Lords Sitting of 25 June 1999

Preamble
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bristol.

Parliamentary Government Bill [H.L.]
The Lord Chancellor (Lord Irvine of Lairg): 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 Bill, has consented to place her prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Viscount Cranborne: My Lords, I beg to move that this Bill be now read a second time.
I am extraordinarily grateful to noble Lords who are taking part in this Second Reading debate. A hot Friday in late June is hardly an alluring time to discuss any Private Member's Bill in your Lordships' House; to discuss a Private Member's Bill on Parliament and making some changes to the way it is ordered, after two full Sessions already on constitutional matters, is perhaps trying your Lordships' patience rather high. I am grateful that Peers of such very great distinction have been kind enough to put down their names to speak, including noble Lords from both Front Benches.
I hold what the Government feel to be a rather unfashionable view. I feel that the day of the nation state is very far from over. Indeed, I would go further. It seems to me that there is an increasingly clear correlation between prosperity in the modern world and nations with effective systems of representative government. Increasingly, economic growth will he stimulated within policies which allow the maximum liberty to citizens and the minimum amount of interference in the individual's affairs from the bureaucracy. This principle mirrors the nature of growth in the digital age, where an individual can found enterprises with an idea and a bit of IT alone; in an astonishingly short time, one has companies such as Microsoft, to take one example.
It seems to me that the days of feudal bureaucracies of the kinds that still exist in Brussels and Whitehall should be over. Bureaucracies can no longer pick winners; all they can do is to hold the ring and adopt the same principle that I am told Vita Sackville-West adopted for her garden; the maximum amount of informality inside the maximum amount of formality. Under these conditions, parliamentary institutions become more important than ever.
The basis of our system as it has developed—perhaps I can put it personally—is this: the reason that I do as the Government tell me to do—especially, dare I say it. when I disagree with them—is that they derive their authority from a Parliament whose dominant Chamber, the other place, the electorate has a right, to throw out
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at least once every five years. If Parliament holds the Government continuously and effectively to account, and the Government survive that experience, their authority is surely strengthened and I am constrained more than ever to do what the Government tell me, especially when I think that the Government are an ass. Government is rather like Antaeus, returning strengthened to the fray after contact with his mother.
For Parliament to perform its central task—giving the Government the authority to govern—it must appear to the electorate to be fully up to its own task; otherwise both it and the Government will lose the authority that they both need. My fear is that even before the communications revolution struck, Parliament was beginning to fail us; another place was already overwhelmingly and inevitably dominated by a powerful executive through the agency of an effective Government Whips' Office. During my brief time in another place, it sometimes seemed to me to be the only effective part of the House of Commons.
This House felt, and still feels, that it no longer had the authority to use its theoretical powers of delay to force another place to do its job properly. Governments crammed far too much legislation through Parliament, much of it ill prepared and hurriedly drafted, through no fault of the parliamentary draftsman. Parliament already looked unresponsive to the electorate's needs and seemed increasingly the poodle of the executive before the digital age struck. It seemed increasingly that other institutions—such as the European Union and the European Court of Human Rights—were taking its place.
With the digital world now upon us, Parliament and Whitehall look perhaps even more flat-footed and inadequate. Parliament's reduced standing is reflected in the negligible number of column inches that the press devotes to its affairs. Whitehall, which derives its authority from Parliament, as I have already said, looks to the courts and to Europe at least as much as to us, and is pleased to find itself. I would suggest with the greatest respect to the learned and noble Lord, serving a government who find it more and more possible to treat Parliament as an non-optional add-on.
The Government have said that they want to modernise Parliament. It seems to me that there is no evidence, either in their White Paper on in their various pronouncements, that they have any clear idea yet of what they think is the purpose of this place and what they want to do with it.
As for reform of another place, even Peter Riddell, who tends to speak for the Government—he is what one might call "Lord Columnist in Waiting"—in his column in Parliamentary Brief in March 1999 described the Government's proposals for reform in another place as, mainly desirable, but cosmetic.
It was for that reason that it seemed to me well worth floating a number of proposals in a Bill to stimulate debate on what is surely a central constitutional theme, but one which has rather surprisingly been neglected in the avalanche of constitutional measures that threaten to overwhelm us. The theme is how we restore the standing of Parliament in our national life.

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The Bill makes a number of proposals which, taken together, might begin to do so. Of course, they are far from comprehensive, however broadly they may range. Part I of the Bill contains in Clauses 1 to 12 a number of provisions, few of them original, that are designed to reduce the flow of legislation, to improve the preparation of legislation and to improve parliamentary scrutiny of legislation, so that Parliament can assess both the probable impact of legislation and how effective it has proved after coming into force.
Clause 1 provides that every Bill should be published in draft before introduction, and that the Select Committee procedure should apply unless the House determines otherwise. Clause 2 provides that the Comptroller and Auditor General should assess the possible impact of the proposed legislation before it is introduced. There are also provisions for wide public consultation on proposed legislation.
Equally, Clause 4 gives noble Lords the power to remove excessive delegated powers from any Bill. Clause 5 gives your Lordships the right to express an opinion on excessive delegated powers in any legislation proposed in any of the three devolved assemblies. There are provisions in Clauses 6, 7 and 8 to prevent the hurried introduction of secondary legislation before extensive consultation, and before reporting to Parliament the results of that consultation.
There are two other areas in Part I to which perhaps I may draw your Lordships' attention—Clauses 9 and 10 on Community legislation and Clause 3 covering Bills affecting the constitution. On Community legislation, the Bill, if passed, would probably conflict with the doctrine of the acquis communautaire in that Clause 9 provides for no new Union directive to be moved by a British Minister unless he has consulted widely on its provisions, and that it cannot come into effect until Parliament has approved it.
Clause 10 provides that any gold-plating of Community legislation by Whitehall—a source of great muddle when apportioning the blame for increased bureaucracy—should be embodied in legislation separate from that strictly confined to implementing EU directives.
As far as concerns legislation affecting the constitution, Clause 3 gives this House the power to delay the bringing into effect of Bills which substantially alter the constitution—it will be for your Lordships to decide whether or not the alteration is substantial—until such Bills have been approved by a referendum (to be held under the rules of the Neill Committee) after their passage through Parliament, but before they have received Royal Assent.
Part II of the Bill gives the Comptroller and Auditor General, and therefore the House of Commons, a more powerful droit de regard, if I may put it that way, over matters supervised by the Audit Commission, a body which, as your Lordships will know, reports to the Secretary of State. I believe I am right to say that about 25 per cent of public expenditure is local government expenditure, and that more than 80 per cent of that expenditure is nowadays centrally funded. It seems to
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me odd that another place does not take a greater interest than it does in local government affairs and in the expenditure of centrally provided taxpayers' money.
Clause 14 provides for a number of important Crown appointments, to be made only after appointees have appeared before parliamentary committees and a resolution of both Houses of Parliament has been passed, in effect giving approval to those appointments. I have no doubt that this provision would be strongly resisted both by Sir Humphrey and Mr Jim Hacker. Perhaps that is reason enough for giving favourable consideration to the suggestion. It has some merit, in view of the experience of the United States in a similar case.
Parts III and IV are closely interlinked. I am convinced that our public administration is excessively cumbersome and serves very ill both its customers and those it employs to provide its services. It institutionalises public squalor at enormous public expense. It ensures that the poorest have a sad view of what the public purse does for them. As a firm sceptic on the introduction of any kind of gizmo, it seems to me that in this case the use of technology—both ancient and modern—should be able to make enormous improvements to public administration, particularly if applied with imagination and ruthlessness. For example, I am told that simply by making its social security and benefits payments available through the commercial banking system, New Zealand cut its social security administrative costs by around 75 per cent. By those and other more elaborate devices, we could reduce the size of the Civil Service and amalgamate a substantial number of departments of state which are at present engaged primarily in supplying government services.
That idea will initially be extraordinarily unpopular with civil servants and, I dare say, with Ministers, for obvious reasons. However, once it was accomplished, those who remained would be far better paid, which should be of some attraction to them; more concerned with policy—a perennial complaint of civil servants, as those of us who have been Ministers know—and they would be able to spend more time in providing sensible and helpful advice to the Government's customers of both services. The customers themselves would be better served, and would certainly feel far less the victims of a vast system that is unresponsive to their needs.
Both the previous government and this one have tinkered with these ideas, primarily through the central IT unit of the Cabinet Office, an organisation for which I briefly had some tangential responsibility. I hope that the noble and learned Lord the Lord Chancellor, to whom I am hugely grateful for his kindness in taking part in this debate, knowing how extraordinarily busy he is, will take the opportunity to acknowledge that the recent White Paper was as disappointing in that regard as our own performance was in this area before the last election.
In that respect—and perhaps one of the main reasons why Parts III and IV of the Bill are so closely interconnected—the House will be aware that any Government Chief Whip in another place will acknowledge that a smaller number of government

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departments, and therefore a smaller number of Ministers, also provided for in the Bill, is a disaster from his point of view. How is he to satisfy the rows of eager Back-Benchers panting for office, and so keep them untainted by thoughts of rebellion? For that reason alone, he would strongly disapprove of Clause 18 of the Bill, which among other things reduces the maximum number of serving Cabinet Ministers to 15—in spite of the fact that the Cabinet would function far better as a result.
So for that reason alone, it would be sensible to help the unfortunate patronage secretary and reduce the number of Members of another place as well. Some mauvaises langues have suggested to me that for a Member of this House to suggest the reform and composition of another place in this particular Session of Parliament is descending to mere brawling. But I am sure that that is not right. There are already far too many MPs, particularly now that the Scots and Welsh among them have very little to do. With better public administration as a result of Clauses 15 and 16 of the Bill, all MPs will have less to do. As a result of Clause 20, the Scots, Welsh and Northern Irish MPs will have even less to do, since they will not be allowed to vote in another place on matters which in their own countries are devolved to the local Assembly or Parliament but which are not devolved in England.
Noble Lords will have noted that the reduction in numbers is to be achieved gradually, at a rate that is slower than the average rate of retirement of Members of another place over the past 50 years. That gradual approach might just persuade turkeys to vote for Christmas.
Perhaps I may mention two other clauses. The first, I suggest, will also be most unwelcome to all sitting governments. Clause 20 provides the admirable practice, discontinued in 1926, of forcing a newly appointed Cabinet Minister to submit himself to re-election by his constituents in a by-election, but in a slightly different form from that faced before 1926. There is method in this madness. The noble and learned Lord may disagree, but he, like me, has no need to submit himself for re-election—although that time may come.
As the 20th century has developed, the Prime Minister has had far too much power over his Cabinet. He is no longer primus inter pares, but increasingly presidential. Not unnaturally, all Prime Ministers tend to behave accordingly, however charming and modest they may be in private life. This provision would discourage frequent reshuffles and give much more power and endurance to the Cabinet in consequence. It would rebalance the situation in a highly desirable way.
Finally, the digital revolution should enable all of us to watch both Houses of Parliament on television on dedicated channels. Clause 21 so provides. I am the first to admit that, initially, the audiences would be minuscule. But that would enable those policy wonks and political freaks who were interested enough to watch to see us in all our glory, unedited. If the Bill were to become law, I believe that the viewing figures
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would increase, thereby showing that its provisions were achieving their objective in making Parliament more effective and stimulating more interest outside.
We should be holding the Government better to account. We should legislate better. As a result, our respect as a nation for government itself would increase. I submit that that is a worthy cause, even for a Friday morning in June, and one that is well worth supporting in principle. I commend the Bill to the House.
Moved, That the Bill be now read a second time.— (Viscount Cranborne.)
11.26 a.m.
Lord Simon of Glaisdale: My Lords, not for the first time your Lordships are deeply indebted to the noble Viscount for bringing forward a Bill of profound constitutional importance in a constructive way and for explaining it with exemplary clarity. In the noble Viscount, we have the advantage of a former member of the Cabinet, a former Leader of the House and, particularly important in this context, a former Member of another place. I do not suppose that he will expect all of us to agree with everything in his Bill. That is hardly necessary to secure a Second Reading. Indeed. I shall be anxious to see how far my noble and learned friend the Lord Chancellor is enthusiastic about the preamble, or the proposal that newly appointed Cabinet Ministers should submit themselves to a by-election. That was formerly the practice, and it provided a great deal of innocent fun—fun that was not always so innocent, as it was a wonderful opportunity for the electorate to give a jolt to a government.
Parliamentary representative government is not, as I have ventured to submit in discussing the House of Lords Bill, the sole method of democracy. The great achievement of the previous government was their vindication of the market economy, whereby every shopping day is a general election, every shop a polling booth, and every penny laid out on the counter a vote for the various candidates for custom.
Nor is one limited to the economy for democracy. If the decision which affects the individual can be vouchsafed to the individual, if we vindicate the old proverb that every Englishman's home is his castle, if we can vindicate subsidiarity, which was the great achievement of John Major, inscribing it in the Maastricht Treaty, if we can apply subsidiarity, like charity, to begin at home, we shall have gone a very long way towards establishing a democratic society.
But that is not to say that representative government is not important. It is true that there are many things the individual cannot decide himself. The late Lord Jay was probably right when he said that the man in Whitehall does know best. However, there is one thing the man in Whitehall does not know: it is where the shoe is pinching when other people are wearing it. That is why we give influence in politics not only to the mandarin on his high horse, but also to the footsore pedestrian. We do it by representative democracy.

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The preamble indicates a number of concerns about the way representative democracy works at the moment. The noble Viscount mentioned the Glorious Revolution which we celebrated a decade ago. The revolution was glorious because it vindicated parliamentary government against executive government. The modern equivalent is presidential government. The Glorious Revolution managed to see off a government that legislated by ordinance, by decree, by executive order. The noble Viscount's Bill deals importantly with that matter. Today a great deal is done by subordinate legislation. There have been notorious examples with this Government, but perhaps the worst was the Child Support Act of the previous government, which was virtually a skeleton Bill and worked out disastrously.
The noble Viscount puts us in a debt by bringing forward in a constructive way various methods by which representative government can be improved. It would not be right to be entirely pessimistic. There have been some valuable and positive developments; the select committees in the other place, the development of judicial review, and so on.
On the other hand, there is the deplorable but characteristic example of the European election measure. It was deplorable in two ways. First, the party list meant that power was in effect taken away from the electorate and vouchsafed to the party managers. Secondly, a whip was imposed in the other place and afterwards the Parliament Act was invoked. Many Members of the other place who disagree entirely with the party list method must have been profoundly disturbed by what was done. They were whipped into the Lobby, and the Parliament Act was imposed on a measure for which it was entirely inappropriate.
Having said that, there is much in the Bill which is of value. I attach great importance to the proposals on subordinate legislation. It is now so important that Parliament should have the power to amend it. I imagine that that is a breaking point with the Civil Service. On the other hand, the noble Earl, Lord Russell, has achieved a way of getting round it; and, having conceded his method, we may as well face directly the right of Parliament to amend subordinate legislation.
This is not the time to go through the Bill in detail. I regard with some hesitation the proposal not only that Cabinet Ministers should submit to re-election but also that senior civil servants and the very senior part of the judiciary should go before a parliamentary committee and be approved by the committee. It is limited to the Appellate Committee of your Lordships' House, the Lords of Appeal in Ordinary. Even so limited, it would be deplorable if our judiciary felt that they were being subjected to a political test. One saw the damaging and humiliating experiences of two judges, candidates submitted by the President for the American Supreme Court. One had to withdraw his candidature after a press campaign against him. The other, Justice Thomas, went through a most excruciating and improper grilling before the Senate Judiciary Committee.
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Despite all the hesitation on detail, we can wholeheartedly welcome the proposals which the noble Viscount lays before us, which will be a valuable source of discussion.
11.40 a.m.
Lord Renton: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has given us the advantage of his judicial experience and constitutional wisdom. I do not believe that I have ever said—I should have done—that I and members of the Committee on the Preparation of Legislation, of which I had the honour to be chairman, are deeply indebted to the noble and learned Lord for the way in which a quarter of a century ago at this time of year he welcomed the report of that committee and has supported it frequently ever since. His reference today to the Preamble to this Bill reminds me that what we most wanted parliamentary draftsmen to do was to state the purposes and principles of Bills so that the contents could be better understood by everyone and more easily interpreted by the courts.
The Preamble to the Bill states vividly the purposes as matters of principle. We have not had Preambles as a regular matter for over 70 years. However, I believe that in this particular case it has been an advantage to us to have the Preamble. One hopes that the noble and learned Lord the Lord Chancellor, with whom one disagrees on some matters but who has some good ideas about the drafting of legislation, will bear in mind that advantage.
My noble friend Lord Cranborne, who was an admirable Leader of the House and Leader of the Opposition, has done valuable service to our parliamentary democracy by introducing this Bill. I need hardly mention, although we should bear in mind, that we have a flexible and "unwritten" constitution. I put that word in inverted commas because parts of our constitution have passed into statute and therefore can be said to be partly written. That differs from so-called "written" constitutions which, thank God, we do not have. It is difficult to reach agreement on their amendment and they fail to keep up with changing times, and if possible we should avoid them. Our constitution, being flexible, can change as experience requires or public opinion desires. By proposing various detailed changes my noble friend's Bill would help to bring our parliamentary government up to date.
Clauses 1 to 12 in Part I aim to improve our primary, devolved and delegated legislation and give us the control that we need over Community legislation. Those changes will no doubt be discussed in detail in Committee, but perhaps I may make a general comment. Our legislation needs to be improved in the way suggested by my noble friend, and the Government should seriously consider that. I draw attention only to Clauses 6 to 8 which suggest ways in which subordinate legislation should be considered. As the noble and learned Lord, Lord Simon of Glaisdale, said, the Government use delegated legislation more than it has been used in the past, certainly, as far as I can remember, since World War II. In war time it must be used; it cannot be avoided. But it is most unfortunate that neither House of Parliament has power to amend

