Lords Sitting of 26 July 1999

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

Baroness Prashar
Miss Usha Kumari Prashar, CBE (wife of Vijay Kumar Sharma, Esquire), having been created Baroness Prashar, of Runnymede in the County of Surrey, for life—Was, in her robes, introduced between the Lord Lester of Herne Hill and the Baroness Pitkeathley.
Lord Bradshaw
William Peter Bradshaw, Esquire, having been created Baron Bradshaw, of Wallingford in the County of Oxfordshire, for life—Was, in his robes, introduced between the Lord Berkeley and the Baroness Thomas of Walliswood.

Pay Agreements
2.49 p.m.
Lord Brooke of Alverthorpe Lord Brooke of Alverthorpe asked Her Majesty's Government:
What plans they have for encouraging moves towards longer-term pay agreements.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, the question of whether pay agreements are arranged on an annual basis or over some other period is a matter for employers and employees to determine in the light of their particular circumstances.
Lord Brooke of Alverthorpe: My Lords, I thank my noble friend for his reply, although at this stage it is not too encouraging. Does he agree that some of the pay settlements reached in the private sector spanning two or three years have been good both in terms of improved productivity and the generation of greater stability for all concerned? When will the Government make a start with similar models in their own area of competence—especially as they have now introduced public service agreements spanning three years?
Lord Sainsbury of Turville: My Lords, there are a considerable number of pay deals in the private sector spanning a number of years; for example, those made by the Ford Motor Company, Rover Group, Blue Circle and British Energy, to name but a few. However, it should be understood that some 90 per cent of all settlements are struck for one year. A number of settlements—about 5 per cent, according to CBI figures—are for less than one year. It is not for the
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Government to say whether those deals have been good for the companies involved. It is for companies and employees to make their own specific pay arrangements. The Government's Comprehensive Spending Review makes it possible for pay to be managed over a longer period than one year by providing greater certainty over levels of funding. That is the role that the Government should play.
Lord Marsh: My Lords, will the Minister accept that many people will be deeply relieved by his Answer? Does he agree that this country's history of experiments, by both parties, to intervene in collective bargaining has been a fairly universal and consistent disaster?
Lord Sainsbury of Turville: My Lords, the thrust of my Answer was on those lines. We have no desire to become involved in specifying the length of any deal. That is for people to decide in the specific circumstances of their industry. There may, of course, be cases where it is entirely appropriate and may lead to higher productivity and better performance. However, that is for companies and employees to decide for themselves.
Lord McCarthy: My Lords, does my noble friend really ask us to believe that negotiations in the public sector, particularly the Civil Service, are between the employer and unions, as though the Government were not the employer? Is it not well known that the arguments that go on every year because the Treasury tries to get a settlement that is below RPI poison industrial relations in the public sector and are the main reason why, as the Prime Minister says, productivity cannot be increased in the public sector?
Lord Sainsbury of Turville: My Lords, clearly one aspect of this problem is the total sum of money available for pay deals. That is a matter which the Government will lay down and have a great interest in, but within those parameters the decision must continue to be that of the employer and employee.
Lord Mackay of Ardbrecknish: My Lords, at the risk of embarrassing the Minister just prior to a reshuffle, is he aware that we on this side warmly welcome his initial Answer and his response to the noble Lord, Lord Marsh? Can he go further and assure the House that the Government have absolutely no intention to interfere in pay bargaining in any part of the private sector, and that the only area in which the Government have an interest in pay bargaining is the public sector where they are the employer?
Lord Sainsbury of Turville: My Lords, I thought that it was absolutely clear from my Answer that we had no intention to intervene; and that will continue to be our policy. I am not embarrassed to be congratulated by the noble Lord. Coming from the noble Lord, that is a great pleasure.
Lord Murray of Epping Forest: My Lords, while not dissenting from the Minister's proposition that employers and trade unions should be left to settle their

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own affairs, does his reply to the noble Lord, Lord Marsh, suggest that he has completely forgotten that there are exceptions? Does he agree that between 1974 and 1979 concerted action by the government, CBI and TUC played a significant part in reducing the level of inflation in this country from 28 per cent—part of which was due to the previous Conservative government—to about 8 per cent? Does my noble friend agree that in some circumstances it has a part to play?
Lord Sainsbury of Turville: My Lords, I am happy to answer questions about the current policy of the Government. I have never felt very comfortable about re-fighting past battles. I am perfectly prepared to accept that there may have been some cases where such action was successful and others where it was not. However, as of today we do not see that as being advantageous.

British Council and BBC World Service
2.54 p.m.
The Earl of Carlisle asked The Earl of Carlisle asked Her Majesty's Government:
What resources they intend to provide for the British Council and the BBC World Service over the next three years.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, under the Comprehensive Spending Review settlement announced in July 1998 the British Council received, or will receive, £133.1 million, £136.1 million and £138.9 million for the three years from April 1999 to March 2002, representing a real increase of some 2 per cent in the period over the 1998–99 level. This was in line with the real increase for the FCO as a whole. The BBC World Service received, or will receive, £175.5 million, £174 million and £177.7 million in the same three-year period, a real increase of nearly 3.9 per cent on average on the 1998–99 level.
The Earl of Carlisle: My Lords, I thank the Minister for her Answer, to which I can only respond with the dying words of the first Secretary of State at the Foreign Office, Charles James Fox. On his deathbed he turned to his wife (named Elizabeth) and said:
"That does not signify, my dear Liz".
Does the Minister agree with me that in the fifth report of the Foreign Affairs Committee of the House of Commons concerned with resources every single witness lamented the fact that the shortfall of funding for the British Council and BBC World Service meant that they would not be able to do their important jobs with as great effect as they should? Does she also agree that next year's CSR bids should put the British Council and World Service to the top of the agenda, and that if the British Council is called upon to assist with reconstruction in the Balkans the extra money that it
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requires should come from the Treasury, not the Foreign Office or the grant-in-aid fund, which is lower now than it was at any time during the previous government?
Baroness Symons of Vernham Dean: My Lords, I thank the noble Earl for his sterling advertisement on behalf of the FCO. However, I did not believe that his initial quote was particularly appropriate. These sums of money signify very much indeed. I am the Minister for BBC World Service, and my noble friend Lady Kennedy chairs the British Council. Everyone always wants more money for their particular parts of government, but the fact is that the money allocated is sufficient for the purposes of both organisations. For example, the British Council is active in new areas, such as the promotion of creative industries, design, film and the spread of good governance and human rights. The World Service is forging ahead with its plans for languages in real audio on the Internet within five years and the introduction of two continuous streams of English programming, one general and one news. I believe that both organisations are able to proceed with their plans and are properly funded.
Lord Janner of Braunstone: My Lords, does my noble friend agree that both the British Council and the BBC World Service provide unrivalled, honourable and honoured service at minimum cost and maximum effect? In those circumstances, can she assure the House that the welcome news that a real increase is to be provided in the next three years is one that will be built upon and there is no need to worry about diminishing payments for such tremendous services?
Baroness Symons of Vernham Dean: My Lords, I can point only to what has happened in the CSR. On this occasion actions speak louder than words. I echo what my noble friend said. The British Council is of enormous benefit to Britain in the public diplomacy field as our principal agency for cultural relations abroad; and the BBC World Service is an excellent organisation, keeping some 42 foreign languages in service and broadcasting in English as well.
Baroness O'Cathain: My Lords, will the Minister repeat the sums of money for the BBC World Service? Unless my hearing has gone, I believe she said that the figures were £175 million for the first year, then £174 million, and then £177 million. If so, do those figures give comfort to the BBC World Service in planning ahead? I do not have a calculator with me but it does not seem to be a real increase.
Baroness Symons of Vernham Dean: My Lords, perhaps I may explain. The noble Baroness is right. The figures I gave were £175.5 million; £174 million; and then £177.7 million. The increase is somewhat lumpy—if I may put it that way—because we are investing in a new transmitter in Oman. It is important to have that capital investment up front. As the noble Baroness may

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know from the articles written by the chief executive, Mark Byford, the BBC World Service is well satisfied with the outcome of the CSR.
Lord Wright of Richmond: My Lords, I warmly endorse the praise expressed by the noble Lord, Lord Janner, of the British Council and the BBC World Service. However, can the Minister assure the House that any increase in the grant in aid for either the British Council or the World Service will not be at the expense of the Foreign and Commonwealth Office's activities in what I believe is now known as the field of public diplomacy?
Baroness Symons of Vernham Dean: My Lords, I assure the noble Lord, Lord Wright, that his successor in the Foreign Office, Sir John Kerr, is as assiduous an accounting officer as the noble Lord was in his day. If I know Sir John at all, I assure the noble Lord that he will be very active in ensuring that money is not siphoned out of other parts of the FCO budget either into the BBC World Service or the British Council.
Baroness Williams of Crosby: My Lords, I praise the BBC World Service for the marvellous way in which it is bringing on online services and training journalists, for example in the Indonesian elections. Can any additional training which may fall either to the British Council or the BBC World Service in relation to the Balkans and Kosovo be considered as falling under the proposed reconstruction funds rather than the moneys currently available to those two outstanding services?
Baroness Symons of Vernham Dean: My Lords, the noble Baroness raises an apposite point. The BBC World Service has expanded its services into the Balkans, as I am sure the noble Baroness knows, especially in its Albanian and Serbian services.
The matter is under review. As the noble Baroness will appreciate, a number of parties are extremely interested in how it is to be financed. I assure the noble Baroness that all care will be taken on the matter.
Lord Puttnam: My Lords, the Minister will remember that about five years ago the then Prime Minister, John Major, called a three-day conference in London entitled Britain and the World at which a number of eminent people, including most members of the Cabinet, spoke. The clear outcome of the conference was that the BBC World Service and the British Council represented the greatest value for money in the area of British diplomacy. Three months later both budgets were cut.
Will the Minister confirm that instead of considering increases of 1, 2 or 3 per cent over the next five years in the budgets for the BBC World Service and the British Council, the Government will look at the priorities of foreign policy and consider a double digit increase?
Baroness Symons of Vernham Dean: My Lords, the noble Lord raises an interesting point about the previous administration. It was in order to bring some certainty to the budgetary planning of the BBC World Service
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and the British Council that the Government ensured that the money available over the next three years is clearly indicated.
The money available for the British Council appears in percentage terms to be less than that for the World Service because the British Council is able to raise money from a variety of other sources. However, it is important to ensure that while the aspirations of many may not be met, the functioning of both organisations is properly secured. The Government believe that to be the case.
Lord Moynihan: My Lords, pursuant to the important point raised by the noble Lord, Lord Puttnam, and my noble friend, what specific action do the Government intend to take in view of the strongly worded conclusions of the Foreign Affairs Committee in its report, Foreign and Commonwealth Office Resources that,
"the British Council is seriously underfunded",
and that on its present and projected budgets the BBC World Service will not be able to face increasing competition or keep pace with new technology?
Baroness Symons of Vernham Dean: My Lords, in that case I expect that the FAC is glad that it is dealing with this Government and not the previous government because we have put in a great deal more money. I know that the noble Lord has great difficulty with the maths. We have had many discussions on the figures in the past. I can again go over the figures with him quietly later. I am sure that we shall have the opportunity again of convincing him, as I believe it is easy to do, that his sums are wrong.
We shall keep all these points under review, as would any responsible government. I believe that our record is considerably better than that of the party he supports.

Kosovo: Civilian Casualties
3.5 p.m.
Baroness Turner of Camden Baroness Turner of Camden asked Her Majesty's Government:
What arrangements are being made to ensure that civilian victims of NATO bombing in Kosovo, whether Albanian or Serbian, receive adequate compensation for injuries sustained.
Baroness Symons of Vernham Dean: My Lords, our Armed Forces complied strictly with the laws of armed conflict, and in particular with the Geneva conventions and the first additional protocol to the conventions. Of course we regret any civilian casualties. Questions of possible compensation could arise only if unlawful action had been taken. We are satisfied that our action was lawful.
Baroness Turner of Camden: My Lords, thank the Minister for that response. However, she will not be surprised that I find it somewhat disappointing. She said yet again that accidents happen in the shape of injuries

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and deaths to the civilian population. That being so, there seems to me to be an obligation upon all of us who gave support to this action—I believe that that represents a majority of the people in this country—to accept some responsibility for the injuries and deaths caused to innocent people. Therefore will the Minister be good enough to think again in respect of her response to my Question?
Baroness Symons of Vernham Dean: My Lords, I know that my noble friend is motivated by the best humanitarian principles. However, there cannot be a question of compensation. That would arise only if unlawful action had been taken.
NATO forces were very careful in their choice of targets. Of course anything that went wrong because of human error is very much to be regretted. But the fact remains that we are convinced that our action was lawful. We are convinced of the legality of our targeting and that our armed forces complied very strictly with the laws of armed conflict. In that case, I am afraid that there cannot be a question of compensation on this issue.
Baroness Williams of Crosby: My Lords, the Minister will recognise that humanitarian aid will assist those who have been mutilated or otherwise seriously handicapped as a result of casualties. However, perhaps I may widen slightly the question to ask about compensation not for civilians in Kosovo but for our immediate allies. As the Minister is aware, the blocking of the Danube is now putting tremendous strain on already relatively fragile countries, such as Albania and Bulgaria, with the after effects of refugees on Macedonia and Albania.
Can the noble Baroness say anything about NATO's discussions about the compensation which was promised to these relatively fragile democracies upon which they now profoundly depend?
Baroness Symons of Vernham Dean: My Lords, these matters have to be discussed in a number of different fora, not least of which is the Stability Pact Summit which, as the noble Baroness may know, is due to take place in Sarajevo on 30th July. It will not only discuss the issues on compensation but also the rebuilding of that part of the world.
The noble Baroness raises an important issue about the Danube because, as she knows, there is no question of giving aid directly to Serbia while Mr Milosevic is in power. The situation in the Danube affects many other Balkan countries and I assure the noble Baroness that we are well seized of the difficulty. A good deal of thought is going into how the circle can be squared and one of the major opportunities to debate that in detail will be on 30th July.
Lord Moynihan: My Lords, as noble Lords will be aware, following the bombing of the Chinese Embassy in Serbia, the Americans have offered compensation to the Chinese. What representations have the Government
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and our NATO partners received from the Russian Government about compensation to civilians in Serbia, given that last month Mr Chernomyrdin said:
"Sooner or later, NATO will be expected by the world community to pay Yugoslavia for damages to compensate the bereaved families of innocent victims."?
Baroness Symons of Vernham Dean: My Lords, the issues relating to Russia are based on an interpretation of international law with which Her Majesty's Government do not agree. I refer the noble Lord to my original Answer that, as we do not believe that our bombing was unlawful, the issue of compensation does not arise.
As regards the Chinese Embassy, it is common for ex gratia payments, without any admission of liability, to be made when one state damages the diplomatic premises of another.
Lord Chalfont: My Lords, will the Minister comment not only on the legality of our action but on whether it was in accordance with the principles of the just war, one of which is proportionality; that is, the use of proportionate force to achieve the end in view? Is the Minister as confident about that as she is about the legality of our actions?
Baroness Symons of Vernham Dean: Yes, my Lords, I am confident about the issue of proportionality. I am sure that anyone who sat through the debates in your Lordships' House during the bombings knows the care with which my noble friend Lord Gilbert was able to describe the targeting processes and the detail into which Members of the Front Bench, speaking on behalf of Her Majesty's Government, went in explaining how bombing raids were undertaken. Furthermore, when things went wrong, we were unprecedented in the openness with which we dealt with that. We have nothing to hide in our conduct of the campaign. Our Armed Forces did extraordinarily well, and the three-quarters of a million returning Kosovar-Albanians know the truth of what I am saying.

Department of Health: Workforce Planning
3.13 p.m.
Lord Clement-Jones Lord Clement-Jones asked Her Majesty's Government:
What is the timetable for the review of workforce planning promised in the Department of Health's reply (Cm 4379) to the House of Commons Health Committee's report on future staffing requirements (1998–299, HC 38-I).
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, the review will begin in the autumn. We anticipate that it will take around three months to complete and will be followed by the publication of a consultation document making proposals for action.

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Following a short consultation period and any necessary modifications for the proposed action plan, an implementation timetable will be established.
Lord Clement-Jones: My Lords, I welcome the Minister's Answer and congratulate her on her department's late conversion to the view that its workforce planning for the NHS was inadequate. However, will the review, as a matter of urgency, consider severe shortages in, for instance, obstetrics, gynaecology, radiology and paediatrics? Will she confirm that the medical profession will be closely involved in the review, despite the recent war of words conducted by the Prime Minister?
Baroness Hayman: My Lords, there are an awful lot of issues to unpick in that supplementary question! I do not know about the department, but I do not need convincing of or converting to the idea that we need to improve workforce planning throughout the NHS. Many people share that view within both government and the professions.
The review will look at how we undertake the task of workforce planning with the view of streamlining it and making it more efficient and coherent. It will not undertake the workforce planning itself. We are taking immediate action in some of the areas that the noble Lord mentioned—obstetrics and gynaecology, for example—in order to deal with the difficulties.
As regards the "war of words", we intend the process to be consultative and we need to involve all the professions, not only the medical profession, in the review. The noble Lord should not believe too much of what he reads in the newspapers. Those of us who have heard the Prime Minister speaking to health service audiences know exactly how much he values their contribution.
Lord McColl of Dulwich: My Lords, is the Minister aware that, until the Government came to power, it was always the practice to keep junior hospital staff in post until they were found suitable employment at the end of their 20-year training? That was readily achievable by recruiting new trainees only when the posts were vacated by their senior colleagues. Why will not the Government now restore that civilised practice, bearing in mind that the NHS is a monopoly employer and that the training of junior staff costs a lot of money?
Baroness Hayman: My Lords, the noble Lord, Lord McColl, described the process as civilised, but I am not sure that it was the best in ensuring high-quality services for patients or proper employment opportunities for those who he was right to say had undergone a long training period. However, given the changes in the way in which services are delivered and the demands on health services, the 20-year timeframe to which he referred illustrates the difficulties of workforce planning and the need to have more flexibility in the system.
Lord Monkswell: My Lords, does my noble friend agree that it is little short of a national scandal that, for almost all of the past 50 years, the NHS has been a
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net importer of doctors, in particular from the Indian sub-continent which is scarce of doctors itself? Does she agree that we should welcome with rejoicing, the fact that the Government have announced the training of a further 1,000 doctors? Will she say whether, if there is a need, the Government will make available funds to increase that number?
Baroness Hayman: My Lords, my noble friend is aware that this month we announced 1,000 additional medical school places distributed throughout the country, bringing medical education into new areas including the West Midlands and Stockton-on-Tees. Therefore, as regards long-term planning, we are increasing the supply of doctors who are trained in this country. There has also been an increase in the number of training places for midwives and nurses. We should not underestimate the contribution which continues to be made to the NHS by those who are trained overseas. Of course we do not want to denude countries of their trained personnel on whom they depend, but nor should we devalue what can be learnt from the interchange of professionals—and I refer to professionals leaving this country and working elsewhere as well as those coming to work here.
Lord McColl of Dulwich: My Lords, is the Minister aware that the civilised practice to which I referred was practised by every government and that, if this Government were to restore it, the skills of the workforce would rise? Why will they not do so?
Baroness Hayman: My Lords, I am sure that the review, which we have agreed will be consultative, will be interested to hear the noble Lord's views and he can put that suggestion forward. I was not making a party political point. I was saying simply that what was right in the past may not necessarily be right for the present. let alone the future.

Mental Health (Amendment) (Scotland) Bill
3.19 p.m.
Brought from the Commons; read a first time, and to be printed.

Standing Orders (Public Business)
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I beg to move the Motion standing in my name on the Order Paper. As your Lordships will be aware, this gives effect to the decisions taken by your Lordships' House on Thursday on the basis of the Procedure Committee Report.
Moved, That the Standing Orders relating to public business be amended as follows-
After Standing Order 8
Insert the following new Standing Orders:
8A.—(1) In implementation of section 2 of the House of Lords Act 1999, this Standing Order makes provision for hereditary peers who are excepted from section 1.
(2) The excepted hereditary peers shall consist of the following categories:

(i)

(a) 2 peers elected by the Labour hereditary peers;

(b) 42 peers elected by the Conservative hereditary peers;

(c) 3 peers elected by the Liberal Democrat hereditary peers;

(d) 28 peers elected by the Cross-bench hereditary peers;

(ii) 15 peers, elected by the whole House, from among those ready to serve as Deputy Speakers or in any other office as the House may require; and

(iii) any peer holding the office of Earl Marshal or performing the office of Lord Great Chamberlain.

(3) Elections shall be conducted in accordance with arrangements made by the Clerk of the Parliaments.
(4) In order to stand for election or qualify as an elector under paragraph (2)(i), a peer must register with the Clerk of the Parliaments, identifying the party or Cross-bench group to which he belongs. In order to stand for election under paragraph (2)(ii), a peer must register separately with the Clerk of the Parliaments. A peer may not stand for election nor vote if he has not taken the Oath or is on Leave of Absence.
(5) In the event of a tie between two or more candidates standing in any of the elections held in accordance with paragraph (2), the matter (if not resolved by the electoral arrangements adopted by the House) shall be decided by the drawing of lots.
(6) The Clerk of the Parliaments may refer any question concerning the propriety of the electoral process to the Committee for Privileges.
(7) In the event of a vacancy occurring at any time up to the end of the initial period through death among the peers elected in category (2)(i) or (2)(ii), the vacancy shall be filled by the nearest runner-up in the relevant election under paragraph (2) who both wishes to fill the vacancy and is otherwise available. The provisions of paragraph (5) are applicable for this purpose. If no such runner-up is available, the House shall decide how the vacancy shall be filled.
(8) In this Standing order and in Standing Order 8B the end of "the initial period" is the end of the first session of the next Parliament after that in which the House of Lords Act 1999 is passed.
8B.— (1) In implementation of subsection (4) of section 2 of the House of Lords Act 1999, this Standing Order makes provision for by-elections to fill vacancies occurring by death among excepted hereditary peers after the end of the initial period.
(2) In the event of the death of a hereditary peer excepted under Standing Order 8A(2)(i) only the excepted hereditary peers in the group in which the vacancy has occurred shall be entitled to vote.
(3) In the event of the death of a hereditary peer excepted under Standing Order SA(2)(ii) the whole House shall be entitled to vote.
(4) The provisions of paragraphs (2) and (3) shall apply also in the case of any subsequent by-elections.
(5) The Clerk of the Parliaments shall maintain, and publish annually, a register of hereditary peers (other than peers of Ireland) who wish to stand in any by-election.
(6) By-elections shall be conducted in accordance with arrangements made by the Clerk of the Parliaments and shall take place within three months of a vacancy occurring.
(7) Paragraphs (5) and (6) of Standing Order 8A shall apply to by-elections under this Standing Order.— (Baroness Jay of Paddington.)
On Question, Motion agreed to.

Judicial Standing Orders
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move the Motion standing in my name on the Order Paper. The purpose of this amendment to judicial Standing Orders is to enable the House, upon report from the Appeal Committee, to modify in certain circumstances the obligation that appellants should lodge security for costs. At present, the sum required is £18,000, which is intended to represent two-thirds of the average cost of an appeal to your Lordships' House. It thus provides a guarantee that the respondents, if successful, will be reimbursed at least to that extent.
The Standing Order does not at present give the House any discretion to waive or even to modify this requirement, so that an appellant who is unable to find the money cannot proceed with his appeal. My noble and learned friends the Lords of Appeal in Ordinary have unanimously decided that the Standing Order ought to be amended so as to give them such a discretion. It is their belief that circumstances that would warrant the exercise of this discretion will only rarely arise, but it is right for them to have the discretion. I agree that it is a sensible amendment and I commend it to the House.
Moved, That the following amendment be made to the Standing Orders regulating judicial business:
Standing Order V
Line 1, after ("that") insert ("unless otherwise ordered by the House").—(The Lord Chancellor.)
On Question, Motion agreed to.

Football (Offences and Disorder) Bill
Read a third time, and passed.

Access to Justice Bill [H.L.]
3.24 p.m.
The Lord Chancellor: My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Lord Chancellor.)
On Question, Motion agreed to.

Access to Justice Bill [H.L.]
  COMMONS AMENDMENTS IN LIEU OF AMENDMENTS TO WHICH THE LORDS HAVE DISAGREED AND A COMMONS AMENDMENT IN LIEU OF AN AMENDMENT MADE BY THE LORDS TO A COMMONS AMENDMENT TO WHICH THE COMMONS HAVE DISAGREED
  [The page and line refer to Bill 67 as first printed for the Commons]

  COMMONS AMENDMENTS
  27 Clause 14, page 11, line 18, after ("assistance,") insert—
  ("() itself providing advice or assistance,").
  28 Page 11, line 20, leave out (", except itself providing advice or assistance").
  29 Clause 15, page 11, line 18, after ("assistance,") insert—
  ("() itself providing representation,") HL Bill 87.
  30 Page 11, line 43, leave out (", except itself providing representation").
  The Commons do not insist on their Amendments Nos. 27 to 30 to which the Lords have disagreed but propose the following amendment in lieu thereof—
  30B Page 11, line 18, after ("assistance,") insert—
  ("() employing persons to provide advice or assistance,").
  The Lord Chancellor: My Lords, I beg to move that the House do not insist on their disagreement to Commons Amendments Nos. 27 to 30, and do agree with the Commons in their Amendment No. 30B in lieu thereof. With your Lordships' leave, I shall also speak to the remaining amendments in lieu, Commons Amendments Nos. 30C to 30F, and to Amendments Nos. 30BA and 30DA.
  The new Commons Amendments Nos. 30B to 30E would restore to the Bill powers for the legal services commission to employ salaried lawyers to provide advice, assistance and representation as part of the criminal defence service. In addition, Amendment No. 3OF would extend the scope of Clause 15(9) to provide that regulations about choice of representative could not require a person to select an employee of a body established and maintained by the commission. As it stands, Clause 15(9) only precludes regulations that require someone to select a representative employed directly by the commission. Your Lordships may recall that the Government intend to pilot two models for employing salaried defenders; direct employment by the legal services commission, and employment by separate not-for-profit bodies established and maintained by the commission for the purpose of providing criminal defence services. Amendment No. 30F will extend the principle of choice enshrined in Clause 15(9) to both situations.
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  The provisions in the Bill about salaried defenders have already been exhaustively debated. Despite some of the warnings we have heard in this House, these provisions would not create a US-style public defender system; they do not strike at the heart of our constitution or the rule of law; and I have the utmost confidence that they do not sound the death-knell of the criminal Bar, which—I confidently predict—will go from strength to strength. They are modest provisions to add a further item to the range of ways in which the legal services commission may secure criminal defence services.
  The other place, the democratically elected Chamber, has now twice restored to the Bill the powers for commission to employ salaried defenders directly. Some 75 Members of the other place have signed an Early-Day Motion in support of salaried defenders, including Labour Members and some Conservative and Liberal Democrat Members. I invite your Lordships to respect the views expressed in the other place by not rejecting these modest proposals for a third time.
  Salaried defenders are part of a package of reforms set out in this Bill that makes substantial changes to rights of audience and removes other restrictions on the provision of legal services that cannot be justified in the public interest. The Bill has established the principle that employed advocates should enjoy full rights of audience.
  Our reforms of legal aid and legal services will benefit the public and widen consumer choice; as I have already said, the other place is proposing an amendment to improve further the clause about the right to choose a representative in criminal cases. I have to submit to Your Lordships that it must ultimately be for the elected Chamber to decide what is in the interest of the public and of consumers, on any issue concerning restrictive practices, rights of audience and whether the state may expend public money on criminal defence services through salaried lawyers or be confined exclusively to lawyers in the private sector.
  I now come to the reasons why the Government see value in a power to employ salaried defenders and I will then deal briefly with the arguments against them put in particular by the noble Lord, Lord Thomas of Gresford, and others.
  Salaried defenders will give the public a wider choice of representative; they will provide the legal services commission with the means to assess the value for money of criminal defence services generally, and provide a competitive stimulus to lawyers in private practice; and they will increase the commission's flexibility in providing criminal defence services, in particular allowing it to fill any gaps in coverage there may be in remote areas.
  The noble Lord, Lord Goodhart, wishes to restrict salaried defenders to this last role alone. His Amendments Nos. 30BA and 30DA would allow salaried defenders to give advice and assistance or to represent clients only in areas too remote or insufficiently lucrative for the private provider to wish to provide a service. I have said on a number of occasions that salaried defenders will indeed give the commission the greater flexibility to provide access to

