secure environment for all those who want to enjoy and be a constructive part of the sport.
Football in this country has seen major advances in the past decade. During debate on the Bill in another place, my honourable friend the Parliamentary Under-Secretary of State for the Home Department said:
"Football hooliganism is no different—it has moved on, too … trouble in and around the ground is almost a thing of the past, save for a few isolated incidents. We have achieved that through a number of successful measures—all-seater stadiums, closed circuit television and more effective policing and stewarding. We should also recognise the effect of legislation that was introduced and supported by all parties in the early 1990s to help combat hooliganism".— [Official Report, Commons, 16/4/99; col. 509.]
There are still around 4,000 arrests each year connected with football in the domestic game. The activities of the hooligan have now moved away from the ground and often occur some time before the start and completion of a match and often at some distance from the stadium.
Also, we should not ignore the international scene. For example, events in Marseilles during France '98 provided the world with shameful scenes involving so-called England supporters.
Those people represent a tiny minority. The vast majority of England supporters are decent and law-abiding. However, that does not allay the international perception that all England supporters are hooligans. Not only does it damage our football reputation, it also damages the reputation of our country on the international stage.
The Bill proposes that the court should have the power to issue football banning orders on conviction for football-related offences which are committed within a time-scale of 24 hours before or after a designated match played in England or Wales. In the case of international matches, the time-scale would be set out in the order dealing with each individual country.
That will have a two-fold effect. First, it will allow the courts to deal more effectively with football-related offences which are committed away from the ground; and secondly, the courts can consider issuing banning orders against those convicted overseas of football-related offences which are committed often days before or after matches take place. That will allow the legislation more effectively to apply to the event and not merely to the location.
In the case of international football banning orders, the Bill proposes that a person subject to such an order must report to a named police station when complying with reporting requirements. It also provides for the
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court to attach conditions to the issue of an order requiring such persons to submit their passport up to five days in advance of reporting requirements. That is intended to prevent the person travelling to the match, and to provide the police with a trigger mechanism alerting them to any potential breach of the court order. Retention of the passport by the police must be only for the period necessary to ensure compliance with the order.
As my honourable friend the Minister indicated during debate in the other place, the provision is about enforcement of the law. He said, in Standing Committee:
"The law states that people must not travel. This clause will ensure that they do not travel; it will simply take away their passport for the five-day period before the match".
The Minister went on to say:
"Legitimate questions were raised during Second Reading about the Government's obligations under European legislation and international conventions on civil rights. We are satisfied that we may do everything intended by the Bill under those treaties".
The Bill also proposes an important change to the present provisions of Section 3 of the Football (Offences) Act 1991 on indecent and racist chanting at football matches. The Bill proposes that it should become an offence for an individual alone to chant such distasteful remarks. I am sure that your Lordships share that view and recognise that eliminating racism is an objective not only for football but for society as a whole.
Football in this country attracts enormous interest and top players from all over the globe. The Premier League boasts some of the best stadia in the world. We have supporters who are passionate and knowledgeable about the game and generate a unique atmosphere. Euro '96 showed all these positive elements in our game, and that is why we have every confidence in our bid for the World Cup in 2006.I believe that the balanced measures contained in the Bill will help to improve the safety and security of the decent, law-abiding supporters. The Government fully support the Bill and acknowledge that it is also supported by the police, the football authorities and supporters.
I thank the noble Baroness for her comments, in particular in relation to the Cup Final. It. is surprising who one meets on such occasions. I also walked along the Wembley overpass in a sea of black and white shirts. As a Newcastle United supporter, accompanied by my son who also wore a black and white shirt, I was proud of the supporters. It was fun to travel on the Underground and to hear those supporters, whose team had perhaps lost its most important game, making happy remarks and, at the same time, calling home on their mobile telephones. The noble Baroness mentioned the issue relating to Barnet Football Club. We note her comments in that regard.
I turn to the speech of the noble Lord, Lord Phillips of Sudbury, who made some pertinent points. I hesitate to offer an explanation to him on the basis that I may challenge his legal knowledge, which is far superior to mine. One aspect of particular merit was his concern about the erosion of civil liberties. As I understand it,

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the intention of the Bill is not to erode civil liberties in this country, but I certainly take note of the noble Lord's comments.
