Lords Sitting of 24 May 1999

Preamble
The House met at half-past two of the clock: The LORI) CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Hereford.

Habitual Residence Test
Earl Russell Earl Russell asked Her Majesty's Government:
Whether they will revoke the habitual residence test, in the light of the judgment of the European Court of Justice in the Swaddling case that it is illegal.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, we have previously explained that our review of the habitual residence test would need to take account of the judgment of the European Court of Justice in the Swaddling case. This was given on 25th February and we have been assessing its implications, not just for Mr. Swaddling, but for those whose circumstances are similar to but do not exactly match his case. We shall bring forward our recommendations for the future soon, certainly no later than the Summer Recess. I shall be delighted to write to the noble Earl when this happens.
Earl Russell: My Lords, first perhaps I may have the pleasure of wishing the Minister many happy returns. I also thank her for the promise of jam tomorrow. Is the Minister aware that the concept of habitual residence is so imprecise and uncertain in law that the Government should not be confident, even though I have no doubt that they are, that they will avoid a further such judgment in future? Does she also recall that in opposition her party commented so severely on this test that it is difficult for it to continue it without appearing to be lily-livered?
Baroness Hollis of Heigham: My Lords, first I thank the noble Earl very much. However, if he really had had my best interests at heart today of all days he might have postponed his Question until after the European elections. To deal with the first part of the Question, the noble Earl is absolutely right. This is a very complex area. for two reasons. First, unlike most other countries we do not have a written constitution and therefore a clear definition of what a British citizen or national may be. Secondly, given a country with a long imperial past we have at least six different statuses of British national under British immigration law, all with different rights. The noble Earl is correct about that. For that reason, he and I when in opposition joined together and said that there must be a review, and that is what has happened. The Swaddling case went to the European Court in February 1997, just before we came into power, and was determined two years later in February 1999. In the light
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of that we are seeing to what extent the habitual residence test could and should he thoroughly overhauled.
The Lord Bishop of Oxford:: My Lords, acknowledging that there are many grey areas and that this is a difficult matter, can the Minister explain how the habitual residence test bears upon, for example, aid workers who work overseas for a long period of time and members of Asian families who may go to the Asian subcontinent for a long period, perhaps to get married, before returning to this country?
Baroness Hollis of Heigham: My Lords, the right reverend Prelate is exactly right in identifying those groups. I read the judgment in Swaddling yesterday. It makes clear that, first, it should help UK nationals who work abroad, like Mr Swaddling and missionaries. When they come back they do not have to live here for an appreciable period of time in order to establish their rights to income-related benefits. Secondly, it will also help UK nationals with overseas links, particularly people from ethnic communities in this country. Thirdly, it will help UK nationals who return, perhaps because of misfortune like a broken marriage or ill-health. Fourthly, the Swaddling judgment should also help those UK nationals who were taken abroad as children to establish right of residence. We expect it to have a substantial effect on people who so far have had a shadowy claim to establishing right of residence here.
Earl Russell: My Lords, can the Minister say what the habitual residence test can do that the "actively seeking work" rules cannot do better?
Baroness Hollis of Heigham: My Lords, the habitual residence test entitles people to a range of income-related benefits: housing benefit, council tax benefit, income support, some disability benefits and JSA. After six months one is entitled to child benefit as of right. Even if one fails the test it does not prevent one from residing here, finding a job and making national insurance contributions towards contributory benefits. The Swaddling judgment will ensure that anybody with an established connection with the UK does not have to serve a period of time—in Swaddling's case, about eight weeks—before he or she is entitled to income-related benefits. But there are still very many people with fairly nebulous or sketchy connections with the UK who want to come to this country, and we must balance their wishes for financial support against the rights of the taxpayer.
Lord Campbell of Alloway: My Lords, is the Minister able to give some form of undertaking that if the law is changed as a result of the Swaddling case it will have no effect on revenue law?
Baroness Hollis of Heigham: My Lords, the Swaddling case will reduce the savings that would otherwise come from benefit reductions. Nonetheless, under the habitual residence test at present if people are ineligible for income-related benefits they have rights

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under the National Assistance Act and the Children Act. The test has not generated many savings. At present savings are about £18 million a year. The Swaddling judgment may reduce the figure to half that sum. However, we wait to see the full read-across implications of Swaddling to the range of people who apply for habitual residence in this country.

Hepatitis C Infection
2.42 p.m.
Lord Morris of Manchester Lord Morris of Manchester asked Her Majesty's Government:
What recent assessment they have made of the special needs of people with haemophilia who were infected with hepatitis C during NHS treatment, and the dependants of those for whom the infection proved fatal.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, the Government made a thorough assessment in 1998 of whether it would be right to introduce a special payment scheme for people with haemophilia infected with hepatitis C through NHS treatment. We concluded that this would not be appropriate and that such patients should continue to obtain support as necessary through the benefits system in the same way as other NHS patients who have suffered non-negligent harm.
Lord Morris of Manchester: My Lords, the Secretary of State for Health said last July that the social stigma of HIV and the danger of infecting partners were "important considerations" in granting special payments for HIV infection which do not apply in the hepatitis C cases. Can my noble friend point to where that was officially stated when the Major Government announced their HIV compensation scheme? Is my noble friend aware that governments elsewhere see no such distinction, and that Canada, Italy and Ireland already have special financial schemes for hepatitis C infection? How many NHS patients infected with hepatitis C have since died of liver disease? And when can we expect a response to the Haemophilia Society's urgent request for a public inquiry?
Baroness Hayman: My Lords, I understand the strength of feeling. The campaign that the Haemophilia Society waged was moving and forceful. However, we concluded that a public inquiry was not the way forward and would not help prevention of future transmission. That has been covered by advances in screening and the ability to make blood products safer. I recognise the belief that there is a comparison with the HIV special payments. But there are also comparisons with large numbers of other patients who have suffered non-negligently as a result
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of treatment given as the best at the time. It is a difficult area but we do not believe that it would be appropriate to offer special compensation.
Lord Clement-Jones: My Lords, can the Minister confirm that this is a clear breach of a pre-election pledge given by her party? Can she explain why countries such as Australia, the US, Ireland, New Zealand and Germany—the noble Lord, Lord Morris, mentioned others—have circumstances which are quite different from the United Kingdom?
Baroness Hayman: My Lords, it is difficult enough to answer for one government. I am not sure that I should answer for six others. Recompense for non-negligent injury varies from country to country. In this country it has been well established that we do not compensate for non-negligent harm caused through NHS services. Although that is difficult for people who have suffered a great deal, we have to recognise the implications as regards resources available for patients at present were we to adopt a different attitude.
My noble friend asked about the number of haemophiliacs infected. It is estimated that some 4,000 people were infected with hepatitis C through NHS treatment. About 90 of those have died; and about six or seven are awaiting liver transplants.
Baroness Gardner of Parkes: My Lords, can the Minister confirm that the only guaranteed non-infectious material that can be given to haemophiliacs is Recombinant Factor VIII? Perhaps the noble Baroness will tell us the present position. I understand that because the product is chemically manufactured rather than being a natural product, it carries VAT. Many of the centres working with haemophiliacs find that a heavy burden on their NHS budget. Is anything being done about that?
Baroness Hayman: My Lords, the noble Baroness is correct. We can guarantee a lack of risk with the synthetic Recombinant treatment. It is because of the anxiety about a possible rather than proven risk that the NHS provides that treatment to children and new patients. I shall make inquiries about the VAT issue and write to the noble Baroness.
Baroness Masham of Ilton: My Lords, does the Minister agree that the worry about hepatitis C goes wider than just haemophilia? The problem as regards liver transplant units and the transfusion service is very great. When will the Government bring out guidelines about testing treatment, and counselling for patients?
Baroness Hayman: My Lords, the noble Baroness is right. Liver disease affects people other than those with haemophilia and causes an enormous strain. It is a very unpleasant disease and the difficulties of transplantation are enormous. I met the British Liver Trust about the way forward and improving

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guidelines. I believe that there is the opportunity to give better advice throughout the health service as to patterns of treatment for people with liver disease.
The Earl of Longford: My Lords, will the Minister be kind enough to look at the experience of other countries? One is under the impression that they do a great deal more than we do in this respect.
Baroness Hayman: My Lords, I undertake to consider whether there are specific differences in the treatment of people with haemophilia infected through blood products with hepatitis C to see whether lessons can be learned. Different jurisdictions deal in different ways with non-negligent injuries. Those issues were considered at some length by the Government in 1998. However, I shall look at them again.
Lord McNair: My Lords, does the Minister accept that if I and thousands of reports in medical journals over the past 100 years are correct about the anti-infective properties of oxygen therapies, many of these sad cases might not have proved fatal? Will she consider encouraging research into whether ozone or hydrogen peroxide could be used to purify blood products in order to ensure that such incidents do not happen in future?
Baroness Hayman: My Lords, the House will be aware that detailed expert committees are examining the safety of blood products across a range of activities. We take the best possible advice in ensuring the safety of all the products used. I know that the noble Lord has a particular interest in hydrogen peroxide therapy and the benefits it may offer. I shall undertake to see whether there is literature which suggests that it might be possible in this case.
Lord Monkswell: My Lords, we all hope that the welfare state can take up the problem of non-negligent injuries. However, is my noble friend aware of the erosion of unemployment benefit and pension provision to half their real value that occurred under the previous government? Will my noble friend make representations to the Chancellor of the Exchequer to see whether there can be recompense for that erosion?
Baroness Hayman: My Lords, my noble friend tempts me into wider areas of welfare reform. The Government's policy in providing extra help to severely disabled people in the greatest need may help some of the people with haemophilia to whom reference has been made, particularly haemophiliacs under the age of 20 who have not had the chance of working. In future, they will receive incapacity benefit at a much higher level than the old severe disablement allowance.
Lord Hayhoe: My Lords, can the Minister say how much the Government save by not extending to those infected with hepatitis C a scheme similar to that available to those with HIV?
Baroness Hayman: My Lords, estimates made at the time indicated that the cost of such a scheme would be in the order of £220 million, excluding start-up costs and the costs of managing the process.

Indecent Assault: Protection of Young Women
2.52 p.m.
Baroness Seccombe Baroness Seccombe asked Her Majesty's Government:
What representations the Minister for Women has received about the potential consequence of the Sexual Offences (Amendment) Bill on the reduction in the age of consent for an act of buggery committed on a woman, and whether it remains government policy to reduce the level of protection for young women against this form of indecent assault.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, we do not have a breakdown of the thousands of letters received. However, officials estimate that only a very small number referred to buggery involving a female. We remain committed to the measures in the Bill. These would have provided for greater protection for young people by removing the criminal liability of those under the age of consent for buggery with someone over that age.
Baroness Seccombe: My Lords, I thank the Minister for giving his usual courteous and clear Answer, but I must admit that I am extremely disappointed and astonished that the noble Baroness, Lady Jay, the Lord Privy Seal and the Minister for Women, is not answering the Question, as it is essentially a women's issue. I searched her glossy publication, Better for Women, Better for All, and can find no mention of this issue; nor can I find a reference to it in the fact sheet, Teenage Girls, accompanying the publication. If it is such good news, as the Government say, why is it not included?
Recognising that detailed consultation is essential in such a sensitive matter, can the Minister assure the House that all the major women's organisations were consulted? Can he also give the House the view of the Women's National Commission?
Lord Williams of Mostyn: My Lords, it was felt that it would be more helpful if I replied, because the Home Office is the lead department dealing with these issues. Furthermore, as a matter of background, any letter on this issue sent to my noble friend the Leader of the House would automatically be transferred to my department rather than be dealt with by hers.
It may well be that there is no such reference in the documents referred to by the noble Baroness because such incidents are relatively low in number. In 1997, there was one caution and two prosecutions, resulting in no convictions of males aged 16 or over for buggery with a female aged 16 or 17, so the numbers disclosed by prosecutions are low.

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I have made the Government's position plain: we believe that the Bill which was introduced was properly introduced. We remain of that view.
Earl Russell: My Lords, further to the Minister's remark about lack of convictions, might that have some connection with the difficulty of gathering evidence about consensual acts?
Lord Williams of Mostyn: My Lords, that is undoubtedly a feature. A further feature is that if those who might otherwise have complained are in danger of being criminalised following their complaints, that reluctance might well point to the low level of prosecutions and convictions.
Lord Quirk: My Lords, is it not the case that, irrespective of the law, girls must have the protection of sound advice on sexual health? Therefore, does the Minister deplore the fact that the Health Education Authority, which has recently issued this jazzily colourful pamphlet, repeatedly presents girls with anal and vaginal sex as equally commendable alternatives, with not the slightest hint that one of these alternatives carries many thousand times greater risk of damage; for example, of anal lesion?
Lord Williams of Mostyn: My Lords, of course young girls and young boys of this age and above require protection. That was the whole point of a significant part of the Bill, which was cast aside by your Lordships despite my suggestion that we ought to improve the protection specifically in respect of the abuse of young people by those in positions of trust. That is not the only publication; the Sex Education in Schools circular, No. 594, following the Education Act 1993, deals with the appropriateness of sex education in schools at a point appropriate to the age and maturity of the pupils. It stresses that education about HIV, AIDS and other sexually transmitted diseases is extremely important.
Baroness Young: My Lords, can the Minister help the House by answering the question put by my noble friend Lady Seccombe as to which organisations were consulted about this major change in the law? Does he agree that although it is desirable in law to have some protection against abuse, had the Government not considered changing the law, protection in this particular case would not have been necessary?
Lord Williams of Mostyn: My Lords, I do not. We put out the document for consultation, and on many occasions I have read out a list of those organisations which responded. With respect, I do not agree with the noble Baroness. I believe that the Bill was a very notable step forward in the protection of those who are particularly vulnerable and who now will remain so,
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I am sorry to say, perhaps for a considerable period of time because they are subject to abuse from those who are in positions of trust in respect of them.
Lord Cope of Berkeley: My Lords, can the Minister confirm that this matter has been devolved to the Scottish Parliament and Ministers, so the new Bill in the next Session will not include Scotland?
Lord Williams of Mostyn: My Lords, we are examining that issue and do not believe that it should present a problem. In fact, it may be of help to point out to your Lordships that Scotland does not have an offence of buggery with a woman, so females there would not be affected by changes in the Bill.
Baroness Seccombe: My Lords, it seems that the Minister is unable to answer the question about organisations which were consulted and the view of the Women's National Commission. Therefore, will he write to me about that?
Lord Williams of Mostyn: My Lords, of course. I should have made that plain because the noble Baroness's question was perfectly courteous and to the point, as always. I shall answer her question more widely than the particular focus of it, dependent on the answers which I receive to the research. As always, I shall place a copy in the Library.

Single European Currency: Non-partisan Statement of Arguments
3 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
Further to the Answer by the Lord McIntosh of Haringey on 10th May (HL Deb, col. 960), concerning the United Kingdom joining the single European currency, whether they will arrange for the publication by a non-partisan body of a statement of the arguments for and against joining.
Lord McIntosh of Haringey: My Lords, the Government have already published a report by my noble friend Lord Currie entitled The Pros and Cons of Emu. We agree that the issues surrounding UK membership of the single currency need to be widely understood and debated. That is why we published the Treasury's assessment of the five economic tests setting out the conditions which must be met before the UK could join a successful single currency. The Government have no plans to arrange for the publication of a document by an outside body.
Lord Peyton of Yeovil: My Lords, is the noble Lord aware that his Answer today shows a very modest improvement in relation to the Question which I now raise for the third time? One must regret that the noble Lord is not allowed, perhaps, to use his own intelligence

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and skills in handling this matter rather than being forced to comply with the regiment of spin doctors who contrive to cloud counsel.
Lord McIntosh of Haringey: My Lords, on two previous occasions, the noble Lord complained that I did not answer the Question. He is now acknowledging, I think, that I did answer the Question, but he does not like the Answer.
Lord Bruce of Donington: My Lords, if my noble friend cannot be rather more positive to the Question of the noble Lord, Lord Peyton, as a matter of saving time and expense, will he consider giving the utmost publicity to the recent IMF report No. 44 of 1999, published a week or so ago, which, at pages 51 to 67, set out the IMF's complete view of the single currency, for and against, in so far as it affects Great Britain? Is it not in the interests of the general public that the Government should permit, and indeed encourage, the publication and dissemination of a source of information which has hitherto been regarded by them with very great respect?
Lord McIntosh of Haringey: My Lords, my noble friend's assiduity is a credit to him and he does a service to the House. I am sure that the publicity which he has now given to the IMF report will help it to be more widely known. Certainly, we have no intention of doing anything other than encouraging the kind of debate in which the IMF has participated.
Baroness Williams of Crosby: My Lords, may I commend to the noble Lord the course of action which was followed for the referendum in 1975 of eventually allowing both sides to put their case to all the people of the country? That had the great advantage that rather than a so-called non-partisan point of view, which nobody would have trusted, both sides were given the clear opportunity to put their case. It is true that the compelling and conclusive arguments of those on the "yes" side carried the day, but that is no drawback from my point of view.
Lord McIntosh of Haringey: My Lords, the noble Baroness is aware that the Neill Committee on Standards in Public Life has made recommendations about the conduct of referendums. We have undertaken that a draft Bill and a White Paper on the subject will be published before the Summer Recess. Of course, the noble Baroness will recall also that the Neill Committee said that the Government are entitled, and indeed under a duty, to make their position clear in relation to the referendum.
Viscount Cranborne: My Lords, did the noble Lord have an opportunity yesterday morning to see his colleague, the Leader of another place, on television? She appeared, during the course of that interview, to sign up fully to the Conservative Party's present policy on European and monetary union. She implied that
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before a referendum is held and a decision made by the Government, at least one more Parliament should elapse. Will the noble Lord confirm that the Government have performed that U-turn in the past 24 hours?
Lord McIntosh of Haringey: My Lords, I did not see the broadcast and I am astonished by the noble Viscount's interpretation. The Government have been absolutely consistent in their view and I am not aware of any change.
Lord Higgins: My Lords, is it not apparent that the Chancellor's conditions are easy to fudge, even more so than the original Maastricht criteria which a number of those joining the single currency clearly fudged? More particularly, is it not important that the Government should set out not only the ways in which we should prepare if we decide to join the single currency but, equally, the ways in which we should prepare if we decide not to join? Is not the bias in the Government's present approach very dangerous?
Lord McIntosh of Haringey: No, my Lords. The best expression of the Government's point of view was that of the Prime Minister in the House of Commons on 23rd February. He said in relation to the economic conditions that our inflation performance is consistent with the ECB's definition of price stability but that it is essential that convergence is settled and sustainable, and that we cannot yet say that. When the Government believe that we can say that, we shall make up our mind on the point. We shall then take the steps which we have undertaken to pursue on many occasions. We shall seek the agreement of Parliament and then of the people in a referendum. That time has not yet been reached, as the Prime Minister made clear.
Lord Marsh: My Lords, does the Minister not agree, however, that Ministers are as incapable of giving an objective analysis of the issue as Business for Sterling? What is the reason for that strenuous objection to an independent, serious analysis of what would happen to Britain if it did go in and what would happen if it did not, so that there is some objective, non-partisan view. I speak as someone involved with one side of this argument. The suggestion of the noble Baroness, Lady Williams, that anyone in the street reads the two-sides case which will give them a blinding insight into the whole issue is fanciful. There is a need for an independent analysis.
Lord McIntosh of Haringey: My Lords, I should have thought that there had been a plethora of statements on the pros and cons of our joining the European currency. The noble Lord, Lord Peyton, asked me whether the Government would arrange for a non-partisan view. Surely, by definition, a non-partisan view arises from the general quality and standard of public debate. It is not for the Government either to take over such a debate or to attempt to suppress it.

Business
3.7 p.m.
Lord Carter: My Lords, at a convenient moment after 4.30 p.m., my noble friend Lord Williams of Mostyn will, with the leave of the House, repeat a Statement that is being made in another place on the freedom of information draft Bill.

Road Traffic (Vehicle Testing) Bill
Brought from the Commons; read a first time, and to be printed.

Draft Local Government (Functions and Standards) Bill
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That this House do concur with the Commons in their message of 21st May that it is expedient that a Joint Committee of Lords and Commons be appointed to consider the draft Local Government (Functions and Standards) Bill published in the Command Paper entitled Local Leadership, Local Choice (Cm 4298), and that the committee should report by 31st July 1999.—(Baroness Jay of Paddington.)
On Question, Motion agreed to.

Rating (Valuation) Bill
Lord Carter: 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 Rating (Valuation) Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Read a third time, and passed.

Northern Ireland (Location of Victims' Remains) Bill
3.10 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs): My Lords,
I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Dubs.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 agreed to.
Clause 2 [The Commission]:
Viscount Cranborne Viscount Cranborne moved Amendment No. 1:
Page 2, line 30, after ("effect") insert ("either—

(a) at the end of 30th June 1999 unless, before that day, relevant information has been provided to the Commission which has led to the location of remains to which the information relates, or

(b) if the information mentioned in paragraph (a) has been provided,")

The noble Viscount said: At Second Reading I made clear how much I disliked what the Bill does and the reasons for it. Therefore, I shall not repeat those arguments. As the noble Baroness the Leader of the House is wont to remind us on such occasions, we are in Committee and should therefore make Committee stage speeches.
Suffice it to say that I feel strongly that the Bill before us is one in which the Government are enabling the Provisional IRA to take advantage of the compassion we all feel for the families of the disappeared. As we know, those families have suffered the tragedy of knowing that their loved ones have been murdered under the most distressing circumstances possible. The failure of the murderers even to tell the families where the bodies are buried has ensured that an open wound has remained open—in some cases, for many years. No one, on either side of the debate today, would yield to the Government for a second in the compassion and feeling that all of us have for those families.
My amendment puts a deadline on the effect of the Bill—I have suggested 30th June this year. I am sure that Members of the Committee will be aware that it is no coincidence that I have chosen that date. It is one which the right honourable gentleman the Prime Minister suggested is the deadline by which the Good Friday agreement should become operative. At Second Reading, the Minister made it clear, in his as ever courteous speech, that as far as the Government are concerned, this is very much a confidence-building measure. If the Bill is to become law, now is a good time for confidence to be built on both sides. If we have that deadline of 30th June, it seems appropriate that it should also be a deadline for other matters.
We should remind ourselves that it is the Provisional IRA which asks for the immunities the Bill grants. In exchange for the immunities which the Government of the Republic of Ireland and now our Government are in the process of granting, the Provisional IRA has given no guarantees that it will provide information which will close the open wounds in the hearts of the families concerned. If it fails to do that, I suggest that it is doing no more than acting in character.
In another context, the peace process raised hopes and aspirations among all of us. I refer not only to those in the Province where people have suffered far more than we on this side of the water as a result of the activities of terrorists from both traditions, but to those over here. Such hopes were based on the unequivocal—a word much used in the context of the negotiations—cessation

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of violence. Those of us who have taken an interest in Northern Irish matters for many years have been looking for such an unequivocal cessation, above all from the terrorist organisations on both sides which have been responsible for the tragedy of the past 30 years. What do we get? Weasel words which try to imply that the terrorist organisations, notably Sinn Fein/IRA but also terrorist organisations on the other side, are in favour of peace. They want to deliver peace. Nevertheless, they never go quite as far as saying that they have given up the armalite wholly in favour of the ballot box.
That is the cruellest deception of all. Many of us believe that the real pre-requisite for a return to parliamentary government in the Province is that people should give up the weapons which they hold like a sword of Damocles over the rest of us. That has been proven in other contexts and conflicts to be the pre-requisite for a return to parliamentary government. Nevertheless, the organisations concerned still refuse to give the unequivocal undertaking for which we have asked and which seems to be the minimum they should give before being able to take part in what seems to us to be everyday political activity.
In the context of the surrender of weapons, we are treated to phrases by terrorists given to their own supporters such as, "We haven't gone away, you know". That is just to remind us that unless the governments do what they are asked, they will go back to bombing. Exactly the same case applies in the Bill. I fear, beyond anything else, that the families of the disappeared, who have suffered so much in the past few decades, will find, just like the rest of us in a broader context, that their hopes have been raised and nothing has been done to provide the information under the immunities granted by the Bill. The terrorist organisations will be stringing us along and stringing governments along, asking yet again for more concessions; for us to take yet another step for peace in a way with which we have all become so tragically familiar. We have become hooked on making concessions so that we should not be accused by the very perpetrators of violence of being against peace. That is the ultimate obscenity. I fear that the Government are laying themselves open in this most sensitive and difficult of areas—particularly so for the families concerned—to finding themselves in a similar position.
It has been made plain during the past few weeks that the information to which the Bill refers is available. The Provisional IRA, in particular, has made plain that it has spent a large part of the past few years gathering information so that it is in a position to deliver it. Whether or not that is true, I do not know. I cannot help feeling that if it is as compassionate as it says it is, it would not have waited for immunity before giving the information.
However, let us just go along with it for a moment and allow that terrorist organisations need that protection. In that case, if they have the information and the Bill gives the protection that they say they need, they will need very little in the way of time to submit it and for the families to be able to know that they can bury their disappeared in graves they can visit and honour.
This amendment in no way contains an extreme request. In fact, it is a request which astonishes me in its moderation. The very least that we can ask is that we have some kind of assurance that if once again we are let down by the Provisional IRA for sticking our necks out when they have refused yet again to stick out theirs, we will know that they will not have the ability to string us along beyond 30th June, asking for more and more concessions in exchange for keeping alive the hope of the victims' families that they will be able to bury their loved ones.
I am sorry that the Government did not feel, during the course of their negotiations, that they should impose a time limit; I am sorry that another place did not feel during the course of its consideration of this Bill that it ought to impose a time limit, for the reasons that I have attempted to give the Committee this afternoon. It is fortunate that at least Members of this Committee will have the opportunity to consider the question of a time limit. I hope that, if the Minister is not able to meet me on this modest request, the Committee will at least allow me to take the opinion of the Chamber on a matter which, above anything else, is one of common decency. I beg to move.
Lord Molyneaux of Killead: As the noble Viscount so ably explained to the Committee, his amendment specifies a period of approximately one month before the Bill ceases to have effect. My amendment proposes a slightly longer period of three months. However, in the light of representations that I received over the weekend, and in view of the case made by the noble Viscount, I have come to the decision not to press my amendment.
Emerging information indicates that, as a result of secret, detailed negotiations between the IRA on the one hand and the MI6 successor to the agent formerly known as "the mountain climber" on the other, agreed arrangements are already in place. They were in place before this Chamber and the other place began deliberations on this Bill. Just as in the case of earlier legislation—for example, the prisoners' release Bill—the bargains have been struck with the terrorists in great detail. That explains why your Lordships were not permitted to carry even modest amendments to any of the long chain of Northern Ireland Bills which have come before this House over the past 18 months. Each and every Bill was set in stone.
We were told by the Minister—I never envied him his role—that it was not possible to substitute, for example, the word "may" for "shall" because it would do violence to the much-heralded Belfast agreement and the confidence-building measures in Northern Ireland. As the noble Viscount said, they are confidence-building measures designed to assist terrorists and disadvantage the law-abiding people of Northern Ireland, whatever their political views or their outlooks.
Given that the bargain has been struck with the terrorists, the sole function of your Lordships is now to seal the deal. There is therefore no need to delay the conclusion of the deal. It can begin immediately Royal Assent is given and in the unfortunate event of t hi s Committee approving the situation as it stands in the

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Bill, accepting the time limit of four weeks will be more than sufficient. It will have the all-important effect of shortening the period of agonising being suffered by the unfortunate families.
The Chairman of Committees (Lord Boston of Faversham): As Amendment No. 2 is also being spoken to, I must point out to the Committee that if Amendment No. 2 is agreed to, I cannot call Amendment No. 3.
Lord Vivian: I apologise to the Committee for not attending the Second Reading of this Bill; it was impossible for me to do so. However, I have read the report of the debate carefully and, though I have sympathy with the bereaved families, I agree completely with many noble Lords that this is a repugnant Bill of appeasement giving amnesty to Sinn Fein/IRA murderers.
I support this amendment because it applies pressure to the IRA and should force the murderers to show that by 30th June they genuinely wish to reveal the locations of the victims that they have executed. I do not agree with the Minister and his reasons for not imposing a time limit for the disclosure of information. This amendment overcomes his arguments. If this amendment is put to a Division, I shall vote for it.
Lord Chalfont: As the noble Viscount, Lord Cranborne, said in his typically moderate and thoughtful speech in moving this amendment, we must avoid making Second Reading speeches at this stage. I find it difficult to do so because, at Second Reading, one thing struck me very forcibly, and it was this. On nine separate occasions in the Second Reading debate this Bill was referred to with revulsion and contempt. The kind of words that were used were "shoddy", "odious", "offensive", "cynical", "sordid", "disgusting", "obscene" and, finally, "an insult to Parliament". Legislation which attracts that type of language is not run-of-the-mill legislation. It is something at which we must look much more closely.
However, we gave the Bill its Second Reading and must go on from there. Perhaps I might mention my reasons for intervening in this debate at this stage. My main reason is that for the greater part of my active life since the war I have been, in one guise or another, engaged in counter-terrorist operations. I fought terrorism in the Middle East, Africa, Malaya and in Cyprus as well as in Northern Ireland. I learnt many lessons in those operations, but the most important lesson I learnt, and I learnt it on almost every occasion, was that it is almost always a mistake to bargain with or make concessions to terrorists. All we will get in response are demands for more concessions, time wasted and a cynical and almost contemptuous attitude coming from the other side.
It is no good asking terrorists who set about this kind of operation for political ends to compromise. As the noble Viscount, Lord Cranborne, said in the Second Reading debate, the object of terrorism is to terrorise, not to compromise. I am sure nobody in this Chamber
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accepts that puerile, school-debating society line of thought which says that one man's terrorist is another man's freedom fighter. That is rubbish and we should all recognise it as such. Freedom fighters do not murder, mutilate, maim and torture. Terrorists do, and then they have the insolence to speak of execution and interrogation instead of murder and torture.
That is the reason I support this amendment. As the noble Lord, Lord Glentoran, said at Second Reading: six months is more than long enough for them to deliver what we must take as their promises. It is much more than long enough. The information which they need to supply to fulfil their side of the bargain is already available, and there is no reason why there should be any great delay.
As the noble Viscount, Lord Cranborne, stated, whether one describes the Bill as odious, shoddy, cynical or whatever else one might like to call it, there should be a deadline to force these people to deliver on their promises; otherwise, as they might say, "The deal is off'. There are no guarantees yet. The hopes of the families have been raised, in a cynical and cruel way, and unless we are prepared to set a deadline the Provisional IRA will have every reason to prolong matters. It has no sympathy with the families. This is not a gesture of humanity or compassion; it is something which it thinks is in its own interests. We must ensure that it is not in its interests.
I support the amendment very strongly. If the occasion arises and the noble Viscount goes in to the Division Lobby, I shall certainly be with him.
3.30 p.m.
Lord Fitt: Over the past few months noble Lords will have been aware of protest meetings that have taken place in relation to the General Pinochet case. One of the banners that I saw every time I left this House read, "Justice for the Disappeared". Whatever the arguments that relate to the situation in Chile, I had no idea then that we would be standing in this House, talking about the "disappeared" much nearer to home.
People who have voted for me at successive elections have been taken out of their homes and been brutally and viciously murdered and then buried by their murderers. The Bill contains no justice for the disappeared of Northern Ireland.
The noble Lord, Lord Chalfont, quoted what was said at Second Reading in the other place and in this House. I stated on that occasion that it was very difficult to find words in the English language adequately to convey my detestation of this legislation. This is not democratic legislation. We are flouting every concept of law and democracy in these islands by making this further appeasing concession to the most brutal murderers that I have seen in my lifetime in Northern Ireland.
The noble Lord, Lord Hylton, has made repeated eccentric forays into Northern Ireland. He continually writes letters to all and sundry in Northern Ireland; in fact, he has written more letters than St. Paul. I did not hear the conclusion of his remarks because whenever he starts to make eccentric speeches in relation to Northern Ireland I switch off because I have heard them all over

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many years. The next day I saw in Hansard that the noble Lord, Lord Hylton had said in his concluding remarks:
"There is perhaps a certain degree of self-indulgence among those speakers who have denounced the outrages and violence of the IRA and other terrorist bodies from the safety of this House".—[Official Report, 18/5/99; col. 181.]
To whom was he referring? Was he referring to me? I have been harassed by the IRA. My home was burned. I had to have police protection over many, many years, because I denounced violence, not from this House but from where I was living on the Antrim Road in Belfast.
The majority of noble Lords from Northern Ireland who have spoken from this side of the House go home at the weekends. They live in Northern Ireland. They too denounced violence at Second Reading. I do not think they were doing so through any form of self-indulgence. They were speaking with the authority of their former constituents and of their experiences in Northern Ireland.
I go to Northern Ireland at weekends. I do not rest when I go there: I talk to people and go to their homes. They come to my home, and I talk to people on the telephone. The only people who are opposed to the Bill, and the only people who are opposed to the amendment, are those who are in association with terrorists. They are the people who have continuously terrorised people over the past 30 years. They will continue to do so with the help of the Government through the Bill.
In the other place, Dr. Norman Godman, in an intervention during a speech made by Douglas Hogg, said:
"The right hon. and learned Gentleman claims that the clause offers an amnesty for killers. A friend in Northern Ireland suggested to me that that was an unintentional consequence of the clause".—[Official Report, Commons, 12/5/99; col. 349.]
How can there be an "unintentional consequence" of a clause which grants amnesty to murderers in Northern Ireland?
I know that the Government are embarrassed by the Bill. I have carefully read the speeches made in the other place, and I can see that their hearts are not in the Bill. If that is so, why did they engage in some back-street dealing with people from the IRA? It was said that they had to act through intermediaries before they thought of drafting the Bill in conjunction with the Government of the Republic of Ireland and bringing it before this House.
Who were the intermediaries? Who made the first contact? Who discussed with the intermediaries what the intermediaries had said to the Provisional IRA? Did the Government consider the dreadful consequences of the Bill before bringing it before this democratic Parliament?
The Government can give only one answer. I resent it bitterly when any member of the Government, either in the other place or here, asks me what I would do. That is throwing down the gauntlet; it is saying to me that I do not want these bodies returned; that I am taking steps which will prevent the IRA identifying where the bodies are buried. In Belfast there are rumours that part of the M.1 is being dug up by contractors, supported by the police, because a body may be found there.
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What is to prevent the IRA saying, "There is Loch Neagh and there are bodies down there"? There is no guarantee that the IRA will at any time tell us where those bodies are. There is no guarantee that if the location of a body is given it will be the body the relatives are looking for. Why is there a restriction on autopsies and the post mortem examinations of those bodies? The whole thing is absolutely sickening and flies in the face of every decent concept that has ever been debated by noble Lords in relation to Northern Ireland.
I am certain that there are many noble Lords on both sides of the Committee who agree with the amendment moved by the noble Viscount, Lord Cranborne—not because it has been spoken to by the noble Viscount or myself or others, but because they have read the reports and studied the Bill; they have analysed what it means and its consequences. They then have to make up their minds whether or not to support the amendment.
The noble Viscount, Lord Cranborne, is a member of the Conservative Party. Both he and his ancestors have not been very helpful in matters concerning Northern Ireland or the island of Ireland. But I find no difficulty in associating myself with this amendment. Someone telephoned me this morning from Belfast. I said that the reason why the 30th June has been put into the amendment is due to the Prime Minister in another place. He is lecturing the elected representatives, for whom people went to the polling stations to vote, and telling them that they must find agreement by 30th June; otherwise, a threat of some description is there. If he can say that to the elected representatives, why cannot he and the Taoiseach in the Republic go to the intermediaries, or the IRA, and say, "We have set a date for 30th June. We think that those bodies should be returned by that date"?
The IRA has already stated in its own words that it knows where these bodies are buried and that it is prepared to say where they are buried provided—and this is the sickening thing—that we do not prosecute the people who murdered them and provided that we do not even look for their murderers. In other words, the IRA will give these bodies back but, in return, we are about to make one of the most disastrous concessions to this terrorist organisation that has ever been made in the history of this Parliament.
Lord Redesdale: During his speech the noble Lord, Lord Fitt, made an assertion that those who are opposed to this amendment and for the Bill are in some way appeasing terrorism or acting on behalf of a terrorist organisation. I am sure that that was not the noble Lord's intention, but that is the way that his words could be read in Hansard.
Lord Fitt: What I said then—and I repeat it now—is that those who are opposed to this Bill, not the amendment, have been accused of preventing the return of the bodies.
Lord Redesdale: I support the Bill. It would not be my intention to support terrorism in any shape or form. I realise that many noble Lords in this Chamber will