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  legal services in every part of the country. But I cannot accept these amendments because salaried defenders have more to offer than just filling in gaps in provision. They will help the legal services commission to determine whether it is obtaining value for money, a matter to which I shall return shortly; and they will give the public a wider choice. On the all-important issue of choice, the noble Lord, Lord Thomas of Gresford, said in our last debate:
  "I have no fear that the independent Bar would beat any public defender service if the accused person were given any choice. I have never been afraid of competition and neither has the Bar".—[Official Report, 14/7/99; col. 421.]
  He also described it as "ludicrous" that choice would be exercised in favour of the state defence service, although I have to remind him that more than 20 per cent of the clients of the Public Defence Solicitors' Office in Scotland are now using its services by choice. If no one would choose a salaried defender in preference to a member of the Bar in private practice, then surely the Bar has nothing to fear. The noble Lord says that choice will inevitably be removed. Heedless of my explanation that a salaried element in a mixed economy of criminal defence services will be built up gradually following a number of small pilots, he seems to have in his mind the concept of a vast bureaucracy, overstaffed and underemployed, pressing the Government to cast off the principle of client choice—a principle that permeates this Bill—in order to keep itself in business.
  I stress this point as plainly and clearly as I can. The Government intend to ensure, first, that defendants will be offered a choice of representative; and secondly, that that choice will lie between contracted firms in private practice and, perhaps, a local salaried defender's office.
  We have already announced that all franchise firms will receive a contract in the first round. After that, if they continue to meet quality standards and take part in the duty solicitors' scheme, I see no reason why they should not all win further contracts. The choice we intend to offer is enshrined on the face of the primary legislation in Clause 15(9). Clause 15(9) provides that regulations under Clause 15(8)—that is, regulations which limit defendants' choice of representative—may not require the defendant to choose an employee of the commission. As I have explained, the other place has proposed an amendment, Amendment No.30F, that will strengthen that subsection further.
  We shall discuss the provisions regarding choice in some greater detail when we come to the next group of amendments. But it may be helpful if I anticipate that and remind the House that, while we are seeking to promote the greatest possible continuity of representation, a person's choice of representative will not necessarily be irrevocable. Regulations under Clause 15(8)(e) will define circumstances in which a change of representative is justified. I say in particular to the noble Lord, Lord Thomas of Gresford, that those will include a genuine and well-founded loss of confidence or other breakdown in the lawyer-client relationship. Regulations under Clause 15(8)(d), dealing with the permitted number of representatives, will define the circumstances, including all jury trials, when a defendant
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  may choose a specialist advocate as a second representative. It would therefore be possible for someone who is represented by a salaried defender in the solicitor role to choose a barrister in private practice as advocate.
  As I explained on Report, the right to choose a second representative as advocate would apply even if the original representative, whether a salaried defender or a solicitor-advocate, had the necessary qualifications to appear as advocate himself or herself. I hope that those examples will convince your Lordships that the Government are committed to providing real choice.
  The noble Lord, Lord Kingsland, made a characteristically brief but pertinent contribution to our previous debate on this subject from the Opposition Front Bench. He saw no evidence of any need for salaried defenders; he could not understand how they would enhance competition and quality; and he feared that they would undermine the perception and perhaps the reality of criminal justice.
  On the question of evidence, I would refer him to the body of international research and opinion based on comparisons of different systems in other jurisdictions. I described those in our last debate and will not repeat the details now. However, the consensus is that a mixed system, combining private and salaried lawyers, can be the best and most cost-effective way of providing publicly-funded criminal defence services: better, that is, than either a wholly private system such as ours, or a comprehensive public defender system of the type found in some parts of the United States.
  The right to choose a representative, which I have already discussed, and the safeguards to protect the independence and integrity of salaried defenders, to which I shall return in a few moments, will, I submit, be more than adequate to preserve the perception and reality of justice.
  As for the questions of the noble Lord, Lord Kingsland, about competition and quality, salaried defenders will provide a competitive spur for private sector lawyers and a benchmark to assist the commission to secure value for money—that is, the best possible combination of quality and price. In our previous debate the noble Lord, Lord Hutchinson of Lullington, inferred from this argument the entertaining but mistaken image of a Treasury spy reporting on barristers who waste public money in court. It may help the House if I explain that point in a little more detail, since perhaps it has not been fully understood up to now.
  The legal services commission will be responsible for procuring high quality criminal defence services for people who need them. It will also have a duty of seeking the best possible value for money. It will do this, for the most part, by negotiating contracts with lawyers in private practice. The commission will be in a much stronger position to perform that function effectively if it provides some of the services itself. That will give it a clearer and more detailed understanding of what is involved in providing a quality service, how long it should take and how much it should cost. As a provider, the commission will be able to negotiate with more knowledge and authority than if it were solely a purchasing body.

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  I turn now to what I think are the two main underlying arguments against salaried defenders: that they are inevitably of poorer quality; and that they are inadequately independent and will collude with the prosecution.
  In the last analysis quality depends on adequate funding and proper training and support for the lawyers who provide the service. That is equally true whether the service providers are employed, contracted or working at prescribed rates or fees. The criminal defence service will be adequately funded and will have a career structure for its advocates which will ensure that they have regular and appropriate training and support. The Bill requires me to provide the funding that the legal services commission needs to fulfil its duty to provide the advice, assistance and representation required by suspects and defendants in the interests of justice.
  Next, I address the need for independence. I have said repeatedly in our debates that I do not accept that a lawyer's professional independence and judgment depend on whether his status is self-employed or employed. I shall not weary the House by rehearsing all the arguments again. But I point out that salaried defenders will not work for the Crown Prosecution Service; they will not even work for the Crown. They will work either for the legal services commission, which will be an independent, non-departmental body, or for bodies established by the commission.
  They will be employed as criminal defenders, and I have no doubt at all that, as such, they will dedicate themselves to defending their clients with the same professional skill and judgment, and the same independence, as would barristers or solicitors in private practice. There is simply no danger of collusion with the prosecution and perhaps less risk of an appearance or perception of collusion than where two barristers from the same chambers appear on opposite sides.
  All salaried defenders employed by the commission will be operationally independent of the rest of the commission. They will be organised in a separate unit or units and will not have responsibilities for any of the commission's other functions. They will report to a senior lawyer responsible for managing them in a way that respects and protects their professional integrity. I draw attention to this last point in particular in answer to the question posed last time by the noble Lord, Lord Wigoder. A barrister or judge concerned about the competence or behaviour of a salaried defender would be able to make informal representations to the senior criminal defender at the commission, just as he could, in practice, to the head of chambers of a colleague in private practice. In exactly the same way in the case of the Crown Prosecution Service, he could make representations to the Director of Public Prosecutions or the Attorney-General.
  Commons Amendments Nos. 30B and 30D are intended to give a slightly better flavour of the fact that salaried lawyers will be employed specifically as criminal defenders. Rather than saying that the commission may itself provide advice, assistance and
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  representation, the amended Bill would say that the commission could employ persons to provide these services.
  Lawyers in our country are rightly proud of their independence, but that independence flows from their membership of a profession and their obedience to the ethical rules which their profession enforces—not from the way in which they are paid. I believe that it is, to more than a little extent, offensive to the many thousands of employed lawyers to assert that the independence needed to advise and act for a client exists only among those in independent practice in the private sector.
  The role of your Lordships' House is, essentially, as a revising Chamber. Perhaps I may say that that role was played to a very high order in the passage of this Bill. The Bill is replete with improvements made either in your Lordships' House, or in the other place following suggestions first made here. The purpose and objectives clauses for the community legal service and criminal defence service draw heavily on the principles clause proposed by the noble and learned Lord. Lord Lloyd of Berwick. The report of the Select Committee on Delegated Powers and Deregulation led to the substantial package of government amendments to the powers of the Lord Chancellor to give directions to the legal services commission. These amendments achieved a better distinction between those substantive matters which should be subject to further approval procedures in this House and another place, and those matters of an administrative or budgetary nature. At Third Reading I stated:
  "I believe that the House is now broadly content that the parliamentary procedure attaching both to my powers and the legal services commission's funding code are appropriate".—[Official Report, 16/3/99; col. 690.]
  I take the opportunity to repeat that I believe that that is broadly so.
  The improvements did not stop there. Clause 16, the code for salaried defenders, was inspired by the noble and learned Lord, Lord Ackner. The new clause on litigation funding agreements owes its existence to the persistence of the noble Lord, Lord Goodhart. There are other improvements of substance and drafting by the score throughout the Bill, from Clause 1 about the membership of the legal services commission to the clause clarifying the independence of justices' clerks in Part V.
  At the outset of our debates in Committee (col. 487), I promised not to adopt the obdurate approach which we had seen in time past, where the Front Bench was unwilling to accept manifest improvements to Bills under consideration. I described that approach as destructive of the raison d'être of a revising chamber. I hope that I have been true to my word, and can claim some force in saying that this Bill, in its current state, is one in which this revising chamber can take some pride. I submit that to thwart the twice-expressed will of the elected chamber on the issue now before us would be contrary to the raison d'être of a revising chamber. It would bring discredit to this House on an issue where par excellence the will of the elected chamber really

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  should prevail. On the basis of those explanations and arguments, I commend to your Lordships the amendments.
  Moved, That the House do not insist on their disagreement to Commons Amendments Nos. 27 to 30, and do agree with the Commons in their Amendment No. 30B in lieu thereof.—(The Lord Chancellor.)

  AS AN AMENDMENT TO COMMONS AMENDMENT NO. 30B
  30BA Line 2, at end insert ("in areas where appropriate advice or assistance is not reasonably available from other sources").
  3.45 p.m.
  Lord Thomas of Gresford: My Lords, I beg to move, as an amendment to Commons Amendment No. 30B, Amendment No. 30BA. I give great credit to the noble and learned Lord the Lord Chancellor for the changes he has made to the Bill, either here or in another place, as a result of suggestions put forward by my noble friend Lord Goodhart and others. He has approached the Bill in a constructive way. I hope that he will not mind my saying that I have to cavil that he does not go quite far enough.
  Mr Keith Vaz, the Minister in another place, sought to question the motives of those who spoke and those who voted in this House to delete from the Bill the provisions which set up a state criminal defence service. He said that our purpose was, in effect, to protect the vested interests of the established profession by preventing choice. I have also heard it said in this House on a number of occasions that we are upholding restrictive practices. I have to say, with the greatest respect, that "restrictive practices" and "vested interest" is the wishy-washy language of consumerism which ignores the historical reasons for an independent Bar.
  The noble and learned Lord the Lord Chancellor said that the purpose of the state criminal defence service is to widen consumer choice. That phrase, when used, seems to overlook the fact that the consumer in the field of criminal law and practice is not somebody who is choosing between two different makes of motor car or two different sorts of television sets which may be the subject of a Which? report; he is a person facing a serious threat to his reputation and liberty.
  Part of the struggle of the people of this country for freedom and democracy involved a fight to ensure that there were judges who were independent of the executive and that there were advocates who appeared in the courts of this country who put the interests of their clients above the interests of the people in power.
  The recitals to the Bill of Rights 1688, for example, complain of partial, corrupt and unqualified persons serving on juries in trials, of excessive fines and of illegal and cruel punishments. That was a reaction to men such as Judge Jeffreys who was a venal attorney-general as an advocate, later a corrupt and cruel judge, and a servant of the Stuart Crown and not of justice and the people. I mention him as an outstanding example from history, and also because I was born in a
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  house built in the parkland of his old mansion at Acton, Wrexham. I hope that not too much has rubbed off on me.
  The Crown Prosecution Service is to be even more firmly in the hands of the state, because the Bill opens up all the courts to it. The state defence service is proposed in the name of wider choice. The accused currently has a wide choice of solicitors to represent him in his area. Through them, particularly in serious trials, he has access to the best advocates in the country.
  The Government argue that state employees in a state defender service will act with the same independence as the rest of the legal profession because the statute says so in its code of conduct in Section 16. They argue that judges are paid by the state and they are incorruptible, so why should state defenders be different? We are reaching the stage when the state will be prosecuting, defending and paying for the judge. The only truly independent and impartial element of the criminal justice system in our higher courts will be the jury. It will not be many months before we are faced with legislation to limit the cases in which jury trial will be permitted.
  The argument against the state defender system is not fuelled by vested interests. I was grateful to the noble and learned Lord the Lord Chancellor for repeating what I said on Third Reading. If choice is maintained between a state nationalised defence service and independent solicitors and banisters, there is no contest. Time and again we have been told that in Scotland, where a pilot project is running, 20 per cent of defendants choose the state defender service. The only light to be thrown on those figures came from Baroness Kennedy of The Shaws from the Government Benches. She said that it depended on the sign of the zodiac that a person was born under. Those born in January and February were assigned the state defender service and those born later in the year were entitled to an independent solicitor and barrister. I do not accept the arguments about free choice and the figure of 20 per cent in Scotland.
  The standards of service to the consumer—the person who faces a threat to his liberty—are currently protected by the highly competitive nature of the independent Bar and the contract system introduced by the Bill. The legal services commission will insist on higher standards from those who are contracted to provide criminal defence work at the independent Bar. The court is currently protected by the strict disciplines of the legal profession, particularly the Bar, the chambers and the professional bodies. We are concerned to maintain the balance between the state, which prosecutes, and the individual who is charged.
  The Government ask how we dare suggest that those attracted to the state defender service would be of an inferior quality. Those of us from all quarters of the House with practical knowledge of the functioning of the Bar and the solicitors' profession in criminal law realise that a state defender service will not attract the highest calibre of candidate. There are not glittering prizes in the state defender's office. The Lord Chancellor referred to my suggestion that the creation of a state defender service nationwide would result in a

  1301
  vast bureaucracy. The Crown Prosecution Service certainly has. I do not see how a state defender service could operate a little bit here and a little bit there, but not over large tracts of the country. Of course there will have to be a structure, of course it will be expensive and of course there will be a head of the service and various levels of management beneath that. There will be a bureaucracy.
  Our position is not extreme. It is shared by the criminal practitioners in the House from all parties who have spoken, including some on the Government Benches. It is also shared by Mr Denzil Davies in another place. Our position is irreconcilable with that of the Lord Chancellor.
  However, it would be churlish of me not to recognise the force of what the noble and learned Lord later said about the change in regulations concerning the right of a defendant to change his lawyer if he loses confidence in him. That has not been said before and I am grateful to the noble and learned Lord for making it clear that regulations will cover that.
  I appreciate the constitutional questions that have been raised, but the principle of an independent Bar and independent solicitors acting for the accused when prosecuted by the state is fundamental. It is a freedom that has been long fought for and gained. It has nothing to do with fashionable consumerist ideas.
  Moved, as an amendment to Commons Amendment No.:30B. Amendment No. 30BA—(Lord Thomas of Gresford)
  Lord Campbell of Alloway: My Lords, I have two questions for the Lord Chancellor about the regulations. First, when the accused seeks to have a second defender, who decides whether that request should be granted? I hope that it is a magistrate, who is outside the set-up. Secondly, if that request is granted does the second defender have the conduct of the case?
  The Lord Chancellor: My Lords, the answer to the first question is that I am fairly confident that it is a judge. The answer to the second question is yes.
  4 p.m.
  Lord Kingsland: My Lords, I fear that I may lay myself open to the charge of dissembling if I venture to compliment the noble and learned Lord the Lord Chancellor on his opening remarks. They were the most dispassionate and constructive that I have yet heard him utter on the subject.
  I remain, however, fearful of the idea of a state-employed representative defending the accused in a criminal case. I find that repugnant in principle. It is even more repugnant if both prosecutor and defender are employed by the state.
  I recognise that, in his amendments, the noble and learned Lord has sought to allay the fears of those who share my view by seeking to separate the criminal defence representation service from the criminal defence service itself, making it a self-standing body. That is a constructive proposal.
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  We are not seeking to question the integrity or professionalism of criminal lawyers employed by the state. However, we believe that duty to one's employer and duty to the court are irreconcilable. The noble and learned Lord supports the amendments from another place modifying this situation, and that means some progress has been made.
  However, I am less happy about the noble and learned Lord's remarks both with regard to the question of need and with regard to the question of competition. I cart find no evidence in our country of the need for a state criminal defence service; nor has the noble and learned Lord sought to lay any evidence of need before your Lordships' House. With the addition of the solicitors' profession, which is to have full rights of audience in the Crown Court, the case for need is weakened rather than strengthened.
  In relation to competition, I must first thank the noble and learned Lord for explaining the amendment which came from another place, making it absolutely clear that the criminal accused will be able to choose, in all circumstances, between a state employed defender where available, on the one hand, and a private sector barrister on the other. That is reassuring and welcome, and I thank him for it.
  However, in relation to the criminal accused who is on legal aid, the fact that he chooses between a state employee on the one hand and a private self-employed barrister on the other who is in receipt of legal aid funds is irrelevant from a competition point of view. All the accused is concerned with is choosing the best man or woman to represent him in court. So what is the relevance of competition to that?
  Surely it lies elsewhere. Surely the importance of competition to which the Lord Chancellor refers covers the cost to the state of employing a defender who is employed by the state, as against the cost to the state of employing a private sector lawyer who is the beneficiary of moneys which come from the new contracting process which will flow from this Bill.
  But is that competition as we understand the term in a market economy? Market prices play no role in pricing either service. The cost of the state employee is determined by the Lord Chancellor's Department. Equally, the cost of a private sector lawyer will be determined by a process of contractual bargaining between the Lord Chancellor's Department and a particular firm of solicitors—a negotiation in which the Lord Chancellor's Department is a monopoly provider of funds.
  Where is the competition? The fact is that the stale is in control in both cases. It will not be the forces of competition which determine the future role that the criminal defence service will play; it will be the forces of politics which lodge in the noble and learned Lord's department.
  Having delivered myself of what is likely to be, in the noble and learned Lord the Lord Chancellor's opinion, a long speech, I now come to my closing remarks. Of course I entirely accept the constitutional position as set out by the noble and learned Lord the Lord Chancellor. Noble Lords have had the opportunity to amend this Bill

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  at Committee stage, Report stage and at Third Reading. The Bill went to another place. Your Lordships' amendments were reversed. It came back and your Lordships sent it back again. It is now back in your Lordships' House. There is no question that, in terms of political legitimacy, another place is in a stronger position than your Lordships' House.
  I regret the fact that another place chose to support amendments which in some respects undermine the constitutional position of the criminal accused. However, it is now your Lordships' constitutional duty, I submit, to accept that position; to take the noble and learned Lord the Lord Chancellor at his word; to accept that he has great confidence in what he has done and to leave matters to move to their obvious conclusion.
  Lord Ackner: My Lords, in the words normally associated with a dying declaration, I have a settled, hopeless expectation that the Government will inevitably get their way. But I should like to record my personal dismay at the Government's dismantling of our system for the administration of justice as we know it.
  There is no demand; there is no need for a state criminal defence system. Why therefore is it being foisted upon us? The answer, I fear, is not a surprising one. It is because the Treasury wants it, and the Treasury wants it, in the words of my noble and learned friend the Lord Chancellor, because it provides a means to assess whether value for money is being achieved. What goes into "value for money"? Where does justice feature in that concept? I fear it features very little.
  The idea behind the Commons amendment is to establish that a state system is cheaper—that is what "value for money" in the Treasury approach means. If it is cheaper, what will happen? There will be no justification in that situation for the state criminal defence service existing alongside the private service. It will be the means of dealing with legal aid.
  I referred to the "dismantling" of our system. Perhaps I may refer to the same process in regard to the Crown Prosecution Service. That is being imposed not out of a theoretical desire to give rights of audience to lawyers who are employed—there is no need for that; there is no demand—it is again to see whether it can be established that the employed lawyer, under the employed system, can provide better value for money, which merely means the Treasury concept of it being cheaper. If it is, there will not be any exception to the CPS doing all the prosecution work; and it is not only the CPS; it is also the government employed lawyers in their specialities; for example, Customs and Excise and the Revenue. The Treasury says it will be cheaper to employ them than to go outside.
  I come now to the rights of audience where the position is the same. My noble and learned friend the Lord Chancellor was at pains to point out that, despite solicitors in private practice for the past five years having had the unfettered right to appear in all the High Courts so long as they pass the simple requirements of the Law Society, only 1 per cent of solicitors in private practice availed themselves of that advantage. We were
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  provided with the explanation. First, they were not very good examinees. I do not blame them. Why should they be? They were not trained for advocacy, which is a specialist function. No doubt GPs would fare the same way if they were tested to be brain surgeons. Secondly, the solicitors found the work a disturbance to their methods for running their practices. It takes time to research a problem. It is cheaper to farm it out to the Bar.
  The listing system can be accommodated by the Bar, which can take the rough with the smooth, but with solicitors there was too much rough and too little smooth. The quantity of work available to them was too small. That is what the Lord Chancellor's own advisory committee discovered through two universities retained to do the research. That information does not feature anywhere except in a long article by Professor Zander. We would not have heard about it but for that article.
  Why should matters change? They should do so for two reasons. First, it has been made somewhat easier for the city solicitor who does not appear in the county court or police court to be allowed to qualify for advocacy rights. Much more to the point, advocacy will be forced upon the reluctant solicitor. The block contracts that will be the manner of retaining solicitors will be from start to finish and include advocacy. Of course a solicitor can contract out of the advocacy if he is so minded but that would cost him money—and block contracts will be highly competitive. It will not be a satisfactory financial situation if the solicitor contracts out. He will therefore avail himself of the audience rights.
  The rights of audience imposed that way will produce a cheaper system. Block contracts will turn out to be cheaper than a contract with solicitors to do their side of the work, with the engagement by solicitors of others in cases that the Bar now does in practice although it has no entitlement solely to do so. The rights of audience will be another dismantling of the profession designed to be cheaper.
  Your Lordships may say that all that is a bit far fetched, but I remind the House of the aetiology of the conditional fee, which was introduced by my noble and learned friend Lord Mackay of Clashfern when he was Lord Chancellor. He did not introduce it other than on the basis that regulations would fill in the details of what the arrangement would cost and so on. He told us in Committee that in Scotland the conditional fee was operative but there was no mark-up or increased fee for taking the risk. He thought that a moderate increase of 5 per cent was all that would be necessary. On that prospectus, power was given to enable the conditional fee system to exist which had hitherto been looked upon as contrary to public policy—largely over the conflict it raised between solicitor and his client.
  That prospectus was false because 5 per cent became 10 per cent. That was not good enough so 10 per cent became 20 per cent. That was not good enough so it was multiplied by five, contrary to the Lord Chancellor's own advisory committee, and turned into 100 per cent. The noble Lord, Lord Mishcon, with that shrewd insight for which he is well known—said, "You must not use the conditional fee to prejudice and cause delay. It must

  1305
  not be open to the authorities to say that this is a case where one could get a conditional fee system up and running and there should not be legal aid". That provision to safeguard legal aid was put in statutory form in the Courts and Legal Services Act 1990.
  What has happened with a change of government? It is not that the conditional fee has been to some extent modified but the conditional fee is essentially to do away with legal aid in all personal injury cases and others. That has been allowed by regulations or orders made by the Lord Chancellor—not by primary legislation—in the teeth of resistance by the Government to monitoring exactly what is happening. Risk evaluation was referred to by the one small investigation undertaken by a policy institute. Risk evaluation was rightly queried because in personal injury cases, it is common ground that the success rate is more than 90 per cent. The risk evaluation on the short test that was made showed that clients were being charged not 10 per cent or 20 per cent but close to 50 per cent. I wager that the majority of those cases did not come to trial, for the simple reason that they were observed at an early stage to be open and shut.
  If the Government are prepared to use conditional fees in the manner that I have suggested, that is the clearest possible demonstration that, given the fascination with achieving something cost-effective, the evaluation is likely to be made without a proper introduction and assessment of justice. That is not what the Treasury is good at. For those reasons, in the words of the classicist, 0 tempora 0 mores.
  4.19 p.m.
  Viscount Runciman of Doxford: My Lords, I rise to query one implication of what I understood the noble and learned Lord, Lord Ackner, to be saying. I have almost always found myself to be in agreement with him whenever I have heard his silver-tongued eloquence in the House on these matters in the past.
  My concern is the implication, which I hope he may be willing to disavow, that the quest for value for money is inherently misconceived because it is merely a euphemism for a loss of quality for the sake of cheapness. Anybody who has looked in detail, from outside and inside, at the criminal justice system will agree that in some significant areas it is seriously underfunded but that others—not least criminal defendants—do not get value for money in that the interests of justice and could be equally well served at less cost. To the extent that that is so, and to the extent that the noble and learned Lord the Lord Chancellor believes that the Government are introducing measures which will reduce cost without impairing standards, it seems to me that that is something which, in principle, all Members of this House ought to be willing to support.
  Amendment No. 30BA, as an amendment to Commons Amendment No. 30B, negatived.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  30C Clause 14, page 11, line 20, leave out (", except itself providing advice or assistance").
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 30C, to which I spoke when introducing Amendment No. 30B.
  Moved, That the House do agree with the Commons in their Amendment No. 30C.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  30D Clause 15, page 11, line 40, at end insert—
  ("() employing persons to provide representation,").
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 30D, to which I spoke when dealing with Amendment No. 30B.
  Moved, That the House do agree with the Commons in their Amendment No. 30D.—(The Lord Chancellor.)
  [Amendment No. 30DA, as an amendment to Commons Amendment No. 30D, not moved.]
  On Question, Motion agreed.

  COMMONS AMENDMENTS
  30E Clause 15, page 11. line 43, leave out (", except itself providing representation").
  30F Page 12, line 35, after ("Commission") insert ("or by a body established and maintained by the Commission").
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 30E and 30F en bloc, to which I spoke when dealing with Amendment No. 30B.
  Moved, That the House do agree with the Commons in their Amendments Nos. 30E and 30F.—(The Lord Chancellor.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  31 Clause 15, page 12, line 25, at end insert—
  ("() an individual who has been provided with advice or assistance funded by the Commission tinder section 14 is to be taken to have selected as his representative pursuant to that right the person who provided the advice or assistance,").
  31C Page 12, line 25, at end insert—
  ("(aa) an individual who has been provided with advice or assistance funded by the Commission under section 14 by a person whom he chose to provide it for him is to be taken to have selected that person as his representative pursuant to that right,").
  31D Page 12, line 35, at end insert—
  ("(9A) Regulations under subsection (8)(aa) may prescribe circumstances in which an individual is to be taken to have chosen a person to provide advice or assistance for him.").
  The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 31C and 31D en bloc, in lieu of Commons Amendment No. 31. When we last debated

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  this Bill, the noble Lord, Lord Thomas of Gresford, tabled a Motion that this House should disagree with the Commons in their Amendment No. 31. No doubt it was inadvertent, immediately after his group of then successful Motions about salaried defenders, that he moved the Motion without speaking to it. I do not know whether he would have pressed it if he had first heard the explanation of Amendment No. 31, which I subsequently gave to the House. I imagine that he is as surprised as the rest of us to find that this issue is still before us.
  These amendments relate to Clause 15, which establishes the duty of the commission to fund representation, sets out the means by which it may do so and provides powers to limit the extent to which the defendant may choose his or her representative.
  It is right that defendants should be able to choose their representative, not least to promote their confidence in the criminal justice system. Clause 15(7) enshrines this principle. However, a completely unrestricted choice would not be practicable nor desirable. Subsection (8) therefore contains powers to limit that choice.
  Amendment No. 31 sought to extend those powers in order to ensure, as far as possible, that a person was represented by the same lawyer throughout the case. One of the fundamental weaknesses of the present criminal legal aid system is its fragmentation. This can lead to help being given under several different parts of the scheme in a single case: green form advice, advice and assistance at the police station, advice from the duty solicitor at the magistrates' court and a full legal aid order for representation in court. That produces duplication and delay as well as unnecessary cost.
  Amendment No. 31C, like Amendment No. 31 before it, is central to our plans to eliminate these deficiencies in the future. It is a power to make regulations providing that an individual should stay throughout the case with the lawyer he first chooses unless there is a good reason to change. Once an individual has chosen an adviser, typically when being questioned by the police, the taxpayer should only have to pay for another lawyer to take over the case, necessarily repeating a good deal of the work that has already been done, if there is a good, sound reason for a change. An example would be a conflict of interest between clients.
  Perhaps I may explain how we envisage the system working in practice. A person being questioned by the police will be able to select his or her adviser from any firm holding a contract with the legal services commission, or, perhaps, a salaried defender. Suspects would be shown a list of all firms based in the area and be informed of the implication of their choice. If the chosen adviser were not available, the individual would use the duty solicitor for the time being. But the duty solicitor would not be considered to have been selected, as a preference had been expressed for someone else. If an individual declines to express a preference, he will be advised by the duty solicitor and deemed to have selected the duty solicitor as his representative.
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  Amendment No. 31C reinstates the power provided by Amendment No. 31, but in a way that makes clear that it is only intended to apply to a chosen adviser. The power provided by Amendment No. 31 could have been applied to any provider of advice and assistance; it did not distinguish between those who had been chosen by the suspect and those providing advice only because the chosen adviser was not available. The intention was for the regulations to make clear that a person advised by the duty solicitor would not be deemed to have chosen the duty solicitor as representative if a different choice had been expressed.
  Amendment No. 31C is a more limited power that applies only to chosen advisers. Amendment No. 31D provides power to define what constitutes a choice. This is necessary to deal with the situation of an individual who declines to express any preference. The regulations would provide that someone who remained silent, having been informed of his right to make a choice and the implications of not doing so, would be deemed to have chosen the duty solicitor who actually advised him. This is necessary to prevent people playing the system by refusing to express a preference, accepting the advice of the duty solicitor, and then seeking to exercise their right to choose a different representative when the case reaches court, probably causing the case to be adjourned.
  I have said repeatedly during the passage of the Bill that the public will receive quality-assured services. People requiring criminal defence services will benefit from performance standards that will be incorporated in all contracts. These will apply equally to salaried defenders. They will include targets for the proportion of requests to attend at a police station, having been selected by the individual, which are met by the solicitor's firm or the offices of the salaried defender. All firms with criminal defence service contracts and any salaried defenders will take part in the duty solicitor's rota. Therefore, there is no reason to suppose that advice and representation from the duty solicitor in any sense constitutes a second-class service.
  Perhaps I may add that we intend to consult on the details of all the regulations under Clause 15, including regulations about continuity between advice and representation under these amendments, as well as the details of the regulations that I mentioned when dealing with the previous group of amendments under Clause 15(8)(d) and (e). Regulations under Clause 15(8)(e) will define circumstances in which a change of representative is justified such as a conflict of interest between clients or a genuine and well founded loss of confidence or other breakdown in the lawyer/client relationship. Regulations under Clause 15(8)(d), dealing with the permitted number of representatives, will define the circumstances, including all jury trials, when a defendant may choose a specialist advocate as a second representative.
  Moved, That the House do agree with the Commons in their Amendments Nos. 31 C and 31 D in lieu of Commons Amendment No. 31.—(The Lord Chancellor.)
  4.30 p.m.
  Lord Thomas of Gresford: My Lords, my inadvertence on the previous occasion, for which I must apologise to the House, has had the benefit of clarifying and extending this clause and of introducing a degree of flexibility which it did not previously have. What concerned me was that a person who chose a lawyer under the clause as it was previously drafted was then fixed with that lawyer whether he maintained confidence in him or whether conflicts of interest had arisen. I am most grateful to the noble and learned Lord the Lord Chancellor for accepting the points which have been made to him on this matter. I have no opposition to the amendment that is put forward.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  56 Clause 29, page 19, line 14. at end insert—
  ("(5) If a conditional fee agreement is an agreement to which section 57 of the Solicitors Act 1974 (non-contentious business agreements between solicitor and client) applies, subsection (1) shall not make it unenforceable.").