As to the question of an absolute discharge, the removal of this provision means that neither a domestic nor an international football banning order could be made where the court dealing with an offender for a football-related offence had made an order absolutely discharging him. There may be circumstances in which an offence is so out of character, or committed under such provocation, that an absolute discharge is the appropriate disposal. In those circumstances, a court may well be satisfied that there is no likelihood of the offender being involved in further football disorder. If that is the case, the criteria for making a banning order will not be met and an order will not be made.
However, there may be circumstances where, for whatever reason, an offender is absolutely discharged by the court for the particular offence but the court none the less has reasonable grounds to believe that he may be involved in future football-related disorder. If so, we believe that the court should make a football banning order. The test is whether the individual has committed a relevant offence; and, if so, whether there are reasonable grounds for believing that a banning order will help to prevent future football-related violence and disorder.
The second part of that test may be less likely to be met where a court thinks that an absolute discharge is the right disposal, but if the test is met, the court should not, in our view, be prevented from making a banning order if that is appropriate.
As to the suggested diminution in the criminal standard of proof, the offence will have to be proved to the normal criminal standard of proof, which is "beyond reasonable doubt". This was a matter on which the noble Lord, Lord Phillips, cast some doubt. Where a court imposes an order, it must be satisfied from the evidence placed before it in open court that the offence is football-related and that there are reasonable grounds to believe that the imposition of such an order will help to prevent violence or disorder at or in connection with a designated football match played overseas. The existing provision requires the court to adopt a high threshold. I am satisfied that the legislation, with an amendment that applies the test of reasonableness, provides sufficient safeguards for the court to consider the imposition of an order on a person convicted of a football-related offence.
I realise that I have skipped over some of the issues which need to be more clearly outlined. I am sure that your Lordships would like those issues to be dealt with at a later stage, if it is necessary to do so.
7.46 p.m.
Lord Archer of Weston-Super-Mare: My Lords, I begin by thanking all noble Lords who have taken part in the debate. In particular, I thank the Minister for his support which shows clearly that this is not a party-political issue but something about which we all feel strongly.
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The noble Lord, Lord McNally, and I have something in common: we are sporting nuts. No matter what sport it is, we both know the statistics and love the game. We both suffer from being a bit Corinthian and enjoy the days when gentlemen congratulated the other side for winning. I also thank the noble Lord for his kind comments about snooker. I am aware that I go on about it. I would love to see those standards not just in football but in every game.
I hope that the House will forgive me for telling one story. I had the great privilege and honour to attend the England v. Germany hockey match in Seoul. At that game there were only 200 German fans and 200 British fans. We were a long way from home. That hour and a half was one of the best periods in my life. We smashed the Germans 3–1. On that particular day we had the better side; unquestionably, over a period of time the Germans had had the better side. At the end of the match the English crowd of 200 gave a standing ovation to the German team whose members passed their hockey sticks to the crowd. It was sentimental Corinthian stuff. I do wish we could see it in our football grounds, but I take seriously the point that in football we have had to learn to live with certain standards.
I thank my noble friend on the Front Bench. She declared an interest by saying that she had been invited to attend a football match at Wembley and had been given the tickets. I had not realised that it was necessary for me to declare such an interest. I, too, was invited by the Football Association to attend the England v. Sweden match. I wish that I had not gone. A more boring afternoon I have rarely spent, and the nil result was a complete waste of time. Although I declare this interest, had I paid I would have wanted my money back. Nevertheless, I thank my noble friend on the Front Bench for supporting the Bill. Again, it proves that this matter is non-party-political.
I turn to the speech of the noble Lord, Lord Phillips of Sudbury. Every speaker so far has made it clear that he or she does not have the legal knowledge of the noble Lord. That puts us at a genuine disadvantage. As a result of my work with certain charities, in particular Amnesty International, and in other fields, I am aware of the noble Lord's fight for civil rights over many years, and I do not in any way underestimate it. But I was anxious when I saw his name on the list, because I knew he would bring to the House the expertise that I would lack. May I point out to him that I contacted the International Convention on Civil and Political Rights and that they accepted this Bill. The European directions on this Bill have been accepted as well.
May I add also what my noble friend said from the Front Bench: this was widely debated in another place, and I did take the trouble to read the whole of that procedure. I am confident that it would be wise to let this Bill go through. Its points, I think, were indeed well made, but it would be sad if this Bill should fail to reach the statute book simply because we lacked time. Do not let us kid ourselves in this House; do not let us go about pretending; if amendments are put down and if great time is taken, this will not become an Act. That is a fact.