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have considerable difficulties with the Bill. The legislation makes challenging statements about real justice. However, the Bill is also about stopping some of the agony that has been suffered by the victims' families.
Many of us agree with the Government and support them. We actually believe the Government when they say that they are putting this forward as a humanitarian Bill. Indeed, the victims' bodies will not be found without it. However, I should like to challenge the idea of appeasement. Last Wednesday there was a meeting in the Committee corridor of Friends of Ireland, which Mr. Gerry Adams and Mr. Martin McGuinness attended. After the meeting I went and asked Mr. McGuinness when he thought that the IRA would actually give back the bodies. I did this not in any great expectation that he would come forward with any definite details, but to prove a point; namely, that questions will be asked of these organisations. People have accused the Government of falling into a naïve trap and have warned that games will be played—
Viscount Cranborne: I am most grateful to the noble Lord. As he was kind enough to favour Members of the Committee with an account of the question that he asked of Mr. McGuinness, it would be extremely interesting to many of us to know how it was answered.
Lord Redesdale: Of course, the answer Mr. McGuinness gave was that Sinn Fein is putting all its pressure on the IRA to come up with this information as quickly as possible
Noble Lords: Oh!
Lord Redesdale: Laughter may greet that reply, but, if games are played, it will be very difficult for Sinn Fein to answer the question that will be asked by its own communities. If a brown envelope is not given to the commission containing the names and the details of where the bodies are buried, what will be the reaction of noble Lords? Moreover, what will the communities in Northern Ireland think? It is a very dangerous game. It will be a public relations disaster for the terrorists if they do not come forward with this information.
The first amendment, which, I believe, the noble Viscount said he would vote on, stipulates the date of 30th June. I find that an unsettling date because there will be so much pressure on all the parties in Northern Ireland on that day that, if the amendment were to be carried, it would add just one more difficulty to those which already exist. On Second Reading, the Minister gave some of the reasons why a time limit is inappropriate for this Bill; indeed, such reasons were also given in another place. We on these Benches do not like the detail of the Bill, but we will support this Bill because the victims' families need to get these bodies back.
3.45 p.m.
Lord Blease: We have just heard what Members of this Chamber think about what is happening in Northern
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Ireland and what has happened over the years. I can tell Members of the Committee that there are many in Northern Ireland with bleeding hearts, suffering minds and suffering bodies. Noble Lords must believe me when I say that that does not reside only in this House.
The Bill has been welcomed in many areas of Northern Ireland. The Northern Ireland Memorial Fund made a full statement in this respect. Professor George Bain of Queens University, lawyers and representatives of the various clerical groups—and, indeed, a host of others—have said that the Northern Ireland victims' Act meets the situation. A grant of £4,000 out of the memorial fund has already been given to some of the persons involved. So it meets the approval of the vast majority of people who undertake community work and who know all about the suffering that is going on. In no way do those people help to support terrorism either by voice or by way of written material.
There is one other point that I should like to make. I should like to know how many noble Lords from this Chamber took part in the march yesterday in which something like 100,000 people marched to cemeteries to reiterate the need for a memorial for the dead in this respect. Indeed, one report in the Irish News this morning states that around 30,000 people turned out to attend a church service on a cold and wintry day at Miltown cemetery. Those people support this legislation, and the report says that the spokesmen of several of those organisations have said so. The people of Northern Ireland are those who have suffered. Many of them support this particular aspect of the Bill.
Perhaps I may explain where I support the noble Viscount, Lord Cranborne, in this respect. I think that a time limit should be stipulated. We should know in some way when this commission will be established. The machinery is already there. The Bill is about a commission and how it should operate. I feel that we ought to have some information about when the commission will be established. Under the terms, it is supposed to be set up within 12 months, but I think that an interim report should be made within six months as regards what has happened in that time.
This Bill is not intended to solve the terrorism and the problems of Northern Ireland; indeed, as far as I am aware it will take about 50 years to do so. I am someone of 85 years of age and I know all about the suffering that has gone on in this community. In no way will it be over in three or six months. It will take the people of Northern Ireland, and those who have been elected to represent them, a long time to get down to the business of looking after those who have suffered. I have in mind such matters as unemployment, medical and mental healthcare, and so on. The issue is certainly about the concern that justice should be done and that mercy should be shown to those who want to mourn their dead, just as people did yesterday. Let us look at the Bill in a sensible way and let it pass through its various stages, even if we do stipulate a timescale.
Baroness Strange: I should like briefly to express my support for my noble kinsman Lord Cranborne. I should also like to apologise to Members of the Committee for the fact that I did not speak on Second

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Reading, but I had not at that time consulted with my ladies of the War Widows Association in Northern Ireland to discover what they thought. I have now done so, and we all feel that the terrorists have been given enough, with no sign of anything back, neither bodies, nor information, nor weapons.
Some years ago an associate member told me, "I would give anything to know where the IRA has buried my son." Last week I asked, "Would you pay the terrorists to reveal your son's grave and return the remains to you?" She said, "Do you not think it is bad enough I have to run the risk of meeting the four released terrorists walking this small town every day of my life? I do not wish to have them paid bounty money for giving information about the whereabouts of the last resting place of sons and husbands."
it takes two to make a quarrel; it takes two to make a peace also. I should perhaps add that everyone I asked said that they would go along with anything the noble Lord, Lord Fitt, said. Well, so would I, and so I do.
Lord Mayhew of Twysden: It is worth reminding ourselves what this amendment—which I for my part support—will achieve. The noble Viscount, Lord Cranborne, described it as very moderate. I believe that we must all agree with that because it says in effect that the Bill shall cease to have effect unless before 30th June,
"relevant information has been provided … which has led to the location of remains".
The term "relevant information" is defined in Clause I of the Bill as,
"information as to the whereabouts of the remains of a victim".
Therefore this amendment asks only for information as to the remains of a single victim which will lead to its discovery to be made available to the commission. That is a moderate imposition upon the IRA and upon any other terrorist organisation to whom it may apply.
Further, we need to remind ourselves of the genesis of this Bill. As I understand it, some months ago the IRA declared that it knew the whereabouts of a number of the "disappeared." It indicated—if not expressly, by implication—that it needed some protection from prosecution if it was to make that information available. I do not think that it is unduly cynical to suppose that its motivation in this initiative was to rid itself of an embarrassment. Time and time again one has heard condemnation of the IRA on the grounds that it will not even afford the relatives of those whom it has murdered the basic satisfaction—if that is the word, but I do not think it is—of being able to give them a burial. I believe that that was an embarrassment and was seen to be a severe embarrassment to the IRA. It may well have played a major part in leading the IRA to take this initiative.
I speak as someone who listened to all but the closing stages of the Second Reading debate. I did not feel it proper to intervene in that debate because I was not able to be present for the reply to the debate. But had I done so, I would have supported the Government on the principle of this Bill. I would have done so with as heavy a heart as those of many who spoke from the
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other side of the Chamber. I would have supported them because I hold to the view, which I held during the time I carried responsibility for Northern Ireland and in particular for people's lives, that it was necessary to go several extra miles not in order to achieve a realistic possibility that all violence would thereafter be banished from Northern Ireland for political purposes—I do not believe, at any rate in the short or medium term, that that is a realistic possibility—but because the few who nonetheless resorted to violence would be condemned throughout the world and see their position considerably undermined. It might even have been a practical possibility—had our ability to impose internment not been removed in the course of this Parliament—to have internment on both sides of the Border. I would therefore have supported the Government. I believe that the humanitarian purpose they espouse is a worthy one. Although there would have been some gain to the IRA in the removal of that embarrassment, l thought that the balance justified, perhaps by a small margin, the principle of the Bill. Had I spoken to that effect, I believe I would have been alone—certainly on the Back Benches—among your Lordships who spoke.
As to the amendment, what is being asked to be provided? The organisations concerned are being asked to come forward with information in respect only of one victim. We know that the IRA has acknowledged that it knows the whereabouts of nine victims, possibly more. What is the practical difficulty? On the other hand, if the amendment takes effect and is not complied with, what will be the consequence? The consequence must be that reasonable and right thinking people everywhere throughout the world will say, "They are not genuine and they made this offer only for cynical, self-seeking reasons." Therefore notwithstanding that I continue to support the principle of the Bill, I believe that confidence-building measures may properly he called for from each side and that they should operate in each direction. It is therefore entirely consistent with support for the principle of the Bill that I also support the amendment.
Viscount Brookeborough: The noble and learned Lord, Lord Mayhew, touched on a subject that I wish Ito mention. The matter that galls so many of us in Northern Ireland—and, I suspect, here—is that the Bill as drafted is not so much a government Bill but has come about perhaps at the instigation of the IRA. That is why it contains conditions and that is why the IRA. was after appeasement. It is difficult for us to accept the terms and conditions of the appeasement, as it appears to us.
I support Amendments Nos. 1 and 2. As far as I am concerned, this is a matter of principle. Why should vie conform to an IRA timetable? We have conformed to an IRA timetable for the past 30 years. The IRA has dictated everything. The incidents that we are discussing have been committed by terrorists. I cannot think of a good reason for us to continue to conform to their timetable. If this Bill is to succeed—I may be one of the doubters in this respect—it must be implemented for the sake of the families concerned. The speedy resolution of the issue of the "disappeared" is all important. If, as we are told, PIRA now feels humanitarian responsibility

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for the families involved in this matter, it should have no objection to the imposition of a timetable. However, I question whether the IRA feels such humanitarian responsibility. I do not believe that is the case but let us see. Let us give the IRA a timetable. The IRA has provided nine names and perhaps the location of just one body. I am not fully aware of those details. Where are the rest of the names? We are not talking about dropping a notebook or throwing something over a hedge when getting away from a murder. We are talking about the practical problem of picking up a body, removing it, driving it to another place, digging a hole, covering it over so that nobody will find it, and the terrorists burning their own clothes so that they can provide no forensic evidence. All that does not happen in two minutes flat.
People are pretending that perhaps PIRA cannot remember where it put the bodies. That is inconceivable and ridiculous. What about the other bodies without the time-scale in the Bill? Will they drip-feed names and locations, each time gaining more appeasement? If the Bill goes through, we can give real protection to the families by inserting a time limit, so that we achieve that which the Government aim to achieve. I am sure that relatives in Northern Ireland will be eternally grateful to us for doing that.
If the terrorists' memories are failing, what will waiting longer and having an open-ended, year-on-year arrangement without a time limit achieve? I suggest that their memories will not improve.
An indication of what might happen appeared in an article in a Northern Ireland paper last Wednesday, headlined, "French dig fails to find remains". It was INLA who said where the remains of a body were to be found in France, yet it was not found. So the quicker that we get on with this, the better. If it is to be, let us have a time limit now.
4 p.m.
Lord Shepherd: I rise to sound a warning note. It is many years since I was involved in Northern Ireland affairs, but like all noble Lords I have watched with great anxiety and horror the events of the many years since a Labour government—remember that, a Labour government—put soldiers into Northern Ireland. Ironically, if my memory is correct, that was done to protect the Catholics from the Protestants. The British forces have paid a very heavy price there.
Like many noble Lords, I have been heartened by the great progress that has been made in Northern Ireland in recent months. Like affairs in many other parts of the world, there is no easy or quick solution, but one has a feeling that, slowly but progressively, advances are being made. Perhaps the most significant among them has been the general welcome throughout the Northern Ireland community for what has been achieved by the British Government, British Parliament, Irish Government and Irish Parliament.
Like the noble and learned Lord, Lord Mayhew, I support the Government with this Bill. I do not like it, but this is not the first time that I have been confronted
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with something in a Bill that I do not like. However, if the motive has been accepted and that is the judgment of the Government, I will go along with it.
I have no criticism of noble Lords who moved the amendment and support it, but I wonder how it will be seen in Northern Ireland if the Committee has its way, as I suspect it might, if inevitably we are led into a Division. That could only send one message—that we are divided on what is seen as an important gesture. Nobody would suggest that the Government have acted other than in the best interests of the women and families who have lost their loved ones. However. suppose that the Committee passes the amendment. Do your Lordships really believe that the Government would accept it in another place? Do your Lordships believe that the Government, with their majority, would allow such an amendment to remain in the Bill? If that happens, what are your Lordships going to do? I suspect that you would use the wise judgment of this House over many years—that if the other place makes a judgment on anything that we may have done, we accept it. Therefore, the Bill will be as it has come to the Committee now, without the amendment. I hope that your Lordships will take my view that, as a result, damage will have been done in Northern Ireland.
I ask the Committee whether it is worth the candle. Is it really worth the risk? This House has expressed its views sufficiently to know that most of us acknowledge that the Government are acting to the best of their abilities for a small group of people. We do not wish to do damage—certainly not to a Bill that is connected with Northern Ireland. I hope that the noble Viscount, Lord Cranborne, will give close thought to the potential damage that would be done if his amendment secured a majority in the Committee this evening. I ask him whether it would be worth it.
Lord Glentoran: With the greatest respect to the noble Lord, Lord Shepherd, the decision to bring the British Army into Northern Ireland in support of the police and the Roman Catholics on that dreadful day was one of the worst that they made. It led to Bloody Sunday, when the soldiers did not know which way to face. Those same soldiers will be paying the price again because of another bad decision by the present Labour Party.
Back to today's Bill. I spoke my mind clearly on Second Reading. I did not like the Bill for all the reasons that many noble Lords have stated. I said that our role in this House is to do our best to improve government legislation, and today's debate is in the process of doing that. Having been cynical about the Government's motive for introducing the Bill in the first place, and having accepted the Minister's word that it is nothing but sincere and helpful, I sincerely believe that the Bill will become really useful to the families of those victims only if it has a time limit.
My Amendment No. 3 will probably fall, so I am speaking now. I felt that six months was a practical time to set up the commission, run the show for a while and see whether our cynicism was justified and the IRA were going to play true to form. The noble Viscount, Lord Cranborne, has introduced an amendment

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supported by others that calls for a determination date of 30th June. I have no problem with that. I believe that can still be achieved and that the IRA., if really pressed, can deliver what is required to meet that deadline.
I am saying now to the Government, "You've said that you are sincere. You've said that this Bill is directed at the welfare of the families. You've intimated by that that the Bill is not politically motivated." I say to them, "Be on your mettle; do not again give way to the IRA; have the courage of your convictions; set the deadline and let us see what is delivered".
Lord Tebbit: I, too, should express my regrets that I was not here last week for the Second Reading of the Bill. I was abroad and unable to get back. Had I been here, the list of pejorative adjectives from the speech today of the noble Lord, Lord Chalfont, would have been rather longer and perhaps somewhat more harsh.
There is no doubt whatsoever that the amendment should be approved. The idea that your Lordships should not enact an amendment to a Brill merely because it is possible or likely that the other place might vote it down is one of the more extraordinary constitutional theories. After all, we know that this assembly will be made into a poodle before very long, but we are not yet a poodle which has not even got the guts to bark. That was a most extraordinary argument.
If the Bill goes through, it is right that the IRA should be given a window of opportunity—and it should know when that window will close; otherwise it will string it out: there will be another concession or two, something more that it will want, and something more that it will get. In the meantime, the families of the victims—we all understand their feelings and have the greatest sympathy for them—will, like this place, like Her Majesty's Government, be strung along once again by the IRA. If the IRA was not interested in stringing us along, we would have seen a surrender of arms by now. We have seen no evidence of any willingness. Indeed, we are told constantly by the IRA and its representatives that it has no intention of giving up any arms, only the intention of stringing us along.
The worst thing about the Bill is, of course, that it is a demonstration of the power of the IRA to extract concessions from the Government. That demonstration of power will be heeded in Northern Ireland. People will be once again reminded of who is in charge of the so-called "peace process"—not Her Majesty's Ministers, but the friends of Mr. Adams and Mr. McGuinness.
The noble Lord, Lord Fitt, implied—I am not sure whether he meant to say it—that he believed that perhaps it was even more important that murderers were convicted of their crimes than that the bodies of their victims should be recovered. That is a perfectly plausible proposition. It would not be thought extraordinary by anyone—unless it was made in the context of Northern Ireland. It is only in that context that it is believed it is more important in the interests of justice and peace that the remains of a murder victim should be recovered than that his murderer should be brought to justice.
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Like the noble Lord, Lord Fitt, when I read the report of the Second Reading debate, I noticed how often the critics of the Bill were asked "Well, what would you do?" It is perfectly simple. The matter could have arisen during the talks which became the Belfast agreement. It could perfectly well have been signalled to the IRA that, as it has owned up to knowing where the remains are, there would be a slow-down in the release from gaol of criminal terrorists unless it revealed where the remains were. But, of course, at every stage the Government have thrown away or given to the IRA every bargaining lever they possessed.
The amendment would give back to those who believe in justice, as opposed to those who believe in murder, the smallest degree of power, influence and bargaining strength.
4.15 p.m.
Viscount Slim: Having reflected since our previous debate on the matter—the noble Lord, Lord Tebbit, has said what I was about to say—I believe that the Bill will be only the start of concessions. I do not go along with a number of noble Lords who have said that if the terrorists do not deliver they will lose face and be embarrassed. In my experience, terrorists never get embarrassed; terrorists use failure with great cunning and great viciousness and throw it back at democracy. I often wonder how much more punishment democracy has to take. A terrorist displays great cheek and viciousness when he has been slightly or completely wrong-footed. We can expect no niceties or anything like that if terrorists do not deliver one body, all the bodies, or even information about the bodies.
There are many great lawyers in your Lordships' House. I am not a lawyer, but I do not see that the Government have the power to break our hard rules on criminal and terrorist investigation—such as forensic examination and DNA profiling—and suddenly to exempt terrorists from such investigation. Will the Government exempt other criminals next?
I find that the Bill is unsuitable. I am only slightly heartened by the speech of the noble Viscount. I consider his amendment to be a wise, sensible and moderate one, as many noble Lords have said, and I support it. However, I find it difficult still to support the Bill.
Lord Monson: As my name is to Amendment No. 3, perhaps I may say a brief word about it and the other two amendments in the group. In order to forestall any claims to the contrary, I should say, first, that none of the amendments in any way contravenes the Good Friday agreement. Secondly, if the terrorist organisations are sincere in their resolve to reveal the location of their victims' bodies, it is not necessary that the Act should remain operative for more than six months at the most. If, on the other hand, the terrorist organisations are insincere, it is not justifiable that the Act should remain operative for more than six months. Surely the noble Lords, Lord Redesdale and Lord Shepherd, would concede that point.

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In theory, Amendment No. 1 is perhaps preferable to Amendment No. 3. Whether it is preferable in practice, I am not quite so sure; possibly the time-scale is fractionally tight. However, if the noble Viscount, Lord Cranborne, decides to press his amendment to a Division, I shall certainly follow him into the Division Lobby.
Baroness Park of Monmouth: I expressed my abhorrence of the Bill at Second Reading and I do not propose to do so again, especially as I have three amendments down for debate later. However, I strongly support Amendment No. 1 because I believe that the IRA has the information. It started thinking about this in 1997. It said in September 1998 that it already had a great deal of information and was setting up a unit to get more. So there is little doubt that it has the information. Therefore, I see no reason why we should not set a time limit and force it to come to the point. I shall support the amendment if there is a Division.
Lord Cooke of Islandreagh: It is very difficult for those of us born and brought up in Northern Ireland to express or to explain to others just how strongly we feel about the Bill, although the noble Lord, Lord Fitt, made a very good attempt. I am not sufficiently articulate to improve on what he said. The noble Viscount, Lord Brookeborough, has suddenly eased my mind. I now understand why I feel so strongly about it. This is an IRA Bill. This is not a government Bill. I have no doubt that it was the IRA's demand on the Government to have these concessions, a most dreadful thing to consider, as so well expressed by the noble Viscount, Lord Slim.
No matter how hard we try, I doubt that we shall reject the Bill. It will go through. However, if it is to go through, this period should be over in the shortest possible time. What are we talking about? The IRA says that it knows the location of the remains of nine people. How long would it take to hand over that information? One day. If it knows, why cannot this be done in one day? If we allow until 30th June, that is more than enough time. I strongly support the amendment.
Lord Craig of Radley: I support the amendment in the name of the noble Viscount, Lord Cranborne. When I originally saw Amendments Nos. 1, 2 and 3 I wondered whether 30th June was pushing too hard on a door. I was not able to take part at Second Reading but I share the distaste and discomfort which many noble Lords feel about the Bill. When it came to thinking about the date I was very much persuaded by what the noble Lord, Lord Fitt, said in relation to the use of 30th June by the Prime Minister with regard to putting a deadline to discussions that are now going on. If the Government are prepared to put a deadline of that nature to elected Members of the Northern Ireland Assembly, there is every good reason why the Government should not balk at putting a deadline on the Bill. The Bill lacks that more than anything else. It lacks a good many other things, but not to have a deadline leaves the people who could string along the victims'
656
relatives at every opportunity to continue to do so. If I had been writing a last will and testament—there are a number in this House and in another place who could well have been victims—I would certainly have been concerned about my family. However, I would have been very concerned not to give those who had murdered, abused and tortured any chance of getting off without having a very tight deadline. I support the amendment.
Earl Attlee: I am grateful to my noble friend Lord Cranborne for introducing the amendment so ably supported by the noble Lords, Lord Molyneaux and Lord Fitt, and others. I listened with interest to the speech of the noble Lord, Lord Shepherd. However, as many noble Lords will agree, we in this House are quite entitled to give our considered view on any Bill except a money Bill. Huge majorities do not necessarily equate to great wisdom or even to considered decisions.
As the noble and gallant Lord, Lord Craig, said, 30th June is a rather steep test. I wish I could speak to relatives tomorrow and say, "We have passed an amendment that will let you know where you stand by 30th June." But perhaps 12 weeks might be more appropriate. The point is that we want to see the legislation working. We want to see results. The critical point is that terrorists either have the information that they are ready to give to the commission or they do not. That information could be handed over almost on the day the commission is up and running. If we obtain information on the nine, it would be appropriate to let the Bill run on to cover the possibility that more victims may be located.
Amendment No. 1 meets the Minister's likely criticism of Amendment No. 2. Amendment No. 2 would preclude the location of future remains. All the amendments meet the need of avoiding relatives and families being strung along. If the Minister is minded to accept an amendment in this group, I would suggest that Amendment No. 1 is the best one. Amendment No. 2 has the advantage that no action will be required. Clause 2 and the commission will be extinguished automatically without the need to involve Parliament again. There would be no difficult decision for the Minister to make or for Parliament to make.
My noble friend Lord Glentoran and the noble Lord, Lord Monson, spoke to Amendment No. 3. It has the advantage that the Government cannot be strung along and be forced into extending Clause 2 by order when it is said at that time that information is just about to be released to the commission. We have only to consider how often we have to extend the Northern Ireland decommissioning order to know that that is the case. Unfortunately, I have to work from the position that I assume the Minister has information or intelligence that leads him to believe that the Bill will work as drafted. I believe that to be unlikely. However, if the amendment is taken to a vote, I shall abstain because interference with the Bill may make it unworkable and could be a self-fulfilling prophesy.
I echo the question put by the noble Lord, Lord Blease, regarding timescales. When does the Minister expect the commission to be up and running? Does he

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see any merit in early reports from the commission—say, at three and six months—in addition to the 12 months provided for in the agreement?
Lord Dubs: In the course of this debate a number of your Lordships made points about the general principles underlying the Bill. Although I do not want to trespass for more than a minute or two on the time of the Committee in dealing with those points, I feel it would be discourteous if I were to ignore them altogether. It might also seem that the Government did not wish to rebut some of the points that were made.
The Government have one single motive for bringing forward the Bill—and that is to lessen the pain and agony of those families whose loved ones have been murdered and whose bodies have never been found. That is our sole and single motive on the Bill. The origins of the Bill lie not in any demands or threats from the IRA or any other paramilitary organisation. The origins of the Bill lie in the pain and agony of the families and their constant requests over many years that the bodies of their loved ones should be identified and revealed. Indeed, I remember it was nearly two years ago that my noble friend Lord Fitt made an impassioned speech to this House, stressing how important it was for something to be done to help the families concerned find the remains of their loved ones. I am sure it was not the first time that my noble—
4.30 p.m.
Viscount Brookeborough: I thank the Minister for giving way. He said that the only reason for the Bill was a humanitarian one for the families. I accept what he says. However, he may remember that at Second Reading I pointed out that there had been a newspaper article to the effect that the revelation came after the IRA leadership announced that it would not reveal the location of the secret graves unless it received an amnesty. I am not arguing about the word "amnesty", but it was clear that it wanted immunity in return for the information about the graves. That was the only reason for the Bill. If it solely wished to come forward with the information, and if it was not after immunity, it could do so without a Bill. Why is the Bill here? The Bill is all about what it gets out of it. If I may refer to col. 189—
Noble Lords: Oh!
Lord Shepherd: The noble Viscount has intervened, and I think it is the custom that when a noble Lord is making a point he makes it briefly. Noble Lords should not seek to argue with the Minister or with anybody else.
Lord Dubs: I am most grateful. I was simply trying to make clear why the Government had brought the Bill forward, and the motive is to lessen the pain and agony of the families. It is perfectly clear that the IRA indicated—it was not done directly to the Government—that it would be prepared to reveal information about the nine bodies if through that process the individuals bringing that information
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forward would not be incriminated in terms of any evidence that would be there on the bodies or associated with the bodies.
There is no question of the perpetrators of these crimes being granted immunity from prosecution. It is simply in relation to one piece of evidence—evidence that will be found as a result of information indicating where the bodies were. That evidence, and only that evidence, could not be used as a basis for prosecution. Any other evidence that might be forthcoming would result in charges being brought and therefore prosecutions following. That is the origin of the Bill and it was the pressure, and the very vocal pressure, from the families which made everybody realise just how much those families were suffering, and that is why the Bill was brought forward—
Viscount Cranborne: I am extremely grateful to the noble Lord for giving way. I ask him this: what is it that is so different about the victims of IRA terrorism whose bodies have not been recovered and the victims of other criminal acts, as was mentioned by the noble Viscount, Lord Brookeborough, at Second Reading? There was the murder of Suzy Lamplugh. What is so different about Irish "disappeared" from English "disappeared"?
Lord Dubs: What is different is that. tragically there happen to be a rather large number of people in Northern Ireland who are grieving for their loved ones whose bodies have disappeared and have never been found. It is the scale of what has happened in Northern Ireland and the expressed wishes of the families that they should be helped in finding the bodies. That is what is different about Northern Ireland. That is not to say for one moment that I wish to suggest that the families of other people whose loved ones have disappeared are not also suffering. But the noble Viscount asked me a particular question, and that is the answer.
The noble and learned Lord, Lord Mayhew., put it clearly when he said that the IRA wished to rid itself of an embarrassment—an embarrassment which was manifest throughout Northern Ireland. One has only to read the newspapers, as I am sure your Lordships will have done, and listen to what was going on to see how much concern there was on the part of those families. And of course there are many more than nine. Nine was the number which the IRA came forward with in a statement, and two of those had not previously been recognised as being among the "disappeared". There may still be others.
One of your Lordships juxtaposed the importance of finding murderers and the importance of finding the bodies of those they had murdered. This was put to the House as an alternative. I do not believe it ought to be an alternative. However, if any prosecutions follow and if the evidence is there, we want to find and prosecute the people who have committed these murders, but not on the evidence that may be forthcoming as a result of this Bill. We are not in any way saying one is instead of the other: we are saying that both are important, and I have indicated how that might happen—
Lord Tebbit: I thank the Minister for giving way. But what he has said is quite extraordinary. Indeed. he said

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one or two extraordinary things. One is that if you murder enough people and conceal their remains you can bargain with the Government. I venture to suggest that in the past 30 years a good many people have been murdered in Great Britain and their remains have not been found—and now the Minister suggests once again that he is holding a balance between conviction and recovery of the bodies. Indeed, he says that if the bodies can be recovered he is willing to forgo forensic information which might lead to conviction. The noble Lord nods his head: the argument is complete.
Lord Dubs: The noble Lord simply quotes what is in the Bill. We shall be coming on to forensic evidence later, but in terms of the principle, yes: because if we did not do that it would be most unlikely that the bodies would ever be found. That is the thinking behind the Bill. The motive is a humanitarian one.
I shall now continue with specific points on the amendment. I have made these remarks because of the general arguments that were put forward earlier. Clause 2 makes provision for the commission to remain in being until the Secretary of State, after consulting the Minister for Justice, Equality and Law Reform of the Government of Ireland, makes an order appointing the day on which it should cease to have effect. The amendments seek to put some limits on the life of the commission: one month, four months, six months or a period to be determined by Parliament. That would mean that in one, four or six months' time, or at a date chosen by Parliament, the commission would no longer have a basis in domestic law. It would, however, continue to exist as an international body by virtue of the British/Irish agreement signed on 27th April and would still be underpinned by legislation in the Republic. However, it would be deprived of the provisions of the United Kingdom legislation relating to its status as a body corporate, the immunities which it would require and the financial provision for the Secretary of State.
This would create an anomaly and it is for this reason that the provision in Clause 2(1)(6) has been made: to enable action on winding up the commission to be taken in conjunction with the Irish Government, ensuring an agreed and co-ordinated approach to ending the existence of the commission in both jurisdictions. I can appreciate the desire for the commission to have a limited lifespan. I would clearly hope that information about the "disappeared" will come forward quickly, but I do not believe it would be helpful to set deadlines.
I very much hope that the commission will receive information before 30th June but, if it does not, I do not want to slam the door by closing down the commission. That would be seen by the families as the end of their last piece of hope to get information about their loved ones. I believe that we owe it to them to keep open the prospect of news for rather longer. Further, as drafted, the amendment would require the commission to be disbanded on 30th June, even if it had received information but no remains had been discovered by that date because the search was still under way. Clearly, that
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would be unreasonable. I suggest that the effective deadline would be several days before 30th June if this amendment were passed by the Committee.
A further point in considering deadlines is that we need to have regard to the range of cases with which we may be dealing. There is another issue. So far the debate has centred on bodies the whereabouts of which may be known to the IRA. But there are other paramilitary organisations: the INLA and others on the Republican side and a number on the Loyalist side. We are not dealing simply with bodies that have been buried or hidden by one organisation; there may be others. That is another reason why I believe that a tight deadline may make it unduly difficult for the whereabouts of the bodies to be made clear.
The commission is being set up to deal with information about any victim of violence within the meaning of the Bill who disappeared before the date of the Belfast agreement. The IRA list contains nine names. The names of other known "disappeared" have not been included. There could also be further "disappeared" whose names are not known to us. As I said earlier, the names of two people on the IRA list had not previously been known to the police as missing persons. We do not want to agree now to a closure date for the commission which could prove premature.
We recognise that Amendment No. 3 seeks to give Parliament the ability to vary the life of the commission if it considers that, in the light of experience, the suggested life of six months is not appropriate. This also runs the risk of action being taken unilaterally, leaving the commission in the anomalous position that I have already described. Given the international status of the body, it is necessary that its lifespan be agreed between the sovereign governments.
Article 3(2)(c) of the joint agreement between the governments requires the commission to report on its activities to both governments no later than one year after its establishment and annually thereafter. I believe that that is reasonable. However, in reply to the noble Earl, Lord Attlee, it is quite possible for the commission to report earlier if it so wishes. We expect the commission in its report to comment on its operation and workload, and it is that report which would trigger a decision by the two governments on the future of the commission.
I believe that it would be most unfortunate and wrong in principle if the House decided to pass one of these three amendments. It would not even do what many noble Lords are concerned about. I do not believe that it would lessen the pressure on the IRA or any other terrorist organisation; or maybe your Lordships think that it would increase the pressure. I do not believe that it will make that kind of difference but I do believe that the only ones to suffer will be the families who desperately await news of the victims.
4.45 p.m.
Viscount Cranborne: I am most grateful to the Minister for his usual courtesy and reasonable tone in responding to the debate. I am sorry that I must disagree with him yet again. I have known the noble Lord on and off for 20 years and have always found

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our exchanges agreeable, if not agreeable in the fullest sense. I am grateful to all those who have taken part in the debate particularly (if I may be invidious for a moment) to those noble Lords who have participated with the benefit of many years' experience of terrorism. The record of the noble Lord, Lord Fitt, is known to all of us, but we have also had the benefit of the views of the noble and gallant Lord, Lord Craig, the noble Viscount, Lord Slim—who cannot be described as "gallant" in this Chamber because he did not rise sufficiently high in the hierarchy of the Army, which is an omission for which I entirely blame his superiors—the noble Lord, Lord Chalfont, and my noble friend Lord Tebbit, who has suffered more than any of us in this Chamber.
It is significant that the victims of, and experts on terrorism have been on this side of the argument. I would have said to the noble Lord, Lord Hylton, if he had been here, that the very act of standing up in public in either House of Parliament had been proven to be a provocation to terrorism, because terrorists do not like people drawing attention to their methods. All of us have friends—I think particularly of Mr. Ian Gow—who have suffered as a result of attacking terrorism from the safety of a House of Parliament.
As the speech of the noble Lord the Minister progressed and interventions were made I concluded from what he said—I say it with the greatest respect to him—that under this Government a terrorist is given immunity if he murders nine or more people, but if someone is not a terrorist and murders nine or fewer, immunity is not given. One has only to say it to see that under this Government, sadly, it pays to be a terrorist.
Lord Redesdale: Does the noble Viscount agree that his remarks could be viewed by many in this Chamber as offensive?
Viscount Cranborne: I tried to make clear during the course of the Second Reading debate, which I believe the noble Lord attended, and in my remarks here, that there is nothing in the least personal in what I say. What I have said is unacceptable to the noble Lord because the truth of the matter is that terrorism is intended to attack the very roots of parliamentary government. Terrorists assume as part of their attack that it is likely to provoke a reaction and that unless we engage with terrorism we are being unreasonable. It is that taking advantage of our good nature which is so scandalous about the methods adopted by terrorists all over the world, but in particular in Northern Ireland.
I did not intend to be offensive to the noble Lord the Minister, and I am sure that he knows that. I have the greatest respect and liking for him and have made that clear. In spite of listening carefully to what the noble Lord has said, I find it very difficult, for the reasons that I have tried to explain, to accept the arguments put forward by the Government and am driven to ask the opinion of the Committee.
4.47 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 121; Not-Contents, 129.

Division No. 1

CONTENTS

Ackner, L.

Lang of Monkton, L,

Ailesbury, M.

Lauderdale, E,

Ailsa, M.

Leathers, V.

Allenby of Megiddo, V.

Long, V.

Alton of Liverpool, L.

Lucas, L.

Ampthill, L.

Lucas of Chilworth, L.

Archer of Weston-Super-Mare, L.

Lyell, L.

Ashbourne, L.

McConnell, L.

Belhaven and Stenton, L.

Marsh, L.

Biddulph, L.

Masham of Ilton, B.

Biffen, L.

Mayhew of Twysden, L.

Birdwood, L.

Mersey, V.

Boardman, L.

Middleton, L.

Brentford, V.

Milverton, L.

Brookeborough, V.

Molyneaux of Killead, L.

Cadman, L.

Monro of Langholm, L.

Calverley, L.

Monson, L.

Campbell of Alloway, L.

Montrose, D.

Campbell of Croy, L.

Moran, L.

Carnegy of Lour, B.

Morris, L.

Carrington, L.

Mowbray and Stourton, L

Chalfont, L. [Teller.]

Moyne, L.

Charteris of Amisfield, L.

Munster, E.

Chesham, L.

Newall, L.

Clark of Kempston, L.

Noel-Buxton, L.

Cockfield, L.

Northesk, E.

Coleridge, L.

Nunburnholme, L.

Cooke of Islandreagh, L.

O'Cathain, B.

Cox, B.

Oxfuird, V.

Craig of Radley, L.

Palmer, L.

Cranborne, V.

Crickhowell, L.

Park of Monmouth, B

Croham, L.

Pearson of Rannoch, L.

Cullen of Ashbourne, L.

Peyton of Yeovil, L.

Davidson, V.

Pilkington of Oxenford, L.

Denham, L.

Porter of Luddenham, L.

Drogheda, E.

Rathcavan, L.

Dunleath, L.

Rees, L.

Ellenborough, L.

Renton, L.

Elles, B.

Ridley, V.

Enniskillen, E.

Rotherwick, L.

Exmouth, V.

Rowallan, L.

Fitt,L.

Ryder of Warsaw, B.

Gardner of Parkes,B.

St. Davids, V.

Glentoran, L.

Sharples, B.

Gray of Contin, L.

Shaw of Northstead, L.

Halsbury, E.

Skelmersdale, L.

Hanningfield, L.

Slim, V.

Harding of Petherton, L.

Strange, B.

Holderness, L.

Strathcarron, L.

Hooper, B.

Swinfen, L.

Howell of Guildford,L.

Tebbit, L.

Howie of Troon, L.

Tenby, V.

Hylton-Foster, B.

Teviot, L.

Ilchester, E.

Thomas of Swynnerton, L.

Jenkin of Roding, L.

Trumpington, B. [Teller.]

Jopling, L.

Vivian, L.

Kinloss, Ly.

Weatherill, L.

Kintore, E.

Westbury, L.

Laming. L.

Wharton, B.

Lane of Horsell, L.

Young, B.

663

NOT-CONTENTS

Acton, L.

Islwyn, L.

Addington, L.

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

Ahmed, L.

Alli, L.

Jenkins of Putney, L.

Amos, B.

Judd, L.

Annan, L.

Kennedy of The Shaws, B.

Archer of Sandwell, L.

Lockwood,B.

Ashley of Stoke, L.

Lofthouse of Pontefract, L.

Avebury, L.

Longford, E.

Bach, L.

Lovell-Davis, L.

Barnett. L.

Macdonald of Tradeston, L.

Bassam of Brighton, L.

McIntosh of Haringey, L. [Teller.]

Berkeley, L.

Blease.L.

Mackenzie of Framwellgate, L.

Borrie, L.

McNair, L.

Bragg, L.

McNally, L.

Brooke of Alverthorpe, L.

Maddock, B.

Brookman, L.

Mallalieu, B.

Brooks of Tremorfa, L.

Merlyn-Rees, L.

Bruce of Donington, L.

Mishcon, L.

Burlison, L.

Molloy, L.

Carlisle, E.

Monkswell, L.

Carter, L [Teller.]

Montague of Oxford, L.

Castle of Blackburn, B.

Morris of Castle Morris, L.

Christopher, L.

Morris of Manchester, L.

Clinton-Davis, L.

Murray of Epping Forest, L.

Cocks of Hartcliffe, L.

Newby, L.

Crawley, B.

Nicol, B.

Dahrendorf, L.

Paul, L.

David, B.

Peston, L.

Davies of Coity, L.

Pitkeathley, B.

Desai, L.

Plant of Highfield,L.

Dholakia. L.

Ponsonby of Shulbrede, L.

Diamond, L.

Prys-Davies, L.

Dixon, L.

Puttnam, L.

Donoughue, L.

Ramsay of Cartvale, B.

Dormand of Easington, L.

Rea,L.

Dubs, L.

Redesdale, L.

Evans of Parkside, L.

Rendell of Babergh, B.

Richard, L.

Evans of Watford, L.

Rogers of Riverside, L.

Ewing of Kirkford, L.

Roll of Ipsden, L.

Falconer of Thoroton, L.

Russell, E.

Farrington of Ribbleton, B.

Sainsbury of Turville, L.

Gilbert, L.

Sawyer, L.

Glanusk, L.

Sefton of Garston, L.

Glenamara, L.

Serota, B.

Goodhart, L.

Sewel, L.

Gordon of Strathblane, L.

Shepherd, L.

Goudie, B.

Simon, V.

Gould of Potternewton, B.

Simon of Highbury, L.

Graham of Edmonton, L.

Smith of Clifton, L.

Grenfell. L.

Strabolgi, L.

Hanworth, V.

Symons of Vernham Dean, B.