  LORDS AMENDMENT
  56B Line 4, after ("applies") insert (-or is an agreement which is enforceable at common law")
  The Commons disagreed to Lords Amendment No. 56B to Commons Amendment No. 56 but proposed the following amendment in lieu thereof—
  56C Page 19. line 17, after ("proceedings") insert ("apart from proceedings under section 82 of the Environmental Protection Act 1990").
  The Lord Chancellor: My Lords, I beg to move that the House do not insist on their Amendment No. 56B to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 56C in lieu thereof.
  In bringing Amendment No. 56C before your Lordships' House the Government are fulfilling an undertaking given on the previous occasion on which this House considered this Bill. At that time we had before us Amendment No. 56B, which was moved by the noble Lord, Lord Goodhart. On that occasion I said that the effect of Amendment No. 56B would have been to broaden the effect of Amendment No. 56 so that it excluded from the scope of this legislation not only non-contentious business agreements, but any form of fee agreement enforceable at common law, typically conditional fee agreements with no uplift—often known as Thai Trading agreements—and gave reasons, which I will not now repeat, as to why that would be undesirable.
  However, the noble Lord, Lord Goodhart, made it absolutely clear that all he was trying to achieve was to preserve the position of solicitors entering into Thai Trading agreements in respect of proceedings under Section 82 of the Environmental Protection Act 1990. If I may say so, this is another area of this Bill where the Government have both listened and responded positively. Section 82 allows people aggrieved by a statutory nuisance, for example inadequate housing, to seek an order for that nuisance to be put right. These cases are heard in a magistrates' court and are
  1310
  technically criminal cases, although they are in substance brought to enforce a civil right. Conditional fee agreements are not permitted in criminal cases under the existing legislation, and that position is maintained by the Bill. But as a result, the effect of bringing Thai Trading agreements into the scope of the legislation so as to be able to regulate them in the consumer interest was to outlaw them in these Section 82 proceedings.
  I said that after careful consideration the Government accepted that in this area an exception should be made to the general bar on using a conditional fee agreement in a criminal case. As I say, essentially these cases are about enforcing civil rights; and many of them are about the right to a decent standard of housing, an issue to which the Government attach a very high priority as part of their drive to combat social exclusion. I therefore suggested a somewhat unusual—perhaps completely unprecedented—course, which caused a little merriment around your Lordships' House but none the less, or perhaps because of that, found favour with your Lordships. I proposed that this House accept Amendment No. 56B, warts and all, for tactical purposes in order to make it possible to bring forward in another place an alternative amendment which dealt squarely with an exemption for the Environmental Protection Act. This is what Amendment No. 56C does. It amends Section 58A of the Courts and Legal Services Act 1990 so that proceedings under Section 82 of the Environmental Protection Act are exempted from the ban on the use of conditional fees in criminal cases.
  I trust that Amendment No. 58C will meet with your Lordships' approval, and I would like to put on record my gratitude to the noble Lord, Lord Goodhart, for giving us the opportunity to make this useful amendment.
  Moved, That the House do not insist on their Amendment No. 56B to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 56C in lieu thereof.—(The Lord Chancellor.)
  Lord Goodhart: My Lords, Amendment No. 56C, in our view, brings in a small but distinct improvement to this Bill. In that respect it is the last of many improvements to the Bill which have been made both in your Lordships' House and in another place. I join with my noble friend Lord Thomas of Gresford in paying a tribute—it is certainly a genuine tribute—to the Government and to the noble and learned Lord the Lord Chancellor in particular for their willingness to listen to the arguments to make improvements to this Bill, some of which have been very much more important than this amendment.
  I have to say that we are left with a number of serious concerns. One of those was aired in the debate earlier this afternoon; others have been discussed at length at earlier stages of this Bill. As Amendment No. 56C is certainly in our view an improvement to the Bill, all I need to say at this stage is that we are happy to welcome it.
  On Question, Motion agreed to.

Youth Justice and Criminal Evidence Bill [H.L.]
4.37 p.m.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Youth Justice and Criminal Evidence Bill [H.L.]
  COMMONS AMENDMENTS
  [The page and line refer to Bill 74 as first printed for the Commons]
  COMMONS AMENDMENT
  1 Clause 1, page 1, line 21, leave out ("may order the offender") and insert ("shall sentence the offender for the offence by ordering him").

  MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT No. 1.
  1A That the House do disagree with the Commons in their Amendment No. 1.
  Lord Windlesham: My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 1. I shall speak also to Amendment No. 2 which deals with the same point.
  Let me rehearse briefly the background to these amendments. Earlier in the Session, at Third Reading the House made a small but significant change in the wording of the opening clause of the Bill. The purpose of that clause is to enable a youth court or other magistrates' court to refer certain categories of young offender under the age of 18 to youth offender panels. The new power is not intended to be available where an offence is one for which the sentence is fixed by law, nor where the court is proposing to impose a custodial sentence, or to make a hospital order, or is proposing to make an absolute discharge.
  Moreover, to be eligible for referral the young person before the court needs to have pleaded guilty, and never to have been previously convicted of a criminal offence, nor bound over to keep the peace or be of good behaviour. I wish to stress that none of these requirements is affected in any way by the amendment.
  It has been made clear that the policy objective of the legislation is one that we can all accept; that is, to prevent reoffending by as many young people as possible who are appearing in court for the first time. Rather than attending the court in a detached, resentful, and often uncomprehending manner, the aim is to divert young first offenders away from the procedural formalities inherent in the penal system. Instead, they will be referred to youth offender panels designed to help young people to understand the effects of their actions on the victims and on a wider community.
  The ideals of reparation and taking personal responsibility are far from new. But now, under the general rubric of restorative justice, it is a concept whose hour has come. The proposed referrals
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  complement the provisions of the Crime and Disorder Act 1998 and form part of what we should acknowledge as a carefully thought-out series of policies designed to combat the widespread harm done by youth offending. All of that is common ground and is welcome.
  The only aspect which divided the House on Third Reading was whether the referral orders should be mandatory, provided that certain conditions were met, or the sentencing court should have discretion whether or not to make such an order, taking account of all the circumstances of the actual case once the facts had been established. After a full debate the House agreed, albeit by a narrow majority of four, on a vote in which 293 Peers took part, to an amendment moved by myself and supported by four leading counsel—the noble Lords, Lord Carlisle of Bucklow, Lord Renton, Lord Campbell of Alloway and Lord Thomas of Gresford, from the Liberal Democrat Front Bench. All, save the noble Lord. Lord Carlisle of Bucklow, are present in the Chamber this afternoon, and all have experience of sentencing as Recorders in the Crown Court.
  The effect of the amendment was to leave the making of a referral order within the discretion of the court. Other notable speeches in support were made from the Cross Benches by the noble and learned Lord, Lord Lane, former Lord Chief Justice of England, and by the noble Viscount, Lord Runciman, Chairman of the Royal Commission on Criminal Justice.
  The debate continued in the House of Commons and covered much of the same ground. It was the subject of a full-day session in Standing Committee and later occupied some two hours of debate on the Floor of the House on Report. On each occasion Ministers declined to make any concession to meet the objections of principle that had been raised towards mandatory sentencing, and the Lords' amendment was reversed on a Division in Standing Committee.
  Earlier this month, on 8th July, some carefully drafted alternative wording was proposed from the Opposition Benches for Clause 1. But that, too, was rejected in another place, once again on a Division at the Report stage. In the course of that debate the Home Secretary declared that he accepted the case for flexibility. But his speech concentrated on the way in which referral orders are to be drawn up in the form of a contract with the offender.
  These details will be important, especially as it is intended that the duration of the order may vary between three to 12 months, with the actual term being specified by the sentencing court. The noble Lord. Lord Williams of Mostyn, may recall that he used the same example in his unsuccessful attempt to head off defeat the last time we debated this matter.
  The Home Secretary took the reasoning further when he replied to the debate on Report in another place. He pointed out that if what he referred to as "unanticipated inflexibilities" should arise, the Secretary of State would have power under Clause 2(3) of the Bill to make such amendments by regulation as he considered necessary to vary the descriptions of the offenders to whom the compulsory or discretionary referral conditions should apply.

  1313
  But varying the conditions does not go to the heart of this dispute. Whatever criteria are adopted to describe the categories eligible to be referred to youth offender panels, and however carefully constructed the contract that is drawn up by the panel for each individual young person, the reality remains that the court must—not "may"—make a referral order when sentencing any offender to whom the Act applies. This is the central feature of the procedure which remains objectionable for the reasons that have already been comprehensively rehearsed in both Houses.
  As the Bill stands, the first two clauses attempt to define the sort of person it is envisaged should be subject to the new order. The objection is that sentencing in a just society is not, or should not be, directed towards categories of people at all. Once guilt has been established, the court should treat each offender as an individual and decide on the penalty appropriate to the harm done and other relevant factors. Treating people before the courts by category inevitably produces hard cases at the margin.
  I submit that we should heed the warning of the noble and learned Lord, Lord Lane, with his great experience of sentencing over a long period of time. In the previous debate he said:
  "the sad fact is that the mandatory sentence or mandatory disposal order will inevitably he a potential miscarriage of justice".—[Official Report, 23/3/99; col. 1159]
  I beg to move.
  Moved, That the House do disagree with the Commons in their Amendment No. 1.—(Lord Windlesham.)
  The Earl of Mar and Kellie: My Lords, I hope that I am allowed to comment at this time. I am concerned about the wording of the Commons amendment; it somewhat blows a hole in the definition of the difference between a sentence and an order with which I grew up. As a social worker in the criminal justice field, I learnt that the difference was that if one was sentenced, that was the end of it; if one was placed on an order. one had to complete a programme. If the programme was not satisfactorily completed, one could be referred back to the court and another punishment imposed. The Commons amendment seems to do away with that definition. Clearly someone who has been placed on a referral order can, under Clause 13, be referred back. Therefore, I make the simple point that if the Commons amendment is included in the Bill, the definition that we have grown up with will no longer be valid.
  Lord Renton: My Lords, my noble friend Lord Windlesham has put forward the case fully and with great clarity, so one can be brief. Those of us who have had judicial experience know that mandatory sentences and even mandatory probation orders—anything mandatory—fetters the discretion and should be avoided especially when dealing with young first offenders where the circumstances can be very unusual and not necessarily warrant any kind of mandatory sentence.
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  In case they are wrong I suppose that the Government are relying on Clause 2(3) which enables the Secretary of State to put the matter right and alter the provisions as regards mandatory sentences in Clause 1 by making a regulation. That is a sign of weakness. Bearing in mind the vast experience already obtained in the courts, it is far better that we avoid mandatory sentences and enable the courts, with all the facts before them. including the personality of the accused, to do the right thing. Under the Bill as it stands, a number of injustices occur and that is unfortunate. It would not be worth waiting for a regulation.
  In any event, as I have said on previous occasions. it is far better that the Government should get the primary legislation right first time instead of using the power to fall back on regulations which neither House would have power to amend. Therefore, I strongly hope that what my noble friend Lord Windlesham said will be accepted by the noble Lord, Lord Williams of Mostyn. I remember very well the answer he gave at Report stage. I very often agree with him on legal matters. On this occasion I hope that he will realise that it would be unwise for the Government to fetter the courts in the way that the House of Commons was advised to do and to which he was then a party. One of the signs of greatness in our parliamentary system is the ability of Ministers to change their minds. I hope that on this occasion the noble Lord will believe it right to do so.
  Lord Campbell of Alloway: My Lords, as I have supported this amendment with my noble friend Lord Windlesham on more than one occasion, I compliment him on the way he presented it today. There is very little more one can add. I know that the noble Lord, Lord Williams of Mostyn, understands the argument. We agreed long ago that he could not change his attitude towards it so that the matter should he put to the House. The argument is simply put. There should be some flexibility to avoid injustice, which must occur from time to time if one has a mandatory regime.
  As I understand it, the issue brings to light a misconception perhaps on the part of the Home Secretary that inflexibility can be cured by Clause 2(3). I believe that the noble Lord, Lord Williams of Mostyn, will agree that it cannot. It relates to the referral conditions in Clause 2. We are essentially concerned with Clause 1. So we are landed with what is a mandatory regime.
  As this matter has been to another place, I do not believe that it will be possible for the noble Lord, Lord Williams of Mostyn, to change tack. I wish that he could and would. I can well understand that he cannot and he will not. As a parting shot over the bows, one can say, as Sir Nicholas Lye11 said in another place when my noble friend's amendment was rejected, it was a constructive amendment to an otherwise thoroughly sensible proposal. That echoes the way in which those who support the amendment put it forward. This matter has been fully debated in your Lordships' House in which the Opposition command no overall majority and in another place where the Government command a massive overall majority. The argument was narrowly

  1315
  won in fair debate in your Lordships' House, according to the Official Report. However, the amendment was rejected in the other place by 296 votes to 118.
  I speak only for myself, as usual, but it would seem ridiculous to jeopardise a good Bill by insisting on the amendment today. But it leaves a slight on the magistracy. It calls into question their experience, dedication and general competence. If the matter were put to a vote, I would abstain. Your Lordships have done a great service through this amendment and in supporting my noble friend Lord Windlesham today. In the course of time and in the light of experience, the Home Secretary may wish to recognise that.
  Baroness Carnegy of Lour: My Lords, on this occasion, as when your Lordships last discussed this issue, I disagree with my noble friend Lord Windlesham and other noble Lords and agree with the Government in their approach to this amendment.
  In my view, the Government are not in any way casting a slight on magistrates, as my noble friend has just suggested. They are trying to widen the procedures we use beyond the present system. I believe that as the system develops, magistrates would understand that very well. Whether the new system will work, we do not know. That will be proved only over a period of time by trying it out. However, we do know that despite the best efforts of caring and experienced magistrates, who put everything they have into making judgments, the present system does not work as well as anyone would like, and far too many young people reoffend. Surely it is well worth trying a different approach.
  The Government know that many young offenders continue to have what is the awesome experience of appearing in court. However, they will then have the very different experience of appearing before a panel. The panel will require a great deal of them and will involve such young people in committing themselves. If they fail in what they undertake, they will then return to the court.
  My noble friends have explained that they are happy with the panel procedure itself but feel that the magistrates should have it simply as an option among other sentencing procedures. For most offences I would agree with that. Magistrates are the people on the spot. They have experience and skill and they should decide in their different jurisdictions. I have taken part in that procedure, and I have carried out a great deal of youth work. I know that while sometimes it does work, too often it does not.
  However, we must look at this matter from the point of view of young people themselves. When they talk over with their friends what happens when one is caught for the first time, the change, if the magistrate is to decide what happens, will not be great. Young people will know that another possible sentence will be added to the existing possibilities they will face. For the scheme to work, young people will need to see certainty in it—the certainty of appearing in court and then, for most of them, before a panel. The panel will have a list of unattractive elements to which those young people
  1316
  will have to agree and stick over a period of time. The news will soon get out among young people likely to offend as to what happens when one appears before the panel and if one fails to do what one has agreed to do. One will go back to court and even worse will follow.
  Whether it is left to the magistrates to choose the panel most of the time, one cannot tell. One simply does not know. However, what is important is that young people should know that the automatic procedure for most people will be to appear in the court, then face the panel and agree to all the elements set down by it. If they do not succeed, such young people will have to go back to the court. I do not call that mandatory sentencing. It is an extension of the possibilities for dealing with young people. I am sorry that great lawyers are so conservative that they cannot see this measure from the point of view of young people. They cannot admit that the present system does not work and they are being difficult about it. I hope that on this occasion the Government will stick to their guns.
  5 p.m.
  Lord Renton: My Lords, before my noble friend sits down, does she realise that we are not trying to defend the present system? We are saying that the Government are not correcting the present system in a rational way.
  Lord Campbell of Alloway: My Lords, before my noble friend sits down, we are not trying to be difficult merely because she disagrees with us.
  Lord Dholakia: My Lords, I listened with great care to the noble Lord, Lord Windlesham. He brings to the debate his vast experience of the criminal justice system. I have always admired his work in this field but on this occasion I part company with him. I support very much the views expressed by the noble Baroness, Lady Carnegy of Lour.
  Noble Lords will recall that during the passage of the Youth Justice and Criminal Evidence Bill through your Lordships' House, I said that there was a need to introduce a little flexibility to the lower tariff of sentencing in the magistrates' courts. When at that time I spoke of flexibility, I sought not simply to restrict the provision to cases of absolute discharge. I was trying to ensure that people conditionally discharged were not referred to the youth offenders panel. The purpose of the amendment was to avoid, in almost all cases, the need for referral to the youth offenders panel. The amendment tabled by the noble Lord, Lord Windlesham, is designed to introduce a discretion in the process. I believe that discretion at the lower end of the sentencing process was, and perhaps is, appropriate. Unfortunately, that is not being offered today.
  As on previous occasions, I cannot support the total flexibility proposed by the noble Lord, Lord Windlesham. That would completely negate the primary aim of this imaginative new development by starving the new panels of referrals. I believe there is clarity in Clause 1. It clearly describes offences which do not require referral to the youth offenders panel:

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  sentences that are fixed by law, sentences where a custodial option or a hospital order is envisaged or where an absolute discharge is appropriate.
  There is considerable variation in sentencing in magistrates' courts. Some are more punitive than others, despite sentencing guidelines which have been recommended by the Magistrates' Association. Such variation often brings the sentencing process into disrepute. For example, a court in East Anglia may sentence a young person to a conditional discharge whereas a London court may give an absolute discharge for the same offence. The effect of that is striking. In one case the individual will be referred to the youth offenders panel, while in the other that would not be required. The weakness of the present provision lies in the way magistrates exercise sentencing discretion, thus allowing some to form part of a contract with the young offenders team while others are exempted under Clause 1 of the Bill. A law is a bad law if it does not treat individuals with equity when they commit the same or a similar offence.
  The Government should look seriously at these variations in practice. Of course I appreciate that there is no single yardstick by which one can establish a uniform method of working in the courts and so allow trivial cases to be dealt with without having to refer them to youth courts. A little leeway at the lower end of the sentencing tariff will allow the use of discretion and thus introduce a more balanced approach to sentencing. Furthermore, it will reduce the workload of the youth offenders team. We must accept that some offences do not require youngsters to enter into a contract. I shall watch carefully the working of that part of the Act, and, if appropriate, shall return with amendments to future criminal justice legislation.
  I accept that it is not the intention of the noble Lord, Lord Windlesham, to undermine the youth referral panels. However, there is a real risk that more magistrates than we care to imagine will dislike the idea of losing control of the disposal of young offenders to a panel, and may not use the referral process as envisaged in the Bill. If that were to happen, it would undermine the aim of Clause 1, which is to provide a more suitable form of sentencing for most young offenders who appear in court for the first time than could be provided in court.
  Let us remind ourselves again of what would be lost if the proposed youth panel system were to be jeopardised by magistrates choosing to keep most cases in the youth court. The panel would be better able fully to involve the young person and the parents in discussing the offence, its impact on the victim and the steps that should be taken to make amends and ensure that there was no repetition. In the formal proceedings of the youth court, young offenders and their parents often fail fully to understand what is happening. The legal procedures can hinder the process of young people and their parents speaking and contributing fully to the discussion. A contract could be drawn up to concentrate on the best course of action to prevent reoffending, including attention to the welfare needs of the young
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  person and his or her family; for example, family counselling, educational measures, and help to overcome drug abuse.
  Viscount Brentford: My Lords, I have found this a difficult question to which to return. However, I have been fully persuaded by my noble friend Lady Carnegy of Lour that the amendment proposed by my noble friend Lord Windlesham should not be accepted.
  Referral to a youth offender panel should be obligatory in the circumstances and situations set out in Clauses 1 and 2 because I fear that magistrates might be unwilling to use the new scheme to the full. As I have said previously, I am very keen on this new proposal. It has been in the pipeline for several years and, at last, we are placing it on the statute book. Every encouragement needs to be given for the referrals to be made.
  Magistrates do not always make the right decisions. I was in a police car earlier this year and watched a criminal event taking place. I recently heard that what I regarded as criminal behaviour was not so accepted by the magistrate and the person was let off. Therefore, I come down strongly on the side of acceptance of the Commons amendment, which I back, for the reasons more fully and eloquently explained by my noble friend Lady Carnegy.
  Viscount Runciman of Doxford: My Lords, I shall be brief. I was mainly in agreement with the noble Lord, Lord Windlesham. However, I wholly accept that there are arguments on both sides and I am sure we all support the objective of the legislation. I merely want to ask the Minister whether he will make clear what seems to be the strongest grounds on which the Government are insisting on maintaining their position; namely, not that they do not trust magistrates to do what they are there to do, but that in this particular instance the Minister is afraid that for some reason magistrates will be unwilling to use a power that has been placed in their hands precisely to meet the kind of cases in which we all agree that it should be used. It has not been clear to me in any of the previous discussions why it is the Minister's belief—which must be the case to be consistent with his position—that he does not think that magistrates will do what he feels the interests of justice require.
  Lord Cope of Berkeley: My Lords, the main issue is the simple one of the discretion of magistrates. We all support restorative justice and concur with the setting up of the new panels. We hope that they will he as successful as we all believe they may be. We should have preferred magistrates to preside over the panels and for the police always to be represented on them. However, we are not arguing about those matters today.
  The noble Earl, Lord Mar and Kellie, pointed out that the description in the amendments before the House has altered slightly, so as to make this an act of sentencing, which previously it was not. That seems to be a secondary order point or, if anything, lower in the hierarchy of points that might be made. Nevertheless, I welcome the change of wording. Being sent to a panel, which can result in a loss of freedom for the young

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  offender, or in that person having to pay money, will be seen by the young person as a sentence, and that is the correct description. The question that we are considering today is whether magistrates should be obliged to send young first offenders to the new panels in most cases, subject to the exceptions that have been set out. We should much prefer it to be an option for magistrates.
  There are two arguments in the opposite direction. The first is that some magistrates will not be happy with the idea of panels and will use any option that is given to them so as never to send young offenders in this category to the panels. Personally, I doubt that that will happen. My noble friend Lady Carnegy is right to say that we cannot be sure at this point whether the panels will do the job that we hope that they will do, or whether they will work as well as we hope in the form in which they are being set up. But if they do work, I believe that magistrates will be keen to send young offenders to them. They will not hold back from doing so if it is in the general interest that they should; namely, if it leads to less offending, particularly among youths—and we are all worried about the amount of youth crime and the way in which some youths move from small to larger crime. I do not believe that magistrates will in general hold back, provided that the process is seen to work. Of course there will be Benches of magistrates who will be keener on the idea from day one. If the process does not work very well, other magistrates will hold back from sending youths to the panel. But if the process works as we hope it will, magistrates will use it. That is one of the reasons why it is important to provide an option.
  The second argument is about sending a message to those who are likely to offend for the first time. I doubt whether the question of whether it is statutorily essential for magistrates to send young people to a youth panel or have an option to send them to the panel will be weighed in the balance with an first offender. I do not believe that appearing before a panel would be so much of a deterrent as would a conventional sentence. In any case, I do not believe that the nice point with which we are dealing will be weighed heavily in the balance.
  We on these Benches prefer this to remain an option in the way in which your Lordships changed this aspect of the Bill. This is not a party point. We support my noble friend Lord Windlesham.
  Lord Williams of Mostyn: My Lords, once more I am most grateful for the way in which the noble Lord, Lord Windlesham, introduced this matter with his usual courtesy, accuracy and lucidity, which makes my task much easier. He set out the store so plainly that there is nothing I need add about the consequences of the order.
  I have thought carefully about these matters. It is plain that there is a division of approach. Fundamentally, on all sides of the House everyone is agreed that the new referral order should be supported. Therefore, the question on which we disagree is what should be the triggering mechanism. The more I have reflected on what has been said the more I have concluded how lamentably little sentencers know in an area where they could know more. When one is at the point of sentence, the material available will necessarily
  1320
  be limited. That is not the fault of magistrates but a necessary consequence of the way that we sentence young people.
  It was said that a number of your Lordships who had spoken, from the former Lord Chief Justice down, for whom I have the greatest respect, had had great legal experience as sentencers. I agree. However, that body of past sentencing experience has not been enormously productive in the outcome experience of young first-time offenders who plead guilty. One needs to focus with great care on the component population of which we are speaking. We are concerned with young first-time offenders who have pleaded guilty. If we fail that component we know what will happen. Those young people will have arid and wasted lives, the prison population a few years later will rise and they will end up with unproductive, unhelped lives.
  The heart of the dispute has already been defined. The question is whether or not this target group should have referral orders in virtually every case. The exceptions have been properly described: custody; obligatory sentences in the circumstances described by the noble Lord, Lord Windlesham, or absolute discharge. In answer to the noble Lord, Lord Runciman, we want to ensure that every one of the target group I have defined is given the opportunity that attendance at a youth offender panel offers. We say that in those circumstances it should be virtually automatic.
  Very often the court system, particularly for young children who enter it for the first time, does not assist at all. The processes, structures, delays and procedures often militate against a young first time offender having the informed assistance and help that he or she wants. It is said that the magistrates have all the facts at their disposal when they come to pass sentence. In a deeper sense I do not believe that that is true. They are aware of the immediate circumstances of the offence, and they should retain responsibility in terms of proportionality in deciding whether custody or an absolute discharge should be imposed. As indicated earlier, they decide the length of the order.
  We believe that the present system denies sentencers the deeper understanding of the needs of children and young people. As a consequence, sentences have not been appropriate. Sometimes, the sentences have not been firm enough, not in the sense of being punitive but in the sense of giving directed assistance and support, which is the critical aspect of the new scheme. The referral order has built-in flexibility, as the noble Lord, Lord Dholakia, pointed out. It requires the offender to attend meetings and agree a programme of activity. Many of them have never had any structure to their lives at all. The terms of the contract can be infinitely flexible so that it is suited to different offenders and offences. We seek to take away the present limiting straitjacket from the sentencing process.
  It is interesting to see how views have crystallised. Everyone who has spoken has a deep involvement and interest in these matters, and there has been a virtually even—not in numerical terms—division in the way that we propose to proceed. The more I have thought about it the more certain I have become—not because we have

  1321
  said it once and, therefore, to say it three times makes it acceptable—that the views expressed by the noble Baroness, the noble Lord, Lord Dholakia, and the noble Viscount, Lord Brentford, among others, are right.
  There is one other minor point. It is always the one that is not of the greatest importance. I must remind the House that the amendment to Clause 1, which we agreed by a majority of four, was flawed in that the references to compulsory referral orders remain throughout Part I of the Bill. I simply put that to the House because it is my duty to do so. It does not bear on the validity of the argument. The more I have reflected on this matter the more I am convinced that the views expressed by the noble Lords I have mentioned are right.
  Lord Windlesham: My Lords, I am sure that the whole House is grateful to the noble Lord for the way he has worded his reply. I suggest that here we have an instance of good intentions, which are not denied and have been expressed articulately, that can have adverse consequences. The Minister spoke about the target group being young first-time offenders who plead guilty. He said that every one of that group should be given an opportunity to take part in youth offender panels where they would receive informed assistance and help. Does not the expression "given an opportunity" suggest an element of free choice? Yet, there is no free choice in this instance. On the contrary, there is an intentional element of compulsion.
  If we consider young first-time offenders who plead guilty, is it fanciful to believe that there could be pressure brought to bear to plead guilty when the circumstances of the actions that brought them before the court might not result in a criminal conviction? But the good-intentioned people who believe in the value of the panels have decided that those young people will be eligible only if they plead guilty. That will mean a conviction, and criminal record with which a young person must live for the rest of his or her life. That is a very serious matter.
  Conversely, the insistence on first offenders will make ineligible those who have previously been bound over for a lesser offence. Why can they, too, not benefit from referral to a panel? Because in attempting to define eligible persons by category they have been excluded. Consequently, human nature will continue to defy categorisation and definition in the way we see it set out in the first two clauses of the Bill.
  Contrary to what has been said by some speakers in the course of the debate, initially there were signs that the Government might be considering accepting the amendment tabled in this House. The Explanatory Notes that accompanied the Bill in the House of Commons stated that the drafting of Clauses 1 and 2 was under review. Yet that was not the response of the Home Secretary in moving the Second Reading in another place. He was the first speaker in the long drawn-out proceedings in the Commons. He stated bluntly that the Government would seek to reverse the Lords amendment which made referral discretionary rather than mandatory.
  1322
  There were lengthy exchanges in Standing Committee, and approximately two hours of debate when the Bill returned to the Floor of the House of Commons. But none of it counted for anything as the Home Secretary had already made clear that the Government intended to reverse the amendment.
  I remain convinced that this is a wrong turning of some significance in criminal policy. I accept that the issue divides opinion. Nowhere was the division more clearly demonstrated than on the Liberal Democrat Benches. On the previous occasion one of the sponsors of the amendment carried by the House was the Liberal Democrat Front Bench spokesman, but I shall embarrass him no further. As I do not intend to press the matter, he will not have to vote one way or the other.
  We have had a lengthy and valuable debate. It raises issues of principle. It is right that we should explore them again, as we have done today. However., I do not intend to press the motion. I beg leave to withdraw the motion.
  Motion, by leave, withdrawn.
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.
  On Question, Motion agreed to.
  5.30 p.m.

