Lords Sitting of 3 February 2000

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Carlisle): The LORD CHANCELLOR on the Woolsack.
Lord Robertson of Port Ellen
The Right Honourable George Islay MacNeill Robertson, having been created Baron Robertson of Port Ellen, of Islay in Argyll and Bute, for life—Was, in his robes, introduced between the Lord Healey and the Lord Gilbert, and made the solemn Affirmation.

Disability Discrimination Act 1995: Exemptions
3.6 p.m.
Lord Ashley of Stokeasked Her Majesty's Government:
Why 81 per cent of all firms are still exempted from the employment provisions of the Disability Discrimination Act 1995.
Lord Bach: My Lords, I have been asked to answer this Question, as my noble friend Lady Blackstone, the Minister of State, is at a family funeral this afternoon.
The employment provisions of the Disability Discrimination Act 1995 were introduced for employers with 20 or more employees in 1996. We extended that to employers with 15 employees in 1998. The Act therefore already protects over 75 per cent of disabled employees. The Disability Rights Commission Act 1999 contains a provision requiring us to consult the commission before making further extensions and we plan to do so after it has been established in April.
The appropriate percentage in the Question should in fact be 89 per cent—a figure given by my noble friend the Minister of State in an oral Answer to my noble friend on 13th April last year (at col. 620).
Lord Ashley of Stoke: My Lords, I appreciate that reply. However, is my noble friend aware that the Government "bought a pup" when they accepted the arguments of the small firms federation that small firms should be excluded from the Act? The view of the federation was that, if small firms were included, unreasonable burdens would be imposed on them. It is an absurd argument: the Act specifically states that only "reasonable" provision should be made. So, by definition, it is impossible to impose unreasonable burdens on any employer, however small. Does my noble friend know of the arguments of the organisations supporting the inclusion of all firms? They include: the Parliamentary All Party Disablement Group; the Disability Rights Task Force,
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chaired by the Minister for Disabled People, Margaret Hodge; and, significantly, the Employers' Forum on Disability. When will the Government join that distinguished group?
Lord Bach: My Lords, the Government accept the importance of trying to bring more disabled employees within the protection of the Act. As I said, we have already taken the first step. It is a requirement under the Disability Rights Commission Act 1999 to ask the newly established Disability Rights Commission for advice relating to further changes. We are under an obligation to do so, as well as to consult with employers and other disability organisations. That is our intention.
So far as concerns reasonableness, after 25 years as a common lawyer—a common law lawyer—
Noble Lords: Very good!
Lord Bach: My Lords, some of the lawyers in this House are certainly not common. After 25 years, I tend to shy away from saying that the concept of reasonableness is a simple issue. It is not. It may be so in general terms; however, it does not describe the details involved. The present case law on the provisions of the Disability Discrimination Act 1995 is comparatively small. We are urgently monitoring that case law.
Lord Campbell of Croy: My Lords, does the noble Lord recall that, under the previous quota system, before the 1995 Act, small firms were exempted because they would have been required to employ a fraction of a person—a quarter or a third of a disabled person! That was, of course, an absurdity. As that problem no longer exists, can the Government move more quickly to reduce the exempted number of employees?
Lord Bach: My Lords, the position is that we have set up the Disability Rights Commission. There would be no point at all in Parliament having set up such a Commission if we did not seek its advice on issues such as the lowering of the exception threshold. The Commission's advice is crucial. I cannot think of a better reason for setting up such a Commission.
Lord Addington: My Lords, at what point was the principle that discrimination does not take place at a certain level adopted by Members of the party opposite, who, when in Opposition, followed me into the Division Lobby when we attempted to remove the restriction during the passage of the original legislation?
Lord Bach: My Lords, the noble Lord has the advantage of me, he having been in the House many years ago when this side was in opposition. Our position when in opposition was to make use of Section 7 of the 1995 Act to lower the threshold. To be fair, we began a review a few months after taking office and reduced the threshold only two years after implementation of the Act. Under the 1999 Act we have changed the law to make consideration of further reductions easier. The

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change makes it possible to have a phased reduction, which was a suggestion made by us when in opposition. I believe that the record of the Government in this particular field is outstanding.
Lord Morris of Manchester: My Lords, it has been reported, as my noble friend will know, that of the £195 million New Deal for Disabled People funding which was allocated to help with employment for people with disabilities, only £8 million has so far been spent. With unemployment still so very high among employable disabled people, can my noble friend say why 96 per cent of the sum allocated remains unspent?
Lord Bach: My Lords, the key principle of the welfare-to-work approach is: work for those who can and security for those who cannot. The personal adviser scheme set up to deal with disabled people in the context of the New Deal provides one-to-one specialist client-centred help. By 26th November last year advisers had worked with over 8,000 people and 5,050 people had begun to implement what is described as an employment-focused action plan. The people in that group will need many months of support before they are ready to start work. However, so far some 1,275 people have found jobs. Taking that with other results from innovative schemes, we have secured jobs for 1,749 people. In spite of what my noble friend suggests, I do not believe that that is a bad record.
Lord Swinfen: My Lords, can the Minister say how many disabled people are adversely affected by the exemption?
Lord Bach: My Lords, the noble Lord will recall I said that over 75 per cent of disabled employees were already covered. Perhaps the noble Lord will give me a moment while I find the number of those who are not covered. I believe that I shall be able to give the noble Lord that figure in a letter.

Scottish Universities: Fees
3.16 p.m.
Baroness Blatchasked Her Majesty's Government:
What steps they propose to take to remove any discrimination which will be experienced by English, Welsh and Northern Irish students at Scottish universities over the payment of fees.
Lord McIntosh of Haringey: My Lords, I answer this Question for the same reason that my noble friend Lord Bach answered the last. The arrangements for student support and tuition fees in England and Wales are working well, and will be made even better by the additional financial help announced last week for mature students and young students from the least well-off families. Devolution means that the arrangements in Scotland will be different, but differences do not amount to discrimination.
Baroness Blatch: My Lords, does the noble Lord agree that students in England, Wales and Northern
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Ireland can be forgiven for believing that they have equal rights within the United Kingdom and with students throughout the European Union? Therefore, how can the Government defend disadvantaging English, Northern Irish and Welsh students in favour of, for example, Greek and Spanish students?
Lord McIntosh of Haringey: My Lords, students everywhere can be forgiven for believing that they have comparable rights, as they do. The arrangements in both England and Wales and Scotland are compatible with European Union rules.
Lord Shore of Stepney: My Lords, is the Minister aware that, whether or not the arrangements are compatible with European Union rules, they are a clear example of discrimination against English, Welsh and Northern Irish students attending Scottish universities which has been forced upon us by the European Union? To double, or even treble, the insult—which it is—to our right to decide our own affairs, at the same time we are forced positively to discriminate in favour of any student from the European Union who will receive the same benefits as a Scottish student. This is insupportable. What are we doing about it?
Lord McIntosh of Haringey: My Lords, my noble friend, no doubt inadvertently, is illogical in his reasoning. I said that the provisions were compatible with, not determined by, European Union rules. I have said that the provision for student fees and higher education generally in this country is justified and generous. The same may well be said of the provision in Scotland.
Baroness Sharp of Guildford: My Lords, is the Minister aware that, far from what he said, the present arrangements for student finance are not working well? Real poverty is being experienced by many students at our universities and harm caused to their studies by having to combine full-time education with part-time work. Given the Government's anxiety to increase access to higher education for a large number of people who are less well off, has the Minister given consideration to whether Cubie-style arrangements should be adopted in England?
Lord McIntosh of Haringey: My Lords, the Secretary of State for Education was able last week to announce a £68 million package of improvements in student provision, in particular for mature students and those from the most deprived backgrounds. It includes greater access to funds, better access to hardship funds and loans, childcare and school meals provision for mature students and an increase in the threshold of payments from £17,370 to £20,000. That indicates that the noble Baroness may well have been right: that our student provision was not adequate until now. However, we can claim that we have made significant improvements to that provision by the package we announced last week.
Lord Molyneaux of Killead: My Lords, whatever the status of Northern Ireland may prove to be before the

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end of the week, will the Minister ensure that the legitimate concerns and hardships of students from Northern Ireland will not in any circumstances be disregarded by Her Majesty's Government? The position was set out by the noble Lord, Lord Shore.
Lord McIntosh of Haringey: My Lords, in so far as it is within our power, I am sure we would wish to give the assurance the noble Lord seeks.
Lord Pearson of Rannoch: My Lords, if the Minister is right and the discrimination referred to in the Question is not determined in the final analysis by European Union rules, why do not the Government remove that discrimination? Do they approve of it?
Lord McIntosh of Haringey: My Lords, I said that the provision made for students of this country in England, Wales, Northern Ireland and Scotland is determined because we think that that provision is right, not because of European rules. We have no desire to change it.
Earl Russell: My Lords, will the Minister remind the noble Lord, Lord Shore, and the noble Lord, Lord Pearson of Rannoch, that the original King Charles' head was not the property of Charles de Gaulle?
Lord McIntosh of Haringey: My Lords, I do not reply to noble Lords' jokes, when I cannot match them.
Lord Mackay of Ardbrecknish: My Lords, does the Minister remember my grandchildren?
Noble Lords: Yes!
Lord Mackay off Ardbrecknish: My Lords, does the noble Lord believe that it is fair and not discriminatory that my Italian grandchild can now have a free university education in Scotland whereas my grandchild in Kent will have to pay £4,000 despite the fact that her parents are taxpayers in the same United Kingdom?
Lord McIntosh of Haringey: My Lords, I am trying desperately to remember the Italian and Scottish towns to which the noble Lord referred. I think that it must be Ecclefechan but I cannot remember the Italian town.
No. The provision made for European students is in accordance with European Union rules. The provision made for students resident in England and Wales is in accordance with the decisions of this Government, and no one else.
Lord Sewel: My Lords, does the Minister accept that in certain policy areas devolved to the Scottish Parliament there will be differences in policy pursued by the Scottish Parliament from those of the Parliament at Westminster? It is a matter of diversity rather than discrimination. This House welcomed the concept of devolution. It should be encouraged as a strengthening rather than a weakening of the Union.
Lord McIntosh of Haringey: My Lords, I have sought to persuade noble Lords opposite of that point for some
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time. The fundamental point underlying this debate is that governments of England and Wales, and Scotland, have recognised that our responsibilities to students extend beyond the full-time young students to mature and part-time students. That is what the package covers.