Hardy of Wath,L.

Taylor of Blackburn, L.

Harris of Greenwich, L.

Thornton, B.

Harris of Haringey, L.

Tordoff, L.

Haskel, L.

Uddin, B.

Hayman, B.

Walker of Doncaster, L.

Hilton of Eggardon, B.

Wallace of Saltaire, L.

Hogg of Cumbernauld, L.

Warner, L.

Hollis of Heigham, B.

Wedderburn of Charlton, L.

Hoyle, L.

Whitty, L.

Hughes, L.

Williams of Elvel,L.

Hughes of Woodside, L.

Williams of Mostyn, L.

Hunt of Kings Heath, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.47 p.m.
[Amendments Nos. 2 and 3 not moved.]
Lord Williams of Mostyn: My Lords, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Freedom of Information
Lord Williams of Mostyn: My Lords, with your Lordships' leave, I shall repeat a Statement made by my right honourable friend in another place earlier today. The Statement is as follows:
"With permission, Madam Speaker, I should like to make a Statement about freedom of information, on which I have today published a draft Bill and consultation paper. Copies are available in the Vote Office.
"In December 1997 the Government published a White Paper entitled Your Right to Know. I should like to pay tribute to my right honourable friend the Member for South Shields for his work on that document which underpins the draft Bill. I am also very grateful to the Public Administration Select Committee for its consideration of the White Paper's proposals.
"In drafting this Bill we had to strike a careful three-way balance between extending the public's access to information; protecting citizens' own privacy; and preserving confidentiality where disclosure would be against the public interest.
"This is a difficult balancing act, but one I think we have got right. The scales are weighted decisively in favour of openness and will radically change the relationship between the Government and their citizens.
"These proposals are not just about abstract rights which may benefit academics, historians or constitutional theorists alone. They will benefit everyone, and provide access to the kind of information which people really want to know.
"Parents will be able better to find out how schools apply their admissions policies. Patients will be able to understand how hospitals allocate resources between different treatments and how they prioritise waiting lists. And citizens will be able to find out more about the actions of their local police force.
"Under this Bill, for the first time, everyone will have the right of access to information held by bodies across the public sector. There will be a duty on public authorities to adopt a scheme for the publication of information about their work; a positive duty on public authorities, even where they are not obliged to provide such information, to consider disclosure on public interest grounds; and a new information commissioner together with a new information tribunal to enforce the rights created.
"Let me now explain to the House how the draft Bill compares with the White Paper's proposals. On which public bodies are to be covered, the Bill's proposals are a little wider than the White Paper. All the functions of the police and police authorities are to be covered as the Select Committee proposed, with

665
specific exemptions for information gained as part of an inquiry, or which relates to informers. The security and intelligence agencies—along now with the National Criminal Intelligence Service—will remain outside the scope of the Bill. "On the question of including Parliament, we are discussing how this can be done without prejudicing parliamentary privilege.
"The White Paper also promised access to specific documents and actual records, unlike the current code. The Bill delivers that promise. Applicants for information may express a preference for the means of communication: inspection of originals, a copy, or a summary of the information sought.
"The White Paper set out seven areas to be covered by exemptions, together with other information which would be excluded from the Bill. It also set out conditions on the right of access. The Bill delivers broadly the same exemptions as the White Paper, but the tests involved do differ.
"There has never been any expectation that Cabinet documents, inter-ministerial correspondence and official papers on developing policy would ever be disclosed under freedom of information. As the White Paper said:
"Now more than ever the Government needs space and time in which to assess arguments and conduct its own debates with a degree of privacy".—(Your Right To Know, page 19, paragraph 3.12.)
Moreover, it is worth bearing in mind that the product of such private deliberations is almost always a public announcement of policy.
"Under this Bill, there will be a class exemption for the formulation of government policy in place of the simple harm test in the White Paper, which we believe will achieve the same purpose in a more straightforward way.
"On the substantial harm test, after careful consideration, we reached the view that a single omnibus test could not work properly for the range of exemptions proposed. What is 'substantial' in relation to law enforcement may not be in relation to international relations. The harm concerned must be capable of being interpreted in relation to the subject matter it covers.
"Where therefore national security is an issue, the test proposed is whether the exemption is required for the purpose of safeguarding that. Where the health and safety of an individual is at issue, the test proposed is whether disclosure would, or would be likely to, endanger the physical or mental health or safety of an individual. Elsewhere the proposed test is whether disclosure would, or would be likely to, prejudice the criteria set out in the relevant exemption.
"The tests proposed will result in a more open regime than under the existing non-statutory code of practice. Under the code the test is the possibility of harm being caused. Under the draft Bill the test is one of probability.
666
"Generally, the information commissioner will have the power to substitute his or her judgment for that of the public authority. He or she will be able to ensure that public authorities are not able to claim that prejudice would be caused in circumstances where this would be trivial or frivolous. The prejudice has to be real, actual or of 'substance'. In respect of policy advice, the commissioner will be able to challenge the reasonableness of a Minister's decision against disclosure.
"There are two areas where the White Paper suggested that a harm test would apply where in fact such a test turns out to be impractical: personal information and information supplied in confidence.
"First, the disclosure of personal information is governed by our obligations to comply with the European Community Data Protection Directive and the European Convention on Human Rights—and the Human Rights Act. The convention and directive do not provide for the application of a harm test, and we cannot therefore unilaterally provide for one.
"Access to personal information about oneself is governed by the Data Protection Act 1998, whose provisions we are in fact extending under this Bill. Where personal information is sought about third parties, there will be a right to it under the Bill, if the Data Protection Act permits disclosure.
"Secondly, it would be wrong to overturn, in this Bill, duties of confidence which arise at common law. Those doing business with public authorities have the right to ensure that their confidences are respected. In many cases, public authorities need access to information held by others, which they in turn will only be prepared to release if given an undertaking of confidentiality. Where information is supplied to a public authority in these circumstances, the public authority should not be required to disclose it, if this would constitute a breach of confidence actionable by the supplier of the information.
"Let me turn now to the enforcement provisions. There will be an information commissioner who will enforce the FoI regime, and there will be rights of appeal against decisions of the commissioner to a tribunal, with a further appeal, on a point of law, to the courts.
"The Public Administration Select Committee said there was a need for there to be coherence between the data protection and freedom of information regimes, with a 'simple and comprehensive' right of access. A great many requests for information will be for a mixture of personal and general information. We are therefore providing that the office of the Data Protection Commissioner will be merged with that of the information commissioner.
"The cost of these proposals when enacted is forecast at between £90 million and £125 million per year.
"The Bill will now be subject to extensive public and parliamentary consultation, including by the Select Committee on Public Administration.

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"Madam Speaker, I have spoken today of the need to balance rights. There is a right to know, there is a right to privacy and there is a right to confidentiality. For too long we have given insufficient weight to the right to know. The proposals in the draft Bill seek to redress that balance.
"This Government have done more than any other to open their workings to greater scrutiny by the public. In our manifesto we promised a programme of constitutional reform to get citizens more closely involved in the decisions which affect their everyday lives. We have delivered, as promised, a Scottish Parliament and a Welsh Assembly. We are bringing rights home through the Human Rights Act which will be implemented in October 2000. Today, we are taking forward our pledge on freedom of information.
"Madam Speaker, I commend these radical, and balanced, proposals to the House".
My Lords, that concludes the Statement.
5.7 p.m.
Lord Cope of Berkeley: My Lords, the whole House will be grateful to the Minister for repeating the Statement made in another place by his right honourable friend the Home Secretary. It was perhaps more appropriate than usual that the Statement should have been thoroughly leaked beforehand, as has become habitual with the Home Office. However, in this case we were spared the sight of the Home Office seeking an injunction; I believe that Home Office lawyers were busy with another injunction.
The issue of freedom of government information—for that is what it is—has become more important as spin doctors have multiplied and been allowed to assert themselves more so that the accuracy and completeness of government information cannot be relied upon to the same extent. None of us has had much time to study the detail of the Statement, but it seems that the Scottish Parliament and Ministers appear to be exempted from the Bill, but not the Northern Irish or Welsh Assemblies. I should be interested to know the reasons why that should be so.
The right honourable gentleman the Home Secretary, in the course of delivering the Statement, added a sentence which the noble Lord, Lord Williams of Mostyn, was perhaps too modest to mention. The Home Secretary mentioned the taskforce to be set up under the chairmanship of the noble Lord, Lord Williams. It would be helpful to know more about its work.
It is clear that there will be substantial resource implications, not so much for central Government but for the police; the National Health Service; local government including educational authorities; and those in private industry who contract with the Government. It looks as though an individual who wants information about himself may have to cover some of the costs but there will be heavy costs on the budgets of the police, the NHS, the other bodies which I mentioned and contractors to pay for a new army of people to hand out paper and deal with the inquiries. I am not clear from the Statement whether the Government will pick up the
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bill for the local authorities and, indeed, for the contractors too. The statement of the costs—£90 million to £125 million—seems very low if the Government are to pick up those costs.
Am I right in thinking that the requirements of existing contracts will not be altered unilaterally? That was not clear, but I presume that the confidentiality rules will apply to contracts. That is important also in the case of defence contracts. I notice that the noble Lord, Lord Gilbert, from the Ministry of Defence, is in his place. I am not clear—although it seems to me it would be wise—whether defence contractors are to be exempt from those provisions, either through the confidentiality clause or in some other way.
Those are all matters of detail which may be answered by a more lengthy study of the document as a whole. The publication of a draft Bill in this manner is a helpful way in which to bring forward legislation. The Home Secretary's Statement did not say anything specific about the Government's proposal for consideration of this draft Bill in your Lordships' House. The document itself suggests that for this House, the normal consideration by the Delegated Powers and Deregulation Committee would be sufficient. The remit of that committee covers every Bill, but it is extremely specific and limited in what it normally considers. In view of the importance of this whole issue to the proper conduct of government and to citizens, and in view also of the expertise available, we believe that the House will wish to consider this draft Bill very carefully. A special Select Committee may be the right way in which to proceed analogous with the committee which is to consider the matter in another place. I hope that that will be discussed through the usual channels, otherwise, this House will effectively be opting out of the next stage of this important consultation process.
Lord McNally: My Lords, in introducing the Statement, the Minister put the proposal for a freedom of information Act in its constitutional context. Before the general election, I was a member of what became known as the Cook-Maclennan Committee. The now Home Secretary, Jack Straw, was also a member of that committee. It was a Labour-Liberal Democrat joint committee which looked at constitutional reform. A plank of the joint statement before the general election was a freedom of information Act. Therefore, on these Benches, we welcome the introduction of this measure by the Government.
When we were discussing constitutional reform at that time, we wanted to see two outcomes: we wanted to see a breakdown of the confrontational nature of politics, and the Minister referred to reforms in Scotland and Wales which have taken us along that road; and we wanted to see an end to the culture of secrecy in our public service. We saw a freedom of information Act as an important part of that process.
I am sure that the Minister and the House will agree that it is only a step along the way because we need to change a whole culture and attitude of mind in Whitehall and in our public services that not only should the man in Whitehall know best but he should also know most.

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Concerns were expressed on all sides of the House that Dr. David Clark, to whom the Minister paid tribute, lasted a very short time in office, although he did a great deal of work on the draft Bill while there. The business of looking after freedom of information was moved from the Cabinet Office to the Home Office. In a debate a few weeks ago, I. perhaps rather unkindly, suggested that that was like putting Dracula in control of a blood bank. But the Minister was extremely hurt by that suggestion and said that the Home Office was a safe guardian of freedom of information.
Nevertheless, as the noble Lord, Lord Cope, mentioned, there has been the usual plethora of spin and counter-spin which is one of the most irritating aspects of this Government's attitude to Parliament and to serious business. I hope that if we are to proceed on a genuinely all-party basis on this important legislation, the spin doctors can be kept under control.
As the noble Lord, Lord Cope, said, it is an extremely weighty document to absorb in a short time. Therefore, I make just a few headline points. Obviously we understand why security and intelligence services and the National Criminal Intelligence Service must be protected. But they must not become a refuge for government departments protecting their secrecy. As I said, we must break down that culture of secrecy.
The Minister may wish to expand further as to why the "substantial harm" test has been watered down. As he will have noted from all the leaks, that is seen as the Home Secretary's great triumph. He will be aware that those campaigning for a freedom of information Act are very suspicious about that.
Again, as the noble Lord, Lord Cope, hinted, advice to Ministers will be withheld, but will factual and statistical information also be withheld? We have concerns about the promise that many of the powers will be contained in secondary legislation. We do not want to open the door only to find that through secondary legislation, it is readily and easily closed again.
The Minister mentioned the Data Protection Act. It is probably a good idea to bring together the two commissioners, but there will obviously be strains and tensions between the rights given under a freedom of information Act and the powers and defences conferred by the Data Protection Act.
There are obviously other matters with which one could deal in detail. However, I wish to associate myself most strongly with the concluding remarks of the noble Lord, Lord Cope. In no way has there been collusion between us. In fact, I was rather annoyed that the noble Lord, Lord Cope, ran off with my one original idea. It occurred to me that while it was stated clearly that the Public Administration Select Committee in another place would be given the opportunity to examine the draft legislation in detail, no similar provision is made for this House. As the noble Lord, Lord Cope, rightly said, that misses an opportunity to make use of the considerable expertise which lies in this House in that area. We have the procedure to set up ad hoc Select Committees. I hope that the "Cope/McNally proposals" can be properly considered through the usual channels. It is important, in the light of history, to put one's name to these matters early on.
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The Bill, as with the old sixth-form essay, is a challenge and opportunity. As I have said, it is a challenge to break down the culture of secrecy in our public service. We welcome the draft Bill and the process. We believe that with such a process, in which pressure groups and political parties take par, we shall build a freedom of information Act which will stand the test of time. All the parties who work on it will, I presume, with the ambition of politicians, hope to work in Government under this Act. Therefore there is a need for both Government and Opposition to approach this opportunity constructively. If we do that. I believe we shall have a freedom of information Act of which we shall all be proud. I wish the process well.
5.20 p.m.
Lord Williams of Mostyn: My Lords, I am grateful for the responses from the noble Lords, Lord Cope of Berkeley and Lord McNally. The noble Lord, Lord Cope, said that things had been leaked beforehand. There certainly has been speculation. Most of it seems to have been resoundingly wrong on almost every point. The noble Lord spoke about the freedom of government information. I should like to underline that this is a much more fundamental approach.
In the Statement, which I repeated, my right honourable friend Jack Straw spoke about matters which are of infinitely greater importance to the ordinary individual than we sometimes think. Many people want to know about local schools, local hospitals and delivery of services by local authorities. They are much more interested in and touched by those matters than the kind of headline investigation that we see in newspapers. So, this is not about government information but about information that affects the ordinary member of the public, day in and day out.
The noble Lord, Lord Cope, asked about Wales and Scotland. The Bill will not apply to any public authority wholly or mainly concerned with devolved matters in Scotland or transferred matters in Northern Ireland. The Parliament and the Assembly will determine the regime to apply there. The National Assembly for Wales has no power to pass primary legislation. Therefore, the Act will apply in full to Wales and to the National Assembly.
The noble Lord also asked about the task force. That was set up recently by the Home Secretary who asked me to chair it. Its membership is quite wide and has been published but I shall give a few names, almost at random. It includes the General Secretary of the First Division Association; Mrs. Elizabeth France, the Data Protection Registrar; Professor Robert Hazell of the Constitution Unit; Dr. Dilys Jones, Clinical Strategy Director of the High Security Psychiatric Services Commissioning Board NHS Executive, and Mr. John Mills, Chief Executive of Cornwall County Council. As observers, it has Miss Santah Rasaiah of the Newspaper Society and Mr. Maurice Frankel of the Campaign for FOL So, I do not believe we have been wholly exclusive in the membership. The Home Secretary wanted us to get on with matters and issue a report by the end of this year. I refer not simply to dealing with the nuts and bolts of legislation,

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which is for others to do, but to dealing with what he rightly identified, as did the noble Lord, Lord McNally, as a complete change in the culture of operation. Everybody in this country knows that the English vice has always been excessive secrecy for no useful purpose. That is what we want to get away from. It will take a very long time indeed.
A question was asked about costs. They will be of the order I stated. They are greater than those mentioned in the White Paper because we expect many more people to want to use their rights. We firmly believe that managing any organisation properly—whether governmental, a health trust, a local authority education department, or any organisation of that kind—can be done only on the basis of openness. Quite apart from the fact that we speak of public rights, in my view and that of the Government, they are useful management tools. If one knows that one's decisions will be challenged, one tends to make better decisions in the first place.
Of course, we have to think carefully about confidentiality in defence contracts and prison service contracts. Perhaps I may give an example. The noble Earl, Lord Russell, wanted to see the contract on Campsfield House, the detention centre. The original response was that that was subject to commercial confidentiality. It was not; it was published simply with the prices taken out. The fundamental point of the question raised by the noble Earl was, "What sort of regime does the state require for those in a detention centre in the immigration context who have not been convicted?" It seems to me that he was perfectly entitled to see the contract. I provided a copy for him and placed one in the Library of the House. Therefore, one can draw such distinctions, as long as one draws them scrupulously on the basis that there is a presumption of openness.
The noble Lord, Lord Cope, spoke of the fact that having a draft Bill was helpful. It was intended to be such. I repeat what I have said on earlier occasions, and, I believe, to the noble Lord. If, after Second Reading, noble Lords want to come and see me, with or without advisers, with or without officials, we are more than happy for that to be a continuing process.
Both noble Lords spoke about a question for the usual channels. It is probably best if I leave it for them. I have no desire to resist anything being discussed by any Committee in your Lordships' House if by such means we get a better Bill.
The noble Lord, Lord McNally, rightly said that this is a step along the way. I believe that is fundamentally true. He also said that this is part of a constitutional settlement. I agree with him on that point. I repeat what has almost become a hobby-horse of mine. When we speak of devolution we do not speak of devolution to a parliament or an assembly; the information and the parliamentary rights are to go to the individual. It is devolution—devolved power by way of information to the individual—of which we are speaking in this context.
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Importantly, when the Bill is able to be studied in greater depth, the information commissioner has to make an annual report. That is another extremely important discipline.
I am not sure about Dracula, a much-maligned person. Perhaps it is time for the revisionist historians to conclude that Dracula, just like the Home Office, was perfect in every way.
I certainly agree that we ought not to seek for refuge by simply saying, "This is national security and is within the remit of the intelligence agencies." I am bound to say, from my own experience of talking generally to one director of the intelligence services, that I was agreeably surprised to see the way in which they deal with their public duties, as well as their duties to maintain security in the service of the realm.
The noble Lord asked me, quite reasonably, why we have changed from "substantial harm" or "simple harm" to "prejudice". We believe that prejudice will be a much better concept. It will be focused on the particular rather than the general. I remind noble Lords that success in securing and continuing an exemption from disclosure depends on the probability demonstration of prejudice, not the possibility demonstration of substantial harm. That is a critical difference. Perhaps I may recapitulate. To rely on the "prejudice" ground of exemption—I use the words in the Bill—would, or would be likely to, cause prejudice. That is important. It is a higher hurdle than "possibility".
Statistical and factual information is already readily available. In the Home Office, for instance, contrary to what I am led to believe was earlier practice, the statistical department issues the statistics, whether they are convenient, comfortable or uncomfortable for the Home Office. To give an example, once the reports of the Chief Inspector of Prisons have been checked for factual accuracy, I can warrant that I sign them off immediately whether or not they are happy reading for us.
The noble Lord, Lord McNally, mentioned two matters of importance. First, I welcome his approach, and that of the noble Lord, Lord Cope, in stating that they want to work constructively with all Members of this House to achieve the best possible Bill. Secondly, he raised the question of whether it is appropriate for the information commissioner to be the same person as the data protection commissioner. We thought about that for quite a long time. We paid attention to the recommendations of the Select Committee in another place. We came to the conclusion that the argument was correct to look for a single point of access. There are strange intentions, as the noble Lord identified. It is fair to say that Mrs. France received the admiration of everyone for her independence. We want someone of experience and independence in this field. The probability is therefore that we will have a single commissioner, if the Bill goes through unchanged.
There is also another point. Quite a few of our fellow citizens are afraid of government; they are unaware of their rights and become confused by officialdom. We believe it is helpful to the individual to have a single point of access with a modest charge. Some people want

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data protection information about themselves, but also want other material pertinent to themselves which is not covered by the data protection regime but which ought to be disclosable by freedom of information regimes. It is much better for someone in those circumstances to go to a single point and be assisted—I underline that word—by a single institution; namely, the joint information commissioner.
5.30 p.m.
Lord Clinton-Davis: My Lords, I congratulate my noble friend, not only on the Statement that he repeated, but also on his clear personal commitment to the issues underlying this draft Bill.
I wish to ask specifically about environmental information. As I understand the provisions in the draft paper, modification to comply with European Community Directive 1990 in the Aarhus Convention on access to information and other allied issues will be required. Is my noble friend able to specify a little more clearly the reasons for making that assertion? I am sure it is required, but it is without any specific further and better particulars.
I thank the Home Office also for the comparison with other regimes that is set out in the document. That is most helpful. Finally, perhaps I may express some amazement at the extraordinary eagerness of the noble Lord, Lord McNally, to be allied with the noble Lord, Lord Cope. The noble Lord, Lord Cope, is a most agreeable man, for whom I had a great deal of affection in the other place as well as here, but it is extraordinary that the noble Lord's request to achieve fame should be based on that alliance. I suggest he seeks other allies.
Lord Williams of Mostyn: My Lords, I imagine that the noble Lord, Lord McNally, is sick and tired of being told by the noble Lord, Lord Cope, that he is not surprised that he has jumped into bed with the Labour Party and thought he would trump the observation. I have every sympathy.
My noble friend Lord Clinton-Davis has much greater experience than I of the environmental information area in the European as well as the domestic context. He is quite right. The environmental information regulations implement in our law the provisions of an EC directive on access to information. The Aarhus Convention is a further development in this area. It was signed in June 1998. We are trying to match to and marry our obligations in those contexts to make sure that we are not falling behind in the delivery of material to our citizens through our domestic FoI regime.
I am grateful to my noble friend Lord Clinton-Davis for saying that there are comparisons to be drawn between our regimes in prospect and those abroad. If one studies it with care, one realises that we have not made a bad fist of it; for instance, we are providing an information commissioner. That commissioner will be able to assist the citizen, without recourse to litigation—and that is not a feature one finds in all other jurisdictions. We have therefore made an important step forward.
Lord Goodhart: My Lords, I should like to raise a small but important point; that is, the cost limit for
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providing information. Under Clause 12 of the Bill, there is no duty to disclose information if the cost of providing that information is above a ceiling to be fixed by regulations. The discussion papers suggest that the Government are thinking of a ceiling of £500. One cannot obtain an enormous amount of information for £500.
I can understand why the Government feel it necessary to impose some sort of ceiling on the information available for a £10 application fee. Again, I recognise also that under Clause 14 an authority which is not required by virtue of Clause 12 to provide information must, notwithstanding, consider whether or not to exercise its discretion to do so. But if the applicant is willing to pay the full cost of providing that information, should not the authority be required to produce it?
I have in mind in particular the position of the press. It is likely that the principal effect of the freedom of information Act will be that information will get to people not directly, but through the press as an intermediary. Unless the information is extremely expensive, the press will be in a position to pay the full cost of obtaining it. Should not there be an automatic right, therefore, for applicants to obtain whatever information they seek within the limits of the Act, if they are willing to pay for it?
Lord Williams of Mostyn: My Lords, that is an extremely telling, well made point and one that I discussed with representatives of the newspaper publishers. We took the two figures—first, the £500—as representing the amount at which it becomes unreasonable to answer a parliamentary Question. We then set the prospective fee quite low because we do not want to discourage people. The prospective fee is not intended as a revenue-gathering exercise; it could not be. It is to exclude the completely vexatious, of which we are all well familiar, which is normally written in green ink, heavily underlined in red and with more exclamation marks than one could shake a stick at! That is covered by Clause 12.
We should take forward this question. If the press have a legitimate request to make that is not vexatious or frivolous (that is covered in Clause 12) and it would cost £5,000, should not they be able to say to the authorities in question, "We are willing, as part of our public service function, our public information function and Article 10 duties as well as privileges, to pay the full amount?" I should welcome that in principle although I cannot make any further commitment because it may well be the outcome.
Lord Simon of Glaisdale: My Lords, will the right to know extend to the result of inquiries into the deplorable leaks that there have been in breach of confidence from public bodies in circumstances other than the intelligence agencies being involved? Or will they continue to be masked, in the words of the noble

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Lord, Lord McNally, in the "culture of secrecy" so that the public are merely told, "We have not been able to find the culprit"?
Lord Williams of Mostyn: My Lords, there is no global answer to that pertinent question put by the noble and learned Lord, Lord Simon of Glaisdale. Self-evidently, if there is a leak in a department—for instance, the Ministry of Defence—it might be impossible to publish the full report because one would thereby be jeopardising a legitimate interest. It is quite different in other cases.
One comes back to this: we must stress the importance of the presumption of disclosure in favour of openness. It must then be demonstrated, except in the excluded cases, that there is something by way of prejudice which must be of substance which would, or would be likely to, inure. The noble and learned Lord cannot expect me to say that all reports of investigations into leaked inquiries will be published in full. In some cases they could do serious harm. They may bring about a prejudice which was of substance to an interest which ought to be safeguarded.
But I take the noble and learned Lord's point. I am in favour of openness because it is a useful discipline to concentrate the mind before one comes to conclusions; and if conclusions have been badly reached or sometimes properly reached, at the end of the day it is public information; in other words, it is public property.
Baroness Pitkeathley: My Lords, does my noble friend agree that at its best freedom of information goes far beyond simple access? It is about empowering citizens. For example, the more patients know about the diagnosis of their illness, its treatment and prognosis, the more they can be involved in their own care and thus help their recovery. That information is also of great value to the families and carers of such patients. Can the Minister give an assurance that the need for families to have such information will be addressed in the Bill?
Lord Williams of Mostyn: My Lords, this is a very delicate area. I tried to indicate earlier to the noble Lord, Lord McNally, why this matter is so important.
For many of the people described by my noble friend, this kind of information will matter to them more than anything, and they will never be interested in freedom of information on any other occasion in their lives. One then has to ask whether patients are entitled to patient/doctor confidentiality, and the answer is plainly that they are. I would not be able to say that families and carers would be entitled to information as of right, information which perhaps the patient did not want to be disclosed. That is a legitimate balance to be drawn. If I were ill, I might want to know the situation, but I might not want my relatives to know because it might be burdensome or harmful, or it might be none of their business.
These matters have to be worked through. The Bill is concerned with the empowerment of citizens and that is why it is very important that the thousands of public
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authorities should have systems in place that will be vetted by the information commissioner. This will entitle people to know what is presently kept from them without any sensible basis.
Lord Lucas: My Lords, I welcome the Bill and I thank the Minister for repeating the Statement.
My wife, who was brought up as a civil servant and is very much opposed to freedom of information, quite naturally, also welcomes the Bill because a great deal has been done since the White Paper to weaken the effects of the Government's intent and to make it possible for the Government to avoid disclosing information that it finds inconvenient. The wording of the Bill in relation to departmental information exempts information from disclosure where it would be likely to inhibit free and frank provision of advice or prejudice effective conduct of public affairs. That is a very Sir Humphrey way of saying, "anything I say shall not be disclosed—shall not be disclosed".
I cannot see any presumption of openness in the Bill that applies to that, or balance of public interest, or the words "on balance". Had those words been applied to the information which MAFF had on BSE, which is the case that I know most intimately, it would have resulted in greater disclosure and in avoidance of the harm which occurred. I hope the Minister can give me some comfort in relation to that matter.
Lord Williams of Mostyn: My Lords, I hope that I can because one needs to look at Clause 8 which states quite boldly:
"Any person is entitled on making to a public authority a request for information—

(a) to be informed by the public authority whether it holds information of the description specified in the request and,

(b) if that is the case, to have that information communicated to him."

I do not think it could be put any plainer than that. Furthermore, I share the noble Lord's caution about what he calls the Sir Humphrey phrase. Time being as it is, he had a closer acquaintance with them for a longer period of time than I have had, so perhaps he is an old lag. However, it is further stated that even where a public authority is entitled to say there is an exemption, it nevertheless has the statutory duty to consider whether it ought to exercise its discretion to give the material out in any event.
That links, in two ways, to the very important position of the information commissioner. He or she can substitute his or her own view as to the propriety of the exemption, in other words decide whether it is made out. The important question is this: if the authority in question fails to exercise discretion, the information commissioner can come to the conclusion that it was not done on any rational ground.
It is critical that there is an information commissioner to assist; there are then the statutory powers and a further right of appeal to the tribunal. Thereafter, quite properly, there is a right of appeal on legal grounds only to the court.

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There is the bold statement in Clause 8, subject to exemptions. and there is further protection: if they have upheld the exemption they are nevertheless obliged to exercise their discretion about release of the information.
The Countess of Mar: My Lords, I am grateful for the Minister's reply to the noble Lord, Lord Lucas. However, I remain a little concerned. The noble Lord is well aware of my fields of interest, particularly the activities of the Scientific Advisory Committee.
The deliberations of that committee will be excluded on the basis of economic interests because they are provided in confidence because of commercial interests and because of Section 118 of the Medicines Act. Can the Minister give some assurance that where deliberations are important to people who have, for example, been exposed to pesticides and are ill as a result, the information will be disclosed as it is in the United States of America, from where I obtained most of my information?
Lord Williams of Mostyn: My Lords, this will have to be developed on a case-by-case basis. Not every assertion of confidentiality will be sufficient. What I was saying earlier was that if there were a breach of confidentiality which was actionable, that would be a reason for not disclosing. Not all commercial interests, if they are simply barely asserted, are sustainable, but if we want scientific committees of inquiry to do a thorough job of work, it is idle to think that those with legitimate commercial interests or those with legitimate requirements for commercial confidentiality will volunteer the information unless they are obliged to do so at the point of a statutory gun.
The noble Countess has asked some extremely important questions, and they are the kind of questions that we would expect to be asked during the two-month consultation period. It is not so long that it will be kicked into the long grass; it is short enough to be focused. I hope that we will return to such points of detail when we scrutinise the Bill in your Lordships' House.
Lord Bruce of Donington: My Lords, the Government are to be commended for making it quite clear that there will be an extensive consultative process not only in public but also in Parliament. It is very difficult to go through the Bill in any detail, but can the noble Lord give an assurance, in view of his emphasis on the information that can now be demanded from the public bodies listed at Schedule 1, that the emphasis will not be confined to the National Health Service, the police services and the local authorities, but that they will also comprise the public departments mentioned in part of Schedule 1?
I ask the noble Lord for an assurance that, although these other matters will be considered, and properly so, equal attention will be given to the provisions of Section 26 which deals with law enforcement and Section 24 which deals with the exemption of certain economic information:
"Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—

(a) the economic interests of the United Kingdom or of any part of the United Kingdom."

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That is a very broad exemption, and we would appreciate reassurance that it will not unduly restrict those whose business it is from finding out as much information as possible as to how the economy is working.
Section 29 deals with the way in which Government departments arrive at decisions. Can the noble Lord assure us that these matters will also receive the Government's attention because the origins of the demands for a Freedom of Information Act centred on the secrecy in Government departments? Will these matters also receive very considerable attention in the course of consultations and presentation of the Bill?
Lord Williams of Mostyn: My Lords, I hope that that will be so. If we want to maintain secrecy, confidentiality and privacy—whatever term one uses about the workings of government—my belief is that we ought to be able to demonstrate that it is legitimate to do so. I take the point about economic interests very much to heart. That is something that we have particularly in mind regarding whether or not we need to define or refine what we mean by "economic interests", and do not simply hide behind a general concept.
I do not know what the outcome of the consultation will be. It is a good document, which has been put out allowing a reasonable time for consideration. However, I stress that Parliament remains paramount. We want the outcome of the consultation to be of assistance to our deliberations and those in another place. Nothing in the consultation responses will dictate anything to your Lordships or, indeed, to the other place. Nevertheless, if I may say so, my noble friend's point about economic interests is a particularly pertinent one.

Northern Ireland (Location of Victims' Remains) Bill
5.50 p.m.
House again in Committee on Clause 2.
Lord Tebbit Lord Tebbit moved manuscript Amendment No. 3A:
Page 2, line 34, at end insert—
("( ) No order may be made under subsection (5) unless the Secretary of State is satisfied that all witnesses giving evidence to the Bloody Sunday Inquiry will be guaranteed anonymity.")
The noble Lord said: As I was abroad last week and, therefore, unaware of the accelerated progress of the Bill, I was unable to table this amendment until this morning. So it is a manuscript amendment. For the convenience of the Committee, I shall read through the wording of my amendment, which reads:
Page 2, line 34, at end insert—
("( ) No order may be made under subsection (5) unless the Secretary of State is satisfied that all witnesses giving evidence to the Bloody Sunday Inquiry will be guaranteed anonymity")".
My amendment is about justice. It is about justice in Northern Ireland. I know that my noble friend Lord Campbell of Alloway objects to it, not because he is against justice but because this is a somewhat untidy

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way, to a lawyer's mind, of legislating to achieve justice. However, if untidiness is the price that we have to pay for justice, it is a price that I, at least, am willing to pay.
The Bill before us now is about "The Disappeared" and about sheltering from justice those responsible for the disappearances, provided that they reveal the locations of the bodies of those whom they murdered. I should say in passing that I hope that General Pinochet is not receiving copies of the Hansard reports of our debates. Surely to contemplate the differing standards of treatment given to the friends of this country and the enemies of this country would be a cruel and unnatural punishment.
The renewed inquiry into the events of so-called "Bloody Sunday", some 30 years ago, can be described either as a sop to the IRA, or as something akin to the recovery of the remains of "The Disappeared"—an effort to discover the truth about what happened on that day and to understand how the deaths were caused—in order to give satisfaction to the bereaved of that day.
Let us accept that second explanation, for it brings this most closely into a parallel with the Bill. Then let us contrast the protection given to deliberate, sadistic murderers—that is, the IRA—and to soldiers who were trying to do their duty in extremely difficult and dangerous circumstances. Almost all of those soldiers—indeed, perhaps all of them—are now retired from the Army. Many are married with families. A good number married Northern Ireland girls from either side of the religious divide. Those wives have borne children. As I said, they have families. Some of their families are living in areas which are still effectively controlled by the IRA; that is to say, areas where punishment beatings and other sanctions against those who offend the IRA are still being carried out.
I hesitate to prejudice the safety of those wives and families by even referring in too great a detail to the links which some of them have with Republican families. But I know of at least one case regarding a former soldier. He is expecting to be called to give evidence and he has every reason to fear for the safety of his family, should his identity become known.
What are we to do about such people? Unless those men are granted anonymity, the IRA will be given, by courtesy of the Government, a hit-list of victims. Perhaps I may remind Members of the Committee that the IRA is still fully armed; indeed, not a gun, a bullet, or an ounce of semtex has been given up. It is still fully operational and, as Ministers know, it is still engaged in reconnaissance and preparation for the resumption of hostilities should it not gain its way. It is still in control of what it calls its "areas" and its "people".
Today, the legal status of the military action, which is being taken in Serbia, is still somewhat unclear to me. The airmen who are carrying out the policies of the Government, and who inadvertently kill innocent civilians in Serbia and in Kosovo, are given anonymity. Whoever programmed in error the missiles with the address of the Chinese Embassy is protected. Those concerned killed innocent civilians, but their names are
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not to be known. Whether it is because there is a fear that reprisals might be taken against them or whether that decision has been taken merely on the principle that their names should not be given, I do not know. Why are the Paras to be treated differently from the IRA or our soldiers and our airmen who are carrying out the Government's instructions today? What message will this inquiry give to those soldiers and airmen who are today fighting on behalf of Her Majesty's Government and who may be fighting in far more dangerous circumstances at some time in the future? Will their anonymity be taken aside when it suits the Government?
My amendment would not in any way affect this Bill, unless the Government choose it so to do. Indeed, there would be no change to its provisions. There is nothing in it about the location of bodies nor about the protection against justice for the terrorists. It is very simple: it merely requires that Her Majesty's Government treat our soldiers with at least part of the courtesy and the respect which they give to the IRA. I beg to move.
6 p.m.
Viscount Cranborne: I asked my noble friend Lord Tebbit whether he would allow me to group my Amendment No. 13 with his manuscript amendment. I am glad to see that he nods his head and confirms that that is so. I hope therefore that the Committee will allow me to speak not only to his amendment but also to my Amendment No. 13. I hope that the Committee will approve of that because, quite apart from anything else, it should save a little time.
During the course of some of the remarks that I ventured to make on Amendment No. 1, which stands in my name, I detected a feeling—this was expressed most strongly by the noble Lord, Lord Redesdale—that I had been gratuitously offensive to the Government. I hope that I made it clear that the last thing in the world that I wanted was to make any personal remarks about the noble Lord, Lord Dubs, for the reasons I explained. My charge against the Government is not that they are nasty, but that they are too nice. They are too nice to deal with gangsters, whether they be in the Balkans or in Northern Ireland. After all, I venture to suggest with the greatest of respect to the Minister, that prolonged exposure to the niceties of parliamentary procedure and the way we conduct our politics here is not a good preparation for dealing with cut-throats. If I may say so, that is greatly to the credit of the Government.
As I rise to support my noble friend's amendment, I feel most strongly, for the reasons he explained, that what is sauce for the IRA goose should certainly be sauce for the parachutists' gander. I shall not repeat my noble friend's remarks in which he made a connection between the two cases, as I believe that that connection was perfectly clear.
My amendment is not as specific as that of my noble friend. Had I not had the opportunity to group my amendment with that of my noble friend, I would have said that Amendment No. 13, which gives the power to anyone who applies to the commission to force the commission to disclose the name of any person providing relevant information to the commission, was

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directed at exactly the same spot as my noble friend's Amendment No. 3A. If the Minister had been so kind as to give the same amount of protection to the former British soldiers who will be forced publicly to give evidence under their own names to the noble and learned Lord, Lord Saville, I would have withdrawn my Amendment No. 13.
I hope therefore that the Minister will recognise—as my noble friend said—that the Government, like all of us, pay tribute to the extraordinary gallantry and courage of the people we in this Parliament send to do difficult and dangerous jobs on our behalf. No one is more forward in paying that tribute than the noble Lord, Lord Dubs. However, I have to say that those words are often belied—I am afraid I do not except Conservative governments from this accusation, any more than I do Labour ones—by the substance of what governments commit. Under the circumstances which my noble friend has described, it is inevitable that those who served in Northern Ireland for 30 years of the Troubles, those who are still serving, and indeed those who are about to serve, will wonder whether the words which governments of both persuasions have poured on to our Armed Forces in tribute are words that are meant when it comes to the point and when political expediency dictates the opposite.
If my noble friend's amendment fails, we should be aware that whatever the rights and wrongs of Bloody Sunday, it is perfectly possible that the noble and learned Lord, Lord Saville, will find that the Parachute Regiment is innocent—I know that that is not a fashionable point of view, but it is perfectly possible that it could be innocent—in which case innocent people would be exposed (particularly those who live in the Province) to the kind of dangers that my noble friend enumerated. If it is found guilty, the sin would be just as great because it is not for us to rely on the IRA to exact its own particular kind of retribution. We must hope that any punishment that is meted out—or is thought right to be meted out—should be according to the law of this land rather than the law of the gun and the armalite.
For all those reasons, I hope that the Government will realise that they are not playing in the play-pen of Westminster where a standard gavotte is danced—and thank goodness it is. We are dealing here with the world of gangsters, just as we are in the Balkans. For those who want to defend the liberties which this Parliament has historically defended, that requires the kind of tough-minded approach which I fear governments of both persuasions have failed to show. It is by being nice rather than by being nasty that we deliver ourselves into the hands of the terrorists.
Lord Merlyn-Rees: I agree with the purpose of the manuscript amendment moved by the noble Lord, Lord Tebbit, which seeks to give anonymity to those who appear before a judicial inquiry. However, my concern is that governments have not yet intervened in Northern Ireland in the procedures followed by a judicial inquiry. I suspect that my noble friend will say that there is a great difference between the commission, where the rules can be laid down by Parliament, and
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telling a judge how to run his inquiry. Therefore, as much as I want to see anonymity granted to the Parachute Regiment and to any other soldier, I believe that my noble friend may have to recommend that the manuscript amendment should not be accepted.
Lord Elton: Does the noble Lord accept that law made by Parliament provides anonymity to victims of, for instance, rape? There is nothing unusual in what is proposed.
Lord Merlyn-Rees: I was coming to ways in which we could circumvent the provision. I am grateful for the noble Lord's comments. I should know that in the House of Lords there are others who are knowledgeable about this subject. I shall proceed. The purpose of the manuscript amendment is to provide a means whereby the soldiers of the Parachute Regiment can gain anonymity. I hope that my noble friend will describe to the Committee means by which anonymity can be provided for the soldiers of the Parachute Regiment in the inquiry into Bloody Sunday. So much flowed from Bloody Sunday; the parliament of Northern Ireland was ended by a Conservative government as a result of what happened in that and other incidents.
I ask my noble friend what he can offer us in this regard. What can he tell us can be done? Could rules which provide anonymity be laid down for the judicial inquiry? Even Amendment No. 13 provides that anyone can appeal to the commission to ask for informants' names to be disclosed. I would not walk around Northern Ireland for long if I had asked for such disclosure. We place those people in great danger also. That is the nature of Northern Ireland; it is a place apart, which is not to be confused with this part of the United Kingdom in this respect. Some 3,000 people have been killed over a period of 25 years. Governments of all persuasions have failed in one sense to overcome the problems in Northern Ireland. I hope that my noble friend the Minister will suggest means by which that can be done because such is the purpose of the amendment. People such as myself support it emotionally, even though we may not be able to support it in practical terms.
Some of us have emotions about this matter. My father was a private soldier in Dublin an 1916. When I was studying Irish affairs in school, my father said to me, "I realise what a mess the British Government made of it in 1916, by executing the mutineers''—or whatever is the correct word. Thirty or 40 years later on an airfield in Naples, when shelling or anti-aircraft fire was causing problems, and I considered that I had not joined the Royal Air Force to be in that sort of position, the Catholic padre said to me, "The Irish problem wouldn't have existed if it had not been for 1916". I said to the padre, "The last thing I'm worried about at the moment is what happened in Dublin in 1916".
Governments of all persuasions can make mistakes. I have always worked on that assumption. Holiness about Irish affairs ill becomes any politician on this side of the water. However, I believe that the principle, if not the precise amendment, put forward by the noble Lord, Lord Tebbit, should have the support of the Committee.