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delegated legislation. The practice in both Houses is to debate these matters either late in the day or early in the night when they have much less chance of being properly considered; and they cannot be amended.
In Part II Clause 13 proposes some useful strengthening of the powers of the Committee of Public Accounts to consider recommendations of the Comptroller and Auditor General. I regard that as one of the most important provisions in the Bill. But, alas, as I have told my noble friend, I cannot agree with Clause 14. That clause requires parliamentary approval of a wide range of important public appointments, including Law Lords, ambassadors and chairmen of many important public bodies. For years all of these appointments have been made by members of the Cabinet, each with his own responsibility, who happen to be politicians. But those appointments are made after consultation with civil servants and others who can give advice as to the best people to fill those posts. Some of the appointments require Royal approval. I consider that the present system works well. If party politicians, especially those in another place, had to give their approval all kinds of undesirable pressures would arise, and that is something to be avoided. The administrative cost of making these appointments would also be considerably increased. At Committee stage I intend to move to omit Clause 14 and the schedule from the Bill.
Part III proposes a commission to review government administration. That is a very sensible proposal. Part IV is a hit controversial in places, but I shall try to keep an open mind until Committee stage and I have heard further justification from my noble friend for his proposal. Meanwhile, I doubt the need for by-elections after the appointment of new Cabinet Ministers. That, too, would add to the cost to the taxpayer.
Clause 21 in Part V requires the BBC to broadcast proceedings of each House. That is an excellent proposal, for it means that people can be better informed. We used to be reasonably well informed by The Times, Daily Telegraph and Guardian, but regrettably those newspapers have not performed that task for many years. I hope that I shall not be thought to he too egocentric if I say that I fought and won 10 general elections and never had a majority of less than 5,000. Looking back to those times, it occurs to me that no more than one third of those who voted had a real understanding of the issues. I doubt whether today the proportion is any higher, because people do not have an easy opportunity of becoming well informed. If the BBC had an obligation to broadcast the whole of our proceedings, democracy would be much improved, and people would be better informed and more able to make a judgment. I regard that provision as being of great importance.
I believe that my noble friend has done a great service in putting forward the Bill. I know that it is late in the Session, but I hope that we shall have the Committee stage very soon. If, as some would say, a miracle occurs—I believe that it is a necessity—and the Bill reaches the statute book, it would be in the interests of our parliamentary democracy.
11.49 a.m.
Lord Rathcavan: My Lords, with due humility in the presence of so many noble and learned. Lords, I intend to make only a brief contribution to the debate on the Bill which I broadly welcome. From these Benches, I often admire the nimble footwork of the noble Viscount, Lord Cranborne, on legislative matters on which he has as much experience and historical knowledge as anyone here today. I do not see any hidden agenda, however, in the Bill. It is clear what it intends to achieve: more democratic government. which we badly need at present; more accountability; more parliamentary control; and more scrutiny of government and in particular the scrutiny of the devolved assemblies and Scottish Parliament.
I wish to speak in particular on Clauses 4 to 8 which are concerned with parliamentary control over the delegation of legislative powers and the exercise of those powers in Scotland, Wales and my own province of Northern Ireland, and which would require the Northern Ireland Assembly, for example, to send all its Bills to Parliament here for scrutiny at the least.
During the few years in which I have been a Member of your Lordships' House I have had the advantage and experience of being a member of Sub-Committee D of the European Communities Committee to which government give the informal power to scrutinise and comment on any legislative measures or directives from Europe before they are agreed by the Council of Ministers. In Clause 9 the Bill goes much further, and I very much welcome that. The sub-committees of the European Communities Committee do not have power at present, but I hope and believe that we have influence. Government take into account our recommendations, as they have done recently on the report produced by Sub-Committee D on genetically modified crops and food. More important perhaps is what would happen if the scrutiny process of the committees was not there to request government to account for what they are doing and to debate the issues involved.
In the case of the Northern Ireland Assembly and the Scottish Parliament there is no revising chamber and no scrutiny reserve. There are concordats which I understand are written but which are informal arrangements concerning departmental matters, produced more often by officials than Ministers, such as, for example, on the rules for competition on inward investment incentives between the different regions and the DTI—a very contentious issue. But if I remember correctly, the Government, at least at Third Reading of the Northern Ireland Bill, rejected any legal obligation to lay these concordats before Parliament. In Clause 5 the Bill would require the Northern Ireland Assembly and the Scottish Parliament to send all Bills to the Delegated Powers and Deregulation Committee for scrutiny and a report to be laid before the Assembly or the Scottish Parliament. It is a reasonable enough request and a move towards the checks and balances and public discussion which should take place.
At one extreme one can imagine a coalition in Northern Ireland of the Presbyterian ethic with the abstemious style of Sinn Fein to introduce prohibition

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in the Province. That reminds me of my time as a young member of the editorial staff of the Irish Times when that paper published an April Fool's day editorial during a general election criticising the inclusion in the manifesto of the Fianna Fail party of a proposal to introduce prohibition for the Republic of Ireland. This led to a serious sense of humour failure by the Fianna Fail party which accused the Irish Times editorial of being in the hands of crypto red communists.
On a more serious note, I urge the Government to take more seriously now the Bill's proposals and to take this opportunity to make the regional assemblies and the Scottish Parliament more accountable and more open to scrutiny by central government and Parliament, which is, after all, providing most of the money for them to spend, as the noble Viscount mentioned. Perhaps it requires a beefing up of the Public Accounts Committee. That is covered in Clause 13.
I congratulate the noble Viscount, Lord Cranborne, on introducing the Bill. I strongly support the themes of the Bill and look forward, I hope, to the Committee stage when the Bill can even be improved.
11.54 a.m.
Lord Norton of Louth: My Lords, I, too congratulate my noble friend Lord Cranborne on introducing the Bill. It is an important Bill and I join in welcoming the fact that it is the noble and learned Lord the Lord Chancellor who is to reply for the Government and my noble friend Lord Strathclyde for the Opposition.
The Bill deals with the fundamental relationship at the heart of our political system. There is an inherent conflict within that relationship. Most members of the elected Chamber are returned to support and sustain the Government, yet they are Members of a House expected to subject to scrutiny the actions and measures of that very Government. The nature of this inherent conflict raises two important questions. First, what are the most effective means of parliamentary scrutiny? Secondly, how can those means be put beyond the immediate reach of the majority which exists to sustain the Government, a Government which may not be too keen on being the subject of close and sustained scrutiny?
The Bill deals with the means of scrutiny and the form of protection. I shall address each briefly. On the content, I very much welcome many, indeed most, of the provisions of the Bill. I congratulate my noble friend especially on the provisions for strengthening the role of Parliament in the scrutiny of primary and delegated legislation. I welcome Clause 1 providing for the publication of Bills in draft. I acknowledge how far the previous administration went and how far the present one has gone in providing for the publishing of some Bills in draft. But I believe that it is vital to lock the provision into the system and not leave it to the discretion of Government.
I also strongly support the other provisions of Clause 1. I have long advocated the use of evidence-taking committees, especially in the other place, as standard practice; the provision that Bills automatically stand referred to such committees, unless the House resolves
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to the contrary, will, I believe, serve to increase enormously the quality of parliamentary scrutiny, offering as it does the potential for more informed and less partisan examination.
I am delighted by the attention given to delegated legislation and would probably wish to go further and to incorporate more of the proposals contained in the report from the Procedure Committee in another place in its Fourth Report in the 1995–96 Session. I very much endorse what the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lord Renton said. The legislative process in Parliament is still the weakest area of parliamentary scrutiny and anything that serves to strengthen Parliament in its scrutiny of public legislation is to be applauded.
I congratulate my noble friend on the proposals for greater use of the National Audit Office, itself of course established through the medium of a Private Member's Bill. The provisions of Clause 2 are novel and potentially far reaching. I recognise that there are important implications in terms of resources for the National Audit Office, but the provisions merit serious consideration.
I also welcome and strongly support Clause 12 dealing with uncommenced legislation, and have great sympathy with what my noble friend seeks to do in respect of European legislation, public appointments, the number of Members of the House of Commons in Cabinet, and the broadcasting of proceedings, although I take the view that a reduction in the size of the Cabinet should be a consequence of reduction in the size of the House of Commons rather than the other way round. I am not sure that I necessarily agree with the detail of each proposal, but I think that my noble friend has got the principle right in each case.
Where I part company with my noble friend is in respect of Clause 3 providing for referendums on legislative provisions which affect substantially the constitution. I have a practical objection to subsection (1) and I am opposed in principle to the provisions of subsection (2). The practical objection is that it is not always possible to distinguish clearly between a measure which affects substantially the constitution and one that does not. There is an enormous grey area. There can also be a marked difference between a Bill which affects substantially the constitution and a Bill which has an important and contested impact on the constitution. I note also that the Bill does not define a constitution.
I turn to my more fundamental objection. I have a longstanding and principled objection to referendums. The best argument against referendums was made by my noble friend Lady Thatcher in her first major speech as Leader of the Opposition in 1975. Although she may have changed her opinion since, I have not. She recognised that referendums conflict fundamentally with the concepts of parliamentary sovereignty, collective responsibility and a representative of Parliament. As another Labour Member said in that 1975 debate, a referendum perpetuates a confusion of government by

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debate, thought, reflection and decision in the House of Commons with a head count of the people. Although I recognise that there is a counter argument, I subscribe to the view that referendums undermine crucially and perniciously the very notion of parliamentary control that my noble friend seeks to protect by this Bill. Clause 3 is the equivalent of a computer virus and if it is left in, it will serve to wipe out and destroy the valuable provisions embodied in the other clauses. I should like to see it eliminated.
I turn now to the form of the Bill. I very much welcome what my honourable friend seeks to achieve by embodying the mechanisms of parliamentary scrutiny and control in statute. By putting the provisions in statutory form, they are protected from the passing whim of a majority in either House. They can be changed only by another statute, not by a simple vote to change or suspend a Standing Order. Given the power at the disposal of the government of the day, such protection helps to ensure a more balanced relationship between the Executive and Parliament.
I can anticipate the argument that the Government will employ against using a Bill for this purpose; namely, that it is too rigid. In some countries, provisions of the kind embodied in this Bill are to be found not in statute but in the constitution. That, I think, is to provide for a little too much rigidity. This Bill lies between the two extremes. It is not overly rigid and it is not too flexible. It provides for a modest degree of statutory protection. For the reasons I have given, I believe that it is necessary protection.
Although I oppose certain provisions of the Bill, I very much support its purpose and I believe that my noble friend has done a great service by introducing it. I often tell my students that the real value of Private Members' Bills is to be found in the debate they generate. They can bring issues on to the political agenda. They can prompt the Government to act. They can help to keep important issues to the fore. I hope that my noble friend's Bill will serve to do all these and more.
Finally, good government needs an effective Parliament. A confident government will have no difficulty in embracing the spirit of this Bill. A government lacking in confidence will not embrace it. I look forward to the response of the noble and learned Lord the Lord Chancellor.
12.2 p.m.
Lord Weatherill: My Lords, I, too, welcome the opportunity to discuss this important matter on a Friday morning. However, I am not totally convinced that we need a Bill to make Parliament more effective. In saying that, I do not disagree with many of the suggestions made by the noble Viscount. What I believe is wrong is the way in which we are using Parliament at present. There is not much wrong with the institution of Parliament in itself.
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The noble Viscount, Lord Cranborne, mentioned that the only effective power in the other place at the moment are the Whips' Offices. I fully agree. I was a Whip for some 12 years—
Viscount Cranborne: My Lords, particularly in view of the noble Lord's presence here this morning, perhaps I ought to have added, and put first, the Speaker's Office.
Lord Weatherill: My Lords, I wholly agree. I was Speaker only for 10 years, but I was a Whip for 12 years. By the end of my time, in 1979, I had reached the conclusion that as Deputy Chief Whip I had far too much power. If we had used the 1970s tactics in 1964, when I first went to the Whips' Office, on Colonel Sir Walter Henry Bromley-Davenport or on Captain Lancaster or on Nigel Birch, I do not believe that I should be standing here today addressing your Lordships' House.
The trouble is the ambition of Members these days to become Ministers. That gives the Whips far too much influence. I wholly agree with the noble Viscount that what is wrong is that the Government are not being held to account, particularly in the other place. There is not time to go into that in detail in the gap, Put one of the actions we must take is to return to local government the powers taken from it during the past several years and free Members of Parliament to come into the Chamber and hold the Government to account It was Mr Gladstone who said to his own supporters, "It is not your job to run the country. It is your duty to hold to account those who do".
The trouble is that Members of Parliament are in their offices answering the 40,000 letters which come into the Palace of Westminster every day. Frequently, when I was Speaker, I received letters of complaint which were hardly ever about bad behaviour but nearly always about the way in which the Chamber was so badly attended. I want to see the Chamber become once again the forum of the nation. If one turns on the television today, one sees that it is nearly empty. That sends a bad message to the public who watch it, or fail to watch it and do not take account of what is happening. I should make the Select Committees much more influential. That is where the Government really are being held to account. For instance, there is a good case for paying the chairmen of Select Committees.
I shall not enlarge on these matters today, but I hope that we shall have an opportunity to return to them at a later stage. I welcome the opportunity provided by the Bill to reform the whole of the parliamentary system. I hope that after the Bill to "reform"— and reform should be better—your Lordships' House, we shall move on to look at the whole of the parliamentary system, which includes the other place. I welcome and congratulate the noble Viscount on giving us this opportunity today to discuss this very important matter.
Lord Renton: My Lords, before the noble Lord sits down, will he say why he believes that attendance in another place has fallen so much? Is it not due to the ever increasing amount of correspondence which

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constituents send to honourable Members, plus the fact that the departmentally related Select Committees, which were established 20 years ago by a committee of which, I must confess, I happened to be a member, now take up so much of the time of Members and prevent them being on the Floor of the House?
Lord Weatherill: My Lords, the noble Lord is absolutely right. Part of the trouble is the constituency surgeries, which are now held every week. Members are largely canvassed about constituents' problems. Two-thirds of them are matters for local government, which is why I say that we should return powers to local government and let local councillors deal with many of the problems. That would free Members of Parliament to spend more time in the Chamber.
It is true that Select Committees take Members away from the Chamber. When I was Speaker, Members would regularly ask me whether they would be called by five o'clock. I had to say, "It is unlikely that the Front Benches will have finished by five o'clock. Is it because of your Select Committee?". They would reply, "Yes, Mr Speaker". They have no option. If you can go to a Select Committee and be seen on television holding witnesses and Ministers to account, why stay in the Chamber hoping to catch the eye of the Chair?
12.9 p.m.
Lord Jopling: My Lords, I am provoked by my noble friend Lord Cranborne's flattering remarks, about the efficiency of the Government Whips' Office during the years in which he was in the House of Commons, to offer a few remarks. I wish, however, that his enthusiasm for the Whips' Office had been shown on some of those occasions when he was not quite as helpful as I might have wished. However, on this occasion I congratulate him warmly on introducing this Bill. It brings together many of the thoughts that we have had over the years as to how Parliament might be improved.
My noble friend Lord Cranborne came very clean when he said that one purpose of the Bill was to make it more difficult to get legislation through. It would certainly have that effect. When I was Chief Whip, I hated some of the scrutiny arrangements for legislation. They made my job much more difficult, as it took longer to get legislation through. I well remember when there were Cabinet Committee meetings to decide what should be in the Queen's Speech. Ministers would come with torrents of legislation to propose, even though our party had been elected on the basis of reducing the amount of legislation. Whenever I plaintively said that we might be pushing far too much legislation through, nobody seemed much prepared to listen. The Bill might thus prove to be a good way of stemming the flow of legislation from which we have suffered during at least the 35 years in which I have been around this building.
I much agree with the proposal for a smaller House of Commons and fewer Ministers. I had the honour to be chairman of a committee on the Sittings of the House in the 1990s, and I wish that I had had the opportunity
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to make such proposals, but that was precluded from its workings. I also agree with the noble Lord, Lord Norton, that these things should be done together, rather than in two stages, as the Bill proposes. I hope that the Bill may be changed in that regard.
I am unhappy about the proposal in Clause 9 that Ministers should not sign European legislation until there has been wide consultation. I shall explain why. During negotiations late at night, new propositions often come up in the Council of Ministers, which can prove particularly advantageous to the national interest. For example, I was once involved in the middle of the night in the annual agriculture price fixing. I was determined to maintain the beef support system, which we then enjoyed. We were the only country to do so. I had no friends, and I badly wanted a friend to support me in maintaining the beef support system, which had to be renegotiated every year. At about 4 a.m. the Italian Minister said, "Michael, I have been looking carefully for the first time at your beef support system, and I think it has much merit. But I wonder whether you would be kind enough to look at my tomato pulp regime". I said that I did not need to look at it, as I was sure that it was an admirable scheme. We agreed to stand up for each other's schemes, and so I immediately obtained my beef support scheme. I should hate to tell your Lordships what the commissioner called us when we told him what we had done.
I hope that the Bill will reach the Committee stage, and that we can try as the noble Lord, Lord Rathcavan, said, to improve it in the weeks ahead.
12.15 p.m.
Lord Hankey: My Lords, I have only just returned from abroad, and have not studied the Bill in the detail that I should have liked. However, its content is enormously important. The Mother of Parliaments is closely watched by the rest of the world for the manner in which we achieve our democracy and transparency, and for how we involve our people, as the primary stakeholders, in government.
What we do in Parliament is of great importance for the primary stakeholder, the electorate. All too often, the electorate has been alienated, and that is borne out by the poor turnout at referendums. The devolution of power which the noble Lord, Lord Weatherill, and the noble Viscount, Lord Cranborne, emphasised is vital. We must ensure that devolution involves people so that our open society, which often stands in contrast to the closed societies that lead to corruption and centralisation, can lead to involvement, inclusion and the proper devolution of power.
I have just returned from the Yemen where the law of local administration has attempted to open government to local people. Such issues are fundamental to countries such as India and China, which watch our parliamentary democracy closely. The Bill's importance is underlined by the way in which the "Mother of Parliaments" is so highly visible to the rest of the world. In times of prosperity, alienation is less significant, but we need systems of control and contract for when times are tough, and that also applies to the way in which we organise ourselves in Parliament.
12.17 p.m.
Lord Monson: My Lords, I congratulate the noble Viscount, Lord Cranborne, on this ingenious, thought-provoking and constructive Bill. I agree, in principle at any rate, with virtually everything proposed. The exception is Clause 17. The number of Members of Parliament may have crept up somewhat in recent years, but he has perhaps overlooked the fact that once Scottish over-representation at Westminster has been remedied and Scotland has been brought into line with England, Wales and Northern Ireland—a necessary move which I trust will not be long delayed—the number of Members of Parliament will fall to about 644. Of course that is still a long way short of his ultimate goal of 400. But I understand that many people value the chance of personal contact with their Member of Parliament, and the greater the number of constituents, the smaller the opportunity of making that personal contact will be.
Moreover, as my noble friend Lord Weatherill has pointed out, Members of Parliament have to some extent had to step into the shoes of local councillors, and their postbags are at least 10 times larger than they were a generation ago. The hands of Members of Parliament are therefore already fairly full. I doubt whether, for example, the deputés in the Assemblée Nationale have to cope with quite so much correspondence, but I am open to correction on that.
I wholeheartedly agree with the proposal in Clause 18 to reduce the number of Ministers. But it is surely just as important that their numbers should be reduced proportionately as that they should be reduced in absolute terms. Yet under the Bill's proposals, from the year 2020 onwards, 15 per cent of Members of Parliament, and up to 29 per cent of Members of Parliament on Government Benches, could be Ministers. In addition to that 29 per cent, there would be several unpaid parliamentary private secretaries.
Surely, if we want greater parliamentary scrutiny of the executive, as we must all do, we want the maximum possible number of independent-minded Back-Bench MPs who have little interest in scrabbling for office and are therefore not afraid to vote against the dictates of their Whips whenever they judge it right to do so. With that exception, I think that the Bill is excellent, and again I congratulate the noble Viscount.
12.21 p.m.
Lord Bruce of Donington: My Lords, I shall not detain the House for more than a couple of minutes. I thank the noble Viscount, Lord Cranborne, for bringing forward this particular subject, which is very appropriate at this time.
I draw your Lordships' attention to Clause 9, which deals with the whole question of Community legislation. I am not entirely convinced that Members of another place, or, indeed, quite a number of noble Lords, are aware of the amount of Community legislation which goes through both Houses of Parliament without proper parliamentary scrutiny.
For many years I have endeavoured to acquaint your Lordships with the extent to which that has intruded into our national life. Perhaps the Government will give us
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an indication of their views on the validity of the conditions set out in Clause 9. Will the Government indicate whether they are aware of the extent to which legislation from Brussels avoids proper scrutiny? That does not necessarily happen by design, but perhaps through our administrative negligence: or perhaps through the views of our own bureaucracy here, which is not free from blame in that particular respect, and which quite willingly connives at the avoidance of parliamentary views being expressed prior to any particular enactment.
I have no particular rancour in that matter. I do not even resent being ignored over those questions during the past 15 years. But I assure your Lordships, with as much passion as is proper for me to express in this House, that I am deeply disturbed about the way in which the authority of Parliament to deal with its own affairs in this country is being progressively and deliberately undermined.
12.23 p.m.
Lord Strathclyde: My Lords, it is a great pleasure now to have an opportunity to join in the debate. I very much welcome those noble Lords who spoke in the gap and joined our deliberations. The fact that they were urged to their feet by the speech of my noble friend Lord Cranborne and by others who spoke earlier shows the strength of the power of debate. I say to my noble friend Lord Cranborne that it is right that we should debate this matter, even if it is a sunny Friday in June. I for one am happy to give up my morning in the sun to be here debating one of the most important issues that faces us. I entirely agree with what my noble friend Lord Norton of Louth said in that respect. Indeed, if we had spent as much time in this Parliament debating the provisions in my noble friend's Bill to strengthen Parliament as we have spent debating a Bill to reduce the independence of Parliament, then we should have hope of better governance. The Bill to which I refer is the one that seeks to make so many changes to this House.
The Government claimed that they would govern for the many, not the few. Yet look at the way in which they have treated Parliament over the past two years. It has been a story of the subjection of the elected many by the executive few. Month after month we have seen announcements made outside Parliament; MPs sent away from Westminster and another place shut down while this House is still working hard:, changes in another place to tighten the executive's Op on procedure; expressions of impatience with any spark of independence in your Lordships' House or elsewhere. In this House I hardly need mention the tawdry Bill designed to open the road to a second Chamber.
I see in this House—only just over the horizon—changes in procedure that may erode the right of every Peer in this House to be heard, and the right for debate never to be blocked or curtailed. I hope your Lordships of any and every party will resist such changes to the utmost. That is the last corner of our Parliament into which the clammy hand of the executive has not reached entirely. It must stay that way.