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I believe that if there are some things that worry the noble Lord, Lord Phillips of Sudbury, we will be able to discuss them. I hope there will be a way to make it possible for this Bill to become law. However, I would like to say to him that I do not in any way under-estimate what he said today. Indeed I will read his speech tomorrow so that I might understand it more clearly.
If I may, I should like finally to turn to the noble Lord the Minister and thank him for supporting the Bill. I hope that when we do have private discussions he will be able to tell us whether he has received advice on civil rights matters. Like the noble Lord, Lord Phillips of Sudbury, I feel strongly about them and would need the Government to convince me on one or two clauses that he has no fear, nor need the Government have, over this particular aspect. I end by thanking him for his courtesy and for his work on this Bill. I hope that we will see it become an Act of Parliament and I ask the House to allow the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

National Health Service (General Medical Services) Amendment (No. 2) Regulations 1999
7.55 p.m.
Earl Howe Earl Howe rose to move, That a humble Address be presented to Her Majesty praying that the regulations, laid before the House on 10th June, be annulled (S.I. 1999/1627).
The noble Earl said: My Lords, I beg to move the Motion standing in my name on the Order Paper. The statutory instruments to which my two Prayers relate are of considerable significance for the National Health Service. Their effect is to limit the availability on the NHS of a number of drug treatments for male impotence or, as it is technically known, male erectile dysfunction, including perhaps the most widely publicised of such treatments, the drug Viagra.
I wish to make a number of points about these regulations; first, as regards their direct consequences; secondly, on some matters of detail; and thirdly, in relation to their wider context. Sildenafil, Viagra, is a drug that was licensed by the Medicines Control Agency in September 1998. At that time the Secretary of State for Health issued advice to all GPs, making it clear that Viagra, notwithstanding its licence, should not be prescribed on the NHS by reason of its cost. This de facto ban became the subject of a court action by the drug's manufacturers and it was declared by the High Court to be unlawful earlier this year, on the grounds that it contravened both the doctor's professional duty to treat patients according to his or her own judgment of clinical need and the requirements of EU law.
However, the court judgment was overtaken in a sense by events, in that the Government had in the meantime resolved to replace their interim guidance with regulations restricting the availability of Viagra and other anti-impotence drugs to patients falling within a
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number of carefully defined categories. These are the regulations that we are now debating. The categories of patients entitled to Viagra on the NHS are those men suffering from one or more of 12 clinical conditions, including diabetes, prostate cancer, and multiple sclerosis. Viagra may also be made available to men who were already receiving impotence treatment on the 14th September last year. The effect of these provisions is to limit drug treatment to about 20 per cent of patients suffering from impotence. The other 80 per cent may, where appropriate, seek a private prescription from their GP.
Several consequences ensue from this. The most obvious is that, for the very first time, we are seeing overt rationing of treatments taking place within the NHS. That fact should not, on its own, upset or alarm us. Rationing has been a feature of the NHS in one form or another since its inception. What should alarm us is the basis of this particular example of it. The Secretary of State has decided that there is "good" and "bad" impotence—that is to say, impotence that is deserving and impotence that is undeserving.
On what basis can there possibly be a justification for the NHS withholding Viagra from a man with a brain tumour whilst dispensing it to a man with prostate cancer? What can be the justification for denying it to a man with liver failure whilst allowing it to a man with kidney failure, regarding vascular disease differently from Parkinson's disease? Try as I may, I cannot find such a justification. And whose rules are these? The answer is that they are not clinicians' rules; they are the Secretary of State's rules. They are rules which drive a coach and horses through the ethos of the NHS, which has always been to allow clinical judgment to determine the appropriateness of medical treatment and to treat individuals equally according to their need, and not to discriminate on the basis of the underlying reasons for that need.
There is another bizarre feature of this set of rules. Any man who was already receiving impotence treatment on 14th September 1998 is automatically entitled to the drugs listed in the regulations, whatever the underlying cause of his condition. How can the Government justify rationing on the basis of a cut-off date? What would we have said about the fairness of a petrol rationing policy in September 1939 which stipulated that rationing would apply to everyone except those who were running a car on the day that war was declared?