Tax Changes: Effects
3.23 p.m.
The Earl of Northeskasked Her Majesty's Government:
How much money the Treasury will save as a result of the abolition of the married couple's allowance and MIRAS; how much the reduction of 1 p in the pound on income tax will cost the Treasury; and whether the Treasury will be a net loser or winner.
Lord McIntosh of Haringey: My Lords, we are introducing measures to make work pay and improve support for families with children, including a new children's tax credit worth up to twice as much as the married couple's allowance. The estimates of the effects which provide the figures the noble Earl requires were published in the Economic and Fiscal Strategy Report and Financial Statement and Budget Report last year. When the children's tax credit is in place, the estimates show a net decrease in revenue from the measures mentioned by the noble Earl of £750 million.
The Earl of Northesk: My Lords, I am grateful to the Minister for that reply although it does not answer my specific questions. I am always chary of trading statistics with the noble Lord. However, does he question the integrity of figures from the House of Commons Library which demonstrate the Treasury to be a net winner to the tune of £700 million as a result of the measures mentioned in my Question? Can we infer that the Treasury's gain is the compensation to the taxpayer mentioned by the Prime Minister in his interview with Mr David Frost on 16th January?
Lord McIntosh of Haringey: My Lords, the figure the noble Earl quotes from the House of Commons Library is, as I said, also available in the Economic and Fiscal Strategy Report and Financial Statement and Budget Report, so there is no concealment of any kind. It was only for the sake of brevity that I referred the noble Earl to the published figures. Yes, indeed, for 2000–01, before the full package is complete—none is in place yet—the figure shows a benefit to the Treasury of £700 million. However, when we take into account, as we must, the children's tax credit, the figure of £750 million in the other direction is correct.
Lord Taverne: My Lords, there are enormous demands on the public purse. There is a severe short age of resources available for the health service and other public services. There are not sufficient resources

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available for the relief of farmers. Is it not perverse in the extreme to proceed with the cut of 1p in the tax rate? It seems to have little public support.
Lord McIntosh of Haringey: My Lords, no. The Chancellor announced last year the cut of 1p in the tax rate. It has, of course, to be enacted in the Finance Act for this year. It has wide public support and fits in with our general economic strategies. It fits in with the golden rule on taxation and borrowing. As I have shown from the figures on family support, it is progressive and beneficial to families.
Lord Stoddart of Swindon: My Lords, the MIRAS system seems to have been phased out to the great benefit of the Treasury. However, the stamp duty on houses when they change hands has increased. That does not seem right. I hope my noble friend can assure me that there will be no further increases in stamp duty. As a quid pro quo for the abolition of MIRAS, perhaps it could be abolished.
Lord McIntosh of Haringey: My Lords, my noble friend's remarks will be noted, as always. I am sure that the Chancellor will take them into account when he makes his decisions in advance of the Budget. As regards MIRAS, as my noble friend knows, the level of relief on mortgage interest has been declining for several years under both governments. It amounts now to only 10 per cent on loans up to £30,000. This is the last stage of a process which has continued for some time.
Lord Saatchi: My Lords, is it true that there exists in the Treasury a document which describes the Government's tax strategy as being to cut visible taxes on voters and raise invisible taxes elsewhere? Is it true that by manipulating a mass of complicated tax allowances, reliefs and exemptions, the net effect of all the Government's tax changes is equal to an increase of 4½p in the basic rate of income tax? Does the Minister agree that this gives a new meaning to the phrase "rip-off Britain"?
Lord McIntosh of Haringey: My Lords, there is no such document in the Treasury.

Local Government Act 1988: Section 28
3.28 p.m.
Lord Topeasked Her Majesty's Government:
What is their reaction to the comments in the press of the Chief Inspector of Schools, Mr Chris Woodhead, on the Government's intention to repeal Section 28 of the Local Government Act 1988.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, just in case it has escaped your Lordships' notice, there will be a full opportunity to debate the issue in detail during the
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Committee stage of the Local Government Bill on Monday. Chris Woodhead was speaking personally and he was technically correct in that Section 28 does not affect schools. This and the previous Government have repeatedly pointed out that that is the case and the message may be getting across to some schools.
Regrettably, however, there is ample testament from teachers, parents, pupils and social workers that Section 28 confuses and inhibits teachers and can prevent an effective response to serious problems. That is why we propose to proceed to repeal it.
Lord Tope: My Lords, I am grateful to the Minister for reminding us of Monday's opportunity. I believe that the words used by the chief inspector were to the effect that Section 28 has not had a negative influence on teachers' ability to tackle homophobic bullying. Would the Minister agree that there is ample evidence that it has had such a negative effect and is not the fact that the chief inspector is apparently unaware of that, a more serious indictment of his failure to create an atmosphere in which teachers and pupils can confide their real concerns to him?
Lord Whitty: My Lords, I agree with the noble Lord in that Chris Woodhead does not seem to reflect the view of teachers. Forty-four per cent of them felt that they had difficulty in meeting the needs of gay and lesbian pupils as a result of Section 28 and 28 per cent felt that the section may leave them open to legal proceedings. That is ample evidence of the need to alter this pernicious clause.
Baroness Blatch: My Lords, many of my colleagues will be shocked by the way in which the Minister dismissed the comments of the Chief Inspector of Schools, who I believe has given excellent service to this and the previous Government. Has the Minister seen the marvellous exhibition upstairs which has been put together by my noble friend Lady Young? Does he agree that it contains materials which were depraving and corrupting, upon which public money had been spent and which was being peddled around to very young children in our schools and youth centres?
Lord Whitty: My Lords, many noble Lords will be aware of the exhibition and of the material that is being peddled around. That material has not been produced by or for the Department for Education and Employment, local education authorities or schools in most respects. Some of the material is sensible, good guidance to teachers, social workers and youth workers and I would very much approve of it. However, I should not want to see other parts of the material used in schools and youth clubs.
The guidance which my right honourable friend the Secretary of State for Education is in the process of producing—he is doing so in consultation with a wide range of opinion, including the Churches and everyone involved in sex education—will soon be available. It is important to deal with these issues in a sensitive and detailed way and not attempt to do so by a few

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ambiguous and at times damaging lines in local government legislation, such as was tried by the previous administration.
Baroness Massey of Darwen: My Lords, is my noble friend aware of the number of organisations set up by parents of gay young people because they are concerned about the bullying of their children? Furthermore, is he aware of a report published some years ago by a gay teenagers' group which describes the misery caused by bullying in schools?
Lord Whitty: My Lords, yes, I am aware of several parents' organisations which have brought the issue to the attention of Ministers and education authorities and of the wide range of reports from people who have suffered from homophobic bullying in schools. I am also aware of the report to which my noble friend referred and of the wide range of organisations which, as a result of their experience with young people, and in particular the abuse received by them, support the repeal of Section 28. I hope that on Monday the Committee will do the same.
Earl Russell: My Lords, does the Minister agree that Mr Woodhead's opinion of the effect of Section 28 must be contingent on his opinion of its meaning? Does he also agree that, as in 12 years no one has tested the meaning of the section in court, any opinion of its meaning must be conjectural and therefore personal?
Lord Whitty: My Lords, in my opening remarks I said that Chris Woodhead had spoken personally. One of the many defects of the section is that it is not clear and has never been tested by the courts. If it were so tested, it would not achieve any of the objectives which its original proponents sought from it.
What it has done is create an appalling atmosphere among teachers and social workers who believe that they cannot touch on some of the most difficult problems which people bring to them and that they cannot give them information, education and counselling. That the effect, not its legal effect, and it is therefore inappropriate for the face of primary legislation.
Lord Campbell of Alloway: My Lords, may I ask the Minister an unemotive question? In the context of the repeal of Section 28, does he accept that the Act as it stands, without amendment, confers absolute discretion on a local authority to promote anything considered to be likely to improve social well-being?
Lord Whitty: My Lords, no, I do not believe it does in that absolute sense. I am pleased that the noble Lord attempted to take some of the emotion out of the debate and I, too, shall attempt to do so on Monday.
The position is not that if we remove Section 28 there will be a vacuum. If we remove Section 28, school governors and teachers who are responsible for sex education in schools will be subject to the very detailed guidance which my right honourable friend the Secretary of State for Education is producing as well
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as the guidance which already exists from the Department of Health. That is the way to deal with this sensitive problem.
Lord Northbourne: My Lords, will the guidance also cover local authorities?
Lord Whitty: My Lords, yes, the education aspect of the guidance will cover the education role of local authorities.
Baroness Thornton: My Lords, does my noble friend agree that it is even more surprising that Mr Woodhead can make such a statement when the 1997 report from the Institute of Education makes it clear that the existence of this legislation sends a confusing message to teachers and affects the lives of young people with whom they seek to work? I cannot believe that he is not aware of this report and its comments.
Lord Whitty: My Lords, I am aware of the report from the Institute of Education and believe it to be well founded on the experience of school teachers and head teachers. That is one of the main motivations behind our desire to see the repeal of the section and to provide a sensible, calm and caring context in which sexual relationships are advised on by school teachers, social workers and youth workers. The continuation of the section has a pernicious effect and we ought to remove it.

Insolvency Bill [H.L.]
3.37 p.m.
Lord McIntosh of Haringey: My Lords, I beg to introduce a Bill to amend the law about insolvency; to amend the Company Directors Disqualification Act 1986; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.— (Lord McIntosh of Haringey.)
On Question, Bill read a first time, and to he printed.

Comhairle Nan Eilean Siar (Eriskay Causeway) Order Confirmation Bill
Brought from the Commons, read a first time, and (pursuant to the Private Legislation Procedure (Scotland) Act 1936), deemed to have been read a second time and reported from the Committee.

Children (Leaving Care) Bill [H.L.]
3.38 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I beg to move the Motion standing in my name on the Order Paper.

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Moved, That the order of commitment of 7th December last be discharged and that the Bill be committed to a Grand Committee.—(Lord Hunt of Kings Heath.)
On Question, Motion agreed to.

Crown Prosecution Service Inspectorate Bill [H.L.]
Report received.

Nuclear Safeguards Bill [H.L.]
3.39 p.m.
Read a third time, and passed, and sent to the Commons.

Race Relations (Amendment) Bill [H.L.]
3.40 p.m.
Read a third time.
Clause 1 [Discrimination by police and other public authorities]:
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 1:
Page 1, line 9, leave out from ("a") to ("to") in line 11 and insert ("public authority").
The noble Lord said: My Lords, in moving Amendment No. 1, I should like to speak also to Amendments Nos. 3, 4, 5, 6, 7, 10 and 11. I am sure that noble Lords will be glad to know that I do not intend to make a long speech on these amendments. However, I should like to give the Minister an opportunity to respond so that the House is made aware, before we say au revoir to the Bill, of the current state of policy development on two or three outstanding issues.
The amendments all relate to the definition of "public authorities", with the exception of Amendment No. 11 which relates to the proposed policy of duty to promote equality. Noble Lords will recall from our previous debates that what is being sought here is a combination of a specific definition of "public authorities" by means of a schedule and a generic definition by reference to the Human Rights Act. During our debates on Report, I suggested that a solution might lie in having both. That is the proposition which these amendments seek to pursue. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I am grateful to the noble Lord, Lord Lester, for his brevity; I shall try to be equally brief. Noble Lords are well aware that the issues surrounding the definition were
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debated both in Committee and on Report. The reasoning behind the approach we have taken is now probably well understood.
I undertook on Report last week that the Government would look again—without commitment—at this matter. For that reason, I do not believe that we can move much further at this stage and I hope that noble Lords will not allow the issue to delay the passage of the Bill. I trust that the noble Lord, Lord Lester, will feel able to withdraw his amendment in the knowledge that we are looking at the whole matter again.
I must say that I think his proposal to bring the two definitions together is novel, has value and has merit. Together with my right honourable friend the Home Secretary, we have agreed to look at this matter in the round. The noble Lord, Lord Lester, knows that we have had useful further discussions. That is the state of play at the moment. We shall continue to examine the matter positively to see whether we can accommodate both attempts at a useful definition by means of a single approach. However, I do not wish to predict the outcome of those discussions and no doubt the issue will be revisited in detail when the Bill goes to another place.
For those reasons, I am grateful to the noble Lord, Lord Lester, for his intervention. We shall be considering the matter further and it is hoped that we shall be able to accommodate all sides of the argument in future debates.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister. I share his hopes and regard his response as encouraging, without committing the Government, as is quite right. It will be for the democratic Chamber to make the final decision. I am grateful for, and content with, the Minister's reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 2:
Page 1, leave out lines 13 and 14.
The noble Lord said: My Lords, this amendment is designed to extend the Race Relations Act to cover indirect discrimination by public authorities. The Government have already agreed to do that. I raise the matter at this time only because, on a previous occasion, the noble Lord, Lord Cope of Berkeley, expressed the hope—and I share that hope—that it might have been possible to make the amendment at this stage; namely, before the Bill goes to the other place.
I seek an indication now of whether that is possible; or are there technical reasons why it would be preferable to postpone amending the Bill until the matter is dealt with in another place? I beg to move.
Lord Cope of Berkeley: My Lords, in our previous debates, in particular on Report, the Government said that they accept that the Bill as it stands is half baked. I understand that the noble Lord, Lord Lester, is willing to trust the Government to take action along