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The independence and authority of Parliament have been steadily and dangerously eroded. An openly presidential manner of government is emerging, in which a Cabinet meeting is an optional excursion from the flat upstairs, and the second most powerful man in the country is a former journalist on a tabloid newspaper, who has never submitted himself to election by the people, or even, so far as I know, by members of his own party.
On the other hand, my noble friend's Bill represents a way to begin to rebuild the authority of Parliament. It is a far-reaching and audacious Bill, betraying that elegance of mind and seductive vision for which my noble friend is rightly renowned. We on these Benches support the Bill, although I agree with the noble and learned Lord, Lord Simon of Glaisdale, that not all of my noble friend's ideas will work, desirable though they may be. We should like to see aspects of the Bill become law, and we offer co-operation to the Government, in both Houses, in helping it on its way to the statute book.
I turn to some of the specific provisions in my noble friend's Bill. It is difficult to decide which clause of the Bill most merits attention. But there is no doubt that the provisions in Clause 1 to put a presumption in favour of consultation on a Bill before it is presented to Parliament are wise. We have seen far too often, both under this Government and their predecessors, truncated consultation, or often none, resulting in bad law. My noble friend is wise to suggest a presumption in favour of a committee on a major draft Bill that would take evidence from affected parties. One only needs to cite the draft financial services Bill currently being considered—and the remarkable work being done by many Members of this House in pointing out its defects—to show the value of that. I hope that the Government will be able to indicate their support in principle for this clause.
I was touched by the piety of Clause 3, which would enact the referendum principle for which my noble friend's distinguished ancestor Prime Minister Salisbury was famous. It would enable this House to require a referendum on a constitutional Bill of special significance. That would provide protection against the abuse of elective dictatorship. It would ensure that any referendum would be held on the basis of the detailed proposals of a government. It would not be held, as this Government's referendums have been, on the basis of outline ideas and before detailed legislation had been published. Such pre-legislative referendums are a disgrace and should be prevented. No doubt the implications of that idea require careful discussion in Committee. My noble friend Lord Norton of Louth has usefully explained why we should have some reservations about it.
I am very interested in the provisions of Clause 4, which would enable this House, on the advice of the Delegated Powers and Deregulation Committee, to veto sections of legislation taking excessive secondary powers. The growth of secondary legislation, effectively beyond the control of either House, is a curse of modern government which has flourished equally under both
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parties, but has taken a new leap forward in the last two years. The Pollution Prevention and Control Bill, recently before this House, was one of the more outrageous examples of a skeleton Bill. My noble friend's proposal would directly confront that problem. It would require governments to account properly to Parliament, and it would put real power behind the authority justly acquired by your Lordships' Delegated Powers and Deregulation Committee, since it was created largely on the initiative of the noble and learned Lord, Lord Simon of Glaisdale, and that of my noble friend Lord Cranborne himself.
My noble friend in Clause 5 imaginatively suggests a way in which the valuable services of the Delegated Powers and Deregulation Committee in scrutinising legislation could, at the request of those bodies, be put at the service of the devolved assemblies. The relationship between this Parliament and the devolved assemblies will take time to bed down. That is one way in which a constructive link can be retained between those devolved assemblies and Westminster. I was much impressed by what the noble Lord, Lord Rathcavan, said on the subject and on the lack of a revising Chamber in the devolved bodies.
Clauses 6 and 7 require more formal consultation on secondary legislation generally, and I welcome that. I can see great attractions in Clause 12 which would automatically cause any legislation not commenced within five years to lapse.
I am glad to see that the noble and learned Lord the Lord Chancellor is to reply to the Bill. Perhaps in so doing the noble and learned Lord would undertake to send me, and to lay before the House, a list of all enactments that would currently be caught by this provision.
A number of Bills that have come before your Lordships' House lately seek to address the question of improving scrutiny of European legislation. It is a serious problem, which has become far worse because of the uncritical acceptance of new European commitments by this Government since May 1997, which, taken together, bear down heavily on UK employers, particularly smaller businesses.
So I see great merit in requiring Ministers to consult Parliament on draft directives, long before such directives come to the point of a vote. I also find intriguing the prospect of an affirmative vote in both Houses being needed before a Minister could sign an undertaking. I wonder on how many occasions the noble Lords, Lord Bruce of Donington and Lord Stodart of Swindon, would be seen in the same lobby as this carelessly trusting Government. However, I recognise what my noble friend Lord Jopling said about sometimes needing to take decisions urgently and at short notice.
I very much like the proposals in Clause 10 which will need to be examined carefully in Committee. The clause strikes directly at the pernicious practice of "gold-plating", rife in departments of state, under governments of all colours. Time and again extra elements are grafted on to what purports to be Community-based legislation. Perhaps the noble and

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learned Lord will effect a response to this question—almost certainly by letter—as to which elements in legislation presented to the House since May 1997 have been "gold-plated" by government departments before they were introduced to Parliament.
Of course, I cannot deal with every aspect of my noble friend's Bill. Indeed, a difficulty of the Bill—when it comes to winning the attention that it deserves—is that it addresses so many fundamental questions so incisively. The proposition to give Parliament authority to examine the holders of key public offices prior to appointment—as is done in the United States—may seem a far-reaching one. My noble friend Lord Renton mentioned his opposition to that.
I believe that there is much to be said for the proposition. Perhaps the noble and learned Lord the Lord Chancellor could indicate whether there are any circumstances in which the Government would consider proceedings such as those proposed by my noble friend and, if so, in which areas. I look forward to the response of the noble and learned Lord.
Part IV of the Bill has some deeply intriguing proposals as regards another place. Ministers in another place have been kind enough to send us some fairly questionable proposals for the alteration of this House, substantially without any consultation. It may be only equitable for my noble friend to send a fireship of this kind back down the corridor.
I have never hidden my view that the current House of Commons is large and unwieldy. The same could be said of the payroll in government. My noble friend proposes a limit of 400 eventually on the size of another place: a limit of 75 on the number of Ministers and a limit of 15 on the Members of the Cabinet. I believe that is extremely wise and that the proposal should receive widespread welcome. I particularly endorse the welcome given by my noble friend Lord Jopling.
I do not have a firm view on the suggestion of my noble friend that the practice of Cabinet Ministers having to fight a by-election when first appointed to the Cabinet should be revived. However, I understand that in 1964 Patrick Gordon-Walker lost his seat in Smethwick, was made Secretary of State for Foreign Affairs, stood in the subsequent by-election in Leyton and lost. No doubt that is a lesson that the Government may wish to keep uppermost in their minds when responding to my noble friend.
Clause 20 addresses the shamefully unresolved West Lothian question, in the most direct way possible. Perhaps the noble and learned Lord would cast his mind on this proposal. Does he see it as an option for resolving this question and, if so, can we expect legislation from the Government on this matter? For our part, we do not believe that this issue can safely be ignored.
Part V of the Bill is perhaps the most unlikely, but it is also the most reasonable. It proposes asking the BBC to involve itself further in broadcasting our proceedings. I welcome that and I hope that the BBC will take up the proposal. I look forward to its progress.
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If the noble and learned Lord the Lord Chancellor were to give a positive reply to many of the ideas proposed by my noble friend that would be greatly welcomed, not just in the House but more widely. This has been a useful debate and no doubt that is partly due to the lack of interference, or any contribution from the Liberal Democrat Party! I look forward to the reply of the noble and learned Lord the Lord Chancellor. If the Bill is not enacted, my noble friend will not give up. If he survives the culling process, he will return, in the next Session, with a Bill that deals with some of these issues so that they can be fully debated again.
12.36 p.m.
The Lord Chancellor: My Lords, anyone reading the opening words of the preamble to this remarkable Bill may be forgiven for forgetting which party was in power for 18 of the past 20 years. The preamble boldly intones:
"Whereas the sovereignty of Parliament has been progressively diminished".
I am sure that the noble Viscount, in his various roles as a government Back-Bencher in the other place, as someone who took voluntary retirement from there to be accelerated into this House because of the multiplicity of peerages which abound in his great family, and as someone who became Leader of this House, fought tirelessly from within that government to restore the sovereignty of Parliament and to reform the constitution. However, the right honourable gentleman, Kenneth Clarke, told a different story in the other place:
"With hindsight, I believe that the Government of whom I was a member for so long were mistaken in becoming so immovable on the constitution. We should not have allowed ourselves to be put in a position where we seemed to be defending the constitution for every part of the United Kingdom as though it could never change".—[Official Report, Commons, 30/11/98; col. 577.]
I must not fall into dangerous habits of mean spiritedness. I must not countenance the notion chat this amazing Bill is the product of many flows of blood to the brain after good dinners in White's Club. No, I must welcome the passion, the zealotry, of the convert to the cause of constitutional reform. Only yesterday the noble Viscount welcomed me to the ranks of high Tories for my defence of the office that it is my privilege to occupy. I welcomed him to the ranks of the rationalists, which high Tories occasionally join, although usually by accident.
The preamble goes on to say that,
"the obligation of governments to be held continuously to, account by Parliament has been honoured more in the breach than in the observance, and the obligation of governments to remain accountable to the electorate through their representatives has in consequence declined".
I expect that noble Lords who have served in another place will have many fond memories of being held to account. Few will forget how the electorate held the previous government terminally to account on 1st May 1997. Equally, there are among my noble friends in this House those who will also recall painfully being held to account by the other place on 28th March 1979. when the then Labour Government lost a confidence Motion there.

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This imaginative Bill contains a range of measures which the Government are already putting into effect without the need for legislation. The merits of other parts will no doubt be debated in detail in Committee.
The noble Viscount argued that Parliament generally, and the House of Commons in particular, ought to have been reformed before the composition of this House was addressed. He presented his Bill just before the House of Lords reform Bill was given a First Reading. Well, that is a battle long ago. The noble Viscount and I have been cutting deals for the transitional House, and nine-tenths of the hereditary peerage, to whose services and their forebears' services I have previously paid tribute, are already in the departure lounge from this House.
The Government have taken steps to achieve some of the purposes of the Bill. On primary legislation, we produced five draft Bills for pre-legislative scrutiny. A Joint Committee, chaired by the noble Lord, Lord Burns, and referred to by the noble Lord, Lord Strathclyde, reported on the draft Financial Services and Markets Bill. It has now been introduced in another place. Another Joint Committee has been established to consider the draft Local Government (Organisation and Standards) Bill. A draft Bill on freedom of information is being considered by Select Committees in both Houses. The Government intend to produce more Bills in draft in future Sessions. This goes a considerable way to meeting the objectives of Clause 1 of the Bill. These measures are designed both to improve the quality of legislation and to provide an early parliamentary input into the legislative process.
From the start of this Session, fuller explanatory notes have been published with each government Bill. These provide much of the information sought in Clause 1 of this Bill. They also provide a detailed commentary on individual clauses. I believe that the development has been widely welcomed both within and outside Parliament, not least among lawyers. The noble Viscount's Bill sadly appears without explanatory notes, but that is because this imaginative Bill does not command the support of the Government.
I shall not be tempted by Clause 3 to weary the House with a reprise about constitutional Bills and referenda, but the Government have gone out of their way to ensure that the views of the electorate are taken into account in constitutional reform. The devolution settlements and the Greater London assembly plans have been endorsed in referenda. Any change in the electoral arrangements for the House of Commons, or adherence to the single currency, would also be subject to referenda.
No one who has had anything to do with the Pollution Prevention and Control Bill could be unaware of the concern in this House about delegation of powers, referred to in Clause 4. This Government pay close attention to the views of the Delegated Powers and Deregulation Committee and wherever possible seek to amend government Bills to meet its concerns. I did just that myself in the Access to Justice Bill in my positive response to every point made in the committee's report on that Bill.
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On parliamentary scrutiny of delegated legislation, the House will recall that we brought forward amendments to the Human Rights Bill to set a time-frame for parliamentary scrutiny of remedial orders. The number of sitting days involved in that procedure bears an uncanny resemblance to the periods listed in Clause 6 of this Bill. We are also consulting on an extension of the Deregulation and Contracting Out Act 1994. The procedures in both Houses for deregulation orders under that Act arguably provide better parliamentary scrutiny than Bills or other statutory instruments receive in either House.
The Government have already carried out their manifesto commitment to overhaul scrutiny procedures for European Union documents. Scrutiny procedures have been extended to cover the second and third pillars of the Maastricht Treaty. The scrutiny reserve has been expanded to include European Council decisions. Clauses 8 and 10 would take us further. No doubt we shall discuss in Committee how they would work in practice.
The Government have been active in extending the principles set out by the noble and learned Lord, Lord Nolan, and his Committee on Standards in Public Life, for public appointments. It is a tribute to him to know that "Nolanisation" has entered the Whitehall argot as prescribing that all appointments are to be made on merit. That is something on which I have always insisted for judicial appointments: merit—not social balance, opinion balance, gender balance, or any other kinds of balance. Merit must rule.
The Committee on Standards in Public Life considered whether Parliament should be given a role in the process of making public appointments, which is the effect of Clause 14, but concluded against. The system in the United States shows the potential pitfalls of appointments being delayed and politicised, and of good candidates being deterred from applying. The noble Lord knows that I would have no truck here with the confirmation hearings in the US before Supreme Court justices are appointed. Once appointments have been made, of course, Parliament has considerable powers to hold office holders to account, but subject, in the case of the judges, to the important constitutional convention of judicial independence.
In March, the Government published a White Paper Modernising Government. This set out plans for continuous improvement in central government, including greater use of new technology and a commitment to delivering services which are of high quality and efficient. We have also set up a performance and innovation unit within the Cabinet Office, designed to improve the capacity of government to identify and address strategic, cross-cutting issues and to promote innovation. I think the House will find that these measures, along with the public service agreements, the Government's annual report, annual departmental reports and the output measures involved in resource accounting, will go a long way to meeting the aims of Clauses 15 and 16.
The Scotland Act 1998 already provides for a modest reduction in the size of the House of Commons, but not on the scale envisaged in Clause 17 of the Bill. As