  COMMONS AMENDMENT
  2 Page 2, line 2, leave out ("order the offender") and insert ("sentence the offender for the offence by ordering him").
  [Amendment No. 2A not moved.]
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.
  Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Williams of Mostyn.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  3 Clause 7, page 7, line 15, at end insert—
  ("() Where the panel allow any such person as is mentioned in subsection (4)(a) ("the victim") to attend a meeting of the panel, the panel may allow the victim to be accompanied to the meeting by one person chosen by the victim with the agreement of the panel.").
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. Amendments Nos. 10, 23, 26 to 39 and 49 are grouped together because they are technical or minor drafting amendments. Amendment No. 3 makes it clear that a victim attending a panel meeting may be accompanied by a supporter. Amendment No. 10 is a minor drafting amendment to ensure that witnesses are able to use communication aids if the court considers that it would improve the quality of the evidence. Amendment No. 23 is a minor drafting amendment. The original formula in Clause 52 could have resulted in someone who is able to understand

  1323
  questions put by the court but not to give answers that could be understood being deemed competent. Amendment No. 23 deals with that.
  Amendment No. 26 is a technical amendment relating to Northern Ireland. There is no guarantee that the Northern Ireland Act provisions will necessarily be in effect by virtue of political agreement in Belfast by the time this Bill becomes an Act. We have, therefore, put in these provisions to ensure that the clause works in advance of devolution. Amendment No. 27 ensures that ministerial functions so far as exercisable under devolved competence would transfer automatically under Section 53 of the Scotland Act 1998 to Scottish Ministers.
  Amendment No. 28 omits subsection (10) of Clause 66 in the usual way so that public funds can be used to implement the Bill. Amendment No. 29 ensures that paragraph 6 covers all possible ways in which the court can deal with the offender. Amendment No. 30 makes it clear that paragraph 10(2), extension of referral for further offences, relates to paragraphs 11 and 12 to avoid any confusion that might otherwise arise.
  Amendments Nos. 31 and 49 replace references in the Sexual Offences (Amendment) Act 1992 to a convening officer with references to a "judge advocate" because "convening officers" are now out of date after the Armed Forces Act 1996.
  Amendments Nos. 32 to 39 extend the existing exceptions to the prohibition on the use of answers given under compulsion in criminal trials to the insolvency area.
  Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Williams of Mostyn.)
  Lord Cope of Berkeley: My Lords, I agree with Amendment No. 3, which is welcome, and the other amendments for the most part. However, I wish to draw attention to Amendment No. 27 which refers to Scotland. It seems odd that we should be placing this action retrospectively on the statute book with regard to Scottish devolution before the Scotland Act 1998. The boundaries of issues devolved to Scotland are sometimes difficult to follow. That is potentially damaging. However, that is a larger question than the immediate issue here.
  To say that this Act—in normal circumstances it is patently a post-commencement enactment as regards the Scotland Act—shall nevertheless be taken to be a pre-commencement enactment does not seem satisfactory in principle. It alters devolution in this one, I admit small and rather technical, respect after the event. I do not think it a good idea for Acts of Parliament to carry this kind of provision in future.
  It would be helpful if the Minister would explain further what is happening. Devolution has become an important matter. The boundaries of devolution between England and Scotland, England and Wales, and, it is to be hoped in due course, England and Northern Ireland, are different. They are not the same boundaries. The
  1324
  same items are not being devolved. They differ between the three countries within the United Kingdom. That makes the matter more difficult.
  It is an extremely small issue as regards this Bill. Nevertheless, I believe that a bad principle underlies the small amendment.
  Lord Williams of Mostyn: My Lords, I am grateful to the noble Lord for giving me the opportunity to be fully instructed on this otherwise arcane matter.
  I take the noble Lord's point, but it is a standard provision which enables Scottish Ministers to make the commencement orders in due course. I anticipate that there will be some occasions in the future when this will happen. I agree that one needs to be careful, but the amendment simply says that any provision of this Act extending to Scotland should be taken to be a pre-commencement enactment within the meaning of that Act. It is a mechanical device to give powers to the Scottish Ministers. I am grateful for the noble Lord's query.
  Viscount Brentford: My Lords, I endorse the amendments. On Amendment No. 3, Clause 7 of the Bill allows for an offender to be accompanied by another person. I am somewhat horrified that the Bill passed through this Chamber without a proposal for the vulnerable victim also to have the opportunity to bring a person with him to the panel meetings. I can find no other reference to that. I believe that I should criticise myself and others if we did not insert that at this time. I warmly welcome the amendment.
  I believe that Amendment No. 10 is a great improvement and clarifies the original version.
  Baroness Carnegy of Lour: My Lords, in his comments on Amendment No. 27, the Minister said that it was to enable Scottish Ministers to put down commencement orders. But are the matters referred to here matters for which Westminster has been legislating after the matter has been devolved to Scotland? If so, the House is doing a little more than the Minister said. Are we using the clause in the Scotland Act, which provides that Westminster can continue to legislate on any matter already devolved if it finds it necessary to do so?
  Lord Williams of Mostyn: My Lords, because your Lordships disagreed to certain matters and the timetable was disrupted, Clause 27 is necessary to enable the Scottish Ministers to make the commencement orders. There may be similar occasions in future, although they should diminish with time. As I said to the noble Lord, Lord Cope of Berkeley, this is simply the mechanism which allows the Scottish Ministers to make the commencement orders. I do not see anything wrong in principle in that.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  4 Clause 17, page 13, line 13, leave out ("section") and insert ("subsection").
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. It is grouped with Amendment No. 5.
  The purpose of these amendments is to strengthen the presumption that sexual offence complainants are eligible for assistance; in other words, they will be deemed eligible unless they specifically inform the court that they do not want to be considered as eligible.
  It is notorious that a good deal of material shows that many sex offence complainants who choose to report a sexual offence to the police decide not to go any further with it. We do not want the trial process to make it too difficult for complainants to take their case through to trial. It was suggested that the presumption in Clause 17 as originally drafted did not go far enough to assure rape complainants that they would receive help.
  Therefore, the amendments strengthen the initial presumption of eligibility for sex offence complainants. In other words, they will be considered eligible for help unless they tell the court they do not want to be helped. It is important that the court retains the discretion to decide which special measure or combination of measures will improve the complainant's evidence. That will include consideration of whether the measure might tend to inhibit the ability of the defence to test the complainant's evidence. I stress again that if the court decides that none of the special measures would improve the complainant's evidence, it will not make any available.
  Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord Williams of Mostyn.)
  Lord Desai: My Lords, I welcome the amendments. Your Lordships may recall that I spoke on the matter when the Bill was before the House. The Commons have improved the provision immensely. I shall say no more about it because there was an excellent discussion in another place, especially the contribution from my honourable friend the Member for South Swindon. The amendments considerably improve the complainant's position and I look forward to its implementation.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  5 Clause 17, page 13, line 36, leave out from ("offence") to end of line 39 and insert ("(or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness' wish not to be so eligible by virtue of this subsection.").
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.
  Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord Williams of Mostyn.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  6 Clause 20, page 15, line 29, leave out ("21(6)") and insert ("(Special provisions relating to child witnesses)(8)").
  7 Leave out Clause 21.
  8 After Clause 21, insert the following new clause—

  SPECIAL PROVISIONS RELATING TO CHILD WITNESSES
  (".—(1) For the purposes of this section—

  (a) a witness in criminal proceedings is a "child witness." If he is an eligible witness by reason of section 16(l)(a) (whether or not he is an eligible witness by reason of any other provision of section 16 or 17);

  (b) a child witness is "in need of special protection" if the offence (or any of the offences) to which the proceedings relate is—

  (i) an offence falling within section 34(3)(a) (sexual offences etc.), or

  (ii) an offence falling within section 34(3)(b), (c) or (d) (kidnapping, assaults etc.); and

  (c) a "relevant recording", in relation to a child witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.

  (2) Where the court, in making a determination for the purposes of section 19(2), determines that a witness in criminal proceedings is a child witness, the court must—

  (a) first have regard to subsections (3) to (7) below; and

  (b) then have regard to section 19(2);

  and for the purposes of section 19(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this section shall be treated as if they were measures determined by the court, pursuant to section 19(2)(a) and (b)(i). to be ones that (whether on their own or with any other special measures) would be likely to maximise, so far as practicable, the quality of his evidence.
  (3) The primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements—

  (a) it must provide for any relevant recording to be admitted under section 26 (video recorded evidence in chief); and

  (b) it must provide for any evidence given by the witness in the proceedings which is not given by means of a video recording (whether in chief or otherwise) to be given by means of a live link in accordance with section 23.

  (4) The primary rule is subject to the following limitations—

  (a) the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning of section 18(2)) of the special measure in question in relation to the witness;

  (b) the requirement contained in subsection (3)(a) also has effect subject to section 26(2); and

  (c) the rule does not apply to the extent that the court is satisfied that compliance with it would not be likely to maximise the quality of the witness's evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason).

  (5) However, subsection (4)(c) does not apply in relation to a child witness in need of special protection.
  (6) Where a child witness is in need of special protection by virtue of subsection (l)(b)(i), any special measures direction given by the court which complies with the requirement contained in subsection (3)(a) must in addition provide for the special measure available under section 27 (video recorded cross-examination or re-examination) to apply in relation to—

  (a) any cross-examination of the witness otherwise than by the accused in person, and

  (b) any subsequent re-examination.

  (7) The requirement contained in subsection (6) has effect subject to the following limitations—

  (a) it has effect subject to the availability (within the meaning of section 18(2)) of that special measure in relation to the witness; and

  (b) it does not apply if the witness has informed the court that he does not want that special measure to apply in relation to him.

  (8) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(l)(a), then—

  (a) subject to subsection (9) below, and

  (b) except where the witness has already begun to give evidence in the proceedings,

  the direction shall cease to have effect at the time when the witness attains the age of 17.
  (9) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(l)(a) and—

  (a) the direction provides—

  (i) for any relevant recording to be admitted under section 26 as evidence in chief of the witness, or

  (ii) for the special measure available under section 27 to apply in relation to the witness, and

  (b) if it provides for that special measure to so apply, the witness is still under the age of 17 when the video recording is made for the purposes of section 27,

  then, so far as it provides as mentioned in paragraph (a)(i) or (ii) above, the direction shall continue to have effect in accordance with section 20(1) even though the witness subsequently attains that age.").
  9 After Clause 21, insert the following new clause—

  EXTENSION OF PROVISIONS OF SECTION (SPECIAL PROVISIONS RELATING TO CHILD WITNESSES) TO CERTAIN WITNESSES OVER 17
  (".—(1) For the purposes of this section—

  (a) a witness in criminal proceedings (other than the accused) is a "qualifying witness" if he—

  (i) is not an eligible witness at the time of the hearing (as defined by section 16(3)), but

  (ii) was under the age of 17 when a relevant recording was made;

  (b) a qualifying witness is "in need of special protection" if the offence (or any of the offences) to which the proceedings relate is—

  (i) an offence falling within section 34(3)(a) (sexual offences etc.), or

  (ii) an offence falling within section 34(3)(b), (c) or (d) (kidnapping, assaults etc.); and

  (c) a "relevant recording", in relation to a witness, is a video recording of an interview of the witness made with a view to its admission as evidence in chief of the witness.

  (2) Subsections (2) to (7) of section (Special provisions relating to child witnesses) shall apply as follows in relation to a qualifying witness—

  (a) subsections (2) to (4), so far as relating to the giving of a direction complying with the requirement contained in subsection (3)(a), shall apply to a qualifying witness in respect of the relevant recording as they apply to a child witness (within the meaning of that section);

  (b) subsection (5), so far as relating to the giving of such a direction, shall apply to a qualifying witness in need of special protection as it applies to a child witness in need of special protection (within the meaning of that section); and

  1328

  (c) subsections (6) and (7) shall apply to a qualifying witness in need of special protection by virtue of subsection (1)(b)(i) above as they apply to such a child witness as is mentioned in subsection (6).").

  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 6 to 9.
  We discussed at length, and quite rightly, the need for special protection for children involved in criminal cases. It was accepted by all who spoke that children need special help. They are better able to give evidence and suffer less distress if they are kept out of the courtroom. In particular, the sooner after the alleged offence they are allowed to give evidence the better their recollection of that offence is likely to be. That is why children in violent and sexual offence cases now routinely give evidence-in-chief on video, and further evidence at trial through a live television link.
  The Bill extends eligibility for protection to all child witnesses. But it requires the court to consider, for all children, whether special measures would actually improve their evidence.
  Several lobby groups told us that they were concerned that, for children in sex and violence cases, this Bill reduces the certainty they have under the current legislation that they will get help to give evidence. They were concerned that we were not making the best use of this opportunity to strengthen protection for child witnesses. So this group of amendments creates a new category of witness: those in sex and violence cases, who require special protection. These witnesses need and would have a high degree of certainty about how they are going to give evidence.
  All child witnesses in these cases would give their evidence in chief by means of a pre-recorded video unless it were not in the interests of justice for the recording to be admitted. Child witnesses in violent offence cases would then go on to give further evidence through live link at trial.
  When we are ready to implement the measure, children in sexual offence cases would be cross-examined on video before the trial unless they had told the court that they did not want to be cross-examined until the day of trial. This last provision is a target we are setting ourselves to work towards. We believe that video-recorded cross-examination can work, and we are committed to implementing it as the norm for child witnesses in sex offence cases. We have always been committed to making this measure available for witnesses who are most in need of protection. But, as we have discussed in earlier debates, there are a number of technical and procedural difficulties that we will need to work with all criminal justice agencies to overcome.
  We shall consider setting progressive targets for implementation, if that is what it will take. The implementation programme is a question for the multi-agency implementation steering group which is already hard at work on deciding the best approach.
  It may be that the working group decides that the best way to get this measure off the ground is first to bring it in for the Crown Court for very young witnesses, and

  1329
  we are prepared to consider that. If it is recommended that we wait until all eligible witnesses can be catered for nationwide, we shall consider that, too.
  In Clause 18(3), the Bill gives the Secretary of State flexibility to commence provisions for different types of cases, circumstances or areas as he thinks fit. That is designed to bring about a method of implementation that is realistic and workable. Video-examination will mean a hearing centred on the child, on a day set aside for the hearing, with the child kept completely away from the trial himself. We believe that that is a fair measure to enable children in these very difficult cases to give their best evidence and suffer the least distress. However, the hearing will be under the control of a judge. The questioning will be conducted by the lawyer for the opposing party, through an intermediary if the judge approves one, and cross-examination can be re-opened if further evidence becomes available or it is otherwise in the interests of justice.
  Moved, That the House do agree with the Commons in their Amendments Nos. 6 to 9.—(Lord Williams of Mostyn.)
  On Question, Motion agreed to.
  5.45 p.m.

  COMMONS AMENDMENT
  10 Clause 29, page 22, line 45, after ("disorder") insert ("or other impairment").
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10.
  Moved, That the House do agree with the Commons in their Amendment No. 10.—(Lord Williams of Mostyn.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  11 Clause 40, page 29, leave out lines 13 to 16 and insert—
  ("(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—

  (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or

  (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,

  that the similarity").
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11. I shall speak also to Amendments Nos. 12, 13 and 14.
  These amendments to Clauses 40 and 41 correct a technical flaw in the amendments which I laid on Report. I am grateful to Ms Vera Baird, who brought the matter to our attention. On Report, I laid an amendment—significantly in response to the speech
  1330
  made by my noble friend Lady Mallalieu in Committee—to allow the defence to introduce evidence of the complainant's previous sexual behaviour if it was strikingly similar to the complainant's behaviour during the events constituting the alleged offence, or at or about the same time as the alleged offence.
  However, having thought about it, I realised that the amendment was defective in that it allowed evidence of previous sexual behaviour to be admitted if it was similar to the complainant's behaviour at or at about the same time as the alleged offence, but not if the: previous behaviour was similar to how the complainant behaved during the alleged offence itself. These amendments are designed to remedy that flaw.
  The amendment to Clause 41 completes the effect of the amendment to Clause 40. It also allows the defence to explain or rebut evidence which the prosecution claims relates to the alleged offence, but which the defence considers to be evidence of a complainant's previous sexual behaviour.
  That would not have been possible earlier, as only evidence which the prosecution claimed was evidence of previous behaviour could be rebutted under Clause 40(5). Therefore, we wanted to safeguard the interests of the defendant to allow them to rebut all prosecution evidence—if the judge gives leave—as a balance to the greater freedom the prosecution have to introduce evidence of sexual behaviour.
  The amendments to Clause 42 require judges and magistrates to give reasons for their decisions on admitting, or refusing to admit, sexual behaviour evidence. We received several representations and we thought that the points made were sensible and important. Therefore, we introduced these amendments.
  Clause 40 introduces a tight framework setting down what is relevant and what is not. We wished to get this framework right, in the interests of a fair trial for the defendant. During our debate on Report, we heard several persuasive speeches about the need for strikingly similar provision so that in extreme circumstances the defendant can support his claim that the complainant consented to the act constituting the alleged offence by reference to previous behaviour. The provision, in what will be—if it is agreed—Section 41(3)(c), is very narrowly drawn. Only information that cannot reasonably be explained as a coincidence can be admitted. All evidence would, therefore, have to be very unusual to be admitted.
  Commonplace events such as previous one-night stands, or having sex with someone of the same race, or in a car, would be inadmissible under this subsection, because they could reasonably be considered a coincidence. The Romeo and Juliet scene was the example offered by the noble Baroness, Lady Mallalieu, but even that example would only be admissible if it were very similar to defence evidence.
  The prosecution are not subject to the same restrictions as the defence under this clause. Unless the defence can challenge all prosecution evidence, through the provision in subsection (5), they may not be able to introduce evidence to explain or rebut certain pieces of prosecution evidence. We must allow

  1331
  the defence to suggest, where necessary to their case, that evidence the prosecution claim relates to the alleged offence—such as bruising, or other injuries—was caused as a result of the complainant's previous sexual behaviour.
  One example of the problem with the Bill as currently drafted is that, if a defendant in a rape case was running defence of mistaken identity—that he did not have sex with the complainant at all—he could not rebut the prosecution's claim that the complainant did not consent, because he would not be arguing that she did consent. However, the prosecution might have introduced evidence to support the complainant's lack of consent, such as bruising or cuts. The defendant could not challenge that under the Bill as currently drafted. But if the defendant knew that the bruising had been caused by the complainant's previous sexual behaviour, he should be able to introduce evidence showing that. Otherwise, the jury might be misled.
  That is the thinking behind the amendments, which I commend to your Lordships.
  Moved, That the House do agree with the Commons in their Amendment No. 11.—(Lord Williams of Mostyn.)
  Lord Desai: My Lords, I welcome the amendments. They do not go as far as I wanted, because I still think that the whole problem of sexual history that a woman has sometimes to recount deters women from bringing cases to trial. However, I welcome the narrowing of the criteria under which sexual history can be admitted.
  Lord Cope of Berkeley: My Lords, I also welcome the provisions as now drafted. We discussed them for a long time in Committee and on Report and Third Reading. They were modified in your Lordships' House and subsequently in the other place. It is difficult to get the wording precisely right, but I believe that it has been improved and that the changes that will be introduced by the Bill as a result are desirable.
  On Question, amendment agreed to.

  COMMONS AMENDMENTS
  12 Clause 41, page 30, line 7, leave out ("other than") and insert ("but excluding (except in section 40(3)(c)(i) and (5)(a))").
  13 Clause 42, page 30, line 35, after ("court") insert ("(but in the absence of the jury, if there is one)").
  14 Page 30, line 36, leave out ("decision to give, or refuse,") and insert ("reasons for giving, or refusing,").
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 12 to 14.
  Moved, That the House do agree with the Commons in their Amendments Nos. 12 to 14.—(Lord Williams of Mostyn.)

  COMMONS AMENDMENT
  15 Clause 43, page 31, line 19, leave out ("when a minor shall while that person") and insert ("shall while he").
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 15. I wish to speak also to Amendments Nos. 18 to 22 and 53.
  Amendments Nos. 15, 18 and 19 remove tautologies in Clauses 43 and 44. Amendment No. 20 defines whom, including those resident in Scotland, the courts should recognise as having authority to offer or veto the parental waiver provided in respect of reporting restrictions in relation to the identification of young victims and witnesses of alleged offences at the pre-trial stage of criminal investigations in England, Wales and Northern Ireland. Amendments Nos. 21 and 22 are consequential to Amendment No. 20. Amendment No. 53 is consequential to Amendments Nos. 62 and 63 moved on Lords Report on 8th March 1999.
  Amendments Nos. 15, 18, and 19 remove references to "a minor" in Clauses 43 and 44. They are not needed because the clauses already contain references to a person under the age of 18. Amendment No. 20 clarifies the question of parental waiver in respect of children allegedly involved as victims or witnesses. I beg to move.
  Moved, That the House do agree with the Commons in their Amendments No. 15.—(Lord Williams of Mostyn.)
  Lord Cope of Berkeley: My Lords, I wish only to say that it is somewhat a criticism of your Lordships' House, including myself, that we should have allowed the tautology corrected by the amendments to slip through. On reading the Bill, the problem is obvious and the other place is right to correct us.
  n Question, Motion agreed to.

  COMMONS AMENDMENT
  16 Clause 43, page 31, line 24, leave out from beginning to ("cease") in line 28.
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 16, and I wish to speak also to Amendments Nos. 17 and 25. The amendments ensure that the reporting restrictions provided in the Bill, which bite during police investigations before a suspect is charged and which restrict identification of children who are alleged to be victims or witnesses to the commission of an offence, should only be implemented if the draft order to that effect has been approved by affirmative resolution in both Houses.
  We had several discussions about these issues. The noble Lord, Lord Cope of Berkeley, and the noble Viscount, Lord Astor, raised matters which I said at the time were of genuine interest and importance to the public and to those who discharge a public function by proper reporting. When the Bill was in the other place it was put to us that the media's own regulatory

  1333
  arrangements to protect children could be strengthened in a way that is specific to children who might be harmed by publicity in connection with a crime and that this would be preferable to the provisions in the Bill which restrict pre-trial reporting about child witnesses and victims. For the print media at least, any change to the regulatory arrangements is a matter for the industry as a whole to consult upon. For the broadcast media it is a matter for independent regulators.
  I cannot fetter the discretion of this or any other Home Secretary by making any undertakings about what might happen if such regulatory changes were made. Our objective has not changed. We were prepared to consider the possibility that it might be achieved by other means, and we made these new amendments as a result. We shall need to keep the case for implementation under regular review. Should this, or any future Home Secretary, come to the conclusion in the light of the circumstances then prevailing that the provisions in Clause 43 should be extended to child victims and witnesses, a draft order to that effect will be laid before Parliament. Obviously, a most crucial consideration in such assessments will be whether we continue to have concerns about children being damaged by the media's reports of crime and can justify those concerns.
  These matters were raised by the noble Lord, Lord Cope of Berkeley and the noble Viscount, Lord Astor. It was worth having those debates, on more than one occasion if my memory serves. We have listened carefully to what has been said by those who discharge a public function, and I wish to make: it clear that we shall not implement the provisions unless circumstances make it necessary in our judgment.
  Moved, That the House do agree with the Commons in their Amendment No. 16.—(Lord William of Mostyn.)
  6 p.m.
  Lord Windlesham: My Lords, can the Minister tell us whether the voluntary organisations concerned with the interests of the child, in particular the NSPCC, with which he has had a previous connection, have been satisfied? They made representations which were raised by myself, among others, in Committee. At the same time the Minister was in negotiation with the much more powerful representatives of the media. We have heard that the accommodation reached was acceptable to the media. Can the Minister tell us whether the Bill, as it now stands, is acceptable to the voluntary organisations?
  Lord Williams of Mostyn: My Lords, they were consulted. It is my best understanding that they were content on the basis which I have indicated. I do not regard the media organisations as being more powerful than the voluntary organisations. The voluntary organisations—particularly within the field of child protection—have been extremely influential; first, in the way in which we cast the Bill in general structure and in the very helpful amendments and thoughts which have been put forward.
  1334
  It is an extremely difficult balance to cast. We cannot have a free society without a free press. We cannot justify a free press which is wholly enabled and entitled, as it were, to do damage to children. That is why I believe that we have the balance about right. I repeat that—and I hope it will be a comfort to your Lordships and to the noble Lord who has asked this question—we want to keep the matter under constant review. Pan: of that constant review is a readiness always to listen to the voluntary organisations of the kind which the noble Lord, Lord Windlesham, described.
  Lord Cope of Berkeley: My Lords, as the Minister says, it is a difficult balancing act to frame the legislation so that it both gives the protection that we all want for vulnerable witnesses and, for that matter, vulnerable accused, while at the same time retaining a free press. That is not only in the interests of a free press, but also because, as emerged from our earlier debates, sometimes press publicity given to an offence and its immediate circumstances may enable the victim to be identified and may also assist to catch the offender.
  We did not want to make it more difficult for the police to catch an offender and bring him before the courts while trying to protect the victims of or other witnesses to an offence. The balancing act has been difficult. I believe that the current wording certainly goes in the direction that we wished. As the Minister says, it provides, as it were, a sword of Damocles which will hang over the press to try to ensure that its voluntary codes achieve what we all want in terms of protection, without overstepping the mark in the other direction of making things too difficult for the police to pursue their valuable role in this.
  I am not keen on legislative swords of Damocles hanging over sections of the population, whether the. press or anyone else. Nevertheless, in this instance it provides a way out of an awkward drafting situation. I support the amendments.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  17 Clause 43, page 31, line 32, leave out from ("to") to end of line 40 and insert—

  ("(a) a person by whom the offence is alleged to have been committed; or

  (b) if this paragraph applies to the publication in question by virtue of subsection (4A)—

  (i) a person against or in respect of whom the offence is alleged to have been committed, or

  (ii) a person who is alleged to have been a witness to the commission of the offence;

  except that paragraph (b)(i) does not include a person in relation to whom section 1 of the Sexual Offences (Amendment) Act 1992 (anonymity of victims of certain sexual offences) applies in connection with the offence.
  (4A) Subsection (4)(b) applies to a publication if—

  (a) where it is a relevant programme, it is transmitted, or

  (b) in the case of any other publication, it is published,

  on or after such date as may be specified in an order made by the Secretary of State.").
  18 Clause 44, page 33, line 13, leave out ("when a minor").
  19 Page 33, leave out lines 40 to 42.
  20 Clause 49, page 39, line 27, leave out subsection (9) and insert—
  ("(8A) In this section—
  "an appropriate person" means (subject to subsections (8B) to (8D))—

  (a) in England and Wales or Northern Ireland, a person who is a parent or guardian of the protected person, or

  (b) in Scotland, a person who has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to the protected person;

  "guardian", in relation to the protected person, means any person who is not a parent of the protected person but who has parental responsibility for the protected person within the meaning of—

  (a) (in England and Wales) the Children Act 1989, or

  (b) (in Northern Ireland) (Northern Ireland) Children (Northern Ireland) Order 1995.