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I ask my noble friend the Minister to be positive and to say what can be done to protect persons giving evidence before the inquiry.
Lord Molyneaux of Killead: What has been said thus far should convince all of us that when governments of any complexion institute inquiries, they ought to get right before they begin the ground rules of what might be called the "standing orders" for the protection of all concerned. I know that philosophy would not appeal to my noble and learned friends but, as a layman, that seems prudent and a necessity to me.
The main thrust of the Bill is to avoid publication of the identities of some who are murderers and who are known to be murderers, with the object of protecting terrorists from the due process of law. The purpose of the amendment proposed by the noble Lord, Lord Tebbit, which I am happy to support, is to preserve confidentiality with regard to the names and addresses of all witnesses giving evidence to an inquiry, thereby protecting such witnesses from assassination by terrorists. There is not a shadow of doubt that that would be the outcome unless we can avoid the trap into which the inquiry has got itself.
The noble Lord the Minister will probably maintain, rightly, that the present rules may not empower Her Majesty's Government to implement the amendment. In the past, governments have employed what one might call "fast-track" procedures. Shortly after I was honoured to enter your Lordships' House, it spent a great deal of time discussing and eventually approving the European Convention on Human Rights, which has a provision to remedy a defect within 48 hours. I respectfully suggest—as did the noble Lord, Lord Merlyn-Rees—that we would all support the Minister if he could give an undertaking that there is the possibility of providing, by some legal method, protection for those who will unfortunately be in the front line, whether they are proved innocent or guilty.
6.15 p.m.
Lord Mayhew of Twysden: I endorse the remarks of the noble Lord, Lord Merlyn-Rees, about the likely consequences for witnesses who have given evidence without the benefit of anonymity in some circumstances. I endorse also the comments of my noble friend Lord Tebbit about the inevitable perception that will flow because of the contrast between the protection offered under the Bill and that withheld in the case of the Bloody Sunday Inquiry. I add a small gloss: not only is anonymity to be withheld but the evidence that has to be given without the benefit of anonymity will in all circumstances have to be given in the city of Londonderry. It does not need the experience of the noble Lord, Lord Merlyn-Rees, or other of your Lordships to know the dangers to which that will give rise.
I have always greatly regretted that it was said by all sides when the inquiry was announced, by way of justification, that it is essential to get at the truth. Most of your Lordships realise that one cannot get at the truth after eight years, let alone 28 years. What one can get
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at is whether or not evidence has been presented that could sustain a prosecution, given that the burden of proof rests on the prosecution. A tribunal could say that the prosecution's case was made or that the evidence was not sufficient. We are told that the inquiry is to get the truth.
There will be a stark contrast between the carefully honed, beautifully dove-tailed statements in evidence which, if not instigated by the IRA, will at least have been rehearsed by the IRA. Those who are called to give evidence and who were in the Armed Forces—and that goes far beyond the Parachute Regiment—will have time and time again to say, "It is too long ago. I do not remember. Somebody who could vindicate what I say is dead or is not available". Day after day, the media will be drawing attention to that contrast. In the eyes of some of the media, it will be a question of whether or not British soldiers have proved themselves innocent—something impossible to do and which in our jurisdiction, fortunately, no one is called upon to do.
As the rationale of the immunity afforded under the Bill is that one cannot expect people to come forward and give information unless they are given anonymity, among other protections, similarly an enormously heavy burden rests upon the shoulders of the noble Lord, Lord Dubs, who we all so greatly respect in seeking to argue against the case that has been made.
It was perfectly possible—it remains perfectly possible—to instruct the tribunal that evidence shall be given with the benefit of anonymity. That instruction should have been given before and it could be given now. If that takes a bit of time, I would still support the amendment. It can be overturned in another place or be got rid of in some other way, if the necessary procedures to secure the same result can be achieved through the workings of ministerial channels.
Earl Attlee: I am grateful to my noble friend Lord Tebbit for moving the amendment with his usual clarity and vigour. His key point is that retired and serving members of Her Majesty's Forces and others will be exposed to unnecessary danger. That applies especially to persons who live in the Province in peace.
We need to make progress tonight, so I shall not weary the Committee with a detailed speech. I fear that the Minister will be unable to explain why, when giving information to inquiries and commissions, terrorists will enjoy anonymity while members of Her Majesty's Forces and others will not. The Minister will say that anonymity is essential if the commission is to obtain the information that it desires. Surely information is all that the Bloody Sunday inquiry requires as well. If my noble friend is minded to test the opinion of the Committee, I and my noble friends will support him.
Viscount Brookeborough: I support the amendment. Apart from the fact that evidence will be given, on the one hand, by soldiers and, on the other hand, by terrorists, there are other great differences between the two groups. The people who will come forward to give information about the bodies will be either murderers or associates of murderers who were involved in the killing of people and the disappearance of their bodies. They

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are, if you like. very much on the ball in that particular game. The soldiers should obviously have anonymity. Any inquiry will want to interview soldiers who were widely dispersed from the events of Bloody Sunday—they may have been drivers who delivered soldiers to the scene two hours before the event or they may have been taking food to soldiers throughout the day—and an incredible number of people will be interviewed who were simply not associated with the action on the ground, every single one of whom will be exposed. We must have an amendment such as this if we are to expect our soldiers to carry out their duties again.
The inquiry will be based on whether at the time a soldier reacted in circumstances in which he believed people's lives were under threat. It may be discovered that one or two soldiers over-reacted, but we cannot expose every soldier who took part in Bloody Sunday and who is alive today. We must give anonymity. I support the amendment.
Lord Vivian: I strongly support the two amendments. I think the Committee is aware that I am deeply disturbed by the Bill. I patrolled the streets of Belfast in I973 and 1974. If I had had to explain the provisions of the Bill to my soldiers, I would have found it very difficult. The Bill can only damage the morale of our servicemen, especially in relation to the inquiry chaired by the noble and learned Lord, Lord Saville. By disclosing the name of any person providing relevant information to the commission, there is some likelihood of building up a case against murderers. However, I must stress, as have some of your Lordships, that to allow anonymity to the IRA or to those providing relevant information and to reject it for those members of the Armed Forces who were carrying out their duties and who may be witnesses in the Bloody Sunday inquiry, is nothing but scandalous.
It is especially so in this shameful inquiry when the security services have already stated that any witness who is named will face a significant terrorist threat. If the Government are to allow anonymity for the IRA, only one conclusion can be drawn: that the Government are prepared to protect the IRA and yet sacrifice the lives of our servicemen. If the amendments are put to the vote, I shall support them.
Lord Redesdale: I am grateful for the fact that the two amendments are grouped together. I had slight difficulties with Amendment No. 13 which, without the clarification, I believed was a wrecking amendment which went to the heart of the Bill.
We on these Benches have considerable support for the idea of anonymity for those giving evidence to the inquiry. However, the problem with the amendments is that they deal with an entirely different situation from that set out in the Bill and perhaps should be brought forward in a different format. Therefore, we cannot support the amendments.
Lord Elton: The issue seems simple. The Bill as drafted offers almost certain security from prosecution
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for known terrorists and something approaching the certainty of a death sentence for people who were trying to protect Her Majesty's subjects.
Lord Glentoran: I have to declare an interest as a former Para. I spoke strongly against the setting up of the new inquiry into Bloody Sunday. At the time I warned the Government that it would cause them nothing but trouble. I ask the Government to think about what will happen if we do not achieve anonymity for those giving evidence and one or two or more are murdered by the IRA. What about their families? I support the amendment of my noble friend Lord Tebbit as a mechanism for gaining anonymity for those expected to give evidence to the inquiry chaired by the noble and learned Lord, Lord Saville.
Lord Dubs: Perhaps I may deal, first, with Amendment No. 3A. The inquiry under the noble and learned Lord, Lord Saville, is totally independent of the Government. I have a difficulty in that I cannot comment on its proceedings or its decisions. If the Government were to dictate how the inquiry should be conducted, we could no longer maintain that the inquiry was totally independent.
Lord Swinfen: Perhaps the noble Lord will allow me to intervene. If Amendment No. 3A is passed and becomes part of the Bill, and assuming that the Bill is passed into law, would not the judge conducting the inquiry have to follow the dictates of the law as passed by Parliament and therefore grant anonymity?
Lord Dubs: The answer is probably not; he would not. It is an independent inquiry. Another outcome of passing Amendment No. 3A would be this: the amendment would not place a duty on the Saville Inquiry, but would prevent the commencement of the commission's task; the commission to be set up under the Bill would be unable to start its work. That may be the intention of some of your Lordships but, taking the speeches at face value, which I always do, it seems to me that the more likely outcome would be that the commission would not proceed.
Perhaps I may draw the Committee's attention to another point. I understand that last Friday some paratroopers requested a judicial review of the decision of the Saville Tribunal. That is still pending. I tried to find out a few minutes ago whether the court had reached a decision; I understand that it has not. That is a further difficulty. I am not saying that we are barred from discussing the matter, but there is a difficulty in that the Paras have adopted a course of action that they would normally be advised to adopt in the circumstances in which they find themselves. The Government will let that particular process take its course. We cannot tell the noble and learned Lord, Lord Saville, how to conduct his inquiry, but I am sure that he will quickly be made aware of the arguments used in the Committee today.
I am afraid that I cannot help. I wish that I could be more helpful to my noble friend Lord Merlyn-Rees who asked for guidance on the matter. I am afraid I cannot

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be helpful. I have stated the Government's position. My answers are determined by the independence of the inquiry and the legal action initiated by the Paras.
Perhaps I may turn to Amendment No. 13, which would reverse the intended outcome if it were taken at its face value. The Committee will be aware why this amendment is also unacceptable to the Government. It would negate the purpose of the Bill. Those with direct information about the locations of victims' remains will not come forward if there is a possibility that their identity will be disclosed. I am sure that the noble Viscount, Lord Cranborne, is aware of the argument because he took part in the Second Reading debate when the argument was deployed.
I see no reason why those with indirect information—perhaps an intermediary, which is conceivable—should have their names publicly known unless they are happy for that to be the case. The Committee will be aware that the Attorney-General has already given an undertaking—
Viscount Cranborne: I am most grateful to the noble Lord for giving way. I am delighted to hear that he sees no reason why conveyers of information should want their names to be known. How would he feel if he were a former Para? Would he not feel exactly the same way?
Lord Dubs: I do not think it is appropriate for me to comment. It is an independent inquiry. I am quite sure that the Paras and their legal representatives can speak for themselves. The whole point of an independent inquiry—I am sorry to labour the point—is that the Government do not seek to influence the procedures or the outcome of the inquiry. That is the position the Government adopt and that is the position that I am endeavouring to explain to the Committee. I am sure that the Committee understands it and accepts it.
Lord Tebbit: I may be wrong in this matter but I believe that the original Widgery Inquiry into these events was an independent inquiry and had a requirement to give anonymity to those who gave evidence. Did that suddenly make it not independent?
Lord Dubs: No. I bow to the noble Lord's memory of the details of the Widgery Inquiry. But that was an independent inquiry. It came to one conclusion as to the basis on which evidence would be given to it and the Saville Inquiry has come to a different conclusion as to the nature of the procedures under which Paras or their representatives give evidence. It is as simple as that. They are both independent and they are acting slightly differently from each other.
Lord Molyneaux of Killead: I apologise for interrupting the noble Lord. Is he saying that one government can give terms of reference to an inquiry which they establish and another government can give a different set of terms of reference and guidelines to an inquiry? Can there be a contradiction or is there—I hope
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that noble Lords who are learned in the law will forgive me for my ignorance—a standard set of terms of reference for all inquiries?
Lord Dubs: As far as I am aware, there is not a standard set of terms of reference. Each inquiry that is set up by any government is treated on its merits in terms of the procedures under which it will operate. It so happens that the Saville Inquiry has decided to operate in a particular way.
Viscount Brookeborough: I am probably being naïve about this but perhaps I may ask a question. On the one hand, the Minister says that the Government cannot interfere with this inquiry because it must be independent. Is it not true that with regard to the criminal law and terrorist events the judiciary is independent? I am not quite sure what gives the Government the power to provide anonymity to terrorists within the terms of the Bill when they do not have the power to suggest that the commission should do this in secret. I do not understand.
Earl Attlee: I have to confess that I failed to declare an interest as a serving officer in the Territorial Army. The Minister said that the amendment would stop the commission from being set up. That may be the case, but the Committee is right to explore the inconsistencies between the commission and the inquiry. Furthermore, my noble and learned friend Lord Mayhew explained to the Committee how the amendment could be disposed of if it were agreed to today.
Lord Dubs: I have almost lost the thread of the various comments that were made, so I apologise if I do not deal with them fully. Perhaps I may return to Widgery. As far as I have been informed, the Government did not indicate at the time that Widgery was to operate in a particular way. The method of operation of the Widgery Inquiry was determined by Widgery himself. It was as much out of the Government's powers to influence as it is out of the present Government's powers to influence the nature of the Saville Inquiry. I hope that that helps.
Would the noble Viscount, Lord Brookeborough, mind repeating the point he made so that I can do justice to it? I apologise for having lost the thread of his point.
Viscount Brookeborough: How can it be that the judiciary of this country is independent of the government of the day yet the Government are prepared to interfere by directing that no evidence that is obtained or might be obtained as regards the discovery of the bodies may be used in a criminal court to obtain a conviction? They have directed that. Yet when the commission is simply a commission of inquiry, the Government, although they have the power to give it guidelines along which it must work, appear not to be willing to direct that the people giving evidence may do so anonymously. Is it a fact that in law or constitutionally they may not do so?
Lord Dubs: At one level, the noble Viscount asks a deeply philosophical question. I am not sure that this is

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the appropriate time for me even to endeavour to answer it even were I capable of doing that or qualified to do it, which I am not sure that I am. This Bill affects criminal procedures. It is not concerned with the independence of the judiciary. The Bill simply lays down certain elements to do with how criminal proceedings might arise or the basis of the evidence on which they might arise. Those are set down in statute. It is the rule of law in so far as if Parliament chooses to pass the Bill it determines how a particular commission will operate and how the courts would operate in relation to evidence that might come before them.
Lord Carrington: I have some knowledge of this subject as it so happens that I was Secretary of State for Defence at the time of Bloody Sunday. I remember very well the problems and horrors as a result of it. The noble Lord will have heard the feeling of the Committee on this subject. He is—I am sorry for him in a way—in a rather lonely situation. May I ask him this direct question? Do the Government believe that these soldiers should have anonymity? If they do not believe that, they should do nothing. If they believe that they should have anonymity, they should do something about it.
Lord Dubs: The Government do not have a view on that.
Noble Lords: Oh!
Lord Dubs: The Government do not have a view on the way in which the noble and learned Lord, Lord Saville, is conducting his inquiry. But, as I said earlier, some of the Paras themselves have initiated judicial review proceedings precisely on this issue. Even if the Government had a view, it would surely be proper for the Government to await the outcome of the judicial review proceedings before even commenting. But in any event it is not appropriate for the Government to comment in such instances. I give way to the noble Baroness.
Baroness Park of Monmouth: I am sorry to interrupt the noble Lord and I thank him for allowing me to intervene. I wish to make two points. First, is there any reason why, independent though the inquiry is, the Government should not say to the noble and learned Lord, Lord Saville, "This is the effect of the decision you have made at a time when it is particularly offensive that there should be this double standard"? Surely there is nothing to prevent the Government from putting that fact before him and leaving him to consider it. Secondly, it seems entirely wrong that the only thing that should have been done should have been done by the Paras. Something should have been done by the Government, as my noble friend Lord Carrington said.
Lord Dubs: The noble Baroness puts me in yet another difficulty. All I would say is that, given the strength of feeling expressed in this debate, it is inconceivable that the noble and learned Lord, Lord Saville, would not be made aware of what had been said and that he himself would not consider the arguments
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that have been put forward. That surely is the proper way forward—for the noble and learned Lord, Lord Saville, to take into account what has been said in the House in a debate of this kind. I do not think it is useful for me to add much to that.
Lord Marlesford: I wish to ask the Minister a very simple question. Does he agree that the decision to set up the inquiry into Bloody Sunday was a political decision? It was not a judicial decision to set it up. At the time that political decision was made, did the Government not take account of the issue of anonymity? The noble Lord says that the Government now have no view on anonymity. It is inconceivable to me that that was not one of the issues that was considered in deciding whether or not to have such an inquiry at all.
Lord Dubs: The question was asked: Why did the Government set up this inquiry? The Government felt that it was proper to do so and that it was proper that the inquiry should be independent. The inquiry is under way and I really do not think that it would be helpful for me to get into the realm of speculation. I am not aware of all the detailed discussions that may or may not have taken place within government at the time the inquiry was set up. I do not know in how much detail that was considered, or whether it was simply felt, "Let Lord Saville himself decide how best to conduct the proceedings"—
Lord Swinfen: In an answer to the noble Viscount, Lord Brookeborough, a few minutes ago, the noble Lord the Minister said that once this Bill is passed, any evidence gathered when the remains were found could not be used because the provisions would be in statute. Earlier in this debate I asked the noble Lord whether, should this amendment be passed into the Bill and should the Bill become law, that would not become binding on the judge carrying out the inquiry. The noble Lord the Minister said "no". Why is statute predominant in one case and why does statute not dominate in the situation that I suggested? Surely they are both the law of the land and therefore the judge undertaking the inquiry would have to do what the law of the land said at the time.
Lord Dubs: I would ask the noble Lord to read the wording of the amendment standing in the name of the noble Lord, Lord Tebbit. Perhaps it would be helpful if I read it out, because I think it gives the answer. The amendment says:
"("( )No order may be made under subsection (5) unless the Secretary of State is satisfied that all witnesses giving evidence to the Bloody Sunday Inquiry will be guaranteed anonymity".)
The onus is on the Secretary of State to be satisfied before taking further action; the onus is not on the noble and learned Lord, Lord Saville, to behave in any particular way, if this amendment were to be passed.
I think that is very clear. It is surely the intention that the noble Lord, Lord Tebbit, had in mind when he put down his amendment. It was never intended to insist that the noble and learned Lord, Lord Saville, should

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behave in a certain way even if we had the power to do so. It was intended to put a constraint on the way the Secretary of State acted.
Viscount Brookeborough: May I ask one last question? Am I right in saying that the commission may possibly reveal a criminal act on the date of Bloody Sunday? If it does, would not that become a judicial issue? Under the circumstances, does not the Minister agree that there should be anonymity, in exactly the same way as there is to be for the Provisional IRA with regard to the bodies? However, it will then be too late: they will already have lost their anonymity in the inquiry.
6.45 p.m.
Lord Dubs: I am not sure that I can make any new point in answer to the noble Viscount's question. Let me restate what I said earlier: the amendment does not place any duty on the inquiry to grant immunity. It is as straightforward as that. It places a duty on the Secretary of State in relation to what she has the power to do, but it does not impose any duty on the inquiry. Perhaps I may say, to be as helpful as possible, that the inquiry was set up because there appeared to be new evidence about the events of 30th January 1972. The Government decided to set up the inquiry. They also decided that the best way to investigate the matter would be by way of an independent judicial inquiry. That is what is happening.
To conclude my remarks, which deal with the substance of Amendment No. 13, one needs to ask what effect the amendment would have on the Bill before us. The amendment has a very wide scope and it would allow anyone to ask the commission for the names of the persons from whom it has received relevant information. A commission would be required to disclose that information, regardless of whether the person seeking it has a legitimate interest. Further, I would say to the noble Viscount that one needs to know to what legitimate use the information would be put. The information given to the commission will not itself be admissible in criminal proceedings. I believe that the arguments to justify both amendments contain serious weaknesses and that the implications of our passing them are serious. I believe that the amendments ought not to be accepted and I invite the Committee to reject both amendments.
Lord Mishcon: Before the noble Lord the Minister sits down, I believe that I am the only person speaking from these Benches so far—I beg your Lordships' pardon, I am wrong; I believe that there was another speaker who I am sure said things much better than I shall say them. However, I believe that the sentiment of the Committee has been expressed in a way which is very clear; namely, that a duty is owed to the Paratroopers about whom we have been talking. There is no doubt about that.
From these Benches, speaking only as an individual and having no other right, I would have thought it was unanimous that justice should be done so far as those
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Paratroopers are concerned. When you talk in terms of justice, you talk in terms of justice that would be administered by a judge in charge of the inquiry. There is nothing—would my noble friend not agree?—to stop counsel, who undoubtedly will be appearing for those Paratroopers—indeed, we understand that lawyers have already been engaged on an application for judicial review—from making a submission at the very start of the inquiry that anonymity should be granted. That is the way to proceed, I respectfully suggest, with faith in the judge to have precisely the same views of fairness as this Committee has.
Lord Dubs: I thank my noble friend for that information and the answer is, yes; he is absolutely right. I should like, if I may, to add one or two further comments because I believe there are questions which I have not answered as fully as perhaps I might have done. The noble Baroness, Lady Park of Monmouth, asked whether the Government should not have taken the necessary steps to bring about a judicial review of the procedures. Only the Paras really have the necessary standing to bring about a judicial review. The Government have no standing in respect of that decision at the inquiry.
Perhaps I may also make it clear that if Parliament decided—Parliament being sovereign—that it wanted to change the law, it could put any specific duty on an inquiry that it wished. These amendments do not do that: that is my point. However, the Government believe that it is better for the inquiry to be independent and to be free to decide for itself how it operates. That is the Government's position. Of course, it is perfectly possible for Parliament to think otherwise and to put forward specific legislation for this or any other inquiry. I hope that Parliament would not he so minded. I give way to the noble Viscount.
Viscount Cranborne: I am grateful to the noble Lord. I understand that the Committee wants to get on. However, the noble and learned Lord, Lord Saville, has already said in answer to inquiries that he is not minded to do what the noble Lord, Lord Mishcon, suggested. That of course adds to our anxieties.
Lord Dubs: So far that is what he has said, but there is of course the judicial review process and the noble and learned Lord, Lord Saville, might change his mind if he felt so inclined. That is why I said that, of course, he would take note of the debate which has taken place in the Committee this afternoon. The Government's position is clear, and I would urge the Committee to reject both amendments.
Lord Tebbit: I should like, first, to express my gratitude to all those who have taken part in the debate on these amendments and, most particularly, if I may say so, to the noble Lords, Lord Merlyn-Rees and Lord Mishcon, for making plain their feelings about this matter although they feel they cannot follow me into the Lobby this evening—for I will undoubtedly seek to divide the Committee on this matter.

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Let me emphasise that it is not just the soldiers who will be put at risk. Soldiers are used to being put at risk and they do not complain too much about it. It is when their wives and their children are put at risk that they complain. We know that those given protection under this Bill as it stands are murderers to a man, or to a man and a woman perhaps.
We also know that, even if the soldiers in this inquiry under the noble and learned Lord, Lord Saville, are shown to be lily-white and innocent as new-born babes, once their names are known to the IRA they will be on a hit list.
Lord Redesdale: I apologise for intervening. The noble Lord has indicated that he intends to divide the Committee. As a consequence, will the Long Title of the Bill also have to be altered?
Lord Tebbit: I believe that on matters of that kind we should defer to the judgment of the Clerks of the House and others rather than the noble Lord.
The noble Lord, Lord Dubs, for whom I have every sympathy—he finds himself in a very exposed and difficult position this evening—told the Committee that it would not have been possible to give instructions on these matters. I find that pretty incredible. As a former Secretary of State, before I appointed anyone to conduct an inquiry, I would discuss with that person the manner in which he would conduct it. If I was not satisfied that that inquiry would be carried out in an appropriate manner in my judgment, I would not accept it.
The argument that the noble and learned Lord, Lord Saville, cannot be told is pretty thin. The noble Lord the Minister has just said that, if Parliament enacted a provision that these witnesses should be given protection, they would be. If this amendment were to be carried, that would be an option for the Government. The noble Lord shakes his head but that would be so, and I have every reason to believe that the Opposition would not obstruct a measure to that effect.
I believe that it was the noble Lord, Lord Shepherd, who suggested it was inevitable that, if the amendment in the name of my noble friend Lord Cranborne was accepted, it would be reversed in the other place, so there was no point in carrying it. I am fairly sure that, if my amendment is accepted this evening, it will be reversed in another place. But the noble Lord, Lord Dubs, also advanced the argument that the noble and learned Lord, Lord Saville, would hear what had been said in the Committee this evening and would undoubtedly take it into account. Quite so. I believe that he would especially take it into account if he could see from the Division list that those who had voted for this amendment vastly outnumbered those who had voted against it. The noble Lord shakes his head, but even the noble and learned Lord, Lord Saville, might be more impressed by people going through the Lobby than people on the Benches nodding their heads sagely. That is the only way that we can give him the flavour of the views of the Committee. Therefore, seek the opinion of the Committee.
6.53 p.m.
On Question, Whether the said amendment (No. 3A) shall be agreed to?
Their Lordships divided: Contents, 114; Not-Contents, 126.

Division No. 2

CONTENTS

Abercorn, D.

Lucas, L.

Addison, V.

Lucas of Chilworth, L.

Ailsa, M.

Luke, L.

Allenby of Megiddo, V.

Lyell, L.

Anelay of St. Johns, B.

McConnell, L.

Astor of Hever, L

Mancroft, L.

Attlee, E.

Marlesford, L.

Beaverbrook, L.

Masham of Ilton, B.

Belhaven and Stenton, L.

Massereene and Ferrard, V

Biddulph, L.

Mayhew of Twysden, L.

Biffen, L.

Mersey, V.

Birdwood, L.

Miller of Hendon, B.

Blatch, B.

Milverton, L.

Bledisloe, V.

Molyneaux of Killead, L.

Boardman, L.

Monro of Langholm, L.

Bowness, L.

Monson, L.

Brabazon of Tara, L.

Montrose, D.

Bridgeman, V.

Morris, L.

Brookeborough, V.

Mountevans, L.

Brougham and Vaux, L.

Moynihan, L.

Burnham, L. [Teller.]

Munster, E.

Buscombe, B.

Napier and Ettrick, L.

Cadman, L.

Northesk, E.

Caithness, E.

Nunburnholme, L.

Carew, L.

O'Cathain, B.

Carnegy of Lour, B.

Oxfuird, V.

Canington, L.

Palmer, L.

Chalfont, L.

Park of Monmouth, B.

Clark of Kempston, L.

Pearson of Rannoch, L.

Coleridge, L.

Pilkington of Oxenford, L.

Cooke of Islandreagh, L.

Platt of Writtle, B.

Cope of Berkeley, L.

Rathcavan, L.

Cox, B.

Rawlings, B.

Craig of Radley, L.

Reay, L.

Cranborne, V.

Rennell, L.

Darcy de Knayth, B.

Ridley, V.

Davidson, V.

Roberts of Conwy, L.

Denham, L.

St John of Fawsley, L.

Dixon-Smith, L.

Seccombe, B.

Dunleath, L.

Shaw of Northstead, L.

Elton, L.

Skelmersdale, L.

Fookes, B.

Stewartby, L.

Gardner of Parkes, B.

Strange, B.

Glentoran, L.

Strathcarron, L.

Harding of Petherton, L.

Strathclyde, L.

Harlech, L.

Suffolk and Berkshire, E.

Henley, L. [Teller.]

Swinfen, L.

Higgins, L.

Tebbit, L.

HolmPatrick, L.

Thomas of Swynnerton, L.

Hooper, B.

Trumpington, B.

Howe, E.

Vivian, L.

Kinnoull, E.

Wade of Chorlton, L.

Laming, L.

Walker of Worcester, L.

Lauderdale, E.

Weatherill, L.

Lawrence, L.

Westbury, L.

Leathers, V.

Wharton, B.

Leigh, L.

Young, B.

NOT-CONTENTS

Acton, L.

Archer of Sandwell, L

Addington, L.

Avebury, L.

Ahmed, L.

Bach, L.

Alli, L.

Barnett, L.

Amos, B.

Bassam of Brighton, L.

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Berkeley, L.

Lockwood, B.

Blackstone, B.

Lofthouse of Pontefract, L.

Blease, L.

Longford, E.

Borrie, L.

Lovell-Davis, L.

Bragg, L.

Macdonald of Tradeston, L.

Brooke of Alverthorpe, L.

McIntosh of Haringey, L.

Brookman, L.

Mackenzie of Framwellgate, L

Brooks of Tremorfa, L.

McNair, L.

Burlison, L.

McNally, L.

Carter, L. [Teller.]

Maddock, B.

Christopher, L.

Mallalieu, B.

Clinton-Davis, L.

Merlyn-Rees, L.

Cocks of Hartcliffe, L.

Meston, L.

Crawley, B.

Mishcon, L.

David, B.

Molloy, L.

Davies of Coity, L.

Monkswell, L.

Davies of Oldham, L.

Morris of Castle Morris, L.

Desai, L.

Morris of Manchester, L.

Dholakia, L.

Murray of Epping Forest, L.

Dixon, L.

Newby, L.

Donoughue, L.

Nicol, B.

Dormand of Easington, L.

Peston, L.

Dubs, L.

Pitkeathley, B.

Evans of Parkside, L.

Ponsonby of Shulbrede, L.

Evans of Watford, L.

Prys-Davies, L.

Ewing of Kirkford, L.

Ramsay of Cartvale, B.

Falconer of Thoroton, L.

Randall of St. Budeaux, L.

Farrington of Ribbleton, B.

Razzall, L.

Geraint, L.

Rea, L.

Gladwin of Clee, L.

Redesdale, L. [Teller.]

Glanusk, L.

Rendell of Babergh, B.

Goodhart, L.

Richard, L.

Gordon of Strathblane, L.

Richardson of Calow, B.

Goudie, B.

Rogers of Riverside, L.

Gould of Potternewton, B.

Sainsbury of Turville, L.

Grenfell, L.

Sawyer, L.

Hanworth, V.

Scotland of Asthal, B.

Hardy of Wath, L.

Sefton of Garston, L.

Harris of Greenwich, L.

Sewel, L.

Harris of Haringey, L.

Shepherd, L.

Haskel, L.

Simon, V.

Hayman, B.

Simon of Highbury, L.

Hilton of Eggardon, B.

Stone of Blackheath, L.

Hogg of Cumbernauld, L.

Symons of Vernham Dean, B.

Hollis of Heigham, B.

Taylor of Blackburn, L.

Howie of Troon, L.

Thornton, B.

Hoyle, L.

Thurso, V.

Hughes, L.

Tordoff, L.

Hughes of Woodside, L.

Uddin, B.

Hunt of Kings Heath, L.

Walker of Doncaster, L.

Islwyn, L.

Warner, L.

Janner of Braunstone, L.

Watson of Invergowrie, L.

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

Wedderburn of Charlton, L.

Whitty, L.

Williams of Elvel, L.

Jeger, B.

Williams of Mostyn, L.

Jenkins of Putney, L.

Winchilsea and Nottingham, E.

Judd, L.

Winston, L.