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someone who has not sat in the other place—unlike the noble Viscount—it is difficult for me to judge how reducing the number of MPs—and therefore increasing the number of constituents each represents—will affect the workload of MPs. But I say this: if we had a Bill before us calling for a reduction in the number of judges but an increase in access to justice, some of your Lordships might spot a problem. Clause 18 of the Bill seeks a reduction in the number of Ministers and an increase in accountability to Parliament. I suspect that any reduction in the number of Ministers would not improve accountability, and certainly not in this House. As the Minister responsible for a department of state which feels rather under-resourced with Ministers, I have difficulty in being persuaded by the noble Viscount's proposition.
Clause 19 is surely the most entertaining in this enjoyable Bill. No doubt we all want our Prime Ministers to have maximum flexibility in composing their Cabinet. No doubt we all want to see young blood brought on, although preferably not at the expense of our own seats in Cabinet. But, as I understand the clause, first-time appointees to the Cabinet would have to give up their seats in the other place to fight a by-election. Is it to allow their constituency to judge their suitability for Cabinet rank? I don't know. Or is it to allow the electors to express interim assessments of government performance every time someone enters the Cabinet for the first time? I rather think that it might lead to some Cabinet Ministers remaining in office perhaps for a little longer than might be in the public interest.
Then, in this Bill's breathless canter across our constitutional affairs, we come to the crescendo: Clause 20, the West Lothian question. Now that we have devolution up and running, I think the best thing to do about the West Lothian question is to stop asking it. More or less the same question was addressed in the two failed home rule Bills for Ireland of 1886 and 1893. In the first, Irish Members were excluded from the Westminster Parliament. After many months of argument they were brought back in, hut for imperial purposes only. That also became part of the 1893 Bill. But the distinction between what was, and was not, an imperial question proved so impossible to define that, at Committee stage, the Government changed their mind yet again and left it that the Irish Members could vote on anything.
So that is the historic precedent for my proposition that the best thing to do about the West Lothian question is to stop asking it. But the West Lothian question never really was a question any way. It was a challenge: "You can't answer this one; and therefore you can't have devolution." For myself, I regard the so-called West Lothian question as addressing what is a consequence of devolution. We do not want two classes of MPs. A modest price to pay for the maintenance of the Union is to have the wit and wisdom of the Scots inform the legislative counsels of the English nation. On careful reflection, I am sure that the noble Lord, Lord Strathclyde, will agree.
So I fear that we cannot support the Bill. However, the thanks of your Lordships' House are due to the noble
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Viscount for enlivening this already sunny Friday morning, although he cast a cloud over my Thursday evening when my noble friend Lord Carter made a late request to me to stand in for him—but, of course, it has all been worth it in the end. I fear that this Bill will not reach the statute book, but it will certainly add to the gaiety of the nation.
12.51 p.m.
Viscount Cranborne: My Lords, I am enormously grateful to noble Lords who have taken part in what, rather to my surprise, I found to be an extraordinarily enjoyable morning. In particular, I am delighted that I contributed to lightening the noble and learned Lord's day. However, I must say that I cannot help feeling that this entire debate has been justified for one reason only in that it has provided us with a revelation about the true nature of the noble and learned Lord, which was not only "laid" before your Lordships' House yesterday but also today. In his closing remarks, when discussing Clause 21 of the Bill, the noble and learned Lord revealed himself to be one of what we had always suspected the Caledonian members of this Government to be: Scottish supremacists. I think that the English section of the country has been warned that the reverse takeover by the Scots of the United Kingdom is not only in full flow but is now irreversible.
I enjoyed the contribution of the noble and learned Lord and I take a little comfort at least from the modest amount of support that he gave to the spirit behind some parts of my Bill. However—dare I say it?—he did commit one error. As I listened to the noble and learned Lord, he seemed to imply that he thought we could trust the Government to carry out those parts of this legislation with which they agreed. I say this knowing that the noble and learned Lord is probably the most trustworthy member of this Government; and I speak from personal experience. But I do not feel that I would say to him that Parliament exists to trust the Government. That is why it seems to me that legislation might be required, even for those parts with which the Government agree.
I am delighted that the noble and learned Lord, Lord Simon of Glaisdale, and my noble friends Lord Renton and Lord Norton agree with substantial parts of the Bill. Indeed, rather more than I dared to hope, your Lordships have, in principle, supported large parts of what I propose. For the reasons given, I firmly support the idea that we should look at ways in which we could make secondary legislation amendable.
On the matter of appointments, I am all too aware of the horrors experienced by candidates for membership of the Supreme Court in the United States, and of the appalling inequity visited on one of them in particular. However, because of the incorporation of the ECHR, judges will now be increasingly called upon to make

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political judgments in a way that they have not been called upon to do hitherto. Those political judgments are bound to drag judges increasingly into the political forum. It was for that reason that I was highly sceptical as a non-lawyer about the good sense of incorporating the ECHR. If judges are to become political, I fear that, as a consequence, we shall need to know a little bit more about them before they are appointed. If we were to disincorporate, I should be the first to advocate that judges should certainly not be examined in that way.
I should tell my noble friend Lord Renton that I drafted Clause 5 as a tribute to him. His contribution in this area over many decades is, I am glad to say, very much recognised by the House. In so far as progress has been made, it is to him and to the late Lord Rippon that we ought to pay most generous tribute.
I should like briefly to mention part of the contribution of my noble friend Lord Norton. As he is such a great constitutional expert, I was pleased that he agreed with parts of my Bill. I was also very touched that my noble friend Lord Jopling does not resent too much the often absurd way I behaved to him when I was one of his very junior Back-Benchers and he was the great and august Chief Whip. I am grateful to him for that. However, I should like to say to both my noble friends that I should very much prefer to take these reforms together. The reason that I propose we should stagger them is that, unless we do so, it seems to me that it will be very difficult to persuade Members of another place to vote in large numbers for their own demise. Nevertheless, if my noble friends can find a better way of doing this, I shall be only to delighted to listen to them in Committee.
As far as concerns referendums, I instinctively agree with my noble friend Lord Norton. But, as long as we do not indulge as the Government do—this is where I disagree with the noble and learned Lord the Lord Chancellor—in pre-legislative referendums, which seem to me to be a constitutional outrage, as pointed out by my noble friend Lord Strathclyde, we shall be faced with a number of very great, fundamental changes which are inevitably irreversible. It seems at least right that such matters as EMU and devolution should be submitted to the judgment of the electorate, but only when it has had the opportunity to see what Parliament has decided and Parliament's own discussion of such matters has not been emasculated by pre-legislative referendums, in the way that the Government did in the first Session of this Parliament.
I should also like to say how much I agreed with the noble Lord, Lord Hankey, about the importance of visibility. I hope that we may return to the matter of the numbers in another place. If we are lucky enough to have a Committee stage for this Bill, perhaps I shall be able to cross respectful swords with the noble Lord, Lord Monson. As I said, I am most grateful for the contribution of all speakers on a warm Friday morning. I reiterate my thanks to all noble Lords who have taken part. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Breeding and Sale of Dogs (Welfare) Bill
12.59 p.m.
Lord Soulsby of Swaffham Prior: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Soulsby of Swaffham Prior.)
On Question, Motion agreed to.

Road Traffic (Enforcement Powers) Bill [H.L.]
1 p.m.
Earl Attlee: My Lords, I beg to move that this Bill be now read a second time. In doing so I should declare an interest as I am president of the Heavy Transport Association, whose members will directly benefit from this Bill if it is passed. In addition, I have friends in the road haulage industry, and next year I may have to join them!
I believe in social mobility and free enterprise within a competitive market. The road haulage industry is relatively easy to enter but it is highly competitive. In order to enter the industry an operator needs to have a suitable operating centre, suitable maintenance arrangements, reasonable financial resources, sufficient knowledge of the industry and the relevant law: evidenced by a certificate of professional competence. Finally, he must be of good repute. What is not necessarily required is a high level of education or qualifications that are difficult to acquire. In other words, it is not a closed shop as are many "professions".
For this reason, people of relatively modest circumstances can and do succeed in the industry. However, an operator must have an operator's licence (an "O" licence) issued by the Licensing Authority (LA). The licence is granted to those who meet the standards that I have already mentioned. If an operator fails to meet the standards, the LA can revoke the licence, reduce the number of vehicles authorised, or impose special conditions on the licence.
The very aspects of the industry that make it so conducive to free enterprise and social mobility also make it highly competitive and, unfortunately, attractive to undesirables. In fact a new operator will often have to, at the least, sail close to the wind. If his business plan is not robust and he has underestimated his operating costs, he will almost inevitably end up operating illegally and eventually he will become bankrupt. During one of my previous speeches in your Lordships' House, I referred to new operators looking through rose-tinted spectacles.
Many advocate raising the entry levels for the industry; in other words, putting greater hurdles for the aspiring operator to jump through. I do not subscribe

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to that view. The problems in the industry can best be overcome by making it impractical to operate illegally. Illegal operation of goods vehicles depresses the market rate for road haulage. Commercial Motor magazine's table of operating costs indicates that the lowest possible charge-out rate for a 38 tonne artic is 110p per mile and it is thought that any rate less than about 100p per mile probably indicates sailing close to the wind. Some operators are charging out at 65p per mile. Your Lordships will recall that we enjoy a rate of about 50p per mile for our motorcar travelling expenses.
It may be helpful if I give some indication of the modes of illegal operation that come to the attention of the Licensing Authority and the Vehicle Inspectorate. It is a pretty depressing story. It includes overloading offences; vehicle excise duty offences; driving excessive hours; interfering with the operation of the tachograph—the device that automatically records vehicle activity; failing to maintain a vehicle so that it cannot be operated safely; employing drivers who are claiming social security benefits; using red—that is, agricultural—diesel; or using an unauthorised operating centre and thus tormenting residents.
I should like to give your Lordships some idea of the deviousness that exists. Many tachographs, the driver's hours recording device, are driven electrically. It is not technically difficult to insert a switch to stop recording vehicle activity. This enables the driver to drive excessive hours without being detected by examination of the tachograph records. For instance, if on coming out of the Channel Tunnel one evening the driver switches the tachograph off, he can then drive to Felixstowe, pick up a load and take it back to Dover. In the morning, he can then carry on driving having done an extra six hours' work for what he thinks is "free". But it is not. For example, in April this year an unlicensed vehicle went off the M.4 motorway. There was no paper recording disc in the tachograph and there were strong indications to the police that the driver was engaged in illegal trading with the Continent. The police were unable to interview the driver as he was dead. He was killed as a result of illegal operation.
Tipper operators are particularly prone to unlicensed operation. In North London, a tipper truck loaded with 20 tonnes of gravel ran over and killed a dispatch-rider who had fallen off his motor bike. The driver of the tipper truck had allowed enough stopping distance but, unfortunately, his brakes were seriously defective. Of course, the vehicle was unlicensed.
The problem is not confined to old vehicles. Fleets of new vehicles are also involved. This class of unlicensed operator would specialise in running overloaded or, more usually, flouting drivers' hours by means of the tachograph interrupter switch that I have already described. When an operator flouts the law, the LA can revoke or refuse a licence. Unfortunately, it is quite practical to operate without a licence at all! Typical fines are only £300 and the culprit can carry on until he is caught again. This is most depressing for the authorities. The authorities know who the illegal operators are, but they are virtually powerless to stop them.
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This Bill will provide for the impounding of goods vehicles found being used on the highway without an "O" licence. It should be noted that vehicles which are in a dangerous condition would not be impoundable, although they can be prohibited from being moved under existing legislation. It is not a wholly new power; indeed, I was tempted to lift the relevant clauses from the Excise Acts as they relate to using illegal fuels. However, I am extremely grateful to the Minister for his advice regarding the better drafting of the Bill. Without his advice, it is doubtful that the Bill would be workable. It is not expected that many vehicles would have to be impounded. The fact that the power exists would be enough to deter unlicensed operators.
Noble Lords may be concerned about the load which may well be the property of an innocent party. There are provisions in the legislation for the consignor to be able to reclaim his load unless it is impractical. I accept that impounding could be extremely inconvenient to the consignor. On the other hand, the traffic clerk who contrives to have a load moved by an unlicensed operator at an uneconomic rate—the 65p a mile rate—will not look so smart if the load is delayed under the provisions of the Bill. If consignors use only reputable operators, they will be unaffected by the legislation. On that point, can the Minister assure me that he would not expect a reputable operator to have his vehicle impounded on a technicality?
A further matter addressed by the Bill concerns drivers' hours. Currently, the authorities can insist that the driver of a foreign-registered vehicle immediately takes a rest period if he is found to have driven for excessive hours. At present, this does not apply to UK-registered vehicles, but the Bill corrects that anomaly. This need not create much excitement as there are already similar provisions in place should the authorities detect a vehicle that is overloaded or in a dangerous state. They can impose an immediate or a delayed prohibition and stop the driver endangering himself or other road users.
On these occasions, it is usual to give a detailed explanation of the operation of the Bill, but I have taken much of your Lordships' time explaining the need for the Bill. I am grateful to the Minister for producing the explanatory notes that are available from the Printed Paper Office, which no doubt are also available on the Internet. I do not want to weary your Lordships, so I shall be brief. Clauses 1 to 3 remove the anomaly regarding prohibition of drivers who are out of hours. Clause 4 increases the fines for operating without a licence from level four to level five in order to reflect the seriousness of the offences and the danger to the public.
Clause 5 and the schedule provide for the actual power to impound. There will also need to be detailed regulations made by the Minister under the negative procedure. Very briefly, after the necessary double checks, the vehicle will be impounded. This will require improvements to the IT systems and the Minister might have something to say about that. It may be that the operator can clear up the problem, possibly by proving that the vehicle does not require an "O" licence. There is an appeal procedure, but in the absence of a

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successful appeal, the vehicle would be sold after a period of 28 days. The proceeds would return to the operator, less costs.
Clause 6 removes what is known as the "margin concession". The operator will still be able to be authorised on his licence for more vehicles than he has specified. However, he will not be able to use the vehicle until he has notified the LA. This will require some improvements to the authority's IT systems before it will work. I hope that it will not be too long before notifications can be made by Internet, and I shall be pushing for that in my Front Bench role.
Clause 7 covers the short title and commencement provision. I hope the Minister can assure the House that he will not take advantage of the legislation until the necessary new IT systems are up and running.
I understand that there are some residual concerns within the vehicle leasing industry and that amendments may be tabled in Committee in order to obtain reassurances from the Minister. I am sure that proper debate would be helpful, but I should not like to see any noble Lord attempt to wreck the Bill or insert an amendment, as it is very vulnerable to the parliamentary timetable.
I apologise for speaking at length, but this is an important Bill which the road haulage industry would dearly like to see on the statute book. If the Bill is passed, it will provide greatly increased safety for the public and at the same time make it possible to enter the industry without having to break or bend the law in order to be competitive. That would no longer be an option. I beg to move.
Moved, That the Bill be now read a second time.—(Earl Attlee.)
1.12 p.m.
Viscount Simon: My Lords, this Bill, introduced so fully by the noble Earl, Lord Attlee, would fill a gap in our legislation. I make no apology for slightly overlapping the areas which the noble Earl has already covered, but I think it might be worthwhile doing so.
Drivers from other countries will not be able to complain that our HGV, PSV and LGV drivers have an unfair advantage in respect of enforcement. I am at a loss to understand why one section of the road haulage industry is said to be against it. After all, if this Bill improves the enforcement of drivers' hours and operators' habits, that should be applauded, and the removal from our roads of rogue operators should be encouraged. I have been with the police when they have stopped vehicles for the Vehicle Inspectorate where some trucks were found to be without operators' licences; others had exceeded their hours by a considerable amount, with many other offences being detected. It is a pity that there are not more sites available to the Vehicle Inspectorate, because they can do no more than scratch the surface at the moment.
So this Bill could be said potentially to improve safety on our roads. I have a couple of questions and one comment which concern goods carried on an impounded vehicle. Working on the assumption that the ownership
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of an impounded vehicle and the goods carried are not the same, as it is the vehicle that is impounded, how does the owner of the goods obtain delivery? Also, whose insurance covers any damage or spoiling of the goods? These might include frozen foods, and if the vehicle had not been impounded the damage or spoilage would not have occurred. I would not be surprised if the cargo owners' insurers, the police or the Vehicle Inspectorate deny any claim, due solely to the failure of a vehicle driver or owner to comply with the appropriate legislation.
A further concern that I have come across fairly recently is of drivers working for two companies, whereby they work their complete hours for one operator and then go to their second job and work their full hours for the second operator. That is completely abhorrent to me and, I am sure, to many operators. But because the tachographs will not show that the driver has been working for two operators each for full hours, it is very difficult to stop the practice. This is an issue that must be addressed at some stage in the future, and I hope that the Minister will be able to comment on it. I hope that this Bill will receive a free and rapid passage through your Lordships' House and the other place: it deserves to come into force as soon as possible.
1.15 p.m.
Baroness Thomas of Walliswood: My Lords, the noble Earl, Lord Attlee, has given a very comprehensive introduction to this Bill. I am not even going to attempt to repeat the detail of it. This is a very important industry: that is the first point to make. The vast majority of goods that we use in daily life arrive in our shops and offices by HGV or van.
As the noble Earl said, in a very sympathetic passage in his speech, I thought, the road haulage industry has a relatively low level of entry and as a result it is plagued by a "cowboy" element which, by not conforming to the regulations quite properly imposed on the industry, can undercut more law-abiding hauliers. So big business requires sensible and properly enforced regulation, which helps them as well as the community as a whole.
The two Acts which this Bill seeks to amend in detail cover two major aspects of the regulatory machinery of the industry and the Bill attempts to make them work better. Better enforcement of non-compliance by drivers in relation to the regulation of driving hours is most welcome, for all the reasons which the noble Earl has given us. The details of his Bill seem to be well worked out, as we would all expect from its author. The whole sequence envisaged by Clauses 1 and 2, the circumstances in which an authorised person can prohibit the driving of a vehicle on the road, the possibility of a process of what could be called "impounding" vehicles and the summary fines applicable to those who do not comply seem very easy to understand and are appropriate in the circumstances.
I now move to operators' licences in Clause 3 and the schedule. I am more familiar with this matter as a former member of a highways authority and I am well aware of the ability of HGVs to "torment" local residents. Again, I quote the noble Earl. I welcome the