The idea is absurd and the scope for anomaly is immense. A man with vascular disease who, let us say, had been receiving impotence treatment by injection until shortly before the 14th September but who had abandoned it because of the discomfort it was causing him would be denied Viagra, or any other impotence treatment on NHS. Yet that same man, if he had decided to give up his treatment on the 15th September, could have asked for and received Viagra without needing a private prescription. I would be grateful for the Minister's comments on why this feature of the regulations was considered by the Government to be fair and equitable to impotence patients in general.
The Minister may tell me that the lists contained in these regulations do not represent the whole picture. The Government have said that it will still be open to a GP to refer to a specialist any patient who does not qualify under the standard headings but who is suffering from severe distress as a result of impotence.
That sounds reasonable as far as it goes, but if a GP is to follow that advice he has to know what it means. What is the definition of "severe distress"? How do you measure it? If a referral is made to a urologist, how is that urologist in a better position to make a judgment about a patient's degree of distress than the GP, who knows the patient very much better? It seems to me that this is simply a recipe for creating even longer waiting lists than there are at the moment for urology clinics.
If a man is prescribed Viagra treatment by a urologist, he must continue going back to that specialist if he wants a repeat prescription because his GP will not be allowed to continue the treatment. Is that really a cost-effective use of NHS resources? To what extent were urologists consulted over these procedures? I should be glad if the Minister would tell me when proper guidance on these questions will be issued by the Department of Health.
I should like now to turn briefly to the detail of these regulations. When I looked at these instruments I thought that the intention behind them was to group a therapeutic class of products within Schedule 11 of the National Health Service (General Medical Services) Regulations 1992; namely, all licensed pharmaceutical products for erectile dysfunction. However, it appears that not all such products have been included. I am advised that there is a product known as Viridal Duo which has been omitted. This is a product quite distinct from Viridal which is listed, with a separate product licence, different dosages, and a different NHS price. Why is it not on the list?
Secondly, the statutory instrument refers to products which have been withdrawn from use in the UK. Moxisylyte hydrochloride, known as Erecnos, and Thymoxamine Hydrochloride, also known by the same name, were withdrawn from the market in this country, I am told, in March 1999. Why, therefore, are they included in the list?
I move now to wider issues and, at the risk of overloading the Minister with questions, I should like to ask him about the use of Schedule 11 to restrict the availability of impotence treatments generally. What happened was that the Government panicked. They saw on the horizon an anti-impotence drug, Viagra, that they thought would prove extremely expensive for the NHS budget. So what did they do? They decided to ration not just that drug but all existing treatments for impotence as well. I put it to the Minister that this statutory instrument is outwith the spirit of the parent legislation set out by the National Health Service Act 1977 and that Schedule 11 was not intended for the purpose for which it is now being used.
Parliament was advised in 1985 that a Schedule 11 listing was a legitimate restriction on budgetary grounds where a medicinal product had more than one
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therapeutic use and met the criterion of having clinical advantages over other cheaper medicinal products for at least one of those uses but did not meet the criterion for all of them. The conditions set out in Schedule 11, therefore, made clear those indications for which treatment under the NHS is justified to meet the recognised clinical need for all or particular categories of patients.
On similar grounds, Schedule 11 has been used to cover circumstances where a product such as a food supplement might have a medicinal purpose for some patients but could not be treated as having a medicinal indication for all. In isolated cases, it has been used where products were already available without prescription such as nicotine replacement, or where misuse has arisen such as Temazepam capsules and clinical alternatives were available. Such circumstances do not apply here. The schedule is being used where there is no product otherwise available to meet a recognised clinical need. What is the Minister's comment on this?
For a variety of reasons, therefore, the Government have crossed a rubicon in introducing these regulations. That is perhaps the feature of them that worries me most. Today we are discussing treatments for impotence; tomorrow it may be something else. The new influenza drug, Relenza, is expected to be licensed before next winter. There are some who believe that its arrival will lead to GPs' surgeries being inundated by patients with early symptoms of a cold believing themselves to be suffering from 'flu. And that is only one possible example, of course.