Kennedy of The Shaws, B.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
7.2 p.m.
Clause 2 agreed to.
Clause 3 [Admissibility of evidence in criminal proceedings]:
Lord Molyneaux of Killead Lord Molyneaux of Killead moved Amendment No. 4:
Page 2, line 35, leave out ("not")
The noble Lord said: I shall curtail my remarks in view of the progress on the Bill still to be made.
Amendments Nos. 4 and 5 seek to transform into positive form a clause which is at present wholly negative. The entire clause is an affront to the rule of law of the United Kingdom. It amounts to the suppression of facts, blatantly informing Her Majesty's judges that they must suspend the principles of justice to placate those known to the intelligence service as terrorists, some of whom would be guilty of murder and worse.
Subsection (1)(b) adds to the offensive provision by asserting that,
"any evidence obtained (directly or indirectly)",
may not be admissible. That would appear to place any court in the position of being challenged to prove that indirect information stemmed from the operation of some part of the Bill. I suggest that the court would be placed in an impossible position.
Amendment No. 6 is linked with Amendments Nos. 4 and 5. As if the cover-up provisions of Clause 3(1) were not enough, giving as it does immunity for persons who were possibly connected with the torture and murder of their victim, there is an absolute ban on the disclosure of information which might expose them to prosecution. But then subsection (2) guarantees that, although information may not be made known to the authorities, it will be made available for the defence if the accused for any criminal offence considers that the information might assist in his defence. As drafted, Clause 3 protects an accused from evidence obtained but provides him freely with such evidence, rigidly withheld from the courts, if he feels that disclosure would assist him in escaping justice. I beg to move.
Lord Dubs: Clause 3 provides the first key protection for relevant information provided to the commission. It is a fundamental principle of the Bill that no one should be disadvantaged by the giving of information to the commission. After all, the purpose of the Bill is to provide a mechanism which will facilitate the provision of information about the whereabouts of the remains to the commission so that the many, many years of suffering endured by the families can finally be brought to an end.
If we were to legislate in the way suggested by the noble Lord, Lord Molyneaux, in Amendment No. 4 without the necessary protection which this clause provides, it is certain that information would simply not be forthcoming. It is for that reason that I cannot accept the first of this group of amendments. It would negate the purpose of the Bill.
On Amendment No. 5, we believe that it is essential in securing the confidence of those who hold the information about the location of the victims' remains to impose the evidential restrictions set out in Clause 3. As I have stated, without this assurance it is likely that no relevant information would be forthcoming.
The amendment would render evidence inadmissible only in criminal proceedings relating to these victims. I can understand the intention of the noble Lord, Lord Molyneaux, in tabling this amendment and his reasons for doing so but, in our view it would undermine the inadmissibility protections to such an extent that those with the information would refuse to come forward, thereby again negating the purpose of the Bill.
I bring Members of the Committee back to the underlying principle of the Bill: that no one should be disadvantaged by providing relevant information to the

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commission about the location of these remains. Some noble Lords no doubt find the limited protections in Clause 3 at the very least regrettable. But I hope that they will agree they are an essential requirement if we are to achieve the desired purpose of the Bill. For that reason, I cannot accept Amendment No. 5.
Having resisted those amendments, I also urge the Committee to resist Amendment No. 6. I am sure that the noble Lord, Lord Molyneaux, would not wish to prevent information which could acquit an innocent person from being adduced in criminal proceedings. I am afraid that that is the risk if Amendment No. 6 were to be accepted. I should also point out that Clause 3(2) is based on a similar provision in the decommissioning legislation which Parliament has, of course, approved.
1 hope that in the light of that, the noble Lord will feel able to withdraw the amendment.
Lord Molyneaux of Killead: As the Minister pointed out, Amendment No. 6 in particular was designed to draw attention to the anomaly that, whereas protection could be given to murderers by withholding or concealing information, if the same murderer discovered that it would be to his advantage for the information to be disclosed, presumably even in open court, he has the option of doing so.
I cannot conceal my disappointment. However, in view of the fact that all three of my amendments run counter to the Bill as debated in another place and thus far in this Chamber, I have no option but to withdraw the amendment.
Lord Fitt: I associate myself with the amendments moved and spoken to by the noble Lord. I realise that we cannot have a vote. The time for that has passed. But I wish to associate myself with those amendments.
Baroness Farrington of Ribbleton: Those amendments are not before the Committee. It is not possible for noble Lords to speak to an amendment unless it is put before the Committee. I understand that those amendments have not yet been moved.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 and 6 not moved.]
Clause 3 agreed to.
Clause 4 [Restrictions on forensic testing]:
Baroness Park of Monmouth Baroness Park of Monmouth moved Amendment No. 7:
Page 3, line 15, after ("inquest,") insert ("or to satisfy any legal requirement arising on or connected with possible claims under legislation relating to compensation,")
The noble Baroness said: This is a brief amendment to attempt to make some use of the Bill. I recognise that, as the Minister said in another place:
"The post-mortem report will usually be read out in open court and questions put to the pathologist".
However, it is not clear under what circumstances it may be used. I note also that the Minister, when rejecting the
698
clause on compensation put forward in the other place by Mr. Lembit Öpik said:
"the families of persons whose remains were recovered would not fall within the compensation scheme because of the three-year time limit".
But he also said:
"We have asked Sir Kenneth Bloomfield to undertake a detailed examination of the compensation scheme and its fitness for its purpose".—[Official Report, Commons, 12/5/99; cols. 363–75.]
I tabled the amendment to ensure that should changes in the law of compensation be made which could favour these unfortunate families, the right to information relevant to compensation would already appear on the face of the Bill. It is particularly important since the review is taking place now.
However, I have one concern on which I should be glad of reassurance from the Minister. Sir Kenneth. Bloomfield is reviewing the existing compensation scheme and has acquired, as part of his excellent work on his report We Will Remember Them, a considerable knowledge of the problems of victims, including those of the Disabled Police Officers' Association on whose behalf I shall be approaching both the noble Lord and the Minister for victims in the near future.
Now Sir Kenneth has been named as one of the two commissioners charged with dealing with the IRA on the question of the location of victims, can the Minister assure us, first, that his new task will not place such a burden of work on him that the review of compensation and much else that he is doing for victims, not just for families, will be shelved or seriously delayed? Secondly, can he assure us that his new task will not be held to disqualify him from working for victims in general on grounds of conflict of interest?
Finally, I wish to remind the noble Lord, whose genuine concern for the families and victims of terrorism we recognise, that under Article 5(5) of the Convention on Human Rights, which is part of the Human Rights Act 1988:
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this article, the right to liberty and security, shall have an enforceable right to compensation".
That should surely apply to the family where the victim is no longer alive to make any claim. I beg to move
Lord Redesdale: I have put my name to the amendment. I realise that as the review of compensation procedures is now taking place, the Minister may not be able to give us any reassurance on the future provision of compensation for victims' families. As I spoke on the subject on Second Reading, I wonder whether the Minister can indicate any movement as regards compensation for the families? Can he give an assurance that if compensation is available he will make every effort to supply it to the families, considering that during the past few years they have suffered intimidation and threats if they talked about their loved ones?
Lord Molyneaux of Killead: I support the wisdom of the noble Baroness, Lady Park, and agree with what has been said by the noble Lord, Lord Redesdale, in identifying a serious gap in Clause 4. She and I know from long experience that flaws in compensation

699
legislation are too numerous to catalogue. Endless complications, totally unexpected, are a common feature in nearly all such cases. Those engaged in litigation will demand much more than meaningless phrases such as "it is believed that" or "there is reason to assume". There must be something more specific because such phrases will be of no avail. Only verifiable facts will suffice. Those facts can be obtained only under the headings of paragraphs (a) to (f). However, the Bill as it stands would suppress such information. Like the noble Baroness, Lady Park, I take the view that there is an unanswerable case for the adoption of her amendment and I strongly support it.
7.15 p.m.
Lord Dubs: The noble Baroness's amendment cannot be accepted by the Government for two reasons. First, it undermines the likelihood that the Bill will result in the remains of victims being located. Secondly, it would not in fact assist the families should they wish to make a claim for compensation.
The purpose of the Bill is to find the remains of victims and to end the suffering of their families. As I said during our Second Reading debate, achieving that aim is a delicate balance, but our starting point for the limited protections at Clauses 3, 4 and 5 of the Bill is that no one should be disadvantaged by the giving of information to the commission. Clause 4, therefore, places restrictions on forensic testing on the remains of the victims and items found during the search.
The noble Baroness's amendment would widen the circumstances in which forensic testing could be conducted. It would allow the families to commission testing for the purpose of making a claim for compensation. I shall turn in just a moment to why I do not believe that the amendment would assist the families.
My fundamental difficulty with the amendment is that it would make it very unlikely that information would come forward. It would enable testing to take place outside the confines of the inquest process, with the attendant risk that information other than that necessary for the inquest would be discovered and disclosed. That cuts across the principle that no one should be disadvantaged by the giving of information to the commission. It defeats the purpose of the Bill and it is self-defeating because, if the location of the graves are not found, there would be no remains or items on which to conduct tests.
I have considered carefully the practical benefit to the families should this amendment be accepted. But I can find none. The issue of compensation arises in two ways: through the statutory scheme and through the possibility of civil proceedings.
During our Second Reading debate and in another place, the Government have said that they believe that the families are time-barred from receiving compensation under the statutory scheme. The ability to conduct forensic testing would not alter that position given that the date of death would be a matter fully aired at the inquest. Extra testing would not be necessary. In any event, the
700
ability to commission tests would not be relevant to a claim under the statutory scheme, even if the time limits did not apply.
It may be open to the families to commence civil proceedings if other information is available to them and if the courts are willing to use their discretion to waive time limits. I do not see, however, how this amendment would assist the families in any such civil action. They will already have available to them the inquest findings and are free to use them in civil proceedings. This amendment does not seek to widen the information which might be gained by the families from forensic testing.
Under this amendment, forensic testing remains limited to the information available at the inquest; that is to say, the identity of the victim and how, when and where he died. The amendment is aimed ultimately at compensation, but the amendment would not help to establish the identity of the persons responsible for the killing and it would not therefore assist the family to establish against who an award of compensation should be made. More fundamentally, without an idea of the identity of the person responsible, there would not be a defendant against whom proceedings could be brought.
I was asked about the possibility that Sir Kenneth Bloomfield might suggest changes to the statutory compensation scheme. Yes, that would enable the people claiming under the terms of the Bill to benefit from any changes in the compensation scheme suggested by Sir Kenneth and brought into effect. I was also asked about the many responsibilities placed upon Sir Kenneth Bloomfield. I understand that he is happy to take on the role of commissioner and that it would not in any way be detrimental to his review of compensation. In other words, Sir Kenneth Bloomfield is happy that he will not be over-burdened by his new responsibility.
For the reasons I have given, I hope that the noble Baroness will feel able to withdraw the amendment with the assurance that the inquest findings are available to the families.
Baroness Park of Monmouth: I shall withdraw the amendment, particularly in view of the lateness of the hour. But I am deeply disappointed by the Minister's response. I had hoped he would say that the Government would take steps to change the compensation laws. That may be what he meant when he suggested that Sir Kenneth Bloomfield may recommend it. I hope that that means that the Government would listen to him favourably. But it seems to me that it would not be asking too much to have that assurance given to us because this is an important issue. We are totally debarred from advancing the interests of the families because of the other issues involved in the Bill. That no one should benefit but the evil ones seems to me quite wrong. I hope that the Minister will be able to ensure that we have a positive statement of support from the Government on the issue of compensation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Molyneaux of Killead: I regard Clause 4 as the core of this extraordinary measure. It is made all the more alarming by the remarks of the Northern Ireland Minister, Mr. Ingram, in another place. When asked about the dangers of setting an undesirable precedent, in response to a question from one of his own Back-Benchers, the Minister said:
"there are no such things as absolutes. We are dealing with a sensitive and difficult subject which we must address in the best way available to us. As for setting precedents, the Bill deals with a specific set of circumstances and it is not for me to determine".—[Official Report, Commons, 10/5/99: col. 38.]
He went on to say that he could not give an assurance that this Bill would not be built upon by others at some stage in the future.
We have already seen how Ministers have used non-traceability of weapons legislation as a precedent for this clause. Will this Bill in turn, which is much wider and more objectionable than the weapons model, be used as a means of doing the will of criminals and terrorists in the future?
In addition, I must draw attention to the absence of any safeguards against what one might call vexatious claims in regard to the location of remains. I know that terrorists' code-words are in fairly common use in contacts between certain authorities. I do not doubt that in the course of the secret bargaining between the aforementioned MI6 and Sinn Fein/IRA, some thought may have been given to the opportunity for cheating. For example, if the foundations of the waterfront building or a section of a busy motorway, as has been referred to earlier, are alleged to be the burial place of remains, will expensive explorations be initiated? Will the families involved be informed? It would seem to me to be the depth of cruelty for families to be given false information and then have to wait for a long time before they know whether the claim or the information can be substantiated.
Finally, in regard to identification of remains, will the Minister inform us—and I am sorry to bounce this on him—whether the testing of remains will include DNA testing? Unlike the general run of forensic investigation, DNA would provide the only certain means of convincing families that the remains were really those of their own loved one.
Viscount Cranborne: I rise briefly to ask a question additional to those which the noble Lord, Lord Molyneaux, has posed. Will the Minister tell the Committee what would be the position of the commission and, indeed, the instructions to the commission were it to turn out, as a result of forensic testing, that the information and forensic tests would put the authorities in a position to clear an innocent person who had already been convicted? Is there enough latitude in the Bill to permit that or would a vow of silence be maintained on that matter?
Lord Monson: Perhaps I may put one question to the Minister before he replies to my noble friend and to the noble Viscount. Clause 4 prohibits the families of victims from carrying out or commissioning forensic tests to ascertain whether, for example, their loved ones
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had been tortured or where they were imprisoned before being murdered. Let us suppose that one or more of those families, after the Bill becomes law, says in effect, "To hell with the Act. We will go ahead with our investigations whatever the Act may say". Will they be committing a criminal offence? I imagine not, because no penalties are laid down in the Bill and I cannot recall ever coming across a criminal offence where no penalties for transgression are specified? Perhaps the Minister will tell me either whether I am correct in my assumption or whether I am mistaken and if so, exactly how I am so mistaken.
Lord Fitt: The noble Lord, Lord Molyneaux of Killead, has brought to the notice of the Committee a question which is disturbing many people in Northern Ireland. This Bill is referred to as the Location of Victims' Remains Bill. I understand that at the beginning, it was suggested that it should be called the Location of Bodies Bill. Where are those bodies going to be? As the noble Lord, Lord Molyneaux of Killead, said, they may be under a stretch of motorway or a major building. In fact, the noble Lord will know that in today's press in Northern Ireland, rumours are circulating that a major road outside the city of Belfast has beer built on some of those bodies.
The noble Lord, Lord Molyneaux of Killead, has quite rightly referred to the fact that the location of the bodies may be pointed out by the IRA, and it may be an extremely inaccessible location. Will the Government bear the expense of shifting whatever needs to be shifted or using whatever machinery is necessary to bring those bodies from where they are at present to give them back to their loved ones?
One can readily understand that if the IRA, the terrorists, brutally tortured their victims and killed them, they will not be very concerned about giving them a decent burial, even by IRA standards. They will want to get rid of the bodies, particularly at the time they committed the murders. In those circumstances, the terrorists, were hoping that the bodies would never be found.
The families of those victims will be greatly distressed by the fact that they are unsure whether or not the bodies or bones, or whatever the remains may be, belong to their loved ones—those who have been murdered. It is only right that the Government should acquiesce in the requests which have been made that DNA testing should be carried out; that the remains which have been located should be identified as such to the families who have fought for so long to have those bodies identified.
7.30 p.m.
Earl Attlee: I shall be brief. Unfortunately, I shall have to be content with the Question that Clause 4 stands part of the Bill. Opposing the Question would wreck the Bill and, despite our distaste for it, we are not prepared to do that.

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The noble Lord, Lord Molyneaux, mentioned DNA testing. I would be very unhappy if the Minister could not assure the Committee that DNA testing will be undertaken. As the noble Lord, Lord Molyneaux, stated, that is a reliable test and may be the only one available.
Lord Dubs: As with Clause 3, this provision is an essential element of the Bill to ensure that information is forthcoming to the commission. The starting point for these limited protections is, as I have said on other occasions, that no one should be disadvantaged by giving information to the commission.
The construction of the clause is similar to the equivalent provision in the decommissioning legislation, but it may help noble Lords to read it in the following way. Subsection (2) provides that forensic testing for the purpose of the inquest is allowed. The inquest test may determine the identity of the deceased; how, when and where he died. That would also deal with the question of DNA testing. If thought appropriate—it would be the coroner's decision—the coroner could subject the remains to DNA testing for the limited purposes of establishing who the deceased was and, as I have stated, how, when and where he died.
Subsection (1) provides that testing for other purposes is not allowed. The other purposes are then listed at paragraphs (a) to (f). Subsection (3), however, allows an item to be tested to determine whether it can be safely removed. The reasons for that are clear.
In an earlier debate, the noble Baroness, Lady Park, tabled an amendment which provided me with an opportunity to confirm that the inquest findings will be available to the families and that there is no bar on the use of those findings in civil proceedings. At the end of the debate the noble Baroness asked whether the Government would give an undertaking as regards giving effect to the findings of Sir Kenneth Bloomfield in his review of compensation arrangements. The noble Baroness will be aware that governments cannot commit themselves in advance of a review to giving effect to the outcome of such review. Sir Kenneth Bloomfield is proceeding in good faith. We are pleased that he should be doing so, but I do not believe I can go further than that as regards the possible outcome of his inquiry.
Baroness Park of Monmouth: I thank the Minister for giving way. I perfectly understand his comments. However, I should very much like to hear a powerful statement from the Minister that the Government intend to urge that it should be so.
Lord Dubs: I am reluctant to do that for the following simple reason. If Sir Kenneth Bloomfield has been asked independently to review the compensation arrangements, it would not be helpful if in the middle of the review I make announcements intended to influence him. It would surely be discourteous to him, at the very least, to be given a remit and then to have his position undermined by statements made by me from the Dispatch Box. It is a discourtesy which I do not wish to enter into.
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There was some concern in another place that while Clause 3 of the Bill enables a defendant to adduce evidence in criminal proceedings, Clause 4 does not allow the defendant to commission forensic testing in his defence. I referred to this issue at Second Reading, but should like to take this opportunity to reinforce the fact that conducting forensic tests may throw up intelligence or information which would be disadvantageous to those giving information to the commission. Allowing forensic testing other than for the purpose of the inquest could result in no information being provided. Clause 4 is one of the key provisions of the Bill. Without it, the fact is that information is unlikely to reach the commission and the suffering of the families will continue.
I have been asked one or two specific questions. I have dealt with the question of DNA testing. If there is difficulty about finding where the bodies are, as was mentioned by the noble Lord, Lord Fitt, or, indeed, whether the commission has been given misleading information about the location of the bodies, the commission will have to come to a view as to how to handle that. Clearly, if the information appears to the commission to be misleading, it will not want to take further action. However, that is for the commission to decide.
There might be a cost of recovery. The sad fact is that we simply do not know where the bodies are. People have suspicions, and rumours, unfortunately, abound. However, the precise purpose of the Bill is to establish where the bodies are. Each case will have to be considered to determine the problems and costs involved in attempting to recover the bodies. To give a blanket answer would not be helpful. It is up to the commission to take that work further in the light of the information that it has.
Another aspect concerns informing the families. It is my understanding that it is the wish of the families to be informed of where the remains might be, once information comes to the commission. From the point of view of the families, I understand that that would be preferable to not carrying out a search. The families accept that they might have to wait for the results and that there could be disappointments in the process, but they want to be involved in this from the start. That is information given to us by the families. If it is their wish to be informed, even if some of the information may then be rather difficult for them to deal with emotionally, I do not believe it is appropriate for anyone to deny them that information. Of course there can be difficulties, given the examples quoted by the noble Lord, Lord Fitt. The commission would have to use its discretion and be sensitive in such circumstances, as I am sure it would be. Having disposed of those arguments, I beg to move.
Lord Monson: Before the Minister sits down, he has not answered my question about what happens to somebody who contravenes the provision of Clause 4. Has a criminal offence been committed and if so what penalties can be imposed, if any?
Lord Dubs: My understanding is that a criminal offence has been committed but I am not totally clear

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as to the penalties. Here we have in statute a clear statement of how the commission should behave. If it ignores that, it is in breach of the statute. Therefore, I would judge that to be a criminal offence.
Lord Monson: I should like to give the Minister a little more time in which to receive his reply. Does he know of any other instance where a criminal offence is laid down in statute without any penalties being specified?
Lord Dubs: My knowledge of other comparable situations is so limited that even if I say I do not know of any it does not mean that there are not any; it simply means I do not have the breadth of information with which to answer the noble Lord's question.
I say this to be frank. In contrast to what I believed to be the case a few moments ago, I understand that it would not be an offence if the commission was in breach. That is why there appeared to be no penalties. I am sorry if I misled the Committee. It was entirely unintentional. I have now been informed that it would not be an offence.
Lord Molyneaux of Killead: The Minister has done his best to reassure us on certain vital matters. This short, mini-debate has been useful. I thank the Minister for his courtesy.
Clause 4 agreed to.
7.38 p.m.
Lord Carter: It may be for the convenience of the House if I say that the noble Lord, Lord Meston, has kindly agreed to withdraw his Unstarred Question. Another date has been found for it. I am sure the House will be extremely grateful to him and agree, through the usual channels, that there will be no dinner break. We will finish debating this Bill and go straight on to the Tax Credits Bill.
Clause 5 [Restrictions on disclosure of information]:
[Amendments Nos. 8 to 11 not moved.]
Baroness Park of Monmouth Baroness Park of Monmouth moved Amendment No. 12:
Page 3, line 28, at end insert—
("( ) Subsection (1) shall not prevent either the family or the state, once remains have been found and identified, from such action either to commemorate the victim or to publicise the event as they may think fit.")
The noble Baroness said: My object in tabling this amendment is to ensure that the IRA will not be able to use the restrictions on disclosure of information to prevent the families from burying their dead how, when and where they wish; nor the state and the media from stating and writing about the victims as they think fit.
The Explanatory Notes state that this subsection is intended to prohibit the disclosure of relevant information other than for the purpose of facilitating the location of the remains and to prevent disclosure of such information to a third party with no legitimate role in
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the process of locating the remains. The Minister explained in some detail in our discussions on Clause 4 the further extensions of that decision.
I suppose we have to accept that if the press is able to be present when a body, on information given, is discovered and disinterred, the IRA would simply not provide the location. I see some sense in that. But I fail to see why,
"The prohibition on disclosure will continue to apply after information has properly been passed by the Commission to a third party, such as the police";
that is, after the recovery of the remains from the secret location.
Can a family, receiving back the remains—perhaps only a few bones—be required to say nothing, ever, about the fact that they were found, say, in a concrete mixer or some other burial place which denied them all dignity? My main object is to ensure that the IRA will not get away with ordering the families to have midnight services with no publicity and to say nothing about an event which has utterly destroyed their lives I do not propose to press this amendment, but it is a point I wish to make about which I feel very strongly. I beg to move.
Lord Fitt: The terrorists who murdered these victims have already said that they will tell us where the bodies are, but in so doing they have demonised their victims. They said that the people they murdered were guilty of some offence against the IRA: that they were traitors or broke some of the laws laid down by the IRA.
It is well known that when the IRA has murdered someone and that person is buried, very few people will attend that funeral. That is not because they do not want to; hundreds and indeed thousands may want to attend the funerals about which this Bill is concerned. But there is still intimidation in Northern Ireland. If ordinary people associated themselves with the funerals of the victims they would be putting themselves in danger of further intimidation by the IRA. One has only to think of Eamon Collins, a former IRA man who was murdered recently in Newry. Few people attended his funeral. One needs only to recall the brutality with which his death was carried out. The IRA made contradictory statements; that is, that it would not prohibit any decision made in relation to the funerals.
The relatives of the victims, when they receive back the bodies, should be entitled to bury those remains in whatever way they think fit. In doing so I urge the people of Northern Ireland to turn out in force to attend those funerals, to show their distaste for what has happened.
Viscount Cranborne: I support my noble friend's amendment for exactly the reasons she gave, and for the reasons given also by the noble Lord, Lord Fitt. It would be helpful if the Minister, in his reply, was able to give us a reasonably full account of the conditions imposed by the IRA.
A number of newspaper reports over the past few weeks have made extraordinary reading, suggesting that all sorts of conditions would be imposed on the families as to how they could bury the remains of their

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relatives—those conditions being imposed by the murderers. That gives a new and dark meaning to the Alice in Wonderland politics of Northern Ireland.
It would be helpful if the Minister were, first, able to assure us—I am sure that he will be able to do so without equivocation—that the Government have not been party to promoting conditions of that kind as a means to coming to agreement with the murderers; and, secondly, to give us some account, in so far as he has been able to glean it, of the internal conditions imposed through intimidation by the IRA and its representatives on the families of the victims, particularly those victims who live in easy reach of IRA intimidation, as set out by the noble Lord, Lord Fitt.
I hope that the Minister will also make clear that the Government will do everything they can to publicise what those conditions are, and to express their contempt for anybody who imposes those conditions. I hope also that they will invite as many Members of your Lordships' House who are able to do so to attend as public a funeral as possible in the event of those funerals taking place.
7.45 p.m.
Viscount Brookeborough: I support this amendment. In following the noble Viscount, Lord Cranborne, I take this opportunity of saying a little of what I said at Second Reading because I produced the newspaper reports mentioned. Several noble Lords after Second Reading said that reporters are reporters. There were numerous reports and one cannot discard that issue in quite such a simple way as saying, "They are reporters". One was a Guardian reporter; so it was not just the Province's press; neither was it a one-sided issue within the Province, be it on the so-called "Unionist" press.
At Second Reading, I was reported as saying,
"This is not the Real IRA".—[Official Report, 18/5/99; col. 175.]
I repeated "real IRA" a couple of times, but Hansard took it to be "Real IRA" (with a capital "R") when I meant, "This is the Provisional IRA truly". The Real IRA is a different issue. I am not even sure whether it is on cease-fire; it may be. The consequences of the Provisional IRA, the people who murdered these people so many years ago, issuing threats and trying to organise what goes on, must mean that they are not renegade groups; they are the centre core. Are they on cease-fire or are they not? If not, what are the Government going to do about it?
Lord Monson: Like other Members of the Committee throughout the Chamber, I thoroughly support the amendment of the noble Baroness, which she moved extremely well. I suggest that if she fails to receive a satisfactory assurance from the Minister that this amendment is unnecessary, she may reconsider her decision not to seek to divide the Committee.
Lord Blease: It must not be forgotten in this aspect of the work of the commission that it will be managed and advised by the RUC, which will be given the task
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of looking after this aspect of the matter. The commission will not be left completely alone in terms of advising the relatives and others.
A further aspect is that the commission will be advised about the form of funeral arrangements or commemoration arrangements and that that will be a family matter in which it would not interfere. Families will know whether or not it is wise to have large gatherings or mass funeral arrangements, or whether the arrangements should be private.
Baroness Park of Monmouth: I thank the noble Lord for giving way. His use of the word "wise" proves my point.
Earl Attlee: I am grateful to my noble friend Lady Park for moving this amendment. The noble Lord, Lord Fitt, inadvertently referred to the "laws" of the IRA. I am sure that he will agree with me that only Parliament and in due course the Assembly can make laws; terrorists make illegal diktats.
My noble friend made an important point and I hope that the Minister can reassure us that there will be proper funerals in accordance with the families' genuine expectations.
Lord Molyneaux of Killead: I support the amendment because it would give essential protection to the families. The noble Lord, Lord Fitt, has testified to the bullying and sheer intimidation of families in the aftermath of the abduction and torture of their relatives. In several cases this was the only publicity, coming from deliberately leaked information from terrorists, giving details of how the victims were tortured to death. As the noble Lord stated, the object is to terrify the Roman Catholic population into remaining silent. I know from bitter experience of similar practices employed by so-called Loyalist killers against their communities.
The state surely has a responsibility and an obligation to apply the heaviest possible sanctions against those who seek to silence families who may be fortunate enough to gain possession of the remains of their loved ones? That duty must be discharged, whatever shady deals may already have been agreed between the various agents who worked together to produce this obnoxious Bill.
Lord Dubs: I very much sympathise with the concerns of noble Lords and the concerns expressed by the noble Baroness, Lady Park.
We were all aware of the rumours that the families of the victims were yet again to be treated cruelly by those responsible for the deaths of their loved ones. It was said that they were not to be permitted to hold the funerals of their loved ones in public but were expected to bury their dead in secret.
I am sure that when we read those comments in the papers, every one of us was appalled. I do not know specifically of any family who has been pressed in that direction. I am not saying that it has not happened because some of the pressures in Northern Ireland do not always surface publicly or become known to the

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Government, but I am not aware of any conditions that have been imposed on the families except those contained in the limited protection afforded by the Bill. I can give the assurance that the Government have not been party to any conditions that have been placed on the families.
The view of the Government is that it would be wholly wrong to deny the families the opportunity, with their friends and community around them, to lay their loved ones to rest in a proper, public manner. If that is their wish, then surely that is their right. I utterly condemn any suggestion that anyone should seek to interfere with the family's right in that respect, and I say that in the strongest possible terms.
I accept the concern that there are those who would seek to have these families forgotten once their remains are returned. There are people who have a vested interest in that approach, but people cannot be forced to forget, and it is no part of the Government's intention to wipe the face of these victims from memory.
The intention of the amendment is understood, and I have absolutely no quarrel with it. However, it is not necessary to include this permissive power in the legislation. There is nothing in the current legislation to prevent the family or the state from taking action to commemorate the victims or to publicise their fate. The Government are totally against anyone who would seek to apply pressure on the families in an effort to prevent them burying their loved ones as they wish.
Viscount Cranborne: The noble Lord has been extremely patient, if I may say so. Can he give an undertaking that if families were to be intimidated and if they asked for protection in order to allow them to conduct a public funeral, that protection would be forthcoming?
Lord Dubs: The RUC would take the strongest action against any intimidation of any sort, with the support of the Government. If there was evidence of such intimidation or if the RUC came to hear of it, it would be empowered to take the strongest possible action to resist that intimidation on behalf of the families. That gives the noble Viscount a clear assurance.
Baroness Park of Monmouth: I thank all noble Lords who have supported the amendment, and I thank the Minister for his reply. However, I find it impossible to understand, since he clearly accepts that the spirit of the amendment is right, why it cannot be incorporated in the Bill. If it were contained in the Bill the families would have something to appeal to in law, whereas the Minister is suggesting that they could go and tell the RUC. All noble Lords know that that is precisely what they dare not do. That is why I am urging that their clear right to take certain action should appear on the face of the Bill, with the implication that if people challenge that right, they will be in breach of the law.
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I will not divide the Committee at this hour, although I am tempted to, but I beg the Minister to accept the amendment. There is nothing in it which the Government do not agree with; hence I cannot see why he cannot accept it.
Lord Dubs: I thank the noble Baroness for giving way. The argument in support of the amendment is that people must not behave in a manner which is already criminal. It is already criminal to intimidate people in the way we have discussed. We do not need therefore to put on the face of new legislation that something is a criminal offence when it is already a criminal offence and when the RUC does its best to stop that type of offence from taking place.
Baroness Park of Monmouth: I will not prolong the discussion, except to ask: how is it, if it is already unlawful, that it has been happening for goodness knows how many years, with no one having anything in the way of protection? If the provision is contained in the Bill it will be much more difficult for people to break the law rather than to say that it is something that is not done. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn
Clause 5 agreed to
[Amendment No. 13 not moved.]
Clause 6 agreed to.
Baroness Park of Monmouth Baroness Park of Monmouth moved Amendment No. 14
After Clause 6, insert the following new clause—
COMMENCEMENT
(" .—(1) Sections 3 to 5 of this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint.
(2) No order may be made under subsection (1) unless the Secretary of State has laid before each House of Parliament a report setting out why, in his opinion, the provisions in question are compatible with the Convention rights, as defined in the Human Rights Act 1998, and that report has been approved by a resolution of each House.")
The noble Baroness said: The amendment is intended to challenge the statement on the face of the Bill that it is compatible with the Human Rights Convention embodied in the schedule to the Human Rights Act 1998.
I should like to cite some of the rights and freedoms that are breached. Article 2.1 states:
"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally, save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law".
Article 3 states:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
Article 5 states:
"Everyone has the right to liberty and security of person".
How does that square with the IRA's admission of so-called execution of its victims? Do the families who have been terrorised into silence all these years and consistently intimidated for no other crime than the wish to know whether their sons, husbands or mothers were alive or dead have no rights under Article 5?
Article 17 places a duty on the two Governments and states:
"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention".
Are the two Governments not in dereliction of their duties?
Lord Mayhew of Twysden: Can I assist my noble friend, while she is looking for her notes, by saying that the point she is making is a very important one for the Government to take on board; namely, that the interpretation of the Convention on Human Rights must never be made in a narrow and legalistic manner; after all, it is not written in narrow and legalistic language; it is written in very broad, conceptual language.
Therefore, is not my noble friend making an important point? She asks the Government not to look narrowly at the application of the convention in the context that we are discussing under her valuable amendment, but to look, with a broad and generous mind, to see whether or not the convention also applies to those in whose interests the Bill is brought forward—namely, the relatives. They have so far been denied what one had always thought of as a fundamental human right; that is to say, the right to know the whereabouts of the bodies of those who have been wantonly murdered. Is that not the thrust of the matter?
Baroness Park of Monmouth: I thank my noble and learned friend for that intervention.
Lord Molyneaux of Killead: Like the noble and learned Lord I, too, support the proposed new clause, especially subsection (1). I am also much interested in subsection (2) of the amendment. On the face of the Bill the Minister has provided the required certificate which reads:
"In my view the provisions of the Northern Ireland (Location of Victims' Remains) Bill are compatible with the Convention rights".
I do not for one moment doubt the sincerity of the noble Lord's assurance in that certificate. However, whatever side we may have been on during our earlier arguments today, I am sure we would all agree that this is a Bill the like of which has not been seen since Norman times. I have Norman blood in my veins, so that is perhaps why it rankles with me. However, the convention which may be called upon to adjudicate has a reputation for acting in most peculiar ways. Therefore, I agree with
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what the mover of the amendment and the noble and learned Lord have said. I fear that we have not seen the last of this Bill.
Baroness Park of Monmouth: With the leave of the Committee, perhaps I may complete what I intended to say earlier, and I shall be very brief. My question is: are not the two Governments in dereliction of their duty to the majority in condoning what the IRA has done in destroying the rights and freedoms of both the dead and their families? I put it to the Minister that, on a number of accounts, the Bill is not compatible with the convention statement of rights of the victims, the families or the law-abiding members of the community.
Unless she can produce cogent counter-arguments, the Secretary of State should surely be acting in conformity with Section 19(1)(b) of the Human Rights Act, which requires her either to make a statement of compatibility, which she has done and which I challenge, or, to,
"make a statement to the effect that although [she] is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill".
That is what the Act provides. That is what the Act requires and it would be true. I urge the Minister to recognise that, or to explain just how the Bill is compatible. I beg to move.
8 p.m.
Lord Dubs: The noble Baroness's amendment would require the Secretary of State to lay before Parliament a report on the compatibility of Clauses 3 to 5 of the Bill with convention rights. The report would then have to be approved by the affirmative resolution procedure. Only then could those clauses be brought into force. That would, of course, create a delay in information reaching the commission, but I leave that aside at this stage.
The noble Baroness will be aware that both the Secretary of State and I have given our opinion in the matter of compatibility with the convention by signing the required statement under Section 19 of the Human Rights Act. That statement appears on the face of the Bill. I should point out to the noble Baroness that I was given a detailed assessment of the Bill in relation to various elements of the human rights convention. I felt that I had to consider the matter in complete detail before it would be proper for me to sign, as I have signed, the certificate which now appears on the face of the Bill. I considered the matter in some detail and followed the very complicated arguments that were put to me, but I was satisfied that I could sign the statement now on the face of the Bill, which states that the provisions of the Bill are compatible with the convention rights.
The purpose of a Section 19 compatibility statement is to focus the Government's and, in turn, Parliament's attention on convention issues at the pre-enactment stage. The requirement which the noble Baroness seeks to impose through this amendment would not be consistent with the scheme of the Human Rights Act, as it would shift the debate on convention issues to the post-commencement stage. If queries are raised as to

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compatibility with the convention rights during debates on a government Bill, the Minister in charge will do his best to answer them. Under the Human Rights Act, it will ultimately be for the higher courts, and the courts alone, to rule on whether a particular measure is incompatible with the convention rights by the Human Rights Act.
Therefore, even if the Committee were to accept the amendment, which I suggest would not be helpful, I believe that the noble Baroness would not really achieve her main intention; namely, compatibility with the human rights convention. Surely that is something that should be done before the Bill is even presented to the House rather than being done at the end of the proceedings when it has been passed.
The most fundamental rights of the victims of these dreadful murders were violated by terrorists when those people were abducted, tortured and murdered. That is quite a separate question to that now before the Committee when we consider whether the scheme of the legislation is compatible with the Government's obligations under the European Convention. We are satisfied that the rights of the families in particular are respected by the Bill.
Baroness Park of Monmouth: I should like to thank all those who have spoken in support of my amendment, especially my noble and learned friend who saved my life earlier when I lost my place. I listened to what the Minister said with great interest. I find it deeply interesting that all his legal advisers saw no incompatibility between the provisions of the Bill and those in the Human Rights Act. It will make me look at the Human Rights Act with much greater care in the future.
However, I accept that it is not possible either to divide the Committee or, indeed, to pursue the amendment further. My object was to bring out, as I hope I have, the very real incompatibility which undoubtedly exists, at least in any lay mind, between human rights and what we are doing in this Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
House resumed: Bill reported without amendment. Report received.
Then, Standing Order No. 44 having been dispensed with (pursuant to Resolution of 20th May), Bill read a third time, and passed.