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the lines he has suggested on indirect discrimination. However, I do not understand why, if they agree with the noble Lord's case, the Government do not simply accept the amendment. It is a simple amendment. I doubt whether it would produce any great problems of drafting.
I should like to point out one difficulty about leaving this matter to another place. If that happens, I do not believe that this House will have had an opportunity to give proper consideration to the full effects of the amended Bill. Some doubts have been cast on those effects. First, there may be effects on the police. We have in the past discussed the issue of stop and search. I shall not go over the arguments again. Nevertheless, the police are the most examined, inspected and supervised of all the institutions in this country. They do an extremely vital job and we should be careful before we impose new layers of inspection and review upon them.
In any case, the wider question is whether all public authorities should be covered by legislation on indirect discrimination. At first, the Government declared that sensible government would become impossible, with issues constantly stuck in the courts. I wonder whether they have anticipated that they might be taken to court, for instance, over university fees, an area where, so far as I can see, the Government discriminate on the ground of nationality between Scottish and English students. The same applies to students from other countries within the European Union. However, that argument has now been dropped and replaced by ministerial assurances that all will be well.
I have been around this Palace long enough to become a firm believer in the law of unintended consequences and I am not yet sure what the consequences of this legislation will be. If it results in a string of cases against the Government and other public authorities, as the Government at first feared, tying down scarce resources, I do not believe that that will help sensible government; and it will do no good for the cause of good race relations.
We seem to be in an interim position whereby the Government have changed their mind but have not yet decided precisely how to implement the change. The matter is expressed in clear and simple terms in the amendment of the noble Lord and I am surprised that the Government are unable to accept it.
Lord Avebury: My Lords, I believe that we can safely trust the Government on this occasion. I do not often trust any government, but the undertakings given have been firm and definite and have already been taken up by those affected by them. I want to draw your Lordships' attention to the fact that the Local Government Association, which welcomed the extension of indirect discrimination legislation, has already said that it will follow up the conference on the Lawrence inquiry which it held in November 1999 and consider further the steps that local authorities need to take in order to tackle institutional racism and to avoid legal challenge under the new legislation. Therefore, before those changes have even been implemented— which the Government have undertaken to do—those
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who are affected by them are already taking action to see what they must do to comply with the legislation as amended in another place. Therefore, I do not believe that we should have any great anxiety about the matter. Your Lordships will have the opportunity to look again at the provisions when the Bill comes back to this House as amended in another place. I believe that the situation we have now reached is entirely satisfactory.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Lester, for tabling this amendment again, if only because it gives me the opportunity to reaffirm our commitment to accept in principle the basis of the amendment. I am quite happy to have that on the official record this afternoon. It also gives me the opportunity to welcome the correspondence that I have received on this matter over the past few days. I seem to have become very popular overnight. I wish that I could sustain that popularity for much longer. I receive a nice post bag on the subject and that is most welcome. Government Ministers always like to be thanked.
I particularly welcome also the Local Government Association's initiative in producing its rough guide, which I have read with interest today. I have received a useful letter from the CRE; my office has received a copy of a press release from the National Black Police Association, which puts on record its support for the amendments; and we have also received a letter from the LGA which says much the same thing. That is useful because they want to see some consultation in this area and to get the matter right. For that reason, essentially we want to bring forward our own government amendments in another place so that we can get it right and so that a broader range of considerations can come into play. It may well be that in the end we shall have something very similar to that which the noble Lord, Lord Lester, has perfected in his usual, masterful manner.
As to the comments made by the noble Lord, Lord Cope, I can say only that I have become somewhat confused over the past few weeks as to what is the Conservatives' real position on this piece of legislation. Do they support our initiative? For 18 years there was not a single piece of legislation which did anything to improve the quality of race relations in this country.
When the noble Lord, Lord Cope, made his comments at Second Reading, in Committee and on Report, I began to believe that the Conservatives were in principle opposed to the Bill. I believed that they did not consider it essential and that they viewed it as an unnecessary interference in the race relations field. I should like to know whether that is the case as I believe that their view should be placed on the official record. It would be nice to know exactly what position they will adopt in the other place on this matter. At first the noble Lord, Lord Cope, seemed to say that the Bill was inadequate because it did not contain clauses which tackled indirect discrimination and the duty to promote. Then he seemed to say that it was inadequate