What do the Government intend to do in such circumstances? Will they use Schedule 11 as a standard government response to what in their judgment are desirable but non-essential drugs? The case of Viagra and treatments for erectile dysfunction illustrates a number of severe problems that ensue from any attempt to ration treatments from the centre. I believe that the Government have got themselves into terrible difficulties on this issue. There is no easy way out for them by claiming that male impotence is a lifestyle issue and therefore automatically of low priority. On the contrary, male erectile dysfunction is, as the Secretary of State himself admitted, a distressing condition. It has serious medical consequences both for sufferers and their partners. Eighty-five per cent of cases result from underlying organic disease rather than psychological reasons. The outrage of doctors at the Secretary of State's decision to use Schedule 11 to limit the prescription of treatments for erectile dysfunction was highlighted by the British Medical Association which described it as arbitrary and one which would,
"exclude people who have a genuine clinical need".
The BMA went on to say that the decision,
"undervalues the position of GPs and will overload the hospital system".
The objection which I share with many clinicians is to the Government making rationing decisions on grounds of costs and then attempting to justify those decisions on grounds which authoritative medical opinion does not support. The result is unfair and divisive discrimination. I beg to move.
Moved, That a humble Address be presented to Her Majesty praying that the regulations, laid before the House on 10th June, be annulled (S.I. 199/1627).—(Earl Howe.)
8 p.m.
Lord Clement-Jones: My Lords, on behalf of these Benches, I thank the noble Earl, Lord Howe, for praying against the regulations, not only because it gives this House a chance to look at the Government's actions but also to examine their intentions in future rationing decisions.
In effect, as the noble Earl expressed so well, the Secretary of State in the Viagra case stumbled into a rationing debate resulting in a process which took far too long, could have been more coherently dealt with, and has had an extremely unfair outcome. On 15th September 1998, Sildenafil (Viagra) was licensed for use by the European Medicines Evaluation Agency and the Medicines Control Agency. The Secretary of State then acting on the interim advice of the Standing Medical Advisory Committee issued interim guidance by circular which prevented doctors from prescribing Viagra and caused a storm of protest; and indeed rebellion by individual GPs and their representatives. After a considerable delay, and despite receiving the advice of the Standing Medical Advisory Committee in November, he then issued draft guidance only in January which, although it allowed more latitude for prescription, and he agreed to consult with the profession over a six-week period, did not follow the advice of the Standing Medical Advisory Committee.
After a further delay the Secretary of State in May changed certain aspects of the original guidance in the light of consultations, to lengthen the list of eligible patients. Pfizer obtained a ruling later in May that the issuing of the original circular by itself was not in compliance with the EU transparency directive.
I welcome the fact that those consultations were genuine and produced changes in the eventual outcome and that the regulations will be reviewed after a year. However, there are considerable points of unhappiness with those regulations. The noble Earl, Lord Howe, has enumerated a number of the objections to the regulations and I do not propose to repeat them. Principally, above everything else, there is unhappiness in the medical profession that men whose impotence is causing them severe distress need to be referred first to a specialist before becoming entitled to treatment.
Yet there are many aspects in this whole affair which are not clear. Does the Secretary of State finally now admit that rationing is taking place within the NHS? Does he consider Viagra a precedent to be followed in other cases, or is it an exception? Is he convinced that the transparency directive is now being complied with? Does he propose to deal with all new treatments coming on stream in this way—for instance the new 'flu treatment referred to by the noble Earl, Lord Howe? How does he propose to deal with existing problems over chemotherapy drugs for cancer treatment, for example, which are subject to postcode prescribing because of cost constraints, along with Beta Interferon, Aricept and Clozapine?
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Does the Secretary of State believe in essence that the NHS is primarily for patients with life-threatening or painful conditions, as he seems to have implied in certain utterances? Will the Government now be explicit about what the NHS will or will not provide; or shall we simply proceed by testing every rationing decision, local or national, by means of judicial review? A senior executive of Pfizer recently wrote in the Royal Society of Arts Journal:
"The Viagra phenomenon is a sign of a larger trend in the pharmaceutical industry. It signals a new era in using medication to enhance and prolong people's lives—entering areas of healthcare that once seemed outside medical parameters".
Is the department keeping pace with this type of change? Is it calculating the likely future cost implications of these advances in the pharmaceutical field, or is it simply hoping to keep the lid on the whole issue?
It is not enough for the Government to rely on evidence-based medicine and the setting up of NICE. After all, NICE will specifically not deal with the question of affordability, as Ministers have confirmed; it will deal only with clinical questions and cost-effectiveness. NICE may help eliminate some ineffective treatments currently in use, but as its new chairman recently said,
"Anyone who believes that NICE will reduce NHS expenditure is whistling in the wind.".