Tax Credits Bill
8.10 p.m.
Baroness Hollis of Heigham: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Hollis of Heigham.)
On Question, Motion agreed to.
Lord Higgins Lord Higgins moved Amendment No. 15:
After Clause 5, insert the following new clause—
PASSPORTED BENEFITS
(" . Recipients of a tax credit shall be entitled to the benefits to which claimants of family credit and disability working allowances were entitled under the National Health Service (Traveling Expenses and Remission of Charges) Regulations 1988 as they had effect immediately prior to the coming into force of this Act.")
The noble Lord said: My Lords, it may be for the convenience of the House if, in moving Amendment No. 15, I speak also to Amendments Nos. 30 and 31. I believe that originally they were grouped separately, but that it would be helpful to discuss the three amendments together as they are in many respects similar.
Much of the subject matter which arises with these amendments was discussed at col. 237 on 18th May when I suggested by way of an amendment that the consideration of the Bill on Report should be deferred until we were given more information on the Government's intentions with regard to the provision of passported benefits. I had hoped that as a result of tabling that amendment it would be possible for the Government to reach some conclusion with regard to what they propose to do on passported benefits. We have made some progress. I must at this point congratulate the noble Baroness, Lady Hollis, on her birthday as I did not have the opportunity to do so earlier this afternoon.
Baroness Hollis of Heigham: My Lords, I thank the noble Lord for his comments. As a birthday present, I should like to have no Divisions tonight. I hope that we shall also go home early.
Lord Higgins: My Lords, I am not sure that I can give that undertaking, but I hope that we can make reasonable progress in the light of the replies given by the noble Baroness on this happy occasion.
The words the noble Baroness originally used in Committee were that we would return to this issue before the Bill left Parliament. We seem to have made some progress in as much as she has stated clearly that the position will be made clear by the time we reach Third Reading. However, I in no way go back on what I said earlier; namely, that it is deplorable that the House should still be uncertain as to the position on this issue months after the Bill was originally introduced. I do not accept the point which the noble Baroness made on previous occasions; namely, that this is not an important aspect of the Bill.
When passing any legislation, the House must necessarily consider the repercussions of changes. What appears to have happened here is that the Government are moving from family credit to working families' tax credit, but it is not the least bit apparent, even now at this late stage, what the position will be with regard to those benefits which previously have been received automatically under the old scheme by those who are entitled to them. It is not clear to what extent they, or indeed new claimants, will receive those benefits in future under the system which is proposed in this Bill. We believe that it is important that that situation is

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clarified and that the House should have an opportunity to express a view with regard to the solution which the Government will eventually produce.
It is said, on almost every issue of moment in this House, that if something seems to be wrong we have a duty to ask the other place to think again. On this occasion, the other place has had no opportunity to consider the appropriateness of the Government's proposals. Members of the other place have put forward their own views, but they have not been able to comment on the Government's position. It is not even clear whether any passported benefits will be obtainable automatically under this Bill, or whether or not they will be means tested.
Having said all that, I understand that the noble Baroness is still no more able to give us any further guidance on what the Government's intentions are than when we met on the first day of Report stage. It is likely that the Third Reading will take place soon after we return from the Whitsun Recess. Therefore, we shall have little opportunity to frame any amendments. It is important that the Bill should be open to amendment and that the House should be able to express a view on whether what the Government propose is or is not satisfactory.
Earlier in our debates the noble Lord, Lord Goodhart, suggested that the Government might—as they have commendably done on a number of other occasions—put forward specific statutory instruments in draft which we would consider. It appears that that will not now be possible. Does the noble Baroness envisage that by the time we reach Third Reading draft statutory instruments will be available on which we can comment? If they are satisfactory, that is the end of the matter. However, if they are not satisfactory, the position becomes more difficult because one cannot amend a statutory instrument.
I have another point which I hope the Minister can clarify at this stage as that would be helpful. She has laid great stress on the difficulty of obtaining interdepartmental agreement between Ministers, or indeed—as far as one can gather—between officials. I believe that she mentioned six or seven departments. Which departments and which benefits are involved? I have experienced some difficulty in "totting up" the number of departments that are involved and equating that with the number that she mentioned. Some of the departments come under the Department of Health and others come under the Home Office. It would be helpful to know exactly which departments will be involved.
These are probing amendments. They have been tabled in the hope that we shall obtain a little more information on the Government's intentions before we reach Third Reading. I beg to move.
8.15 p.m.
Lord Goodhart: My Lords, I support the noble Lord, Lord Higgins. We debated this matter at some length on the first day of Report stage. It is clearly unsatisfactory not to know the position until Third Reading when there is no possibility of tabling an amendment to discuss the
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subject. As I understand it, we shall not have draft regulations before Third Reading. We may simply have to grin and bear it in the circumstances. Nevertheless, this is not a satisfactory situation. I hope that it will not happen again.
Baroness Carnegy of Lour: My Lords, with regard to our discussion in this Chamber on a previous occasion, it seems to me that noble Lords on this side of the Chamber are not, as I fear the noble Baroness suspected, simply trying to be difficult and to be awkward legislators. We are thinking about the individuals whom this Bill will affect and the Government's aim of trying to ensure that people see that work pays. However, they will not see that work pays if some benefits which they have received under the family credit scheme may no longer be payable. The working families' tax credit may then be worth less to them. We need to know as much as possible about this matter.
If the noble Baroness cannot answer my next point now, I hope that she can give me the answer at Third Reading. What will be the position with regard to the Scots Parliament, to which health is devolved and therefore—I take it—the matter of funding free prescriptions? How will it know the amount for which it will have to budget if it does not know what the Westminster Parliament is doing from day to day about working families' tax credit? That could create an awkward situation for the Scottish Parliament. I may be wrong. There may be some interlinking of which I am not aware. Presumably the Scottish Office is one of the departments that is being consulted. Perhaps the Minister can tell us.
The Scottish Parliament is not yet in a position to make decisions and has not had time to consider its budget. Supposing that a decision is made in relation to working families' tax credit that involves Scottish Parliament expenditure. How will that legislature know how to budget? It would be helpful if the Minister could tell the House, or write to me.
Lord Swinfen: My Lords, when this subject was last raised, the Minister said that she could not answer for other departments. I remind her that Ministers in this House speak for the Government, unlike Ministers in the other place who speak only for their own departments. That is something of which the noble Baroness used to remind Ministers in the previous administration.
Baroness Hollis of Heigham: My Lords, I did not say that I could not speak for other government departments but that because it was a matter for other government departments, I was not yet in a position to inform the House of the proposal. That is entirely different. The noble Lord, Lord Swinfen, should know better than to misrepresent my words.
Lord Swinfen: My Lords, I accept what the noble Baroness says, but this House has not had the opportunity properly to discuss the matter, which means that Members of the other place have not done so either.

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We must put some form of amendment into the Bill before it returns to the other place so that its Members have the opportunity to discuss the proposals.
Baroness Hollis of Heigham: My Lords, I acknowledge, as I did a week ago, that this matter is of concern to your Lordships, who will recognise that the issue is complex. The Government are committed to providing help through the low-income scheme to those who need it. Replacing family credit and disability working allowance with WFTC and DPTC represents a major policy shift in the target group for, and delivery of, in-work support. It raises the question of whether tax credits continue to be an appropriate means of identifying the target group for other benefits such as the low-income scheme. There is no longer such an obvious alignment between family credit as an indicator of low income and the recipients of benefits through a low-income scheme. The Government have given careful consideration to that question and how any change to the current passporting arrangements might work in practice.
I cannot go further than I did a week ago when I made it clear that we will be coming back to the issue at Third Reading, not on the second day of Report stage. The Government have no wish to discourage your Lordships from having the opportunity properly to debate the proposals. I reiterate the commitment to set out the Government's intentions on Third Reading and I am happy to take a relaxed view of the discussions at that point on that issue. That will give the House the opportunity to discuss our proposals.
Amendments are not necessarily appropriate because it is not appropriate that this is part of the primary legislation. Like the noble Lord, Lord Goodhart, I doubt that draft regulations will be ready in time. Nonetheless, that will not stop your Lordships, when you see fit, seeking to debate the regulations in due course.
The noble Baroness, Lady Carnegy of Lour, and the noble Lord, Lord Higgins, asked about the array of passported benefits and the interrelationship between the territorial departments. Apart from passporting on to free prescriptions, which is the biggest item in terms of the cost to government, recipients of family credit are otherwise currently entitled from the Department of Health to welfare foods, such as cheap baby milk; cheap home insulation, which is a matter for the Department of the Environment, Transport and the Regions; legal advice and assistance, which is a matter for the Lord Chancellor's Department or its Scottish equivalent; the remission of court charges, which is also a matter for the LCD; help with travel costs for prisoners' wives, which is a matter for the Home Office; and maternity and funeral grants, which are matters for the DSS.
Given that all those passported benefits have different implications for the territorial departments, it would be more appropriate for me to write to the noble Baroness, with a copy to the noble Lord, setting out the arrangements for each of them.
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I am sure that there will be adequate and appropriate time for discussion on Third Reading, and in light of that, I hope that the noble Lord will withdraw his amendment.
Lord Higgins: My Lords, one understands the difficult position in which the Minister finds herself, but so does the House. This is not in any sense a partisan matter. If the outcome from the Government i s satisfactory, there will be no problem, but it is important that the House should have the opportunity to discuss and, crucially, to amend whatever the Government propose because that will be the consequence of the change from one system to another.
I had some difficulty getting the number of departments up to six. I identified the Department of Health, the Home Office and the DSS. Presumably they include also the Inland Revenue—although, understandably, the Minister did not mention that department.
Baroness Hollis of Heigham: My Lords, then there are Scotland, Wales and Northern Ireland.
Lord Higgins: My Lords, in which case the House will be grateful to my noble friend Lady Carnegy of Lour for her comment about devolved responsibilities. Unless I misunderstood the Minister, she did not say whether responsibilities would be devolved.
Baroness Hollis of Heigham: My Lords, given the six or seven different passported benefits and the seven or eight government departments if Scotland, Wales and Northern Ireland are included separately, each has different arrangements and reserve matters. I thought it would be more helpful to write to the noble Baroness, with a copy to the noble Lord.
Lord Higgins: My Lords, that is an important point. As the noble Baroness did not give a categoric reply one way or the other, my understanding is that some responsibilities will be devolved. I do not know which. No doubt we shall discover that in the Minister's letter. If some responsibilities will be devolved, presumably any decision that this House makes on, for example, prescription charges, would create one situation in Scotland and another elsewhere.
We are all in new territory as far as devolution is concerned. But am I right in thinking that some decisions on passported benefits will not necessarily be the same in England as in Scotland, if the Scottish Parliament were to take a different view from that taken in this House with regard to England?
One hopes that the Government will come forward with statutory instruments. It seems extraordinary that at this stage the Government are still not ready. I do not go along with the noble Lord, Lord Goodhart, with whom we are otherwise much in agreement, that we must grin and bear it. If we do not like what the Government propose, we shall have to consider moving and voting on an amendment that will take the matter back to the other House, so that there is time to consider the Government's proposals. That would seem only fair

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in the circumstances, given the dilatory way in which the Government have been moving. Subject to that—unless the noble Baroness wishes to intervene on the particular point I have made—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.30 p.m.
Lord Higgins Lord Higgins moved Amendment No. 16:
After Clause 5, insert the following new clause—
PUBLICATION OF TARGETS
(" .—(1) The Board shall publish annually targets for the speed and accuracy with which claims are to be processed and payments are to be made.
(2) Targets published under subsection (1) above shall include targets for—

(a) the speed and accuracy with which initial claims are to be processed and paid by the Board;

(b) the speed and accuracy with which renewal claims are to be processed and paid by the Board;

(c) the speed and accuracy with which claims are to be processed and paid by the Board where the employer has failed to make a payment;

(d) the speed and accuracy with which claims are to be processed and paid by the Board where the claimant is involved in a trade dispute lasting more than one pay period.

(3) The Board shall publish annually a report showing how it has performed against the previous year's targets set out in subsection (1) above.")
The noble Lord said: My Lords, I beg to move Amendment No. 16, which stands in my name and that of my noble friend Lord Astor of Hever. We have not previously considered the amendment, which reflects concerns that have been expressed outside.
The amendment seeks to set fairly specific targets for the Government so far as concerns the way in which the Inland Revenue carries out with speed and accuracy the tasks imposed upon it by this legislation, particularly the way in which claims are processed and payments made. A fairly major change will take place when the responsibility passes from the DSS to the Inland Revenue. Perhaps the noble Baroness will confirm that I am right in saying that the computer arrangements and the staff involved, with some augmentation—new members of staff will need to be trained—will be transferred directly from the DSS to the Inland Revenue. In that context, I am not clear whether their location will also be changed or whether they will stay physically in the same place, albeit with expanded accommodation.
One cannot help but feel that, in some respects, speed and accuracy are not likely to be improved as a result of the change. To give credit to the Department of Social Security—if not to its computer system—one recognises that, at the moment, family credit payments seem to arrive fairly much on time, unlike some other social security benefits. The speed of the Inland Revenue—its fleetness of foot, one might say; perhaps I should not say that in my present circumstances—is not
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remarkable. Very often one finds Inland Revenue payments and adjustments being carried out years after an event.
The amendment proposes that targets should be published so far as concerns these various matters. That proposal is very much supported by outside bodies such as the National Association of Citizens' Advice Bureaux. Targets should be set not only with regard to initial claims, but particularly with regard to renewal claims—as the amendment makes clear—and to the speed with which the department deals with problems when an employer has failed to make a payment. That problem does not arise at the moment because payment is made directly. If the Government remain adamant that payment is to be made by the employer, we should have targets in order to check that it is being done speedily. One particular problem which has been drawn to our attention concerns the making of claims during a trade dispute.
As I understand it, there are existing targets for payments in some of the Benefits Agency's various operations. Indeed, in some cases they are quite tight targets which historically have been met. In short, while the CAB and others draw to our attention significant delays in the present arrangements, one cannot help but feel that both in the transitional period, and perhaps in the longer term, matters will be not dealt with as they have been previously. As there are already targets, I hope that the amendment will be acceptable to the Government.
I have two final points. First, apparently there is already a considerable backlog as far as concerns Benefits Agency payments. I am not referring to pensions and so on, but to a more general backlog. Perhaps the noble Baroness can give us some indication of that.
Baroness Hollis of Heigham: My Lords, I am a little puzzled. The noble Lord said that it was not a backlog of benefits. Clearly, we are not talking about a backlog of appeals or of compensation. What backlog did the noble Lord have in mind?
Lord Higgins: My Lords, as I understand it there is a backlog with regard to payment of the existing benefit which the working families' credit will replace; namely, family credit. If that is not so, I am quite prepared to accept the noble Baroness's assurance.
Baroness Hollis of Heigham: My Lords, that is not
SO.
Lord Higgins: My Lords, I am quite happy to accept that.
I wish to raise one further point. The Inland Revenue's plans have been published and it has suggested that it might not be possible to arrange payment promptly because an employer may not have the money, a point to which we shall no doubt return later. Generally speaking, one hopes that the Government—mindful of the difficult circumstances of many of those receiving working families' tax credit and disability benefits and so on—will

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introduce a system of targets. If the Government do not like the targets suggested in the amendment, perhaps they will suggest something more quantitative at a later stage of the Bill.
Lord Skelmersdale: My Lords, my noble friend has put flesh on the bones of a question which was asked in Committee but not answered. I made the point that the Inland Revenue currently takes a number of weeks to get someone off the PAYE emergency code on to his proper code. In extreme cases, that can take between six and eight weeks. That does not bode well for the transfer of family credit to the Revenue.
I should like to make two points. First, how quickly is family credit paid to a recipient at the moment? Let us imagine, for example, that I was unemployed and that I went for an interview and was accepted for a job starting on, say, Thursday week, and I then filled in the form for family credit and sent it off. Assuming, of course, that the application was accepted—which goes without saying—when could I realistically expect my first family credit payment to be made?
Secondly, does the noble Baroness expect any changes in payment times to occur as a result of the changes made in this Bill in transferring the responsibility from the Department of Social Security to the Inland Revenue? As I said, the precedents are not terribly good.
Baroness Fookes: My Lords, I support the amendment. First, it is very important for recipients of the benefit to know that they will get a quick and good service. It seems to me that the setting of targets is a very good way of making those responsible for the payments sharpen up their act and ensure that there are no delays. Most of us are able to point to previous delays in various matters by the Inland Revenue; the precedents are not good.
Secondly, today the Government have announced their intention to bring forward a freedom of information Bill. It seems to me that this kind of information falls very neatly into the categories where one would expect more open government.
Lord McIntosh of Haringey: My Lords, the amendment provides that the board shall publish annually targets for the speed and accuracy with which various categories of claims are to be processed and payments are to be made and shall publish annually a report showing how it has performed against the previous year's targets. We are fully in sympathy with the concerns behind the new clause and we agree absolutely that it is right that the Inland Revenue, in taking responsibility for the new tax credits, should not only set targets for its performance in key areas but should also be open to scrutiny as to how well it measures up to those targets. The success of the tax credit scheme will depend very largely on the speed and accuracy with which the Revenue gets the tax credits to the people entitled to them. It is only right that these matters should be in the public domain. So I have no hesitation in giving noble Lords the assurance that they seek that the board will be publishing details of key
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operational targets and of the performance against the targets set for working families' tax credits and disabled person's tax credit.
We are considering at the moment what the targets should be. Again, I can assure noble Lords that the concerns expressed in the debate will help the Government's deliberations about the priority to attach to different areas of work on tax credits and how best to ensure that the Inland Revenue's performance reflects those priorities. In particular, I think that the point made by the noble Lord, Lord Higgins, about initial claims and renewal claims is a valid one which ought to be considered for inclusion in the targets to be published.
The noble Lord, Lord Skelmersdale, asked about the processing time. The intention is that the processing time should be five days and that the payment could be made on the Tuesday a week after the claim has been made. The noble Lord will be reassured to be reminded that once a claim has been processed it stays at the same figure for 26 weeks, so there is some security in that sense.
We are also taking account of the point made by the noble Lord, Lord Higgins, about an employee who is involved in a trade dispute. If it lasts for less than a whole pay period, the employer will pay the full amount of tax credit due even though the pay might be reduced because of the dispute. If it lasts for the whole of a pay period or longer, the employer will not be expected to pay the tax credit but must, as soon as possible, provide the employee with a certificate of payment showing the amount of tax credits paid and the period they cover. The employee will be responsible for passing that to the Inland Revenue, which will then pay the tax credit direct to the employee until informed by the employee that he or she has returned to work. We are already giving detailed consideration to what targets and what measures of speed and accuracy will be involved. We are grateful to those noble Lords who have participated in this debate for pointing out particular cases.
As for reporting on performance against any targets which the Government set, the subject of the third part of the amendment, I am glad to confirm that the board will, as a matter of course, be reporting on how well the tax credit targets are being met. The board already lays before Parliament an annual report covering the aims and targets of the department in all the areas of its work. That will include working families' tax credit and disabled person's tax credit and those will be reported separately because the tax credit office will be a separate division within the Inland Revenue. The board's report is the appropriate place for setting out both targets and performance in relation to tax credits. I hope I have persuaded your Lordships that there is no need for another report as is called for in the amendment and therefore that noble Lords will not seek to press the amendment.
8.45p.m.
Lord Skelmersdale: My Lords, before the noble Lord sits down, if he expects that the Inland Revenue or the separate division of the Inland Revenue dealing with

723
tax credits will be able to act on them within five days, why does it take six to eight weeks for an emergency code to be translated into a real code?
Lord McIntosh of Haringey: My Lords, it is reasonably well accepted that the existing family credit is paid fairly well up to date. It is the family credit staff who are being transferred to the Inland Revenue who will be responsible for these payments. On behalf of the Government, I do not accept any criticism about emergency tax codes, but I do suggest that that is outside the scope of discussion on the Bill.
Lord Higgins: My Lords, the Minister was doing extremely well until the very last minute. One of the reasons why I was prompted to move the amendment is the number of cases in which the time for payment has amounted to six weeks or three months. I accept that that may not be typical, but it was important to raise the matter. The Minister has given a very forthcoming reply. I am a little worried that this kind of report may be buried in the department's annual report. He said that the information will be set out separately, which is of some advantage. The way in which departmental reports are now produced, which is due of course to the activities of the previous government, is vastly better than it was before. From years on the Treasury Select Committee, I know that we have made a good deal of progress there, but it is important to have this information, particularly for the transitional period.
I have one final point to make. Concern has been expressed about what will happen when industrial disputes occur and industrial relations are not likely to be at their best. It may be difficult for someone who is in fear of losing his job to bring to the attention of the authorities the fact that he has not been paid on time. No doubt the noble Lord will wish to consider that point.
This is the first amendment to which I have actually had a forthcoming reply in the sense of seeing movement. I think that we are making progress. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Payment of tax credit by employers etc.]:
Lord Higgins Lord Higgins moved Amendment No. 17:
Page 4, line 4, at end insert—
("( ) Regulations under this section shall not provide that an employer shall pay tax credits to an employee unless he has received, either directly or by way of deduction from remittances which he is otherwise obliged to pass to the Board, finance to pay the tax credit.")
The noble Lord said: My Lords, this is a rather inelegant amendment, for which I must be held responsible. We are saying that we should not have regulations which require an employer to pay tax credits to an employee if he has not received the money which he will pass to the individual employee. Earlier in our proceedings we discussed at some length the whole issue of cashflow and so on. I do not wish to delay the House any longer on that point. Perhaps I may therefore use the amendment to ask the Minister whether the Government accept that it would not be appropriate for
724
the regulations that will implement the proposals in the Bill to require the employer to pay money to an employee if, either by way of changes in the specific remittances made to the company or by way of deducting from the positive cashflow that the employer has already received as a result of collecting PAYE and NICs, the employer has not received it. I beg to move.
Baroness Carnegy of Lour: My Lords, this is an important matter to which it is well worth returning. The CBI and the representatives of small businesses are worried. One of the reasons for their worry is the wording of Clause 6(5)(d). It states:
"for the funding by the board of tax credit paid or to be paid by employers (whether by way of set off against income tax or national insurance contributions for which they are accountable to the Board or otherwise)".
It has been pointed out by the CBI that where there are a number of low paid people in a smaller business the amount of tax they pay is often considerably less than the working families' tax credit would be. That could mean that they would be in deficit for a while until they received money from the board. This point has been answered in different ways at different stages already, but I would be grateful if the noble Lord would make it very plain that in fact employers will not be in deficit on this. They really are concerned about the point because they fear that they might be paying money to the recipients which they will have to fund themselves. I hope that we shall get a very clear and unequivocal answer on this.
Lord Swinfen: My Lords, I should also like to support this amendment. It is extremely important that this amendment, or something similar, is put into the Bill for those firms, no matter how large they are, which are operating very close to being profitable or unprofitable. If they find they are having to fund tax credits out of their own pockets it could just push them over the edge into unprofitability. That in the long run could lead to large numbers of people becoming unemployed.
Lord McIntosh of Haringey: My Lords, I do not at all complain about any inelegance in the amendment to which the noble Lord, Lord Higgins, referred. I complain about myself, because obviously I did not make myself clear at the Committee stage. I thought I had given the most complete and absolute assurance that the circumstances which the amendment supposes would not actually arise. So I was rather surprised to find the amendment on the Marshalled List again. However, I must try again. The amendment provides that an employer would not pay tax credit to an employee unless he had received direct funding from the Inland Revenue or indirect funding by setting off the tax credits against the amount he was due to pay to the Inland Revenue: presumably PAYE, national insurance contributions and any student loan repayments.
This is exactly what is already provided for in Clause 6(5)(d) of the Bill, to which the noble Baroness, Lady Carnegy, referred and in the draft Payment by Employer Regulations. Therefore an amendment of this

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kind is completely unnecessary. The phrase, "paid or to be paid" simply reflects the fact that the funding is either direct or indirect but it is still funding, and funding in advance. No employer is required to pay any money in the form of tax credits which is not already to hand either in the form of his setting off against the amounts due to be paid to the Revenue or in the form of direct funding.
Let me tell your Lordships again about the way in which employers will receive funding to pay tax credits. All employers who will be asked to pay tax credits through the payroll will already be operating a PAYE scheme and so they will all have some PAYE or national insurance contributions liability to the Revenue. In addition, some employers will be deducting student loan repayments from their employees' pay and they will be responsible for paying these amounts also to the Revenue. Therefore the draft Payment by Employer Regulations provide for employers to set off any tax credits they have to pay against their total tax, national insurance contributions or student loan liability. When they are paying over PAYE, NICs and student loan recoveries to the Inland Revenue they will simply reduce the total by the amount of tax credits they have paid.
This mechanism is explained in the Inland Revenue booklet on Working Families Tax Credit and Disabled Persons Tax Credit and is clearly set out in draft Regulation 6 of the Payment by Employer Regulations. Of course we recognise that some employers will not have a large enough liability to the Inland Revenue to cover the tax credits that they have to pay. Such employers will be able to apply for funding from the Inland Revenue in advance. So the Inland Revenue will provide funds where they are needed to ensure that employers are not out of pocket. Draft Regulation 7 covers the arrangements for advance funding.
Applications for funding will be made on a special form which the Inland Revenue will provide. From April 2000 this form will be sent to an employer who is being asked to pay tax credits for the first time. From January 2001 onwards the forms will be included in the Inland Revenue's annual employer's pack. If any of your Lordships have been employers and have seen this pack you will know that it is a weighty one. All employers will be prepared in case they need to apply for funds. I hope it is clear that the Government have no intention of asking employers to dig into their own pockets in order to pay tax credits.
I have been asked what happens if the employer has no money to pay the tax credits. The noble Lord, Lord Swinfen, in particular talked about a firm which is on the brink. Employers of course will have a duty to see that the money is available on pay day, and when they are notified to start paying tax credits they will need to do two things. First, they will have to make arrangements as soon as possible to pay tax credits, ensuring that the person processing the payroll has all the tax credit information that is needed. If they have any doubts they will have to check that there will be enough money available to pay the tax credits, and apply for Revenue funding if necessary. As soon as it is clear that the money will not be available, the employer must
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tell the Inland Revenue and in certain circumstances—in other words when it is necessary—the employer may step in to ensure that the payments are maintained. We are not talking a very large number—
Lord Skelmersdale: My Lords, I am sorry to interrupt the noble Lord but surely he has got that wrong. It is not the employer who has to make certain: it is the Inland Revenue which has to make certain.
Lord McIntosh of Haringey: My Lords, I am grateful for that correction. Yes, of course, the Inland Revenue may step in to ensure that payments are maintained. We are not talking about a very large number of employers. Our estimate is that between 50,000 and 70,000 employers throughout the whole country will have to receive funding because their payments on PAYE, NICs and student loan recovery will not be enough to cover the tax credits. But even in those cases there is no question of employers digging into their own pockets, and this amendment is not necessary.
Baroness Carnegy of Lour: My Lords, before the noble Lord sits down and with the leave of the House, can he tell us how accurate employers are going to have to be in assessing the money they will need? This is one of our great concerns. The noble Lord said that if an employer reckons he is going to be out of funds for paying the working families' tax credit: he will be able to apply for more money. Will he have to prove in detail what he requires or can he make a general assessment? I hope the noble Lord will be able to tell us that because it is quite important to individual employers, especially small ones.
Lord McIntosh of Haringey: My Lords, the employer will get from the Inland Revenue all the calculations: these will all have been done by the Inland Revenue and so the employer will get a single figure. He will know how many employees it applies to and it will be very straightforward for him to calculate how much he will have to pay out in tax credits. I have dealt with a payroll for many years and one of the easiest things to calculate month by month is the amount that you have to pay out in PAYE and national insurance contributions. It is in a book with 12 monthly pages. You keep a record on the inside front cover of what you pay out, and I can assure your Lordships that every employer knows exactly what he is paying out. He will have no difficulty in assessing whether the cashflow benefits that he gets will cover the tax credits.
Lord Swinfen: My Lords, before the noble Lord sits down, if the Inland Revenue needs to step in to provide funding, how long will that take?—because if the employee is paid on a weekly basis he will want to paid at the end of that particular week.
Lord McIntosh of Haringey: My Lords, the employer must make the application in time, and it depends on whether his staff are paid weekly or

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monthly. Provided he makes the application within the time specified in the regulations he will get the money on time.
Lord Higgins: My Lords, the House will understand that the noble Lord is overcome with nostalgia for his previous calculation of PAYE forms. I always found it extraordinarily difficult, but obviously he is much better at these matters than I am. The noble Lord has given a clear undertaking on the basis of the amendment and confirmed what he said previously. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 18 had been withdrawn from the Marshalled List.]
Lord Astor of Hever Lord Astor of Hever moved Amendment No. 19:
Page 4, line 7, at end insert—
("( ) for the funding by the Board of an additional sum (calculated as a percentage of the tax credit paid by an employer) to be set off (as provided in paragraph (d)) by, or paid to, employers or any category of employers by way of compensation for the administration cost of paying tax credits;")
The noble Lord said: My Lords, in moving Amendment No. 19 I should like to speak at the same time to Amendment No. 20. These are probing amendments which will provide the House with the chance to debate the administrative burdens of the WFTC on business and to hear the Minister's reply—I am not certain who is to respond to the debate—in the light of a recent and sensible comment by Jack Cunningham. In a speech to the Social Market Foundation on the new government approach to regulation and reform of the Regulatory Impact Unit, he said that,
"government must be more realistic about how much time small businesses have to cope with regulation".
He went on to say,
"small firms need to be able to concentrate on running their business and securing new work".
He was determined that,
"the Government's new approach to regulatory control will take account of small firms' concerns".
Small firms are concerned at the administration costs of paying the credits, and I hope that the Minister will take account of their concerns. The time and paperwork involved in being unpaid tax collectors are ever-increasing and weigh disproportionately on small firms. These amendments would allow for small firms to be reimbursed their costs, which is commonplace on the Continent.
Amendment No. 20 proposes the 'funding of the costs of employers of less than 500 employees. We have chosen the figure of 500, which is the CBI's definition of a small and medium-sized enterprise. Small businesses in particular are not attempting to avoid their responsibilities. Many small firms simply do not have the resources or back-up to administer the system effectively. Large firms have payroll systems and
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personnel departments, but this kind of work becomes a nightmare on the kitchen table for a small business owner.
We wish to ensure that when employers are asked to administer these tax credits the system is workable. All that will happen is that smaller firms will have to seek expensive professional help or divert resources and manpower from core activities to comply with this requirement and the other burdens of legislation that affect them. We do not feel that this can possibly pass the test set by Jack Cunningham.
At the rate the Government are going, businessmen in small companies will cease to be entrepreneurs as they will have to spend so much time as unpaid administrators of the Government's welfare system. The Minister has just maintained that the work to be done by employers in administering tax credits is minimal. That is disputed by employers' organisations, who point out that employers will have to log each start and stop notice so as to take the right action on each pay day and insert the correct amount on the payslip of each claimant. They will then have to add up the total tax credits paid to all employees on any one pay day and deduct that total from the PAYE tax and national insurance that they have to pay to the Revenue. An employer who will be out of pocket and therefore able to claim an advance of money from the Revenue will have to estimate the amount needed and get the evidence together for his claim.
In addition, there will be mistakes and the employer will be blamed. An employer may pay the wrong person on the incorrect instructions of the Revenue and will have to spend more time correcting that mistake. Small business organisations are incensed by the misleading statement that the Revenue rather than the employer will do all the work. One suggested to me that Ministers should be conscripted into small companies' payroll departments for a month and they would then understand. I beg to move.
Baroness Carnegy of Lour: My Lords, it seems to me that the Government have accepted the principle of reimbursing employers for the work that they do in relation to benefits in the case of maternity benefit. I remember operating the system for somebody on maternity leave, paying her salary while on leave and claiming it back from the department. Extra was paid back to cover the administration that I had had to undertake. I forget the proportion but I regarded it as very reasonable and human of the department. There is a principle within the Department of Social Security that may be related to this point.
Lord Goodhart: My Lords, we on these Benches—in view of the absence of my noble friends perhaps I should say "I"—recognise the problems of small businesses. The problem that this Bill creates for small employers is, at any rate for the time being—although I fear what may happen when this Bill goes back to another place—much reduced by the amendment passed at Committee stage to exclude small employers from liability to make payments of tax credits through the payroll.

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I find a good deal of difficulty in supporting Amendment No. 20, or Amendments Nos. 21 to 23, which have not yet been spoken to but which I would have difficulty with for the same reason. Apparently they are all based on the idea of refunding to the employer the actual costs incurred. I believe that that would involve massive bureaucracy and an opportunity for fraud and would give employers no incentive to minimise their administrative costs. Further, Amendment No. 20 gives help to quite large employers who could well afford to carry the costs involved. A business with, say, 499 employees could have a wages bill comfortably in excess of £10 million a year.
Amendment No. 19 seems a good deal better, perhaps not surprisingly, as it is similar to an amendment which I tabled at Committee stage. It proposes to set a percentage addition to the tax credit payments so that the calculation is simple and an incentive to minimise costs is preserved. That idea is based on the funding system for the administrative costs of statutory maternity pay. The amendment gives the Government power to decide where the dividing line falls between the small and large employer and a discretion in deciding the appropriate percentage rate.
The Government have argued that there is no compensation for the cost of administering PAYE or national insurance contributions. That is perfectly true. But, in that case, why make an exception for statutory maternity pay? The answer must be pragmatic. An employer of any size cannot escape paying PAYE or national insurance contributions. The only employers who do not do so are those employing perhaps a gardener, or a cleaner in the house, for a few hours a week. Small employers employing up to 10 people can seek to avoid employing pregnant women, or women likely to become pregnant. So they have had their costs refunded in order to avoid the disincentive of employing those members of their staff.
For the same reason, we should not give small employers an incentive to avoid payment of tax credits through the payroll. In addition, PAYE and NIC deductions compensate employers to a limited extent by the cash flow effect. The payment of the deducted contribution occurs some time after the payment of the wages. That cash flow effect is reversed in the case of tax credits.
However, I am somewhat ambivalent about Amendment No. 19 at this stage. The exclusion which we have already achieved of employers with fewer than 10 employees makes the amendment largely unnecessary. That was why we did not table our amendment again on Report. We look on it effectively as an alternative to the amendment passed during Committee stage.
Lord McIntosh of Haringey: My Lords, I was amused by the suggestion of the noble Lord, Lord Astor, that Ministers responsible should be conscripted to the payroll department of small firms for a month. It was not just the idea that small firms have payroll departments—they do not; the boss does the work—but because I have done so not just for a month but for many years. I have to repeat what I have said in previous
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stages of the Bill. The burden which is supposed to be imposed on small employers from the tax credit proposals is very small indeed. The burden imposed by the requirement on all employers to operate the PAYE and national insurance contribution system is substantially larger than what is proposed in the Bill. And even that is dwarfed by the burden imposed by value added tax, which is a transaction-based activity which requires every financial transaction to be recorded and calculated for a VAT return on a quarterly basis. As a matter of practical experience, I cannot accept the accusations about the burden of tax credits on small employers.
I have difficulty in speaking only to Amendments Nos. 19 and 20. Amendment No. 18, which was withdrawn, and Amendment No. 23 are clearly alternatives which set a threshold of the amount of the annual national insurance contribution payments. Amendments Nos. 20 to 22—they appear, illogically, to be in different groups—are three alternatives which set the threshold of the number of employees. Amendment No. 19—it was not moved by the Liberal Democrats in Committee, not because a previous amendment had been carried but because the Liberal Democrat Front Bench was empty at the time and no one was present to move it—seeks to achieve exactly the same objective by calculating the sum as a percentage of the tax credit paid by the employer. I have only to speak briefly of the cost of the amendments to make it clear why the Government cannot accept them. Amendment No. 19 would cost £35 million per 1 per cent of compensation paid. Amendment No. 20 would cost £60 million.
Lord Goodhart: My Lords, in view of my original paternity of Amendment No. 19, perhaps I may ask how the Minister can come up with any figures at all since it depends on the level at which the Government decide what is a small business.
Lord McIntosh of Haringey: My Lords, Amendment No. 19 is not about small businesses; it is about all businesses, large and small. It sets the figure as a percentage of the tax credits paid by the employer, whether the employer has five employees or 5,000.
Lord Goodhart: My Lords, the amendment states:
"employers or any category of employers".
Therefore, the Government could say that it would apply to employers with fewer than five employees, fewer than 10 employees or fewer than 20 employees.
9.15 p.m.
Lord McIntosh of Haringey: My Lords, I believe that the noble Lord, having accepted paternity of this amendment, ought to have thought a little more about what he meant by "percentage" and by "categories". The same applies to the noble Lord, Lord Astor, who has moved the amendment and taken over paternity. I have made the simplest assumption that there will be some percentage and I have assumed that it applies to all employers. If I had really wanted to, I would have constructed a table, but, frankly, it is not worth the effort. However, to say only that it is £35 million per

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1 per cent of compensation paid makes the case. Amendment No. 20 would cost £60 million; Amendment No. 21 would cost £50 million; Amendment No. 22 would cost £40 million; and Amendment No. 23 would cost £30 million. Therefore, the amounts of money are not insignificant.
Our objection to the amendments is primarily one of principle. As I explained in Committee when similar amendments were proposed, the tax system does not provide, and has never provided, for a direct subsidy or compensation payment to employers who fulfil their obligations in relation to tax. Tax credits will be part of the tax system and the normal tax rules will apply.
As regards the comments about statutory maternity pay, perhaps I may say in parenthesis that it is not part of the tax system; it is a benefit. Tax credits are part of the tax system and it would not be appropriate to introduce an anomaly into that system. There is no reason why tax credit administration should be treated differently from PAYE administration, for which no compensation is paid or has been paid for a period of more than 50 years.
To change the rules here and provide compensation would be the thin end of the wedge because it would be very difficult to draw the line between tax credits and other parts of the tax system. The knock-on effect could therefore be extremely expensive for the Exchequer and for taxpayers generally once the "no compensation" principle had been undermined.
Although I have no direct knowledge, I do not deny that in other countries employers may be compensated for their time; but not in this country. They never have been and no government of any political persuasion have sought to do so.
Amendment No. 23 singles out employers with an annual national insurance liability of less than £20,000, presumably because these will tend to be small businesses which, so the argument goes, will incur disproportionate costs when they pay tax credits through the payroll. While I am on that point, I cannot accept the statement of the noble Lord, Lord Astor, that the burdens of being unpaid tax collectors are ever increasing. The burdens of national insurance contributions and PAYE have not changed for many years. The increase proposed here is minimal and does not involve employers paying the tax credits out of their own pockets.
Amendments Nos. 19 to 22 would go much wider, providing compensation in one case for all employers. However, I accept what the noble Lord said about the provision which could be made in different cases. In the other case, it would provide compensation for up to 500, 100 or 50 employees.
We do not deny that there are some costs, although they must be seen in the context of advantages to employers of an enlarged labour pool as a result of the working families' tax credit and the disabled persons' tax credit. But the way to minimise burdens on employers is surely not to introduce a potentially expensive anomaly into the tax system, which is what these amendments do. A far better approach is to
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continue what we have been doing for the past year: consulting representative employers and payroll providers of all sizes in order to ensure that the details of the scheme meet their concerns and impose minimal costs on employers generally.
When I debated these amendments in Committee, I gave a long list of the fiscal measures which the Government have introduced in recent Budgets to protect and help small businesses. I shall spare your Lordships that list again today. But if anybody thinks that this Government are not concerned about the health of small businesses, they are very wrong indeed, as the noble Lord, Lord Astor, recognised by his use of those very apt quotations from Jack Cunningham's speech.
The amendments do not have any sound basis. They would damage the whole principle on which we have calculated the tax system for a period of 50 years or more. I urge the noble Lord not to press the matter to a Division.
Lord Astor of Hever: My Lords, I am grateful to the Minister for that reply. I take the point of his personal experience in those matters. I am grateful also to my noble friend Lady Carnegy for mentioning the precedent of statutory maternity pay.
The Minister referred to my comments about Jack Cunningham. I said that Mr Cunningham stated that the Government must be more realistic about how much time small businesses must spend in coping with regulation.
Both myself and most small business organisations are not sure that the Government, with the exception of Jack Cunningham, understand fully how onerous and costly it will be for small firms to administer those tax credits. However, I said that these are probing amendments and in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
Lord Astor of Hever Lord Astor of Hever moved Amendment No. 21:
Page 4, line 7, at end insert—
("( ) for funding the administration cost incurred in paying the credit by employers of less than 100 employees;")
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 22 and 23. In Committee, when I moved similar amendments, the noble Lord, Lord McIntosh of Haringey, accused me of having shot my fox. However, as the noble Lord, Lord Goodhart, pointed out when speaking in support of the amendment, the Government have made it clear that in the other place they will overturn the amendment allowing small employers to opt out. The business community is also expecting that.
Bearing that in mind, and mindful of the fact that the Social Security Select Committee recommended that small employers should receive an additional reimbursement to alleviate their administrative costs, we offer these amendments to the Government as an alternative. They could agree that the funding should apply to employers with fewer than 100 employees, as