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because those issues were contained in the Bill. Which way are the Conservatives going on this legislation? What is their real intention in the race relations field?
For all the criticism that we have received, we have not had a great deal of support for our intervention and development of policy in this area. I should like to see that support because I believe—it has always been a principle that I and our party have carried—that we should create a consensus in race relations so that we can get to the root of and tackle discrimination in all its vicious variants. That is most important. If we could create that consensus in race relations, it would be good for this country, would do much to break down the discrimination that has existed in the past and would create a firmer foundation for good race relations for the future.
Therefore, yes, we shall bring forward an amendment in another place. We welcome the progress that we have made. Yes, we have had a change of view and there has been a development of policy. The principle has always been accepted that indirect discrimination is an area where we should legislate. I very much appreciate the support that we have received—a critical focus, at times, from some of your Lordships, and rightly so. We have considered the matter seriously and have come to the conclusion that we are going in the right direction by accepting this new departure and development of our policy. I hope that with that firm commitment the noble Lord, Lord Lester, will withdraw his amendment this afternoon.
Lord Lester of Herne Hill: My Lords, I am grateful to everyone who has spoken in the debate and to the Minister for his full reply. I deal, first, with the two problems raised by the noble Lord, Lord Cope of Berkeley. One was the position of the police and the other was the position of university tuition fees.
So far as concerns the police, as I believe has already been made clear, the extension of the concept of discrimination to cover indirect discrimination by the police in their operational activities will have scarcely any effect. What really matters in relation to the police is the concept of direct discrimination, and that has already been explained fully in the past. Secondly, as I understand it, senior police officers throughout the country have been busy implementing the Race Relations Act, whether or not it has applied directly to them, and they continue to do so. I discern no problem for the police in their operational activities with regard to discriminating unjustifiably on racial grounds— unjustifiably and indirectly or without any justification directly.
So far as concerns university fees, that is a large subject. I need say only that if any public authority were to discriminate on grounds of colour, race, ethnic or national origins or nationality, under common law as well as under the Race Relations Act as it stands, difficult problems would arise. The extension of the Race Relations Act to cover indirect discrimination would not change that since university authorities and
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the Secretary of State for Education are already covered by statutory and common law obligation in that regard.
The noble Lord, Lord Cope of Berkeley, raises a wider question, which the Minister has also addressed; that is, what is the position of Her Majesty's Opposition? When I was young I read Dr Doolittle. I remember that there was a curious creature called "pushmi-pullyu"—a creature that pulled in opposite directions within the same animal. I have great affection and respect for the noble Lord, Lord Cope of Berkeley, and I like to feel that he pulls in what I might call the "enlightened" or "liberal" direction. I realise that the creature is torn in two opposite directions and is, therefore, in a state of paralysis. It cannot move, except to be grumpy. I do not believe that this is an appropriate Bill for the Opposition to be grumpy about.
In fairness to the Conservative Party, it did two great things for anti-discrimination legislation during its long period in office. One was the Fair Employment (Northern Ireland) Act 1989, for which the noble Lord, Lord Cope of Berkeley, was partly responsible. That was a great step forward. It has been said that the right honourable Michael Howard, MP, as Home Secretary extended race relations law to Northern Ireland just before his government fell. Having said that, it is also true to say that over the years—in 1965, 1968, 1975 and 1976—the Conservative Party in Parliament, I am sorry to say, has never been an enthusiast for this body of legislation. I had hoped that during the debates on this straightforward Bill one might have had wholehearted support.
In summing up, I am wholly satisfied that what the Government intend to do is right, that it is right to give the opportunity to the Government to come forward with the amendments which are needed and for the other place to consider them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3 to 7 not moved.]
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 8:
Page 2. line 25, leave out ("and nationality").
The noble Lord said: My Lords, this amendment seeks to make clear that discrimination on grounds of ethnic origin will not be permitted in granting or refusing British nationality under the British Nationality Act 1981. Again, the reason for tabling and moving the amendment is to enable the Minister to explain exactly why what looks, on the face of it, to be a broad and extraordinary amendment allowing ethnic discrimination even in relation to nationality decisions should be necessary. There may be a good case. The only one of which I know is that of two groups of people in Hong Kong when it was suggested that some flexibility was required. I am sufficiently in the dark to feel that we need some light to be thrown on this. That is why I beg to move this amendment.
4 p.m.
Lord Cope of Berkeley: My Lords, it has occurred to me that another instance where this might be required is in relation to those families which, for a number of generations, were in India in connection with the Raj, either in the Indian Civil Service, the Armed Forces, the private sector or as missionaries and so on. In some families, a number of generations might have been born in India, yet their ethnic origin is still that of this country. That might be relevant as regards nationality decisions. I am not sure, but it seemed to me that that might he another instance where this provision was required.
Lord Bassam of Brighton: My Lords, I am sure that your Lordships will now be fairly familiar with our early debates and with the concerns voiced by the noble Lord, Lord Lester, and others about the exemption for immigration and nationality functions in Clause 1 of the Bill—new Section 19C. The Government are well aware of the particular concern about the exemption provision in relation to discrimination on grounds of ethnic origins. As I explained on a number of occasions, the exemption, as currently drafted, would permit discriminatory activity only when required or authorised by legislation and would safeguard Ministers' personal decisions taken on individual cases in the national interest. Immigration staff operating those arrangements would do so in strict accordance with instructions that will, as far as practicable, be available for public scrutiny. I assure your Lordships that any member of staff exceeding Ministers' authorisations would be dealt with very firmly.
With your Lordships' permission, I shall also attempt to deal with Amendment No. 9 because I see the two issues as linked. The noble Lord, Lord Lester, has made clear his view.
Lord Lester of Herne Hill: My Lords, I hope that I am not taking up too much of the time of the House, but it would be convenient to deal with Amendment No. 9 separately Pecause it raises slightly different issues—I have not spoken to both—otherwise we shall have unnecessarily to go over the same ground twice.
Lord Bassam of Brighton: My Lords, I am happy to do that. I shall proceed on the basis that we are dealing simply with Amendment No. 8. The effect of this amendment, as I understand it, would be largely to make it unlawful for nationality functions under any of the nationality Acts listed in Clause 1 to have any regard to a person's nationality, or national or ethnic origin. Here, the Functions of which we talk are the granting or refusal of British nationality to persons who apply for it. A section of the British Nationality Act 1981 already provides that any discretion in this area is to be exercised without regard to the race, colour or religion of any person who may be affected by exercise of the discretion. It is for those reasons that we believe that we should continue to exempt those functions. We think that it would be anomalous to have to depart from that. That is why we ask the noble
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Lord to withdraw his amendment. Clearly, there are matters to be considered. No doubt debates in another place will return to some of these issues. For those very practical reasons, we hope that the noble Lord will withdraw his amendments this afternoon.
Lord Avebury: My Lords, I am rather confused by the Minister's reply. I do not know whether other noble Lords understand him. He has told your Lordships that the British Nationality Act 1981 compels or obliges Ministers to exercise their discretion without regard to race, colour or religion whereas if this provision goes through unamended it will be lawful for Ministers to exercise their nationality functions—in accordance with the law, that is, as the Minister has explained—in such a manner as to discriminate against another person on the grounds of nationality, or ethnic or national origin. It seems to me that the Minister's explanation has not removed the incompatibility, which he himself has pointed out, that exists between the British Nationality Act 1981 and this legislation. I may have missed something in the Minster's speech, but that is how I understood it.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister and my noble friend for their contribution to this short debate. I am still a little mystified about the answer we have received. As a civil servant, may I say that I "put up a marker" that it should be further considered?
As I tried to make clear, the purpose of the amendment is to clarify the wording of the Bill to make it clear that discrimination on grounds of ethnic origin only, and nothing else, in granting or refusing British nationality under the British Nationality Act is not permitted.
Section 41 of the Race Relations Act 1976 contains an exception permitting discrimination on grounds of nationality and, I think, national origins in granting or refusing nationality. I take the point that flexibility may be required in respect of national origins in granting citizenship, but I cannot at the moment see what are the circumstances where ethnic origin— which is very close to colour or race, as distinct from national origin—would be a factor in the granting or refusal of British nationality. I am certainly not going to press the amendment now, but I think that this matter may require further thought in another place and, perhaps, hereafter also in this House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lester of Herne Lord Lester of Herne Hill moved Amendment No. 9:
Page 2, line 25, at end insert ("in accordance with the Immigration Rules").
The noble Lord said: My Lords, the purpose of this amendment is to ensure that discrimination on grounds of nationality, or ethnic or national origin is carried out in immigration and nationality functions permitted by the Bill in a way which is public, prescribed and subject to light parliamentary scrutiny.
I hope that noble Lords will agree that the way in which it seeks to do that is most modest. It is simply by providing that any such discrimination will be in accordance with the Immigration Rules. The Immigration Rules are not legislation. They are provided for in Section 3 of the Immigration Act 1971. A statement of them has to be laid before Parliament. They can be readily amended. Therefore, one has all the advantages to which the noble Lord, Lord Bassam of Brighton, referred on Report when he said that the rules must be transparent and public. They will be transparent and public if they are in the Immigration Rules and there will be some accountability to Parliament by the fact of them being in the Immigration Rules. I hope that noble Lords do not think that I am being too feeble in not pressing for them to be in proper subordinate legislation.
I quite understand the need for flexibility and, perhaps, speed in this area. I hope that not only will this very modest amendment be agreed to, but also that the Government will find some other mechanism to ensure that there are adequate safeguards against abuse of this discretion. I have not sought to complicate or lengthen the debate by inventing such safeguards myself. If the Minister felt that there was any merit in that, that would be most welcome. I beg to move.
Lord Hylton: My Lords, in the context of this amendment, I wonder whether the Minister would consider whether something could be written in at a later stage to indicate that, in immigration matters, humanitarian and compassionate reasons may exist for exercising some discrimination, and similarly that in asylum matters the 1951 convention may need to be applied in a similar spirit?
Lord Bassam of Brighton: My Lords, this is now a familiar debate. We fully understand the concerns voiced by the noble Lords, Lord Lester and Lord Hylton. We are obviously concerned to make sure that we get this area right. We believe that, in general, we have had the right approach throughout our debates and discussions.
However, we are aware of the particular concern in relation to the exemptions provision regarding discrimination on grounds of ethnic origin. As I have explained on a number of occasions, the exemption as currently drafted will only permit discriminatory activity required or authorised by legislation and would safeguard Ministers' personal decisions taken in terms of legislation.
Immigration staff operating those arrangements will do so in strict accordance with instructions which will, as far as practicable, be available for public scrutiny. I appreciate that, as the noble Lord, Lord Lester, said in his earlier comments, that is extremely important and it is a matter that we, in government, intend to look at more closely.
The noble Lord has made clear his view that Parliament should approve the arrangements for necessary and legitimate discrimination by immigration staff. That is the
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open objective behind the proposed amendment, which is intended to require lawful discrimination on grounds of nationality or ethnic or national origin in the exercise of immigration functions in accordance with the Immigration Rules.
My right honourable friend the Home Secretary and I recognise and fully understand the noble Lord's concerns. We are currently giving those matters detailed consideration. It is too early to say whether the noble Lord's proposed amendment would provide a satisfactory and comprehensive solution to the concerns that he has raised, quite understandably. The Government would be grateful if the noble Lord were prepared to withdraw the amendment pending the outcome of their further consideration of this matter and the issue raised by the noble Lord, Lord Hylton. That may enable us to make some progress in this area of policy.
Lord Lester of Herne Hill: My Lords, before the Minister sits down, I wonder whether he will also agree to consider whether there might be some machinery, some person, providing adequate safeguards against abuse of discretion within the system so that that might be built into the Government's thinking?
Lord Bassam of Brighton: My Lords, I take it that the noble Lord's intervention refers to some form of Commissioner or monitor. Yes, I can confirm to your Lordships' House that that is one of the issues to which we are giving detailed consideration.
Again, I must pay a compliment to the noble Lord, Lord Lester, by saying that that is one of the issues to which he has helpfully drawn our attention. There are some precedents and parallels. Therefore, we shall reflect on the way in which they are working and give this matter a broader consideration.
Lord Lester of Herne Hill: My Lords, the Minister is too generous, because I believe that it was the Government's idea rather than mine, or it may have come from his own department. But I am grateful for that very positive reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 and 11 not moved.]
An amendment (privilege) made.
4.15 p.m.
Lord Bassam of Brighton: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Bassam of Brighton.)
Lord Lester of Herne Hill: My Lords, before we decide the Question before us, perhaps I may say a few words. This is a small but very important Bill. It is small because it deals with only one serious defect in the Race Relations Act 1976; that is, the failure of the Act to give comprehensive protection to victims of racial discrimination by government departments and public authorities generally and to impose an

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enforceable duty on government departments or public authorities to promote racial equality and to eliminate racial discrimination.
It is important both because that failure of the 1976 Act was a serious failure and because what is done in the field of racial discrimination will influence the other anti-discrimination legislation as we move towards a comprehensive, coherent, user-friendly and effectively enforced statutory code to tackle unfair discrimination on other grounds. In other words, this is an important first step in the direction of more radical reform of the kind being undertaken, for example, under the leadership of the Chancellor of the Exchequer and his colleagues to reform the regulation of financial services. It shows it can be done.
The Home Secretary and his colleagues are to be commended on having introduced the Bill in the first place. I doubt whether a Conservative government would have done so. The role of this House in scrutinising and strengthening the Bill has been a fine example of an open and well-informed dialogue conducted across parties and from all sides of the House. That has been a dialogue with a Government who are willing to listen and to change their mind.
It has been suggested in the media that the Home Secretary bowed to pressure because he would otherwise have been defeated in this House. That is not correct. Regrettably, it is unlikely that the Official Opposition would have voted to support any amendment that was designed to strengthen the Bill. We shall watch with interest their response when the Bill is debated in the other place.
The first reason why the Home Secretary and his colleagues changed their minds was that he and the noble Lord, Lord Bassam of Brighton, are firmly committed to racial justice and the elimination of racial discrimination wherever it arises. Secondly, they and their advisers in the Home Office have given generously of their time to meet with friendly critics to discuss ways of making the Bill seaworthy. We owe them a debt of gratitude.
Thirdly, the composition of the transitional House includes a new generation of noble Lords who have experienced racial and religious discrimination, whether as Jews, Muslims, Hindus or Sikhs or as members of the black and Asian ethnic minorities. I am glad to say that this House is becoming more representative of Britain's ethnic minorities, perhaps more representative than the democratic first Chamber.
We who have personal experience of the evils of discrimination and bigotry have spoken with one voice, whatever our political or other backgrounds. I believe that that collective voice has impressed the Home Secretary and his colleagues in a way which augurs well for the future. We should pay tribute to the noble Lord, Lord Bassam of Brighton, and his advisers for their enlightened and principled response.
It will now be for the other place to make the Bill completely seaworthy before it sails back to us. The statutory duty to promote equality and eliminate
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discrimination will condition and influence policy-making by the Government and other public authorities. No doubt the Northern Ireland precedent will provide valuable guidance about the form of monitoring and enforcement which will be workable and effective. There will need to be consultation with the Commission for Racial Equality and others.
We hope and believe that the Bill will be amended to widen the definition of what constitutes lawful positive action to complement the extension to indirect discrimination. We also hope that the exception for ethnic discrimination will be carefully tailored to the legitimate needs of the Immigration and Nationality Directorate and that there will be adequate safeguards against abuse.
For all those reasons we hope that the Bill will now pass.
Lord Cope of Berkeley: My Lords, I agree with the comments made by the noble Lord, Lord Lester, to the extent that the Bill as presented to the House, and indeed as it leaves the House, is not "seaworthy". The earlier debates we had demonstrated that point extremely effectively.
I hope that I am second to none in my desire to fight racial discrimination in every possible way. The noble Lord drew attention to a small part of my record in this way, which I believe can stand examination. However, at the same time it is true that I, together with my party, have less confidence in the ability of the law to solve these problems as opposed to other approaches. I refer in particular to the attitude of Government. I do not distinguish between the previous and the present Government in that respect. I am not trying to make a case that either government played a greater or lesser role. The attitude of government is the most important factor as regards all the public authorities concerned.
However, we have discussed the Bill thoroughly. It is clear that it should now go to another place. It is also clear that it will return to us in quite a different form.
Lord Bassam of Brighton: My Lords, I shall not take more of your Lordships' time than I believe is necessary. I referred in my earlier comments to the Conservatives and their view towards this legislation. Perhaps I may say to the noble Lord, Lord Cope, that such comments were not meant to be personal. The noble Lord has a valuable track record on this subject. His enlightened approach is one which we, on these Benches, appreciate. However, I sometimes wonder who is pulling the strings behind that enlightenment. That is of concern in an area of policy where we would like to see much greater consensus, and perhaps see Members of the Opposition moving towards our position.
I refer to another point raised by the noble Lord, which is of importance. Legislation, of itself, changes nothing. It is the spirit, intent, content, meaning and effect of legislation which can help to change the culture of a society and its approach to key issues. Race is one such important issue. The heart of the issue

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for us is how we make the legislation work and how we give it some body to work through society and improve and change attitudes.
The discussions in your Lordships' House have been fruitful and, by and large, constructive. I am pleased that there has been good and helpful dialogue. I am grateful for the courteous and constructive way in which the debates have been conducted. I suspect that throughout the course of the debates I have thanked the noble Lord, Lord Lester, enough. However, I should like to put on record my thanks to the noble Baroness, Lady Howells, for her valuable contribution. Her rich experience in these matters is probably beyond equal. She has a deep understanding of the problems that the legislation tries earnestly to tackle.
The Government are committed to achieving a step change in race equality, with the public sector leading by example. The Bill represents a key part of our programme in that regard. As your Lordships know, the Bill will be further strengthened in the Commons to meet the commitment the Government made before your Lordships' House both on Report and today.
I believe that your Lordships can look forward to seeing the Bill in a new and improved form. I look forward to further constructive and enjoyable debate on these matters and to keeping the dialogue going so that we get the quality right as well as the content. I commend the Bill to your Lordships.
On Question, Bill passed, and sent to the Commons.