  (8B) Where the protected person is (within the meaning of the Children Act 1989) a child who is looked after by a local authority, "an appropriate person" means a person who is—

  (a) a representative of that authority, or

  (b) a parent or guardian of the protected person with whom the protected person is allowed to live.

  (8C) Where the protected person is (within the meaning of the Children (Northern Ireland) Order 1995) a child who is looked after by an authority, "an appropriate person" means a person who is—

  (a) an officer of that authority, or

  (b) a parent or guardian of the protected person with whom the protected person is allowed to live.

  (8D) Where the protected person is (within the meaning of section 17(6) of the Children (Scotland) Act 1995) a child who is looked after by a local authority, "an appropriate person" means a person who is—

  (a) a representative of that authority, or

  (b) a person who has parental responsibilities (within the meaning of section 1(3) of that Act) in relation to the protected person and with whom the protected person is allowed to live.").

  21 Page 39, line 43, leave out ("subsection (9)") and insert ("subsections (8A) to (8D)").
  22 Clause 51, page 40, line 43, leave out ("meaning given by section 49(9)") and insert ("same meaning as it has for the purposes of section 49").
  23 Clause 52, page 41, line 8, after ("not") insert ("a person who is").
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 17 to 23.
  Moved, That the House do agree with the Commons in their Amendments Nos. 17 to 23.—(Lord Williams of Mostyn.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  24 After Clause 58, insert the following new clause—

  REMOVAL OF RESTRICTION ON USE OF EVIDENCE FROM COMPUTER RECORDS
  (". Section 69 of the Police and Criminal Evidence Act 1984 (evidence from computer records inadmissible unless conditions relating to proper use and operation of computer shown to be satisfied) shall cease to have effect.").
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 24. I speak also to Amendments Nos. 40, 42 to 48, and 50 to 52.
  The amendments seek to implement the recommendation of the Law Commission that Section 69 of the Police and Criminal Evidence Act 1984 should be repealed. Amendments Nos. 42 to 48 and 50 to 52 are simply consequential.
  Section 69 of the Police and Criminal Evidence Act— PACE—provides that a document produced by a computer may not be adduced as evidence unless it is shown that the computer was operating properly and was not used improperly.
  There have been enormous advances in computer technology and networking in recent years. That has made Section 69 an increasingly difficult hurdle for either defence or prosecution to overcome. The burdens on business in providing Section 69 certificates for criminal trials and releasing members of staff to attend court to give evidence are believed to be significant.
  The Law Commission concluded that the present law served no useful purpose. It recommended that the provision should be repealed without replacement. The vast majority of those who responded to the consultation agreed that if a law has no useful purpose—or if this part does not—it ought to be repealed. I beg to move.
  Moved, That the House do agree with the Commons in their Amendment No. 24.—(Lord Williams of Mostyn.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  25 Clause 62, page 45, line 39, leave out ("or 41(2)") and insert (", 41(2) or43(4A)").
  26 Clause 64. page 46, line 26, at end insert—
  ("(3) Until the day appointed under section 3 of the Northern Ireland Act 1998 for the commencement of Parts II and III of that Act this section shall have effect with the substitution for subsection (1) of the following—
  "(1) An Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it is made only for purposes corresponding to the purposes of any of the relevant provisions of this Act—

  (a) shall not be subject to paragraph I (4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament), but

  (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

  27 Clause 66, page 46, line 35, at end insert—
  ("() For the purposes of the Scotland Act 1998, any provision of this Act which extends to Scotland shall be taken to be a pre-commencement enactment within the meaning of that Act.").
  28 Page 47, line 34, leave out subsection (10).
  29 Schedule 1, page 50, line 9, leave out ("sentences") and insert ("deals with").
  30 Page 51, line 8, leave out ("those paragraphs") and insert ("paragraphs 11 and 12").
  31 Schedule 2, page 59, line 24, leave out from beginning to ("paragraph") in line 27 and insert—
  ("13.—(1) Section 7 (application of Act to courts-martial) is amended as follows.
  (2) In subsection (1) (Act to apply with modifications where in pursuance of armed forces law a person is charged with an offence to which the Act applies), after "applies" insert "by virtue of section 2(1)".
  (3) In subsection (2) (modifications with which Act applies to courts-martial)—

  (a) omit paragraph (b);

  (b) for paragraph (c) substitute—

  "(c) in section 3(1) any reference to a judge, in relation to the person charged with the offence, shall be read as a reference to the judge advocate appointed to conduct proceedings under section 3(1) relating to the offence (whether or not also appointed to conduct other preliminary proceedings relating to the offence)";

  (c) in paragraph (d), for "court" substitute "judge advocate appointed to be a member of the court-martial"; and

  (d) omit").

  32 Schedule 3, page 61, line 40, at end insert—
  ("() an offence which is—

  (i) created by regulations made under any such rules, and

  (ii) designated for the purposes of this subsection by such regulations;").

  33 Page 61, line 41, after ("section") insert ("1,").
  34 Page 61, line 42. leave out ("otherwise than in judicial proceedings").
  35 Page 62, line 18, at end insert—
  ("() an offence which is—

  (i) created by regulations made under any such rules, and

  (ii) designated for the purposes of this subsection by such regulations;").

  36 Page 66, line 31, after ("regulations;") insert—
  ("() an offence which is—

  (i) created by regulations made under any such rules, and

  (ii) designated for the purposes of this paragraph by such regulations;").

  37 Page 67, line 8, after ("regulations;") insert—
  ("() an offence which is—

  (i) created by regulations made under any such rules, and

  (ii) designated for the purposes of this paragraph by such regulations;").

  38 Page 67, line 9, after ("Article") insert ("3,").
  39 Page 67, line 10, leave out ("otherwise than in judicial proceedings").
  40 Schedule 4, page 71, line 27, leave out ("In section 34(3) of the Criminal Justice Act 1988") and insert—
  ("The Criminal Justice Act 1988 has effect subject to the following amendments.
  15A. In subsection (1) of each of sections 23 and 24 (first-hand hearsay; business etc. documents), al the end of paragraph (a) insert "and".
  15B. In section 34(3)")
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 25 to 40.
  Moved, That the House do agree with the Commons in their Amendments Nos. 25 to 40.—(Lord Williams of Mostyn.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  41 Schedule 4, page 72, line 3, at end insert—
  (".—(1) Section 51 (intimidation etc. of witnesses, jurors and others) is amended as follows.
  (2) For subsections (1) to (3) (offences of intimidating, and of doing or threatening harm to, witnesses etc.) substitute—
  "(1) A person commits an offence if—

  (a) he does an act which intimidates, and is intended to intimidate, another person ("the victim'),

  (b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and

  (c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.

  (2) A person commits an offence if—

  (a) he does an act which harms, and is intended to harm, another person or, intending to cause another person to fear harm, he threatens to do an act which would harm that other person,

  (b) he does or threatens to do the act knowing or believing that the person harmed or threatened to be harmed ('the victim"), or some other person, has assisted in an investigation into an offence or has given evidence or particular evidence in proceedings for an offence:, or has acted as a juror or concurred in a particular verdict in proceedings for an offence, and

  (c) he does or threatens to do it because of that knowledge or belief.

  (3) For the purposes of subsections (1) and (2) it is immaterial that the act is or would be done, or that the threat is made—

  (a) otherwise than in the presence of the victim; or

  (b) to a person other than the victim."

  (3) In subsection (8) (presumption in proceedings for offence under subsection (2))—

  (a) for "he did or threatened to do an act falling within paragraph (a) within the relevant period" substitute "within the relevant period-—

  (a) he did an act which harmed, and was intended to harm, another person, or

  (b) intending to cause another person fear of harm, he threatened to do an act which would harm that other person,

  and that he did the act, or (as the case may be) threatened to do the act,"; and.

  (b) after "to have done the act" insert "or (as the case may be) threatened to do the act".").

  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 41.I speak also to Amendment No. 54.
  The amendments clarify the drafting of Section 51 of the Criminal Justice and Public Order Act 1994, in relation to the intimidation of witnesses and others involved in criminal investigations and proceedings.
  A recent decision, relating to the intimidation of witnesses through a third party, although eventually overturned by the Court of Appeal, has raised some questions about the current wording of Section 51 of the 1994 Act. There seems to be a misunderstanding in relation to Section 51(3) of the 1994 Act which states that:
  "A person does an act "to" another person with the intention of intimidating, or (as the case may be) harming, that other person not only where the act is done in the presence of that other and directed at him directly but also where the act is done to a third person and is intended, in the circumstances, to intimidate or (as the case may be) harm the person at whom the act is directed".
  It was suggested that a threat to harm the witness, relayed through a third party, would not be caught by the offence. We feel that we should not lose this opportunity to put the matter beyond doubt. The amendments simply seek minor drafting changes. They do not in any way intend to change what was understood to be the existing situation.
  Moved, That the House do agree with the Commons in their Amendment No. 41.—(Lord Williams of Mostyn.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  42 Schedule 6, page 75, line 32, at end insert—
  ("12, 13 & 14Geo. 6 Registered Designs Section 17(11)."). c. 88. Act 1949.
  43 Page 76, line 13, at end insert—
  ("1977 c. 37. Patents Act 1977. Section 32(12).").
  44 Page 76, line 21, at end insert—

  ("1979 c. 2.

  Customs and Excise Management Act

  Section 75A(6)(b). In section 118A(6)(b), 1979. the words "sections 69 and 70 of the Police and Criminal Evidence Act 1984 and".")

  45 Page 76, line 28, column 3, at beginning insert—

  ("Sections 69 and 70.")

  46 Page 76, line 37, column 3, at end insert—

  ("Schedule 3.")

  47 Page 76, line 37, at end insert—

  ("1985 c. 9.

  Companies Act 1985.

  In section 709(3), the words from "In England and Wales" onwards.")

  48 Page 76, line 38, column 3, at beginning insert—

  ("In section 23(1), paragraph (c) and the "and" preceding it. In section 24(1), paragraph (c) and the "and" preceding it.").

  49 Page 77, line 17, column 3, at end insert—

  ("Section 7(3).")

  50 Page 77, line 17, at end insert—

  ("1994 c. 9.

  Finance Act 1994.

  In section 22(2)(b), the words "sections 69 and 70 of the Police and Criminal Evidence Act 1984 and".

  In Schedule 7, in paragraph l(6)(b), the words "sections 69 and 70 of the Police and Criminal Evidence Act 1984 and".

  1994 c.23.

  Value Added Tax Act 1994.

  In Schedule 11, in paragraph 6(6)(b), the words "sections 69 and 70 of the Police and Criminal Evidence Act 1984 and".").

  51 Page 77, line 27, at end insert—

  ("1995 c. 38.

  Civil Evidence Act 1995.

  In Schedule 1, paragraph 10.

  1996 c. 8.

  Finance Act 1996.

  In Schedule 5, in paragraph 2(6)(a), the words "sections 69 and 70 of the Police and Criminal Evidence Act 1984 and".")

  52 Page 77, line 29, column 3, at end insert (", 27").
  53 Schedule 7, page 79, line 20, leave out ("to allegations within subsection (1) of that section whether made") and insert ("in relation to an alleged offence whether the criminal investigation into it is begun").
  54 In the Title, line 4, after ("proceedings;") insert ("to amend section 51 of the Criminal Justice and Public Order Act 1994;").
  Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 42 to 54.
  Moved, That the House do agree with the Commons in their Amendments Nos. 42 to 54.—(Lord Williams of Mostyn.)
  On Question, Motion agreed to.

Pollution Prevention and Control Bill [H.L.]
6.8 p.m.
Lord Williams of Mostyn: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Pollution Prevention and Control Bill [H.L.], has consented to place her Prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Whitty.)
On Question, Motion agreed to.

Pollution Prevention and Control Bill [H.L.]
  COMMONS AMENDMENTS
  [The page and line refer to Bill 107 as first printed for the Commons]

  COMMONS AMENDMENT
  1 After Clause 2, insert the following new clause—
  (" .—(1) The Secretary of State may, in relation to offshore installations, by regulations make provision which, subject to any modifications that he considers appropriate, corresponds or is similar to any provision made by, or capable of being made under, sections 137 to 140 of the Merchant Shipping Act 1995 (powers to prevent and reduce pollution, and the risk of pollution, by oil or other substances following an accident) in relation to ships.
  (2) In this section—
  "offshore installation" means any structure or other thing (but not a ship) in or under—

  (a) United Kingdom territorial waters, or

  (b) any waters mentioned in section 5(9)(b) or (c),

  which is used for the purposes of, or in connection with, the exploration, development or production of petroleum;
  "petroleum" has the meaning given by section 1 of the Petroleum Act 1998;
  "ship" has the same meaning as in the Merchant Shipping Act 1995.
  (3) Regulations under this section may—

  (a) contain such consequential, incidental, supplementary, transitional or saving provisions as the Secretary of State considers appropriate; and

  (b) make different provision for different cases, including different provision in relation to different persons, circumstances, areas or localities.

  (4) Before making any regulations under this section, the Secretary of State shall consult—
  1342

  (a) the Environment Agency, the Scottish Environment Protection Agency and the Department of the Environment for Northern Ireland;

  (b) such bodies or persons appearing to him to be representative of the interests of owners or operators of offshore installations as he may consider appropriate; and

  (c) such other bodies or persons as he may consider appropriate.

  (5) The power to make regulations under this section shall be exercised by statutory instrument.
  (6) No regulations shall be made under this section (whether alone or with other regulations) unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.").
  Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. I shall speak also to Amendments Nos. 4 and 5.
  As I have mentioned during earlier debates on the Bill, the Government intend to use it to make improvements to the offshore environmental regime. That includes implementing one of the recommendations in the recent report of the noble and learned Lord, Lord Donaldson, which was published on 15th March this year, and was instigated following events surrounding the "Sea Empress" oil tanker incident in 1996. I have referred to the report at earlier stages of the Bill.
  The work of the noble and learned Lord concerned the control and salvage of shipping and offshore installations in situations where there is a significant threat of pollution. He reached four basic conclusions.
  The first was that incidents that threaten to cause or actually cause marine pollution are so many and varied that the involvement of Ministers in operational decisions is not a practicable option. Ministers are entitled to be kept informed and may subsequently be accountable to Parliament. However, while operations are in progress, Ministers must stand aside, and be seen to stand aside, leaving operational control in the hands of a Secretary of State's specially trained appointed representative (to be called, in the jargon, SOSREPs).
  The second conclusion was that the "trigger" point at which the Government, in terms of their statutory powers and responsibilities, become entitled to give directions is where there is a threat of significant pollution to the UK's pollution control zone, territorial waters or coastline.
  The third conclusion was that officers from the Maritime and Coastguard Agency as a whole should play a much larger part in operations in response to a significant threat of pollution than had been the case in the past.
  The fourth conclusion was that the government response to the threat of significant pollution from or involving an offshore installation must be compatible with their response to such a threat from a shipping casualty. The Secretary of State for Trade and Industry should, therefore, be given powers and responsibilities in relation to offshore installations which are similar to those of the Secretary of State for the Environment. Transport and the Regions under the Merchant Shipping Act 1995.

  1343
  I have given the first three conclusions as background. However, it is only this fourth conclusion that these amendments are designed to implement. They are a lengthy set of amendments and it might be useful if I briefly run through them.
  Subsection (1) of the new clause provides the Secretary of State with powers for offshore installations equivalent to those for ships contained in the Merchant Shipping Act 1995. Subsection (2) seeks to define an offshore installation both by type and geographic location. Subsection (3) seeks to ensure that any regulations made may be tailored to the particular circumstances and various types of offshore installations and that regulations sit well with existing provisions. Subsections (4), (5) and (6) would ensure that consultation takes place with statutory bodies, industry and others prior to the introduction of regulations and that these be made by affirmative resolution of both Houses.
  Amendment No. 4, which is a relatively technical amendment, provides that the powers to make and enforce regulations extend to Northern Ireland. The other amendment in this group reflects the fact that the Petroleum Act 1998 consolidated a good deal of earlier oil and gas legislation, including the Oil and Gas Enterprise Act 1982. These are, therefore, tidying-up amendments.
  Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Whitty.)

  AMENDMENT TO COMMONS AMENDMENT No. 1
  1A Line 34, after subsection (4) insert—
  ("(4A) The regulations made under this section and section 2 of this Act shall make provision for appeals to lie to a tribunal independent of the Secretary of State from decisions, authorisations, prohibitions, variations and enforcement actions of the Secretary of State or any agency acting on his behalf,").
  6.15 p.m.
  Lord Jenkin of Roding: My Lords, I beg to move Amendment No. 1A as an amendment to Commons Amendment No. 1. I tabled this amendment because of an undertaking given by the noble Lord, Lord Whitty, at Third Reading. I shall come to that in a moment. In discussing draft regulations with the generality of industry affected by the Bill, the DETR has seen fit to include in such regulations an effective appeals procedure. The DTI, which has been consulting with the offshore oil and gas industry on the different set of regulations which will implement the Bill so far as that industry is concerned, has so far shown no inclination to include an appeals procedure in its regulations.
  Perhaps I may remind the House of the huge importance to this country of the oil and gas industry. I cannot do so with better words than those used by the Minister for Energy and Industry, Mr John Battle, when he addressed the All Party Group on Oil and Gas last month. He stated:
  "The exploitation of the UKCS"—
  that is United Kingdom Continental Shelf—
  "is one of the great British commercial and technological success stories. In a hostile physical environment, UK technology and teamwork have created a highly-productive oil and gas province
  1344
  which has kept the UK self-sufficient for some 20 years. It provides around 30,000 jobs offshore and many more onshore in support of these, not just in Scotland but in East Anglia. North East England",
  and, the honourable Member added, in his own constituency.
  "Last year saw combined oil and gas production (132 million tonnes of oil and 95 billion cubic metres of gas) running to record levels. Over 200 offshore fields are currently in production".
  By any standards, this is a hugely important industry.
  My second point is that the industry has at no point quarrelled with the objective of the Bill—and, I would add, with the objective of the Commons amendments; that is the new clause which the Minister has just moved—as being appropriate to safeguard the environment. It has been perfectly prepared to accept the new regulations, many of which replace existing statutory provisions (I shall not rehearse old arguments) because it recognises that that is necessary both to ensure high standards of environmental protection and to comply with the European directive.
  The industry is, therefore, nonplussed and somewhat disturbed to find that in the draft regulations upon which it has been consulted, so far there is no provision for an appeal against any ministerial determination, and so on, as I have set out in my amendment.
  I find this all the more surprising because at Third Reading my noble friend Lord Renton moved an amendment in which he sought to write into the Bill the existing statutory provision contained in primary legislation which set out in some detail the appeals procedure. The noble Lord, Lord Whitty, in reply stated:
  "Whatever we do, I can give a categoric assurance that operators will have rights of appeal under the system that we now propose or any future system were we minded to make any further alteration".—[Official Report, 20/5/99; col. 434.]
  As regards the draft regulations with which his department is concerned, that is being fulfilled; but, where is the corresponding regulation from the DTI in relation to the offshore oil and gas industry? There must be some explanation. The industry has so far complained that in the regulation with which it is concerned there is no provision for appeal. I have to ask the Minister, why not? Is it intended that there should be a new draft or an addition to the existing draft to fulfil his own very clear and specific pledge given only last May?
  I do not want to dwell on the fact unnecessarily, but from the industry's point of view I am sure that the entire House recognises how important it is for there to be a proper appeals mechanism against the regulation. I refer to both this new clause and, as my amendment states, Clause 2 of the Bill—the general operating provisions. We have established that they apply to the offshore oil and gas industry, as they apply to the rest of industry. That was made clear by the Government at the earlier stages of the Bill. That is the reason why I have included Clause 2 in my amendment to this Commons amendment.
  I hope that this time I shall be vouchsafed a proper explanation of what is going on and told when we can expect the offshore oil and gas industry to be accorded the same rights of appeal as the Minister's own department is now prepared to give to anybody else.
  Moved, That Amendment No. 1A, as an amendment to Commons Amendment No. 1, be agreed to.—(Lord Jenkin of Roding.)
  Lord Renton: My Lords, having spent two of the most interesting years of my life as Parliamentary Secretary to the Ministry of Fuel and Power—although that was many years ago and there have been many changes since then—I agree with my noble friend Lord Jenkins of Roding that the oil and gas industries are vital to this country. We should legislate with accuracy and clarity and avoid confusion.
  I gladly support the amendment, in spite of the fact that my noble friend is taking advantage of a power to make regulations. That is an overriding power in the Bill. We have complained about it and at this stage we cannot avoid it.
  Noble Lords should bear in mind the implications for the drafting of legislation. The Bill replaces 28 clauses of the Environmental Protection Act 1990 and has various vital cross references to the Control of Pollution Act 1974. With regard to the amendment, the provisions of the Merchant Shipping Act 1995 also have to be borne in mind. God help those who have to construe the legislation and apply it for practical reasons—not just for business reasons, but to ensure this country's supply of gas and electricity without running up against legislative problems. It is not good enough. This is not the way to legislate.
  The Government should try to mitigate the situation they have created. The amendment would help by adding a new subsection dealing with the way in which the regulations are to be made.
  Lord Dixon-Smith: My Lords, there are two aspects to the debate. The first is the amendment to Commons Amendment No. 1, moved by my noble friend Lord Jenkins of Roding. The second is the more general fact that we have known all along that the Bill depends entirely on regulation. Although some regulation is in draft, it will not be possible for ordinary people, let alone lawyers, to interpret the Bill in relation to their circumstances until the regulations are published and passed by both Houses of Parliament. However, that is a secondary issue hanging on the amendment, which I support.
  It is unfortunate that a gap appears to be opening between two government departments on the treatment of appeals. The noble Lord, Lord Whitty, has been very helpful and I understand that his department is providing an adequate mechanism. However, the Department of Trade and Industry, which deals with the offshore oil industry, is adopting a different approach. I acknowledge that I may have been unjust to that department. It may not be aware of the problem, or the difficulty could be something even worse, such as the person responsible for the promulgation of draft regulations being ill, although that is a somewhat feeble excuse, because none of us should be indispensable. If one person cannot carry out a task, somebody else should be available and competent to deal with the matter, particularly in government.
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  The question of appeals is important. The Minister has accepted the principle and I look forward to his comments, although I understand his possible embarrassment at having to answer for another department.
  I also look forward to some reassurance from the Minister on the fact that the Bill is wholly dependent on the passing of regulations. The Bill is a meaningless jumble of words without the regulations that are needed to back it up and give it the force of law, or at least the force of something that can be interpreted by those who have to comply with it. We have protested all along that we are passing a shell. Industry and commerce cannot implement a shell. They can only implement something that has been written down and is capable of precise interpretation. I hope that the Minister does not mind my repeating the fact that we need more than just the draft regulations. When we come back in the autumn we shall need regulations that we can approve, for the sake of industry and commerce throughout the country. Without those regulations they are being invited to fly blind on a dark night in a thick fog.
  Baroness Hamwee: My Lords, I wish to ask one question arising from the Government's amendment. The point was covered in another place, but I am not entirely clear about the answer. The amendment refers to sections of the Merchant Shipping Act 1995, which it describes as,
  "powers to prevent and reduce pollution, and the risk of pollution…following an accident".
  A question was asked in the other place about whether the powers are intended to be exercised only in the immediate aftermath of accidents. The Minister, in the Standing Committee, said:
  "I should point out that the health and safety regulations normally provide for the period leading up to an accident. The aim of those regulations is the prevention of accidents. If, despite all best plans and preparations, an accident occurred, the powers in new clause 2 would come into operation".—[Official Report, Commons Standing Committee A; 22/6/99; col. 108.]
  It is not clear to me whether the powers that are the subject of the new clause can be exercised in a precautionary fashion. The way in which the Minister answered in another place seemed to suggest that they would come into play only after an accident had occurred. I hope that the Minister will give an assurance that the new powers will allow precautions to be taken to prevent pollution if there is an accident.
  6.30 p.m.
  Lord Whitty: My Lords, it causes me no embarrassment to speak for the Department of Trade and Industry as well as the Department of the Environment, Transport and the Regions. It is only a minor additional burden. I hope that the whole House is clear about the importance of the oil and gas industry to the economy and well-being of this country. It is central to our future and there is nothing in the Government's intentions that would deliberately or inadvertently lead to any unnecessary restriction beyond what is needed for safety and environmental reasons. Indeed, the oil and gas industry, as the noble Lord, Lord Jenkin, indicated,

  1347
  has been supportive of the objectives of this Bill and the regulations which are now in draft relating to the offshore installations.
  Amendment No. 1 would apply beyond the offshore area, if taken literally, and that would clearly not be appropriate, as the noble Lord acknowledged, because in general we have a perfectly adequate appeals process already in place under the 1990 Act which we intend to carry forward unaltered into the new regimes set up under this Bill. We debated this process during the course of the Bill and the Bill was not amended in another place.
  In brief, those provisions provide that an operator may appeal to the Secretary of State against a decision of the regulator. If he wishes, the operator may go on to apply for judicial review of the Secretary of State's decision. That is fairly straightforward. It is fair, efficient and there is no need to change it. If we were to adopt the amendment proposed across the board, it would undoubtedly add an unnecessary and confusing bureaucratic third stage. We could end up with a decision by the regulator being subject to an appeal to the Secretary of State. His decision might then be appealed to the tribunal. Even after all that there would be the possibility of judicial review. That is not a sensible regime. The existing one is appropriate and will be carried forward.
  In relation to the offshore regime the position is slightly different. There the powers will normally be exercised directly by the Secretary of State. In the case of the recommendations of the Donaldson Report, it is clearly impossible for the emergency operational decisions of the Secretary of State's representative to be scrutinised by a tribunal. The Donaldson Report recommended that a Secretary of State representative (a SOSREP) would have an operational support group comprising a small number of specialists, but it emphasised that the Minister or others must not interfere or give the impression of being in charge. The report said:
  "SOSREP may be called upon to make extremely difficult and potentially controversial decisions and he will he unable to make these dispassionately, as he must, if he is looking over his shoulder and guarding his back".
  Should any of his decisions be called into question, then the regulations, which will be based on the existing merchant shipping legislation, will provide for a formal compensation mechanism.
  As for the wider powers in the Bill relating to offshore activities, it is recognised that care needs to be taken to ensure that there are appropriate and impartial avenues of appeal or review both on matters of law and on matters of fact. Indeed, the oil industry's response to the consultation draft showed its concern in this area. The DTI is still considering the appropriate mechanism to put into the regulations. Though a final conclusion has not yet been reached, an ongoing tribunal is unlikely to be the solution. Nevertheless, the regulations will have to consider a process and that additional provision will be included in the next round of DTI regulations, which it is the intention to issue in the next month or so.
  1348
  As noble Lords will recall, the regulations will now be subject to the affirmative procedure in this House and another place. We undertook, in response to anxieties expressed here and in your Lordships' Delegated Powers and Deregulation Committee, that any subsequent amendments to the sort of provisions set out in the 1990 Act would also be subject to affirmative procedure. That will include changes to the appeals procedure currently set out in the 1990 Act or any subsequent change in specific offshore regulations. We are therefore retaining a parliamentary control which will not saddle the industry with anything inflexible and nevertheless give it grounds for appeal.
  I understand the general objection of the noble Lord, Lord Dixon-Smith, to putting this provision into regulations rather than on the face of the Bill. We have been round that circle a good number of times and I doubt that we will agree tonight. Nevertheless, it is clear that the general appeals procedure applies in the regulations which are already in the Bill and there will be a parallel procedure in the DTI's regulations regarding offshore installations.
  In response to the question of the noble Baroness, Lady Hamwee, the scope of the powers included here cannot be used prior to an accident. The powers of the Health and Safety Executive and regulation of the licence are protection against the onset of an accident and therefore are not covered by these new powers. Indeed, the Donaldson Report did not recommend prior protection being covered by these powers. Statutory and other provisions spell out the responsibilities of the operator in respect of the situation prior to an accident and the situation post-salvage, after an accident. Those situations are not altered by our adaptation of the Donaldson provisions into the regulations.
  I hope that I have said sufficient to convince the noble Lord, Lord Jenkin of Roding, that in practice the procedure will lead to the DTI adopting the precedent set by the DETR.
  6.30 p.m.
  Lord Renton: My Lords, the Bill cannot come into operation until the regulations mentioned in the new clause, and those in Clause 2 of the Bill, have been approved by both Houses of Parliament. How soon is that likely to be? Until then the Bill will be a dead letter.
  Lord Whitty: My Lords, as I said, the regulations on the general part of the Bill are extant and a number of your Lordships will have seen them. The draft regulations in relation to the offshore position will be published in the next month and we expect the full process to be completed within three months. The Bill will be on the statute book, it is hoped, prior to that and we will therefore have fulfilled our commitment in relation to the EU dimension to transpose the legislation by 30th October, provided your Lordships agree my position tonight.
  Lord Jenkin of Roding: My Lords, this Bill started off on its stony passage to reaching Royal Assent