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tightening of enforcement by an increase in the level of fines and the detention of vehicles. I also welcome the noble Earl's comments on the deterrent effect of the new penalties. I was interested to hear the noble Viscount, Lord Simon. make a most important point in relation to the attitude which the insurers of goods carried by road haulage may well take. I thought that was an interesting aspect. It too will add to the deterrent effect on hauliers.
In conclusion, this is a welcome Bill which makes a valuable contribution to the better regulation of this important industry. In fact, it is an excellent example of the proper use of a Private Member's Bill. It has the support of the department and of the haulage industry. The noble Earl has asked us not to attempt to amend the Bill. I was concerned on reading it to find that it did not mention out-of-date or fraudulent tax discs on goods vehicles. However, I shall consult with others and with the noble Earl before Committee stage. I welcome the Bill.
1.18 p.m.
Lord Brabazon of Tara: My Lords, I join with other noble Lords in congratulating my noble friend on the introduction of this very worthy Bill. As he has said, it will indeed have a direct impact on safety, which is very important, and it should lead to the further discouragement of the "cowboy" operator who to some extent plagues what is otherwise a most important industry in this country.
I also congratulate the Minister and the Government on the excellent Explanatory Notes that they have produced, which have done a great deal to clarify the position, certainly as far as I am concerned, and which in fact have enabled me to shorten my speech considerably. I would like to make just a couple of points. My noble friend commented in his speech on the part of the Bill that deals with illegal operations. That might include an operator using drivers who were claiming unemployment benefit or some other kind of social security benefit. I wonder whether that really is the case. If so, it is probably a very good idea, but it seems to be a little far away from other illegal operations in the road haulage industry. However, I shall be interested to know more about that.
It is also the case that the threat of impounding or prohibiting further movement of the vehicle is often very much more effective than a straightforward fine. It takes away the livelihood of the driver—particularly an owner driver—straightaway. In many cases that can be more effective than the threat of a fine, which may not occur for some time.
Generally speaking, I hope that the Bill succeeds. I am well aware, as my noble friend has said, of the perils that beset a Private Member's Bill, especially at this stage of the Session. I understand that there is only one more Private Member's Friday in the House of Commons. If this Bill is to become law, it will have to go through on the nod—and we all know how difficult that can be. I have personal experience of how difficult that can be because I steered a Bill through this House two or three years ago.
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I ask the Government, first, whether they intend to give this Bill as fair a wind as possible in the House of Commons; and, secondly, if it does not succeed, whether they will themselves take the earliest possible opportunity to introduce it as a government Bill in the next Session. Finally, if the Bill succeeds—I hope it does—when do the Government intend to bring it into force?—otherwise, I very much welcome the Bill.
1.21 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I congratulate the noble Earl on introducing the Bill and on the concise and very effective way in which he introduced all its aspects; it is quite a technical matter. It is a very important Bill in relation to illegally operated heavy goods vehicles, which are a problem for both safety and environmental reasons, and for the well-being of the road haulage industry as a whole. It is very important that the powers to allow goods vehicles to be impounded and to tighten up the enforcement of rules on drivels' hours are pursued. It is clear from the contributions that have been made that there is considerable support for the Bill. I certainly echo the view of the noble Lord, Lord Brabazon, that we should give it a good wind in this House and in another place.
The public consultation exercise carried out by my department on these issues last year shows that there is overwhelming support for an impounding scheme. Road haulage bodies such as the Freight Transport Association and the Road Haulage Association, as well as road safety groups, the police and the traffic commissioners strongly favour these measures.
The licensing by the traffic commissioners of operators of goods vehicles over 3.5 tonnes gross-plated weight is intended to ensure safe and responsible use of such vehicles and fair competition between operators. As the noble Earl said, in deciding whether to issue an operator's licence, the traffic commissioner will need to consider whether the applicant is fit to hold a licence—that includes maintenance facilities and sufficient finance to keep the vehicles roadworthy; a proper operating centre, suitably equipped and physically and environmentally appropriate for his vehicles; and that proper arrangements exist to ensure that the rules on drivers' hours are followed and that the vehicles are not overloaded.
Those who operate heavy goods vehicles without an operator's licence put themselves outside these vital checks and cannot therefore easily be inspected for professionalism, safety or their environmental effect. To carry goods on the road in a heavy goods vehicle without an operator's licence is an offence under the Goods Vehicles (Licensing of Operators) Act 1995. As the noble Earl said, conviction currently carries a liability to a level four fine of £2,500; the Bill would increase that to £5,000. It is also true that the average level of fines is around £289. If an illegal operator has also committed other offences, such as running an unsafe vehicle or breaching drivers' hours, he will be liable to penalties for those offences as well. Nevertheless, an average fine of that level—or even

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approaching the maximum level—may tempt many unscrupulous, undesirable operators to be prepared to risk these fines.
As long as he remains unlicensed as an operator, the traffic commissioners are powerless to use against him the kind of sanctions they can use against a reputable licensed operator who commits some offences, serious and persistent offences in particular. Clearly, by definition the revocation, suspension or curtailment of the operator's licence and the disqualification of a person from holding such a licence is not available. In addition, illegal operators do not pay the fees for the operator licences which fund the whole licensing and enforcement system. They fall completely outside it, if they get away with it.
Moreover, to obtain an operator's licence, an operator has to show that he has a suitable operating system. That takes into account factors such as the effect on the local environment, the safety of access roads and the use of the operating centre, which can then be reviewed by the traffic commissioner every five years. Local authorities, local residents and others can object or make representations on grounds of road safety, suitability and the environment.
None of this applies to illegal operators, who do not have their operating centres vetted. This not only presents a danger to persons, vehicles and the environment but gives the illegal operators a serious financial advantage over legal operators and removes the statutory rights of local authorities and local residents. As the noble Earl said, this seriously undermines the position of law-abiding operators—small operators particularly—in the industry and tempts others into illegality.
That is why the power of impounding is so important. We must be concerned that any group in society which so openly flouts the rules is subject to sanctions. Illegal operators pose the most blatant threat to safety and environmental standards within the road haulage industry. At present, if caught and prosecuted they usually escape with relatively modest fines. Impounding or detaining illegally operated HGVs at roadside checks would provide the first truly effective sanction against these illegal operators by straightforwardly preventing them from continuing to operate.
I hope and believe—as does the noble Earl—that it will not be necessary to impound a large number of lorries to make an impact. We would have a high-profile launch followed by the first detentions. I believe that that would have a significant deterrent effect throughout the illegal fringe of the industry and bring about a substantial improvement in compliance.
Before introducing an impounding scheme we need to be sure that it would work in practice and that it would affect only the illegal operators; that is, those who operate without an operator's licence and thus outside the control of the traffic commissioners. To reassure the noble Earl, we interpret the Bill to mean that legal
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operators, operating under a licensing system, would not have their vehicles impounded for a technicality or other such offence.
Following our consultation exercise last year, we have devised a practical system for impounding illegally operated HGVs and we have discussed this with the industry. The schedule to the Bill sets out a framework for the practical scheme and provides for my right honourable friend the Secretary of State for the Environment, Transport and the Regions to make regulations based on this framework for the detailed operation of the scheme. Before these regulations were laid before Parliament, we would need to engage in further consultations with all interested parties in order to refine them.
As to the point made by the noble Lord, Lord Brabazon, about when we will bring this into effect, the regulations would have to be subject to this consultation and the measures would not be introduced until the necessary systems were in place. I fear, therefore, that I cannot give a precise date at this time; we will need to go through these processes first.
My noble friend Lord Simon raised the question about the impounding of loads. Loads will not be impounded in the legal sense; every effort will be made to return them to the owner. The exact arrangements will be covered by the regulations and will probably involve issuing a form to the driver and notices in the trade press. However, the load would be sold or disposed of if not reclaimed after a specified period. Decaying or dangerous loads would need to be disposed of immediately if the owner could not be located. That of course would give pause for thought to the consignors and to the insurance industry. I can assure my noble friend that we would not bring the scheme into effect until adequate systems were in place to ensure it would work effectively in terms of impounding.
The question of insurance is one which would need to be addressed in the regulations. Those regulations would be subject to consultation which will no doubt involve the insurance companies in that respect.
The noble Earl raised the question of modernising the system. He will know that the traffic area network, which presently operates a not entirely up-to-date system, is about to embark on substantial and comprehensive modernisation of its business processes and computer system. That programme of work will include direct links with the Vehicle Inspectorate IT system and will provide facilities for the electronic delivery of services to operators. If we follow that route, we could bring the scheme into full effect.
I now turn to the part of the Bill dealing with drivers' hours. Existing EU regulations, Regulations 3820 and 3821/85, set out maximum limits on driving time and minimum limits for breaks and rest periods. They apply to drivers of most heavy goods vehicles and around half of all buses and coaches. Domestic driving hours regulations govern the drivers of certain

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categories of vehicle which are exempt from the EU regulations. These rules are intended to harmonise conditions of competition. Therefore, from the enforcement point of view, it is essential that drivers of U K and foreign-registered vehicles are dealt with on an equal footing.
At present the Vehicle Inspectorate and the police have no formal power to prohibit drivers of vehicles registered in the UK who have exceeded their permitted driving time from continuing their journey. They do, however, have powers, under the Road Traffic (Foreign Vehicles) Act 1972, to prohibit the drivers of foreign-registered vehicles. For vehicles registered in the UK, the remedy is prosecution, which does not necessarily prevent the driver from continuing the journey. For reasons of road safety, it is important that enforcement officers are able to prohibit a driver who is found to have reached or exceeded the daily driving time limit and has taken inadequate rest.
For other infringements—for example, the tachograph infringement referred to by the noble Earl, where the driver fails to produce or falsifies record sheets and so forth—we need to be able to use prohibition. Our intention is to issue guidance so that enforcement officers use this power with discretion, consistency and in proportion. In many cases proportionality will be direct. For example, if a driver should have taken a minimum 45-minute break, the prohibition will last for 45 minutes. If he fails to take a day's break, the prohibition will last for 24 hours. Other examples may be more complicated; nevertheless the power should be operated flexibly and with discretion.
In some cases prohibition will be a more effective action than prosecution. Such a power should therefore act as a significant deterrent and remove any grounds for complaint of discriminatory treatment of British-registered vehicles as against foreign-registered vehicles. That should be of assurance to the road haulage industry. Above all, the aim of the provisions is to ensure that exhausted drivers do not continue to drive when they are a menace both to themselves and to others.
My noble friend Lord Simon raised the question of moonlighting. I recognise that this can be a difficulty. The Vehicle Inspectorate has powers not only to carry out tachograph checks, but also to obtain company records in order to ensure that drivers' hours are complied with. Nevertheless, this is a difficult area of enforcement and there are concerns which I am prepared to raise with the Vehicle Inspectorate as to how we can deal with the problem.
Both on the impounding of vehicles and on the question of drivers' hours, the Bill provides additional powers of enforcement which are intended as deterrents. There are of course other problems in this area. The noble Baroness, Lady Thomas of Walliswood, raised the issue of fraudulent tax discs. The Bill is designed to deal with those who operate outside the operating licence system. Once operators are within the system they will
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also come within the scope of the full range of powers of the traffic commissioners and the police. However, there are wider problems in relation to the enforcement of tax discs which are beyond the scope of even this Bill.
The Bill provides additional powers whose prime effect will be felt through deterrence. It will be a form of deterrence which will not only improve road safety and our environment but will also protect the interests of reputable operators within the industry who often have to operate at the margin in highly competitive markets, and in some cases against foreign competition. That is why it has been welcomed by all the reputable elements of the road haulage industry.
This is a good Bill. I hope all concerned will give it a positive wind. Once again I congratulate the noble Earl on introducing it.
1.35 p.m.
Earl Attlee: My Lords, I am extremely grateful to all noble Lords who have contributed to the debate. The noble Viscount, Lord Simon, asked about the load on the vehicle when the vehicle is impounded. The Minister also touched on that point. It is inconceivable that the authorities would not take all possible steps to locate the owner or consignor of the load, especially if it was a perishable load. I do not believe that the authorities would deliberately allow a load of ice-cream to melt.
The noble Viscount also raised the issue of drivers moonlighting and touched on what could be a little difficulty. The person who needs to have the operator's licence is the person who pays the driver. If one vehicle is shared between two operators, each operator needs to have the vehicle specified on his licence. Unfortunately, a vehicle cannot be specified on two different operators' licences. That is why there is a need for a certain amount of flexibility. I understand that when the licensing authority is aware of this arrangement, it is flexible.
The noble Baroness, Lady Thomas, raised the question of amendments. I shall be pleased to have the opportunity to debate amendments, particularly the amendment to which she referred. She also referred to tax discs. One scam is to register a vehicle that should have a tax disc for £5,000 as a private light goods vehicle, which can be taxed for £150. Another difficulty involves concessionary rates of tax. A three-axle tractor towing a three-axle trailer has a very low concessionary rate of tax. However, for a five-axle 38-tonne vehicle, the rates of tax can best be described as "punitive". If an operator deliberately and fraudulently taxes the vehicle at the wrong rate, he should lose his good repute. The problem is that the licensing authority has been reluctant to take away people's good repute and therefore their operator's licences because then the operator will leave the licensing system altogether. If the Bill becomes law, the licensing authority will have teeth and will be able to pay much closer attention to someone who fraudulently taxes his vehicle. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Adoption (Intercountry Aspect) Bill
1.38 p.m.
Lord Meston: My Lords, I beg to move that this Bill be now read a second time.
The Bill comes to this House from another place where it was introduced by my honourable friend the Member for Winchester. It passed through that House with general approval on all sides and with only minor amendments.
The main aim of the Bill is to enable the United Kingdom to ratify the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. Twenty-six other countries have already ratified the convention, a further eight have acceded to it, and 11, including the United Kingdom, have signed it without yet ratifying.
The Bill introduces specific provisions to regulate intercountry adoption and to make it clear to local authorities that they have a responsibility to provide an adoption service which extends to intercountry adoption.
The Bill regulates adoption to prevent and deter trafficking in children and to enable a child lawfully adopted from overseas to enjoy the same legal status as a child adopted in the United Kingdom.
The Bill, in other respects, seeks to improve the adoption process and its efficiency. It provisions can be measured against the requirements in Article 21 of the United Nations Convention on the Rights of the Child to ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption.
The Bill emerges from a long review process on substantive adoption law culminating in the more wide-ranging draft Adoption Bill attached to the consultative document that was published in March 1996. It is timely, in that there is a more general awareness of the problems of the cross-border movement of children. Indeed, the Official Solicitor has set up a working group to deal with that whole area, of which adoption is just one aspect.
Clause 1 provides for implementation of the 1993 convention, the text of which is set out in the schedule. Only the last six articles of the convention, which are essentially administrative, do not appear in the schedule. Indeed, it is a useful and refreshing feature of the schedule that it includes the preamble to the convention. The recitals in that preamble emphasise that the focus of the convention is on the welfare of the child and include the following expressions, to be found on page 10 of the Bill:
"Recognizing that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin.
"Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children".
Sometimes concern is expressed about delay in the adoption process. That matter is addressed by the
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convention. Article 9 imposes a duty on central authorities, among other duties, to,
"facilitate, follow and expedite proceedings with a view to obtaining the adoption".
Article 35 also specifically provides that,
"The competent authorities of the contracting States shall act expeditiously in the process of adoption".
At the same time, the convention provides machinery for efficient communication between the child's state of origin and the state which will receive the child.
Returning to Clause 1, the substantial regulations to follow enactment of the Bill will implement the convention in a way that is consistent with our domestic procedures and will cover all intercountry adoption.
Clause 2 provides that the functions of the central authority will be exercised by the Secretaries of State in England and in Scotland, and in Wales by the National Assembly. Certain responsibilities will be delegated to local authorities and accredited bodies. In practice, agencies will have responsibilities equivalent to those that they now discharge.
Clauses 4 and 5 provide for the recognition of convention adoptions and convey to such adoptions the status of domestic adoption. These clauses also provide mechanisms for recognising simple adoptions. That is a difficult topic. I shall not take time to explain it in detail, but refer noble Lords to the very helpful Explanatory Notes that have been produced with the Bill.
Clause 6 provides for annulment. In effect, it implements Article 24 of the convention, which gives a discretion to refuse recognition of adoption which is manifestly contrary to public policy. Typically, those might be cases where there has been fraud or duress, or some other improper inducement. Article 24 expressly takes into consideration the best interests of the individual child.
Clause 7 provides for the acquisition of British citizenship by the adopted child.
I should like to draw attention to only three more clauses. Clause 13 makes clear that references in the existing legislation to arrangements for adoption include assessments for the purpose of indicating whether a person is suitable to adopt a child.
Clause 14 meets our obligation under Article 8 of the convention to take all appropriate measures to prevent improper financial or other gain in connection with adoption, and to deter all practices contrary to the objects of the convention. Clause 14 provides for a criminal offence for people habitually resident here to bring into the United Kingdom a child who is habitually resident elsewhere unless they comply with the requirements of the regulations. The purpose is to deter trafficking in children and the short-circuiting or circumventing of procedural and other safeguards for the benefit of the child. There will, of course, be consultation on all the regulations. Clause 16 specifically provides for the National Assembly of Wales to be consulted.
The need for the Bill arises from the fact that our existing legislation comes from a time when intercountry adoption was rare, and from the fairly poor