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provided in Amendment No. 21, or they may wish to opt for Amendment No. 22, which relates to employers with fewer than 50 employees. However, the Government may prefer Amendment No. 23. There is a precedent for small firms' exemption for employees whose earnings and national insurance contribution payments do not exceed £20,000. Those employers recover 100 per cent of the statutory maternity pay paid out, plus 5 per cent to compensate for administrative costs. My noble friend Lady Carnegy referred to that.
Why should small employers receive compensation for administering SMP but not WFTC or DPTC? Those companies are not charitable institutions and they should not have to sub the Government. As the noble Lord, Lord Goodhart, said in Committee, making small employers act as paying agents would be a serious burden for them, and it is appropriate that the public purse should fund the administrative costs which they have to bear.
While this Government came to office promising an enterprise culture for businesses, the practical effects of so many of their actions have been wholly negative through a combination of administrative and financial burdens. Nowhere is that more apparent than the acute effects on small businesses. Not only do they provide a vital part of the UK economy but they provide also a high proportion of jobs for those who are low-skilled or semi-skilled and who desperately want the opportunity to work.
Recent research by the University of Bath on behalf of the Inland Revenue quantifies the burdens which firms face, despite what we have just heard from the Minister, by administering income tax, national insurance and statutory sick and maternity pay. It also illustrates that these burdens are a significant barrier to job growth in smaller firms. The pattern of compliance costs is highly regressive against smaller employers in that the bottom 30 per cent (by PAYE and national insurance collected) shoulder 75 per cent of the costs. To help them, I beg to move.
Baroness Carnegy of Lour: My Lords, the Minister seemed, in a strange way which I did not understand, to reply to these amendments before they were moved. Perhaps he had not noticed the grouping.
However, that gives me an opportunity to take issue with him on his argument that the reason why the principle applies with statutory maternity pay and cannot apply to this is that this is part of the tax system. It is only part of the tax system in that the Government are giving it to the Inland Revenue to do. It is an earnings supplement. We had this discussion in Committee. If it was a tax rebate, it would be part of the tax system. I do not believe that is merely nit-picking. It is an earnings supplement and is one way of doing it. That is the way the Government have chosen. It seems to me that it is a benefit and not part of the tax system.
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I am sorry that the Minister used that argument. Perhaps it is because it is an Inland Revenue brief and it hopes it will become part of the tax system in due course; I do not know. However, he should not really have used that argument.
Lord McIntosh of Haringey: My Lords, I suppose it would be fair to say that I shot my own fox. The noble Baroness is quite right. I could not find any difference in the arguments to be used on Amendments Nos. 19 and 20 from those to be used on Amendments Nos. 21 to 23. Indeed, Amendments Nos. 21 and 22 are alternatives to Amendment No. 20. Amendment No. 23 is an alternative to Amendment No. 18 which has been withdrawn. The noble Baroness is entirely right. In order to put the case properly, I felt it necessary to respond to all the amendments together. If I had heard any particular new points I would have sought to respond to them on this occasion, but I do not believe I have.
The noble Lord, Lord Astor, has quite rightly drawn attention to the importance of small businesses in our economy. As I believe I made clear, the Government entirely agree with that. We seek to reduce the burden on small businesses.
Lord Astor of Hever: My Lords, I am grateful to the Minister for giving way. I was not just drawing attention to what small businesses do but to the costs on them in administering the tax credits.
Lord McIntosh of Haringey: Yes, my Lords, I accept that. However, the arguments I used, based on experience as well as the principle upon which we oppose the amendments, have made it clear that the additional burden involved in the administration of tax credits is very small compared to the burden which has existed for many years. Indeed, it is significant that the burden of tax credits on employers is not incremental. In other words, the smaller employers are much more likely to have no employees with tax credits than larger employers.
This gives me an opportunity to respond to the noble Baroness, Lady Carnegy. I repeat the arguments I used before. Statutory maternity pay is a benefit. The purpose of compensating employers for the administration of statutory maternity benefit is precisely as she set out in her speech on the previous group of amendments. The Government wanted to ensure that employers were not deterred from employing people who are entitled to statutory maternity benefit. That is simply not the case with tax credits or disabled person's tax credits. It is not possible for employers to know the financial circumstances of their employees from the fact that they are entitled to tax credits.
There are many reasons why a family should be entitled to working families' tax credit. The calculation is done entirely by the Inland Revenue and there is no possibility of disclosure of the financial details of the individual employee from the fact that a tax credit is payable. The objection in principle which applied to Amendments Nos. 19 and 20 applies equally to Amendments Nos. 21 to 23 and the Government cannot accept them.
9.30 p.m.
Lord Astor of Hever: My Lords, I am grateful to the Minister for that reply and am sorry that he was not more receptive to our amendments. I am sorry also that he could not agree with what Jack Cunningham said; that is, that small firms need to be able to concentrate on running their business and securing new work rather than administering these tax credits.
I thank my noble friend Lady Carnegy for once again mentioning the precedent of SMP. We have received strong representations from organisations that represent small businesses and they are extremely unhappy on this point. However, at this time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 22 and 23 not moved.]
Lord Higgins Lord Higgins moved Amendment No. 24:
Page 4, line 25, at end insert—
("( ) Regulations under this section shall not require an employer to calculate the tax credit to which an employee is entitled during the period when the employer will be responsible for payment of tax credit to that employee, other than to relate the calculation made by the Board of the employee's entitlement to tax credit to the length of time the employee is employed.")
The noble Lord said: My Lords, I was a little mystified by the earlier discussion and perhaps the Minister should inquire who suggested the grouping. The whole set of amendments were somewhat similar but we did not think it appropriate to dissent from the groupings.
I thank the noble Baroness, Lady Hollis, and the noble Lord, Lord McIntosh of Haringey, for writing to me in relation to specific points relevant to this amendment. Indeed, throughout the proceedings they have been helpful in that respect and the noble Baroness, replying on behalf of her colleague, was kind enough to write to me and my colleagues to explain precisely how the Government envisage the system working with regard to payment of tax credits by employers.
This amendment seeks to spell out that explanation in black and white. If I understand correctly, the Government are saying exactly what is stated in the amendment. If that is on the record it will be helpful should there be any subsequent dispute. The noble Baroness was good enough to send me an extract of one of the statutory instruments setting out the way in which the regulations will operate in relation to the employer.
Perhaps I may make one point which is relevant to both this debate and the previous one. It is not helpful for the Minister to say, "We did not worry about the cost of operating this system in small businesses because it will be mostly done by the employer". I believe that was his argument, but it is a strange argument. If the entrepreneur of a business is being distracted by becoming an agent for social security payments—or in this case Inland Revenue payments as defined by the Government—that is a higher cost than if he were employing someone who did nothing else. Adam Smith and the pin factory suggest that a degree of specialisation would be more efficient. If the
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entrepreneur is having to do it, that is a disadvantage rather than, as the Minister was seeking to suggest, an advantage.
I do not wish to delay the Committee any longer. Perhaps the Minister can confirm my understanding that the Government envisage precisely what is said in Amendment No. 24. In that case it will not be necessary to put the amendment on the face of the Bill. I beg to move.
Lord McIntosh of Haringey: My Lords, I certainly hope that I did not say we do not need to worry about the cost to small businesses, because those costs are incurred by taking up the time of the entrepreneur. I was simply making the perhaps trivial point that small businesses do not have payroll departments. It is still a cost and we worry about all costs. I used to work on a Saturday afternoon when I had an office in central London and I would find from time to time that the landlord had locked the outside door and that I could not get out. Having completed my VAT return and the PAYE and NIC entries, I had to climb out of the window, jump down about 10 feet and get out though the fire escape. I do not recommend that to any entrepreneur, and it is a definite deterrent that the Government do not in any way support.
The noble Lord, Lord Higgins, invites me to put on record in Hansard the assurances and explanations which were given by my noble friend Lady Hollis in her letter, and I am delighted to do that. The main point I should like to make is that under no circumstances will employers be involved in processing applications for tax credits or in assessing the level of tax credit awards. That will always be the business of the Inland Revenue.
From October 1999, when the tax credits are introduced, the Inland Revenue will process all applications and will do all the calculations necessary to work out the level of tax credit awards. The Revenue will pay the awards direct to all successful applicants, whether they are employees, self-employed or non-earners.
From April 2000, when employer payment begins, there will be no change to the application and assessment procedure. The Revenue will continue to process and assess all applications and inform all applicants of the level of their award. The only change after April 2000 will be that, whereas self-employed and non-earning recipients will continue to receive their tax credit direct from the Revenue, employees will receive theirs through the payroll where appropriate.
What will happen when an employee is awarded a tax credit? The Inland Revenue will notify him of the award and tell him the daily rate at which payments will be made over the 26-week period of the award. The notification will also explain that initial payments will be made direct by the Revenue but that after a certain date the employer will take over payment.
At the same time the Inland Revenue will notify the employer when to start paying tax credit, how much to pay and when to stop. Employers will always be given enough time to adjust their payrolls before starting to pay tax credits (14 days notice in respect of weekly paid employees, 42 days in all other cases).

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The start notification will include the daily rate of tax credit payable to the employee and a table showing the 1–31 multiples of the daily rate. The daily rate refers to calendar days, not working days. The only calculation the employer will have to make is to read off from the table the amount of tax credit payable, according to the number of days in the pay period for which he is responsible. For example, if the employer's responsibility starts on 21st June for an employee paid monthly at the end of the month, he will have to pay 10 days' worth of tax credit up to the end of June (21 to 30 June). Therefore, he will need to use the Revenue-provided table to arrive at the tax credit due; that is, 10 times the daily rate. In subsequent months he will read off the 30 or 31 multiples of the daily rate to find out the appropriate tax credit amount for a particular month. That amount will be added each month to the employee's net pay.
If noble Lords are interested, this is all neatly illustrated in a table on page 9 of the Inland Revenue booklet, Working Families Tax Credit and Disabled Person's Tax Credit. Draft regulations 3(2) and 4(2) of the Payment by Employer Regulations also set out the information which the Revenue must provide to the employer and employee respectively. Draft regulation No. 5 spells out what the employer needs to do.
I hope that I have addressed the concerns of noble Lords. I have stated publicly what was contained in the letter and therefore hope that the noble Lord will be able to withdraw his amendment.
Lord Higgins: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart Lord Goodhart moved Amendment No. 25:
Page 4, line 29, after ("which") insert ("shall in the case of the first regulations made under any subsections of this section be made only if a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament and in the case of subsequent regulations")
The noble Lord said: My Lords, this is one of two amendments; similar amendments were discussed in Committee. This amendment concerns the approval of regulations to be made under Clause 6, while the other amendment relates to the approval of regulations to be made under Clause 15. Clause 6 will be implemented through regulations. The Government have produced draft regulations and that is helpful; but it is not yet enough. Those regulations are still open to change. I believe that the principle should be that the final regulations should be approved by Parliament, rather than Parliament relying on drafts which are not finalised at the date of the relevant debates.
Of course, these are very important regulations which are central to the whole operation of the tax credits system; for example, Regulation 5 of the draft regulations contains the employer's obligation to pay tax credits through the pay packet. Regulation 6 provides for the employer to fund the tax credits by what can be described as "deductions from deductions". Regulation 7 provides for the funding of the employer by the Inland
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Revenue where the employer cannot cover the tax credits by deductions from PAYE or NICs. Therefore, the regulations are plainly at the heart of the Bill.
It seems reasonable, therefore, that on the first occasion when the regulations are made, if not subsequently, the affirmative resolution procedure should be used so that Parliament has an opportunity to debate and confirm them without having to rely on a Prayer against the regulations under the negative procedure. That is what the Select Committee on Delegated Powers and Deregulation recommended. I am a member of that committee, and we said:
"This is a wide-ranging power with considerable administrative and financial implications for employers, including small employers. The House may wish to consider whether the Bill should be amended to provide for the affirmative procedure to apply on the first occasion that the power is exercised".
That proposal was rejected by the Inland Revenue. Indeed, the Revenue did so in a letter which I shall paraphrase, although I shall paraphrase only slightly because the following is pretty much what it said. The recommendation was rejected on the basis that the Inland Revenue did not think it was appropriate for its regulations to be subjected to the affirmative resolution procedure. I must say that I do not believe that that is an acceptable response. I am not blaming the noble Baroness because it is not her department. She has no responsibility for what the Inland Revenue says. However, whether or not those arguments are correct, I repeat that I do not think that is an acceptable response.
The Inland Revenue argued that the PAYE regulations involve the negative resolution procedure. But, of course, PAYE was introduced in wartime and I think that it is at least possible that people were not thinking in as much detail in 1943 as they do now about whether the affirmative or negative resolution procedure is more appropriate.
The attitude of the Inland Revenue is all the more surprising because the Government have accepted that the affirmative procedure should be used for the first regulations to be made under Clause 15 on childcare. Those regulations will also be important. However, I believe that they are no more important to this Bill than are those which are to be made under Clause 6. The difference is that it is the Department for Education and Employment and not the Inland Revenue which is responsible for the regulations under Clause 15.
The latter increases our concern that the Inland Revenue culture is inappropriate for the payment of tax credits. Whether or not you call tax credits a "benefit", they are clearly a distribution of money which is contrary to the Inland Revenue's basic purpose, which is to collect money. The Inland Revenue is not used to making payments out. Indeed, it is not used to the rather different emphasis which applies to the making of regulations which are involved in the distribution of money—whether called "benefits" or "tax credits"—in a similar form to benefits Therefore, I ask the Government: whether they are prepared to reconsider the method by which the first regulations to be made under Clause 6 will be approved. I beg to move.
9.45 p.m.
Lord Higgins: My Lords, I rise to support the noble Lord, Lord Goodhart, in his amendment. He specifically refers to the recommendations of the committee. I must say that the response which we have received from the Inland Revenue—namely, that this is not something the Inland Revenue is concerned with—does not seem to me a reasonable response. After all, we are concerned with ministerial responsibility, not that of officials. One presumes that the Revenue's response was endorsed by Ministers. But certainly a doctrine that no Inland Revenue order could be subject to scrutiny and voted upon in the way that the noble Lord, Lord Goodhart, described does not seem to me to be acceptable, whatever the precedents may be.
As regards this Bill, the idea that we are switching from a situation where the affirmative resolution procedure is permitted to a situation where it is not permitted because the Inland Revenue is involved does not seem to me to be acceptable. As the noble Lord rightly stressed, that underlines our concern that the attitude, regime, ethos—call it what you will—of the Inland Revenue may pervade what has previously been that of a government department with a rather different approach to these problems.
On the first occasion the regulations come before the House we should be able to consider them. However, they are still not amendable. We have already expressed appreciation of the fact that the Government have published the draft regulations, but that does not resolve the problem of their not being amendable. I have much sympathy with what the noble Lord has said. If he felt inclined to register a protest by calling a Division, I would be inclined to support him. But be that as it may, we look forward to hearing what the Minister has to say. I hope very much that he can accept the amendment.
Lord McIntosh of Haringey: My Lords, the last thing I wish to do is to seek to hide behind departmental differences, or indeed seek to hide behind the view of the Inland Revenue as opposed to the view of Ministers. As the noble Lord, Lord Higgins, rightly says, the response of the Inland Revenue to the Delegated Powers and Deregulation Committee was given on ministerial authority. I speak on behalf of the Government and not on behalf of any particular department.
Therefore it is with great sadness that I have to tell the House that our response has not changed since the lengthy debate we had on this subject at Committee stage. Before I repeat the reasons which I gave on that occasion I must tell the noble Lord, Lord Higgins, that the issue here is not one of scrutiny, voting or amending; we are talking about the difference between negative and affirmative resolutions. Both of them are forms of scrutiny. It is perfectly possible for negative resolutions to be prayed against in this House or in the other place. They have to be scrutinised by Parliament in exactly the same way as affirmative resolutions.
Similarly, although this House passed on the Motion of the noble and learned Lord, Lord Simon of Glaisdale, a resolution that this House has an unfettered right to
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vote on secondary legislation, it has been the convention of this House for many years—both on affirmative and negative resolution procedures—that we do not vote against these orders for the very straightforward reason that a vote against them would require the order to be relaid because there is no opportunity for the other place to reconsider the matter. An order falls if it fails to be passed by both Houses.
I shall repeat my explanation of why we provide for the negative resolution procedure through both Houses. That is the usual process in the tax system and it is more usual for tax regulations to be laid only before another place because of the limitations on this Chamber's powers in respect of money matters.
Lord Higgins: My Lords, I was slightly surprised to hear the comment of the noble Lord, Lord Goodhart. Is it the case that Inland Revenue resolutions are never by affirmative resolution?
Lord McIntosh of Haringey: My Lords, I believe that to be the case. It is the case also that they are not even subject to the negative resolution procedure before this House. I may be able to expand on that point in a minute.
Lord Swinfen: My Lords, I am a little concerned that in future, because this could be construed as a money matter, a negative resolution will not come before this House.
Lord McIntosh of Haringey: My Lords, that is entirely possible. It is for Madam Speaker to rule whether it is a money matter. If the noble Lord will hear me out, it would be better if I pursue my arguments without interventions that try to anticipate what I am going to say.
These regulations for payment through the pay packet are setting up a similar administrative structure to that for PAYE currently in the tax system. Therefore, we take the view that it is appropriate for the regulations also to use the negative procedure. As I said in Committee, the powers in social security legislation frequently provide for regulations to be made by the negative procedure.
I am sure that noble Lords are motivated by concerns that there will not be proper scrutiny of the regulations. Your Lordships and Members of another place will be able to study the draft—as the noble Lord, Lord Higgins, fairly acknowledged. In addition, the Inland Revenue intends shortly to publish formally the draft regulations which will give many interested parties the opportunity to comment. The Inland Revenue has spent considerable time over the past year consulting representative groups on details of the scheme. The document published in December and the draft regulations were developed as a result. The Inland Revenue will continue to consult on the draft regulations.
I hope that noble Lords accept that it is with no sense of defiance towards the Delegated Powers and Deregulation Committee—for which we have

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individually and collectively the highest respect—that we suggest on this occasion that it may have got it wrong and that it would be better to stick with procedures that have worked well in the past.
Lord Skelmersdale: My Lords, before the noble Lord sits down, perhaps he can clear up some confusion in my mind. He told my noble friend Lord Swinfen that the statutory instruments flowing from the legislation would not be discussed by this House. I seem to recall that in answer to a similar question on. Second Reading, the noble Baroness, Lady Hollis, said exactly the opposite. Who is correct?
Lord McIntosh of Haringey: My Lords, it is not for the Government to determine whether any particular regulation or piece of legislation is ruled to be a money matter. That is for Madam Speaker to rule, not for us to say. The regulations will be available for scrutiny by this House unless they have been ruled by Madam Speaker to be a money matter. All I did in response to the noble Lord, Lord Swinfen, was acknowledge that that might be the case.
Lord Goodhart: My Lords, I am most grateful to the noble Lord, Lord Higgins, for the thought that he gave to my amendment. I was tempted when he suggested that he might support me if I sought a Division. I might have accepted his invitation if we did not have the draft regulations before us. The draft regulations are of considerable importance. Although I said that I thought they were not enough, the difference between us would not justify my seeking to divide the House. The amendment was brought forward as a protest at what we regarded as the somewhat high-handed attitude of the Inland Revenue rather than with the intention of dividing the House and seeking to have the amendment placed on the face of the Bill. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 26:
After Clause 6, insert the following new clause—
PAYMENT OF TAX CREDITS BY BOARD
(" .—(1) Section 6 above shall not apply to the payment of tax credits to employees whose contract of employment is for less than ten weeks.
(2) The Board shall make payments of tax credits directly to the employees specified in subsection (1).")
The noble Lord said: My Lords, by this stage of the Bill we know a lot about the change from family credit to the working families' tax credit, and about the disabled person's tax credit. We know who is to receive it; how steep the angle of the taper is to be; how it is to be paid; by whom; the daily rate and so on. We have come a long way.
However, there is a further issue that I wish to probe. On the second day in Committee, I said that I regarded the amendment of my noble friend Lord Astor on agricultural workers as the most important on the Marshalled List: and that, by definition, it went much
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further than he intended. In the event, he did not move his amendment. But, by tabling the amendment, he clearly regarded the method of payment of short-term casual workers as a definite worry.
Under the current scheme of family credit, when such workers are in work they are paid straightforward family credit. If they are in work for the 26 weeks for which the credit runs, there is obviously no problem. The same applies under WFTC. If, however, they have several periods of work with lay-offs in between, they still get family credit for the full 26 weeks, if necessary topped up to income support levels when they are not working. Whether or not they are working, they currently receive their money through the Post Office.
However, it seems to me—as, I suspect, it does to my noble friend Lord Astor—that there is a problem with WFTC. As we have been told over and over again by the Minister, this replacement benefit is to be paid by the employer through the wage packet. That is all well and good if the employee is working but, by definition, the people that the amendment seeks to address are not working continuously for the full period of their award. Two questions therefore arise. First, who is to pay them when they are not working? Secondly, should the same payment method be used throughout the award? I beg to move.
Lord Astor of Hever: My Lords, I support Amendment No. 26, which stands in my name and that of my noble friend Lord Skelmersdale.
My noble friend referred to my Committee stage amendment on agricultural workers, which covered casual and part-time workers. Although I did not move it—much to the disappointment of the noble Baroness—I agree with my noble friend that the method of payment for short-term casual workers is unsatisfactory. I have in mind such people as agricultural seasonal workers who come and go throughout the year. The NFU has pointed out that paying the WFTC through the pay packet will involve farming employers having to keep signing their workers on and off the payroll, which will be an administrative nightmare. Other examples of workers with intermittent employment are seasonal packers for clothes, Christmas Post Office workers, waiters (in some cases) and shop workers taken on for busy periods.
The replacement benefit is to be paid through the wage packet. I agree with my noble friend that that will be fine if the employee is working. But, as he said, the people the amendment seeks to address are not working continuously for the full period of their award. look forward to the Minister's reply to my noble friend's questions, particularly on who is to pay employees when they are not working.
10 p.m.
Lord Swinfen: My Lords, I wish to support the amendment. As the Bill stands, it will be impossible for employers to take on casual workers, very often for only a few days at a time. The noble Baroness the Minister shakes her head. She will no doubt put me right when she rises to reply to the amendment, or perhaps her

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noble friend will do so. The amendment is purely a matter of practicality. I hope that the Government will either give a satisfactory explanation or accept the amendment.
Lord McIntosh of Haringey: My Lords, this is not what my brief says, but I think that the amendments are intended to be helpful. I am quite sure that they are. However, I am sorry to say that they strike at the heart of what we are attempting to do and would have perverse effects which would be undesirable.
We recognise that in practice some employees on very short contracts may well find that they are paid their tax credits direct by the Inland Revenue rather than through their employer. I shall come on to show how that will be the case and the examples given by noble Lords are relevant to that. But that will happen because their particular circumstances make the payment by the Inland Revenue the only sensible approach. It does not mean, as the amendment would provide, that all employees on short contracts must be paid directly from the Revenue. Perhaps I may repeat the arguments for paying working families' tax credit and disabled person's tax credit through the payroll.
The employer scheme will reinforce the message that tax credits are a reward for work. It will emphasise tax credits as part of the tax system and will help to break the link with benefits, thus reducing the stigma of claiming in-work support. So we should not be looking for ways of excluding any category of employee from the scheme. In particular, since the tax credits scheme is a work incentive measure, it seems perverse to try to exclude all employees on short-term contracts. For many of these people, a short-term contract may be the first step on the employment ladder. These are just the people we are anxious to encourage to stay in work and move up the earnings scale rather than relying on out of work benefits.
Of course, as noble Lords have said, many employees on short-term contracts are casual, part-time or seasonal workers, but many of them will have their contracts renewed. Indeed, we hope that will happen frequently. For those employees, payment through the payroll will be the norm. I can assure noble Lords that the tax credit scheme has been carefully designed with the interests of tax credit recipients in mind. Although payment through the payroll will be a key feature of the scheme, the Inland Revenue will never ask an employer to pay tax credits unless we can ensure that entitled employees receive their tax credits on time and without hassle.
Two conditions will have to be met before employer payment is instigated. First, the Revenue will give employers adequate time to adjust their payroll before they can start paying tax credits—14 days in respect of weekly paid staff and 42 days for all other cases. Secondly, no employer will be asked to pay working families' tax credit or disabled person's tax credit unless there is time for at least three tax credit payments before the end of the employee's tax credit award period or the end of the employment contract, if earlier. That means that a very substantial number of the cases to which the amendment refers will be paid by the Inland Revenue.
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The point of setting these conditions is not only to make things as convenient as possible for employers but also to ensure that we do not jeopardise the prompt and efficient delivery of tax credits to employees who are entitled to them. In the case of employees on contracts lasting less than 10 weeks, there may not be time for the Inland Revenue to ask the employer to pay tax credit. In that case, the Revenue will pay the employee direct throughout the 26-week tax credit award period. The tax credit scheme, therefore, already adopts a pragmatic approach which will ensure that payment via the employer will not be attempted when it would clearly be inappropriate. What I have just said about it being through the 26-week period deals with the issue raised by the noble Lord, Lord Skelmersdale, about the period in which the employee is not an employee; in other words, when he is not working. A special provision in the Bill would be quite unnecessary. In the light of what I have said, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Skelmersdale: My Lords, I was not sure which of the "heavenly twins" was going to answer my amendment. Had it been the noble Baroness, I would have sympathised with her on having to work at this hour of night on her birthday, but I would have pointed out too that I made my maiden speech in your Lordships' House on my fifth wedding anniversary. Nobody listened to a word I said. The only comment that was made included congratulations to my wife on getting rid of me!
That said, I am very comforted indeed by the response of the noble Lord the Deputy Chief Whip to my amendment. Indeed it was intended to be helpful. My interest was not on the employer's side; it was on the practicality of employees—perhaps one might call them erratic employees in this case—getting their family tax credit on time. I am interested by the noble Lord's comment that unless three continuous tax credit payment periods are completed, the automatic assumption will be that throughout the 26 weeks this will be paid by the board. I rather think that that is a mistake because the second period of employment might well be for the rest of the tax credit grant award period: in other words, for the rest of the 26 weeks. In that case it would be entirely logical and would fit in with the purpose of the Bill, which has been emphasised over and over again that the employer should pay.
I readily accept that my 10 weeks is the wrong period. I shall have to think it out again. But I was also slightly worried by the noble Lord's formulation of the words "three tax credit payments". Are these weekly or monthly payments, or does it depend on—there is no need for an answer now because we can come back to it—
Lord McIntosh of Haringey: My Lords, either.
Lord Skelmersdale: Either, my Lords, or both? In that case I am even more worried, not from the point of view of being a member of the Opposition on a government Bill but from the point of view of pure practicality. I shall read carefully in Hansard what has

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been said, and if I feel it is necessary come back to the matter at the next stage of the Bill. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Penalties for fraud etc. and failures to comply]:
Lord Higgins Lord Higgins moved Amendment No. 27:
Page 6, line 26, at end insert—
("(9) The Treasury shall provide appeal tribunals within the meaning of the Social Security Act 1998 and general and special commissioners with sufficient funds to enable them to determine expeditiously appeals against determinations made under this section.")
The noble Lord said: My Lords, I beg to move Amendment No. 27 which stands in my name and that of the noble Viscount, Lord Astor. The noble Baroness will recall—how can anyone forget?—the debates that we had on this subject last year on the Social Security Bill. Clearly this piece of legislation will impose more burdens on the tribunals concerned. It is important that this should remain within the social security system and perhaps the noble Baroness can confirm whether that is so. Earlier the noble Lord, Lord Goodhart, and I, stressed the difference between the attitude of the Social Security Department and the Inland Revenue. There is certainly a difference in attitude between the appeal tribunals so far as the Revenue departments are concerned. There are rather different arrangements from those with regard to the Social Security Act.
The amendment seeks to ensure that appeals are dealt with expeditiously. My understanding RS that the system is under considerable strain at the moment. Average waiting times, I understand, are currently seven months, with some applicants waiting over a year for a decision in their case. The number of appeals continues to rise. Apparently in 1997–98 the number was 25 per cent up on the previous year and 56 per cent up on the year before that. This is a considerable burden. But when one looks at the figures for the ITS, the figure for 1998–99 was 55,000. That seems to me an extraordinarily low figure. For the year 1999–2000 the figure is only 54,386. Am I wrong in thinking that is a cut in real terms on the budget of the ITS? If so, it seems extraordinary, given that this Bill, among others, will add to the burdens on the appeals procedure. I am not clear why the noble Baroness appears to be puzzled. My understanding is that the budget is a cut in real terms, while at the same time the burden on the appeal service is increasing.
Can the noble Baroness tell the House what increase she expects in the number of appeals as a result of the introduction of the working families' tax credit system? At the moment, the number of appeals relating to family credit is low; it is only 2 per cent of the total number of appeals being heard by the service. Obviously, that figure is likely to increase with the working families' tax credit, if only because more claimants are involved. In addition, the appeals service will hear appeals that are related to whether a person has acted negligently or fraudulently and on the appropriate level of penalty. One would regard that as a considerable extra burden.
The essence of the amendment is to point out that the budget appears to be going down and the workload is going up. Can that be right? I look forward to hearing
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from the noble Baroness as to whether what I have described is the true situation. Perhaps she can also give some idea of what is happening as far as concerns the training of tribunal members and whether that is included in the budget.
Baroness Hollis of Heigham: My Lords, I saw the House emptying rapidly on the other side and I took it that there was no longer any enthusiasm for these proceedings.
This amendment would have the effect that the cost of the tribunals adjudicating appeals against penalties determined under Clause 9 would be separately considered in setting the funding of these tribunals. Perhaps I may quickly recap how and by whom appeals under the tax credits legislation will be heard. Appeals by applicants (employees) relating to their applications and awards will be heard by the new unified appeals tribunal (UAT) which is being set up as a consequence of the Social Security Act 1998, which happily occupied the noble Lord and myself for many hours last year. The UAT replaces a number of specialised tribunals as well as the current Social Security Appeal Tribunal. This change as well as others brought in by the 1998 Act: is designed to improve the efficiency of the handling of appeals from benefit claimants.
The UAT members who will hear tax credit appeals will, we believe, have the best mix of skills and experience to deal with the kinds of issues that involve tax credit applicants. But appeals from employers as a consequence of their role in administering tax credit payments through the wage packet will involve issues that are much more akin to those that arise on the administration of PAYE. Therefore, those employer appeals will go to the Tax Appeal Commissioners, as we believe that they have the appropriate expertise to deal with such issues; in other words, there will be two streams of appeal according to the appropriate expertise.. Those relating to employees will go to the new unified appeals tribunal and those relating to employers will go to the Tax Appeal Commissioners.
This ensures that appellants, whether applicant employees or employers, have their problems put before the most appropriate tribunal from the outset, although my honourable friend the Paymaster General announced in the other place that in due course—it may be a very long way down the path—jurisdiction for applicants' appeals will also pass to the Tax Appeal Commissioners and they will hear all tax credit appeals. But that is for the future.
The noble Lord, Lord Higgins, raised concerns about delay in hearing appeals. There is a backlog of work with the current social security appeal tribunals. The approximate delay is seven months at the moment. That was precisely why we passed the Social Security Act last year. During the second half of 1999 the decision-making and appeals programme (DMA) will deliver changes to current arrangements for making decisions and handling appeals in benefits and child support. The changes aim to deliver a modern, clearer, simpler, more streamlined and more accessible welfare system. The emphasis is on making real improvements for claimants.

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The current system has several problems. For example, decisions on claims are fragmented and notifications are confusing. Getting mistakes put right is complicated and claimants often have to appeal. Then appeals take far too long to decide—seven months on average with some appellants waiting over a year for a decision. The appeals system is complicated. There are five different sorts of tribunal, each with different rules. A three-member tribunal hears all cases, however complicated or straightforward; and appeals which have no prospect of success (because they are counter to the law) still have to be handled in the usual way, without explanation, so appellants wait months only to find that their appeal could not have succeeded by definition. For example, they may claim DLA for a child under five and the law makes it clear that no child under five can be paid DLA.
Under DMA, some essentials will not change. As now, claimants and clients will get decisions based on the facts and law with the right of appeal to an independent tribunal. But under the new system, the focus will be on getting the decision right first time. Claimants unhappy with a decision will be invited to contact the decision-maker within one month of the date of notification decision. This will give them the opportunity to examine with the decision-maker the reasons behind the decision and to correct any errors. If the decision is found to be wrong, it can be put right without the need for the individual to go to appeal. Appeal tribunals will be able to focus on the issues raised in the appeal. As we discussed at great length in Committee, and on the previous Bill, the tribunals will comprise one, two or three members with the appropriate expertise for the issues raised. Appeals which have no prospect of success will be handled more quickly. Demanding targets for the administration of appeals will be published and the results reported on.
The settlement of disputes by agreement, without the need for a formal appeal hearing, has been the cornerstone of tax appeals since the very beginning. Only those cases where the Revenue cannot come to an agreement with the appellant go before the tax appeal commissioners.
Putting all that together, we believe that we shall be streamlining the appeals system, with a unified appeal tribunal system for employees. The appeal will go before a one, two or three member tribunal as need be. That will allow for greater and more adequate deployment of skilled staff and will lead to more expeditious hearings. It will break into the backlog and lead to a more efficient procedure.
That may meet the point raised by the noble Lord about the workload increasing and the budget reducing. The workload will be handled in such a different way that it will be on a new basis of costing. I shall be happy to write to the noble Lord with a further explanation of the costs of the new system.
10.15 p.m.
Lord Higgins: My Lords, will the Minister confirm the figures that I quoted? Was there a cut in real terms
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as regards the budget of the ITS between 1998–99 and 1999–2000? I may have missed her reply as regards the number of appeals expected under the new system compared with the old.
Baroness Hollis of Heigham: My Lords, we cannot be sure. Given the new methods and procedures, we hope to obviate the need for a number of the appeals held. I refer to what we call the meritless appeals in the sense that they cannot succeed, as well as those appeals based on the resolution of difference which can be achieved by negotiation. We hope that as the number of appeals will be reduced, those appeals heard will be handled more expeditiously because we shall have a better deployment of staff. Some appeals on matters of fact can go to a one-member tribunal. Others which require perhaps complicated medical evidence can go to a two or three-member tribunal. If one puts those two factors together, one sees that they should speed up the hearings, reduce the costs of the system and allow for far more disputes to be resolved without going through the appeals procedure. That was the purpose of last year's DMA Bill.
I shall write to the noble Lord on the costs of the service. We expect the workload to fall in consequence over time.
I have gone into those factors at some length because I thought that the purpose of the noble Lord's amendment was to make sure that the appeals system is expeditiously handled, as we all want. But the noble Lord's amendment would not achieve what he intends. The amendment is about funding. The DSS will be responsible for funding the appeals service. Similarly, the Lord Chancellor's Department is responsible for funding the tax appeal commissioners. In both cases, the adjudication of appeals against penalties under Clause 9 will be one of the tribunal's duties taken into account in ensuring that this work can be carried out efficiently. The financing of that work is one aspect of that planning process. That will be so, regardless of the amendment.
If the amendment were accepted, the cost of appeals against penalties under the clause would have to be separately identified funding agreed with the Treasury. That work would carry its own costs. So it feeds on itself, if I may put it that way. Given that the work would be taken into account in planning the work of the two tribunals, there would be no advantage for appellants if the amendment were accepted.
I hope that I have answered the noble Lord's substantive point that we expect the new DMA to kick in during the second part of 1999, which will reduce the pressure on the appeal system. The amendment does not achieve that. It requires a separate costing to be identified by the Treasury and separate analysis to be undertaken for that purpose. It will not help the length of time taken to hear appeals.
For that reason, we cannot accept the amendment. It is an unnecessary complication. I suggest that the noble Lord does not pursue it further.
Lord Higgins: My Lords, we are grateful for the Minister replying to the amendment which I did not

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move. It was probably the amendment I intended to move in the first place! Be that as it may, I am still not clear whether the budget will be cut. The noble Baroness may wish to intervene in my remarks, but in just one second.
Secondly, in the light of our discussions on the Social Security Bill last year, one remains concerned about some aspects, in particular single member tribunals. I drew to her attention safety risks, where particular social security claimants may be rather less stable than others who appear in front on them. But that is a broad issue I do not want to go into again. Perhaps we could know whether the budget is cut or not.
Baroness Hollis of Heigham: My Lords, forgive me, but I believe that I said three times that we are reviewing the total budget in the light of the expected work patterns. If I have further information on that, I shall write to the noble Lord.
Lord Higgins: My Lords, I am most grateful for that reply. We have the estimated budget as it stands. Presumably, as is normal in the Treasury, that is set in concrete. But if it is to be reviewed we should welcome that and therefore I beg leave to withdraw the amendment.
Amendment. by leave, withdrawn.
Lord Higgins Lord Higgins moved Amendment No. 28:
After Clause 9, insert the following new clause—
DISCHARGE OF FUNCTIONS BY OFFICERS
(" The Chancellor of the Exchequer shall each year lay before each House of Parliament a report relating to the discharge by officers of the Board of their functions under section 9 and Schedule 4.")
The noble Lord said: This is a probing amendment in relation to the Bill and the discharge of the department's responsibilities with regard to fraud and so forth. The proposal is that each year the Chancellor shall lay before both Houses a report relating to the discharge by officers of the board in relation to their functions under Clause 9 and Schedule 4. Obviously, it is important that there should be accountability as regards these officers and it seemed appropriate to suggest that such a review would cover the point.
As I said in regard to the earlier amendment, there is concern about work that is being done in relation to fraud and the appropriate ways in which that could be considered. I beg to move.
Lord Swinfen: My Lords, will there be an annual report of the amount paid out under working families' tax credit and disabled persons' tax credit so that those of us who wish can add it to the amount paid out under social security benefit?
Lord McIntosh of Haringey: My Lords, in case I forget to answer the noble Lord, Lord Swinfen, I shall do so at the outset. Yes, of course there will be a report on the amount paid out, but it would be illegitimate of the noble Lord to—no, he can do what he likes with the figures! Of course he can.
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Amendment No. 28 relates to Clause 9 and Schedule 4 to the Bill. Clause 9 sets out the penalties to be imposed on individuals who receive excessive payments because they have not told the Inland Revenue the truth about their circumstances and on employers who refuse or persistently fail to make payments, or who fraudulently or negligently pay or receive the wrong amounts. For the vast majority of honest individuals and employers, these provisions are totally irrelevant.
However, it will be an important part of the Inland Revenue's duties to identify and take action against the minority who abuse the system. Schedule 4 relates to the penalties concerned. Of course we agree with the movers of the amendment that it is important for Parliament to be informed each year of the way in which the Inland Revenue is performing its new responsibilities for administering the tax credits.
Before I leave the point about the way in which the revenue is performing its new responsibilities, perhaps I may return to the response I gave on Amendment No. 16. I gave the House assurances about other targets; for example, aiming to process fast-track claims in the same way as the Family Credit Unit does currently—within five days with rapid payment thereafter. I may have given the impression, wrongly, that that could apply across the board, which is not what happens at the moment and could not happen in the future. However, I hope that your Lordships were pleased to hear that we shall aim to maintain the fast-track process for new claims from employees.
I return to the reporting procedures. The Board of the Inland Revenue lays before Parliament each year a report on its aims, targets and performance against those targets for all of its work. The board's report to Parliament already includes details of compliance activity and the board would expect to include details in respect of the new tax credits in a similar way. The Government are considering which targets will provide the best measure of the performance of the department in all aspects of the administration of the new tax credit.. I assure the House that the concerns raised in the debate on this amendment and on earlier amendments will be taken into account in that process. The targets and measures will be included in the board's annual reports from next year. Therefore, there is no need to make an additional report to Parliament.
On earlier amendments, I heard complaints about the number of reports which are produced. It is the Government's responsibility to produce reports, particularly when encouraged to do so by the Opposition. But we cannot ensure that noble Lords and anybody else read the reports which are produced. With the assurance that the existing reporting arrangements are sufficient, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Higgins: My Lords, the House will be grateful to the Minister for that response. It is not just a question of individual Members reading the reports. It is a question also of Select Committees and so on scrutinising them. As I said earlier, that degree of