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  with perhaps the most damaging report the Delegated Powers and Deregulation Committee has ever produced. And here we are, at the final stage in this House considering the Commons amendments and we still find ourselves complaining bitterly that we are having to examine this Bill without some essential pieces of information.
  The noble Baroness on the Front Bench shakes her head. But nobody has seen a draft of the measures of appeal that her noble friend said a moment ago were under consideration by the department.
  Baroness Farrington of Ribbleton: My Lords, for the record, I was not shaking my head; I was losing my spectacles.
  Lord Jenkin of Roding: My Lords, I hope the noble Baroness has replaced her spectacles satisfactorily, but she certainly misled me.
  I accept that the noble Lord, Lord Whitty, in all good faith is assuring us that there will be an appropriate right of appeal for the companies of the industry affected by this legislation. I accept entirely the points he made about the specific application to this clause—of course we cannot have appeals taking place if emergency action has to be taken in the case of a serious accident.
  But I am sure the noble Lord realises the procedural constraints that were upon me in deciding how best to raise this matter at this final last gasp of the Bill. The only thing I could do was seek to amend a Commons amendment. No other amendment would be appropriate, so I have done that here. It is obviously in order because I have been allowed to table and speak to my amendment.
  We still do not know what the right of appeal will be. The Minister made it clear that it will not be the same as the right that applies to the generality of industry. The particular circumstances and statutory framework of the offshore oil and gas industry may make that inevitable, but I protest that we are asked to approve amendments without that crucial information. The Minister may not have taken part personally in the negotiations with the oil and gas industry but I am sure that his colleagues in the DTI have told him that there have been lengthy negotiations and that the question of appeal has been raised again and again, yet still we do not know what is to happen.
  This is the last chapter in what has been one of the most chequered pieces of legislation introduced by any government for many years. Obviously it is not appropriate to divide the House at this stage. I am sorely tempted but I fear that other distractions may make doing so rather pointless. In the circumstances, I have no option but to beg leave to withdraw the amendment; but I tell the Government Front Bench that I do so in a spirit of considerable protest.
  Amendment No. 1A, as an amendment to Commons Amendment No. 1, by leave, withdrawn.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  2 After Clause 2, insert the following new clause—

  TIME-LIMITED DISPOSAL OR WASTE MANAGEMENT LICENCES
  (" .—(1) Where

  (a) a disposal licence under section 5 of the 1974 Act became a site licence by virtue of section 77(2) of the 1990 Act (conversion, on the appointed day, of existing disposal licence under section 5 of the 1974 Act into a site licence),

  (b) the licence has expired at a time ("the time of expiry") falling before the day on which this Act is passed but not earlier than the appointed day,

  (c) the licence authorised the carrying on of activities in or on land in England or Wales, and

  (d) relevant activities have taken place at a time falling not more than one year before the day on which this Act is passed,

  the licence shall (subject to subsection (7)) for all purposes be deemed not to have expired but to have become, at the time of expiry, a site licence continuing in force in accordance with section 35(11) of the 1990 Act.
  (2) Subsection (3) applies where—

  (a) a disposal licence under section 5 of the 1974 Act expired at a time ("the time of expiry") falling before the appointed day (so that it was not converted into a site licence by section 77(2) of the 1990 Act),

  (b) the licence authorised the carrying on of activities in or on land in England or Wales. And

  (c) relevant activities have taken place at a time failing not more than one year before the day on which this Act is passed.

  (3) The licence shall (subject to subsection (7)) for all purposes be deemed—

  (a) not to have expired, and

  (b) to have been subsisting on the appointed day and (accordingly) to have become on that day a site licence by virtue of section 77(2) of the 1990 Act,

  and the site licence which the licence is deemed to have become on that day shall for all purposes be deemed to have been one that continues in force in accordance with section 35(11) of the 1990 Act.
  (4) Where—

  (a) a site licence in force immediately before the day on which this Act is passed—

  (i) became a site licence by virtue of section 77(2) of the 1990 Act, and

  (ii) will expire on or after the day on which this Act is passed (if it has not previously been revoked entirely, or had its surrender accepted, under Part II of the 1990 Act), and

  (b) relevant activities have taken place at a time falling not more than one year before that day,

  the licence shall for all purposes be deemed to have become at the beginning of that day a site licence continuing in force in accordance with section 35(11) of the 1990 Act.
  (5) Where subsection (1), (3) or (4) has effect in relation to a licence, the terms and conditions of the licence as continued in force by that subsection shall, except so far as providing for the expiry of the licence and subject to subsection (6)(b) and (c), be such as were in force immediately before the relevant time (unless and until varied under Part II of the 1990 Act); and "the relevant time" means—

  (a) where subsection (1) or (3) has effect in relation to a licence, the time of expiry;

  (b) where subsection (4) has effect in relation to a licence, the beginning of the day on which this Act is passed.

  (6) Where subsection (1) or (3) has effect in relation to a licence (but without prejudice to the generality of that subsection)—

  (a) activities carried out during the interim period which (by virtue of subsection (1) or (3)) become authorised by the licence shall be treated as authorised at the time they were carried out (even though at that time their being carried out amounted to a contravention of section 33(1)(a) or (b) of the 1990 Act or section 3(1) of the 1974 Act);

  (b) anything done in relation to the licence before the time of expiry but purporting to take effect after that time (such as the serving of a notice under section 37(4) or 38(12) of the 1990 Act, or in pursuance of section 7 of the 1974 Act, specifying a time falling during or after the interim period) shall be treated as having had (or having) effect as if the licence had not in fact expired;

  (c) anything which during the interim period purported to be done in relation to the licence (such as a modification of the licence or the revocation, suspension, transfer or acceptance of the surrender of the licence or the carrying out of consultation, exercise of functions under section 9 of the 1974 Act or section 42 of the 1990 Act, imposition of requirements during a suspension or bringing or determination of an appeal) shall be treated as having had effect as if the licence had then been in force:

  (d) any fees which (by virtue of subsection (1) or (3)) are treated as having become payable before the passing of this Act shall be taken to have become payable at the time they would have become payable had the licence not in fact expired; and

  (e) the holder of the licence shall be treated as having been, during the interim period, an authorised person for the purposes of section 34(1)(c) of the 1990 Act.

  (7) Where subsection (1) or (3) has effect in relation to a licence, a person shall not be guilty of an offence under section 33(6) or 38(10) or (11) of the 1990 Act as a result of anything done or omitted to be done during the interim period becoming (by virtue of subsection (1) or (3)) a contravention of any condition of the licence or (as the case may be) a failure to comply with any requirement imposed under section 38(9) of the 1990 Act.
  (8) Nothing in this section affects any criminal proceedings which have been concluded before the passing of this Act.
  (9) The waste regulation authority (within the meaning given by section 30(1) of the 1990 Act) shall notify the holder of a licence affected by this section of the fact that the licence is so affected and of how it is so affected.
  (10) For the purposes of this section "relevant activities", in relation to a licence, are—

  (a) any activities authorised by the licence or, in the case of an expired licence, any which would have been authorised by it had it not expired, and

  (b) any precautions or works required by the licence to be taken or carried out in connection with or in consequence of those activities or, in the case of an expired licence, any which would have been so required had the licence not expired.

  (11) In this section—

  "the 1974 Act" means the Control of Pollution Act 1974;

  "the 1990 Act" means the Environmental Protection Act 1990;

  "the appointed day", in relation to a licence, means the day which in relation to that licence is (or would have been if the licence had not previously expired) the relevant appointed day for licences (within the meaning of section 77 of the 1990 Act);

  "the interim period", in connection with a licence in relation to which subsection (1) or (3) has effect, means the period beginning with the time of expiry and ending immediately before the day on which this Act is passed;

  "site licence" has the same meaning as it has in Part II of the 1990 Act by virtue of section 35(12) of that Act.").

  Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2 and, with the leave of the House, I shall speak also to Amendments Nos. 15, 16 and 17.
  Amendment No. 2 creates another clause to deal with a problem that has come to light—that a number of waste management licences carried forward from the Control of Pollution Act 1974 were time limited and in some cases the time limits have expired without either the licence holder or the environment agencies being aware of it. The amendments remove the threat of prosecution from businesses that have in good faith been disposing of waste in the belief that they held a valid waste management licence and those who in good faith asked them to dispose of their waste.
  The amendments will provide protection for the holders of expired licences and for the environment by ensuring that the licence surrender provisions of the Environmental Protection Act 1990 apply to time-limited licences issued under the 1974 Act. It may be helpful if I explain the amendments and their effects.
  One of the deficiencies of the waste licensing system originally introduced under the 1974 Act was that those who held licences for waste operations, such as landfill sites, could hand in their licences and walk away from their responsibilities. In line with the polluter pays principle, that deficiency was rectified in the revised licensing system introduced under Part II of the 1990 Act. That Act provides that a site licence remains in force until it is revoked or a surrender application is accepted by the environment agencies. It precludes the agencies from accepting surrender applications unless they are satisfied that environmental pollution or harm to human health is unlikely to occur.
  Licences issued under the 1974 Act were subject to the transitional provision in Section 77 of the 1990 Act which did two things. One was to state that licences were to be treated as 1990 Act licences until they expired. The other was to state that they may be surrendered only in accordance with the 1990 Act. It is clearly anomalous to require a licence holder to apply to the environment agencies to surrender a site licence while the time limit remains in force but to allow the holder to walk away from his responsibilities when the time limit expires.
  A review undertaken by the Environment Agency revealed that a number of 1974 Act licences were subject to time limits and in some cases the licences have expired without either the agency or the operator being aware of it. It is a criminal offence to operate sites without a licence. However, the sites continued to be operated by the licence holders and supervised by the agency as if they had valid licences.
  The amendments serve two main purposes. First, they will validate what has happened since the expiry of licences that have already expired, including removing the threat of prosecution for site operators and those who transferred waste to them in good faith. Secondly, they will ensure that all licences—those that have expired and those that are subject to time limits and will expire in the future—are subject to the surrender provisions of the 1990 Act. That means removing the

  1353
  time limits in licences that have not yet expired. That will ensure that the environment and human health are properly protected in line with the polluter pays principle.
  Those objectives could not be achieved if, on the basis of time limits originally set under the 1974 Act, the operators of landfill sites and toxic waste treatment plants could now walk away from their responsibilities. In the Government's view, it is essential to remove those time limits to ensure that the environment and human health are properly protected—while at the same time protecting the interests of those who may inadvertently have been operating without legislative backing.
  We all regret the need for those provisions. The situation has only come to light since the Bill was drafted.
  Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Whitty.)
  6.45 p.m.
  Lord Renton: My Lords, I will avoid commenting on the substance—tempting though it is; I have two relatively minor points to make on the drafting.
  The side note refers to,
  "Time-limited disposal or waste management licences".
  Surely the word "of' should be "or". Secondly, subsection (11) of the proposed new clause states that references to the 1974 Act mean the Control of Pollution Act 1974. There is a similar explanation in respect of the Environmental Protection Act 1990 and a definition of "the appointed day" and other phrases.
  The Bill already has two definitions in Clause 5(2). Surely it would be more usual for all those definitions to be placed in one clause, instead of being separated, as they are by the new clause. I suppose it is too late to put the matter into a state of tidy order. I feel bound to point out that that is not the way we usually legislate.
  Lord Dixon-Smith: My Lords, I thank the Minister for his letter explaining the amendments that the Commons are inviting us to consider. That was most helpful of him and I am grateful.
  I understand that Commons Amendment No. 2 is necessary to legitimise something that has been going on completely illegitimately and that in certain instances we are validating what is factually a criminal offence. So be it. That is necessary.
  I would welcome the Minister's assurance in respect of one matter of concern. When local authorities and county councils were waste regulatory authorities, they used two methods to control, regulate, direct and manage waste disposal. One was the site licence, which dealt with all the environmental matters and quality control. The other was planning permission. The planning permission was the primary control matter and, if you were going to operate a valid planning permission, you had to have a site licence. But, as a matter of practice, if you had a valid site licence and you applied for an extension of planning permission, then, provided the site licence was valid and other things
  1354
  could be managed properly and it would not cause too much difficulty, the licence could be called in aid of an application to extend a planning permission.
  This is a situation which we now face and one which we may face for all time because, if I read the amendment correctly, whatever expiry date applies to the site licence—that is, whether or not it expires post the coming into force of the Act—it will be deemed, if you like, to continue. Perhaps the Minister will be able to reassure me.
  There is another point upon which I require assurance. I shall give the Minister my reasons. Perhaps we may once again consider my own county, which disposes of huge quantities of London's waste. For many years it has had a policy of trying to diminish, if not absolutely eliminate, the importation of waste into the county. That is a completely understandable policy even if, in relation to London, one has to continue to accept some of its waste for practical reasons.
  Many of the existing planning permissions in Essex which have run for many years are coming to the end of their days. I would welcome an assurance from the Minister that nothing in the amendments will endanger the achievement of that policy by my former county council. As I say, it may well be that Essex will have to continue to take some waste from London for practical reasons. However, it is not an unreasonable policy for a county in that situation to wish to diminish the practice. Moreover, it seems to me that it is not unreasonable that we in this House should ensure that nothing we do endangers the achievement of that gradual policy. I look forward to the Minister's response.
  Lord Whitty: My Lords, perhaps I may first address the points raised by the noble Lord, Lord Renton. As regards the side note in the margin of the amendment, I am not sure that the noble Lord is syntactically correct. I can see that there is a certain ambiguity there, but it means that there are two types of licence: a time-limited waste management licence and a time-limited disposal licence. Therefore, the inclusion of the word "or" is correct. If you wanted totally to clarify the matter, you could insert the word "licence" again, but the word "or" is correct.
  As to the noble Lord's other point, I should point out that the new clause does not change the definition; it effectively decrees that certain aspects of the 1990 Act will be held to apply to those inadvertently expired licences and potentially expired licences. It does not actually change the definition. Therefore, I do not think that it would be appropriate to include it within a definitional clause. In a sense, it is a different issue.
  I turn now to the remarks of the noble Lord, Lord Dixon-Smith. I believe we all recognise that this is not the tidiest of situations. Nevertheless, once we have dealt with the unexpired licences, there is nothing in the change of status of those licences that would affect the ability under planning permission rules of Essex—it is funny how often we debate the concerns of Essex in this Chamber—to alter the use of a site, or whatever. Therefore, it does not directly affect the position.

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  Regrettably, the amendments are necessary and will put the situation back into a sensible position. I hope, therefore, that the House will be able to accept them.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  3 Clause 4, page 3, line 29, after ("consequential") insert ("and minor).
  Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. In moving the amendment I shall, with the leave of the House, speak also to Commons Amendment No. 14.
  The current regulatory regimes operate under the "polluter pays" principle. The regulator is obliged to recover from operators the full cost of operating the pollution control regimes. What the 1990 legislation does not enable is charges levied by one regulator to recover money spent by another. Under the new control systems, we are looking to achieve a greater degree of co-operation between regulators—in particular, between the Environment Agency and local authorities. This will include, for example, the Environment Agency now drafting certain guidance notes for my right honourable friend the Secretary of State to issue to local authorities. At present, it would not be possible under the 1990 Act to recover the cost of that guidance. The Bill includes provisions to rectify that situation.
  However, the provisions in the Bill will only take effect once local authority regulated processes are phased into the new regime. These amendments, therefore, are designed to enable recovery of the cost of producing the guidance during the transitional period between enactment of the Bill and the phase-in date.
  Moved, That the House do agree with the Commons in their Amendment No. 3.—(Baroness Farrington of Ribbleton.)
  Lord Renton: My Lords, I am grateful to the noble Baroness for her attempted explanation. However, if we look at Amendment No. 14, which is grouped with Amendment No. 3, we find that it says:
  "The Environmental Protection Act 1990 has effect subject to the following amendments".
  It then purports to amend Section 8(7) of the 1990 Act. However, if we turn to Schedule 3 to this Bill, we find that Sections 1 to 28 have been repealed. Therefore, how can we be amending Section 8? It seems to me to be the most extraordinary legislative attempt, and one which is not valid. We are attempting to amend something that the Bill says should be repealed. How can that be?
  Baroness Farrington of Ribbleton: My Lords, my understanding is that the repeal has been included in the schedule so as to enable the reproduction of the provisions in regulations at the appropriate stage.
  Lord Dixon-Smith: My Lords, it seems to me that we are in a slight procedural hiatus. I entirely understand that part of the 1990 is being repealed in order to permit
  1356
  its, if you like, reincarnation in the form of regulations. But, unfortunately, this particular amendment does not refer to the putative regulations; indeed, it refers to amending the Act. Therefore, I feel bound to support the point made by my noble friend. I am sure that the intention is that those provisions should be transposed into the regulations, but that it not actually what we have in front of us.
  Baroness Farrington of Ribbleton: My Lords, the point here is that this is a transitional measure. The repeal of Sections 1 to 8 of the Environmental Protection Act 1990 will not be commenced until the year 2007.
  On Question, Motion agreed to.
  7 p.m.

  COMMONS AMENDMENT
  4 Clause 5, page 4, line 5, leave out second ("section") and insert ("sections (Prevention etc. of pollution after accidents involving offshore installations) and").
  Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4.
  Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord Whitty.)
  On Question, amendment agreed to.

  COMMONS AMENDMENT
  5 Clause 5, page 4, line 20, leave out ("22(5) of the Oil and Gas (Enterprise) Act 1982") and insert ("10(8) of the Petroleum Act 1998").
  Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.
  Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord Whitty.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  6 Clause 5, page 4, line 22, leave out subsection (10).
  Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6, which removes the standard provision inserted to avoid questions of privilege.
  Moved, That the House do agree with the Commons in their Amendment No. 6.—(Baroness Farrington of Ribbleton.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  7 Schedule 1, page 5, line 36, leave out ("otherwise than") and insert (", or otherwise carrying on any activities of any specified description, except").
  Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7. I wish to speak also to Amendments Nos. 8 and 9.

  1357
  When I brought forward amendments earlier in the passage of this Bill, to limit its scope to those matters set out in Schedule 1, as requested by your Lordships' House, I explained that consequential amendments to that schedule might be necessary to ensure that it became an exhaustive rather than—as was originally intended—an indicative list of matters which need regulating.
  Having had the opportunity to consider the effect of the Bill in its amended form, we want to make it clear in paragraph 4 to Schedule 1 that a permit will continue to be required for certain activities such as storing coal or storing iron ore which are already currently regulated under the 1990 Act. At the moment the schedule refers only to requiring permits to operate "installations or plant". This could be taken to exclude certain things such as the storage activities I have mentioned which are already regulated under the preceding legislation. We must, of course, continue to regulate those activities and the amendments therefore simply roll forward provisions contained in the current legislation.
  Moved, That the House do agree with the Commons in their Amendment No. 7.—(Lord Whitty.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  8 Schedule 1, page 6, line 8, after ("changes") insert ("—
  (a)")
  9 Page 6, line 9, at end insert (", or
  (b) in the case of permits for the carrying on of activities otherwise than in the course of operating any installation or plant, in the carrying on of the activities.").
  Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 8 and 9.
  Moved, That the House do agree with the Commons in their Amendments Nos. 8 and 9.—(Lord Whitty.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  10 Schedule 1, page 6, line 36, after ("information") insert ("—
  (i)") .
  Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10. 1 wish to speak also to Amendment No. 11.
  This is a measure inserted in response to the procedures in another place. This Bill covers a number of regulatory matters regarding pollution. This measure will cover the entitlement of people to know exactly what is coming into their homes and elsewhere.
  In May my right honourable friend the Minister for the Environment launched the Environment Agency's new pollution inventory giving people access to up-to-date information about emissions from the installations which the agency regulates under the integrated pollution control regime. It is proving extremely popular, with 700 to 800 visits a week on the Internet.
  1358
  The Government would like to see the inventory become even more informative. The Environment Agency will consult on extending it to cover the landfill sites and sewage works which it now regulates and my department will consult on the possibility of including information on emissions from the 13,000 or so installations which local authorities regulate under the local air pollution control system. The Bill already contains the power to cover those additional installations.
  These amendments would permit information also to be gathered on energy use and the destination of waste from installations. They are enabling powers and they do not in any way presuppose that we shall choose to collect this information in all instances. The expansion of the inventory must, of course, proceed at a sensible pace in the light of full consultation and with any burdens on business properly considered and justified by reference to the benefits. We may, for example, find that we already have sufficient information about energy use as a result of the energy efficiency requirements of this new regime and other initiatives. We would not expect businesses to have to track the journey of their waste through its various multifarious stages. Nevertheless I believe that it is sensible to take the opportunity provided by this Bill, as the Commons felt was sensible, to enable such information to be gathered in future if it would prove beneficial.
  Access to information about pollution is a vital part of a fair, modern and open society. It has proved a powerful force for environmental improvement in other countries including the United States. This Government intend that information should be similarly available here where appropriate. As I say, these are enabling powers and each enactment would need to be considered carefully together with the industries to which it applied.
  Moved, That the House do agree with the Commons in their Amendment No. 10.—(Lord Whitty.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  11 Schedule 1, page 6, line 36, at end insert—
  ("(ii) on energy consumption and on the efficiency with which energy is used;
  (iii) on waste within the meaning of the regulations and on the destinations of such waste;").
  Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11.
  Moved, That the House do agree with the Commons in their Amendment No. 11.—(Lord Whitty.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  12 Schedule 1, page 7, line 42, leave out ("to") and insert
  (", 158 and").
  Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12. I wish to speak also to Amendment No. 13.

  1359
  These are a couple of technical amendments which are needed to ensure that the new regulations can apply to the Crown, including to Her Majesty and the Prince of Wales in their private capacity. My officials have been in discussion with the Palace authorities to agree the detail of how the regulations will apply.
  Moved, That the House do agree with the Commons in their Amendment No. 12.—(Baroness Farrington of Ribbleton.)
  Lord Renton: My Lords, as this is the last group of amendments which we shall be discussing I hope that I may say how grateful we are to the noble Lord, Lord Whitty, and to the noble Baroness, for their attempts to explain this Bill to us at its various stages.
  I have to say, as I have suggested before, that it is the most chaotic piece of legislation within my recollection, having been in one House or another of Parliament for 54 years. I do not think that the noble Lord, Lord Whitty, can be blamed. I should think that it has gathered momentum behind the scenes and alternatives have been presented which have been impossible to resist. But I do think that as Ministers bear responsibility for what happens they must accept their responsibility. Nevertheless I feel sorry for the noble Lord and am grateful to him for his attempts to explain the impossible.
  When the regulations come before us—the Bill will not be effective until they do—we shall have to consider them carefully even though we cannot amend them. They will be of vital importance. Above all, I refer to the amount of legislation by reference to previous statutes, partly repealed and partly not repealed. That is something that we should not present the users of the statute with. They will be people performing vital tasks within our civilisation, not only in this country but also abroad. I hope that when the regulations have been passed—I cannot ask for a firm assurance on this at the moment as the noble Lord would, of course, have to consult his colleagues—and approved by both Houses of Parliament (if they are), there will without delay be an attempt to consolidate the provisions of this Bill with the relevant provisions of previous legislation so that the people who will be bound by and apply the provisions of this Bill will be able to look at one statute instead of at four or five statutes and a number of regulations. There is nothing to prevent regulations being replaced in due course by primary legislation. That can be done; I hope that eventually it will be done. In the meanwhile, having made the protest, I hope that the Minister will enjoy the Recess which he so much deserves.
  Baroness Farrington of Ribbleton: My Lords, on behalf of my noble friend the Minister I thank the noble Lord, Lord Renton, for his good wishes for my noble friend's Summer Recess. Let me place on record, as I tried to say earlier, that some of the complexities are because the repeal will not take effect straightaway. The amendment to which I believe the noble Lord was speaking in general terms, Amendment No. 14, deals with the period before then. The repeal can be commenced only when the Secretary of State orders,
  1360
  using the provision at Clause 5(3). This legislation deals with the repeal of legislation, but it cannot take effect until the appropriate stage. I commend Commons Amendment No. 12 to the House.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  13 Schedule 1, page 8, line 4, at end insert—
  ("() Making provision about the application of the regulations to the Crown.").
  Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 13.
  Moved, That the House do agree with the Commons in their Amendment No. 13.—(Baroness Farrington of Ribbleton.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  14 Schedule 2, page 9, line 23, at end insert—
  (" . The Environmental Protection Act 1990 has effect subject to the following amendments.
  . In section 8(7) (expenditure to be covered by charging schemes under the section is that of local enforcing authorities in exercising their functions under Part I of the Act). at the end insert "together with the expenditure incurred by the Environment Agency in exercising, in relation to authorisations granted by local enforcing authorities or the prescribed processes to which such authorisations relate, such of its functions as are specified in the scheme."")
  15 Page 9, line 23, at end insert—
  (" . In section 77(2) (waste disposal licences: transition from Part I of the Control of Pollution Act 1974). at the beginning insert "Subject to section (Time-limited disposal or waste management licences) of the Pollution Prevention and Control Act 1999,".").
  16 Page 9, line 25, after ("1") insert ("of the Act").
  17 In the Title, line 2, after ("pollution;") insert ("to make provision about certain expired or expiring disposal or waste management licences;").
  Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 14 to 17.
  Moved, That the House do agree with the Commons in their Amendments Nos. 14 to 17.—(Baroness Farrington of Ribbleton.)
  On Question, Motion agreed to.

Employment Relations Bill
7.12 p.m.
The Minister of State, Department of Trade and Industry (Lord Simon of Highbury): My Lords, I beg to move that the Commons amendment and reason be considered forthwith.
Moved, that the Commons amendment and reason be considered forthwith.—(Lord Simon of Highbury.)
On Question, Motion agreed to.