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regulation presently in place. I suggest that the Bill provides a valuable framework for the future for all varieties of intercountry adoption. Above all, it will protect children in all forms of adoption with a foreign element. On that basis, I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Meston.)
1.46 p.m.
Lord Laming: My Lords, perhaps I may begin by thanking the noble Lord, Lord Meston, for his clear and helpful introduction to this important Bill. Only two weeks ago the noble Lord initiated a debate in this House on adoption and fostering. We were all assisted then by his understanding on this topic. I also congratulate Mark Oaten for securing a good place in the ballot for Private Members' Bills in the other place, and more particularly for choosing this subject.
I greatly welcome the opportunity that the Bill affords to the United Kingdom to ratify the 1993 Hague Convention on the protection of children involved in intercountry adoptions. That is long overdue. I wish to impress on the Minister that there should be continued pressure on Northern Ireland to legislate accordingly.
We must constantly have in the forefront of our minds that adoption is a service to children. I emphasise that because, sometimes, the focus seems to shift to the needs of the adults, and particularly so in the case of intercountry adoption. Of course, successful adoptions meet the needs and hopes of both the children and the adults. But the primary focus should be on the long-term welfare of the child.
I stress that point only to emphasise how important it is to get right both the legislation and the procedures. Happily, the Bill addresses both. Although the number of intercountry adoptions in the United Kingdom remains fairly small, nevertheless, the state in each case is charged with doing everything possible to secure the long-term well-being of each of these children and, at the very least, protecting them from harm.
In an ideal world it would be possible to achieve those objectives in the child's own country and culture. Alas, the reality of life for many children is awful. We have seen the horrific pictures on our television screens of children caught up in wars or abandoned in vast orphanages, with little or no prospect of experiencing family life or achieving anything of their potential. Working for change in these countries is good, but we should not in the meantime rob the children of today of new opportunities for a more secure and fulfilling life. For that reason, I welcome the fact that the Bill clarifies that there will be a duty on local authorities to include intercountry adoption in their adoption services. I hope that this will remove the allegations that some local authorities have an ideological objection to intercountry adoption.
Of course, the rights of birth parents need to be respected and the procedures need to be followed with care. But the years of childhood pass all too quickly and I cannot believe that the agencies involved in these processes should feel that they have either precisely to predict the future or to seek to eliminate all dangers of
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possible failure. None of those matters should he dealt with in a cavalier or casual way, but nor should caution and doubt rule out the hopes of many children for a secure life in a loving family. It is, of course, a question of balance. I believe that the Bill achieves that balance and I wish it well.
1.50 p.m.
Earl Howe: My Lords, this is one of those happy occasions when a Second Reading speech from these Benches can not only be brief but also entirely supportive. Like the noble Lord, Lord Laming, I congratulate the noble Lord, Lord Meston, on introducing this welcome measure which I am convinced will be of very significant benefit to children adopted from overseas, as much as to the parents in the UK who adopt them. I thank him for explaining the purport and content of the Bill with his usual exemplary clarity.
Ratification of the 1993 Hague Convention is overdue. The last government put in a great deal of effort to bring the convention into being in the first instance and followed that up with much detailed work, including a consultation document and a draft Bill in 1996. Sadly, that Bill was not presented to Parliament before the general election in 1997.
Both the draft Bill and the consultative document reflected widely held concerns on three fronts: a desire to reduce the delays and frustrations commonly experienced by couples wishing to adopt children from abroad—delays which do nothing but harm to the children involved; the need to equalise the legal protection afforded to overseas adoptees with that enjoyed by adopted children from the UK; and, as the noble Lord, Lord Laming, rightly emphasised, the need to establish a clear legal framework for the regulation of intercountry adoptions. Such a framework is absolutely vital, not only to achieve the practical benefits to which I referred, but also to minimise covert and unauthorised trafficking in children which bypasses all the safeguards we take for granted in the context of domestic adoptions. It is not acceptable to have two different sets of rules for adopted children, according to their country of origin. We owe it to those children, wherever they come from, to do our utmost to ensure their well-being. That means having a proper process of assessment and approval of prospective adopting parents as well as ensuring that in a child's country of origin all the right questions have been asked and answered on the appropriateness of adoption in each and every case.
I am happy to say that the noble Lord's Bill addresses all those concerns. As a result, the areas of it that cause me a measure of disquiet are, in the context of the whole, relatively minor. I hope he will allow me to run through some of those briefly. I question the desirability of allowing new criminal sanctions to be introduced by means of subordinate legislation. Statutory instruments cannot, by convention, be amended or voted down. At will be interesting to see what your Lordships' Delegated Powers and Deregulation Committee thinks of that. In the meantime, I should be grateful for the noble Lord's comments.

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Secondly, I have a question about the role of local authorities. I shall be interested to know whether the local authorities have been consulted over the responsibilities placed upon them in Clause 2(4). That is not an idle question. We all know that there are many local authorities—some estimate up to half the total in the UK—where an active policy exists to block trans-racial adoption. Almost by definition, that policy is at odds with intercountry adoption. It is hard to see how the noble Lord's worthy ambitions for the Bill will be realised if couples wishing to pursue the possibility of an intercountry adoption will be stopped at the first hurdle. It is not simply a lack of sympathy on the part of the local authority which might do that. There is also the question of resources. Many local authorities simply do not regard that type of service as a priority, even though they have the power to charge for home study assessments. They do not have the trained staff to deal with them. Under the draft proposals issued by the last government, it was intended that legislation should include a new duty on local authorities to provide or arrange for assessments of parents wishing to adopt from overseas. Can the noble Lord say in what way the Bill increases the onus on local authorities to respond positively and promptly to requests for assessment from prospective adopters?
One of the ways of facilitating the process effectively would be by giving an enhanced role to suitably registered voluntary agencies who would develop the necessary skills in this specialist field. Can the Minister say what plans the Government have to encourage local authorities to make use of such agencies?
I mentioned that many local authorities make a charge for home study reports where they relate to intercountry adoptions. Domestic home studies, by contrast, are free of charge. The surprise to me was not the charging itself but the wide disparity in the amounts being charged. The London Borough of Greenwich, for example, levies a fee of £1,000. In Hampshire, the fee is £3,600. Can the Minister say whether departmental guidance is likely to recommend a suitable and reasonable range of charges so as to try to iron out those very high figures? We should not forget that the total cost of adopting a child from overseas can be as much as £10,000, if one takes into account not only the home study fees but also travel expenses and legal costs.
I mentioned the need to ensure that social workers receive adequate training for adoption work. The decisions they take are of great significance and the public needs to have absolute confidence in what they are doing. Can the Minister say whether the Central Council for Education and Training in Social Work is seized of the need to focus attention on the special issues that arise in intercountry adoption? Can he also say whether the helpline set up by the last government for those interested in intercountry adoption is still in operation? If it is, who is funding it?
One point needs to be made about the Bill. It is not designed to encourage a mushrooming of intercountry adoptions. It is designed to ensure that when adoption takes place, it is properly regulated with effective safeguards and efficient administration. I echo the
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comment made by the noble Lord, Lord Laming, that we should always bear in mind that uprooting a child from his or her country of origin and culture to an environment of relative affluence abroad is not something to be undertaken lightly in any circumstances despite the material benefits that would appear to ensue and certainly not unless it is clearly in the long-term interests of the child.
Nevertheless, it is interesting to compare the number of intercountry adoptions taking place in other developed countries. In France, there were 3,666 in 1997, compared with a mere 258 applications made in the UK last year. I do not have the figure for completed adoptions in the UK, only the number of applications. In the US, a country with a population five times larger than our own, admittedly, there were 15,774 intercountry adoptions last year. One cannot help wondering whether all those were as rigorously vetted as they should have been. At the same time, the minuscule number of applications recorded here should cause us to question whether our systems are as efficient as they should be. It strongly suggests to me that the shortcomings in the system identified by noble Lords in our recent debate on domestic adoption and fostering have had a detrimental impact on intercountry adoptions also. I hope that this Bill will make a contribution towards remedying some of those shortcomings. I wish it well
1.59 p.m.
Lord Hunt of Kings Heath: My Lords, I too thank the noble Lord, Lord Meston, for bringing forward this important Bill; few, if any, Members of your Lordships' House are better qualified to do so. The Government recognise that there is a need for legislation to regulate intercountry adoptions. These have been growing steadily in recent years. They provide an option for people who cannot have children of their own or who wish to extend their existing families. It is the Government's view that the opportunity for families to adopt from overseas should continue to be facilitated, while at the same time placing the process on a firm legal footing. The Government believe that the Bill will achieve this.
Adoption offers a positive alternative for children who cannot live with their own families. This applies to all children, whether they live in the United Kingdom or overseas. For some children, adoption provides a fresh start and gives them perhaps their only opportunity to experience family life. Over 850,000 children in the United Kingdom have benefited from adoption since the first adoption legislation in 1926. Since 1993, almost 1,300 applications have been processed by the Department of Health to adopt children from 42 different countries.
The Bill provides two important measures to protect children who are available to be adopted by families in these islands. First, it enables the United Kingdom to give effect to the 1993 Hague Convention. Secondly, it provides sanctions against those who bring children, or arrange for them to be brought, to the United Kingdom without authority. Regrettably, as the noble Earl, Lord Howe, pointed out, experience in the United Kingdom

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in the past decade makes sanctions necessary to deal effectively with unacceptable practices in intercountry adoption. People who have not been approved as suitable to become adoptive parents bring children into the United Kingdom at regular intervals.
In addition, it is not unknown for fraudulent documents to be used to secure an adoption order in a child's country. There are often concerns about the validity of a mother's consent to the adoption of her child or whether the mother has received money, or has been enticed in some other way, to relinquish care of the child. The operation of the convention will eliminate such practices, as will the requirement that every person seeking to adopt a child from overseas must be assessed by an adoption agency.
On the positive side, this small but important Bill is essentially about children and measures to protect them. These children, however, do not live within the United Kingdom, but in countries that may be unable to provide adequately for their welfare. For many children abroad who need new families, there is no alternative to a childhood spent in some form of institutionalised care. Adoptive families are simply not available and only in a small percentage of cases are relatives able to care for them. But experience shows that institutions do not always make good parents. Some children run away from these institutions to live in public sewers or on the streets and survive by stealing, prostitution, drug trafficking and acting as pimps. The life expectancy of most of these children is estimated by UNICEF to be about six years. Death often comes to these children as a result of drug overdose, murder, hypothermia, AIDS and so on. The noble Lord, Lord Laming, correctly described the conditions in which some of those children live. Intercountry adoption offers some of these children an opportunity for a fresh start. But I emphasise the point made by the noble Earl, Lord Howe: this is not an action to be taken lightly.
For families adopting under the convention the Bill provides a mechanism to enable them to be satisfied that the child is in genuine need of a new home. The competent authorities in the child's country will be required to establish to the authority in the adopter's country that the child has no parent able to care for it, has no relative able or willing to do so and is unable to be placed with an adoptive family in that country. The Bill also provides for adoption orders to be recognised within England, Scotland and Wales automatically when adoptions take place under the convention. This means, therefore, that the adoptive parents will no longer be required to apply to a UK court for a second adoption order. Their adopted children will also enjoy the same legal status as children adopted in the UK. This will include having their adoption registered. Equally importantly, the Bill closes the door firmly on those who seek to adopt children without going through the proper process.
Because these children are to be adopted by people who live in different countries, two sets of laws and regulations must be met: those of the child's country of origin and those of the adopter's country of residence. It was with this in mind, together with the knowledge that intercountry adoption was frequently linked to
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abuses against children and their families, that the Hague Conference began its work on intercountry adoption in 1990. The convention is a framework that contains minimum standards to be applied by countries that seek to ratify it. It is not a comprehensive adoption manual, but a document upon which countries can build and improve their own legislative measures.
The United Kingdom is fortunate in that there already exists a comprehensive framework to operate the majority of the requirements set out in the convention articles. The Bill fills the remaining gaps and provides an opportunity for the UK to meet an important international obligation by giving effect to the convention's articles. In ratifying the convention the Government will provide a clear signal abroad that they take seriously the protection of children adopted from overseas.
In answer to a number of points made in the debate, I should like to take this opportunity to assure your Lordships' House that the Bill is not about frustrating the wishes of people who want to adopt children from overseas; it is about setting out clearly, and for the first time, the correct procedure to be followed. Continued co-operation between the relevant competent adoption authorities in both the adopter's country and that of the child will ensure that only those children who are in genuine need of a new family are placed for adoption.
I am aware that some prospective adopters are critical of the adoption process both within the United Kingdom and overseas. I should like to respond to the noble Earl's point about the attitude of local authorities and social workers to intercountry adoption. I believe that the attitude of the great majority of social workers who are engaged in intercountry adoption is highly professional. However, some social workers are thought to be opposed to intercountry adoption on a point of principle. Where such views cause difficulties for prospective adopters and are brought to the attention of the Department of Health, they are investigated.
Guidance issued by the department last August made it clear that it is not acceptable for applicants to be denied the opportunity to be assessed by an agency on the grounds that the agency does not agree with the practice of intercountry adoption, or that the applicants do not share the same ethnic or cultural background as children from their country of choice. This wording clearly places a responsibility on senior managers to be satisfied that assessment of the suitability of applicants to adopt children living abroad is carried out by qualified and experienced social workers in a professional manner and that personal views do not prejudice the eventual outcome of an assessment.
At the same time, I recognise that such a process has to be thorough to enable to the adoption agency to be able to state with some confidence that the applicant is suitable to become an adoptive parent. That applies even more when a person is applying to adopt from overseas and the child is unlikely to share the same race. culture, religion, language, traditions or even climate of the adopter. Other important issues must be explored: for example, diet, skin care and any special needs a child may have, particularly one who has been deprived of

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their family from an early age. Prospective adopters should be given plenty of time to consider carefully such issues and the implications that they will raise, both for themselves and their families.
What is unacceptable, however, is prospective adopters having to wait many months before an adoption agency begins work to assess their suitability to become adoptive parents. Perhaps I may say how much I share the views of the noble Earl, Lord Howe, and the noble Lord, Lord Meston, on the matter of delays. The Bill makes it a requirement for each local authority to provide an intercountry adoption service under Section 1 of the Adoption Act 1976. Proposals for the inspection of adoption services announced in another place earlier this month will be an effective means for ensuring that intercountry adoption is given the appropriate priority as well as meeting the equivalent standards which apply to domestic adoption. I hope that that meets the noble Earl's point.
As regards the timetable, once the Bill becomes law, officials will prepare consequent regulations and guidance to local authorities, adoption agencies and other interested groups. I should like to assure your Lordships' House that we shall be consulting widely on the contents of both. It is intended that this will take place before the end of the year 2000.
As well as guidance, the Department of Health will arrange a series of training seminars to inform adoption agency staff, lawyers, administrators and others about the new legislation and their part in making the new provisions work effectively. Such training will be in addition to programmers arranged by adoption agencies. Also, the department's Guide to Intercountry Adoption will be brought up-to-date at the same time. This publication will facilitate the work of social workers who will be able to use it as a point of reference in their intercountry work.
Perhaps I may take the opportunity to respond to a number of points raised during the debate. First, perhaps I may say to the noble Earl, Lord Howe, as regards the helpline, that my understanding is that it is no longer funded by the Department of Health; it is now an independent source of information, funded by the sale of its literature and run as a registered charity.
On the issue of consultation with local authorities, I made it clear that we shall consult in future about guidance and so on. Local authorities have not objected to any of the points in relation to their duties which have been widely canvassed over some years. I refer in particular to the work done in relation to the 1996 draft Bill which was mentioned.
On the issue of delegated powers, I understand that the Delegated Powers and Deregulation Committee has given the Bill a clean bill of health. I understand that it quite usual to create offences in secondary legislation.
The noble Earl, Lord Howe, asked whether we could encourage voluntary adoption agencies to come forward to work in this area and on the question of charges. Perhaps I may reassure him that we want to see more voluntary adoption agencies coming forward for approval to work in intercountry adoption, thereby
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providing prospective adopters with a genuine choice of whom they may approach to be assessed. However, when it comes to fees, unless the voluntary agency is able to charge a fee which covers its legitimate expenses, it is unlikely to want to take on such work.
The department will prepare guidance for local authorities, adoption agencies, and other interested groups to accompany the new Act and its consequent regulations. In relation to the point about the variation in charges throughout the country, this will include advice about charges, including the need to keep the level of charges within modest boundaries and for agencies to provide prospective adopters with a breakdown of any charges made.
The noble Lord, Lord Laming, asked about the position with regard to Northern Ireland. I understand that Northern Ireland intends to introduce the necessary legislation to ratify the Hague Convention and will be preparing separate legislation in due course.
The Bill is compatible with the European Convention on Human Rights; and similar legislation is being considered, if not already enacted, by many of our European partners.
The children whom we seek to protect by the Bill cannot plead for themselves. We must act on their behalf. I therefore recommend that your Lordships give the Bill a Second Reading.
2.14 p.m.
Lord Meston: My Lords, I am grateful for the support for the Bill from the speakers in the debate. I am beginning to recognise them as a small and select group of Friday speakers in the House.
I agree with the noble Earl, Lord Howe, that this Bill should neither encourage nor discourage those who seek to adopt children from abroad. However, it recognises that that is a growing phenomenon and by means of ratification of the convention will set internationally accepted standards. I question the noble Earl's comparison with the amount of intercountry adoption undertaken in countries such as France. The correct approach must be that we should be confident in our own standards of fairness and efficiency rather than worry too much about some kind of international league table.
As the noble Lord, Lord Laming, said, properly the convention and therefore this Bill focuses primarily on the child. I am grateful to the noble Lord for emphasising that the Bill will set out duties on local authorities.
I am grateful to the Minister for responding to some of the points raised by the noble Earl, in particular his point about the criminal sanctions to be imposed under Clause 14. I hope that I indicated in my opening remarks what I understand to be the mischiefs aimed at by Clause 14. The regulations which will come forward and underpin Clause 14 must be clear enough to justify the criminal sanction which will be imposed. I am also grateful to the Minister for confirming my belief that consultation and guidance will be given to local authorities.