What kind of assessment is being made of the future? Should not we treat drug expenditure in some cases as a kind of investment? It may be that there are savings that the Government as a whole can make in future if new drugs allow older people or those with mental health problems, for instance, to remain healthy and independent for longer and to stay out of institutions. If we deny access to some drugs, however, we may well not be reaping the healthcare economies that we could and should be making. In particular, will the Government introduce more transparency and accountability into the setting of priorities and the rationing process?
On these Benches, we do not argue that priority setting or rationing is bad—far from it. Indeed, the World Health Organisation in its recent report strongly backed publicly funded healthcare systems, but argued at the same time that rationing must be a feature of them. But in the process, we must keep public confidence in the NHS.
The recent interim report of the commission on representing the public interest in the health service stated:
"No longer can doctors, clinicians, health managers and politicians decide what they consider to be the public interest in health behind closed doors with only nominal consultation".
And:
"This trend interacts with the growing insistence that healthcare must correspond to the best available practice".

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And further:
"In short, a gap has opened up between government and citizen over health care that urgently needs to be closed".
The commission recommended that some form of organised independent public scrutiny of health services should be set up. We strongly agree with those sentiments and believe that the Government should act on them to set up an open system explicitly publicly to debate and confront the setting of priorities and the rationing of health treatment.
On these Benches we put forward numerous suggestions both in the debate last autumn initiated by the noble Baroness, Lady Cumberlege, on clinical futures and rationing and during the passage of the Health Bill on ways in which rationing decisions can be brought into the open. It is notable that one mechanism, citizen juries, was used extensively by Somerset Health Authority in its submission on Viagra to the Secretary of State. Despite all the ferment, we on these Benches are still waiting to see whether the Government are even willing to address the issue and instal mechanisms to deal with it. We look forward to the Minister's reply.
8.12 p.m.
Lord Hunt of Kings Heath: My Lords, I welcome the opportunity to debate erectile dysfunction with your Lordships tonight. Some important philosophical issues have been raised by both noble Lords and I gained the impression that both were taking the Government to task for the actions they have taken in relation to Viagra.
I say straightaway to the noble Earl, Lord Howe, that I reject the charge that the Government panicked in this area. The evidence shows that they came to a very sensible decision appropriate to the specific circumstances of Viagra. Careful consultation took place during that process. A balance had to be drawn between the need to protect NHS resources and to do what we could to provide treatment for impotence. Priority setting is a necessary part of any healthcare system—certainly in the case of the NHS. I believe that we came to a sensible decision which compares favourably with other European countries. Only in two other European countries is Viagra available to certain categories of patients free of charge.
As the House is aware, the regulations around which the debate is focused—the National Health Service (General Medical Services) Amendment (No. 2) Regulations 1999—came into effect on 1st July, as promised by my right honourable friend the Secretary of State for Health in his announcement of 7th May. I shall refer to the Scottish regulations in a moment.
The regulations introduce changes to Schedule 11 of the same regulations, the practical effect of which is to restrict the prescribing by GPs of treatments for impotence from 1st July. GPs may now prescribe these treatments on the NHS only for categories of men with specified underlying organic causes of impotence. Guidance has been issued to the NHS explaining in more detail the responsibilities of GPs and community pharmacists in prescribing and dispensing these prescriptions. That guidance also contains a
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recommendation, based on research evidence, that treatment be prescribed once a week. We are preparing some additional guidance on the identification and management within specialist services of those men suffering from severe distress as a result of their impotence. I cannot give the exact timescale, but we hope that it will be produced as soon as possible.
The overall context of these new arrangements is that the Secretary of State took the view that, with the introduction of Viagra, the cost of treating impotence should not be allowed to rise substantially, diverting resources from other health conditions and treatments. He undertook a public consultation to help us find a sensible balance between treating men with the distressing condition and protecting the resources of the NHS to deal with other patients. Current costs of treatment are around £10 million to £12 million a year, but without action by the Secretary of State these could have risen to a range starting at £37.5 million a year which could have risen as high as £81 million a year. During the recent legal action mentioned by both noble Lords, instituted by Pfizer, the judge acknowledged that Pfizer had rightly conceded that the Secretary of State is entitled to include medicines in Schedule 11 because of resource implications following the likely cost of allowing them to be freely prescribed. Indeed, the Honourable Mr Justice Collins in his judgment commented that:
"It is clear that, for very understandable and proper reasons, the Secretary of State was concerned that Viagra would prove to have a significantly adverse effect on the resources of the NHS".