Employment Relations Bill
  MOTIONS TO BE MOVED ON CONSIDERATION OF COMMONS REASON FOR DISAGREEING TO A LORDS AMENDMENT AND A COMMONS AMENDMENT TO ANOTHER LORDS AMENDMENT
  [The page and line refer to HL Bill 48 as first printed for the Lords]

  LORDS AMENDMENT
  17 Clause 15, page 8, line 20, at end insert—
  ("(4) The payment of higher wages or higher rates of pay or overtime or the payment of any signing on or other bonuses or the provision of other benefits having a monetary value to other workers employed by the same employer shall not constitute a detriment to any worker not receiving the same or similar payments or benefits within the meaning of subsection (1)(a) of this section so long as—

  (a) there is no inhibition in the contract of employment of the worker receiving the same from being the member of any trade union, and

  (b) the said payments of higher wages or rates of pay or overtime or bonuses or the provision of other benefits are in accordance with the terms of a contract of employment and reasonably relate to services provided by the worker under that contract,

  and paragraph 4 of Schedule 2 to this Act and sections 146 and 148(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 shall be construed accordingly.")
  The Commons disagreed to the above amendment for the following reason—
  17A Because it is inappropriate to restrict regulations under Clause 15 in this way.
  Baroness Miller of Hendon Baroness Miller of Hendon rose to move, That the House do not insist on their Amendment No. 17, to which the Commons have disagreed for their reason numbered 17A, but do propose the following amendment in lieu thereof:
  17B Page 8, line 20. at end insert—
  ("(4) The payment of higher wages or higher rates of pay or overtime or the payment of any signing on or other bonuses or the provision of other benefits having a monetary value to other workers employed by the same employer shall not constitute a detriment to any worker not receiving the same or similar payments or benefits within the meaning of subsection (1)(a) of this section so long as—

  (a) there is no inhibition in the contract of employment of the worker receiving the same from being the member of any trade union, and

  (b) the said payments of higher wages or rates of pay or overtime or bonuses or the provision of other benefits are in accordance with the terms of a contract of employment and reasonably relate to services provided by the worker under that contract.")

  The noble Baroness said: My Lords, I beg to move.
  The amendment I am moving today is very similar to the one passed at the Committee stage in your Lordships' House. I moved that amendment because, although the Government had indicated that they would bring forward their own amendment to achieve the same objectives as mine, they had at that time been unable to do so. Indeed, subsequently the noble Lord, Lord Simon of Highbury, told me, both in a letter and at a meeting,
  1362
  that there had been certain problems in drafting an amendment. After discussions with Ministers at the end of last week, a mutually acceptable approach was reached in the form of this amendment. I understand that the Government will accept the amendment both here and in the other place.
  Moved, That the House do not insist on their Amendment No. 17, to which the Commons have disagreed for their reason numbered 17A, but do propose Amendment No. 17B in lieu thereof.— (Baroness Miller of Hendon.)
  Lord McIntosh of Haringey: My Lords, I am most grateful to the noble Baroness for the way in which she has moved this amendment. I am pleased to confirm that the Government can accept it in its latest form and will do so here and in another place. It was our intention to replace the power in Clause 17 with a substantive provision. Unfortunately, that proved not to be possible in the time available. We had informal consultations with interested parties which revealed complications. In the end we judged it better to give ourselves more time to deal with the issue.
  Nevertheless, I should take this last opportunity to restate briefly the Government's position. We made it clear in the Fairness at Work White Paper and subsequently that the existing law allows an employer and worker, if they wish, to conclude a contract on terms which differ from those of a collective agreement which would otherwise apply to the worker. That is the position now and it will continue to be the position once the scheme for statutory trade union recognition is in place.
  Of course, collective agreements are increasingly sophisticated and many already provide flexibility in the form of performance related pay and benefits, for example. So employers who have negotiated such agreements may feel no need to negotiate different terms for individual workers. But other employers may wish to do so. They are free to do so and they will continue to be free to do so. The only proviso is that in doing so they must not discriminate in an unlawful way; for example, on grounds of race, sex, disability, trade union membership or non-membership. We believe employees should be protected against dismissal or detriment if they refuse to give up the terms of a collective agreement. For example, it should not be permissible for an employer to say, "Unless you agree to an individual contract and give up the collective agreement, I will see that you are never promoted again". We shall continue to work to draw up regulations to protect workers from such pressures.
  We agree with the noble Baroness that the mere fact that one worker has received benefits under an individual contract cannot constitute a detriment for those who do not receive such terms. Of course it will remain unlawful to link the granting or the withholding of benefits to a worker's membership or non-membership of a trade union.
  The Government would have preferred to deal with these matters in the regulations. However, I accept that the point was of particular importance to the noble

  1363
  Baroness and her colleagues and I am pleased that we have been able to reach a mutually agreeable compromise which will allow the Bill to complete its passage today.
  Baroness Miller of Hendon: My Lords, I am grateful to the Minister for clarifying the situation. I ask the House again not to insist on their amendment to which the Commons have disagreed and to agree to Amendment No. 17B.
  On Question, Amendment No. 17B agreed to.

  LORDS AMENDMENT
  323 After Schedule 7, insert the following new schedule—

  SCHEDULE NATIONAL SECURITY
  1. The following shall be substituted for section 193 of the Employment Rights Act 1996 (national security)—
  "National security.
  193. Part IVA and section 47B of this Act do not apply in relation to employment for the purposes of—

  (a) the Security Service,

  (b) the Secret Intelligence Service, or

  (c) the Government Communications Headquarters."

  2. Section 4(7) of the Employment3 Tribunals Act 1996 (composition of tribunal: national security) shall cease to have effect.
  3. The following shall be substituted for section 10 of that Act (national security, &c.)—
  "National security.
  10—(1) If on a complaint under—

  (a) section 146 of the Trade4 Union and Labour Relations (Consolidation) Act 1992 (detriment: trade union membership), or

  (b) section 111 of the Employment Rights Act 1996 (unfair dismissal),

  it is shown that the action complained of was taken for the purpose of safeguarding national security, the employment tribunal shall dismiss the complaint.
  (2) Employment tribunal procedure regulations may make provision about the composition of the tribunal (including provision disapplying or modifying section 4) for the purposes of proceedings in relation to which—

  (a) a direction is given under subsection (3), or

  (b) an order is made under subsection (4).

  (3) A direction may be given under this subsection by a Minister of the Crown if—

  (a) it relates to particular Crown employment proceedings, and

  (b) the Minister considers it expedient in the interests of national security.

  (4) An order may he made under this subsection by the President or a Regional Chairman in relation to particular proceedings if he considers it expedient in the interests of national security.
  (5) Employment tribunal procedure regulations may make provision enabling a Minister of the Crown, if he considers it expedient in the interests of national security—

  (a) to direct a tribunal to sit in private for all or part of particular Crown employment proceedings;

  (b) to direct a tribunal to exclude the applicant from all or part of particular Crown employment proceedings;

  (c) to direct a tribunal to exclude the applicant's representatives from all or part of particular Crown employment proceedings;

  (d) to direct a tribunal to take steps to conceal the identity of a particular witness in particular Crown employment proceedings;

  (e) to direct a tribunal to take steps to keep secret all or part of the reasons for its decision in particular Crown employment proceedings.

  (6) Employment tribunal procedure regulations may enable a tribunal, if it considers it expedient in the interests of national security, to do anything of a kind which a tribunal can be required to do by direction under subsection (5)(a) to (e).
  (7) In relation to cases where a person has been excluded by virtue of subsection (5)(b) or (c) or (6), employment tribunal procedure regulations may make provision—

  (a) for the appointment by the Attorney General, or by the Advocate General for Scotland, of a person to represent the interests of the applicant;

  (b) about the publication and registration of reasons for the tribunal's decision.

  (8) Proceedings are Crown employment proceedings for the purposes of this section if the employment to which the complaint relates—

  (a) is Crown employment, or

  (b) is connected with the performance of functions on behalf of the Crown.

  (9) The reference in subsection (4) to the President or a Regional Chairman is to a person appointed in accordance with regulations under section 1(1) as—

  (a) a Regional Chairman,

  (b) President of the Employment Tribunals (England and Wales), or

  (c) President of the Employment Tribunals (Scotland).

  Confidential information.
  10A.—(1) Employment tribunal procedure regulations may enable an employment tribunal to sit in private for the purpose of hearing evidence from any person which in the opinion of the tribunal is likely to consist of—

  (a) information which he could not disclose without contravening a prohibition imposed by or by virtue of any enactment,

  (b) information which has been communicated to him in confidence or which he has otherwise obtained in consequence of the confidence reposed in him by another person, or

  (c) information the disclosure of which would, for reasons other than its effect on negotiations with respect to any of the matters mentioned in section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, cause substantial injury to any undertaking of his or in which he works.

  (2) The reference in subsection (1)(c) to any undertaking of a person or in which he works shall be construed—

  (a) in relation to a person in Crown employment, as a reference to the national interest,

  (b) in relation to a person who is a relevant member of the House of Lords staff, as a reference to the

  1365
  national interest or (if the case so requires) the interests of the House of Lords, and

  (c) in relation to a person who is a relevant member of the House of Commons staff, as a reference to the national interest or (if the case so requires) the interests of the House of Commons.

  Restriction of publicity in cases involving national security.
  10B.—(1) This section applies where a tribunal has been directed under section 10(5) or has determined under section 10(6)—

  (a) to take steps to conceal the identity of a particular witness, or

  (b) to take steps to keep secret all or part of the reasons for its decision.

  (2) It is an offence to publish—

  (a) anything likely to lead to the identification of the witness, or

  (b) the reasons for the tribunal's decision or the part of its reasons which it is directed or has determined to keep secret.

  (3) A person guilty of an offence under this section is liable on summary conviction to a tine not exceeding level 5 on the standard scale.
  (4) Where a person is charged with an offence under this section it is a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication in question was of, or included, the matter in question.
  (5) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

  (a) a director, manager, secretary or other similar officer of the body corporate, or

  (b) a person purporting to act in any such capacity,

  he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
  (6) A reference in this section to publication includes a reference to inclusion in a programme which is included in a programme service, within the meaning of the Broadcasting Act 1990."
  4. Section 28(5) of the Employment Tribunals Act 1996 (composition of Appeal Tribunal: national security) shall cease to have effect.
  5.—(1) Section 30 of that Act (Appeal Tribunal Procedure rules) shall be amended as follows.
  (2) In subsection (2)(d) for "section 10" substitute "section 10A".
  (3) After subsection (2) insert—
  "(2A) Appeal Tribunal procedure rules may make provision of a kind which may be made by employment tribunal procedure regulations under section 10(2), (5), (6) or (7).
  (2B) For the purposes of subsection (2A)—

  (a) the reference in section 10(2) to section 4 shall be treated as a reference to section 28, and

  (b) the reference in section 10(4) to the President or a Regional Chairman shall be treated as a reference to a judge of the Appeal Tribunal.

  (2C) Section 10B shall have effect in relation to a direction to or determination of the Appeal Tribunal as it has effect in relation to a direction to or determination of an employment tribunal."
  6. After section 69(2) of the Race Relations Act 1976 (evidence: Minister's certificate as to national security, &c.) there shall be inserted—
  "(2A) Subsection (2)(b) shall not have effect for the purposes of proceedings on a complaint under section 54."
  7. Paragraph 4(1)(b) of Schedule 3 to the Disability Discrimination Act 1995 (evidence: Minister's certificate as to national security, &c.) shall cease to have effect.")

  COMMONS AMENDMENT
  323A At the end of subsection (7) of the new section 10 of the Employment Tribunals Act 1996, insert—
  ("(c) permitting an excluded person to make a statement to the tribunal before the commencement of the proceedings, or the part of the proceedings, from which he is excluded.")
  Lord Sainsbury of Turville: My Lords. I beg to move that the House do agree with the Commons in their Amendment No. 323A to Lords Amendment No. 323.
  The Bill provides that a Minister may direct that an applicant and his representative be excluded from all or part of the proceedings where the interests of national security require it. We anticipate that the power to exclude from all future proceedings will be used rarely and only in the most extreme circumstances where national security interests could not be adequately protected otherwise. Where an applicant and his representative are excluded from proceedings, the Attorney-General, or in Scotland the Advocate General, will appoint someone to represent the applicant's interests.
  At Third Reading the concern was expressed that if the applicant was excluded from all the remaining proceedings he would not have the opportunity to make a statement of his case. Since it is government policy that such a statement should be able to be made where an applicant is so excluded, I undertook to see what needed to be done to ensure that the regulations would provide for this. This amendment is the result. It provides the vires for regulations to be made permitting an excluded person to make a statement to the tribunal. I am grateful to the noble Lord, Lord Razzall, and the noble and learned Lord, Lord Archer, for bringing to our attention this defect in the Bill.
  To make the position absolutely clear, the Secretary of State in another place gave a commitment that the procedure regulations will provide that such a statement can always be made to the tribunal where the applicant is being excluded from the remaining proceedings. He also said that in drawing up the regulations he will consult members of the Intelligence and Security Committee.
  To sum up, the amendment will ensure that a statement of case can always be made where the applicant is being excluded from all the remaining proceedings. At the same time it does not prevent the exclusion of the applicant from all of the proceedings, which will continue after the statements, in those rare instances where a Minister of the Crown has made a direction to that effect in the interests of national security. Accordingly, I hope that noble Lords will agree to the Commons amendment.
  Moved, That the House do agree with the Commons in their Amendment No. 323A to Lords Amendment No. 323.—(Lord Sainsbury of Turville.)
  Viscount Thurso: My Lords, this amendment stems from the amendment moved by my noble friend Lord Razzall at Third Reading. We are very grateful to the Government for having taken on board the points mode

  1367
  and for bringing forward this amendment. I am grateful to see the noble and learned Lord, Lord Archer of Sandwell, in his place because I know that he is going to give us a far more comprehensive explanation of this matter than I could.
  However. I express our unhappiness at the fact that the amendment goes only some 60 per cent of the way. While we are extremely happy that at least the applicant now has the opportunity to make his case prior to being excluded, there is not much that he can do afterwards if he chooses to disagree. As my honourable friend Alan Beith said in another place,
  "We remain concerned, however, that the power is not capable of satisfactory review, other than by taking a case to court on judicial review at the applicant's expense".—[Official Report, Commons, 21/7/99; col. 1256.]
  Surely, the suggestion made in another place that members of the commission should be empowered to review the exercise of the Minister's powers was a modest and sensible suggestion and one which this Government of all governments might have felt able to consider.
  Having stated our unhappiness at that aspect, we are grateful that the first point was taken on board and that this amendment has been brought to us. It is a shame that it is so late in the day that I do not believe that there is anything that I can do about the other part. I am not even sure what the constitutional position would be if I asked your Lordships to do anything about it. So I shall just have to take the hump and leave it at that.
  Lord Archer of Sandwell: My Lords, it grieves me to disappoint the noble Viscount, but I suspect that if I were to undertake a comprehensive survey of the position at this point it would not improve my popularity in your Lordships' House.
  Noble Lords: Hear, hear!
  Lord Archer of Sandwell: My Lords, I seem to have touched a deep note. I thank my noble friend for having listened to our representations. It is not a schedule I would have drafted in a perfect world, which I define as one in which I draft all the Government's legislation. My noble friend has listened and I am grateful for that.
  Baroness Miller of Hendon: My Lords, we on these Benches are grateful for the movement that the Government have made in this matter. We were obviously very disappointed when, on 15th July, the noble Lord, Lord Razzall, felt it necessary to withdraw the amendment because we considered that it covered the situation better than the amendments we have seen today, particularly because my right honourable friend in another place, the Member for Bridgwater, tabled the same amendment which the Secretary of State pointed out was not necessary because the Government had gone 60 per cent of the way in their amendment and promised to try to go 100 per cent of the way via the regulations. However, he conceded that it was almost impossible to achieve 100 per cent success.
  1368
  We are sad that we are being offered admittedly flawed legislation as regards the 40 per cent we have not got when the Government, in the person of the Prime Minister no less, on receiving the original recommendations from the Intelligence and Security Committee that my right honourable friend chaired, suggested acceptance and the Employment Relations Bill as the vehicle for the amendment.
  I am not going to say, like the noble Viscount, Lord Thurso, that I will have to accept it with the hump. We are grateful for the movement made. We would have liked a little more, but never mind.
  Lord Sainsbury of Turville: My Lords, I would not want to delay people either on this point. If one looks at the matter carefully, I believe it will be seen that we have far more than 60 per cent. I believe the basic issue is covered of being able to make the statement and that the way in which we are doing it covers the technical point, but that if it was not done in such a manner it might make it impossible to exclude people from the rest of the proceedings. That would not be correct.
  As regards reviewing the Minister's use of directional power, I believe that a judicial review is an appropriate remedy for determining whether a Minister has misused or abused his power. A Minister would have to justify the use of his power in an adversarial context and, much more important, such a review would provide an immediate remedy to the applicant if a Minister was found to have acted improperly.
  As regards the funding of the judicial review that is the mechanism for contesting a Minister's use of his power of direction, where the applicant wishes to be represented, depending on the circumstances, he may be eligible for legal aid. On that basis I ask the House to agree with Commons Amendment No. 323A as an amendment to Lords Amendment No. 323.
  On Question, Motion agreed to.

The Tote
7.26 p.m.
Viscount Astor Viscount Astor rose to ask Her Majesty's Government what is their response to the steering group's recommendations on the future of the Tote.
The noble Viscount said: My Lords, earlier this year, on 12th May, the Home Secretary announced that the Tote should be transferred to the private sector and he rejected the possibility of the Tote being transferred to racing without consideration. In doing so he went back on the clear commitment given by Robin Cook before the last election when he said:
"There will be no proposal by Labour to sell the Tote".
This recent announcement prompted my noble friend Lord Burnham to ask the Government on 10th June the Question, "Who owns the Tote". The Minister then gave an answer that was so opaque that it would have made

1369
Sir Humphrey glow with pride. I believe that the Answer is worth repeating. It states,
"My Lords, the Horserace Totalisator Board is a non-departmental public body whose members are appointed by the Home Secretary. Technically, it is these appointed members who are responsible for the assets owned by the Tote but they do not actually own the assets. Therefore, before the Tote can be sold it will be necessary to introduce primary legislation to change its status and bring it fully within public ownership".
That reply must get the prize in this Parliament for not answering the question. I congratulate the Minister.
If only that were the end of this sorry tale, but, sadly, it is not, because the Minister, with great courtesy, of course, went on to say that the Tote is,
"a body corporate with perpetual succession and a common seal".—[Official Report, I0/6/99: cols. 1541–4.]
Of course, that is factually correct, but a glimpse of light? Again, sadly, no. The Minister was pressed and asked what did it all mean. The noble Lord, Lord Williams, then fell back on that old standby of turning to page two of the brief and looking for something else to say. He found an answer and announced triumphantly, "We have a steering group report, which made recommendations". He said it once to another question, he said it again arid in all he said it three times. But it was obfuscation.
The steering group was composed of seven members. One might have thought that some of these would have been independent or even perhaps represented racing. Not a chance. Of the seven, five were the Minister's own officials from the Home Office; the sixth was an official from the Treasury, all with the vested interests of their political masters. The seventh member, and chairman of the group, was Peter Jones, the chairman of the Tote, himself not without an interest, and heavily outnumbered by officials.
One can picture the scene in the Home Office a few months ago with the Minister saying, "What can we do about the Tote? We want to privatise it but the Treasury want to keep the money". Sir Humphrey replies, "Don't worry, Minister, we will commission a steering group report". The Minister asks, "What if it recommends something we don't want?". Sir Humphrey says, with a big smile and no doubt a conspiratorial look, "Don't' worry, Minister. We will pack it with our own people". That is what we have been given: a report by Government, written for the benefit of Government, by government officials and with a conclusion that I believe is detrimental to the racing industry.
The Minister should be embarrassed by the report. Why? Because it fails to deal with the central issue of who owns the Tote. The report claims that the taxpayer—namely, the Treasury—has an interest, but offers no credible evidence to back up the claim. It is a conclusion that not only do I not agree with, but the majority of those involved in racing also do not agree with it. Why the chairman of the Tote put his name to this report, I do not know.
Perhaps I may remind the House that the Tote was established by a private Act of Parliament in 1928. It was set up to provide pool betting as an alternative to fixed odds betting, and to provide a source of income for racing. It was not financed by government and it
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never has been. It was financed by loans from racing. The Government do not stand behind the Tote, do not guarantee it in any way, and indeed do not own any shares in it.
The report makes the dubious claim that the Government provided the statutory arrangement. That is not true. Parliament, by a private Bill, provided the statutory arrangement. The steering group report claims that a change in the status of the Tote would need to have regard to the interests of the taxpayer. The taxpayer already has an interest as the Tote is very much like any other bookmaker. It is already providing revenue for the Exchequer.
The Tote makes contributions as a bookmaker to the Horserace Betting Levy Board in respect of off-course starting price and Tote odds. Payments to the levy board in the year to 1999 from bookmakers were £52 million, and payments from the Tote in the same year were £4.5 million. The total income to the levy board was around £57 million and the Tote contribution was therefore less than 10 per cent. In 1999 the Tote also returned to racing £2 million in sponsorship and donations, as well as £6.5 million in payments to racecourses for the facilities it uses. Therefore it made a total return to racing, including levy payments. of £12 million. Total racecourse sponsorship is £13.3 million, so the Tote provides about 15 per cent of all sponsorship. The Tote also paid just under £3 million in corporation tax to the Exchequer, as well as its share of betting duties of £21.3 million.
Bookmakers pay around £450 million in betting duty, and I should point out that bookmakers also sponsor racing. Furthermore, they pay £3 million in admission charges to racecourses for the facilities they use, and a percentage of turnover of around £1 million. The Tote retained profits of just under £8 million last year—not a dissimilar percentage to that which the bookmakers retained for their shareholders.
I do not mention these figures to be critical of the Tote, but to put its contributions into context with contributions made by others. Bookmakers make an important but arguably inadequate contribution to racing. Others in the racing industry, in particular racehorse owners and breeders, make a larger contribution. I contend that the Exchequer is already protected and that no decent case has been made that the Treasury should be able to collect the money from the sale of the Tote. To do so would be, I believe, a flagrant abuse of power.
In 1961 the Home Secretary acquired the power to appoint board members, in addition to his power to appoint the chairman. That did not give the Government ownership of the Tote. Indeed, prior to this change, racing appointed a majority of seven out of its 11 members. I believe that the Tote is owned in trust for racing, and I believe that its board members know and understand that. The proof of this is that the Government propose to introduce primary legislation to sell the Tote. If they really owned the Tote, they would not need that legislation.
One unique aspect of the Tote that separates it from other bookmakers is the exclusive right to operate pool betting. There, I believe, is perhaps a conundrum. The

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problem is that I do not see how a monopoly can be privatised with no protection either for the taxpayer or indeed for racing without falling foul of competition rules and legislation. A privatised Tote may be a huge success, but what if it was a failure, the pool went down and payments to racing collapsed? As we know, racing needs all the money it can get. It is underfunded and contributions from betting are under threat from the Internet and other bookmakers based abroad who pay no duty.
What could racing do in that situation? It could do nothing but grin and bear it. There would be no protection for racing at all. That is why I am totally against the idea of the present Tote paying off the Treasury and privatising itself. It would be answerable to no one but itself, racing would lose out and the present lack of accountability would be even worse. The Tote should be held in trust for racing and the trustees should be the British Horseracing Board. That follows the recommendations of the report of the Home Affairs Select Committee which stressed the need for an accountable body and one that should be responsible to representative groups of all who work in the racing industry.
Who would run the Tote? It is constrained by its status; it does not have the money for greater investment and it is restricted in its ability to borrow or raise money. The future Tote needs vision to expand its horizons. What I believe the Government should consider is that, in a manner similar to the National Lottery, management of the Tote should be put out under licence from the BHB to competitive tender. The licence period could be five, seven or 10 years. The bidder that offered to invest most and guarantee the largest return to racing over the licence period would win the licence. Racing would win, betting duty would be paid, levy payments would be paid and tax would be paid. The taxpayer would be protected and, most importantly, in recognition of having the monopoly of the pool, the Treasury could receive a share, just as it does from the National Lottery.
Like the National Lottery, the licence would be subject to clear conditions, including protection for existing employees. Thought needs to be given as to whether the Tote betting shops sit well with the pool now that Tote Direct is such a success. If the conditions of the licence were not met, the licence could be withdrawn. I am sure there would be many interested bidders, including the present management.
My proposal has one other great merit. I am advised that it does not require primary legislation. It would be possible to transfer the Tote merely by altering the right of appointment to the board. That would avoid the whole cumbersome process of legislation and a prolonged delay for a slot in the legislative timetable. Even if the Home Office lawyers disagree, as indeed they might—lawyers often do disagree with each other—my proposal could then be achieved by a short private Bill.
I am rather critical of the chairman of the Tote, for one reason: the steering group report. However, let me make it absolutely clear that I believe that Peter Jones is the right man for the job. I think he is running the
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Tote extremely well and I am full of admiration for his enthusiasm and, indeed, his commitment to racing. I would ask him only one simple thing: please do not give in to the Minister without a fight. I welcome the recent affirmation from the chairman of the Tote that it should be kept within racing. I do not mind the creation of a racing trust, but the trustees should be the BHB, which represents the whole of racing.
In the final recommendation of its report published in 1991, the Home Affairs Select Committee stated:
"The opportunity to acquire the Tote free is a wonderful incentive for racing to put its house in order".
Racing has put its house in order and it deserves the Tote. I have been critical of the Minister and his report. Of course, he is a well-trained lawyer, and, as he said recently at Question Time, he has in the past acted for and also against the Tote. For that reason, I am sure he will see both sides of the argument. I am equally sure that we will not get a definitive answer from him tonight. But I hope we will have a commitment that he will carefully study all the speeches and ideas that have been put forward this evening.
All noble Lords will support the Minister if he is robust with the Treasury. Finally, I hope the Minister will use his well-deserved break in the Summer Recess to go racing. I am sure he will be warmly welcomed on the racecourses, and that he will enjoy his day. If he wants to place a bet, I am sure that the Foreign Secretary will even offer him a tip.
7.40 p.m.
Lord Sandberg: My Lords, We are indebted to the noble Viscount, Lord Astor, for introducing this matter. It is of vital importance to the health of the racing industry in this country. We are debating the future of the Tote in the 21st century rather than its importance, which is clear to us all and was set out in the noble Viscount's speech.
We may have missed a trick a few years ago, when we could have allowed the Tote to have an off-course monopoly. But that is now water under the bridge. We now have to square the circle of more for the Treasury, if that is possible, and more for racing. The former problem for the Treasury has been highlighted by the recent move offshore by a prominent bookie, with perhaps more to follow. The latter problem is that racing, like every other sport in this country, is always in need of funding.
The Tote is indeed a strange animal. No one owns it. As a generality, it is owned by the country. I do not take quite such a jaundiced view as the noble Viscount. In 1928, when the Tote was formed, people did not think that far ahead—the more the pity. That is a fact of life with which we must live. Matters have moved on since then. Significantly, and probably without precedent for institutions owned by the country, the Tote received no start-up capital from government, and has never received government funding. On the other hand, it brings in tax to the Treasury.
The Tote has grown in recent years from dealing merely with pool betting on the racecourse to cover telephone betting and high street outlets. It also takes