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The noble Earl also raised the difficult issue of attitudes to trans-racial adoption. That is a serious point, but I have the impression that the attitudes to trans-racial adoption which have been reported publicly have largely been reconsidered by those who have held them. In that context, I emphasise the point that under Article 4 of the convention:
"An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin … have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child's best interests"
In other words, the child must have been considered for adoption within his or her own country before an intercountry adoption is taken up.
I am grateful to the Minister for dealing with the issue of charging and confirming my understanding that there will be guidance to bring some standardisation to the fee structure. But underpinning that are the words of the convention, to be found in Article 32, emphasising that there should be:
"No … improper financial or other gain from an activity relating to an intercountry adoption",
and that fees charged should be at a reasonable level.
I renew my thanks for the support the Bill has received and I renew my request that it be granted a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Protection of Children Bill
2.18 p.m.
Report received.
Clause 2 [Inclusion in list on reference to Secretary of State]:
Earl Howe Earl Howe moved Amendment No. 1:
Page 2, line 47, after ("applies") insert ('and shall use all reasonable endeavours to notify the individual accordingly")
The noble Earl said: My Lords, Amendment No. 1 is a redrafted version of an amendment I tabled in Committee. It arises out of my concern that under the procedures set out in the Bill there could easily be circumstances in which an individual might not discover that his name had been included on the Secretary of State's blacklist of people considered unsuitable to work with children. There is no requirement in the Bill for the Secretary of State to notify his decision to an individual. My concern was that without that we would be enshrining in law a provision which comes perilously close to breaching the spirit, if not the letter, of the European Convention on Human Rights.
The noble Lord in responding to me expressed his opinion that it was inconceivable that a person could not know from the outset that allegations were being investigated which could lead to his name being included on the list. Furthermore, he said that the Department of Health and the Department for Education and Employment, as a matter of normal procedure, go to considerable lengths to ensure that people
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are informed of the outcome of any decision made. I completely accept that what the noble Lord said is correct in the majority of cases. I entirely take on board the procedures that are followed by both government departments as a matter of routine. But that was not my point. The replies of both the noble Lord and the Minister failed to recognise that Clause 2(3), which was inserted as an afterthought in another place, introduces a new dimension, namely, the possibility of referring and listing someone many months or years after the alleged misdemeanour.
In those circumstances, the person might be long gone and his whereabouts unknown. In the nature of things, he would not have been involved in the investigations from the outset. It was, therefore, incorrect to describe such a scenario as inconceivable. The Bill explicitly allows for it. The question that I posed was, given that both the Department for Education and Employment and Department of Health consider it important to try to inform an individual of the Secretary of State's decision in all cases, is it sufficient for this to be dealt with in departmental guidance or should it be on the face of the Bill. The case for it being on the face of the Bill is that conformity with the European Convention on Human Rights and with the rules of natural justice—which may be the same thing—may be better met by an explicit provision.
When the Minister replied in Committee, he suggested that this approach would complicate matters by allowing a vexatious appellant to deploy a bogus line of defence with the tribunal to the effect that the Secretary of State's efforts to notify him had not been good enough. That is why I have now reworded my amendment so that it speaks of the Secretary of State using "all reasonable endeavours" to notify the individual, as opposed to his "best endeavours" which formed the previous wording. If the Minister's view is still that this is a matter that should not appear on the face of the Bill, I should be glad to hear his explanation as to why. It attempts to do no more than encapsulate what the two departments already do as a matter of course.
Lord Elton: My Lords, I apologise for being slightly taken by surprise by the Bill, although it is my own fault. I have risen, therefore, to raise a point that I would have been happier to raise in Committee.
It occurs to me that considerable injustice could be done to an individual if steps are not taken to inform him. Those steps may not always go well. I therefore wonder whether it is in the Minister's mind to impose in Clause 7 a duty on a childcare organisation that refuses employment to an applicant on the grounds set out in Clause 7(1)(a) and (b) to inform the individual of the reason for that refusal. That solution would come close to having the same effect as has been proposed but may have fewer holes in it.
Lord Stewartby: My Lords, I shall be interested to hear the Minister's response to this amendment. However, my reason for rising is to apologise for not having attended debates during the Bill's earlier stages. I compliment my noble friend Lord Laming on his

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efforts and thank him, in retrospect, for his contribution to social services and related issues in Hertfordshire, where I for many years represented a constituency in another place.
Although I am sure that I am out of order, I hope that I shall be allowed to pass on that compliment.
Lord Hunt of Kings Heath: My Lords, I thank the noble Earl, Lord Howe, for allowing us to debate this matter again. He is right; it is important. The amendment is similar to that tabled by the noble Earl in Committee and would require the Secretary of State to use "all reasonable endeavours" to try to inform an individual when confirming his inclusion on the Department of Health list.
I understand that the concern behind the amendment flows particularly from the provisions of Clause 2(3) which deal with referrals relating to past events only recently discovered. Someone could be included in the Department of Health list without his knowledge because his current whereabouts were unknown. Although such an eventuality is not likely to occur with any frequency, it is certainly possible, and might conceivably occur, in cases arising under Clause 2(2), where contact had been, perhaps deliberately, broken between the employer and the individual. Accordingly, I hope that it will help the House if I explain how notification is conducted and how the Bill's provisions will operate where individuals do not immediately, or possibly for some time, learn that they have been included in the list.
In the normal way, notifying letters will be sent by recorded delivery to last-known addresses. If those do not reach their target, inquiry will be made through the last employer and matters pursued as far as is practicable. I am sure that it will be understood that there can be no guarantee that individuals may be contacted in every case. It is also necessary to face the fact that there are limits to what may be done in Clause 2(3) or any other cases where, for whatever reason, there is broken contact. In such situations there seems no good reason why protective listing should not occur, provided that the Clause 2 criteria are met. The interests of the children must be overriding, but at the same time there is no question of the rights of individuals being taken away. Individuals may resurface at any time, and if they are not included in the list, an employer could be misled and children needlessly exposed to avoidable risk.
I know that in previous debates concern was expressed that current notification practice may come to be regarded as dispensable, especially in awkward cases. That is not the current intention. Nor, as I shall explain, is it at all likely in future. Not only would that involve a serious and unacceptable deviation from good administrative practice of a kind the parliamentary commissioner would certainly not approve, but the courts in any judicial proceedings would clearly be hostile to any such failure on the part of the Secretary of State. That would particularly be the case since failure to take reasonable steps to attempt to notify the outcome
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of deliberations may enable an individual to mount a claim for infringement of his rights under Article 6 of the European Convention of Human Rights.
However, where notification for whatever reason has not taken place, the cardinal point I should register with the House is that no one in that position will have their appeal rights curtailed. That is because it is intended to use the regulation-making power under Clause 9 to provide that an individual's ability to appeal to the tribunal from a decision by the Secretary of State will run from the time when he may reasonably be deemed to have learned of the decision.
Moreover, without having to appeal, the individual will also have recourse under Clause 1(3) to invite the Secretary of State to remove his name from the list on the grounds that he should not have been included in it. For example, the individual may be able to bring fresh relevant material before the Secretary of State to consider of which the department had not previously been aware because the individual had not been aware of the proceedings. Following such representations, the Secretary of State could, if he considered it appropriate, remove the name from the list without any necessity for an appeal.
The noble Lord, Lord Elton, raised the point relating to Clause 7(1) about the potential duty to inform an applicant why employment is refused. I am advised that no specific duty is necessary. There is certainly no ECHR requirement. An individual will be informed that the positive check has been made, but that will also occur when the criminal record bureau one-stop shop is running.
The noble Earl, Lord Howe, raised—
Lord Elton: My Lords, my anxiety was not to satisfy the requirements of the ECHR provisions but to protect individuals who may not have benefited from the letter which was sent by registered post to the last-known address if they were not pursued by it to another address.
Lord Hunt of Kings Heath: My Lords, I hope that the point has been met by the fact that an individual would be informed that a positive check had been made.
In relation to the question raised by the noble Earl, Article 6 of ECHR requires the Secretary of State to apply a fair and reasonable procedure when determining civil rights. If we fail to inform the individual of the Secretary of State's decision, that arguably may enable that individual to commence a claim under the ECHR. I hope that clarifies the point for the noble Earl.
Perhaps I may take this opportunity to repeat the offer made by the noble Lord, Lord Laming, in Committee. I know that the Secretary of State will be glad to ensure that steps are taken to consult the noble Earl, or any other Member of the House, over the way in which these matters may be dealt with in the detailed guidance that it is intended to prepare on the implementation of the Bill. The best way of doing that may be at the draft stage of the guidance preparation, so that there may be satisfaction before the event over how this area of difficulty, and any other, is to be tackled.
2.30 p.m.
Lord Laming: My Lords, I am grateful to the noble Earl, Lord Howe, for allowing this further debate on such an important issue. I am also grateful to the noble Lord, Lord Stewartby, for his generous comments. I do not know whether he was out of order at the time, but he provided a nice counterbalance to the criticism that the noble Earl quite rightly made about my earlier comments, when I used the word "inconceivable". That was an ill chosen word, as I readily accept. I should have said "very rare" rather than "inconceivable". The Bill allows for people disappearing and resurfacing at another time. It also allows for new information to surface at a later stage leading to inquiries that the individual may not be aware of at the time.
That takes me to the heart of what I wanted to say: we need to remind ourselves that the purpose of the Bill is to protect children from harm. As was said in earlier debates, some people who prey upon children, who seek to take advantage of children and who misuse their power and authority over children are also capable of some extremely devious behaviour. Deviousness can lead to people disappearing from the scene and re-emerging at a later stage, sometimes pretending that they have been engaged in purposeful activity of a perfectly reasonable nature when they have not. For that reason, as the Minister has said, we need to strike a balance between being fair to such individuals, but also keeping before us the overriding need to protect children.
I am grateful to the Minister for his lengthy response to the points made by the noble Earl. I hope that it will be possible for the noble Earl to accept that the details of the procedures, which will be covered by regulation, will make sure that the Secretary of State is not put into a position where he could be challenged for having failed administratively to deal with these matters in a proper and thorough manner. The last thing that the Secretary of State would want to do would be to find himself or herself criticised for having failed to address normal procedures. By putting the procedures in regulations, the Secretary of State's position would be made that much more difficult if those procedures were not followed.
While repeating that the procedures will be subject to consultation and welcoming the views of the noble Earl, Lord Howe, at the consultation stage, I hope that the noble Earl will feel able to withdraw his amendment.
Earl Howe: My Lords, I thank both the Minister and the noble Lord, Lord Laming, for their replies, and both my noble friends for their constructive interventions. The main point to have emerged is that conformity with the European Convention on Human Rights need not be seen as requiring an explicit provision in a Bill or indeed even in guidance but is dependent on what is actually done by the Secretary of State in practice. That is helpful.
I am grateful to the Minister for offering to let me have sight of a copy of the draft guidance. I welcome that. In the light of what both noble Lords said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 2:
Page 3, line 1, leave out ("of the opinion") and insert ("satisfied")
The noble Earl said: My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 3. In Committee I asked the noble Lord, Lord Laming, whether he could explain to me why there is a difference of terminology between Clause 2(7) which covers the considerations underpinning the Secretary of State's decision to list an individual and Clause 1(3) which gives the Secretary of State power to remove a person from the list in circumstances that demonstrate that there has been a clear miscarriage of justice in the initial decision to list.
Clause 2(7) specifies that the Secretary of State must be "of the opinion that" and Clause 1(3) uses the term, "satisfied that". My understanding from the noble Lord's reply and from the letter kindly sent to me last: week by the Minister—for which I thank him—is that when the Secretary of State takes the decision to remove someone from the list, he sits in a quasi-judicial role, weighing up all the evidence on both sides. The word "satisfied" is appropriate in that context, as it is for Clause 4(3) which covers the role of the tribunal. The initial decision to list, on the other hand, does not involve a process of quite that nature. The noble Lord, Lord Laming, said,
"He [the Secretary of State] does not consider the merits of the case … He will form an opinion about the way in which the matter has been handled and whether the person is, therefore, unsuitable to work with children".— [Official Report, 11/6/99; col. 1679.]
Two points arise from that. One is the significance of the words, "is of the opinion". What deliberative process is required of the Secretary of State when he takes a final decision to place someone's name on the list? How is that different from the process required of him under Clause 1(3)? In what sense does he not consider the merits of the case?
The noble Lord, Lord Laming, kindly wrote to me on this issue on 22nd June, and I am grateful to him for that. He explained that what he meant was that the Secretary of State would not undertake a fact-finding role. By that I take him to mean that the Secretary of State will not be required to set about gathering evidence for himself outside that which is furnished to him by the parties. Perhaps the noble Lord will confirm that interpretation.
I shall be grateful also if the noble Lord can elaborate further on the implications of Clause 2(7) as a whole. From the noble Lord's reply in Committee, it sounded as though the key determinant of a decision to list is the Secretary of State's opinion with regard to the matters set out in subsection (7)(a),
"that the organisation reasonably considered the individual to he guilty of misconduct … which harmed a child or placed a child at risk of harm".
The conclusion which follows from a literal interpretation of the noble Lord's remarks, especially his use of the word "therefore". is that once the test in subsection (7)(a) is passed, there is very little more to be done, because that will be both a necessary and a sufficient condition of a tick in the box under subsection (7)(b). I find that explanation slightly surprising. It is

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not how I read the Bill. Subsection (7)(b) seems to me quite distinct from subsection (7)(a) and not dependent on it in any way.
In the light of the noble Lord's earlier comments I shall be grateful to know what it is that subsection (7)(b) adds to subsection (7)(a), given that, as I understand it, the Secretary of State does not undertake an independent fact-finding exercise. If subsection (7)(b) involves him doing something over and above subsection (7)(a), can the noble Lord explain what it is? I beg to move.
Lord Elton: My Lords, I apologise again for asking a question to which I almost certainly ought to know the answer. But from my standpoint it is important. For the legislation to come into effect, two things have to be satisfied: first, the Secretary of State has to consider that a person is not fit to work with children; and, secondly, that person has to be employed by a childcare organisation. In the interpretation clause, a childcare organisation is described under three headings, the first of which includes the provision of social services or the "supervision of children". My question is: under what category does the function of "mentoring" come? It is not normally described as a "social service" and a mentor does not in fact supervise.
If one then looks further into the clause, one sees that "employment" is defined as "whether paid or unpaid", with various other qualifications being set out thereafter. Again, I cannot quite accurately place within that the position of a person who is working voluntarily and unpaid as a mentor of children under arrangements made by a charity, which does not actually employ him but which keeps a close eye on his work and very often trains him. My interest in this is that I am chairman of the DIVERT Trust. I repeat my apology for not having discovered this point before I came into the Chamber.
Lord Hunt of Kings Heath: My Lords, I thank the noble Earl for allowing us to discuss this matter again. He has identified differences in language. I hope that I can persuade him that the different emphasis in language actually helps to draw a useful distinction between the various actions that have to be taken.
On the basis of the Bill as drafted, the Secretary of State will initially examine the quality of the information referred by an employer and may decide to list provisionally the individual involved under Clause 2(4), while observations are invited from both parties. The Secretary of State must then include the name in the list on a final basis if he is of the opinion that the employer has reasonably considered the individual to be guilty of misconduct which harmed a child or placed a child at risk of harm and that the individual is unsuitable to work with children.
If carried, the amendment would impose a much higher standard for inclusion on the list, implying a fact-finding role for the Secretary of State. I believe that this would risk prejudicing the protective effect of the referral and listing procedure, while pre-empting the full fact-finding role given to the appeal tribunal. I would consider this to be wholly inappropriate.
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Clause 4 provides that there should be access to a tribunal. The tribunal will undertake a fact-finding role to determine whether the person was guilty of the misconduct which harmed a child or placed a child at risk of harm and whether the person is unsuitable to work with children. This amendment would mean that that exercise would be undertaken twice. It is, therefore, unnecessary.
It may also be helpful if I explain that the role the Secretary of State carries out in Clause 2(7) is also distinguished from the test that he carries out in Clause 1(3) in the context of being satisfied that an individual should not be included in the list, such as when new evidence comes to light or a criminal conviction is overturned. In such cases, the relevant evidence must be looked at afresh in the light of the new evidence which has been presented. To that extent, the Secretary of State's role would appear to be more in line with a quasi-judicial function, hence the need to be "satisfied" rather than "of the opinion". As your Lordships will consequently see, there exists a hierarchy of somewhat different tests within the Bill which, in turn, reflect the various functions being carried out within it at a given point, including that in Clause 2(7).
In addition, it has to be seen that Clause 2(7) provides two stages of a test. In answer to the point that the noble Earl raised, I can say that the second test is important. If the first test in subsection (7)(a) is met, it is not a foregone conclusion that the second stage will also be met; that is to say, that the individual is unsuitable to work with children. That will involve a separate and additional consideration.
I turn to the second amendment. Essentially, the purpose of Amendment No. 3 is to impose upon the Secretary of State a more restrictive criterion for deciding whether finally to list an individual than that currently catered for in the Bill. I emphasise that point. First, he has to be,
"of the opinion that the organisation reasonably considered the individual to be guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm"
However, as I have said, this is not enough to warrant listing. He then has to decide that the above actions make the individual,
"unsuitable to work with children".
Great efforts have been made in the Bill to balance the overriding need to protect children with the need to introduce safeguards—as far as that is reasonable—to protect the rights of the individual.
As this part of the Bill currently stands, when forming an opinion over whether an individual should be listed, the Secretary of State will consider whether the misconduct in itself is sufficient to warrant banning the future scope for an individual to work with children. This is a serious decision bearing in mind all that the ban carries with it. Clearly no two cases will be alike. There will invariably be instances—perhaps few in number—where misconduct, while putting a child at risk of harm, or indeed leading to harm, exceptionally took place in circumstances which led the Secretary of State to form an opinion that the door on future employment with children should not be closed.