Parliamentary Commissioner (Amendment) Bill [H.L.]
4.25 p.m.
Lord Lester of Herne Hill: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Lester of Herne Hill.)
On Question, Motion agreed to.

Census (Amendment) Bill [H.L.]
Lord Weatherill: 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 Weatherill.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Lockwood) in the Chair.]
Clause 1 [Particulars in respect of religion may be required in census]:
Lord Weatherill Lord Weatherill moved Amendment No. 1:
Page I, line 7, at end insert—
("( ) In section 8 of that Act (penalties), after subsection (1) there shall be inserted—
"(1A) But no person shall be liable to a penalty under subsection (1) for refusing or neglecting to state any particulars in respect of religion."").
The noble Lord said: Amendment No. 1 stands in my name. The Census (Amendment) Bill is a short but nonetheless important Bill which will have the effect of making a necessary change to the Census Act 1920 in order to enable a question on religious affiliation to be included in the next Census of Population in England and Wales in April 2001.
The Bill was generally welcomed when it received its Second Reading in this House on 27th January. I am grateful to your Lordships for supporting the measure in principle. However, in that debate some concerns were expressed, particularly by the noble Earl, Lord Northesk, and the noble Lord, Lord Stoddart, from the Government Benches, that the proposed question on religion should be included in the census only on a voluntary basis and that there should not be a statutory penalty for not answering the question.
I have reflected with care on what your Lordships have had to say on the matter. I feel that we should take the arguments about a voluntary question seriously. In the interests of progressing the matter smoothly, and so that, as the noble Earl and other noble Lords wished, the Bill may pass to another place in a fit condition, I am proposing an amendment which would have the effect of removing the liability to a penalty under Section 8 of the Census Act for those persons who refuse or neglect to state in their census return any particulars in respect of religion. I have discussed the matter with the Minister and understand that he is sympathetic.
Amendment No. 2 is necessary because the Long Title of the Bill as drafted refers only to amending the schedule to the Census Act. Amendment No. 1, to which I have already spoken, is an amendment to Section 8 of that Act. I beg to move.
Lord Stoddart of Swindon: I thank the noble Lord, Lord Weatherill, for moving the amendment, which is entirely acceptable. I believe that it will more or less meet the points I raised at Second Reading. I am glad that I shall not have to express my independence by failing to fill in that item in the census and that I will not risk a fine or imprisonment.
I understand however that, in the past, some people who failed to fill in the census form or answer a question were prosecuted. Therefore, in spite of my noble friend's assurances, people may well have been at risk had this amendment not been moved. I am grateful to the noble Lord, Lord Weatherill, for moving it and I hope it will be accepted and passed tonight.

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Perhaps I may ask the noble Lord one question. He may not be able to answer. Will it be indicated on the census form that the question is voluntary? I am sure that it will be, but perhaps he could say at this stage how it will be indicated.
4.30 p.m.
Lord Monson: I warmly congratulate my noble friend Lord Weatherill on introducing this amendment. Like the noble Lord, Lord Stoddart of Swindon, I too was distinctly uneasy a t the prospect of an individual being fined for refusing to answer such a personal question. Of course, there are parts of the world where people are proud to have their religious affiliation blazoned across their chest. so to speak; but at the beginning of the 21st century, Britain is not one of them. Once again, the amendment is warmly to be welcomed.
Lord Newby: I do not want to strike too discordant a note in this debate, but I have some misgivings in relation to this amendment.
The arguments for this question to be included on the census form in terms of the benefit to public policy were eloquently made by the noble Lord, Lord Weatherill, at Second Reading, and I strongly supported them. But if we accept the premise that it is important for public policy purposes to include the question on the census form, it is equally important that it should be answered.
The view expressed by the Board of Deputies of British Jews and a number of the Churches is that the question should not be voluntary. The worry that might occur in people's minds if it was felt that the census was not a confidential document was dealt with at Second Reading. The truth is that there is no view in this country that an individual's census return will be opened and be available to public view. Therefore, if we accept that it is an important question, which we do, it should be treated four- square with all the other census questions and should not be voluntary.
I was grateful to the noble Lord, Lord Stoddart, for asking whether there would be an indication on the census form that answering the question on religion is voluntary. The only difference between us is that, whereas he would like it included on the form, I would not.
Lord Monson: Before the noble Lord sits down, perhaps I may ask a question. I concede that this Bill is useful for public policy, but can he justify his assertion that it is "important" for public policy?
Lord Newby: If it were not important for public policy, there would be no point in doing it; that is what the census is for. The kind of public policy question for which the Bill will be of use is the planning of educational provision and of care provision. As Members of the Committee are aware, my fundamental point is that it is flawed; it does not allow the Christian box to be divided up between the various denominations to enable it to be of more use to public
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policy-making. But I have no doubt that, if the noble Lord, Lord Monson, were to ask any of the religious groups which it is proposed to include on the census form whether or not they thought it would be of value to them in planning provision in their community, he would receive a resounding "Yes".
Baroness Jeger: What happens to those of us who do not know and do not care? Will we be fined?
Baroness Richardson of Calow: I simply want to add to the earlier answer that was given. The report from the Commission makes an estimate of the numbers who are affiliated to specific religions. If that is not known, only guesses can be made. I would always prefer that it be a question that people are required to answer. However, as the amendment has been moved, I see its sense. Only those who are willing and known to be affiliated to a religion will be able to answer the question in any case. I see no problem with the amendment and I am sure the Churches will be willing to support it.
Lord Hylton: I regret that I was overseas at the time of the Second Reading of this Bill. I find myself in the position of being a more old-fashioned liberal than the noble Lord, Lord Newby, speaking from the Liberal Democrat Front Bench. In my view, it is none of the state's business to inquire as to one's religious beliefs or affiliations. It is from that background that I welcome the amendment, which at least asserts the voluntary principle as to whether or not the question should be answered. Having said that, I add the caveat that the resulting statistics may not be entirely reliable.
The Earl of Northesk: Needless to say, we on these Benches support this amendment. Indeed, like the noble Lord, Lord Stoddart, we are extremely grateful to the noble Lord, Lord Weatherill, for taking on board the concerns and reservations expressed at Second Reading.
I need not dwell on the purpose of the amendment. As ever, the explanation of the noble Lord, Lord Weatherill, has been clear and concise. It does not go quite as far as we might have wished in terms of making the question optional in a transparent way, but I acknowledge the technical argument of the Minister at Second Reading: that to do so could adversely affect the integrity of the census as a whole. None the less, I have the same minor niggle—if I can put it that way—as the noble Lord, Lord Stoddart.
Self-evidently, no penalty will attach to anyone refusing or neglecting to state any particulars in respect of religion. Inevitably, that begs the question of how respondents to the census are to be made aware of that fact. I accept that this is a matter of fine detail that will be more correctly dealt with in the appropriate Order in Council. But I hope that the Minister can give me some comfort, if not an outright guarantee. that the census form will be compiled in such a way that respondents are left in no doubt that no penalty will attach to a refusal to answer the question. I make the

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obvious point that without such guidance it is likely that only those who pay assiduous attention to our proceedings will be aware of the fact.
I take this opportunity to make one other small point. The noble Lord, Lord Monson, intervened at Second Reading to question the timing of this Committee. I hope that both noble Lords, Lord Weatherill and Lord McIntosh, will agree that special circumstances attach to this Bill and justify its speedy passage through this Chamber. It is on that basis that we on these Benches were prepared to acquiesce to the Committee stage being taken today. But I should not like to believe that any sort of precedent has been set for the customary waiting times between stages of a Bill being waived in the future. I hope that I can be given some reassurance on that point.
Lord McIntosh of Haringey: On the noble Earl's last point, of course we did not expect any precedent to be created. These matters are considered case by case in the usual channels. We are grateful for acquiescence in the timing of this Committee stage.
We are grateful to the noble Lord, Lord Weatherill, for introducing the Bill and for tabling the amendments. They reflect the concerns expressed at Second Reading, notably by the noble Earl, Lord Northesk, and my noble friend Lord Stoddart. As the Committee heard, the effect will be to remove the liability to a penalty under Section 8 of the Census Act for not answering the question on religion.
I should clarify the remarks I made at Second Reading when I indicated that it was unlikely that my noble friend Lord Stoddart would be hauled off to prison for refusing to answer the question. The statutory requirement of form-fillers to comply with the Census Act by completing all other relevant questions on the census form still applies. Anyone who does not do so will be liable to prosecution for which the penalty is a maximum fine of £1,000 in a magistrates' court.
My noble friend and the noble Earl asked whether we could give an assurance that the fact that the question is voluntary will be specified on the form. That is a matter for regulation rather than for this Bill. However, I can confirm that the issue is being considered while the regulations are being prepared for Parliament, and that they will be subject to affirmative resolution in this Chamber.
I take the point made by the noble Lord, Lord Newby, and the noble Baroness, Lady Richardson, against the proposal that the question should be voluntary. I believe that the noble Lord has a point: if it is public policy that this question should be asked, it should be asked on the same terms that apply to the question on ethnic origin. As this is a Private Members' Bill, we should bear in mind the fact that such Bills have to achieve not only a majority but also unanimity in order to get through both this Chamber and another place. Of course, that does not mean formally. I see the noble and learned Lord, Lord Simon of Glaisdale, is shaking his head in my direction. However, I am sure
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that he will recognise that that is the case in practice, especially in the other place. On balance, we take the view that it is better to have it in this form than not to have it.
As a survey researcher, I have to say that I do not accept that a voluntary question that is not answered by everyone—we do not know how many people will refuse to answer it—has no value. It still has very significant value and almost certainly will have value even on a small area basis.
My noble friend Lady Jeger asked what happens to those who do not know and do not care. Like me, I rather think that my noble friend is one of those people who will put "none" in answer to the question: "What is your religion?" The answer to her question is that we can put "none"; that is exactly why the question has been framed in this way.
As I said, given the need to secure that the Bill should command universal support, the Government are prepared to support both of the noble Lord's amendments.
Lord Weatherill: I am most grateful to the Minister for the explanations that he has given. I hope that they will satisfy the noble Lord, Lord Stoddart, and other noble Lords. As the Minister correctly stated, this is a Private Member's Bill and there is some urgency about it. By moving this amendment, I hope that we can ensure not only the agreement of this Chamber but also the agreement of those in another place.
Lord McIntosh of Haringey: Before the noble Lord sits down, perhaps I may correct something that I said in my response. I believe I said that the regulations would be subject to affirmative resolution, but that is not so. They will be subject to the negative resolution procedure. However, they can be prayed against in order to be debated in this House.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 agreed to.
In the Title:
Lord Weatherill Lord Weatherill moved Amendment No. 2:
Line 1, leave out ("the Schedule to").
The noble Lord said: As I have already stated, this is necessary to amend the Long Title to the Bill. I beg to move.
On Question, amendment agreed to.
House resumed: Bill reported with amendments.