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bets on other sporting events. In March this year, its profit before contribution was nearly £24 million. Racing received about £22 million from betting levy, course admission and sponsorship. That means, in effect, when one leaves out all the figures, that the Tote is racing's fourth largest benefactor—after gate receipts, betting levy and media rights.
The future of the Tote has become a matter of fascination in the Home Office in recent years and for successive governments. In the past 10 years alone, there have been four inquiries and major reviews. The matter has always been just too difficult, and nothing has been done. Last year's review was prompted by the Treasury, which, as we know, is always looking for more money. The view of the Tote management—and I agree—is that the Tote should remain within racing, for the benefit of racing. as has been the case in the past. I should have thought there is a fair amount of consensus on that. I feel strongly that the Tote should not merely be thrown on the market, regardless of where the subscriptions for such a sale would come from. Inevitably, over the years it would end up in the maw of the bookies. Equally, I believe that there would be a conflict of interest were it to end up solely in the hands of the British Horseracing Board.
To regularise the present anomaly of there being no legal ownership, as the noble Viscount pointed out, the Tote could possibly be sold off to a trust, which itself could be formed from a variety of interests, not merely the BH13, within the racing industry. That is a tentative, rather than a firm proposal. I am sure that there are all kinds of problems which the legal eagles will bring to our attention, but it is a start. Certainly, with bookies moving offshore, we must get to the bottom of the matter quickly. The idea that the matter is all too difficult and should be left for the time being, or left to someone else, is no longer tenable.
The Treasury will know that the present duty of 6i per cent is now vulnerable. If something is not done, the Tote's income could fall. The ideal—and I can see Treasury officials wincing—would be a reduction in the duty, offset by an increase in turnover. I do not expect the Treasury to have much enthusiasm without proof that turnover would go up. However, if the business were run by a new trust and pushed fully, income would indeed rise. If there were some sale proceeds, if a trust were formed and some money were put up by racing interests, those proceeds could go to the Treasury and mitigate slightly its loss of income.
I have no magic solution. My suggestion of trustees is neither new nor the only solution. The matter is of some urgency and is of great importance. A solution needs to be found soon.
7.46 p.m
Lord Burnham: My Lords, my noble friend Lord Astor and I have been exchanging notes with regard to this debate. At least I am confident that I shall not nearly make the monumental error that I made last week, when, to my horror, a noble Lord on the Government Benches made a speech identical to the one that I was about to make. It turned out that we had received the same brief from a Conservative Member of Parliament.
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The Tote is a bookmaker, like any other. It is nothing like as large as the big boys, Ladbroke's and Hill's, or even Coral, which it attempted to take over until the Monopolies and Mergers Commission slapped it down. As such, there is little reason to argue that its constitution should be changed, unless it he to confirm and underline its status as a body holding a monopoly over pool betting on horse racing.
My noble friend gave a large number of figures. It is very relevant that, last year, the Tote paid general betting duty of over £21 million—and it receives no concession on account of the fact that it comes to some extent, so the Government say, under government control. Its only difference from any other bookmaker is its monopoly on pool betting. It should be noted that its turnover this rear is 25 per cent up on last year.
The existence of the Tote comes from the time in the mid-1920s, when Winston Churchill, and subsequently the Labour Chancellor, Philip Snowden, tried and failed to introduced a betting duty in the Budget There is nothing in either the Racehorse Betting Act 1928 or in the Betting, Gaming and Lotteries Act 1963 which tends to show in any way that the Government have, or should have, any control over the Tote. The only evidence of that comes from the fact that the Home Office appoints the directors, and the directors would seem to own the Tote.
Recently in this House I asked the simple Question, "Who owns the Tote?". The Minister was answering, so I should not have been so foolish as to expect a sensible—no, "sensible" is unfair; I withdraw the word totally—a direct and informative Answer. I asked the Question on the grounds that it is a matter that must be answered before any government action is taken to decide what to do with the Tote. As I say, my noble friend Lord Astor and I did not receive answer. In the process of his replies, the Minister demonstrated that he had no idea of an informative answer. As usual in such circumstances, he exercised his sense of humour in saying that the report was balanced—four officials from the Home Office were balanced by one from the Treasury. I suggest that he would have shown more balance by admitting that the only representative of racing interests was the chairman of the Tote himself, who must be a little close to the subject to show much balance.
But who does own the Tote? My theory, which I am not prepared to defend against much argument, is that the punter owns it for the period between when he hands his money over the counter and receives a ticket to the point his fancy passes the finishing post and he either wins or loses. On that theory he, and nobody else, is an investor in the Tote. This argument at least has the merit of setting up somebody who has such an investment, which is more than can be said of government It is more likely that the owners of the Tote are the directors and they should be able to do with it as they wish.
The report lays down that the privileged position of the Tote is due to its exclusive licence
"which amounts to a statutory arrangement".
The gift of the Tote to racing in whatever form, in the words of the report,
"ignores the legitimate interest of the taxpayer completely'".
But what is the "legitimate interest of the taxpayer"? In the past 71 years the taxpayer has never put anything into

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the Tote and is currently taking £21 million a year out, plus a further £2 million in corporation tax. The report states that the,
"Tote has always been a partnership between government and racing".
It goes on to say that,
"Tote profits should remain [for] the benefit of racing even if Government get a return for the taxpayer".
Jolly decent! Anyone who reads the report must be led to the conclusion that the last observation is due to the fact that civil servants outnumbered racing representatives on the committee by five to one. Of course racing should benefit from the Tote. Government apart, there is no justification for anybody else doing so—certainly not the shareholders in a public company that might buy and privatise the Tote. This hardly needs saying. All the profits now go to racing. If it was sold in the way suggested, racing would get only what was left over after the shareholders' interests had been satisfied. Fortunately, even the signatories to the report, considering, as they do, that the Government should get their cut, do not contemplate that.
In their four conclusions the signatories state their agreement that the whole of the Tote business should be sold as a unit. Few, except possibly the bookmakers, particularly Hills who will not play games with Tote Direct, would disagree with that, or that it should have an exclusive licence to conduct pool betting on horseracing. This last is the most important point. With the growth in distribution of the British racing product round the world on a 24-hour basis, any trust that is established must be acceptable and responsible to the racing industry as a whole.
This evening I shall not comment on which body in racing should control the Tote; if I did so I might have to declare an interest, but it must be a body that acts on behalf of racing and is in some way in racing. In the past year the Tote has contributed £12.3 million to racing, which is an increase of 62 per cent since 1996, in spite of the setback as a result of the refusal by the Monopolies and Mergers Commission to agree that the Tote should take over Corals. The financial strength of the Tote is emphasised by the fact that, while its bid for the Coral betting shops did not succeed, it came a good second. I seldom bet for a place but this was a promising run. My noble friend Lord Astor commented on the financial restrictions that prevent the Tote from raising money for capital improvements. At least it could do so in order to buy Corals.
In spite of the report, it is hard to argue that the Treasury should demand money for adapting the present licence purely to underline the Tote monopoly. In order to support this view it is necessary to accept that the Government should have a right to a bit of everything. The case is similar to that of the Trustee Savings Bank when the courts decided that the TSB belonged to depositors, not the government. Sadly, racing seems to have got it wrong several times: betting shops, SIS and in the off-course betting monopoly. Therefore, it is essential that the Tote's monopoly over pool betting must be confirmed on behalf of racing. If its status is changed, the bookmakers may challenge this monopoly,
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particularly in the light of the spread of betting as an industry, and spread betting. This would be most damaging. The Tote must be reserved for racing.
In its last paragraph, the report suggests that it is more important to get it right than to do it quickly. Another informed commentary on the future of the Tote says much the same thing. Effectively, both say that one should delay any action as long as one can. With the pressure on the Government to implement all the 100 or so statements in their manifesto, about which they have, as yet, done nothing, there is a reasonable chance to sort it all out, particularly the decision as to into whose hands the Tote should fall. Let us not do a Dangerous Dogs or Firearms Bill.
7.55 p.m.
The Earl of Huntingdon: My Lords, I too should like to thank the noble Viscount, Lord Astor, for initiating this important short debate on a subject that is current and, because of recent events, even more meaningful than it may have seemed when he first tabled this Question. I must declare, if not strictly an interest, perhaps a relationship. As a racehorse trainer, albeit now on a sabbatical—having spent three times the normal required span to trigger some leave—I and my family have been closely connected with horseracing as a sport and a business for three generations. My grandfather, Aubrey Hastings, who I believe was the only person to have ridden and trained a Grand National winner (Ascetic Silver) had just bought Brown Jack in Ireland when the original Racecourse Betting Act which created the Tote was passed in 1928. It provided a safe haven of state controlled pool betting for racegoers, some of whom may have distrusted bookmakers in an age when illegal bookmaking was rife. It also had a remit to raise money for horseracing and improvement of the sport and breed.
This important signpost was repainted in 1961 when the Betting Levy Act established the Levy Board. At that time my father, Peter Hastings-Bass, was training at Kingsclere, one of the legendary private stables and gallops in England. Another milestone was reached in 1972 when I was assistant trainer to Sir Noel Murless in Newmarket, when the Horserace Totalisator and Betting Levy Boards Act gave the Tote the chance to take on off-course bookmakers. During all this time, the Tote was seen as a proactive friend of racing's interests. Many people in racing would bet with the Tote because they felt that they were at least helping racing while they were losing their money. As soon as I was legally allowed to bet and open a credit account, I too bet with the Tote. Like most others, I too have helped racing.
I make no secret of the fact that I am no fan of our general system of betting. My noble friend, and previously successful owner in my stable, Lord Sandberg, knows what a benefit to racing a pool system of betting without bookmakers can be. When he was a member of the Royal Hong Kong Jockey Club, two days' racing a week at Sha Tin and Happy Valley enabled it to generate more money for racing and charity than the Levy Board is able to do for British racing on seven days a week with 59 courses.

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However, to bring the greatest benefit to both racing and the punter there is no need for a Tote monopoly, as an exemplary system exists in Australia. There one has a strong tote, the TAB, which has a monopoly of off-course betting, with outlets in betting shops and pubs, and a strong on-course presence. Bookmakers are licensed on courses, are extremely competitive, stand large bets and have been at the forefront of technological advances.
The result of the structure of our betting industry, with the cake being cut into too many slices, is that 1.2 per cent of betting turnover is returned to racing, as compared with between 4.4 per cent and 15 per cent in other major racing countries. In the unlikely event of an off-course Tote monopoly, the best alternative has always been the strengthening of the Tote so that it can compete with the three big bookmakers. The Tote board and executive is a strong professional body well able to build around the charismatic ethos and political legacy of the late Lord Wyatt. It was unlucky not to acquire the 133 betting shops from the Coral-Ladbrokes deal, but it has significant reserves, which puts it in a very strong position for future acquisitions.
Racing needs a strong Tote that is not emasculated by government attempts to realise a profit by an asset sale which has only a short-term viewpoint. Clearly the British Horseracing Board would love to gain control of the Tote as it has no significant income stream. I feel that the ownership is less important than preserving the Tote's opportunity to continue to benefit racing and maintain its exclusivity of pool betting. Government and the taxpayer are obviously entitled to their interest, but racing (both horse and greyhound) needs to be the shareholder.
I mentioned the recent events which have made the noble Viscount's initiative even more relevant. I refer to the recent publicity surrounding the High Court ruling which allowed Victor Chandler to advertise his Gibraltar-based service on Teletext and via the fax. The burgeoning off-shore betting business was always going to be a nettle that needed grasping. What serious punter—the average bet in Gibraltar earlier this year was £2,500 from Far East clients—can fail to be attracted by a 3 per cent deduction, or service charge, as opposed to the usual deduction of 9 per cent in the United Kingdom? Ireland has already reduced betting duty to 5 per cent, but ours remains at 6.75 per cent, and it is all too easy for Victor Chandler to offer a voluntary 1.5 per cent levy on every British racing bet struck in Gibraltar.
Even if the High Court ruling is overturned, enough publicity will have been generated to alert most punters whose bet is over £20 to the attractiveness of a free phone call to Gibraltar or other off-shore betting centre. Obviously the Tote's credit business will be adversely affected and its clients' loyalty to it and its longstanding position as racing's closest ally will be severely tested. By the time the Tote's status is resolved, how weakened will its position be unless something is done rapidly to counter the growing threat of the Internet and off-shore telephone betting?
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As Peter Jones, Chairman of the Tote, said in his annual speech,
"If the Chancellor of the Exchequer is to achieve anything for the taxpayer out of a change in the status of the Tote, then he had better make sure he has something left to sell".
In the wider picture, future levy income is threatened, as Rob Hughes the Levy Board chairman has pointed out strongly. Perhaps the committed Tote monopolist, wherever he or she may he, will see that the only way for the Government to counter this threat of uncontrolled betting will be to introduce some form of off-coarse Tote monopoly. Punters are going to bet under the lowest tax regime. The Government should not bury their heads in the sand over the issue. They should ensure the continuing strength and well-being of an accountable Tote and attract worldwide punters by having as low as possible a tax rate.
8.3 p.m.
Lord Rowallan: My Lords, I, too, thank my noble friend Lord Astor for introducing this important debate at this interesting time. The Tote is the biggest single potential saviour of British racing. We can make a terrible mistake in the next six months, nine months, year or so, if we make the wrong decision now.
The biggest problem facing the Tote is its total lack of funds. The pool is too small. Anyone who wants to bet in a big way changes the odds so dramatically that he is forced not to put his money with the Tote but to go to a private bookmaker instead. The situation is getting better. Tote betting is becoming more available on the high street. But there is a big problem in the betting industry. Most towns have far too many bookmaker shops. For instance, Newmarket has seven, costing perhaps £80,000 in total to run. If the number were cut to two, there would be a big saving. Like the noble Earl, Lord Huntingdon, I believe that the time has come to think in a different way about how off-course betting should take place.
We need to be able to bet in more convivial surroundings. We need cafeterias in the shops—and why not in the pubs? On-course bookmakers have had a tricky year, paying up to £100,000 for a pitch at Cheltenham or Royal Ascot. The bookmakers do not contribute nearly enough to racing, one of Britain's major pastimes and sports. But the Government also have their role to play. The Government contribute little or nothing, but they have a bigger and bigger say. We have the smallest return from the betting industry of any country in the world. The owners put far too much into the industry. We need as soon as possible to drop the betting tax to at least 5 per cent so that it is level with Ireland.
I agree with my noble friend Lord Astor that the best answer is for the Tote to be put into a trust arm of the British Horseracing Board as soon as possible. It should then float it on the stock market to raise money. And as quickly as possible with the money it then raises, it should buy one of the big chains so that it has a ready-made industry. But, in order to benefit from its own strength, it is essential that the Tote buys rather than is bought. If it slips out of the hands of the racing industry, that could benefit the private pockets of just a

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few. As the noble Earl, Lord Huntingdon said, we need seriously to concern ourselves with Tote-only working off-course, and a mixture on-course. That works well in Australia; and there is no reason why it would not work well here.
We hear many politicians saying, "The cost of compensation for closing all the bookmaker shops around the country will be enormous." But if we are not careful, are we not in danger of shutting our eyes to the big problem: no racing through lack of funds. We have killed off many industries without compensation. So why are the bookmakers to be treated differently?
To improve racing, we need the Tote to invest more in racing. The Tote needs money to buy itself the strength to service the industry of racing. We must raise the money and invest it for the benefit of the sport. But do not let the Tote fall into the wrong hands, and so sell Winston Churchill's 1928 treasure chest for racing. Through Jack Straw, this Government said that they would never sell the Tote. Now they have accepted that they will. The Peter Jones report advised them that that is not too bad a thing to do. We must be responsible for the future of horseracing, one of Britain's most respected and popular sports. The report states that the status quo is not an option. I agree with that, unless there is a huge increase in funds. An increase in funds is essential so that the pool industry can work.
The report also states that the split between pool betting and Tote Direct should not be separated. Again, I agree wholeheartedly. The sale of the Tote to the trust about which I speak should be expedited as soon as possible in order to alleviate the uncertainty of the present situation. If legislation is necessary, it should be introduced as a priority in the next Session of Parliament. Over the years there have been too many reviews. None has been decisive. Most have been extremely disruptive. They have been unsettling for the industry.
We can change all that, and change it we must. Times are a-changing, with betting moving to Gibraltar and elsewhere. We have a man there at present—he is probably there on the back of some of my bad bets—and large chains will surely move there soon. Such a move is irresistible because of the lower rates. I hope that the Government think very hard about what they do because they have the future of this great industry in their hands.
8.10 p.m.
Viscount Falkland: My Lords, this has been an interesting debate with some eminent speakers. I put myself forward as a reformed reprobate. I bet a few times a year but, as I calculated before I entered the Chamber, I began in 1946 at the age of 11. I then had my first bet on the Tote; it was for two shillings and got three shillings back. That did not seem to be good value, but the race was a point-to-point. It set me off on the road to a misspent childhood at school—I became a bookmaker for a while and made a small profit, but turned to punting thereafter.
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I thank the noble Viscount, Lord Astor, for introducing this challenging debate. If I may make an invidious choice, I was most attracted by the speech of the noble Earl, Lord Huntingdon, because he did what I wanted to do. When noble Lords have mentioned the Tote, they have failed to distinguish between pool betting and fixed-odds betting. Pool betting was created in this country in the 1920s in order to give punters a choice. I refer in particular to new punters, those who place small bets and those who bet occasionally. Like a mutual organisation, it contributed a large amount to racing rather than contributing to shareholders, as bookmakers do should they be lucky enough to make a profit.
Often, bookmakers tell us that they make little profit. The small bookmakers such as those with whom I used to play pontoon on the train in my early teens, do not make much profit. They are the ones who go on to the racecourse and have the most difficult time, and they are the ones who lend colour to racing. As I have stated in your Lordships' House in the past, I profess to be a Tote monopolist. In a previous debate in this House, the noble Marquess, Lord Zetland, and I clearly stated that in an ideal world we would wish to have a Tote monopoly in this country. We regret that the chance was not taken in the 1920s and 1930s to go down that path. The countries which have done so have reached a degree of affluence in sport and it has returned to racing a high proportion of the turnover of betting. That is reflected in prize money and in the welfare of stable staff and so forth.
However, we must accept what we have. Although in many debates I crossed swords with Lord Wyatt of Weeford, we must congratulate him and the present chairman of the Tote, Peter Jones, on dealing with a difficult situation in terms of pool betting. It is difficult for a pool betting operation to compete with fixed-odds bookmakers. Regular backers of horses prefer to bet with bookmakers. If one bets in reasonably large sums in this country, doing so on the Tote on a day-to-day basis makes no sense. One has only to look at the returns and the statistics.
On the other hand, people attending the big meetings as casual racegoers—for instance, Ascot and Cheltenham—or attending Sunday race meetings, which I hope will become frequent, go to the Tote because it is less complicated and needs less explanation.
In the idea of privatising the Tote, we face a problem. I have supported the idea of privatisation, but wanted to privatise only that part which acts as a fixed-odds bookmaker. We have used the term "Tote" to embrace both pool and fixed-odds betting, but it has become a rival to the main fixed-odds bookmakers. The pool has become a minority operation, the least profitable, because of its handicap in competing on a day-to-day basis and achieving the turnover which will make it attractive to people to queue up at the Tote windows.
It is right that the Tote should be privatised in one form or another. I do not want to discuss the methods which we may consider appropriate or to discuss the Government's approach. I hope that they will come forward with a reasonable conclusion, but so far we

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have had little clue. However, I hope that they recognise that the Tote pool, which is the method of betting for the little man, the novice and family racegoer, and which attracts new people to racing is very important. As the noble Earl said, it is attractive to professional trainers, for example. He said that if he wanted to bet—he probably does not do so, even during his sabbatical—he would prefer to bet on the Tote. Other professionals in his sport would also prefer to do so because they know that the money goes into a pool which contributes to the good of racing. The good of racing ought to be the Government's primary object in considering how to privatise the Tote.
Racing in Britain is a marketable product. I was told only today by the chairman of the Tote, who was kind enough to telephone me about what I intended to say in my speech, that punters in Singapore are more interested in the racing at Southwell. I am sure that the management of Southwell will not mind me saying that it is a relatively minor racecourse. The new technology enables British racing to be beamed out to Africa, to the Far East and all over the globe, and the pictures are provided by the organisation known as SIS. SIS is owned by bookmakers, but no one controls the way the images are used. People can create their own Tote pools and fixed-odds betting on our product.
My advice to the Government would be to take the Tote away from the bookmakers, sell off the shops and then create an environment in which the Tote can operate in the way it was originally intended; that is, as a beneficiary to racing, to the small punter and to the family racegoer. They should give it an environment in which it can flourish. If we can achieve the Australian system, so much the better, but I doubt whether it is possible. I love the idea of a Tote monopoly for off-course racing and having my old friends who taught me to play poker and pontoon on the train remaining on the course to provide a bit of atmosphere. I believe that I should have had a rougher run today had I been known to play those games. For some reason, during the gloomy post-war years such people had pity for a young boy, obviously unhappy at his public school, wishing to risk his pocket money while travelling on a dirty train to Newbury races.
The possibilities in the long term are excellent. We congratulate the Tote on what it has done to hold together the pool betting, albeit dragged along in the wake of fixed odds betting. That was the only way it could survive and I do not blame the Tote if it tells me its feelings. However, I hope that it does not do so in a newspaper, as happened the last time I made a similar controversial statement. Luckily, it was a newspaper not seen in your Lordships' House, as it is more notable for its ladies than its horses. Its report had as its headline "Falk Off", in bold letters and it accused me of being a dotty Peer and of insulting the Royal Family. I suggested that betting shops should not open late at night without proper safeguards for their staff and that apparently was insulting Her Majesty the Queen Mother. That is the press for you.
I suggest that the Government look very closely at the value of the original Tote pool and if the bookmakers do not play ball and contribute to the Levy Board as
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they should—I should point out that I am great friends with bookmakers and I love them, especially those who ask me to lunch at various racecourses—it should not be too difficult to take the iron hand out of the velvet glove and say that if they do not behave the Government will pay much more attention to the Tote pool. That can be done and I hope that the Government will do it.
I hope that the Government will make use of one of the greatest images of racing in the world. After all, we started it and most countries took it from us. If we can make racing more prosperous, all parts of racing will pull together. At the moment they are all at each other's throats. Those of your Lordships who read The Racing Post every day will know it is like a novelette with someone sticking the knife into someone else or contradicting them on how we should proceed. All that would go.
Racing in Britain is a wonderful sport. It has been an example to the rest of the world—although it can be dangerous, because it involves large sums of money and we have had some scandals—but it can only remain the best if the Government take a proper and carefully considered position at this vital stage. If they get it right, the whole of racing will benefit. It will become prosperous, and we will congratulate ourselves on doing a good job.
Lord Williams of Mostyn: My Lords, this is a disconcerting occasion, because every speaker seemed to know what they were talking about. That is a first for me. It was also interesting that nobody had the same solution. Despite their enormous knowledge, all the speakers had different solutions to offer.
The noble Viscount, Lord Falkland, said that he had been traduced by a magazine called The Lady— I assume that that was the one he was talking about.
Viscount Falkland: My Lords, I did not want to besmirch your Lordships' Chamber by mentioning the name of the newspaper, but it is better known for its telephone numbers and its ladies.
Lord Williams of Mostyn: I wonder what on earth the noble Viscount was doing reading such a newspaper. It is plain that he never had a chance in life. He went to a public school and the racecourse that he chose to visit was Newbury. As every schoolboy knows, it was at the battle of Newbury that his noble ancestor, the second Viscount Falkland, Lucius Cary, died fighting on the wrong side in the Civil War.
I must declare an interest, as I often have to do, and then the noble Lord, Lord Burnham, says that I am making a joke of it. In the past I have had previous convictions and acted for Coral, Mecca, Ladbroke, Arthur Prince, William Hill, the Tote, Surrey Racing and Victor Chandler, to mention just a few. Although I have never had a bet in my life, subject to one proviso that I shall introduce parenthetically shortly, I believe that racing is an important part of the fabric of our national life as is betting, for many people. In a free society, people should be able to enjoy themselves as they please, either by going to the races, breeding or training horses—the noble Earl, Lord Huntingdon, is a

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notable contributor in that capacity—or simply having a bet. One should not be to censorious about other people's views.
The noble Viscount, Lord Astor, reminded me that the old jokes are always the best and produced them gratefully this evening. Is it official Opposition policy that the Tote should be disposed of with no benefit to the tax payer?
Viscount Astor: My Lords, if the Minister would care to read the Home Affairs Select Committee report, the Minister at the time, Peter Lloyd, said that there was a possibility that the Tote could be handed to racing. The point I made in my speech—I am sure that the Minister took careful cognisance of it—was that the taxpayer could benefit from the pool.
Lord Williams of Mostyn: My Lords, I know that it is late at night, but I always listen carefully to what the noble Viscount says. The Committee reported in 1991. Peter Lloyd has never been a member of the present Government. My question was—I am happy to give way again—whether it is official Opposition policy that the Tote should be disposed of with no financial benefit to the taxpayer.
Viscount Astor: My Lords, the Minister presses me, but we are here to ask about Government policy, not Opposition policy. I may say that our policy is that the argument must be won that the taxpayer deserves something. That case has not yet been made.
Lord Williams of Mostyn: My Lords, the noble Viscount's comments are not a surprise to me or to my noble friend Lord Donoughue, who has a significant interest in and knowledge of these matters. The fact is that the Opposition have no policies and I am happy to record that point.
The Tote is a significant asset, as we all agree. Who owns it? That was the question that the noble Lord, Lord Burnham, put to me on a more crowded and earlier occasion. The fact is that the directors do not own it. They are able to direct the assets and the conduct of the business, but there is no reason why legislation should not be introduced to enable the Tote to be sold. I do not think that anyone objects to that as a matter of principle.
The real question is how the Tote should be organised for the future. It was suggested by several of your Lordships in different ways that it should be given to racing. I do not understand what racing is as a concept, because it is diverse. The noble Lord, Lord Sandberg, has enormous knowledge of the workings of the Royal Hong Kong Jockey Club, where betting is dealt with differently. I have been there myself to see how matters obtained.
Racing comprises at least the following—those who own horses, those who bet on horses, and those who are employed in what is, after all, an industry, such as those who work in the betting shops. Although the number of betting offices has declined from about 20,000 to nearer 10,000, they employ a vast number of people. Many
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ordinary punters like betting. They do not always claim to win, but they like the subtextual skill of picking the early morning prices. There is no earthly reason why, in a free society, people should not be able to do that.
It would be a surprise to me if the Tote ever became the only monopolistic method of betting in this country. I know that the world spins and times change, but it is interesting that the noble Viscount seems to be coming to the conclusion that he wants no private industrial competition in the betting industry but simply a monopoly—the Tote. I do not think that that would suit most people and I am not satisfied that it would benefit racing.
Viscount Astor: My Lords, I apologise for interrupting the Minister. I presume that when he talked about the noble Viscount and a monopoly, he meant the noble Viscount, Lord Falkland, and not myself. For the record, I have never proposed a monopoly.
Lord Williams of Mostyn: My Lords, the noble Viscount is right, I was just teasing and testing to see whether he was still focusing on my deeply appropriate argument.
The noble Lords, Lord Sandberg and Lord Rowallan, and the noble Earl, Lord Huntingdon, said that there have been too many reviews over the past years which have not always been deeply considered. We owe it to the Tote as an organisation, and also to the staff who work there, not to disrupt their lives and expectations unnecessarily. It seems to me that the conclusions. signed by Peter Jones, Chairman of the Tote, on behalf of the steering group, are perfectly sensible. The recommendations are that Ministers should announce the intention to sell the whole of the Tote business without specifying the method of sale. I imagine that that is to achieve the best possible consequence, which is not always the same as the best possible immediate price.
Viscount Astor: Ah!
Lord Williams of Mostyn: The noble Viscount says "Ah". We should learn some lessons from the sale of Railtrack, which consisted of the sale of vast public assets with no possibility of recovery for those members of the public who, one way or another, had some expectation of benefit from it.
It was recommended that the sale should be planned on the basis of a national exclusive licence to conduct pool betting and appropriate regulation to be put in place to oversee the operation of pool betting on horseracing. That was a point made by the noble Lord, Lord Rowallan, and the noble Earl, Lord Huntingdon. One must bear in mind that those are subtle interrelationships. Appropriate regulation should be in place, the cost of which to be borne by the pool operator; and the respective legitimate interests of taxpayer and racing should be the subject of further discussion.
I cannot think of a more rational, open-minded menu than that. All the points are taken on board. No one pretends that there is an easy answer. There is a

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recognition there that in a society which is rightly regarded as open, diversity of view and difference of approach should be recognised.
Ownership is extremely expensive, as is training. If one looks at what happened on Diamond Day on Saturday, one can see that the industry is capable of thriving with outside sponsorship. That was an extremely enjoyable day for all who were present. First, we need to focus on the fact that this is an industry. Many people not only work in it but also dedicate their lives to it. Therefore, it is foolish to treat the Tote as a political football. Neither the noble Viscount, Lord Astor, nor the noble Lord, Lord Burnham, who speaks from the Back Benches, tried to do that. No one did that this evening.
There is little future utility in looking at what happens in Australia or the United States because their historical approach to the issue has been utterly different. I repeat to your Lordships that many millions of people like to have a punt at the bookies. They do not want to go on course because they are working; they do not want the Tote because they like the early morning prices and the accumulators. That is part of the fun, even when you lose at the end of the day. Other people like doing crosswords, coming to Question Time and reading Hansard. One might have thought that those are all rather bizarre activities but some people enjoy them and are extremely reluctant to give them up.
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This has been a helpful debate. The more ideas that are put forward, the better it will be for racing. The noble Viscount, Lord Astor, asked whether we should look at some sort of national lottery model. The answer to that must be yes. No one pretends that in every aspect of its operation and subsequent donations the National Lottery has been perfect. But that is something which we should consider.
I have a certain amount of experience of acting for bookmakers, although not contributing to their profits—quite the reverse. I believe that this provides a good opportunity for people to say that there is a blank sheet of paper. We are all interested in the future of racing, bookmaking and the Tote. Should the Tote have been able to act more freely in the past? Should it have developed its high street bookmaking operations? Many people believe that that should have been so, while others hold a different view, as the noble Viscount, Lord Falkland, mentioned this evening.
This is an opportunity to co-operate and achieve the best possible outcome. To my mind, no solution should be dismissed on the basis of dogma or past experience. Racing has a marvellous future, with great opportunities. There are difficult financial constraints. But if everyone sits down with an open mind and says that they will think about the ideas, then we can achieve the best possible outcome. But no government can sensibly overlook the legitimate interests of the public purse and the taxpayer. I am most grateful to your Lordships.
House adjourned at twenty-five minutes before nine o'clock.