In the absence of his ability to use Schedule 11, my right honourable friend would have been faced with a stark choice. Either he would have had to risk an uncontrolled rise in expenditure, with all the potential of diverting resources away from other conditions, or he would have had to prevent GPs from prescribing treatments for impotence altogether. As it is, we have been able to introduce a regime which means that more men will be treated for their impotence than before, without a significant increase in costs, and which is more generous than in most of Europe.
In contrast to the suggestion that the Government panicked or did not act correctly, it is reassuring that many respondents to the public consultation supported the view that action needed to be taken. It is true that concern was expressed about distinguishing between patients on the grounds of their underlying condition. It is also true that the British Medical Association continues to express those concerns. But, no one, including the Standing Medical Advisory Committee and the BMA, proposed an alternative solution that would meet the concerns I have described.
We all recognise that the NHS operates within financial constraints and that it is the Government's role to address concerns about the use of NHS resources. As I have said, some concern was expressed about distinguishing between patients on the grounds of their underlying condition. But no one proposed an alternative solution which would be consistent with the objective of containing expenditure to approximately the present level so as not to divert resources from other health conditions and treatments, and the general view

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that drug treatments should be made as widely available as possible for prescription by GPs on the NHS. We decided therefore to proceed with the proposals but in an amended form which took into account comments so far as possible within the available resources. We extended the list of eligible patients to encompass all men treated for prostate cancer—not just those who have had a prostatectomy, as originally proposed—men being treated for renal failure and men with polio.
Other concerns were raised in consultation, particularly about men receiving drug treatment before Viagra was licensed having their treatment withdrawn.
We took account of that in deciding that men who were receiving drug treatment for impotence on 14th September 1998 should be able to continue to receive treatment from their GP notwithstanding that they may not suffer from one of the named conditions. The noble Earl, Lord Howe, described that as an absurd position. However, it seems to me that that was a fair decision given that the people concerned were receiving a drug treatment before Viagra was available.
The provision of one treatment per week is considered to be reasonable by most people, but I must emphasise that this is advice. It is made clear in the guidance issued to doctors that if the GP in exercising his or her clinical judgment considers that more than one treatment is appropriate, that amount should be prescribed on the NHS.
In making these regulations the Secretary of State has consulted interested parties and complied with his obligations under European legislation, specifically with what is known as the "transparency directive", which was raised by the noble Lord, Lord Clement-Jones. He has done that by making the decision on the basis of a criterion that had been notified to the European Commission. The decision-making process was open and above board. For example, it was following consultation that the Secretary of State decided to extend the list of eligible patients and to enable men who were being treated for impotence before treatment became available in tablet form to be eligible for continuing treatment from their GP.
I turn to some of the specific points made. The noble Earl, Lord Howe, raised the issue of severe distress. I have mentioned already that we are in the process of preparing that guidance. It will be issued shortly. Perhaps I could further say to the noble Earl that identification and assessment of patients will be by doctors exercising their clinical judgment. It is likely that such patients will be suffering severe disruption to their occupational and social activity.
The noble Earl also raised the issue of inclusion in the regulations of products that have been withdrawn. It is my understanding that all the drug treatments for impotence included in Schedule 11 are presently available and listed in the British National Formulary. However, that is a matter I am prepared to check and clarify.
I come now to the point about whether a precedent has been set for dealing with desirable but non-essential drugs. I have to say, first, that it is unwise to foretell the future based on the way in which Viagra has been dealt
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with. Clearly, each condition has to be dealt with on its merits, subject to mature judgment. However, I believe that the potential pressure on NHS resources from calls to prescribe Viagra for the treatment of impotence gave rise to an almost unique set of circumstances. Ministers were required to make a decision, and f believe that a sensible and wise decision was made.
The noble Earl, Lord Howe, raised the issue of Viradal Duo not being included. I understand that they are included under the listing of Alprostadil. In relation to the misuse of Schedule 11 suggested by the noble Earl, I believe that I have covered that in relation to the judgment given by His Honour Judge Collins who, as I have said, acknowledged that the Secretary of State is entitled to include medicines in Schedule 11 because of the resource implications following the likely cost of allowing them to be freely prescribed.