Local Government Bill [H.L.]
4.45 p.m.
Lord Whitty: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Whitty.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE DEPUTY CHAIRMAN OF COMMITTEES (Baroness Lockwood) in the Chair.]
Clause 52 [Decisions of case tribunals]:
Lord Dixon Smith Lord Dixon Smith moved Amendment No. 357A:
Page 32. line 36. at end insert—
("( ) Where a person is subject to a compensation order under section (Compensation orders) he shall be disqualified until full restitution is paid.").
The noble Lord said: I should confess to Members of the Committee that I am still very much an amateur in the business of amending Bills. I am not absolutely certain whether the placing of Amendment No. 357A is appropriate for the purposes of this legislation. The same applies to Amendment No. 362A, which is included in this grouping. Both amendments deal with what appears to be a lacuna in the Bill as a result of changes that the legislation is making to the current law. This is a subject that the Government included in their White Paper on local government reform, Modern Local Government: In Touch with the People.
Clause 62 abolishes the last aspects of the power of surcharge. The Nolan Committee on Standards in Public Life recommended that that should happen. It has to be said that the power of surcharge, which has existed for a very long time, has proved, at the very best, to be a blunderbuss of an instrument: it occasionally hit the target but often also hit other targets. It was rarely sufficiently preclise to bring about the absolute result required. I do not believe that anyone who has seen the power of surcharge at work over the years would work very hard to defend it. Although the concept may have had some validity in principle, it has not really worked very well at all in practice.
Paragraph 6.35 of the White Paper to which I referred stated:
"Restitution of financial loss should remain a possibility, but only where the councillor or council employee has gained personally at the expense of the taxpayer".
These two amendments are specifically directed at trying to pick up that particular point; and, indeed, to re-insert that provision—if you like, that sanction— into the legislation. I do not know what the Government's attitude will be to this problem, but it is the convinced view of myself and my colleagues that if through fraud or malfeasance a councillor, or a local council employee, benefits improperly and illegally at the expense of the local taxpayer, it should be possible to require him to restore completely the funds he has purloined.
These two amendments are specifically designed to address that point. The Minister may say that they have not achieved that. However, I hope that he will accept the philosophy that lies behind the amendments. If he is prepared to reconsider the matter, I should be happy with that assurance. If I have managed to score a "bull's-eye", I shall be immensely pleased. However, I suspect that my amendments may prove to be like the old power of surcharge and perhaps rather like a blunderbuss in their effect. The issue could perhaps be dealt with more efficiently and
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with more precise wording. I hope that I have explained the purpose of the two amendments. We have done what we can to make them correct. I beg to move.
Baroness Hamwee: What would be the position if we did not include a provision such as that contained in Amendment No. 362A? After all, there are common law provisions with regard to how employees should treat any "profit" that is gained through their employment, but not formally through their employment, as it were. The proposed new clause (Amendment No. 362A) refers to someone gaining,
"at the expense of the taxpayer".
That seems to me to be so wide a provision that it is difficult to define. I am not sure what gains might be covered. I believe that there could be many of them as "gaining" is open to interpretation, as is the phrase,
"at the expense of the taxpayer".
I return to the general principle of an employee making a secret profit. As I say, there is well established law on that matter. It would be helpful to know to what extent that would apply even if no provision such as that in Amendment No. 362A were included.
Lord Whitty: I hesitate to place it on record that I share the noble Lord's philosophy, but I do not think that we are far apart on this matter. We both agree that the old system constituted a blunderbuss. We both agree that there needs to be some system for seeking restitution in many of the cases we are discussing. We considered a new system of compensation orders in developing the ethical framework as set out in the Bill. Indeed, we stated in the local government White Paper that where restitution of financial loss to a local authority is necessary, such an order should be available as a means of restoring ill-gotten gains. I believe that the noble Lord referred to the same part of the White Paper.
However, having looked at the issue in more detail, we have concluded that the penalties available to a case tribunal following an investigation by an ethical standards officer should be limited to censure, suspension or disqualification, as set out in the Bill. We believe that there would be real problems in enabling a case tribunal to issue a compensation order. There are a number of good reasons for this. Vesting such powers in a case tribunal may amount to a criminal sanction for the purposes of the European Convention on Human Rights. As the Committee is aware, criminal procedures require a higher standard of proof and, quite rightly, extensive safeguards for the rights of defendants. However, that would change the nature of the tribunals. This is not something that a case tribunal can be equipped to deal with.
Moreover, as the noble Baroness, Lady Hamwee, said, local authorities already have recourse to the courts to recover losses to the public purse. That is certainly the case as regards the cases that the noble Lord mentioned of fraud and malfeasance. Introducing

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a new system of compensation orders would not address this problem of local authorities being able to recover losses. As I say, they can have recourse to the courts. At present the difficulty that local authorities usually encounter in recovering financial losses is not in getting judgment in their favour, but in collecting the money from the individual concerned; for example, where the individual has disappeared, does not have adequate income to pay, or has disposed of the money. That would not change if tribunals took the decision. As the Committee will be aware, the courts have rather more substantial mechanisms place to help plaintiffs or victims of crime to enforce judgments. Therefore, we believe that the courts offer the best means of addressing these problems.
For those reasons we do not see any advantages in trying to add a compensation order to the mechanisms that already exist. Indeed, we see some disadvantages in doing so. I hope, therefore, that the noble Lord, Lord Dixon-Smith, will recognise that our proposals and the current procedure of addressing these matters through the courts will achieve the outcome that he seeks.
Lord Dixon-Smith: I do not apologise to the Committee for bringing this matter before it this afternoon. Of course we were aware that it was possible to bring criminal proceedings in this area. However, I was not aware that it was inappropriate for a case tribunal to deliver a judgment with regard to a criminal offence. The explanation is helpful. I shall study carefully what the Minister has said. I believe that he has gone a long way towards answering our concerns. I hope that I shall not have to refer to the matter again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 52 agreed to.
Lord Whitty Lord Whitty moved Amendment No. 358:
After Clause 52, insert the following new clause—

RECOMMENDATIONS BY CASE TRIBUNALS
(".—(1) Any case tribunal which gives notice to a standards committee of a relevant authority under section 52 may also make recommendations to the authority about any matters relating to—

(a) the exercise of the authority's functions,

(b) the authority's code of conduct. or

(c) the authority's standards committee.

(2) A case tribunal must send a copy of any recommendations it makes under subsection (1) to the relevant Standards Board.
(3) A relevant authority to whom recommendations are made under subsection (1) must consider the recommendations and, within a period of three months beginning with the day on which the recommendations are received, prepare a report for the relevant Standards Board giving details of what action the authority have taken or are proposing to take as a result of the recommendations.
(4) A relevant authority's function of considering a report under subsection (3) must be discharged only by the authority or by the standards committee of that authority.
(5) If the relevant Standards Board is not satisfied with the action the relevant authority has taken or proposes to take in relation to the recommendations, the Board may require the authority to publish a statement giving details of the recommendations made by the tribunal and of the authority's reasons for not fully implementing the recommendations.
(6)In this section "the relevant Standards Board" means—

(a) the Standards Board for England where the relevant authority concerned is in England,

(b) the Standards Board for Wales where the relevant authority concerned is in Wales.").

The noble Lord said: We believe that the new ethical framework is not simply about investigating allegations of councillor misconduct and punishing those who are found to breach the code. The new ethical framework is about disseminating good practice, training members, making sure that the internal workings of authorities support ethical behaviour, and clarifying those areas of the new codes of conduct that may be unclear.
In order to help further these wider aims for the new ethical framework, it is necessary for the case tribunals to have the power to make recommendations to relevant authorities. The recommendations could be in respect of issues such as member training, internal organisation, reporting arrangements, and the role of the local authority's standards committee. These are in addition to, and go wider than, its recommendations for the treatment of individual councillors who come before it. The new clause (Amendment No. 358) makes provision for this.
In order to ensure that an authority acts on any recommendations made, the clause also provides that the authority to which the recommendations are made is obliged to consider the recommendations made and must respond within three months specifying whether it proposes to take any action and, if so, what it will be.
If the standards board is not satisfied with that response, provision is made that it may require the authority to publish a statement specifying the recommended action and the reasons for not taking it. I beg to move.
On Question, amendment agreed to.
Clause 53 [Disclosure and registration of members' interests etc.]
Lord Whitt Lord Whitt moved Amendment No. 359:
Leave out Clause 53 and insert the following new clause—

DISCLOSURE AND REGISTRATION OF MEMBERS' INTERESTS ETC
(".—(1) Every relevant authority must establish and maintain a register of interests of the members and co-opted members of the authority.
(2) The mandatory provisions of the model code applicable to each relevant authority ("the mandatory provisions") must require the members and co-opted members of each authority to register in that authority's register maintained under subsection (1) such financial and other interests as are specified in the mandatory provisions.
(3) The mandatory provisions must also—

(a) require any member or co-opted member of a relevant authority who has an interest specified in the mandatory provisions under subsection (2) to disclose that interest before taking part in any business of the authority relating to that interest.

(b) make provision for preventing or restricting the participation of a member or co-opted member of a relevant authority in any business of the authority to which an interest disclosed under paragraph (a) relates.