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scrutiny has improved considerably over the years. However, in the light of what the Minister said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Disclosure of information]:
Lord Higgins Lord Higgins moved Amendment No. 29:
Leave out Clause 12
The noble Lord said: My Lords, this amendment relates also to Schedule 5 with regard to the disclosure of information. I wish to make one broad point. Over the years, much concern has been expressed about disclosure of information between government departments. Some years ago now, we tightened the rules considerably. In any event, exchange of information between the Revenue departments and elsewhere in government were subject to fairly tight controls on the basis of disclosure being permitted only at a reasonable level within the Civil Service. That was an important form of Chinese Wall, I suppose one might call it, to ensure that people had confidence that the information provided to the Revenue would remain confidential and not be used in a context different from that within which it had been provided.
The problem is that, in effect, the Revenue is taking over another government department. To that extent, one presumes that everything which was previously restricted from disclosure between the Inland Revenue and the Department of Social Security will no longer be so because it will all come within the Inland Revenue.
Can the Minister say whether that Chinese Wall is effectively being demolished by the takeover of the Revenue of this aspect, and indeed a number of others, of the Department of Social Security, or whether there will be some restraint on transfer of information between what used to be two separate departments?
10.30 p.m.
Baroness Hollis of Heigham: My Lords, we were slightly baffled as to what the noble Lord was proposing with the extraction of Clause 12. We could hardly think that he was in favour of confidentiality that allowed for people committing fraud to get away with it, and so on. However, we presumed it was a probing amendment, as indeed is the case, in order to find out the guidance or self-regulation under which the Inland Revenue will work. I am happy to attempt to give the noble Lord the explanations or descriptions he seeks.
The clause is entitled, "Disclosure of Information" and needs to be considered against the backdrop of the Inland Revenue's rules on confidentiality. The Revenue has a strict legal duty of confidentiality to ensure that information about a person's tax affairs is not disclosed to any third party except for the purpose of its duties or as otherwise required by law.
The Revenue places a high priority on the preservation of confidentiality regarding people's tax affairs. It wants to ensure that the same strict legal rules on confidentiality are also applied to tax credits. That is what Clause 12 provides. It brings the tax credit functions within the Revenue's strict legal rules about
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disclosure of information. It will ensure that information about tax credits is kept as securely as any other tax information.
The disclosure of any information received or held by the Revenue and its officers, or any person providing services to the Revenue, is subject to the sanctions set out in Section 182 of the Finance Act 1989. That may be what the noble Lord was referring to. That section makes any unauthorised disclosure of information a criminal offence punishable by imprisonment or fine.
This clause amends Section 182 so that it also applies to information relating to tax credits. Therefore the Revenue's confidentiality rules will apply to this. I hope noble Lords will agree that it is essential to keep that information confidential and that they will support the provision. This is, indeed, what the Act does. I do not believe there is any difference between us on this.
The other part of the clause contains provisions on exchange of information. As I have explained, the Revenue operates under strict rules of confidentiality. Information is only provided outside the department through statutory gateways.
Therefore, if there are to be exchanges of information between the Revenue and another department, that needs to be provided for in legislation. After October 1999 and the introduction of WFTC and DPTC, the units dealing with tax credits will need to exchange certain information with the DSS in order to carry out their respective functions. They will also need to exchange information with local authorities, which administer housing benefit and council tax benefit, to enable those authorities to calculate correctly the level of benefits, avoid duplicate claims and continue their compliance activities, as established under legislation relating to fraud introduced by the previous administration, with a fair degree of support from our side.
We have therefore provided, in Schedule 5, for exchange of information between the Revenue, DSS and local authorities in relation to social security benefits, child support, war pensions and tax credits. The provisions are on similar lines to those already enacted in the Social Security Contributions (Transfer of Functions, Etc) Act 1999 for the merger of the Contributions Agency with the Revenue.
It is important to emphasise that the changes in this clause and schedule with regard to exchange of information do no more than allow the Revenue, DSS and local authorities continued access to information that is essential for carrying out their respective functions. This reflects the fact that because WFTC replaces family credit, the functions relating to FC are being transferred to the Revenue, but the connection with the DSS will need to be maintained.
It is important also to note that the schedule clearly provides that information exchange between the Revenue and the DSS can only be used for the purposes of their respective specified duties.
The effect of the amendment would be that such essential exchanges would not be possible. That would affect not only the effective administration of WFTC and DPTC but would also make it extraordinarily difficult to administer child support, war pensions,

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housing benefit and council tax benefits if the existing exchange of information was not carried through to the Inland Revenue.
I hope that has given the noble Lord a description of what Clause 12 does and how necessary it is. The Inland Revenue needs to continue the existing arrangements that the DSS has, both with other sections of the DSS and with local authorities if what were benefits and are now to become tax credits are to be effectively administered.
I hope the noble Lord will be satisfied on those two points: first, the strict duty of confidentiality which has been tightened up, and the Chinese Wall principle that has been maintained; and, secondly, that the exchange of information that will continue is no more or very little more than that which currently operates under family credit. However, because the Inland Revenue is taking over, it needs to keep these gateways. I hope on both those counts the noble Lord will be satisfied and withdraw his amendment.
Lord Higgins: My Lords, before the noble Baroness sits down, perhaps I may try to focus my point. Will any information be transferred from the Inland Revenue to other government departments which at the moment is subject to the control that it should be transferred to another government department only above a certain level of seniority in the Civil Service?
Baroness Hollis of Heigham: My Lords, without writing to the noble Lord I cannot tell him about the level of seniority. My understanding is that there will be no additional flow of information from the Inland Revenue to other government departments, other than that necessary for the purpose of this Bill; that is, the same flow of information that the DSS would have used with local authorities. That was set up by the previous administration, of whom the noble Lord was a supporter.
The one exception to that of which I am aware, which again will be covered by primary legislation through the welfare reform Bill, is the right of the Child Support Agency, as a last resort, to have access to Inland Revenue records of the self-employed where they are apparently deliberately failing to comply with their duties of child support. That is the only instance that I can bring to mind.
Apart from that, the noble Lord's fears are groundless. He is right to raise these questions, but all proper protections are in place and the Inland Revenue will have only such powers as are necessary for it to carry out its appropriate duties. They are built on the powers that currently exist for the DSS.
Lord Higgins: My Lords, I am grateful to the noble Baroness. I still have a feeling that there is a point here that we ought to pursue. However, I look forward to seeing what the noble Baroness has to say in writing and we can take it from there. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 30 and 31 not moved.]
Clause 14 [Persons qualifying for disabled person's tax credit]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 32:
Leave out Clause 14 and insert the following new clause—
PERSONS QUALIFYING FOR DISABLED PERSON'S TAX CREDIT
(" .—(1) Subject to subsection (6) below, section 129 of the Social Security Contributions and Benefits Act 1992 (disabled person's tax credit) and section 128 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (equivalent provision for Northern Ireland) shall he amended in accordance with subsections (2) to (5) below.
(2) In subsection (1), for "or (2A)" there shall he substituted ", (2A) or (2C)".
(3) In subsection (2)(a), for "56 days" there shall be substituted "182 days".
(4) After subsection (2B) there shall be inserted the following subsections—
"(2C) A person qualifies under this subsection if—

(a) the condition mentioned in subsection (2D) below is satisfied;

(b) a medical practitioner (within the meaning of the Administration Act) certifies, not more than 14 days before the date when the claim for disabled person's tax credit is made—

(i) that in his opinion the person will continue to have the disability in question for a period of at least six months; or

(ii) that in his opinion the person will continue to have that disability for the remainder of his life; and

(c) the level of the person's expected earnings is lower, by at least the required amount, than it would have been if he had not had the disability.

(2D) The condition is that there are 140 qualifying days. the last falling within the period of 56 days immediately preceding the date when the claim for disabled person's tax credit is made, which are days in respect of which—

(a) statutory sick pay has been payable to the person;

(b) the lower rate of short-term incapacity benefit has been payable to him;

(c) income support has been payable to him on grounds of incapacity; or

(d) earnings have been credited to him under regulations made under section 22(5) above.

(2E) For the purposes of subsections (2C) and (2D) above—'

(a) the required amount, in relation to a person's expected earnings, is—

(i) 20 per cent of what those earnings would have been if he had not had the disability; or

(ii) if the amount given by sub-paragraph (i) above is less than the prescribed mount. the prescribed amount;

(b) qualifying days are days forming part of a single period of incapacity for work within the meaning of Part XI of this Act; and

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(c) income support is payable to a person on grounds of incapacity if and only if he satisfies the condition in section 124(1)(e) above by virtue of being a person who—

(i) is, or is treated as, incapable of work for any purposes of this Act; or

(ii) is treated as capable of work by virtue of regulations under section 171E below.

(2F) Sections 3 and 112 above shall apply as if this section were included in Parts I to V of this Act."
(5) In subsection (8), after "allowance" there shall be substituted ", or the level of a person's expected earnings,".
(6) In section 128(2E)(c) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as inserted by subsection (4) above, for "124(1)(e)" there shall be substituted "123(1)(e)" and for "171E" there shall be substituted "167E".
(7) In section 11(3)(b) of the Social Security Administration Act 1992 (repeat claims), for the words from "he" to "that paragraph" there shall be substituted—

"(i) he qualified under subsection (2) of section 129 of the Contributions and Benefits Act by virtue of paragraph (a) of that subsection, or of there being payable to him a benefit under an enactment having effect in Northern Ireland and corresponding to a benefit mentioned in that paragraph; or

(ii) he qualified under subsection (2C) of that section or of section 128 of the Northern Ireland Contributions and Benefits Act,".

(8) In section 9(3)(b) of the Social Security Administration (Northern Ireland) Act 1992 (corresponding provision for Northern Ireland), for the words from "he" to "that paragraph" there shall be substituted—

"(i) he qualified under subsection (2) of section 128 of the Contributions and Benefits Act by virtue of paragraph (a) of that subsection, or of there being payable to him a benefit under an enactment having effect in Great Britain and corresponding to a benefit mentioned in that paragraph; or

(ii) he qualified under subsection (2C) of that section or of section 129 of the Great Britain Contributions and Benefits Act,".

(9) This section, except subsection (3) above (and subsection (1) above so far as relating to that subsection), applies to claims made, or treated as made, on or after 1st October 2000.")
The noble Baroness said: My Lords, I am delighted to move this amendment and hope that noble Lords share my pleasure. I would find it graceless if they did not.
This new clause will enable more disabled people who want to work to do so. It provides the legislative underpinning to deliver the policy announced by the Chancellor in his Budget. Like the original Clause 14, this new clause builds on the existing DWA rules by giving people moving off various out-of-work incapacity benefits 182 days—six months—instead of 56 days in which to find a job and apply for DPTC. The clause also introduces a new fast-track gateway to DPTC to help people who become ill or disabled while working.
One of the valid criticisms regularly made to us by disability organisations is that disabled people actually had to drop out of work in order to acquire the qualifying benefit to obtain DWA if they should
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subsequently find work. The process of dropping out of work meant that they lost the employer who alone was likely to keep them in work while they were disabled. It is that specific problem, which we all recognise, which the new clause is designed to address.
The fast-track gateway will be an additional route to DPTC. The present qualifying conditions will remain in place for people who, for example, are in receipt of DLA or who want to move into work after being in receipt of out-of-work incapacity or disability benefits.
I remind your Lordships that to receive DWA at the moment, a person must either be in receipt of one of a range of incapacity or disability benefits, such as DLA, at the time of the claim, and must have been receiving certain benefits within a specified period prior to the claim—for example, a higher rate of short-term incapacity benefit.
Those qualifying benefit rules, as I am sure your Lordships will know—certainly, the noble Lord, Lord Swinfen, will know—do not do enough to help people who become disabled while they are in work. As those people have never been disabled before, they have never been in receipt of any of the out-of-work disability or incapacity benefits. Their disability may not be severe enough for them to qualify for DLA, so the only option is for them to drop out of work in order to requalify in order to get access to DPTC. As a result they lose their jobs and employers lose the experience and expertise of a valued employee. The evidence shows that people who become disabled while working are most likely to find work with their existing employer, and if he does not employ them no one else is likely to. The longer someone is out of the labour market, the less likely they are to return to it.
It is to pick up a problem with DWA that we are introducing this clause in order to produce a fast-track gateway to DPTC—to make it financially possible for newly disabled people to stay in work even if, because of their disability, they either have to move to a less demanding (and therefore less well paid) job or need to reduce their working hours in their existing job.
Let me now explain how the fast-track gateway will work, as set out in the new clause. From October 2000 a person will be able to apply for DPTC if he/she meets the following conditions. The first is that he or she has received, for 140 days, statutory sick pay, short-term incapacity benefit paid at the lower rate, income support paid on grounds of incapacity, national insurance credits only or occupational sick pay. Linked periods of incapacity will count as long as together they add up to 140 days. The second is that he or she has a condition which puts him/her at a disadvantage in getting a job. The third is that a medical practitioner certifies that the illness or disability will last for at least six months, or for the rest of the applicant's life if that is likely to be shorter than six months. The final condition is that on returning to work the applicant will receive earnings at least 20 per cent less than would have been the case if there had been no disability.
Once a person has made a successful initial application for DPTC, he or she will of course be able to make a repeat application if the illness or disability

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continues at the end of the 26-week award period. Subsection (7) of the new clause amends Section 11(3)(b) of the Social Security Administration Act to ensure that the conditions which a fast-track gateway person has to meet on making a repeat application will be exactly the same as those affecting other repeat applications. In other words, the requirement for a 20 per cent drop in earnings will apply only at the time of the initial fast-track gateway application. After that, successful fast-track applicants for the DPTC will be on all fours with those who started on DPTC via the qualifying benefit route.
The idea of the fast-track gateway emerged from informal discussions between the Government and the disability lobby on the problems faced by people who become disabled while in work. The Chancellor announced the fast track in outline in his pre-Budget report in November 1998. A formal consultation followed, and the proposals were warmly welcomed by the disability lobby, whose suggestions for improvements have been reflected in the final design. The policy was finally announced in the Chancellor's Budget in March this year.
Since then the Government have gone further in addressing the needs of disabled people. As your Lordships will be aware, my right honourable friend the Paymaster General announced on 17th May that from October 2000 the WFTC will include an additional premium worth £21.90 a week for each disabled child in a family receiving WFTC. This additional premium is already payable under DWA and wall continue under DPTC.
At the same time the Paymaster General also announced that the Government are now considering widening the range of eligible childcare for the childcare tax credit to cover certain types of paid care provided for disabled children in their own home. The Paymaster General said that the Government would be consulting interested organisations over the next few months to enable detailed proposals to be developed.
These were all measures that were raised in your Lordships' House at Second Reading. They were all raised in discussions with the Disability Benefits Forum and other disability organisations before the Bill came to this House.
I am absolutely delighted about these three important measures to help disabled people: the changes to the fast-track gateway; the additional disability premium worth £21.90 for every disabled child of a WFTC family; and being able to care for a disabled child in their own home.
This clause will provide much-needed support for people who have the misfortune to become long-term sick or disabled while they are working. Rather than giving up work altogether and claiming out-of-work benefits, such people will be able to stay in work, even though it may be work of a lesser amount in nature or shorter hours on reduced earnings, and have their income topped up by DPTC. In other words, DPTC for the first time will be doing what we have longed for DWA to do but which it has failed to do, which is to be a partial capacity benefit—the old alchemist's stone that we are all searching for.
In view of the warm welcome given to this and other measures by groups representing disabled people, I hope that noble Lords will enthusiastically support the new clause. I beg to move.
10.45 p.m.
Lord Swinfen: My Lords, I welcome this amendment and shall not go into great detail about it at this time of night. However, I have one query. What will be new subsection (4)(2C)(c) says that a person qualities if,
"the level of the person's expected earnings is lower, by at least the required amount, than it would have been if he had not had the disability'",
I have made a note beside that wording, which reads, "Who says?" If the person who has the disability has been working on piece-rate, the answer is quite obvious because you can see the amount by which his work has slowed down and that he is not able to produce as much. However, that is not the case in many jobs. I just wonder how you judge whether a person's ability to earn has decreased as a result of the disability, because that will vary. I have in mind the difference between a 19 per cent loss of earnings and a 21 per cent loss of earnings. It is easy to work out the figures, but it is the actual earning power that concerns me. How is that to be judged?
Lord Higgins: My Lords, my noble friend the Opposition Chief Whip suggests that this is clearly a birthday present for the noble Baroness. Indeed, I believe that that is probably the case. Of course, we understand her feelings on this particular subject. However, this is yet another example of recycling the same piece of news over and over again. As the noble Baroness rightly pointed out, this was originally foreshadowed some considerable time ago. None the less, it is helpful.
The noble Baroness was kind enough to write to me and my colleagues about the new clause and has now put it on the record. As I indicated earlier, there is not perhaps a case for having a correspondence course, but for having a debating Chamber. To the extent that the noble Baroness has spelt it out very clearly this evening, I do not want to delay the House any longer. However, the noble Baroness will no doubt want to reply to the point just made by my noble friend.
Lord Goodhart: My Lords, I, too, greatly welcome this new clause. It seems to me to be an admirable idea. However, I have one very small quibble to make which I hope will not be seen as looking a gift-horse in the mouth; namely, why is it necessary to leave it until October 2000? I realise that it would not be possible to introduce it in October of this year, but I wonder why it could not perhaps be introduced in April 2000 rather than waiting until October. Having said that, I reiterate that I think this is an admirable amendment and one which we certainly are very happy to see included in the Bill.
Baroness Hollis of Heigham: My Lords, I am delighted at the overwhelming enthusiasm which has come from the Benches opposite. It is very welcome at

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this time of night. However, I must say that it seems to me that the noble Lord, Lord Higgins, is being a little churlish. Indeed, if we fail to trail something and give notice that we shall be introducing something later in a Bill, we are told that we are springing it on noble Lords and that they have not had adequate or ample time to discuss it, prepare for it, take advice on it, reflect upon it and move amendments to it. But when we do give adequate notice so that noble Lords will know what we are doing and can take advice, consult and, if they want, bring forward possible amendments at a later stage, we are told that we are "recycling".
The noble Lord's version seems to suggest that we only recycle good news and that we fail to consult when the news is bad. As I said, that is rather churlish at this time of night, given the care that we have taken to ensure that the Opposition Benches know of the Government's intentions, precisely because this is a major and difficult change to introduce technically. Therefore, we wanted noble Lords to have ample time to reflect upon it and to make such consultations as they deemed necessary and appropriate.
In fact, it is for reasons of practicality as regards the technicalities that this will take until October 2000 to introduce. The changes between DWA and this new fast-track provision are quite detailed to finesse. We shall have to work closely with the organisations involved to ensure that we get the small print correct right through the regulations and the like. We need to take care in that respect.
A query was raised about the 20 per cent. Of course, there always is a cliff edge, but that figure was chosen because it represents the case of someone in work who has suffered a disability, which will seriously affect his earning power if, as a result, he loses the equivalent of one day's worth of earnings a week. That was how we arrived at the figure of 20 per cent. But of course, the amount paid will be certified by the employer and if, as a result, the person qualifies by virtue of his or her disability and reduced earnings, he or she will be eligible for DPTC. However, they will be eligible for that while remaining in the job they currently hold.
It would not be appropriate for someone to receive a benefit when, although disabled, his earnings were not affected by his disability. Such a person may be a high earner irrespective of his disability. He may, for example, be confined to a wheelchair, which will not impede his ability to be a skilled computer or IT processer earning a substantial salary. Such a person may receive DLA by virtue of his disability, but it would be unreasonable for him to receive DPTC. The point about DPTC is to ensure that someone whose earnings drop by virtue of a disability but who has negotiated with his or her employer either to do a job with reduced responsibilities or to do a different job within the same organisation—so he or she does not fall out of the labour market—will be compensated for that through the tax credit. I believe that is a decent, proper and splendid thing to do.
Lord Swinfen: My Lords, I thank the noble Baroness for giving way. If someone has a disability and he stays
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with the same employer, that is quite an easy matter to judge. However, if someone has an accident which results in a disability which means that he is away from work for some months—he may be in hospital and then have to recover from the accident—and then obtains another job with a different employer, it is much more difficult to ascertain whether that person's earning ability has dropped by 20 per cent. It is not the earnings that are so important but the ability to earn. Earnings are not static. Piece-work is easy to judge, but creative work is much harder to assess.
Baroness Hollis of Heigham: My Lords, perhaps I spoke too fast, given the lateness of the hour. This is a procedure additional to the existing route. The case described by the noble Lord, Lord Swinfen, would come under the existing routes of DPTC and DWA—in other words, it would be a case of DWA turned into DPTC. The noble Lord mentioned the case of someone who has fallen out of work because of an accident, has been in hospital, has come on to a qualifying benefit, has changed employer and as a result will be eligible for the existing structure and pattern of DWA, which will have become DPTC.
What we are introducing in addition to that—not to replace it—is what we call the fast track procedure for people for whom we can intervene while they are still on statutory sick pay with their existing employer, so that they can have the confidence that they can go back to work—possibly with reduced hours or doing a different job within that organisation—with that employer. However, to enable them to do that, we need to know about their disability and their earnings level. As I say, the case that the noble Lord mentioned is not likely to fall within the fast track procedure but rather within the alternative, basic mainline procedure which is the existing DWA procedure turned into DPTC.
On Question, amendment agreed to.
Clause 15 [New category of child care providers for tax credit purposes]:
Lord Higgins Lord Higgins moved Amendment No. 33:
Page 8, line 36, at end insert
("( ) provide that where child care is provided by an adult member of the family to which the working families' tax credit or the disabled person's tax credit is payable, the Secretary of State shall take into account, for the purposes of subsection (1), an amount equivalent to the average charges made by persons in the new category;")
The noble Lord said: My Lords, as regards my response to the previous amendment it certainly was not my intention to be churlish. I was only glad to see how delighted the noble Baroness was with it. I think it is an improvement which should be welcomed. I certainly would not wish it to be thought otherwise.
The proposals in this Bill with regard to childcare were much advertised in advance but failed to appear for a long time; in fact the House of Commons had an opportunity to debate them only on the final day in that House before they came to this House. A number of

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aspects of the matter have not yet been fully discussed and perhaps we may return to them at Third Reading. When the provisions eventually appeared in the other place, they were largely related to the question of what organisations might be approved of rather than any thing else.
The purpose of this and the following amendment is to seek the Government's view in respect of individuals who provide childcare. Such individuals may enable others to return to work when they might not otherwise have been able to do so. The Government seem to be restricting assistance entirely to organisations such as playschools, which provide formal care, rather than including relatively informal care.
If people who would otherwise be at home looking after children are to return to the workplace, one would have thought that some informal arrangements were also important, but possibly not practical without a degree of financial support. It is curious that the Government will provide financial support to a formal organisation but not an individual childcarer. I thought that it would be helpful to move this amendment to see whether the Minister can clarify the situation. In light of her response, we might return to the issue at a later stage. I beg to move.
Lord Goodhart: My Lords, as this amendment is potentially of considerable importance, I ought to make our position clear, even at this time of night. I had some difficulty working out what the amendment is intended to mean. As I read it, it intends to provide childcare credit where an adult member of the family is concerned, meaning necessarily the caring parent, because the "family" for these purposes comprises the parents and the children. Having heard the noble Lord, Lord Higgins, I think that he means members of the family in a broader sense than is used in the legislation. I refer, for example, to a grandmother looking after her grandchildren.
Lord Higgins: My Lords, I do not myself interpret the word "family" as meaning only the parents and children. Clearly, a great many other relatives can be involved and it is my intention to include them.
Baroness Hollis of Heigham: My Lords, when DSS regulations talk about a "family" in relation to an assessment of an income-related benefit, they do not take into account the money of the grandma, aunt, uncle or stepbrother. They refer to the relationship of the two adult parents and possibly, in terms of housing benefit, to any contribution made by an adult child as an offset to the benefit that the parents would get otherwise. We have to assume the meaning of "family" within the understanding of DSS law.
Lord Higgins: My Lords, perhaps the amendment is rather loosely worded.
Lord Swinfen: My Lords, is the Inland Revenue's view of the "family" different from that of the Department of Social Security? If so, that may make a difference to the amendment.
Lord Goodhart: My Lords, the problem with Amendments Nos. 33 and 34 is the cost involved. The
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Institute for Fiscal Studies has estimated that if childcare were taken up by everybody, the cost would he of the order of £4 billion per year. This provision would not affect the whole of the £4 billion because not everybody would claim for childcare provided by a grandmother or family member. It would not, as I understand it, cover a mother looking after her own children. Even so, it will obviously be very expensive. Although we warmly welcome the generous level of benefits provided under the new arrangement, we have to look at the realities. Much as we would like to see something along the lines of the amendment, reality would not allow that at this stage. Therefore, I am unable to support the noble Lord's amendment.
11 p.m.
Baroness Hollis of Heigham: My Lords, I am slightly baffled as to the intent of the amendments. I had assumed that they were about a subject that we had previously discussed. That involved a situation where, if the mother was at home and not working, she would nevertheless still be entitled to, effectively, a wage as a mother by receiving the childcare tax credit—which is what is said in the amendment. The second issue, which it is perfectly proper to raise, is whether we are willing to finance informal as opposed to formal care. That is a totally different issue. Informal care could include care by a neighbour, a sister, a nanny, an au pair or whatever. If the noble Lord is concerned about that situation, I am very happy to explain why we are not doing that. I will scrap all my notes, which were addressed to what is said in the amendment.
If someone wishes to claim childcare tax credit for a child up to the age of eight, it may only be claimed where the person involved is a registered child minder; that is, a person who has been registered by the local authority as a fit and proper person and whose home is a fit and proper place by reasons of hygiene, safety, electrical appliances and all the other kinds of things that one would expect. The child minder is therefore registered as self-employed in a small business and handling accounts. That is the protection: the childcarer is of adequate quality, having been registered, and there can be no abuse in the sense of back-handed payments of money with no accounts kept. It is a proper business, run with proper accounts. If someone is to claim against it, the Inland Revenue will have access to that information should it need it.
Protection for the taxpayer and the child alike requires the Government to use registered child minders. We are considering whether we can provide greater help for disabled children in their own homes. We are not seeking to provide a general subsidy for au pairs, nannies or the next door neighbour. It is public money; we are accountable for the proper spending of public money; therefore it must pass through registered childminders. That is why we are funding formal care rather than informal care.
It may be helpful if I explain what we are doing in regard to children over the age of eight. I think that Amendment No. 33 attempts to state that an amount

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equivalent to the average charges made by persons in this category shall be taken into account where the childcare is provided by a member of the family. The persons in the new category will in the main work in out-of-school clubs, providing care for children aged eight and over. Clearly, it is inappropriate to read that back into what a partner might do. The rates the clubs charge will depend upon the service they provide. A breakfast club taking children before school will charge differently to an after-school club, which will charge differently to a holiday play scheme. The charge will depend on the length of care provided. A breakfast club may provide care for one hour each day; an after-school club for a few hours; holiday play schemes for a whole day. The charges will have a considerable range. It is not sensible to confine the help the amendment seeks to provide to an average charge when there is palpably no such thing in this sector.
I do not want to begin to contemplate the administrative burdens such a system would impose on childcare providers to collect information about the charges made, in order that the average can be worked out and then paid to somebody else. It would be an administrative nightmare.
In contrast to Amendment No. 33, Amendment No. 34 links the amount to be taken into account,
"to half the maximum amount available towards charges made by persons in the new category".
Help for charges made by persons in the new category would be no different to the help given for other eligible childcare charges; that is, 70 per cent of those charges up to a maximum help of £70 per week for one child, £105 when two or more children are being looked after. Presumably the amendment is trying to state that the stay-at-home carer should receive £35 per week for one child or £52.50—that is, half of £105—for two or more children. I think that is what the amendment states, even if it is not what the noble Lord intended.
That brings me back to the argument about whether it is right to pay the childcare costs to a mother or a partner who stays at home. I do not believe that it is right to do that through the childcare tax credit. Of course, as part of the national childcare strategy, we will widen the opportunities of childcare for all children, whether or not one of their parents is at home looking after them.
I am happy to go on at length about the difference in cost between a couple where one partner stays at home and another family where both are at work. However, if that is not the purport of the noble Lord's amendment and his concern was about the difference between formal and informal, I shall not occupy the time of the House at this hour.
I am in the hands of the noble Lord as to whether I should close my remarks at this stage, having made clear why we are seeking to protect the position of formal as opposed to informal and the difference in treatment between the under-eights and the
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over-eights—as envisaged, the under eights through registered childcare certified by local authorities; and for the over-eights, the DfEE will certify accredited organisations which, in turn, will be able to register other groups as qualifying and providing care of a suitable kind. If the noble Lord is satisfied with that response, I shall close my remarks. I could go on for very much longer, but I do not want to trespass on the patience of the House this late at night.
Lord Higgins: My Lords, I must apologise for the ambiguity and the incorrectness of the form in which the amendment appeared. It was certainly my intention to raise the question of—I will not use the term "extended family" which has other implications—grannies, aunts and so on. I can understand how the noble Baroness and her officials took the amendment to mean individuals whom we had debated on different amendments at an earlier stage. It was not my intention to raise that again. The Minister's remarks have been helpful. I shall give thought to them between now and Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Lord Higgins Lord Higgins moved Amendment No. 35:
Page 8, line 42, after ("State") insert ("because the organisation provides child care for disabled children or")
The noble Lord said: My Lords, in moving this amendment, perhaps I may speak to Amendment No. 36 which is consequential on it. The amendment seeks merely to establish, in the framework which the Minister outlined a moment ago, precisely the scope of the various organisations which might provide care and, in particular, to clarify whether it includes the organisations which provide childcare for disabled children. At this stage I am merely seeking clarification of that scope in the light of the amendments previously moved in another place. I beg to move.
Baroness Hollis of Heigham: My Lords, the short answer to that is yes. The same arrangements will apply for disabled children as apply for non-disabled children. There is provision for the under-eights and there is provision for the over-eights. What is new here is the provision for over-eights. The framework will operate by setting up two tiers of voluntary regulation. In the top tier, organisations in the childcare field—for example, daycare trusts, kids' networks or whatever—which operate a quality assurance scheme would apply to the Secretary of State for accreditation which would then allow them to approve childcare providers as part of their quality assurance. In other words, the DfEE would license two, three, five or whatever major organisations of a national character to, in turn, license individual bodies which would meet the standards they had set down. We will be acting through voluntary organisations with the appropriate skills to establish the

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local voluntary network. The Secretary of State, when considering an application for accreditation, will look at the way the organisation would use its quality assurance scheme to approve individual providers which had achieved an appropriate quality standard agreed with the Secretary of State.
It is a novel scheme because it seeks to use the expertise that is currently developing among childcare organisations and to harness their work so as to encourage and ensure the provision of good quality out-of-school childcare. But it is important to emphasise that the scheme is not restrictive. Both the providers and the organisation which run the quality assurance schemes opt into the scheme. It is not like the regulatory framework set down by the Children Act where everyone caring for the under-eights must comply unless they are specifically exempted. That is why the legislation is enabling and not regulatory in the sense that is commonly used. It enables parents to afford good quality out-of-school care and it enables providers to offer their services to a wider range of parents than would otherwise be the case. Not only is it a novel measure but it enables issues such as the provision of care for disabled children to be readily accommodated within the process. Many groups to which we have spoken tell us that disabled children and their parents prefer disabled children to mix with and be cared for alongside other able-bodied children. This is what the framework seeks to achieve.
Among the criteria which the individual providers will need to fulfil is the need for a robust, equal opportunities policy for the children in their care. It is this aspect which seeks to ensure that the approved childcare in this sector is open to children with disabilities in the same way as for able-bodied children. Furthermore, specialist childcare for disabled children in the age range eight to 16 is not debarred from joining in the accredited organisations quality assurance scheme and becoming approved for the purposes of the childcare tax credit.
In conclusion, the current framework for the under-eights and a new framework aimed at eights and over, which is what Clause 15 is delivering, will accommodate those who provide childcare for disabled children and, most importantly, they would apply the same quality standards. There is no question of disabled children accepting or receiving a lower quality of care than would be expected for any other child.
The Government have gone further than this. As I say, as part of the package of measures to help those disabilities which my honourable friend the Paymaster General announced last Monday, there was a commitment to begin consultations with appropriate bodies about how to improve the necessary provision of care in a disabled child's home as eligible childcare for the childcare tax credit, which is not the case for the ordinary registered childminder. This is all good news. I would hope that in the light of this the noble Lord will see that his amendments are actually inappropriate, and
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indeed the insertion of the condition that the organisation provides childcare for disabled children is unhelpful and could actually be counter-productive. I hope that in the light of my efforts at explaining what we are doing and the good news I have been able to relay, the noble Lord will feel able to withdraw his amendment.
Lord Higgins: My Lords, I am most grateful to the noble Baroness, who has set the matters out very clearly so that it has helped to clarify the position. We will need to consider what she has said between now and Third Reading, but in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 36 not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 37:
Page 9, line 7, after ("which") insert (", subject to subsection (5) below,")
The noble Baroness said: My Lords, this is something else that I am confident your Lordships will welcome tonight because the amendments of which Amendment No. 37 is the first implement one of the recommendations of the Select Committee on Delegated Powers and Deregulation. In response to an amendment moved in Committee, I said that I would reflect further on the issue and would return to this matter at Report stage.
As your Lordships can see, the Government have reflected on the issue. We recognise that an extension of childcare through this two-tier system of accredited organisations and local providers in Clause 15 is a major new development of government policy and one which has been widely welcomed. Given what I said in Committee, that I would reflect on whether as a result the Government should come forward with an amendment to the effect that the first set of regulations should be affirmatives, we have an opportunity, as a House, fully to discuss what I think is extremely good news in terms of extending the range of childcare for able-bodied and disabled children alike.
Consequently we have tabled this amendment to do what noble Lords asked me to do but set out in a form which we think would best fit the structure of the Bill and which would satisfy the necessary drafting conventions for such things. It would do no more and no less than the amendment tabled by the noble Lord, Lord Goodhart, and the noble Earl, Lord Russell, in Amendment No. 38, but it is framed in what we hope and believe is a more appropriate and certainly a more technically valid form. In the light of that, I have pleasure in moving Amendment No. 37.
Lord Goodhart: My Lords, my Amendment No. 38 is grouped with this amendment and of course it is now

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rendered unnecessary by Amendments Nos. 37 and 39. I would say just two things, as this is the last group of amendments at Report stage. I am very glad that we will be able to finish tonight while it is still the noble Baroness's birthday—
Baroness Hollis of Heigham: Indeed, my Lords, I bring "presence" to the House rather than receiving them.
Lord Goodhart: Always, my Lords, always. Secondly, I would like to say that of course I am very pleased to see that in this case the recommendation of the Delegated Powers and Deregulation Committee has been accepted. I am very glad that the Department for Education and Employment has taken what I would regard as a more reasonable and helpful view than that of the Inland Revenue. Therefore, I warmly welcome these particular government amendments.
Lord Higgins: My Lords, the intervention of the noble Baroness has taken my punch line. I believe that at the beginning of the Committee stage reference was made to Alice in Wonderland and the way in which words meant what somebody said they meant. We began by debating whether benefits should be known as tax credits. We end up with an equally good quotation from Alice in Wonderland, the exact words of which I am unable, unfortunately, to bring
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to mind. However, I recall that at some stage in the proceedings someone announces that everyone will have presents.
Lord McIntosh of Haringey: My Lords, perhaps the noble Lord has in mind the caucus race in which everyone shall win and have prizes.
Lord Higgins: My Lords, the noble Baroness got the previous amendment and we have this one, so we are all very happy. Once again, I wish the noble Baroness a happy birthday.
On Question, amendment agreed to.
[Amendment No. 38 not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 39:
Page 9, line 9, at end insert—
("(5) A draft of the first regulations to be made under this section shall be laid before each House of Parliament and those regulations shall not be made unless the draft has been approved by a resolution of each House.")
On Question, amendment agreed to.
Clause 20 [Short title, commencement and extent]:
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 40:
Page 10, line 33, leave out ("and section 19(1)") and insert (", subsections (2) and (4) to (9) of section (Persons qualifying for disabled person's tax credit) (and subsection (1) of that section, except so far as relating to subsection (3)) and subsection (1) of section 19")
On Question, amendment agreed to.
House adjourned at sixteen minutes past eleven o'clock.