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The noble Lord, Lord Elton, referred to mentoring. If a mentor has access to children and satisfies the conditions of being engaged in a childcare position, he or she will fall within the provisions of the Bill, although I think that that would need to be assessed on a case-by-case basis. Conceivably mentors will be included in the definition, and probably rightly so, but I would be happy to write to the noble Lord with fuller details and discuss the matter with him if he has further concerns on that matter.
2.45 p.m.
Lord Elton: My Lords, I thank the noble Lord for putting that on the record. I point out that this is a large, growing practice. It exceptionally puts children and adults together in positions in which the child can be exploited. If the Bill does not cover that point, that is a matter for concern.
Lord Meston: My Lords, the Minister mentioned differences in language. I well understand what he was saying. Can he confirm my understanding that the exercise which the Secretary of State has to undertake under Clause 2(7) would itself be capable of judicial review? Clearly the exercise is futile—as the noble Earl indicated—if the Secretary of State merely "rubber stamps" an organisation's decision. I assume that that is not the intention of the Bill and that, whatever the phraseology, the Secretary of State will reach his opinion independently.
Lord Hunt of Kings Heath: My Lords, I confirm that judicial review would be available.
Lord Phillips of Sudbury: My Lords, I ask the Minister whether I have the matter right or wrong because this is an important issue. In answer to the noble Earl, Lord Howe, he seemed to be saying that as between a complete and thorough-going review of the evidence at one extreme and rubber stamping at the other Ministers could engage in some kind of middle way. I think that at the beginning of his reply the Minister talked about the Secretary of State looking at the quality of the evidence that was brought before him by the informing organisation. I think the consequence of that would surely be that—as indeed the Minister indicated—he would be quite content to leave the tribunal to judge more fully, and with greater sensitivity, whether or not the person concerned should be on the register. That in turn would surely mean that the risk—if I can use that term—of innocent adults finding themselves on the register is greater rather than lesser precisely because the involvement of the Secretary of State in looking at the information that has been put before him—as I understand the matter, but this is what I query—is on a kind of middle level rather than a more intense level.
That in turn has huge importance for those who may be the subject of all this, because if they ever get to the point where they must make an appeal to the tribunal, the expense and the public pain of being in that position and having to appeal will be extremely serious. If no legal aid is available, as appears to be the case, the
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consequences in turn are very extreme for an individual adult in that position. I am sorry to have asked such a tortuous question, but there is a secondary issue here in terms of doing justice to those who are potentially in danger of being on this list and in terms of the manner in which it is being dealt with.
Lord Hunt of Kings Heath: My Lords, perhaps I may gently point out that we are on Report stage at present. The whole construction of this Bill is delicately balanced between the overriding need to protect children and the need to ensure that an individual's rights are also protected. This Bill introduces a very important right: to appeal to a tribunal against the decision to include a person on the list. I do not think that we should forget the safeguard that that right entails.
As regards the hierarchy of decision making, which the noble Earl pointed out, in paragraphs (a) and (b) of Clause 7(1) the Secretary of State is not making a finding of fact. He is forming an opinion, first, as to the reasonableness of the employer's position and, secondly, as to whether the individual is unsuitable to work with children. He is not mounting a full investigation into the facts. That is for the tribunal to do, if an appeal is so made, and the tribunal will then undertake a fact-finding role. That is the reason for the difference in language. I hope that it helps to show how the distinction is drawn between the two functions.
Lord Laming: My Lords. we have had a very helpful debate, and there is not a great deal more that I would wish to add except to reassure the noble Lord, Lord Elton, that if mentors operate through a corporate body, as in the example that he gave, they would certainly be covered by this Bill, as would Boy Scout leaders and many other people who voluntarily give their time as part of an organisation which has frequent and regular contact with, and provides services to, children.
Turning to the points raised by the noble Earl, Lord Howe, on paragraphs (a) and (b) of Clause 7(1), I think it is important, as the Minister has made clear, to have these two tests because it is possible for an organisation to have considered very reasonably and properly the misconduct of an individual. But there is a second test as to whether or not that behaviour is of sufficient severity to make the individual unsuitable to work with children. I have hesitated throughout these discussions to give examples, because that is always dangerous, but perhaps I may offer two examples as illustrations.
There are detailed regulations about bathing vulnerable people and protecting them from harm. It is conceivable that somebody may ignore the regulations and place a child in a bath of scalding water, causing immense harm to that child. It may well be shown that that person disregarded important regulations that had been designed to protect children from harm, so that the. facts may not be in dispute as to either the event happening or the regulation being ignored.
The second test is whether or not that person behaved in such a way as to make him or her unsuitable to work with children. That would depend upon a whole range of other matters being considered. A similar example

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would be someone taking children sailing or canoeing without having first checked the availability and effectiveness of the safety equipment. There are proper regulations to prevent disasters occurring. If a disaster occurred, that would be tested under subsection (7)(a); and whether or not a person was suitable would be considered under subsection (7)(b).
The test is to make sure that these two elements are properly considered. As to the wording "satisfied" or "of the opinion", I support what the Minister said. It is very important that the Secretary of State should not pre-empt the work of the tribunal and that we should hold to the distinction of their respective roles. Having said that, I hope the noble Earl will not press the amendment.
Earl Howe: My Lords, this has been a useful debate which has served to clarify a very important aspect of the Bill and the way in which its provisions will work in practice. The Secretary of State is clearly neither a rubber stamp nor a tribunal in his own right; nevertheless, he will exercise his judgment and will form an opinion on the information placed before him. I am particularly grateful for the explanations which have been given about the force of subsection (7)(b) and for the useful examples quoted by the noble Lord to illustrate the process. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Clause 4 [Excessive delegation of powers]:
Earl Howe Earl Howe moved Amendment No. 4:
Page 4, line 15, at end insert ("; or
() with the leave of the Tribunal, his continued inclusion in the list following the dismissal of an appeal under subsection (3) below.")
The noble Earl said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 5 and 6.
We had a lively and interesting debate in Committee on the very important issue of whether it is right for the Bill to contain no mechanism whatever to enable a person who has been listed and who has lost an appeal to the tribunal to apply to have his name removed from the list on the strength of his subsequent good conduct. The main point I made then was that putting someone's name on a blacklist for life may be further than we would wish to go in certain exceptional cases—I stress not in a case involving a wilful child molester but rather in a case involving a man whose conduct amounted to inexcusable inadvertence or gross incompetence.
The noble Lord said in debate last time that he felt the term "misconduct" denoted something that was deliberate and determined. He has kindly written to me since then to make it clear that "misconduct" could involve an act of omission as well as commission, which was my previous understanding of the term. A thoughtless act or one committed in ignorance of the likely outcome could in some circumstances amount to misconduct.
The example to which the noble Lord has alluded was given in another place. It concerned the owner of a business providing adventure training holidays who allowed a group of children to go out to sea without proper training, without life-jackets and in boats that were unseaworthy; several children drowned. It was said that this man was guilty of criminal negligence—and that may certainly have been so—but his employee, the man who accompanied the children out to sea, was said to be incompetent because he did not realise the seriousness of the situation and did not question his own actions. That is a very interesting example. It does not involve someone wilfully harming a child or wilfully placing a child at risk of harm. There is no deliberate intent; it is a serious act of omission. In a case such as this it is quite possible to imagine the employee being dismissed for misconduct and subsequently being listed.
If, after an unsuccessful appeal to the tribunal, that man were to demonstrate over the next 15 or 20 years that he had matured and gained in experience and, having spent time in helping children's voluntary groups such as the scouts, he had proved himself to be thoroughly reliable and trustworthy, what ought we to say to him if he were to come to us asking for a chance to prove to the tribunal that he should no longer be considered a risk to children? Under the Bill as drafted he would have absolutely no recourse to the tribunal, let alone to the courts. The stigma of being included in the list is his for life.
I recognise that all examples are to an extent artificial, but I seriously question whether the situation I have described is consistent with natural justice or the high standards of civil liberty on which we rightly pride ourselves in this country. The noble Lord may say that the kind of provision I have allowed for in my amendments, which essentially create a further ground of appeal to the tribunal, would open the floodgates to all manner of inappropriate appeals, from child molesters and so forth. I believe it would be possible to obviate that difficulty by making leave to appeal dependent on the prior agreement of the tribunal, exactly as already set out in Clause 4(1)(b). That is what I have proposed.
I remind the House that the Bill provides for an employment blacklist to be established by means of an administrative rather than a judicial procedure. It is a convenient system and we can justify it in the interests of children. But there have to be proper safeguards. The tribunal, whose importance I in no way belittle, at present has a role only in hearing an early appeal. There is a strong case for broadening its role in the way I have described. I beg to move.
3 p.m.
Lord Phillips of Sudbury: My Lords, I associate myself very strongly with the remarks of the noble Earl, Lord Howe. The impact on someone put on this register will be little different from, and in some cases worse than, being convicted before a criminal court. The consequences in terms of reputation and livelihood could not be more acute. To that end I was disappointed by the fact that the previous amendment was not carried.

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The interests of children are paramount, but the interests of justice are no less paramount. Therefore, to give someone put on the list the opportunity in the circumstances described to, in effect, clear his name after the passage of time must surely be right. I strongly support the amendment.
Lord Hunt of Kings Heath: My Lords, this is a serious point. I agree with the noble Lord, Lord Phillips, that to appear on the list is a serious matter for the individual concerned. However, as he also said, the interests of the child are paramount. The Bill as drafted reflects those concerns. The very inclusion in the Bill of a right to appeal to the tribunal is a reflection of the ability of the individual to appeal.
Clause 1(3) contains provision that the Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it. That reflects the fact that if new evidence came to light which suggested that the original decision should not have been made the Secretary of State could remove that person from the list.
I turn to the point raised by the noble Earl. He was concerned—he gave an example—about the position of those who may have found their way on to the list early in life, perhaps because of some youthful indiscretion or momentary act of immature carelessness. He asked whether it is right that they should never be able to have such a decision reviewed, even years later when they claim that they have developed into solid citizens. If that were likely to happen, there would indeed be justifiable concern. However, I shall seek to show that that is not the object of the Bill and that it is not expected or desired that its provision should operate in that way and that there are means to prevent it doing so.
It may be helpful if I describe how the process of inclusion in the list works. An individual may only be listed where, in the first place, the employing organisation has, on grounds of misconduct which has harmed a child or placed a child at risk of harm, dismissed, transferred or suspended the individual. The Secretary of State has decided from the information submitted by the referring organisation that it may be appropriate for the individual to be included in the list. Thereafter, observations of the individual and, as necessary, the observations of the referring organisation are sought and considered by the Secretary of State, together with any information which he thinks relevant; and the Secretary of State is of the opinion both that the referring organisation reasonably considered the individual to be guilty of misconduct which harmed a child or placed a child at risk of harm and that the individual is unsuitable to work with children.
If fresh evidence comes to light, individuals listed may at any time ask the Secretary of State to remove their names from the list on the grounds that they should not have been included in it. There is a right of appeal to the tribunal, which must consider merits afresh, both against decisions by the Secretary of State to include an individual in the list and against decisions by him to refuse to remove names on the grounds that they should not have been included in it.
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I hope that I have demonstrated that listing for what amounts to no more than acts of youthful indiscretion is neither a desired nor a likely outcome. On the contrary, the whole character of the changes made to the Bill following its introduction in the other place have been to adjust the balance so that that kind of outcome would be the least likely, especially granted the reliance now on the single misconduct test, backed up by the statutory consideration processes and an independent, strong and thorough-going appeal system.
It may also be helpful if I refer to the purpose of the guidance that the Department of Health intends to issue. It will indicate, among other things, how referring organisations may approach their task. Such guidance would include advice which, for example, could explain that Parliament's concern on the same point made in another place had led to the dropping of "incompetence" from the grounds for referral, and that although the remaining misconduct criterion was able to comprehend gross incompetence, it was clear that Parliament, on the basis on what had been said in this House as well as in the other place, did not expect the provisions to lead to listing for trivial matters.
The guidance could then be expected to spell out some of the features of misconduct which needed to be considered before reference was made, such as the relative experience, as well as the age, of the staff concerned, the extent of the training given and the quality of management supervision and control.
Further, it is intended that the guidance should be made available to interested parties in draft. That will provide an opportunity for it to be reviewed and changed as necessary to reflect any remaining reasonable concerns. What cannot be said at this stage is that there can never be circumstances where persons, let us say, thoughtlessly harming a child or placing a child at risk of harm could find themselves on the list. Acts of omission, as well as commission, could conceivably justify inclusion on the list.
As the noble Earl, Lord Howe, indicated, the problem with hypothetical examples is that they are just that. It would be wrong for Parliament to seek to fetter the future discretion of referring organisations, Secretaries of State and tribunals while simultaneously instructing them to consider each case according to its particular merits in an overall structure in the rest of the Bill which Parliament does not seek otherwise to disturb.
I hope that the noble Earl will recognise that this matter has been given considerable thought and that safeguards are present to ensure that a person who appears on the list will only do so after very careful consideration.
Lord Laming: My Lords, the Minister has given a full reply to the points that have been raised. I should like to make a couple of brief comments in addition. The noble Lord, Lord Phillips, is quite right in saying that appearing on one of the lists or the list, when it becomes the list, is a serious matter. It is for that reason that the debate we have just had in relation to paragraphs (a) and (b) of Clause 2(7) is part of the way in which

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the Bill provides a balance between the protection of children and providing safeguards for members of staff against whom complaints or allegations are made.
It is a serious matter. Therefore, the procedures that will be linked with the Bill will have to demonstrate that matters have been handled with great care and thought and that the safeguards that are built into the Bill in relation to appeals will also be properly handled by a tribunal. That tribunal will be independent and its members will be appointed by the Lord Chancellor.
I emphasise that the Bill is not a bar to employment; it is simply a bar to people working with children. All the cases will be handled on a case-by-case basis, taking into account the circumstances. But I emphasise that the Bill aims to ensure that only serious behaviour—I do not need to go into detail—will fall within the purview of the Bill. For that reason, in another place, the issue of incompetence was dropped from the Bill. In those circumstances, I hope that the noble Earl feels that the points he raised have been adequately responded to and that he will feel able not to press the amendment.
Earl Howe: My Lords, once again, I thank all noble Lords who have taken part, including the noble Lord, Lord Phillips. I very much appreciated his supportive remarks.
I remain uneasy about the absence from the Bill of any provision to allow an individual to apply to have his name removed from the list, having initially failed in his endeavour to do so, but in the light of subsequent good behaviour.
As I read it, Clause 1(3) covers the case of a miscarriage of justice, if I may encapsulate the example that the Minister gave. It is where fresh evidence comes to light to show that a person's name should never have been included in the list in the first instance. My example related to a different kind of case where a person's inclusion on the list was clearly justified in the first instance but his subsequent behaviour had redeemed him.
I also take the noble Lord's point that the Bill does not create a bar to employment for individuals; it merely prevents unsuitable people working with children. Nevertheless, we must bear in mind that to be on the Secretary of State's list is a serious stigma. For those who feel, as a matter of natural justice, that their place on the list is wrong and can no longer be justified, the burden is a heavy one to bear.
I do not propose to press the amendment. All I urge on the Minister and his department is that they bear in mind what he and I have said to each other on a number of occasions. The Bill is a building block and should be seen as one measure among, perhaps, many to come which will address the extremely important area of protecting children and balancing that protection with civil liberties. If, as the Bill takes effect, it is seen that natural justice is not served by the absence from the Bill of the kind of measure I have proposed, I hope that the omission can be addressed in future legislation which I know the Government are minded to introduce at some point. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 and 6 not moved.]
Clause 12 [Interpretation]:
Earl Howe Earl Howe moved Amendment No. 7:
Page 9, line 39, after ("mind") insert ("or degenerative mental illness")
The noble Earl said: My Lords, this amendment can be dealt with briefly. I simply seek clarification from the Minister as to the definition of "mental impairment" in Clause 12. I am not sure that when we debated Clause 10 in Committee the Minister entirely took my point. At no time did I seek to suggest that the Bill should be extended to cover all types of vulnerable adults. However, having opened up the possibility of extending its remit to those particularly vulnerable adults who might be seen as corresponding most closely to children, I believed that it was not unreasonable to look a little further than the definition in Clause 12 appeared to do.
My understanding is that,
"arrested or incomplete development of mind",
does not encompass those conditions which are characterised by a degeneration of mental faculties, such as dementia, but rather what are usually termed severe learning disabilities. For example, if one thinks of an adult woman with dementia or Alzheimer's disease there is little to separate her from an adult woman with severe learning disabilities in terms of the other half of the definition in Clause 12, which refers to,
"a significant impairment of intelligence and social functioning".
In terms of vulnerability, which must be the key measure, there is a very close parallel.
These are people who often cannot express themselves and whose very lives are dependent on the help and support of others. I have tabled this amendment to ask the Minister whether my interpretation of this definition in Clause 12 is right. At one point in the debate in Committee I thought that the Minister was leaving open the possibility that the definition as drafted was capable of being stretched so as to accommodate the type of case to which I have referred. I should like to think that that is so, but I should be grateful for any further clarification that the Minister is able to give. I beg to move.
Lord Hunt of Kings Heath: My Lords, I say at once that I have a great deal of sympathy with the purpose behind the amendment but I cannot recommend that the House supports it. The Bill is targeted on improving the child protection system. I do not think that it would be practical to expect the system to encompass satisfactorily the needs of a very diverse group of adults as this amendment proposes. Before any such extension can be considered along the lines suggested by the amendment further work is necessary to identify the most appropriate way to proceed.
I recognise that the Bill envisages extending protection to mentally impaired adults, but they are the one group whose position is most similar to vulnerable children and whose circumstances are clearly set out in the Mental Health Act 1983. If I gave the impression to

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the noble Earl at Committee stage that it could be widened in the way suggested I should not have done so and in that sense I am sorry to disappoint him. But he will be aware that the interdepartmental ministerial group under the chairmanship of the Home Office is looking at the whole question of the best way to carry forward work on protecting all groups of vulnerable adults. Given the current work that is being actively carried forward in this area, I hope that the noble Earl agrees that it would be inappropriate to pre-empt the findings of that group in the way that the amendment proposes. We have taken note of the noble Earl's
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remarks both today and in Committee and shall ensure that the substance of what he says is reflected to that group.
Earl Howe: My Lords, I am very grateful to the Minister and look forward with anticipation, and some optimism, to the work of the interdepartmental group. In thanking him for his explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
House adjourned at eighteen minutes past three o'clock.