(4) Any participation by a member or co-opted member of a relevant authority in any business which is prohibited by the mandatory provisior.s is not a failure to comply with the authority's code of conduct if the member or co-opted member has acted in accordanx with a dispensation from the prohibition granted by the authority's standards committee in accordance with regulations made under subsection (5).
(5) The Secretary of State may prescribe in regulations the circumstances in which standards committees may grant dispensations under subsection (4).
(6) Every register maintained under this section must be published and made available for public inspection.
(7) The interests which may be specified under subsection (2) in relation to a member Dr co-opted member of a relevant authority may include any interests of that member's spouse or partner or any member of that member's household.
(8) In this section "partner", in relation to a member or co-opted member of a relevant authority, means a person to whom the member is not married but with whom the member lives as husband or wife.
(9) The duty of a relevant authority under subsection (1) is to be discharged by the monitoring officer of the relevant authority.")
The noble Lord said: Amendment No. 359 introduces a new clause to replace the current Clause 53. It sets out important details of how we intend the new ethical framework to operate. In particular, it gives the monitoring officer a clear duty to set up and maintain a public register of members' interests. It also makes provision for the model code of conduct to cover the registration and declaration of interests.
In addition, the new clause enables the standards committee rather than the Secretary of State to grant dispensations for members to participate in business where they have an interest, subject to regulations issued by the Secretary of State. We believe that this is a significant and sensible delegation to those who are best placed to decide such issues so long as there is clear guidance on interpretation.
The amendment also widens the definition of interests that need to be registered and declared to include those of the spouse, partner or any person in that member's household. We believe that this is necessary to take account of the increasing diversity of society today. Bringing the declaration and registration of interests within the model code of conduct will mean. that for the first time we will have a single document that clearly sets out a member's duties. One of the key aims of the new framework is to remove the plethora of primary legislation, regulations and guidance that make up the current framework, frequently causing uncertainty, confusion and doubt as to how councillors should behave. The provisions of new Clause 53 should go a long way to clarifying the situation. I beg to move.
Baroness Hamwee Baroness Hamwee moved, as an amendment to Amendment No. 359, Amendment No. 359A:
Line 24. after ("may") insert (", after consultation with such representatives of local government as he considers appropriate,").
The noble Baroness said: Amendment No. 359A requires the Secretary of State to consult with representatives or local governmern before making prescriptions in regulations —in this case, as to the circumstances in which standards committees may
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grant dispensations. It may be something of a knee-jerk reaction on my part but I feel that as a matter of general practice, where the Secretary of Stale is making regulations affecting local government, he should be required to consult with local government first. It may well be that the noble Lord will assure me that this will be done. As we have said on previous occasions, we are legislating for every Secretary of State, not only the current one. Assurances front the Minister as to how the Government intend to proceed would be helpful. I beg to move.
Baroness Hanham: I speak to Amendment No. 359, in particular to subsection (7) of the proposed new clause. 1 appreciate that the Minister is struggling to ensure that it is inclusive, but all local authorities may struggle with "member's household". Where does one start and finish with "member's household"? Is the nanny included? Is the stepdaughter who is staying for a short time included? Is the fiance who is living there for a year included? It is a very all-embracing phrase. I appreciate the intention behind it, but intentions are not good enough in legislation. We have to be specific so that people are not casting around subsequently for the meaning.
Lord Whitty: As far as concerns the amendment moved by the noble Baroness, Lady Hamwee, I understand that we need to be reassured that representatives of local government will be consulted. As she rightly said, this is provided for in various parts of the Bill, particularly in Clause 34(3) and Clause 35(4), where the Secretary of State has to consult before making any order on general principles or on the code of conduct.
Government assurances in this area should be enough for the noble Baroness. However, I am not entirely clear that the provisions in the Bill on consultation will explicitly cover this particular requirement. I shall check on the situation to see whether it would be sensible to specify what is requested on the face of the Bill or in some other relevant place in the Bill. I thank the noble Baroness for her suggestion. Perhaps I may take it away and consider it.
Baroness Hamwee: I am very happy with the Minister's reply. I beg leave to withdraw the amendment.
Lord Whitty: I have not yet replied to the noble Baroness, Lady Hanham. I take the points she made. Although there is a definition of "partner"— which some may feel is even more difficult to define— the definition of "household" is not in the Bill. Once again, perhaps the noble Baroness will permit me to take the point away, look at it and perhaps write to her.
Baroness Hanham: I should he grateful.
Baroness Hamwee: I beg leave to withdraw the amendment.
Amendment No. 359A, as an amendment to Amendment No. 359, by leave, withdrawn.
Amendment No. 359 agreed to.
Clause 54 agreed to.
Clause 55 [Interpretation of Part III]:
Lord Whitty Lord Whitty moved Amendments Nos. 360 to 361:
Page 33, line 37, at end insert—
(""co-opted member" has the meaning given by section 34(6),").
Page 33, line 44, at end insert—
(""interim case tribunal" has the meaning given by section 50(1A),").
Page 34, leave out lines 1 and 2.
On Question, amendments agreed to.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 361A:
Page 34. line 2, at end insert—
(""member" is to be construed as including the elected mayor, if any, of a relevant authority,").
The noble Lord said: This amendment can be dealt with in a countable number of seconds because we have already dealt with this matter, at least in principle. Clause 55 deals with interpretation, and an elected mayor, to be a member, should be included in the interpretation. I think that we have covered the matter elsewhere. Unless my memory is seriously adrift, I recall discussing this specific issue earlier this week. I beg to move.
Lord Whitty: The noble Lord is correct. We passed an amendment to Clause 25 to the Bill which provided that an elected mayor of an authority is to be treated for the purposes of local government legislation as a member and councillor of the authority. I hope that the noble Lord is reassured by that explanation.
Lord Dixon-Smith: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendment No. 362:
Page 34. line 12. at end insert—
("(2) In relation to a parish council. the functions of a monitoring officer under any provisions of this Part are to be discharged by the monitoring officer of the district council or unitary county council which is the responsible authority in relation to that parish council; and any reference in this Part to the monitoring officer of a relevant authority which is a parish council is to be construed accordingly.
(3) Subsections (12) and (13) of section (Standards committees or sub-committees for parish councils) apply for the purposes of subsection (2) of this section as they apply for the purposes of that section.").
On Question, amendment agreed to.
Clause 55, as amended, agreed to.
Clause 62 agreed to.
[Amendment No. 362A not moved.]
Clause 63 agreed to.
Clauses 56 and 57 agreed to.
Clause 58 [Power to specify a scheme for elections]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 362B:
Page 35, line 11, leave out from ("order") to end of line 13.
The noble Baroness said: This amendment takes us to the part of the Bill dealing with the options for elections, there being a number of schemes. Under Clause 58 the Secretary of State has the power to make orders for schemes for elections under any of the options set out in the Bill.
My amendment seeks some clarification as to what is proposed. Clause 58(2) provides for a council to be specified, either as being,
"a principal council … specified by name in the order",
or a council,
"falling within any description of principal council specified in the order".
I tabled the amendment in order to ask the Minister to clarify how the Government intend to proceed beyond what will be on the face of the Bill.
First, are individual authorities to be able to apply to the Secretary of State to change arrangements on an individual basis? I am interested in how the arrangements the Government envisage will compare with what happened following the Local Government Act 1972, when districts were given the choice to go for all-out elections or elections by thirds; and also, after the reorganisation following the 1992 Act, when unitary authorities were given a choice.
Secondly, I confess that I am unclear as to what that will mean in practice for particular authorities. How should authorities deal with periodic electoral reviews? Some, of course, are going through them at present or will be doing so shortly. Should they be proposing arrangements to fit the current criteria or to reflect the Government's intentions?
Thirdly, I ask the Minister for clarification of the role of the Local Government Commission for England. At present it makes recommendations to the Secretary of State on those issues. What is to be its role in the future?
Finally, how do the Government envisage that the timing of elections for directly elected mayors and cabinets—if there are to be such—will slot in as part of the overall process? The mayor, as we have just heard, is to be treated as a councillor, although for certain purposes that will perhaps be limited. Will the mayor stand for election at the same time as the councillors? Will there be a deliberate attempt to alternate the process? Where does local choice fit in? I hope that the Minister will assist with all those issues. I beg to move.
Lord Whitty: I gather that the noble Baroness is seeking some clarification of what lies behind Clause 58 rather than pursuing her amendment. The intention of the amendment is to prevent an order under the clause from applying a new scheme of elections to any council falling within a description of councils specified in the order. On the face of it, the amendment would appear to have such an effect, but in practice, it would make little difference to the exercise of that power, since an order could simply list all the councils

377
by name instead. For example, a provision could be used to specify all district councils in a particular county. Therefore, the amendment does not achieve its intended purpose.
However, the questions that the noble Baroness raised were more substantive. She asked whether local authorities would be able to take the initiative and to apply to the Secretary of State to change to a different scheme of elections. The drafting of the provisions would in no way preclude a local authority or group of local authorities from making a request to the Secretary of State to make an order under those clauses. However, they would not require the Secretary of State to act upon any such request, just as he is not required to comply with requests under current legislation; for example, requests from shire districts wishing to move between thirds and all-out elections. They may certainly take the initiative, but the Secretary of State would not be required to enact their request.
The noble Baroness asked about the role of the Local Government Commission. It will be required to have regard to the frequency of elections when it goes through its process of undertaking a review of the electoral arrangements of any local authority in the normal process. It is our intention that, once an order under Part IV has been made in respect of an authority, it will not then be open to the Commission to recommend a different scheme of elections. Clearly, it would not be appropriate for the Commission to be able to recommend a scheme different from the one already provided for under such an order.
There is no timetable on the face of the Bill and movement down that road is not necessarily an immediate government preoccupation. Nevertheless, we need those powers to improve the frequency of elections as we move into the reform of local government. It is therefore unlikely that the first batch of mayoral elections following the earlier provisions of the Bill will interfere with the process of changing from one system to another under those clauses.
The noble Baroness asked about periodic electoral reviews. It is clear that the current periodic electoral reviews cannot reflect provisions under the scheme until we move to enacting orders under the scheme. There will not be confusion on that matter in the immediate future. It may be some time before orders are made under the provisions. Nevertheless, it is important that the provisions are in the Bill. I hope that, following that clarification, the noble Baroness will he prepared to withdraw the amendment.
5.15 p.m.
Baroness Hamwee: I realise that I should have done the Minister the courtesy of explaining what I was going to ask before Committee stage began. I appreciate that my questions are quite detailed. They relate to the need for the local authorities to understand with some certainty what the future holds for them and to be assured that their voice will be heard in the way that it has been—by custom, if not by statute, as the Minister said. The Bill is no different in
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that respect, in that the Secretary of State is not required to follow a request from a local authority. However, that kind of matter of course exercises authorities with regard to planning for their future. It exercises individual councillors who need to plan for their future and understand how matters may proceed and how quickly.
I am sure that further questions will arise on the matter. In particular, the interlocking or otherwise of mayoral and council elections deserves a good deal of thought as to what the implications of one arrangement or the other may be. I see that the Minister wants to intervene.
Lord Whitty: Perhaps I may clarify that specific point. The White Paper made it clear that the mayoral elections would fall in the fallow year; for example, in unitary authorities. Therefore, there would be an intermeshing of the kind envisaged by the noble Baroness.
Baroness Hamwee: I thank the Minister for that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 363:
Page 35, line 40, at end insert—
("(8) No order may be made under this section unless the Secretary of State has consulted the particular authority or authorities concerned in the order and has obtained their agreement to the scheme to be made in the order.").
The noble Lord said: Amendment No. 363 follows fairly conveniently the debate that we have just had on the amendment of the noble Baroness, Lady Hamwee. Under Clause 58, the Secretary of State will have the power to determine whether an authority is elected on a three-year cycle, a two-year cycle, or all together. The amendment seeks to ensure that, before he makes an order which might change a particular local authority's custom and style of elections, the Secretary of State consults the local authority concerned and obtains its agreement to his proposal. The Minister may find that last provision rather more difficult to take, but where an authority is used to and happy with, let us say, a scheme of annual elections of one-third and where the Secretary of State—let us suppose that it is me—has a prejudice in favour of all in, all out, he should have the grace to consult those who are directly affected and obtain their agreement to any change that he proposes. That should apply unless there is an overriding reason of national necessity as to why the change should be made over the local view of what is happening and what should happen.
Local people like their local customs It has always appeared paradoxical to me that councils like to be elected in thirds. There is no doubt that some councils like that, even though I find it illogical. When I entered local government, the authority was all in, all out. After a while I found that I had a certain affection for that rather simple system.
The purpose of the amendment is simple. It is to require that before the Secretary of State exercises his power to make regulations, he should consult and obtain agreement.
I hope that the Minister will forgive me this comment. Had all the guidance and some examples of regulations been provided before we started discussing the Bill, we would not have needed to have this discussion. This is an important point. Local communities across the country have a vital interest in their local electoral systems. The amendment seeks to ensure that those vital interests are properly taken into account. I beg to move.
Baroness Hanham: My Amendment No. 364 takes a little further what the noble Lord, Lord Dixon-Smith, proposes. Throughout the proceedings on the Bill, we have been talking about consultation. It is clearly the Government's intention that communities should be consulted by local authorities on more or less everything. It therefore seems logical that if the arrangements for elections are to be changed, an opportunity should be given for those communities to be consulted on the regulations. My amendment would allow a period of three months for that consultation to take place and for views to be returned to the Minister. Furthermore, any change to the frequency or nature of the electoral scheme should be laid before Parliament in draft form. My amendment would allow for that to happen.
This is a serious matter. People feel strongly about it. Therefore, there should be the maximum opportunity for comment before such a major change is made.
Lord Whitty: In terms of consultation, one would presume that the regulations—the noble Lord, Lord Dixon-Smith, complained that they are not available—and, indeed, the practice would make it clear that it would be inconceivable that the Government would not consult interested parties on a change to electoral procedures requiring the drafting of orders under these clauses. However, the noble Lord's amendment goes further than that. It provides in effect that the local authority might well have a veto over such provisions. We cannot accept that. The whole purpose of this measure is to provide for councils to become more responsive to their electorates. I know that there are different views in local government on that matter as indeed there are on all sides of the Committee. Nevertheless, that is the purpose. At the end of the day, someone has to take a decision.
It is our view that the Secretary of State should take the decision if there is that conflict. The noble Lord clearly has a different view and would like to preserve the privileges and practices of the county of Essex and of others which want to stick to their current arrangements. We consider that in that conflict the Secretary of State should take the decision. One hopes
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that there will not be many differences in this context. Consultation should lead to agreement on both content and timing.
Perhaps I may turn to the approach of the noble Baroness, Lady Hanham. She should take what I said about consultation as confirmation that I would envisage a period of consultation. I would not want to be bound to 72 days prior to the order being laid before Parliament. That is unduly prescriptive. More importantly, I do not think that it is appropriate that that should be the subject of the draft affirmative procedure. Indeed, when the Delegated Powers and Deregulation Committee considered the matter, it did not suggest that this area of order making should be drawn to the attention of the House. What we propose is proportionate and appropriate for the negative procedure. Therefore, I cannot accept the noble Baroness's amendment. I ask the noble Lord, Lord Dixon-Smith, to withdraw his amendment.
Lord Dixon-Smith: The Minister has disappointed me in his response, but we have crossed swords in a metaphorical sense over this kind of issue on a number of occasions. The difference between us is that he thinks that the Secretary of State is superior on local community matters to the local community itself. I happen to take the other view. That is an irreconcilable difference, but at least we can both respect the other's point of view. I hope that the noble Lord respects mine as much as I respect his.
The noble Lord has given an assurance that there will be a great deal of consultation over these matters. I was happy to hear that part of his response. I was not quite so certain when he said that he was sure that the Secretary of State would reach agreement. After all, if a big man is holding a 14-pound hammer over your head and he says, "We want to do things this way", it is not very easy to disagree with him. However, I take the point that there will be consultation and that, of course, things have to change.
I should make the point that elections of councils by one-third with possibly a mayor every fourth year, so that annual elections are taking place, does not necessarily make a council more responsive to its electorate. If the electorate gets what one might call "electoral boredom" and ceases to participate or lowers its participation rate in the local elections as a result of electoral boredom, the opposite effect may well occur. All systems are fallible. We can have wonderful academic arguments both ways about them.
With the assurance about consultation, I am happy; with the rest of it, I am not. However, there is nothing more to be said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 364 not moved.]
Clause 58 agreed to.
Clauses 59 and 60 agreed to.
5.30 p.m.
Lord Tope Lord Tope moved Amendment No. 364A:
After Clause 60, insert the following new clause—