The noble Lord, Lord Clement-Jones, asked about the issue of forecasting the future in relation to drugs. That is not without its challenge, as we have discovered in the National Health Service over many years. The overall aim of the Government continues to be to encourage the wider uptake of clinical and cost-effective medicines. I believe, despite some doubts suggested by the noble Lord, that NICE can help in securing that objective.
I turn briefly to the question of Scotland. It might be helpful to the House if I said that the Scottish regulations made on 8th June and laid before Parliament. on 10th June, again came into force on 1st July. Nothing in the devolution legislation prevents those procedures being followed through. Therefore, it is appropriate for this House to debate those regulations. However, any subsequent amendments for Scotland or Wales will, of course, fall to the Scottish Parliament or the Welsh Assembly, as appropriate.
In conclusion, perhaps I may make it clear that the policy underlying the new arrangements will be reviewed after they have operated for a year. That will happen, but in the mean time, I commend the measures contained in the statutory instrument and the associated guidance—
Lord Clement-Jones: My Lords, before the Minister concludes, I wonder whether he can confirm one matter. He has outlined the process but is he saying, effectively, that in no sense is there any indication that the department will be learning from the "Viagra experience", so to speak? Is the department prepared to learn from that experience of rationing in terms of its handling of such matters in future? Moreover, will it consider whether or not the Secretary of State should be the sole decision-maker on these matters? Is there not some mechanism which could be adopted to bring a wider public interest consideration to bear?
Lord Hunt of Kings Heath: My Lords, I hope that the Department of Health would always consider itself to be a learning organisation. Clearly, there is a continuous process of learning as policy develops and we learn from experience in the field: and as we see the impacts of NICE, the Commission for Health

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Improvement and the health improvement programmes. I am sure that lessons will be learnt from the way in which we have approached the issue of Viagra.
The circumstances surrounding Viagra and the way in which they had to be handled are unique. It would be very unwise to set that as a precedent for the future which would then be used for other drugs and other situations. However, perhaps I may say that the substantive point raised by the noble Lord is a well chosen one. Healthcare, above all other services, is one area in which we constantly have to learn from experience when planning and developing ideas for the future.
Earl Howe: My Lords, I thank the Minister for that full reply and for the trouble he has taken in attempting to respond to the points I made. He has been of considerable help in clarifying much of the Government's thinking on this vexed issue. Unfortunately, I do not think that he has succeeded in resolving what I regard as the anomalies which the regulations create. Indeed, I do not believe that he or anyone would have been capable of so doing. I suspect that in his heart of hearts the Minister is as conscious as I am of the illogicality and unfairness inherent in the rules drawn up by the Government.
Were it not for the convention of your Lordships' House that statutory instruments should not be put to a vote, I should wish to divide the House on this issue. The issues are certainly important enough to do so. However, I shall not do that. I merely conclude by making a couple of observations.
The first relates to the role of NICE. It seems to me that responsibility for rationing, which is essentially what this is—I pay due credit to the Secretary of State for admitting that that is what this is—cannot in any sense be delegated to NICE, which is an advisory body. It is for Ministers accountable to Parliament to confront the hard decisions about rationing and funding. The difficulty here relates to the way in which they have done so in the case of anti-impotence treatments.
Prof Michael Rawlins, the chairman of NICE, does not want this to be used as a tool of rationing. He has written that anyone who believes that NICE will reduce NHS expenditure is "whistling in the wind", according
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to The Times of 27th May. We should therefore look carefully at the role of the National Institute for Clinical Excellence in this kind of context.
The key point I wish the Minister to take away is that the Government should assess this whole matter after no less than a year in the context of the overall demand for anti-impotence treatments and the NHS expenditure on them. I take some comfort from the Minister's assurances on whether and to what extent the Viagra saga should be regarded as a precedent for things to come. I sincerely hope it will not be a precedent. In the meantime, this has been an extremely useful debate and I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.

National Health Service (General Medical Services) (Scotland) Amendment (No. 3) Regulations 1999
Earl Howe: My Lords, not moved.
Trustee Delegation Bill [H.L.]
Returned from the Commons agreed to.
Commonwealth Development Corporation Bill [H.L.]
Returned from the Commons agreed to with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed. (HL Bill 83)

Pollution Prevention and Control Bill [H.L.]
Returned from the Commons agreed to with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed. (HL Bill 84)
House adjourned at half-past eight o'clock.