COMMISSION ON ELECTORAL SYSTEMS FOR LOCAL AUTHORITY ELECTIONS
(" .The Secretary of State shall establish a Commission which shall within one year of the enactment of this Act report on electoral systems for election to local authorities.").
The noble Lord said: I must begin with what amounts to a declaration of interest. For nearly six years I have been a member of a council—indeed, for most of that time its leader—where my party holds around 85 per cent of the seats, having received just over 50 per cent of the votes. That is unfair. I cope with the embarrassment I feel by reflecting that, not so many years ago, try party polled 35 per cent of the vote in my borough but took only 5 per cent of the seats. The proponents of the present system would say that it is a question of swings and roundabouts, and that that is fair. But it is not fair. I also look to the London borough of Newham, where the Labour Party polls a similar share of the vote to that of my party in my borough, yet takes every one of the council seats. That cannot be right or fair.
The Government have said on a number of occasions—most notably in the White Paper that began the process that we are concluding today—that they are concerned about disproportionate numbers of seats held on local authorities, that that is generally a bad thing and that it can lead to complacency, or worse. That is correct—although I hasten to add that it is not necessarily so. Some councils with very large one-party majorities manage to resist those temptations and operate very well. But it is not the right way to do things.
I have always believed that a system of proportional representation would come to local government first. It seemed to me that local government was ideally suited to a more proportionate system. I have been proved wrong. If it does come to local government, it will do so last. We have already seen proportionate systems in Scotland and Wales, and Northern Ireland has had such a system for many years. Now we are to have such a system in London.
A more proportionate system for councils, reflecting more accurately the outcome of the votes cast, has long been necessary. It still is necessary, and will be so whatever the council structure. But if anything, it becomes even more necessary if councils are to adopt the system of an executive mayor, whereby great power is vested in the hands of one person and a strong and important scrutiny role is given to the rest of the council. In such circumstances it is even more important that an assembly or council reflects the views of voters as a whole. The present first-past-the-post system does not do so.
The last time we discussed the voting system for elected mayors, one of the arguments put forward by the Minister for not changing the system was that we have adopted it for London and therefore we must follow the practice for the rest of the country. I now put that argument back to the Minister. We have
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adopted a kind of proportional system of voting for the Greater London Authority. In responding to me on Tuesday, the Minister argued that what is right for London must be right for the country. I suggest that the same argument applies here.
The amendment deliberately does not propose any particular voting system. It proposes a Commission— not one that sits for ever and whose report is then put on a shelf, but one which will quickly review all the work that has been done in this area and report within one year on the various proposals. That would include the first-past-the-post system. We do not prescribe the outcome, although I have a strong view on what it should not be. The Commission should examine this one issue, which the Government have remarkably failed to address in spite of all the misgivings that they have expressed about one-party states, and in spite of all the other measures they have adopted, some good, some less good, in an attempt to deal with that. They have persistently failed to tackle the one issue above all that would deal with the dominance of one-party states where the votes of the electors are not necessarily for one party.
I hope that we shall receive a positive response from the Government. The issue is of great concern to many people in and concerned about local government. It now demands attention, especially following the welcome changes that have taken place in all the other electoral systems except that for Westminster. I look forward to a positive response from the Minister. I beg to move.
Lord Lipsey: I am sorry to detain the Committee at this point. I shall do so briefly. I oppose the amendment moved by the noble Lord, Lord Tope, although I sympathise with many of his arguments. My opposition is on two grounds. One is the doctrine of "unripe time". We are presently in the rather turbulent aftermath of the first PR elections held in Scotland and Wales and under the new system for Europe. It is not a very good time to take an objective look at the system for local government, even though the amendment would allow a year's grace before the inquiry would be established.
My second reason for opposing the amendment is that, having had some experience of inquiries. I know that it is the devil's own job to get Ministers to accept the results, even when they have set the inquiries up themselves with enormous enthusiasm at the beginning. The chances of getting anywhere with an inquiry about which the Secretary of State might not be so enthusiastic are not very high.
However, I have some sympathy with the spirit of the proposal. Perhaps I may briefly say why. There is a case to be considered for changing the system of election for local government. There are the arguments put by the noble Lord: a monopoly council such as Newham, where, with less than 60 per cent of the vote, Labour holds all the seats. There are perverse results in local government. Croydon springs to mind, where Labour is nearly 8 per cent behind the Conservatives in its share of the vote but has an overall majority.

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There is also the lack of interest that the electoral system creates. I note that, in 1996, in Barnsley, 14 of the 22 seats on the council went uncontested. That is bad for local government.
In Scotland, first-past-the-post is indefensible because there are four parties. The McIntosh inquiry recommended change in Scotland, and a working group is now studying the detail. There is a case for carrying such proposals forward here. An inquiry would have at least three central purposes. One would be to canvass arguments for and against change. This is not a case as in the Jenkins proposals where the arguments are fairly well known and the job of the Jenkins Commission was to come up with the best possible alternative to be put before the people in a referendum. It is a case where the arguments have not been well considered and require objective examination.
Secondly, many people who talk freely about this subject do not know what the alternative systems would be and what would be their advantages. Just because Jenkins came up with AV + for Westminster, it does not mean that AV + would be right for local authorities. There is a much stronger case for the STV system for local government. In local government, essentially one wants to give quite a lot of weight to the individual candidates and rather less weight than in national elections to the party. That aspect should be examined.
The third important issue is whether any change that was introduced should be introduced nationally or by local option. There is a serious case to be made out for local experimentation and local option, so that we could feel our way towards a better system without plumping for a particular proposal straightaway. All those matters would be for an eventual inquiry to decide. I do not have the answers now. I hope, however, that in rejecting the amendment the Committee will leave the Minister with some sense that, when the time is no longer unripe and perhaps the Secretary of State's mind has moved more towards openness than it has in the past, he will consider such an inquiry. It could lead to a valuable and helpful national debate.
Baroness Hamwee: My Lords, the prospect of a more "ripe" Secretary of State is an interesting one. When the Secretary of State becomes more ripe, he or she may see the need to connect the issue of electoral reform and the type of election with the matters dealt with in Part IV of the Bill; namely, the timing of elections and whether they are for all councillors or merely for some. It does not seem sensible to send
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groups of authorities down one course, thereby putting back the debate, because it would be more difficult to make the change sequentially. It is important that the matters are considered together. That is the reason why we have proposed a Commission. We do not seek to impose a particular method, although our preferences would be those described by the noble Lord, Lord Lipsey.
Lord Whiny: Noble Lords who have spoken in this debate may believe that they have received a totally negative response to their amendments today. We do not believe that a change to the electoral system is a priority in local government. We believe that the main priority is to make councillors more responsive to their electorates and that the framework that we are putting in place will ensure that that happens. We consider local government modernisation to be more fundamental than the type of electoral system used. A number of Royal Commissions have looked at alternative electoral systems and we do not need another one. We would have enough information already if we were ever to move down that road, but we do not intend to move down that road or to legislate for it in this Bill.
The analogy with London is erroneous. In that assembly, members must take a strategic view across London whereas normally the essence of local government is that councillors are very much representatives of their own communities, so different arguments apply. In any case, we do not regard it as opportune, ripe or appropriate to insert this new clause in the Bill at this time. Therefore, I hope that the noble Lord will not pursue the matter.
Lord Tope: The Minister does not leave much room for doubt in his reply. I thank him for at least giving a clear answer, even if it is the wrong one. I can think of few measures that are more likely to increase the accountability of councillors than to have a more representative voting system, but tonight is not the time to pursue the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 61 agreed to.
Clauses 64 to 67 agreed to.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now resume.
Moved accordingly, and, on Question. Motion agreed to.
House resumed.
House adjourned at eighteen minutes before six o'clock.